196x Filetype DOCX File size 1.17 MB Source: www.childrenscourt.vic.gov.au
11. CRIMINAL DIVISION – SENTENCING 11.1 Sentencing principles & sentencing orders 11.1.1 Sentencing models 11.1.2 Sentencing of adults 11.1.3 Sentencing of children 11.1.4 Some general sentencing principles 11.1.4.1 General deterrence is not applicable as a sentencing principle in ChCV 11.1.4.2 Powers of the Supreme Court and County Court in sentencing a child 11.1.4.3 Principle of Proportionality – Relevance of other convictions 11.1.4.4 Principle of Totality 11.1.4.5 Community correction orders under Part 3A of the Sentencing Act 1991 11.1.5 Sentencing orders – Sentencing hierarchy 11.1.6 The community supervisory orders detailed and compared 11.1.7 Power to impose an aggregate sentence of YRC/YJC detention under the CYFA 11.1.8 Restitution/Compensation/Costs 11.1.9 Additional orders including disqualification & forfeiture 11.1.9.1 Disqualification 11.1.9.2 Incompatibilty of diversion and licence cancellation/suspension 11.1.9.3 Forfeiture and other orders 11.1.10 Struck out 11.1.11 Children’s Court has no direct power to impose community work/service 11.1.12 Order for forensic procedure on finding of guilt 11.1.13 Sentencing of children for Commonwealth offences 11.1.14 Sentencing powers of Supreme Court or County Court 11.1.15 Relevance to sentencing of agreement between Crown and defence 11.1.16 Procedural fairness 11.1.17 Relevance of United Nations Convention on the Rights of the Child 11.1.18 Sentencing for conspiracy compared with sentencing for completed offence 11.1.19 Offending in a custodial setting is a relevant sentencing consideration 11.1.20 Vigilantism 11.2 Selected cases on sentencing 11.2.1 Young adults & children sentenced under the Sentencing Act 11.2.2 Children and young persons sentenced under the CYPA & CYFA 11.2.3 Sentencing hierarchy 11.2.4 Factual basis of sentencing – Relevance of uncharged acts 11.2.5 Purpose of a Youth Justice Centre sentence [formerly YTC] 11.2.6 Parity of sentencing 11.2.7 Double jeopardy 11.2.8 Effect of guilty plea, remorse, admission of offence, assistance to authorities 11.2.8.1 Remorse 11.2.8.2 Discount for guilty plea and/or admission of offence 11.2.8.3 Assistance to authorities (Informer’s discount) 11.2.8.4 Undertaking to give evidence against co-accused 11.2.9 Relevance of risk to offender’s safety while in custody / Relevance of protective custody 11.2.10 Effect of forgiveness by the victim 11.2.11 Effect of mental illness / mental disorder / intellectual disability 11.2.11.1 Cases prior to R v Verdins (2007) 16 VR 269 11.2.11.2 R v Verdins (2007) 16 VR 269 & later cases 11.2.11.3 Effect of intellectual disability 11.2.11.4 Effect of personality disorder 11.2.12 Effect of deprived/disadvantaged background 11.2.13 Effect of ill health and/or age 11.2.14 Effect of delay 11.2.15 Relevance of gambling addiction 11.2.16 Relevance of drug addiction 11.2.17 Relevance of intoxication 11.2.18 Relevance of hardship on offender's family 11.2.19 Relevance of Aboriginality 11.2.20 Relevance of recall or risk of recall by Parole Board Produced by former Magistrate Peter Power for the Children's Court of Victoria Last updated 04 March 2022 11.1 11.2.21 Relevance of likely forfeiture under the Confiscation Act 11.2.22 Sentencing for manslaughter / defensive homicide / attempted murder / murder 11.2.22.1 Sentencing for manslaughter 11.2.22.2 Sentencing for defensive homicide [now abolished] 11.2.22.3 Sentencing for attempted murder 11.2.22.4 Sentencing for murder 11.2.22.5 Sentencing for statutory murder 11.2.22.6 Sentencing for being accessory to murder 11.2.23 Sentencing for culpable driving / dangerous driving causing death/serious inj. 11.2.24 Sentencing for intentionally / recklessly / negligently causing serious injury, intentionally / recklessly causing injury, affray/riot & reckless endangerment 11.2.24.1 Sentencing for intentionally causing serious injury / intentionally causing serious injury in circumstances of gross violence 11.2.24.2 Sentencing for recklessly causing serious injury 11.2.24.3 Sentencing for negligently causing serious injury 11.2.24.4 Sentencing for intentionally causing injury / recklessly causing injury 11.2.24.5 Sentencing for affray/riot 11.2.24.6 Sentencing for reckless endangerment / recklessly exposing emergency worker to risk by driving 11.2.25 Sentencing for drug trafficking / cultivation / importation etc 11.2.26 Sentencing for armed robbery / robbery / agg carjacking / carjacking 11.2.26.1 Sentencing for armed robbery / robbery 11.2.26.2 Sentencing for aggravated carjacking / carjacking 11.2.27 Sentencing for burglary / agg burglary / home invasion / agg home invasion 11.2.28 Sentencing for rape / other sexual offences 11.2.28.1 Sentencing for rape 11.2.28.2 Setencing for other sexual offences 11.2.29 Sentencing for offences against the person committed on public transport 11.2.30 Sentencing for attempting to pervert the course of justice 11.2.31 Sentencing for property damage 11.2.32 Sentencing for child homicide 11.2.33 Sentencing for terrorism offence 11.2.34 Sentencing for firearms offences: importation 11.2.35 Sentencing for theft and theft of motor vehicle compared 11.2.36 Sentencing for offences involving family violence 11.2.36.1 Sentencing considerations for contravention of an intervention order 11.2.36.2 Some relevant cases 11.3 Some mechanics of sentencing 11.3.1 “Instinctive synthesis” or “two-tiered approach” 11.3.2 Use of sentencing statistics and sentencing snapshots 11.3.3 The Sex Offenders Registration Act 2004 and its relevance to sentencing 11.3.4 Power to direct time held in detention before trial be reckoned as already served 11.3.5 Exercise of mercy 11.3.6 Conviction or non-conviction 11.3.7 Effect of an injury sustained by offender while committing a crime 11.3.8 Effect of the COVID-19 pandemic on sentencing 11.4 Material admissible in sentencing hearings under the CYFA 11.4.1 Pre-sentence & group conference reports 11.4.2 Report, submission & evidence on behalf of child 11.4.3 Prior finding of guilt 11.4.4 Prosecutor’s submissions & duty 11.4.5 Victim impact statements 11.5 Deferral of sentencing 11.6 Group conference 11.6.1 Restorative justice 11.6.2 The Victorian Group Conference program 11.6.3 Goal 11.6.4 Consultation with Youth Justice 11.6.5 Mechanics 11.6.6 Conference Outcomes Produced by former Magistrate Peter Power for the Children's Court of Victoria Last updated 04 March 2022 11.2 11.7 Criminal Division Statistics 11.7.1 Victorian statistics 11.7.2 Australian & world statistics 11.8 Parole & Remissions 11.8.1 Parole 11.8.2 Remissions 11.9 Temporary leave from detention 11.10 Transfers between custodial institutions 11.11 Further custodial sentence imposed on detainee 11.12 Breach of sentencing orders made under the CYFA 11.12.1 “Generic” provisions governing commencement, hearing and transfer of breach proceedings 11.12.2 Powers upon proof of breach of CYFA sentencing order (other than YCO & fine default) 11.12.3 Revocation of YCO and consequences thereof 11.12.4 Fine defaults 11.13 Sunset provision for Children's Court priors 11.14 The MAPPS Program 11.15 Sentencing of adults for child abuse 11.15.1 Sexual abuse 11.15.1.1 Sexual abuse in a family setting 11.15.1.2 Sexual abuse by a person in authority 11.15.2 Use of the internet to procure sex 11.15.3 Possession/production/transmission of child pornography 11.15.4 Other sexual offending against children 11.15.5 Relevance of consent in sentencing for unlawful sexual activity with a child 11.15.6 Physical abuse 11.15.7 Causing death 11.16 Sentencing for child sexual abuse committed as a child 11.17 Sentencing of adults for offence against protective worker 11.18 Relevance of prospect of deportation 11.19 The ‘standard sentence’ scheme 11.20 Alcohol exclusion orders THE REST OF THIS PAGE IS BLANK Produced by former Magistrate Peter Power for the Children's Court of Victoria Last updated 04 March 2022 11.3 UNLESS INDICATED OTHERWISE, ALL LEGISLATION REFERRED TO IS VICTORIAN. 11.1 Sentencing principles & sentencing orders "Juveniles are less mature - less able to form moral judgments, less capable of controlling impulses, less aware of the consequences of acts, in short they are less responsible and therefore less blameworthy than adults. Their diminished responsibility means that they 'deserve' a lesser punishment than an adult who commits the same crime…Lesser punishment means not only more sparing use of detention but it also means significantly shorter terms of detention, bonds and periods of licence disqualification, because time has a wholly different dimension for children than it does for adults." Judge Newman (South Australian Youth Court) South Australian Youth Court Advisory Committee, Annual Report 1983, pp.6-7 "The risk that a period of detention will be counter-productive for an offender – and hence for the community – is never higher than in relation to a young offender who has not previously been in custody. Research to which the Chief Scientist of New Zealand has recently drawn attention has highlighted the potential for the immature brain to respond to punitive punishments in such a way as to make recidivism more rather than less likely." Victorian Court of Appeal in CNK v The Queen (2011) 32 VR 641; [2011] VSCA 228 at [77] per Maxwell P, Harper JA & Lasry AJA citing Laurence Steinberg, ‘Adolescent Development and Juvenile Justice’ (2009) Annual Review of Clinical Psychology 47, 65–68, cited in Improving the Transition: Reducing Social and Psychological Morbidity During Adolescence, Report to Prime Minister of New Zealand by Chief Scientific Advisor (May 2011), 28. "[S]entencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision.” High Court of Australia in Pearce v The Queen (1998) 194 CLR 610, 624 per McHugh, Hayne & Callinan JJ cited with approval in DPP v Yeomans [2011] VSCA 277 at [66] Only a small percentage of offences involving accused children are contested and a significant proportion of these are found proved in any event. It follows that the major task for a judge or magistrate in the Criminal Division of the Children’s Court is the sentencing of juvenile offenders. In R v Lanteri [2006] VSC 225 at [6] Gillard J explained the sentencing process for adult offenders: “My task is to determine the facts and, applying the principles of sentencing law, to determine in the exercise of my discretion, what is a proportionate and appropriate sentence in all the circumstances. In relation to the sentencing process, I refer to what the Court of Appeal said in R v Storey [1998] 1 VR 359 at 366: “Sentencing is not a mechanical process. It requires the exercise of a discretion. There is no single ‘right’ answer which can be determined by the application of principle. Different minds will attribute different weight to various facts in arriving at the ‘instinctive synthesis’ which takes account of the various purposes for which sentences are imposed - just punishment, deterrence, rehabilitation, denunciation, protection of the community - and which pays due regard to the principles of totality, parity, parsimony, and the like.” The process for sentencing juvenile offenders is the same although the weight given by the sentencing judge to the various factors involved in the ‘instinctive synthesis’ is likely to be quite different in most juvenile cases. 11.1.1 Sentencing models There are two sentencing models which, in one combination or another, underpin the sentencing of persons, whether adult or juvenile, in most jurisdictions. In his Keynote Address at the Youth Justice Conference in September 2000: "Managing a New World in Transit", the Chief Justice of Singapore said of these models in relation to youth sentencing: th "National responses in many countries to youth offending throughout the 20 century have fluctuated between the 'welfare' and the 'justice' models: broadly whether young offenders are seen as being primarily in need of care and rehabilitation, or deserving of correction or punishment. Both approaches have received their share of criticism." Produced by former Magistrate Peter Power for the Children's Court of Victoria Last updated 04 March 2022 11.4
no reviews yet
Please Login to review.