Legal Research > Papers by Public Defenders

Children and the High and Supreme Courts 2007-2008

Paper by Andrew Haesler SC presented to the Children's Legal Service Conference on 24 May 2008

There are a few simple truths about acting for children in criminal matters. The first is that we can never be complacent: we cannot rely on the special rules developed over many years for dealing with children remaining in place. Recent changes to the bail laws, have removed the 1978 policy that a person had a relatively unfettered right to seek their liberty. The changes have had a considerable, and possibly unintended, impact on children in detention. The State's power to restrict bail applications for crime prevention, efficiency and cost saving grounds is now regarded as more important than the liberty and rehabilitation of children.

The second truth is that the more we learn about young offenders and crime the more we ignore what we have learned. Children do require special treatment. That consideration underpins most of the laws relating to children's criminal procedure and detention laws introduced in the 1980's, laws that bring into a domestic context the UN Covenant on the Rights of the Child. The Australian government ratified the Convention in December 1990 and it became binding on Australia in January 1991. Only Somalia and the United States have not yet ratified the Convention. We now understand more about how children's brains develop and a child's inability to comprehend fully the consequences of their actions. See Roper v Simmons and Slade v The Queens, discussed below. In recent years however the Courts, particularly when sentencing, have retreated from earlier decisions that gave expression to these ideas. The focus has shifted from doing what is in the best interests of the child to imposing on children adult penalties for what the courts regard as adult crimes.

The third and related truth is that harsh dealing with children under the guise of community protection will often have a greater adverse impact on the community than by initially focussing on the rehabilitation of child offenders.

A recurring theme of this talk is; what has happened to mercy as considerations in dealing with children who offend? Why, if as it now appears mercy has no or little application does not pragmatic common sense take precedence over retribution Given that pragmatic measures which recognise the special position of children and can both reduce re-offending and protect the community in the long term by encouraging rehabilitation? If we to ditch outmoded ideas such as mercy shouldn't we also abandon failed ideas such as general deterrence and the notion that higher penalties imposed on children send a message that is actually understood and acted on?

The current orthodoxy that general deterrence is critical for community protection is set out in an oft quoted passage from Radich [1954] NZLR 86 at 87:

'...one of the main purposes of punishment, which is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that if they yield to them, they will meet with severe punishment. In all civilised countries and in all ages, that has been the main purpose of punishment, and it still continues so...If a court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that sentences are such as to operate as a powerful factor to prevent the commission of such offences'.

Issue was taken with this orthodoxy in a particularly direct and open speech to Justice Harrison a Sentencing Conference at Australian National University on 8 February 2008. Although admittedly only a new judge he took issue with the current orthodoxy as set out in Radich. He found no recurring or worthwhile relationship between the penalty prescribed for a particular offence and the likelihood that it will be committed.

'We speak about deterrence in a way that suggests that there is, and that we know there is, a relationship between the size or type of the sentence we impose and the likelihood that a convicted person will, or the community at large upon hearing of his or her fate will, make informed decisions about whether or not to commit like crimes in the future. We are required to operate upon the assumption that members of the community will be reliably and logically influenced by the severity or otherwise of the sentences we impose. We are obliged to re-affirm and thereby to institutionalise the notion that fear about a particular sentence for a particular crime will have some bearing upon later decisions about whether or not to commit it. One could be forgiven for thinking that this sounds very much like bullshit'.

I will develop these themes in the context of sentencing young offenders. Before I do I want to explore three other areas where the rights of children are being eroded - the age of consent, detention of young offenders and committal procedures.

The age of Consent

Despite every attempt to preach the virtues of abstinence children still seem to think that sexual intercourse can be enjoyable and fun and ignore laws that say they can't engage in it. While law makers argue about the merits of an age of consent, and health experts agree that sex too early can be emotionally and physically damaging, children still do it. Haven't they heard of deterrence?

In 2003 the NSW Parliament introduced laws designed to regularise the age of consent and remove discriminatory provisions. Prior to 2003 section 77(2) Crimes Act allowed a defence if a mistake was made about the age of a consenting child over the age of 14. The amendments removed this defence.

In CTM v R (2007) 171 A Crim R 371, [2007] NSWCCA 131 the Court of Criminal Appeal (Hodgson JA and Howie and Price JJ) held that it doesn't matter what an accused believes, if the consenting child with whom he (and it is always a he) had intercourse was under 16 the fact of intercourse alone makes him guilty of an offence pursuant to section 66C Crimes Act, and liable to a penalty of up to 10 years gaol. Sec 66C(3) The logical extension of this finding is that if a child under 16 pretends to be 17 and produces fake ID or other proof of age the person who has intercourse with them is still criminally liable.

The Court's argument was simple. There was only a limited defence of mistake of age, if the child was over 14, prior to 2003. As that defence was removed there is now no defence.

'It is inconceivable that the repeal of s.77(2) would activate a Proudman v. Dayman defence'. Hodgson JA at [7]

This conclusion was supported by the legislative history of provisions relating to sex with underage girls.

The defence case was equally simple. To remove a common law defence requires a clear statement of legislative intent. The legislative history of the mistake of age laws remains ambiguous and in many respects contradictory, particularly regarding male homosexual intercourse. The fact is the Crimes Act is now silent. Anyone reading s. 66C would have no idea that the common law Proudman v. Dayman defence of honest and reasonable mistake of fact does not apply. If section 66C is read to imply there is no defence there could be no certainty in the law and there would be considerable risk of injustice. If Parliament wants to remove a common law defence, they should say so explicitly.

Despite the apparent simplicity of the two opposing positions the argument in the High Court took a full day. See High Court transcript [2008] HCA Trans 117, 29 February 2008. The Court has reserved its decision.

After special leave was granted in December last year the Chief Judge of the District Court sent an email to all judges noting that in cases where mistake of age was to be argued adjournments should be granted. Until the CCA decision is overturned however the law in NSW is clear; no matter what is said or done by the child, if a person has sex with a child under the age of 16 mistakenly but honestly and reasonably believing the child is over 16, that person commits a serious criminal offence!

Young Persons in Detention Centres

In February 2008 changes to s.22A Bail Act 1987 commenced. By preventing repeat bail applications the amendments have, together with other recent bail changes and a police crack down on juvenile offenders, had the effect of increasing the number of children in detention. It appears that so acute is the problem children are sleeping in the gymnasium at Baxter Detention Centre and sharing cells designed for one. Education and rehabilitation programs are suffering and some children are simply not getting access to necessary programs.

When the changes to the bail laws were introduced the Attorney General told Parliament that the changes to bail laws had 'delivered results'and that the 'number of remand prisoners has increased'Importantly, he then said:

'and new jails are being opened to accommodate the increase'. Hansard, Legislative Council, Bail Amendment Bill 2007, 17/10/2007.

No new child detention facilities have been built.

One solution to the overcrowding problem has been to transfer detainees aged 18 and over, to adult gaols. Since February 2008 about ten (10) older detainees have been moved and a further twenty (20) are being assessed with a view to their transfer to gaol. These older detainees had originally been kept in detention because they are on remand for offences committed while a child or because when they were sentenced the judge found that there were special circumstances that required they serve their sentences as juveniles after they turned 18.

Section 19 Children (Criminal Proceedings) Act 1987 allows a Court when sentencing a young person who has committed a serious offence while still a child to direct that their imprisonment be served as a juvenile offender after they turn 18. The Court must find there are special circumstances before it makes such an order.

Section 4 Children (Detention Centres) Act 1987 sets out the objects of the Act which include the need for detainees to return to the community as soon as possible and that sufficient resources are to be made available to achieve the objects of the Act. Section 4 Children (Detention Centres) Act 1987: Objects of Act

(1) The objects of this Act are to ensure that:
(a) persons on remand or subject to control take their places in the community as soon as possible as persons who will observe the law,
(b) in the administration of this Act, sufficient resources are available to enable the object referred to in paragraph (a) to be achieved, and
(c) satisfactory relationships are preserved or developed between persons on remand or subject to control and their families.
(2) In the administration of this Act:
(a) the welfare and interests of persons on remand or subject to control shall be given paramount consideration, and
(b) it shall be recognised that the punishment for an offence imposed by a court is the only punishment for that offence. It states that the welfare and interests of the young persons shall be given paramount consideration.
Section 28 Children (Detention Centres) Act 1987 gives the Director-General of the Department of Juvenile Justice power to transfer older detainees from a detention centre to a correctional centre with the consent of the Commissioner for Corrective Services. A revised s. 28 came into operation in 2006.

Section 19 Children (Criminal Proceedings) Act 1987 allows a court, if there are special circumstances, to extend the period a young person spends in detention before they must be transferred to gaol. A s. 19 order allows an older detainee to serve their sentence 'as a juvenile offender'However s. 19(7) contains a specific provision:

'Nothing in this section, or in any order under this section, limits the operation of section 28 of the Children (Detention Centres) Act 1987'.

When the amendments to s. 28 Children (Detention Centres) Act 1987 were introduced into Parliament in 2006 the Parliamentary Secretary to the Attorney-General explained the change to s.28 as 'beneficial' as it would allow the Department to focus on its core target group - juvenile offenders. There was a clear statement of intent that before a section 19 detainee was transferred to gaol there would be:

  • At least one interview by the Department of Corrective Services State Co-ordinator, Young Adult Offender Programs.
  • Meetings between family and significant others and juvenile justice program staff to discuss the detainee's case plan, security classification and placement.
  • An opportunity provided for the detainee to ask any questions.
  • An explanation given of the details about the adult correctional system and the particular correctional centre in which the detainee will be accommodated.

    The reasons justifying a s. 19 order can be illustrated by what was said by Judge Johnson when sentencing a young man - KT.
'The background report prepared by officers of the Department of Juvenile Justice, and the report of Mr Champion, provide substantial support for the finding of special circumstances advanced by counsel for the Offender. I accept that the Offender would be vulnerable in the adult prison system. Despite his physical size, he is not a threat to any person at the detention centre, staff or inmates... I am satisfied that the Offender's rehabilitation will be substantially enhanced by his continued detention in a juvenile detention centre. It is in the particular need of the Offender to maintain relationships with staff and others involved in his rehabilitation in the juvenile detention centre, that special circumstances may be found in this case... The assessment of Mr Champion concerning his intellectual ability is pertinent to this as well... Accordingly, for the purposes of s.19 (3) Children (Criminal Proceedings) Act 1987, I find that there are special circumstances justifying the detention of the Offender in a detention centre'.( R v KT [2006] NSWSC 83 at [128])

The detrimental impact of a transfer can be considerable. Once transferred from detention the detainee changes status and becomes an 'inmate'That change of status means that the Children (Detention Centres) Act 1987 with its protective objects in section 4 no longer applies. The Crimes (Administration of Sentences Act) 1999 now applies. That Act has no stated objects. It is designed for the proper administration of prison inmates and their sentences, not rehabilitation. As inmates, young former detainees no longer have access to specialist youth workers, education or psychological programs. Unless they are at the John Maroney Centre they will be offered very little in the way of specialised rehabilitation opportunities and programs.

The young person's parole authority also changes from the specialist Children's Court to the State Parole Authority. When a detainee is considered for parole section 4 Children (Detention Centres) Act 1987 applies to them. Section 4 provides that detainees should take their places in the community as soon as possible and their welfare and interests shall be given paramount consideration. When a gaol inmate applies for parole sections 135(1) and 135(2) Crimes (Administration of Sentences Act) 1999 restrict their release unless it is 'appropriate in the public interest'which takes, as its first point of consideration, 'the need to protect the safety of the community'Simply put, it is much easier for a detainee to obtain parole than an inmate.

The recent transfers fail to consider or give any natural justice rights to the young person. In some cases their sentences are about to expire or they are in the middle of education and other courses that they will not be able to complete if they are in an adult gaol. There is a respectable argument that the rules of natural justice and procedural fairness require that before a s. 19 detainee is transferred to gaol they have an opportunity to present their case and have it properly and independently considered by the Director-General.

If s. 28(1) is read literally then the Director-General of Juvenile Justice can transfer any s. 19 detainee to gaol at their whim and possibly without challenge; there being no procedural or appeals provisions in the Act.

A decision made pursuant to s.28 to transfer a s.19 detainee can simply be made and will take effect if the Commissioner of Corrective Services consents. No reasons need to be given. No other procedures need to be followed. Were the decision to be challenged it could be justified on the basis that good policy and administration compelled the move as a response to overcrowding and that the welfare of the younger inmates had to take precedence over that of older detainees, no matter how vulnerable. All that is required is that the young person be a s.19 detainee and the Director order the transfer in writing with the Commissioner's consent. Given what is said in the note to s. 19(1) and s. 19(7), a detainee may not have a legitimate expectation that they will continue to enjoy the benefits of detention until the Court order expires or they turn 21.

The exercise by the Director-General of his or her statutory power deprives that young person of the benefits and privileges afforded him or her by the order of the Court. When these matters are considered along with; the requirement for a clear and reasoned finding of special circumstances before making a s.19 order; the objects in s.4 of the Children (Detention Centres) Act 1987, and the policy statement to Parliament that existing practice would be followed, there is a clear expectation that detainees will be afforded procedural fairness before a transfer decision is made.

A policy or practice can found a legitimate expectation or entitlement that before decisions adverse to that expectation are made the person will be afforded procedural fairness and natural justice. This could include the right to know if a decision is to be made, to make submissions and be heard before the decision is made and to have existing policies applied fairly (see Kioa v West (1985) 159 CLR 550; Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648; Annetts v McCann (1990) 170 CLR 596).

Summons have now been filed in the Supreme Court on behalf of a number of young persons who have been transferred recently, seeking their return to detention and on behalf of others earmarked for removal. In order to forestall an injunction against them Juvenile Justice have undertaken not to move those earmarked for transfer.

The key questions to be asked at the hearing of the action are:

1. Is there a requirement that a s.19 detainee be afforded procedural fairness before a s.29 transfer is made?
2. Does a decision made on overcrowding grounds suffice: involving as it does the exercise of a statutory power and the overturning of a legitimate expectation of continuing to enjoy the benefits of detention?

The Department may argue that if there is insufficient room in a detention centre and the younger inmates are suffering it is the older inmates who should make room - an extension of the 'women and children first' lifeboat rule. They will also argue that s.19(7) makes it clear that detention is subject to possible transfer by virtue of s.28. The Director-General must retain some capacity to respond to the needs of the young person and the needs of the institutions under his or her control. Section 28 gives them that capacity. There can be no expectation that just because a court order is made the young person will remain in detention until the order expires or they turn 21.

My response is that the government has a responsibility to all juvenile detainees. It has accepted this responsibility and was aware that demands would be made on detention facilities when it passed the new laws. It cannot now escape its failure to provide adequate resources by making vulnerable young people bear the burden of its failures. Particularly, when there is substantial overcrowding in adult gaols.

In my opinion the correct view of s.28 is that it does not allow transfer at the Director-General's whim or because inadequate resources have been provided to him by the Executive government, particularly given the statements in s. 4 Children (Detention Centres) Act 1987.

In every case there must be some process of assessment before a detainee is transferred or recommended for transfer. If that process was not undertaken, or in carrying it out procedural fairness is denied a young person, a challenge should be made.

Further if reports from some staff at Baxter are true staff concerns about detainees being transferred are not being recorded and files are being censored, with reports being removed from files and/or rewritten to fit a predetermined outcome.

Procedural fairness or natural justice demands a right to be heard, a right to have accepted procedures applied and that relevant factors will be considered and irrelevant factors ignored before a statutory or regulatory power is exercised.

In my opinion the answer to questions one is 'yes'and question 2 is 'no'.

There is a requirement that procedural fairness be afforded a detainee before a s. 29 transfer on other than disciplinary grounds is made.

A decision made on simple overcrowding grounds without first considering all other relevant factors including the needs of the detainee and giving the detainee a right to be heard and have their submissions and subjective case considered does not suffice to overcome the requirement or legitimate expectation for procedural fairness inherent in the Act.

Section 19(3) Children (Criminal Proceedings) Act 1987 makes it clear that those who are made detainees may be more vulnerable than other young offenders and that better services and programs are available to them in detention rather than prison. It appears anathema to that section, the objects of the Children (Detention Centres) Act 1987 and the orders of the Court that the special circumstances requiring detention can be ignored because of overcrowding or a later administrative assessment which does not properly and fully address whether or not those special circumstances still apply.

Committals from the Children's Court -PM v The Queen

Before a child is committed to the District Court the Magistrate must be satisfied that the charges may not properly be disposed of in the Children's Court in a summary manner. Ordinarily, if a person is charged before the Children's Court with an indictable offence that is not a serious children's indictable offence, and pleads not guilty, the proceedings are to be dealt with summarily in the Children's Court, unless one of two conditions in s. 31 Children's Criminal Proceedings Act 1987 (the CCP Act) are met. First, the accused person may elect "to take his or her trial according to law". Secondly, the accused person is to be committed for trial if (a) the Children's Court states that it is of the opinion, at the end of the prosecution case, that the evidence is capable of satisfying a jury beyond reasonable doubt that the person has committed an indictable offence and (b) the Children's Court is of the opinion that "the charge may not properly be disposed of in a summary manner".

A problem can arise where after a child is committed for trial for a 'serious indictable children's offence'and the Director of Public Prosecutions later chooses not to proceed on that charge but indicts for a lesser indictable offence. Must the proceedings for that lesser offence return for hearing and determination by the Children's Court? Does the District Court have jurisdiction to hear and determine that lesser offence?

The issues were debated in the High Court in PM v The Queen (2008) 82 ALJR 57. It was argued that the condition for remitting the matter to the Children's Court, pursuant to s. 44 of the CCP Act was not satisfied. Although PM had been committed for trial for a 'serious indictable children's offence,'the charges eventually preferred against him were indictable offences other than a 'serious children's indictable offences'As a consequence he never had the opportunity to elect to "take his or her trial according to law" for those offences, and most importantly, the Children's Court had not first decided that the proceedings on those charges may not properly be disposed of in the Children's Court in a summary manner.

The Court held that the District Court did have jurisdiction to deal with the charges preferred and that no order for remitter should have been made. Where a child is before the District Court for sentence the allows a higher Court to remit the sentence hearing to the Children's Court so that it can be dealt with pursuant to the Children (Criminal Proceedings) Act 1987, s.20 Children (Criminal Proceedings) Act 1987. Section 20 does not apply to serious children's indictable offences. The Court rejected the argument of Basten JA in the CCA that all offences which are not serious children's indictable offences are to be dealt with summarily in the Children's Court unless the steps prescribed by s. 31 of the CCP Act are engaged.

The critical point was that s.31 does not speak to courts other than the Children's Court. The Court reasoned that the words of s. 31 apply to the Children's Court and to any criminal proceedings before the Children's Court. They are not directed to any other court or to proceedings in any other court. Nothing in the section removed the jurisdiction of the District Court to deal with the matter then properly before it. No power of remitter arose.

Kirby J (in a separate judgment, but not for once in dissent) did however reiterate that:

'The separate treatment of children has long had a dual purpose. First, it recognises the inappropriateness, except in the gravest of cases, of invoking the full range of adult criminal trial procedures and punishments where the offender is young, and typically inexperienced and immature. Secondly, it operates so as to prevent youthful offenders becoming associated with adults having extensive criminal histories, acknowledging that affording such offenders a second chance may divert them away from future criminal behaviour. The removal of accused children to a court such as the Children's Court is, therefore, both the mark of a civilised community and a reflection of that community's perception of its own self-interest in the treatment of young offenders. These are not trivial purposes. They reflect extremely important social policies. In interpreting the CCP Act, it is the duty of courts, including this Court, not to brush such objectives aside but to attempt to fulfil them so far as this is possible, given the legislative provisions.'(At [70] & [71])

Mercy in Sentencing

A quick review of recent Court of Criminal Appeal cases since January 2006 shows that the word mercy appears in about 25 cases but that it rarely appears in a context beneficial to a defendant. In the first case I looked at, R v Knight (2006) 164 A Crim R 126, [2006] NSWCCA 292, the sentencing judge did have regard to considerations of overriding mercy but he then found that the defendant did not qualify for any mercy from the court (at [19]).

In the next matter the Crown had submitted that the sentence imposed was manifestly inadequate because a sentencing judge had acted with a sense of mercy, not towards the offender but towards her children who would continue to suffer from their mother's incarceration. The CCA ( R v Nguyen (2006) 166 A Crim R 124) held that Judge Berman was wrong to rely on the hardship to the respondent's children to make a substantial reduction in the sentence he would otherwise have imposed.

In Blundell v R (Cth) [2008] NSWCCA 63, reference was made to a formerly famous passage from a decision by Napier CJ in Webb v O'Sullivan (1952) SASR 65 at 66 where his Honour had said:

'The court should endeavour to make the punishment fit the crime, and the circumstances of the offender, as nearly as may be. Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest'.

But Justice Simpson for the Court extracted the passage only to read it down:

'Napier CJ was not purporting to lay down any rule or principle of sentencing. His remarks were confined to the circumstances of the case that was before him'(at [42]).

It took a while but I finally came across a case where mercy had not been read down In R v Picken [2007] NSWCCA 319, there was debate as to whether the Judge's imposition of a suspended sentence involved some element of mercy. The Crown did not suggest that mercy was an irrelevant consideration in sentencing. They did however contest its appropriateness in this case where the defendant was a ' slightly built, immature, young man in custody without the necessary and regular provision of his medication'. Mason P (with whom Hidden and Harrison JJ agreed) thought mercy was relevant. He held that considerations of mercy did not lead to any appealable error.

This decision is a feeble candle in a blowing gale. Judges do recognise that it is possible to go too far.

'[T]he strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back.'(Wells J in R v Wirth (1976) 14 SASR 291 at 295 - 6. A case involving hardship to children by imprisonment of a parent, cited with approval by Barr J in Roberts v R [2007] NSWCCA 112 at [13])

However the point at which mercy of affronted common sense is allowed to apply is a hard one to reach, as the continuation of the above passage makes clear:

'So it is proper ... hardship likely to be caused by a sentence of imprisonment ...ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so. For example, if it were demonstrated to the satisfaction of the court that to send a man to prison would, without much doubt, drive his wife to suicide, it would be a steely-hearted judge who did not, however illogically, at least try to meet the situation by suitably framed orders as to penalty. But further than that, in my judgment, courts should not go'.

It seems that mercy, if not an outmoded concept, can only apply where the steely heart of justice can be moved not by logic but by fear of an inhuman response. Do we really have to set so high a standard before Courts can act with humanity or common sense? I hope not. While the more lenient judges are often chided with the complaint that they were 'weakly merciful'it is good to remember what was said in a passage from R adich which follows directly on from that cited above:

'On the other hand justice and humanity both require that the previous character and conduct, and probable future conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine the appropriate amount of punishment'.

Its good to see that justice and humanity still have some minor part to play.

Sentencing Children

The High Court in Weininger v The Queen (2003) 212 CLR 629 at [24], made it clear that it is important to avoid introducing "excessive subtlety and refinement" to the task of sentencing. Applying R v Storey [1998] 1 VR 359 at 372 The joint judgment of the Court made the point that the sentencing process involves:

'A synthesis of competing features which attempt to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money'.

If we concede that mercy in sentencing is dead or dying then the only focus should be on community protection:

'The protection of the community does not involve simply the infliction of punishment appropriate to the objective gravity of the crime. There are other considerations as well - principally although by no means only, the deterrence of others... and the rehabilitation of the offender. The community have a real interest in rehabilitation. The interest to no small extent relates to its own protection...The community interest in respect to its own protection is greater where the offender is young and the chances of rehabilitation for almost all of the offender's adult life, unless he is crushed by the severity in sentence, are high'. Webster, unreported CCA NSW 15/7/1991 Allen J;) at pages 11 and 12, the murder by a young man of a teenage girl.

In Roper v Simmons (2005) 125 S Ct 1183, the US Supreme Court held that the death penalty could not be imposed on children. In doing so Justice Kennedy at 15 & 16 for the majority (with whom Souter, Ginsberg and Breyer JJ joined, Stevens J concurred; Rehnquist CJ, Scalia and Thomas JJ dissented) made the following relevant points, which are equally applicable to every case involving the sentencing of a child:

* Juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.
* The character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed.
* The susceptibility of juveniles to immature and irresponsible behaviour means their irresponsible conduct is not as morally reprehensible as that of an adult.
* Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed.
* The relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.
These sentiments were applied only to stop the death penalty being imposed on children they were not however applied by the US Supreme Court to stop life or other unnecessarily harsh sentences.

They have as recently as 16 May 2008 been applied by the Canadian Supreme Court in R. v. D.B., 2008 SCC 25 where by a narrow majority, and taking into account the Canadian Charter of Rights, the Court held that imposing adult sentences on a young offender was:

'inconsistent with the principle of fundamental justice that young people are entitled to a presumption of diminished moral capacity'.

To similar effect the New Zealand Court of Appeal said in a passage that bears repeating time and again:

'It is widely accepted that adolescents do not possess either the same developmental level of cognitive or psychological maturity as adults (Steinberg & Scott, 2003). Adolescents have difficulty regulating their moods, impulses and behaviours (Spear, 2001). Immediate and concrete rewards, along with the reward of peer approval, weigh more heavily in their decisions and hence they are less likely than adults to think through the consequences of their actions. Adolescents' decision-making capacities are immature and their autonomy constrained. Their ability to make good decisions is mitigated by stressful, unstructured settings and the influence of others. They are more vulnerable than adults to the influence of coercive circumstances such as provocation, duress and threat and are more likely to make riskier decisions when in groups. Adolescents' desire for peer approval, and fear of rejection, affects their choices even without clear coercion (Moffitt, 1993). Also, because adolescents are more impulsive than adults, it may take less of a threat to provoke an aggressive response from an adolescent."( Slade v The Queen [2005] NZCA 19 at [43])

The problem is that no matter how often defence counsel refer to these cases and others such as GDP v R (1991) 53 A Crim R 112, it is no longer the case that a young person's rehabilitation be foremost in the mind of a sentencing court. Those judges who hold these views find themselves in dissent. For example David Kirby J (in dissent) noted after referring to Roper v Simmons and Slade v The Queen:

'A jurisprudence has developed in the context of sentencing young offenders, which recognises the important differences, in terms of responsibility, between adults and children'. R v Elliot And Blessington (2006) 164 A Crim R 208, at [127]

The other judges of the CCA, and the High Court on appeal, disagreed.

Increasingly and overwhelmingly, courts are ignoring the 'the community interest in respect to its own protection.'The balance or synthesis of relevant factors now means that the 'community interest'in punishment can override the community interest in rehabilitation of children.

Most recently in KT v R [2008] NSWCCA 51, the Chief Judge at Common Law Justice McClellan (again in a dissenting judgment) discussed the principles relevant to sentencing young offenders. Despite our best efforts we have still not escaped from the phrase adopted by Justice McClellan:

'The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity'.(Emphasis added)

The best defence lawyers can do is narrow the factors, which must be considered when determining whether a young offender has engaged in "adult behaviour". Justice McClellan (at [25]) suggested that the court will consider such things as 'the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence'to see if need for rehabilitation is be diminished by the need to protect society.

While the psychologists may tell us that there is no specific point in time when a youth becomes an adult it is now clear that:

'The weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity. An offender of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age. However, it is still the case that the younger the offender, the greater the weight to be afforded to the element of youth'( KT v R at [26])

KT v R is also notable for what happened almost immediately after the CCA handed down its decision. Justice McClellan agreed with the sentencing judge's finding that there were special circumstances justifying KT's staying in a Detention Centre because his rehabilitation will be substantially enhanced. KT then went straight onto the Director General of Juvenile Justice's list of over 18 detainees to be moved to adult gaols.

Children Sentencing & the High Court - GAS & MMK

In GAS & SJK v The Queen [2003] HCA Trans 393, special leave was granted to appeal on grounds relating to the sentencing judge's failure to honour the plea agreements between the Crown and the defence. GAS v The Queen (2004) 217 CLR 198 The High Court however was not minded to grant leave to argue whether rehabilitation was the paramount principle in sentencing children or must youth and rehabilitation on occasions give way to the achievement of other objectives of sentencing law?

Special leave was also refused in MMK v The Queen [2006] HCA Trans 426. At the time of the commission of a series of rape offences MMK had just turned 16. He received, for the same offences, the same 22 year sentence as his older brother, MSK, who was 23 years old, a married man with a child. Justice Sully speaking of the objective seriousness of the offence, said:

'In such a context it makes no sense to me to treat MMK as though he was, in July 2002, a child in the sense in which a reasonably informed and fair minded member of the public would normally use that description.'(empahsis added).

The Court was not satisfied that any point of general principle arose nor was there was any error in the application of existing principle. It was quite acceptable that MMK received the same sentence as his older and adult brother. The clear message of both MMK and GAS is that the High Court is not interested in the erosion of basic principles when it comes to sentencing children.

Conclusion

There is now little room for concepts such as mercy in the higher courts in NSW. There is now also little room for concepts such as rehabilitation when dealing with children in the higher courts in NSW. At best we can ask the courts to draw back where a sentence would be an affront to common sense, but it appears even common sense must be subordinate to punishment for the sake of punishment, and the message that punishment is presumed to send.

Where a child is before the Court the pragmatic self-interest of government and prosecution now takes precedence over the best interests of the child. If a child can be categorised as an adult because of their behaviour or the seriousness of the allegations against them they will be treated as an adult. And as the recent decade or so of harsh law and order type legislation makes clear, adults who commit crimes are to be treated harshly. There can no longer be any expectation of special arrangements, which recognise a need for developing the child's potential for reform. Stricter dealings and condign punishment are the new norms.

If we are to do away with concepts like reform and mercy isn't it time to put an end to nonsense such as general deterrence as well? Isn't it time for government and the Courts to actually say what they want and mean when imposing a sentence?

If the punishment has been structured to meet an assessment of the objective seriousness of what was done to ensure that priority is given to retribution, denunciation and protection of the community by removal of the offender from the community, then why not say so. Then there would be no pretence that rehabilitation or reform is being considered - if you commit a crime you will be punished. There is much talk now by pundits and politicians about personal responsibility. Perhaps it is time for the government and the courts to take responsibility too, by saying what they actually mean. This means, however, that they must take responsibility for the damage to offenders caused by their incarceration and the consequential damage to the community caused by the release of unreformed offenders at the expiry of their overly long sentences.

If statements encouraging reform and rehabilitation are to be actively undermined why not tell it like it is, remove the pretence and take responsibility for the resulting mess?

But then again the optimist in me still sees the glass is 1/3 full. Those of you who appear for children every day know that the sentiments expressed in GDP v R, Roper v Simmons, R v DB and Slade v The Queen are right. We who recognise that we can best to protect the community by allowing what is best in child offenders to be developed can and must provide the proper evidence so that the dissenting judges can sway their more steely hearted colleagues. We know that respect for basic rights provides the only solid foundation for a criminal justice system, because to ignore the rights of offenders undermines the rights of all in the community. Exceptions cannot be made. If pragmatism is to come to the forefront, if we are to put aside ill-defined concepts such as mercy we can also put aside similarly ill-defined concepts such as general deterrence. In their stead we must rely on establishing a simple fact; that the time and money spent on rehabilitation provides much greater and longer term protection for the community than harsher and harsher penalties and tougher and tougher criminal procedures.

Andrew Haesler SC
19 May 2008