Criminal division – sentencing

11.1.4.1 General deterrence

In R v Angelopoulos [2005] VSCA 258 the Court of Appeal raised – without deciding – whether general deterrence was relevant to the sentencing of young offenders under the CYPA even though it is not specifically mentioned in s.139(1): per Callaway JA at [2] & Eames JA at [56]. However in the Appeal of JD (unreported, County Court of Victoria, 22/02/2008) Judge Strong held at [12]:

“[T]here is nothing in s.362 which appears to sanction general deterrence as a sentencing consideration. The courts are reluctant to make an example of those under a disability, and children are so regarded. The South Australian courts have said that general deterrence has no part to play in the sentencing of children and, in the absence of specific guidance to the contrary from a superior court in this State, I approach the matter in that way.”

In so holding His Honour adopted two decisions of the South Australian Full Court - R v S (1982) SASR 263 and R v Wilson (1984) 35 SASR 200 – involving legislation listing factors “very similar” to those in s.362(1) of the CYFA. In his leading judgment in R v S at 266 King CJ had made it clear that the principles of general deterrence and retribution have no part to play in the sentencing of children:

“Where it is appropriate to have regard to the protection of the community, it must be the protection of the community ‘from the violent or other wrongful acts of the child’, not the criminal acts of others who might be deterred by the treatment accorded to the child before the court. The legislature has quite clearly eschewed the concept of general deterrence in the treatment of persons under the age of 18 years. Similarly…the concept of retribution, that is to say ‘the observance of a proper proportion between the gravity of the crime and the severity of the punishment’ has no place in the treatment of a person under the age of 18 years.”

In H v R & Ors [2008] VSC 369, an unsuccessful appeal against a sentence of the President of the Children’s Court, Forrest J said at [11]-[12]:

“Considerations relevant to a sentence imposed under the CYFA are set out in s.362(1)…

The term ‘rehabilitation’, whilst not appearing within the section, nevertheless underpins those matters set out in s.362(1)(a) to (d). The principle of specific deterrence is incorporated within s.362(1)(g) of the CYFA; general deterrence is not a relevant sentencing principle: see R v Angelopoulos [2005] VSCA 258 at [52]-[56].”
In CNK v The Queen [2011] VSCA 228 the applicant – who had just turned 15 at the time of the offending – had been tried in the Supreme Court on a count of attempted murder. He was acquitted of that charge but convicted of aggravated burglary, kidnapping, recklessly causing serious injury and reckless conduct endangering a person – all of these being capable of being heard and determined summarily in the Children’s Court. On the plea, counsel for the applicant submitted – and the sentencing judge accepted – that the sentencing should be done in accordance with the provisions of the CYFA. Counsel submitted that general deterrence was not a factor to be taken into account in sentencing children, alternatively that CNK was not an appropriate vehicle for general deterrence. The sentencing judge disagreed. At [7]-[15] the Court of Appeal decided otherwise, saying:

[7] “In our view, the language of s 362(1), and the nature of the matters to which regard must be had, are such as to preclude any consideration of general deterrence. Our reasons are as follows.

[8] We start with the opening words of the subsection. Not only is the language imperative (‘the Court must’) but the words ‘as far as practicable’ operate, in context, as words of emphasis. Since the word ‘practicable’ means ‘feasible’ or ‘able to be done or accomplished,’ the phrase ‘as far as practicable’ means as far as it is possible to go: Owen v Crown House Engineering Limited [1973] 3 All ER 618,622-3. Hence the sentencing court must have regard to each of the specified matters to the maximum extent possible. And the statutory obligation to ‘have regard to’ a specific matter requires the Court to give the matter weight ‘as a fundamental element in the decision-making process’: Commissioner of Police v Industrial Relations Commission of New South Wales (2009) 185 IR 458, 469 [73] and the authorities there cited. Moreover, as explained below, the specified matters are not matters of fact but statements of policy. They identify the policy objectives which must – to the maximum extent possible – govern the sentencing of young offenders.

[9] Secondly, the matters to which regard must be had are – without exception – directed at a consideration of the effect of the proposed sentence on the child. This is true even of para (g) which, although expressly referring to the need to protect the community, directs attention to what will deter, or prevent, the particular child from engaging in ‘violent or other wrongful acts’.

[10] The language of para (g) is particularly significant. Plainly enough, this paragraph is concerned with the protection of the community through specific deterrence, that is, deterrence of the particular child offender. General deterrence has traditionally been regarded as an important sentencing consideration at common law precisely because it, too, is conducive to community protection. The deliberate use of language in para (g) which deals only with specific deterrence, and which says nothing about the need to deter others from committing ‘violent or other wrongful acts’, is a clear indication of legislative intention, in our view. As will appear, the same conclusion was reached by the Full Court of the Supreme Court of South Australia, in construing almost identical legislation: R v S (A Child) (1982) 31 SASR 263.

[11] Thirdly, what s 362(1) obliges the sentencing court to do ‘as far as practicable’ is to impose a sentence which fits the young offender as much as – or perhaps even more than – it fits the crime. Thus the Court must, as far as practicable, impose a sentence which is suitable to the child (para (e)) and must, as far as practicable, impose a sentence which will achieve the following policy objectives:

• 
  strengthen and preserve the child’s relationship with his/her family;
  
• 
  allow him/her to live at home;
  
• 
  allow him/her to continue with education, training or employment; and
  
• 
  result in the minimum stigma to the child.
  

[12] General deterrence as a sentencing consideration is entirely foreign to a scheme of this character. For, unlike all other sentencing considerations, general deterrence is unconnected with the particular offender. Rather, the principle of general deterrence treats the offender as a means to an end, as an instrument for effecting a broader community interest: Jeremy McGuire, ‘Deterrence in sentencing: Handle with care’ (2005) 79 Australian Law Journal 448, 457. The Court must ask itself what sentence should be imposed on the offender in order to deter other persons who might be minded to engage in similar offending.

[13] It is accepted that, where the principle of general deterrence applies, it may necessitate the imposition of a higher sentence than would be necessary if that principle were not applicable. (As will appear, the sentencing judge in the present case felt constrained by the need for general deterrence to reject a less stringent sentencing option put forward by the defence.) By contrast, the unambiguous command of s 362(1) is that no greater sentence should be imposed on the child than the nature and circumstances of the child’s offending require. It would, in our view, be wholly inconsistent with this intention were the sentencing court to be obliged – where necessary – to impose a heavier sentence, not because of any aspect of the child’s offending or personal circumstances but because of the need to deter others from engaging in similar conduct.

[14] Put another way, if a sentence were increased – for the purpose of general deterrence – beyond what would otherwise have been imposed on the child, the sentencing court would have breached its obligation to secure ‘as far as practicable’ the objectives set out in s 362(1). More particularly, to treat a child as a vehicle for general deterrence would amount to ‘making an example’ of the child, for the purpose of deterring others. This would, in our view, be in direct conflict with the Court’s obligation under s 362(1)(d) to ‘minimise the stigma to the child’ resulting from the Court’s determination.

[15] For the reasons we have given, the language of the statute conveys a clear legislative intention to exclude general deterrence. Whilst that intention is not made explicit, it is necessarily implied by the terms in which s 362(1) prescribes the sentencing court’s task: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39–40.”

In DPP v Anderson [2013] VSCA 45 the respondent child had pleaded guilty to a count of intentionally causing serious injury and had been sentenced to IMP4y/2y. The Children’s Court had found that exceptional circumstances existed which made it appropriate to refuse to hear and determine the charge summarily:

“The circumstances, severity, viciousness and gratuitous nature of the knife attack and the significance of the injuries suffered by the victim makes the offending a grave example of the offence of intentionally cause serious injury. The age of the accused at the time of the offending, his extensive prior criminal history, which include matters of violence, and the fact that the offence was committed whilst on parole, demonstrate an alarming escalation in violent offending behaviour by the accused. These matters combine to establish ‘exceptional circumstances’ within the meaning of s 356(3) of the Act. This is a case where the sentencing court would need to be able to consider the fullest possible range of sentencing options.”

The Court of Appeal (Maxwell P, Neave JA & Kaye AJA) allowed the Director’s Appeal and re sentenced the respondent to IMP 6y/3y6m. At [45]-[46] the Court said:

“There was debate on the plea about whether general deterrence was a relevant sentencing consideration. Reference was made to the decision of this Court in CNK v The Queen [2011] VSCA 228, {15} where it was held that in a case where a young offender was being sentenced under the provisions of the CYFA, general deterrence was excluded as a sentencing consideration. Where, on the other hand, a person is sentenced in accordance with the Sentencing Act 1991 (Vic), general deterrence is expressly identified by s.5(1)(b) as a purpose for which sentence may be imposed.

In the present case, her Honour pointed out – correctly – that, once she had concluded that sentencing dispositions under the CYFA were inadequate and that a sentence of adult custody was necessary, the provisions of the CYFA had no application and, accordingly, general deterrence was applicable. At the same time, her Honour accepted the defence submission that, under these circumstances, general deterrence should play ‘an ameliorated role, taking into account [Anderson’s] youth’, and that rehabilitation was still a significant consideration.”
In R v EF [2013] VSCA 186 the Court of Appeal (Ashley & Hansen JJA) sentenced a boy for an offence of culpable driving when he was 14 years 10 months old, an offence which cannot be heard and determined summarily in the Children’s Court. The sentence on this charge was thus imposed under the Sentencing Act 1991 (Vic). However, the Court was also required to re-sentence EF on associated charges of theft and negligently causing serious injury which the Children’s Court can hear and determine summarily. This gave rise to an interesting question about the applicability of s.362(1) of the CYFA to the sentencing, a question which the Court of Appeal ultimately found unnecessary to decide. At [32]-[35] Ashley JA said:

[32] “Section 362(1) refers to matters to which the Children’s Court is to have regard [because Court in s.362(1) is defined by s.3 to mean the Children’s Court]. But it has been held that, in some circumstances, provisions in the [CYFA] relating to sentences are to be applied when an offender is sentenced in a superior court [CNK v The Queen [2011] VSCA 228 [82], JPR v The Queen [2012] VSCA 50 [32]-[33] (Hollingworth AJA). Compare DPP v Anderson [2013] VSCA 45 [47].

[33] It is not clear to me that s.362(1) will apply to an exercise of jurisdiction by the Supreme Court or the County Court in a case in which the child has objected to the exercise of jurisdiction by the Children’s Court.

[34] Moreover, Anderson suggests that the section will not apply once a superior court decides that punishment exceeding that available under the CYFA, or under s.32(3)(b) of the Sentencing Act, is necessary.

[35] It is unnecessary, however, for me to resolve what I perceive to be that uncertainty in this case. By reason of the appellant’s age at time of offending, his level of intellectual and psychological disability at that time, and the injuries which he sustained, general deterrence cannot be regarded as a factor of any significance in the sentencing synthesis.”
See also DPP v Eade [2012] VSCA 142 at [40]-[44]; R v JH [2012] VSC 13 at [7].