Criminal division – sentencing

“It is uncontroversial that an ingredient of the court's duty to accord procedural fairness involves the giving of a fair opportunity to a party to adduce evidence or make submissions rebutting potential adverse findings. Procedural fairness must be upheld for its own sake, as well as for its consequences. The experience of the common law is that out of fair and lawful procedures will emerge fair and lawful outcomes.

See also R v Sa [2004] VSCA 182 at [29]; R v Bennett [2006] VSCA 274 at [4]-[6]; R v Healey [2008] VSCA 132 at [42]-[43]; R v Rule [2008] VSCA 154 at [46].

11.1.16 Relevance of United Nations Convention on the Rights of the Child

In DPP v TY (No 3) [2007] VSC 489 at [47]-[51] Bell J discussed the relevance to the sentencing of child offenders of the United Nations Convention on the Rights of the Child which entered into force on 02/11/1990 and to which Australia is a party. The Convention has not been incorporated into Australian law, which means that it cannot operate as a direct source of law: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287. However, as Maxwell P pointed out in Royal Women’s Hospital v Medical Practitioners Board (2006) 15 VR 22, 38, Australian courts have been prepared to consider international human rights conventions in exercising sentencing discretions. At least three cases have involved taking the Convention into account: R v Togias (2001) 127 A Crim R 23, 43; Walsh v Department of Social Security (1996) 67 SASR 143, 147; Bates v Police (1997) 70 SASR 66, 70 (but see contra Smith v R (1998) 98 A Crim R 442, 448). As Bell J stated in Tomasevic v Travaglini [2007] VSC 337 at [60]-[65], international human rights, such as those recognised in Article 40(1), can be a relevant consideration in the exercise of judicial powers and discretions. Article 40(1) of the Convention recognises

“the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.”

In DPP v TY (No 3) at [51] while holding that the Convention reinforces the existing principle of “giving primary emphasis to youth and rehabilitation as a mitigating factor when sentencing children”, Bell J also noted that-

• 
  “the provisions of any relevant legislation…remain applicable and must be applied”’; and
  
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  “taking the Convention into account does not lead to the result that children can escape criminal responsibility and just punishment; where the crime is very serious, considerations other than youth and rehabilitation can become more pressing”.
  

Bell J also remarked at [48] that Article 40 can “cut both ways” where the victim is a child. In that case the defendant was 14, the victim whom he murdered in a spur of the moment attack was 18:

“The Convention reminds us, to use the words of Cummins J in his recent decision in DPP v Farquharson [2007] VSC 469 at [3]: “’Children are precious and are vulnerable. They are entitled to love, to care, to health, to education, to security and to safety. Most of all they are entitled to life.’”

11.1.17 Sentencing for conspiracy compared with sentencing for completed offence

In DPP v Fabriczy [2010] VSCA 334 the Court of Appeal held:

[2] “There is no principle of law that the sentence for conspiracy to commit an offence should be less than the sentence which the completed offence would have attracted. The conspiracy offence is directed at a different mischief – the making of an agreement to act unlawfully – and the sentencing court must assess the degree of criminality, and the moral culpability of the individual conspirators, accordingly. The Court must take into account not only what was done by the particular defendant but also the scope and duration of the conspiracy as a whole and everything done in furtherance of it.”

[14] The assertion that there could be such a general rule misapprehends the seriousness with which the law views the crime of conspiracy. Conspiracy is an inchoate offence. The offence lies not in the overt acts themselves, injurious though they may be to an ordered society, but in the anterior agreement to commit them: DPP v Bhagwan [1972] AC 60, 79 per Lord Diplock. It is the agreement of a number of persons to carry into effect the unlawful purpose in combination which is of the essence of the crime: R v Ongley (1940) 57 WN (NSW) 116, 117 (Jordan CJ); Gerakiteys v The Queen (1984) 153 CLR 317, 334 (Deane J); Raptis, Lilimbakis & Sinclair v R (1988) 36 A Crim R 362, 364 (Young CJ, O’Bryan and Tadgell JJ). The offence of conspiracy is complete once there is agreement between two or more persons: R v Hoar (1981) 148 CLR 32, 38 (Gibbs CJ, Mason, Aickin and Brennan JJ); Gerakiteys v The Queen (1984) 153 CLR 317, 327, 334; Kamara v DPP [1974] AC 104, 119. It is a continuing offence {Truong v R (2004) 223 CLR 122} so long as there are two or more parties to it intending to carry out the design {DPP v Doot [1973] AC 807, 823; R v G, F, S and W (1974) 1 NSWLR 31, 43–44}.

[15] The charge of conspiracy is brought because ‘criminal action organised, and executed, in concert is more dangerous to society than an individual breach of the law’: DPP v Doot [1973] AC 807, 817–8 (Lord Wilberforce); R v Wasson [2004] NSWCCA 200, [21]. The crime of conspiracy was described in Hawkins’ Pleas of the Crown as follows: ‘All confederacies whatsoever, wrongfully to prejudice a third person, are highly criminal at common law.’