Criminal division – sentencing
Principle of Proportionality
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- Bu səhifədəki naviqasiya:
- 11.1.4.3 Principle of Totality
- 11.1.5 Sentencing orders - Sentencing hierarchy
- 11.1.6 The community supervisory orders detailed and compared
- 11.1.8 Restitution/Compensation/Costs
- 11.1.9 Additional orders including disqualification forfeiture
- 11.1.9.1 Disqualification
11.1.4.2 Principle of ProportionalityA authoritative statement of the principle of proportionality is to be found in Hoare v The Queen (1989) 167 CLR 348 at 354 where a 5-member bench of the High Court, led by the Chief Justice, said: "…a basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances." The significance of this principle as a common law restraint on excessive punishment had earlier been confirmed by the High Court in Veen v The Queen [No 1] (1979) 143 CLR 458 and re-affirmed by that court in Veen v The Queen [No 2] (1988) 164 CLR 465. See Fox and Freiberg, op.cit., pp.219-220; Postiglione v The Queen (1997) 189 CLR 295 at 308 per McHugh J; R v Samia [2009] VSCA 5 at [6]-[15] per Nettle JA; R v Harris [2009] VSCA 189 at [19]-[24] per Lasry AJA; R v Coombes [2011] VSC 407 at [56]-[58] & [93] per Nettle JA. The principle applies not only to the offences for which the offender is being sentenced, but also to any offences for which the offender is currently serving a sentence: R v Berkelaar [2001] VSCA 143 at [22]; R v Bakhos (1989) 39 A Crim R 174; R v Harrison (1990) 48 A Crim R 197; R v Gordon (1994) 71 A Crim R 459. In R v McNaughton (2006) 66 NSWLR 556 per Spiegelman CJ at [24]-[25], McLellan CJ at CL at [60], Grove J at [76], Barr & Bell JJ at [81], the view was expressed that prior convictions are not part of the objective circumstances of a crime so they cannot inform the upper limits of the sentence. Commenting on this in DPP v Zucko [2008] VSCA 270 at [18], Redlich JA, with whom Maxwell P & Nettle JA agreed, said: “It is true that there is no sentencing principle that requires a more severe sentence to be imposed because of an appalling criminal history. The sentence should never exceed what is proportionate to the gravity of the crime viewed objectively… Be that as it may, the relevance of an extensive criminal history is not confined to denying an offender leniency…An offender’s antecedents provides an indication of moral culpability, prospects of rehabilitation, the existence of any dangerous propensity, the need for community protection, and the increased need for specific deterrence having regard to the failure of previous penalties to moderate his behaviour: see R v O’Brien & Gloster [1997] 2 VR 714, 718 per Charles JA.” 11.1.4.3 Principle of TotalityThe principle of totality allows custodial sentences to be reduced, by applying rules of concurrency or part concurrency, to avoid an offender being subject to a crushing sentence: Fox and Freiberg, op.cit., p.356. The principle is best articulated in the following passage from Mill v The Queen (1988) 166 CLR 59 at 62-63: “The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57, as follows (omitting references): ‘The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate". The principle has been stated many times in various forms: "when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong["]; "when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences”.’”
"There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect." In R v Beck [2005] VSCA 11 at [19] Nettle JA discussed the concept of a ‘crushing’ sentence: “It has been said that the notion of a crushing sentence has never been adequately defined in this State {Fox & Frieberg, Sentencing, 2nd Ed. at [9.620]}, although it is generally conceived of as one that is imposed in such a way that it would provoke a feeling of helplessness in the applicant if and when he is released or as connoting the destruction of any reasonable expectation of useful life after release: R v Cowie, CCA 02/02/1978 unreported; R v Yates [1985] VR 41 at 48. It is also accepted that if multiple sentences are so imposed as to make the totality of the prisoner’s liability to incarceration crushing in that sense, some of the sentences should be modified by appropriate orders for cumulation in the application of the totality principle: R v Adams (1979) 3 Crim LJ 302, D.P.P. v Saville CCA 02/03/1984 unreported, R v Bowman (1993) 69 A Crim R 530 at 539; R v Everett (1994) 73 Crim R 550. There are of course no hard and fast rules as to how one is to decide whether the totality of multiple sentences imposed at different times is crushing. As in so much of sentencing, each case depends on its own facts.” A survey of the totality principle by Wells J in Attorney-General v Tichy (1982) 30 SASR 84, 92-3 was approved by Gleeson CJ in Johnson v R (2004) 205 ALR 346 at [4] and by the Court of Appeal (Vincent & Weinberg JJA and Robson AJA) in R v Sebborn [2008] VSCA 200 at [16]. Wells J stated:“… [W]hat is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct … The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty.” In Postiglione v R (1997) 189 CLR 295 at 308 McHugh J described how the principle of totality is to be applied: “The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. Recent decisions in the Court of Criminal Appeal have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence.” In R v Sullivan [2005] VSCA 286 at [20] Eames JA, with whom Charles & Buchanan JJA agreed, applied this dicta of McHugh J. In R v Hunter [2006] VSCA 129 at [28]-[31] the Court of Appeal referred with approval to R v Sullivan in holding that the principle of totality required:
In addition, the Court of Appeal noted at [29] that “the judge was bound to assume that the full term of the original sentence would be served. Any possibility that Hunter might again be released on parole had to be disregarded.” In R v Piacentino; R v Ahmad (2007) VR 501; [2007] VSCA 49 Eames JA, with whom Buchanan, Vincent, Nettle & Redlich JJA agreed, said at [37]: “The totality principle, then, is concerned to ensure that sentencing for an offender facing multiple offences is, as McHugh J held in Postiglione, a ‘just and appropriate measure of the total criminality involved’. As Fox and Freiberg observe {“Sentencing – State and Federal Law in Victoria” 2nd Ed, at 725 [9.623]}, the principle will generally apply, unless denied by statute.” In his judgment in H v R & Ors [2008] VSC 369, affirming on appeal a sentence of the President of the Children’s Court, Forrest J applied R v Piacentino; R v Ahmad in saying at [83]: “I have also taken into account the totality of the offending in the light of the total effective term. In my view, a period of 27 months’ detention is appropriate to H’s overall criminality over a period of two years.” In R v Piacentino; R v Ahmad the 5 bench Court of Appeal also made it clear - disapproving a contrary decision of a 3 bench Court of Appeal in R v Orphanides (2002) 130 A Crim R 403; [2002] VSCA 86 – that where an adult offender falls to be sentenced for offences constituting breach of parole but is to be sentenced at a time when he has not had his parole revoked by the Adult Parole Board, then the sentencing judge may not have regard to the possibility that he might be later called upon by the Parole Board to serve some or all of the balance of his parole sentence. In R v Harrison [2008] VSCA 65 Forrest AJA, with whom Buchanan & Ashley JJA agreed, said at [34]: “It is settled that the principle of totality applies to both the head sentence and the non-parole period. It also applies where a sentence has been imposed by a different court to that which later sentences the offender [Mill v The Queen (1988) 166 CLR 59].” There is a good deal of case law providing guidelines as to how concurrency and/or cumulation ought generally be applied in order to achieve an outcome which is in accord with the principle of totality. Though any case law based on the Sentencing Act 1991 does not strictly apply to children sentenced under the CYFA, it nevertheless may provide a useful guide in an appropriate case. In R v VN [2006] VSCA 111 Redlich JA, with whom Maxwell P & Buchanan JA agreed, said at [144]: “In the recent decision of R v Flavall [2006] VSCA 32 at [6] per Chernov JA this Court had occasion to refer again to the approach required when making an order for cumulation. Ordinarily cumulation is ordered to reflect separate events, episodes or transactions: DPP v Grabovac [1998] 1 VR 664 at 676 per Ormiston JA. That is not to say that an order for cumulation cannot be supported when there are two consequences of a single event: R v Musson [1997] 1 VR 656 at 660. When an offence arises out of substantially the same act, circumstance or series of occurrences, the presumption at common law was that concurrency should run its course: Fox & Freiberg, Sentencing State and Federal Law in Victoria (2nd ed., para. 9.612). Such a principle is in harmony with s.16 of the Sentencing Act 1991 which establishes a prima facie rule that any terms of imprisonment imposed on a person ought be concurrent: R v Mantini [1998] 3 VR 340 at 348 per Callaway JA. Total cumulation is not the normal rule at common law even between different episodes: R v Fuller-Cust (2002) 6 VR 496 at 510; R v Jongsma (2004) 150 A Crim R 386 at [20] per Batt JA.” In R v Hunter [2006] VSCA 129 at [29] the Court of Appeal stated: “[T]here must in the absence of exceptional circumstances be cumulation in respect of offences committed whilst on parole. See s.16(3B) Sentencing Act 1991. At the same time, viewed as a whole the aggregate of sentences imposed by reason of cumulation cannot be greater than any sentence required to fulfil the totality principle and all the appropriate aims of sentencing in the case: R v Greenslade [2004] VSCA 213 per Batt JA at [30]; R v Hennen [2004] VSCA 42 per Bongiorno AJA at [31]. There must be relativity between the totality of the criminality and the totality of sentences (R v Holder [1983] 3 NSWLR 245 at 260), not only for the offences for which the person is being sentenced, but for the sentence which the person is currently serving (R v Bakhos (1989) 39 A Crim R 174; R v Harrison (1990) 48 A Crim R 197 and R v Gordon (1994) 71 A Crim R 459).” In DPP v Grabovac [1998] 1 VR 664 the Court of Appeal, referring inter alia to Mill v R (1988) 166 CLR 59, Ryan v R (1982) 149 CLR 1 & R v Lomax [1998] 1 VR 551, held: [p.680] "In general a court should avoid imposing artificially inadequate sentences in order to accommodate the rules relating to cumulation. In other words, as the High Court said [in Mill's Case at 62-63], where practicable when applying accepted rules of sentencing as to totality, proportionality and the like and in order to fashion an appropriate total effective head term in relation to a series of offences, it is preferable to achieve a satisfactory result by passing appropriate individual sentences and to make those sentences wholly or partially concurrent, rather than by an order or orders for the cumulation of unnecessarily reduced individual sentences. Nevertheless, a rule of this kind can only be a precept or guideline to be applied as and when practicable. In particular, though concurrency is to be preferred, a degree of cumulation ought to be ordered where sentences represent separate episodes or transactions which ought to be recognised, though at all times avoiding the imposition of a 'crushing' sentence.” [p.683] “What the judge should have done was to fix the appropriate term for each offence, then to direct such accumulation and concurrency as would likewise reflect the criminality of each episode of offending and finally to look at the end result to see if the principle of totality had been breached and to see otherwise whether it was a crushing head sentence. I would not suggest that this should be a mechanical process. Obviously a judge could fairly fix on a degree of concurrency and cumulation with an eye to what would not offend against the principle of totality; after all that is the object of the rules relating to both concurrency and cumulation. But the starting point should be sentences which are proportionate to and appropriate for each offence.”
“If the total sentence is too severe, a more appropriate sentence can be constructed either by altering the orders for cumulation and concurrency, or by lowering the sentences for individual counts. In Mill, the High Court approved either approach, but expressed preference for the former; that accords with the approach of this court in DPP v Grabovac.” In R v Hogan [2008] VSCA 279 the Crown conceded and the Court of Appeal found sentencing error in a case in which the sentencing judge had ordered full cumulation on one count and no order for cumulation on others. At [24]-[29] the judgment of Maxwell P, Redlich JA & Robson AJA referred with approval to the latter afore-mentioned dicta of Ormiston JA in DPP v Grabovac [1998] 1 VR 664, 683 and to dicta of the Court of Appeal in R v Izzard (2003) 7 VR 480, R v McCorriston [2000] VSCA 200 and R v Coukoulis (2003) 7 VR 45 and said: [27] “In our opinion, the sentencing approach discussed in both R v Izzard and DPP v Grabovac means that, where there are a number of counts each of which should properly be the subject of partial cumulation, full cumulation should not be arbitrarily ordered on only one count to produce a total effective sentence which satisfies the totality principle. There should ordinarily be partial cumulation where discrete episodes are involved in the various counts. The extent of the cumulation on a particular count may have to be tailored, bearing in mind the need for cumulation on other counts, so as to ensure that the totality principle is observed and a crushing effective sentence is not imposed. [28] There can be no inflexible rules as to how this is done. What is important is that whether or not cumulation is imposed must reflect the criminality of the offences and episodes involved, subject always to the due observance of the totality principle. [29] The discretion to order cumulation between counts is a very broad one. It should not be unnecessarily circumscribed. Reasonable minds will differ as to whether cumulation should be ordered and if so in what amount.” For further discussion of the principle of totality and the rules in relation to cumulation see Pearce v The Queen (1998) 194 CLR 610 at 623-624 per McHugh, Hayne & Callinan JJ; DPP v GJL [2004] VSCA 35 at [29]-[30]; R v Truong [2004] VSCA 172 at [18]; R v McDonald [2004] VSCA 196 at [21]-[22]; R v Ly [2004] VSCA 45 at [28]; R v Stanisavljevic [2004] VSCA 144 at [15]; R v Zaydan & Others [2004] VSCA 245 at [43]; R v WMR [2005] VSCA 59 at [17]-[25]; R v McIntosh [2005] VSCA 106 at [16]-[21]; R v Mann [2005] VSCA 141 at [7]; R v Glennon (No.3) [2005] VSCA 262 at [44]; R v Verdins [2005] VSC 479 at [38]-[39]; R v Welsh [2005] VSCA 285 at [32]-[35]; R v Carne [2006] VSCA 2 at [27]; DPP v Gany [2006] VSCA 148 at [30]; R v Clarke [2006] VSCA 174 at [64]; R v Fadisarkis [2006] VSCA 303 at [22]-[24]; DPP v Pau [2007] VSC 4 at [51]; R v Abela [2007] VSCA 22 at [85], [87]-[92]; R v Piacentino - R v Ahmad [2007] VSCA 49; R v Cardamone [2007] VSCA 77 at [43]-[47]; R v Latina [2007] VSCA 78 at [20]-[21] & [40]-[42]; DPP v Mirik [2007] VSCA 150 at [56]-[57]; R v DM [2007] VSCA 155 at [27]; R v Alashkar – R v Tayar [2007] VSCA 182; R v Norris [2007] VSCA 241 at [48]-[49]; R v Scholes [2007] VSCA 303 at [38]-[43]; R v Ahmed Mourad [2008] VSCA 4 at [10]-[16]; DPP v Rout [2008] VSCA 87; R v Rule [2008] VSCA 154; DPP v Towle (Sentence) [2008] VSC 101 at [24]-[28]; R v AB (No.2) [2008] VSCA 39 at [53]-[60]; R v Bult [2008] VSCA 227 at [22]-[24]; R v Franklin [2008] VSCA 249 at [34]-[36]; R v Rousetty [2008] VSCA 259 at [50]; R v Brown [2009] VSCA 23 at [19]-[27] & [36]-[41] {see also (2004) 10 VR 328}; R v Wright [2009] VSCA 27 at [45]-[54]; R v Samia [2009] VSCA 5 at [16]-[20]; R v Yi Yi Wang [2009] VSCA 67 at [14] & [24]; R v Franklin [2009] VSCA 77 at [23]-[33]; R v Waugh [2009] VSCA 92 at [23]-[25]; R v Alexopoulos [2010] VSCA 52 at [59]-[66]; R v Malikovski [2010] VSCA 130 at [40]-[42]; R v Bentley [2010] VSCA 217 at [12]; R v Scott [2010] VSCA 320 at [13]; R v Minotto [2010] VSCA 310 at [14]-[20] & [29]; R v Davy [2011] VSCA 98 at [36]-[47]; R v Marino [2011] VSCA 133 at [48]-[55]; R v Samac [2011] VSCA 171; R v Cook [2011] VSCA 187 at [11]-[17]; DPP v Clifford [2011] VSCA 199 at [29]-[39]; DPP v Farrugia [2011] VSCA 201 at [26]-[28]; DPP v Dickson [2011] VSCA 222 at [11]; R v Tran [2011] VSCA 363 at [26]-[28]; R v Charles [2011] VSCA 399 at [177]-[186]; R v DHC [2012] VSCA 52 at [85]-[98]; R v Arnautovic [2012] VSCA 112; DPP v McGuigan [2012] VSCA 121; DPP v Gangur [2012] VSCA 139; DPP v TP [2012] VSCA 166 at [82]-[84]; DPP v CA [2012] VSCA 199 at [14]-[18]; R v Contin [2012] VSCA 247; R v Kasey McCartney [2012] VSCA 268 at [92]-[101]; R v Buck & Willcocks [2012] VSC 489; DPP v Roberts [2012] VSCA 313 at [95]-[119]; Waugh v The Queen [2013] VSCA 36 at [14]-[35]; R v Gavanas [2013] VSCA 178 at [102]-[105]; John Gordon v The Queen [2013] VSCA 343 at [44]-[67]; Berry v The Queen [2013] VSCA 349 at [6]-[14]; Bowden v The Queen [2013] VSCA 382 at [17]; Pasinis v The Queen [2014] VSCA 97 at [41]-[42] & [62]-[78]; Zotos v The Queen [2014] VSCA 324 at [19]; Fridey v The Queen [2014] VSCA 271 at [31]-[59]. In R v Izzard (2004) 7 VR 480; {[2003] VSCA 152} the applicant and a co-offender had attacked a series of 4 victims. The applicant had pleaded guilty to one count of armed robbery, one count of attempted armed robbery, one count of attempted robbery, one count of recklessly causing injury and one count of theft. He had been sentenced to 5 years imprisonment on the count of armed robbery and various terms of imprisonment to be served concurrently on the other counts. A non-parole period of 3½ years was fixed. Callaway JA, with whom Winneke P & Vincent JA agreed, was critical of this method of structuring the sentence. After referring to R v O'Rourke [1997] 1 VR 246, R v Mai [2000] VSCA 184 & R v McCorriston [2000] VSCA 200 at [13], Callaway JA said at [22]-[23]: "A moderate sentence may, of course, be lengthy. Moderation takes its content from the circumstances and each individual sentence should still be appropriate for the relevant count. There are at least three reasons why, within the limits of common sense, judges are well advised to moderate and cumulate in appropriate cases. First, moderation is a virtue in itself. Secondly, other victims are not left to feel that the offences committed against them are 'meaningless statistics'. Thirdly, a sentence structured in this way is less vulnerable on appeal. Attention is focussed on the merits and the discretion is not re-opened simply because the total effective sentence, imposed on one count, was manifestly excessive for the offence the subject of that count considered on its own." In R v MDB [2003] VSCA 181 at [14] Batt JA - with whom Ormiston & Vincent JJA agreed - said in relation to sentences of imprisonment: "At least in general, it is preferable for judges to cumulate upon the most serious count, as otherwise the effective sentence for it appears to be reduced: DPP v Grabovac [1998] 1 VR 664 at 689; R v Reid [Court of Appeal, unreported, 16/11/1998] at p.15 and R v Birnie (2002) 5 VR 426 at 436." In DPP v Adams [2006] VSCA 149 at [3] the Court of Appeal reiterated: “There must always be a base term specified which will provide the point of reference for all directions relating to concurrency or cumulation.” See also R v Yi Yi Wang [2009] VSCA 67 at [10]. Presumably, however, no base sentence need be specified if the sentences on all of the offences are to be served concurrently. See also R v Nikodjevic [2004] VSCA 222 at [34]-[42] where the Court of Appeal reiterated the principle in R v MDB in overturning a sentence in which the judge had failed to nominate a base sentence upon which various other sentences were to be partly cumulated and R v Seiler [2005] VSCA 146 at [3]-[4] where the Court of Appeal referred to R v Nikodjevic in overturning a sentence for the same reason. 11.1.5 Sentencing orders - Sentencing hierarchyThe Second Reading Speech for the CYPA referred (at p.1155) to "a new and broader hierarchy of sentencing orders in the Criminal Division, which will provide the Court with greater flexibility in sentencing…[A]dditional non-custodial options have been created". And (at p.1154): "Consistent with the philosophy of the [CYPA], a 'guardianship to the Director-General' order, formerly known as wardship, will no longer be available as a sentencing option in the Criminal Division." Ten sentencing orders are available under s.360(1) of the CYFA when the Court finds a child guilty of an offence, whether summary or indictable. These form a sentencing hierarchy: s.361 provides that the Court must not impose a sentence unless it is satisfied that it is not appropriate to impose a sentence referred to in any preceding paragraph of s.360(1). This is the principle of parsimony. The detention orders - Youth Residential Centre orders under ss.410-411 of the CYFA & Youth Justice Centre orders under ss.412-413 of the CYFA - are not to be confused with youth justice centre detention sentences for young adults under ss.3 & 32 of the Sentencing Act 1991. Victoria is unique in Australia in providing the option to adult courts of sentencing immature, vulnerable 18-20 year old offenders to custody in the juvenile system rather than prison.
The Department of Human Services has published pamphlets on probation, YSO, YAO, YRC & YJC orders as well as on remand, bail & parole. In determining the period of a sentence of detention in YRC or YJC the prescribed maximum sentence is highly relevant. In R v AB (No.2) [2008] VSCA 39 at [40] & [51] the Court of Appeal (Warren CJ, Maxwell P & Redlich JA) said: [40] “The maximum sentence provides a guide as to the seriousness with which a particular offence should be viewed: Hansford v His Honour Judge Neesham [1995] 2 VR 233, 236; R v Sibic (2006) 168 A Crim R 305, [14]-[17] (Redlich JA). It serves as a directive to the courts on how to weigh the gravity of such criminal conduct, the maximum penalty itself being prescribed for the worst class of offence in question: R v Sibic (2006) 168 A Crim R 305, [14]-[17] (Redlich JA); Ibbs v R (1987) 163 CLR 447; R v Dumas [1998] VR 65, 71-2. Recently in R v Sibic at [14], this court referred to the following passage from the decision of the High Court in Markarian v R (2005) 228 CLR 357 at [31] where the majority said: ‘[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.’” [51] “Whenever Parliament increases the maximum sentence for any criminal offence, that increase has potential significance for all sentences to which the new maximum applies. As the present case illustrates, the increase will have very substantial implications for any sentence for an offence that is placed within the worst category of that offence: Ibbs v R (1987) 163 CLR 447; R v Sibic (2006) 168 A Crim R 305 at [16]. Even where the offence to which the increase applies is nowhere near the worst category, the increase remains of relevance since, in the usual case, the increase shows that Parliament regarded the previous penalties as inadequate. Even where the new maximum may only be of general assistance [see DPP v Aydin & Kirsch [2005] VSCA 86 at [10]-[12] (Callaway JA) as to the variable factors that bear upon the significance of an increased maximum], it becomes the ‘yardstick’ which must be balanced with all other relevant factors: Markarian v The Queen (2005) 228 CLR 357 at [31] (Gleeson CJ, Gummow, Hayne & Callinan JJ).” See also R v Stratton [2008] VSCA 130 at [126]-[130]; R v Gonzalez [2011] VSCA 175 at [28]-[31]. 11.1.6 The community supervisory orders detailed and comparedThree of the sentencing orders involve supervision of the child in the community by an officer of the Youth Justice Division of the Department of Human Services or alternatively, in the case of probation, by an assigned honorary youth justice officer [s.3 of the CYFA].
11.1.7 No power to impose an aggregate sentence of detention under the CYFA Under s.9 of the Sentencing Act 1991 (Vic) a Court, other than the Children’s Court, sentencing a person to imprisonment has power to impose an aggregate sentence in circumstances where an offender is convicted of two or more offences which are founded on the same facts or form, or are part of, a series of offences of the same or a similar character. In the writer’s opinion the provisions of ss.410-413 of the CYFA do not permit a Court to impose an aggregate sentence of detention on multiple charges but rather require the Court to impose separate sentences of detention on each individual charge (which sentences may then be ordered to be concurrent, partly concurrent or cumulative). It follows, in the writer’s view, that cases such as R v Grossi [2008] VSCA 51, DPP v Felton [2007] VSCA 65 & R v Rodgers [2008] VSCA 52 which apply to aggregate sentences of imprisonment have no application to sentences of detention under the CYFA. 11.1.8 Restitution/Compensation/CostsIn addition to any other sentencing order, s.360(3) of the CYFA empowers the Court to order a child: (a) to make restitution or pay compensation in accordance with s.417 of the CYFA; (b) to pay costs. Section 360(4) prohibits the Court from making an order referred to in s.360(3) a special condition of another sentencing order. Section 417, read in conjunction with ss.85H(1), 86(2) & 87J(1) of the Sentencing Act 1991 (Vic), requires the Court to take into account, among other things, the child's financial circumstances and the nature of the burden which would be imposed by an order under:
Since a child rarely has the means and ability to pay anything other than a small sum of money, if that, applications for restitution/compensation/costs are commonly refused. The reference to s.87J(1) of the Sentencing Act 1991 (Vic) was added to s.191 of the CYPA on 01/07/2005 [now s.417(1) of the CYFA]. However, no reference to s.87A(4) has been added. The latter provision requires a court dealing with an application under s.87A(1) - for repayment to the State of the whole or a part of assistance and costs awarded to a victim under the Victims of Crime Assistance Act 1996 - to have regard to the defendant’s financial resources and financial needs. In the absence of express reference to s.87A(1) in the CYPA, the writer wonders whether s.87A has any application in the Children’s Court. However, the question remains moot. Money unpaid under a restitution or compensation order is a judgment debt, said by ss.85M, 87 & 87N of the Sentencing Act 1991 (Vic) to be able to be "enforced in the court by which it was made". Prior to 01/07/2005 enforcement of such orders had not been possible as the Children’s Court had no relevant civil jurisdiction, Part 5 of the Magistrates’ Court Act 1989 (Vic) – the Part dealing with civil proceedings generally – is expressly excluded by s.528(2) of the CYFA from having operation in the Children’s Court. Further, s.357(1) of the CYFA expressly excludes a sum of money payable by way of restitution or compensation from the fine default procedures. But a recovery mechanism has now been provided by s.418 of the CYFA, which provides that-
Section 417(2) of the CYFA – based on s.36 of the Children (Criminal Proceedings) Act 1987 [NSW] - provides: “The maximum amount that the Court may order an offender to pay under Part 4 of the Sentencing Act 1991 is $1000.” It is not clear on the face of the legislation whether s.417(2) of the CYFA caps restitution/compensation/costs at $1000 per case or $1000 per charge. In favour of the “per case” interpretation is that s.417(2) uses the word “offender” rather than the word “offence”. In favour of the “per charge” interpretation is that ss.85B(1) & 86(1) of the Sentencing Act 1991, two of the substantive powers to award compensation, use the word “offence”. The latter provides: "If a court finds a person guilty of, or convicts a person of, an offence it may, on the application of a person suffering loss or destruction of, or damage to, property or pain and suffering as a result of the offence, order the offender to pay any compensation for the loss, destruction or damage (not exceeding the value of the property lost, destroyed or damaged) or for the pain and suffering that the court thinks fit." Thus, looking only at the legislation, one could make a respectable argument either way. However, it appears from Hansard that parliament intended s.417(2) to cap restitution/compensation/costs at $1000 per case. In the debate on the predecessor s.191(2) of the CYFA, which is in identical terms, in the Legislative Council on 25/05/2005 Hon J M Madden said: “It is not appropriate for the Children’s Court when sentencing a young person to conduct the truncated civil proceeding for an amount that exceeds the amount that the Court can impose as a financial penalty by way of sentence. This is especially so given that the Court has no general civil jurisdiction, and given the requirement for the court to conduct inquiries into a young person's financial circumstances. The Children's Court, when sentencing a child, is not in a position to conduct this type of inquiry to determine the children's financial capacity with respect to a large civil debt. It is therefore appropriate for such inquiries to be done in proper civil proceedings as is envisaged in sections 85L, 86(10) and 87M of the Sentencing Act 1991 which preserves the right to sue. Further, there is no point making orders that raise the victim's expectation. As Mr McIntosh, the member for Kew in the other house, said, 'You can't get blood out of a stone'. Alternative restorative processes such as the Koori court or through group conferencing are more appropriate in ensuring the necessary balance between the rights of the victim, the needs of the young person and the concerns and expectations of the community. There is currently divergent practice across the state with respect to these orders in the Children's Court. Clause 41 seeks to impose a level of consistency. Clause 41 does not extend to serious cases dealt with in the County Court or the Supreme Court.”
“There are a number of incidents of s.85B compensation proceedings. First, the proceedings are under the Sentencing Act 1991, a criminal statute. The proceedings are heard in the Criminal Division by the sentencing Judge. Second, a condition precedent to the institution of s.85B proceedings is the recording of a criminal conviction [or a finding of guilt]. Third, the respondent to an application under s.85B is a party by reason of his, her or its character of being an offender. Fourth, the applicant has to be a victim of a crime. Fifth, there is an intimate connection between the antecedent criminal trial and the application. The documents the application proceeds upon are criminal trial documents, including committal depositions before the trial and victim impact statements after conviction: s.85F(2). Sixth, unlike ordinary civil process where the impecuniosity of the defendant is irrelevant, in s.85B applications the Court may take into account the financial circumstances of the offender and the nature of the burden that the payment ordered will impose: s.85H(1). Seventh, by s.85H, the rehabilitation of the offender, always an important matter in sentencing, should not be deflected or defeated by a compensation order. Eighth, by s.85C(1)(b)(iii) a section 85B application may be made on the victim's behalf by the Director of Public Prosecutions. Ninth, s.85L preserves the applicant's right to recover civil damages separate and apart from, or in addition to, s.85B proceedings. And finally and importantly, pursuant to s.85B compensation can be awarded not only for injury constituted by ‘actual physical bodily harm’ (s.85A(1)(a)) but also (amongst other heads) by ‘grief, distress, trauma, or other significant adverse effect’. Compensation can also be awarded for hospital, medical psychological and other expenses.” In DPP v Esso Australia Pty Ltd [2004] VSC 440 at [17]-[22] Cummins J also rejected, “at three levels: statutory, elemental and chronological”, an argument by the defendant that a s.85B claim for compensation is subject to the threshold requirements of Part VBA Wrongs Act 1958 which came into operation in May 2003 and subject to the quantum limitation provisions of Part VB Wrongs Act 1958 which came into operation in October 2002. On appeal His Honour’s decision was upheld: “[A] s.85B claim does not fall within the ambit of Part VBA.” {Esso Australia Pty Ltd v Robinson [2005] VSCA 138 at [21]-[30]}. At [32] the Court of Appeal also discussed the way in which a legislative “cap” on compensation was to be treated, referring with approval to dicta:
In Kortel v Mirik & Mirik [2008] VSC 103 at [11] Bell J said: “It is axiomatic, under both s.85G(2) of the Sentencing Act and the common law, that when an application is made for compensation under s 85B, the court owes a duty to all parties to the proceeding to observe the rules of natural justice.” In RK v Mirik & Mirik [2009] VSC 14 Bell J discussed in detail and applied the principles in ss. 85B(1)-(4), 85C, 85F, 85G, 85H(1)-(2) of the Sentencing Act 1991, awarding substantial sums of compensation ($113,600 & $26,525) against two imprisoned adult offenders having no capacity to pay and holding that the victim’s interests should have greater priority than the offenders’ rehabilitation. In Ioannou v Catania [2008] VSC 302 Bell J awarded the adult applicant compensation of $32,051.33 under s.85B for serious burn and related injuries caused when the adult respondent set fire to him. The quantum of compensation (taking into account the matters in s.85H) represented the proceeds from the sale of the sole asset of the respondent who was considered unlikely to have the means to satisfy an order in excess of that amount at any time after his release from custody. In DPP (Vic) v Energy Brix Australia Corporation Pty Ltd (2006) 14 VR 345, 356-7 [50], Neave JA said that the factors which should be taken into account in assessing compensation for a person’s grief or trauma under s.85B include:
See also dicta of Vincent JA (with whom Buchanan JA agreed) at [30] & [36] in the same case. This dicta of Neave JA & Vincent JA was approved and applied by the Court of Appeal in Chalmers v Liang & Zhu [2011] VSCA 439. In Shepherd & anor v Kell & anor [2012] VSC 80 Lasry J relied on dicta of Cummins J in Robertson v Esso (Australia) Pty Ltd [2004] VSC 101 at [4] in granting leave pursuant to s.85D to applicants for compensation for an extension of time in which to file their applications. In Shepherd & anor v Kell & anor [2013] VSC 24 his Honour analysed s.85H of the Sentencing Act in the course of holding at [32] that “the offenders’ financial circumstances would be relevant: the offenders are young and their prospects for rehabilitation are good”. In Koeleman v Nolan [2012] VSC 128 the appellant had stolen a motor vehicle which was not subsequently recovered. A magistrate made a restitution order under s.84(1)(b) of the Sentencing Act 1991 requiring the offender to transfer his own motor vehicle to the victim. On appeal the order was set aside, Almond J holding that the offender’s motor vehicle did not fall within the category of “goods that directly or indirectly represent the stolen goods”. 11.1.9 Additional orders including disqualification & forfeitureSection 360(5) of the CYFA provides that if under any Act other than the CYFA a court is authorised on conviction for an offence- (a) to make an order with respect to any property or thing the subject or in any way connected with the offence; or (b) to impose any disqualification or like disability on the person convicted- then the Court may, if it finds a child guilty of that offence, make any such order or impose any such disqualification or disability despite the child not being convicted of that offence. For the meaning of “conviction” as used in the Confiscation Act 1997 (Vic) see the judgment of Smith J in DPP v Nguyen and DPP v Duncan [2008] VSC 292. For analysis of the phrase “used in connection with the commission of the offence” as contained in the definition of “tainted property” in section 3(1) of the Confiscation Act 1997 (Vic) see the judgment of the Court of Appeal in R v Chalmers [2011] VSCA 436. For analysis of the phrase “lawfully acquired” in s.22 of the Confiscation Act 1997 (Vic), see the judgments of the Court of Appeal in Markovski v DPP [2014] VSCA 35. 11.1.9.1 DisqualificationAn issue which arises from time to time in sentencing in the Children’s Court is whether the mandatory disqualification provisions in the Road Safety Act 1986 (Vic) – for example s.28 & Schedule 5 or s.50(1A) & Schedule 1 - apply to children found guilty of offences against that Act. There is no case law on the point, an appeal to the Supreme Court against a decision that s.50(1A) did apply in the Children’s Court having been abandoned some years ago. From the wording of the relevant disqualification provisions in the Road Safety Act 1986 the writer can see no reason why they should not apply to the Children’s Court in the same way as they apply to every other sentencing court. Insofar as a mandatory disqualification might adversely interfere with the ongoing education, training or employment of a child defendant, s.362(1) of the CYFA is expressed to make such interference a matter for the court to have regard to “as far as practicable”. Hence there is no inherent conflict between s.362 and the mandatory disqualification provisions. Nor, in the writer’s view, does s.360(5) assist the contrary argument. Read properly, it goes the other way, authorizing the Children’s Court to impose a disqualification said to be predicated on conviction even if a conviction is not imposed. The principles surrounding licence disqualification were discussed by the Court of Appeal in R v Franklin [2009] VSCA 77 at [34]-[39]. In that case the adult appellant who had been convicted of culpable driving and disqualified from driving for 8 years. This was effectively for 12 months after the appellant’s earliest release date. In dismissing the appeal on this issue, Warren CJ (with whom Redlich JA & J Forrest AJA) said: [34] “The principles and considerations surrounding licence disqualification are similar to those for other sentences. Yüklə 1,78 Mb. Dostları ilə paylaş:
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