Sentencing Children at Law - 2005
by Andrew Haesler SC
Deputy Senior Public Defender
An updated version of a paper presented to the Legal Aid
Commission's Conference: 'Children and the Law Practical Issues for Lawyers' in
I may be showing my age but it is a long, long time since I appeared in a
sentence matter in the Children's Court. You, I am sure, have significantly
more, and more recent experience, than I.
It is a well-known trait of barristers to give an impression of expertise
that they don't really possess. They then present a case that often merely
illustrates their lack of expertise. I hope to avoid this sin. Although I will
touch on sentencing proceedings in the Children's Court I will focus on
sentencing at law and the problems that arise you leave the cosy confines of the
The vast majority of criminal charges against young people are heard in the
Children's Court for that Court has jurisdiction over all offences except
certain driving offences and 'serious children's indictable offences'.
'Serious children's' indictable offences' include homicide and other
offences which attract the most severe penalties, imprisonment for life, 25
years or more and a number of sexual offences (see Children's (Criminal
Proceedings) Act 1987 (C (CP) Act) section 3, 7, 28). In addition
some indictable matters can be referred by the Children's Court to be dealt with
'at law'(C (CP) Act s.18).
Sentencing in the Children's Court
The Children's Court must sentence young offenders under the C (CP)
Act s.33. The range of penalties under the C (CP) Act include
cautions, good behaviour bonds, fines, probation, community service orders and
Dismissal & caution: A significant number of young offenders are
cautioned under s.33 (1)(a). The courts also have power to caution young
offenders under the Young Offenders Act 1997 (s.31).
Good Behaviour Bond: the maximum period for a bond is two years. There
are a number of compulsory conditions sets out in s.33 (1) (a) of the C (CP)
Act. Although there is a power in s.24 for the Court to order a child to pay
compensation, monetary penalties are not to be a condition of a bond.
Fine: The maximum fines courts can impose is $1,100 or the maximum
available at law (s.33 (1)(c)).
Probation: The maximum period of probation is two years (s.31 (1)(e)).
Community Service: Children under the age of 16 can receive a maximum
of 100 hours community service. Offenders aged 16 or over can get up to 250
hours (s.13 and s.33 (1) (f) Children's (Community Service Orders) Act
1999). Community Service Orders are restricted to offences and situations
where the Court can sentence a young person to detention.
Detention: The maximum period of detention is two years (s.33 (1)(g)).
Detention can be suspended or combined with a bond (s.33 (1B)). Courts cannot
sentence a young offender to detention unless satisfied all other sentencing
options available under the C (CP) Act are inappropriate (s.33 (2)).
Rehabilitation: The courts can adjourn a hearing up to 12 months and
release a young person on bail to assess their suitability for rehabilitation or
allow their participation in rehabilitation program (s.33 (1)(c2)).
Youth Drug Courts: These now operate out of Campbelltown, Cobham (St
Mary's) and Bidura Children's Courts. The program's drawing area takes in the
Eastern Suburbs to Katoomba. Unlike the Adult Drug court there is no separate
Act or regime. The program operates using the Bail Act and C (CP)
Youth Justice Conferencing: Courts can also refer a young offender to
a Youth Justice Conference (s.33 (1)(c1)) or pursuant to the Young Offenders
License disqualification: Young people found guilty of driving
offences can be disqualified from holding a license s 25(1) Road Transport
(General) Act 1999. The debate about whether disqualification can be ordered
for a child under the age of 16 was resolved by Dunford J in HA & SB v
DPP (2003) 57 NSWLR 653. Although the Children's Court does not formally
convict a child under 16 (s.14 C (CP) Act) the finding of guilt is enough
to trigger the power to disqualify.
Dealing with matters at law
The C (CP) Act deals in different ways with three categories of
* Serious children's indictable offences,
* Other indictable offences,
* All other offences.
Serious children's indictable offences
must be dealt with according to law (s.17), they cannot be finalised in
the Children's Court.
Adults who were children when the offence was committed can be dealt with
under the C (CP) Act if they were under the age of 21 when charged before
the Court with the offence s16 C (CP) Act.
Section 31(1) of the C (CP) Act notes that if a person is charged
before the Children's Court with an offence other than a serious children's
indictable offence, the proceedings for the offence shall be dealt with
summarily. However there is an exception. Section 31(3) notes that if the
Children's Court is of the opinion, after all the evidence of the Prosecution
has been taken that having regard to all the evidence before it, the evidence is
capable of satisfying a jury beyond reasonable doubt the person has committed an
indictable offence and that the charge may not properly be disposed of in a
summary matter the proceedings for the offence shall be dealt as if it were
a committal for trial or sentence.
It is most important to note that s31 (3) only operates after the
prosecution has put its case. A Magistrate cannot decide to proceed at law until
the prosecution case is presented. Where (as sometimes occurs) Magistrates
attempt to pre-empt a hearing of the prosecution case in the Children's Court,
usually to avoid cross-examination of witnesses they, in my opinion, have fallen
into appealable error.
Section 18 (1) C (CP) provides a guide to the matters a Magistrate
should consider when deciding whether a matter should be dealt with at law (see
Bendt  NSWCCCA 78 and Kirby J in JIW v DPP
 NSWSC 760).
Obviously, it would rarely be in a child's interest to have the matter dealt
with at law. Applications that the matter proceed at law are generally made by
the DPP. However the Magistrate can make the decision without prompting. The
factors, which are to be taken into account in making such determination, are
set out in R v WKR (1993) 32 NSWLR 447:
* The nature and incidents of the offence
* The age, maturity and personal
circumstances of the offender, and
* The nature of the penalty that would be
They were recently considered in JIW v DPP.
In WKR Sully J sought to bring to the decision questions about
the morality of the offenders conduct although the majority did not accept that
this was appropriate. He also made the extraordinary statement:
'In order to fix a fair and objective view of the true level of personal
responsibility ...the offender should not be allowed to shelter behind
the accident of age so as to have the quite extraordinary advantages
that flow from the application of ... the Act.'(At page 460C - emphasis
Principles of Sentencing
Section 6 of the Children (Criminal Proceedings) Act 1987 sets out the
significant principles that courts must take into account when dealing with
children* Children have the same rights and freedoms before the law as adults
including the right to be heard and to participate in processes leading to
decision that affect them.
* Children who commit offences need to bear responsibility for their actions
but because of their dependency and their immaturity they require guidance and
* It is desirable, whenever possible, not to interrupt the
education or employment of a child.
* It is desirable, wherever possible, to
allow a child to reside in his or her home.
* The penalty imposed on a child
should be no greater than the penalty imposed on an adult who commits the same
offence. and as.3 notes a 'Child' is defined as 'a person who under
the age of 18 years.' There is a tendency, particularly in the higher courts,
to ignore or down play both s.3 and s.6 (For example, in AD 
NSWCCA 208 the court held that the sentencing judge's failure to refer to
section 6 did not indicate the judges sentencing discretion had miscarried Howie
J at  referring to the s 6 principles said, 'Without seeking to detract
from their importance, they are hardly controversial nor did they have such
peculiar or particular relevance to the sentencing exercise before her Honour
that the failure to refer to them might have made a significant difference
to the ultimate sentence to be imposed upon the applicant.' His
comments, of course, had the effect of dismissing the importance of the
Australia is a signatory to international conventions relating to the rights
of children including the United Nations Convention on the Rights of the
Child (CROC) and the International Covenant on Civil and Political
Rights (ICCPR). These conventions are relevant to sentencing young
* The best interests of the child is paramount, consideration in all actions
concerning young people including legal proceedings (CROC Article 3)
child should be subject to cruel, inhuman or degrading punishment and a child
who is imprisoned must be treated with humanity and dignity, taking into account
the needs of a person of their age (CROC Article 37, ICCPR articles 7 and
* Imprisonment of children must be a measure of last resort and a
variety of other appropriate proportionate penalties should be available to
children found guilty of criminal offences, with a focus on rehabilitation (CROC
articles 37 and 40, ICCPR Article 10).
* Children are entitled to privacy at
all stages of criminal proceedings (CROC article 37). Summary taken from the NSW
LRC Issues Paper 19 'Sentencing Young Offenders' para. 3.28.
The United Nations Convention on the Rights of the Child (CROC) has
been declared a relevant human rights instrument under the Human Rights and
Equal Opportunity Act (Comm) 1986. However, access to the complaints process
via the Human Rights and Equal Opportunity Commission does not mean provisions
or decisions that infringe the CROC can be struck down. At present the High
Court has left unresolved the question of whether the CRoC has any significance
in the interpretation and application of Australian laws O'Neill, Rice &
Douglas, Retreat from Injustice 2nd Ed. Federation Press, 2004 at
pp182-184.. CROC has not yet been held to be enforceable in Australian Courts.
For the moment it looks doubtful it will be, although the point has yet to be
finally determined (see Minister for Immigration and Multicultural and
Indigenous Affairs v B  HCA 20 at  -).
Applying the principles: The Court of Criminal Appeal has said that
the principles in s. 6 apply whenever a court sentences a young offender whether
the sentencing according to law or under the C (CP) Act (see GDP
(1991) 53 A. Crim.R. 112).
Section 6 has however been read down and significantly qualified by a number
of subsequent decisions of the NSW Court of Criminal Appeal. At times it appears
to be completely ignored by the higher courts. That a judge did not even refer
to the section has not been held to be an error (AD  NSWCCA 258).
Over the last 15 years there has developed an approach, which says that if a
young offender conducts themselves 'as an adult' AEM Senior &
Other  NSWCCA 58 at  or engages in 'grave adult
behaviour' MHH  NSWCCA 161 the principles applicable to
sentencing young offenders which stress rehabilitation will have less weight
given to them. Correspondingly, more weight will be given to the objective
seriousness of the offence and principles such as retribution and deterrence.
The notion that young offenders conducting themselves as adults deserve
greater punishment came to prominence after the decision of the Court in
Pham & Ly (1991) 55 A Crim R 128 at 135, a case of a young
adult and a child just short of his 18th birthday who committed a premeditated
home invasion style robbery with violence. For a while it was argued that the
exception applied only to children who were almost adults or young adults,
however the exception was extended to a 16 year-old sex offender in Bus &
S, unreported, CCA NSW 3 November 1995. Bus and S (unreported CCA NSW
3/11/1995) involved rape of a young woman by Bus, (who had an intellectual
disability but was an adult), and S (then aged sixteen). Hunt CJCL, with whom
Grove and Allan JJ agreed, noted so far as S was concerned that notwithstanding
that he was dealt with 'at law' section 6 of the Children's (Criminal
Proceedings) Act applied. His Honour said (at page 8) said of section 6
'those are very important principles'.
His Honour went on to say:
'In any event it is obvious that the
relevance of the principles stated in s6 to each individual case depends to a
very large extent on the age of the particular offender and the nature of the
particular offence committed. An offender almost eighteen years of age cannot
expect to be treated according to law substantially different to an offender
just over eighteen years of age.
'Rehabilitation plays a more
important role and general deterrence a lesser role... [reference is made to
GDP] but that principle is subject to the qualification that, where a youth
conducts himself in a way an adult may conduct himself and commits a crime of
considerable gravity, the function of the courts to protect the community
requires deterrence and retribution to remain significant elements in
The focus on the conduct of the child and its possible characterisations as
grave adult behaviour is now almost universal. In any case involving a child
committing a serious indictable offence the question now has to be asked 'Can
the behaviour here be characterised as grave adult behaviour or even as adult
behaviour? The problem with this type of analysis however is that in most
serious cases the crime can be so characterised, if only because of the nature
of the offence. It wouldn't be in the higher courts if it were not serious!
The question forces the court to look first at the objective circumstances of
the crime and the public or judicial reaction to it, not at the child who
commits the crime.
Both adults and children commit sexual offences. If the objective
circumstances of the crime are the same is that sufficient reason for not reason
for not considering the special circumstances of the child offender? Should the
circumstances of the crime dictate whether the same sentencing principles apply?
That sentences must be individual is one of the essential features of our
justice system. It is also fundamental that there are a competing factors which
must be taken into account, and that there is no correct balance of those
factors Veen v The Queen No. 2 (1988) 64 CLR 465 at 478. 'Sentencing
is ... a synthesis of competing features which attempts to translate the
complexity of the human condition and human behaviour to the mathematics of
units of punishment usually expressed in time or money'. Weininger v The
Queen (2003) 211 CLR 629 at . .
It must be recognised however that for very serious crimes that arguments
which stress the rehabilitative needs of the offender over punitive punishment
rarely succeed (see for example Voss  NSW 182
MA  NSWCCA 92 and AD  NSWCCA 258).
Defence lawyers cannot presume leniency will be extended or rehabilitative
approach preferred just because the offender is a child. The onus has in effect
passed to the defence. Where immaturity is a significant contributing factor to
an offence the criminality involved is less than where the offence was a
premeditated act of violence. This point was clearly made in
Hearne (2001) 124 A Crim. R 451 at  where it was also said
that the weight to be given to the element of youth does not vary
depending on the seriousness of the offence.
A useful example is TVC  NSWCCA 325 which involved a
robbery committed by a 15 year old at Fairfield Railway Station. Despite the
seriousness of the offence (TVC had a knife and a loaded gun) the Court drew on
authorities which stressed rehabilitation and youth citing Wood J in Hoai
Vinh Tran  NSWCCA 109:
'In coming to that conclusion his Honour made reference to the well
known principle that when courts are required to sentence a young offender
considerations of punishment and general deterrence should in general be
regarded as subordinate to the need to foster the offender's rehabilitation:
Wilkie (Court of Criminal Appeal New South Wales 2 July 1992 unreported), XYJ
(Court of Criminal Appeal New South Wales 15 June 1992 unreported). That is a
sensible principle to which full effect should be given in appropriate cases. It
can have particular relevance where an offender is assessed as being at the
cross roads between a life of criminality and a law abiding existence'. (At
The Courts however are far from consistent. For example in JDB
 NSWCCA 102 Mason P citing GDP said of a 13-year-old sex
' ... For an offender of this age, facing his first time in custody,
extreme youth should have meant that rehabilitation and not deterrence was the
primary focus of attention'.
In contrast in DM  NSWCCA 181, Simpson J when dealing
with another 13 year old sex offender, held that the general principle that, in
the case of an extremely young offender, more emphasis can be given to questions
of rehabilitation, even at the expense of deterrence was not universal and did
not mean that, in an appropriate case, issues of general deterrence are not of
significance (at ). This case illustrates two significant shifts in
sentencing children. The first is that the general principle is applied to only
'extremely young offenders'. The second is that the general principle is not
Do not be too despondent. There is still authority that can be relied on to
mitigate the sentences imposed on children.
In Blackman & Walters  NSW CCA 121 Wood CJ at CL
referred, with approval, to the following passage from the judgement of King CJ
in Yardley v Betts (1979) 22 SASR 108 at 112-113:
'The protection of the community is also contributed to by the
successful rehabilitation of offenders. This aspect of sentencing should never
be lost sight of and it assumes particular importance in the case of first
offenders and others who have not developed settled criminal habits. If a
sentence has the effect of turning an offender towards a criminal way of life,
the protection of the community is to that extent impaired. If the sentence
induces or assists an order to avoid offending in future, the protection of the
community is to that extent enhanced. To say that the criminal law exists for
the protection of the community is not to say that severity is to be regarded as
the sentencing norm..'.
Even for older offenders and heinous crimes, youth must remain a significant
factor in sentencing. In Webster, Unreported CCA NSW 15/7/1991
(the murder by a young man of a teenage girl) while the court accepted there was
a need for a punitive element Justice Allen for the Court also said:
'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. In the balancing process of the elements of
sentencing, in the case of a young offender with good prospects, will
weigh highly with a relative decreasing of the effective weight of the
element of the need to deter others.'(At pages 11 and 12. Emphasis added).
In SDM  NSWCCA 158 the Court stressed that there must be
a balance of factors:
'16 There will always be cases where little allowance needs to be made
for this fact, e.g. when the offence is one where the offender conducted himself
or herself like an adult: Tran (1999) NSW CCA 109 and Townsend & Cooper NSW
CCA 14 February 1995; or where there is a pattern of serious repetitive
offending: Biggs NSW CCA 5 March 1997; or where the offender is close to legal
adulthood and properly to be regarded as mature: Nguyen .
17 Equally, there are cases where the converse is true and where special
allowance will need to be made for the offender's emotional immaturity: Kama
2000 NSWCCA 23, or for his or her deprived background, and so on'.
In Summary: In the case of a youthful offender considerations of
punishment and of general deterrence of others may properly be largely discarded
in favour of individualised treatment of the offender and directed to his
rehabilitation. Wilcox NSW SC 15 August 1979, Yeldham J relying upon what was
said in R v Smith  Crim LR 70 said:
'In the case of a young offender there can rarely be any conflict
between his interest and the public's. The public have no greater interest than
that he should become a good citizen'.
In Roper v Simmons 543 US 2005, the US Supreme held that
the death penalty could not be imposed on children. In doing so they made the
following important points that could, and hopefully will, be explored in NSW
courts to the advantage of juvenile offenders:
* As any parent knows and as the scientific and sociological studies tend
to confirm a lack of maturity and an underdeveloped sense of responsibility are
found in youth more often than in adults are more understandable among the
young. These qualities often result in impetuous and ill-considered actions and
* Even the normal 16-year-old customarily lacks the
maturity of an adult. It has been noted that adolescents are overrepresented
statistically in virtually every category of reckless behaviour
Juveniles are more vulnerable or susceptible to negative influences and
outside pressures, including peer pressure.
* Youth is more than a
chronological fact. It is a time and condition of life when a person may be most
susceptible to influence and to psychological damage.. This is explained in part
by the prevailing circumstance that juveniles have less control, or less
experience with control, over their own environment. As legal minors, juveniles
lack the freedom that adults have to extricate themselves from a criminogenic
* The character of a juvenile is not as well formed as that
of an adult. The personality traits of juveniles are more transitory, less
* 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. The reality that juveniles still struggle to define their
identity means it is less supportable to conclude that even a heinous crime
committed by a juvenile is evidence of irretrievably depraved character. 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.
* For most teens, risky or
antisocial behaviours are fleeting; they cease with maturity as individual
identity becomes settled. Only a relatively small proportion of adolescents who
experiment in risky or illegal activities develop entrenched patterns of problem
behaviour that persist into adulthood.
It is important to appreciate that
it is not simply that the seriousness of the crime requires that the principle
of consideration of youth must give way in the public interest. Rather one needs
to identify the point:
'At which the seriousness of the crime committed by [a young man] is of
such a nature, is so great, that that principle [the consistently pointed out
need to give young offenders a chance and to refrain from sending them to gaol
or dealing heavily with them if that course can be avoided] must, in the public
interest, give way.' Hulme J in JL C-H  NSWCCA 70 at .
It must be asked in each case:
* How did the child offender's youth impact on his offending?
* Did it
play any role in diminishing his criminality?
* Have the Crown put forward
any evidence to suggest that rehabilitation should not be the paramount
consideration of the sentencing process?
What was said by Mathews J in
GDP (1991) 53 A Crim R 112, is still good law:
'Had it been an adult who had committed these offences, then the
principles of retribution, and more importantly, general deterrence, may have
demanded a custodial sentence of considerable length. But rehabilitation must be
the primary aim in relation to an offender as young as this'.
This simple submission should always be made in any case involving sentencing
of a child.
Of course children commit horrendous crimes but that is no reason to treat
them in the same way as adults who commit serious offences. Different factors
must be brought into the sentencing equation. The fact that the offender is a
child demands it. Judges must be persuaded not to presume that children behave
or respond to punishment in the same way as adults. If the US Supreme Court can
show some understanding, so too can the Supreme and District Courts of NSW.
In any sentencing submission, stress must be placed not on punishment or
retribution but on the positive benefits to the community of rehabilitation and
reform as opposed to the temporary 'benefit' of removal and incapacitation.
That a child is dealt with at law does not mean that they must go to gaol or
be detained. Obviously they can plead not guilty and be acquitted. If they are
found or plead guilty all adult sentencing options are available to them See the
various papers on Sentencing at the Public
Defenders Office website.
If the court sentences a person under the
age of 21 years for an indictable offence committed while a child, the court may
direct that the whole or part of the sentence be served in a detention centre
(s.19). Until a change to the section in 25 January 2002 it was generally
assumed that if you only had juvenile matters you would go to detention.
The 2002 amendments to s.19 apply to all those sentenced to imprisonment for
a 'serious children's indictable offence'. They are specific, such a person is
not eligible to serve a sentence of imprisonment after they have attained
the age of 18 years unless the sentencing court is satisfied there are
special circumstances justifying the detention of the person in a detention
centre or their fixed term or non-parole period will end within six months after
they turn 18.
In determining whether there are special circumstances, the court may have
* The degree of vulnerability of the person.
* The availability of
appropriate services or programs at the place the person will serve the
* Any other matter the court thinks fit (s.19(4)).
19 has not to date been critically considered by a superior court, although s 19
orders were made in Voss and MA. However, the term
'special circumstances' was considered in Simpson (2001) 53 NSWLR
704 at :
'The words 'special circumstances appears in numerous statutory
provisions. They are words of indeterminate reference and will always take their
colour from their surroundings'
Just as with s 44(2) Crimes Sentencing Procedure) Act 1999 Considered
in Simpson a key focus for the finding must be the rehabilitation
of the offender.
Prior to the amendment of s 19 careful consideration of even the worst of
juvenile offenders often led to their sentences being served in a detention
centre. See for example AEM Senior and LBK 
Generally one would expect that a court would find special circumstances,
however, the evidence addressing each of the points in s.19(4) must be before
Since 1998 the New South Wales Court of Criminal Appeal has pronounced a
number of guideline judgements in relation to sentencing at law. Guidelines have
statutory recognition in the Crimes (Sentencing Procedure) Act 1999.
Challenges to the constitutional validity of Guidelines were rejected in
Whyte (2002) 55 NSWLR 252.
The Guidelines judgements apply to children. For example in
Jurisic (1998) 45 NSWLR 209 and Whyte at 228, direct
reference was made to the earlier decision of the court in
Musumeci (Unreported), NSWCCA 30 October 1997. In
Musumeci, Hunt CJ at CL observed that the need for public
deterrence in dangerous driving cases meant that the youth of an offender is
given less weight as a subjective matter than in other cases In dangerous
driving case reference is also often made to MacIntyre (1988) 38
ACR 135 at 139, 'The lack of foresight in youth, the reckless spirit of youth
will always be there and must always be recognised by courts, but that cannot,
when punishment is under consideration, be recognised to the point of leading
young drivers - who, regrettably, form a significant proportion of motor
traffic offenders - to believe that an offence under section 52A resulting
in death will lead to light punishment.".
The guideline in Wong (1999) 48 NSWLR 340, since criticised by
the High Court ((2001) 76 ALJR 79) on another point, noted that there was a
statutory requirement in s.16A (2)(m) of the Commonwealth Crimes Act 1914
to take into account the age of the offender.
The fact that a large number of break and enter matters were dealt with in
the Children's Court was raised in argument in AG
Application (No. 1): R v Ponfield (1999) NSWLR 327. The Court
'The prominence to be given to rehabilitation of the young in
determining sentence is recognised to the point of being almost axiomatic.'
Youth did not figure specifically as a matter to be taken into account in
formulating the guideline for break enter and steal. The court did recognise
'It will of course be requisite for a sentencing court to give
appropriate weight to matters in mitigation as manifest in the particular
The Guideline on armed robbery (Henry (1999) 46 NSWLR 346)
referred to the fact that an offender was of a young age was a characteristic
common to the sort offences to which the guideline applied (at ).
Subsequently, a number of decisions of the Court of Criminal Appeal implied that
the Guideline in was not to apply to young persons. That trend was reversed by
the decision in SDM  NSWCCA 158, where the court held the
guideline judgements are relevant to the sentence of the children as they:
'Provide a benchmark for particular kinds of offence by way of guidance,
while preserving the application of proper sentencing principle which is of
general application, including that referrable to children or to those suffering
from some form of mental incapacity, that might reduce the need for the sentence
to reflect factors of deterrence, while requiring greater attention to be given
to the interests of rehabilitation'(At ).
The court noted however that the further an offender is from adulthood the
more the reduction that should be made for his/her youth, immaturity and the
reduced importance of general deterrence and retribution. The corollary however
was also said to apply: The closer you are to 18 the more likely you are to
receive an adult type penalty.
Section 3A Crimes (Sentencing Procedure) Act 1999 sets out for the
first time in New South Wales the purposes of sentencing. The CCA has explained
that the section provides,
'The framework upon which a court determines the sentence to be imposed
upon a particular offender for any offence. The Act provides the sentencing
practice, principles and penalty options that operate in all courts exercising
State jurisdiction. The sentencing principles and practices derived from the
common law also apply. They have been preserved by the provisions of the
Act' (see AG Application No 3  NSWCCA 303 - The Drink
Section 21A Crimes (Sentencing Procedure) Act 1999 sets the
aggravating and mitigating factors that must be taken into account when a person
is sentenced. The list must be read in the light of principles established by
the courts independently of the Act; that is the common law. So much should be
clear from what is said in s.21A (4) 'The court is not to have regard to any
such aggravating or mitigating factor in sentencing if it would be contrary to
any Act or rule of law to do so'. and has been endorsed by the CCA in
Way (2004) 60 NSWLR 168 and Wickham  NSWCCA
Examples given in Way (at  and ) of additional
matters that must be taken into account were, exceptional hardship to the
offender's family; unduly onerous conditions of custody, parity, totality,
and the special considerations applying to the sentencing of children in
the Children (Criminal Proceedings) Act 1987.
There are a number of common and reoccurring errors that can arise when
applying the section For a detailed review of these problems and the views of
the CCA, see Robert Hulme's paper, Standard Non-Parole Periods: A Way through
the Mire, and mine Sentencing 2004 available on the Public Defender's
Webpage. Many of my comments here draw on Robert's careful analysis.. Defence
counsel, prosecutors and judges make them. The errors, more often than not,
operate to make worse the position of the person being sentenced.
There is a real danger that if a fact is taken into account both as an
element of the offence and an aggravating factor for s.21A (2) purposes, such
double counting will lead to an exaggerated view of the seriousness of the
offence and double punishment.
Another example of how error can creep into the sentencing process is if a
prior criminal record is taken into account on to make the offence more serious.
The High Court's decision in Veen v The Queen (No. 2) (1988) 164
CLR 465 at 477 is still the law. That case sets out the particular circumstances
in which prior convictions become material to sentence: A prior record does not
have the effect of aggravating an offence but it may either deprive the offender
of leniency or indicate that more weight is to be given to retribution, personal
deterrence and the protection of the community.
Section 21A (3) (h) includes as a mitigating factor, 'the offender has
good prospects of rehabilitation, whether by reason of the offender's
age or otherwise'. In RB  NSWCCA 76 it
was held that to properly apply subsection (h) and s 3A (d) Crimes
(Sentencing Procedure) Act 1999 to children the court must be concerned with
promoting future rehabilitation.
Section 21A (3) (j) also states that, 'the offender was not fully aware of
the consequences of his or her actions because of the offenders'
age or any disability'. Subsection (j) is awkwardly worded.
It may be suggested that the words 'was not fully aware of the consequences
of his or her actions' and the limitation in (h) to future rehabilitation
mean that different and more restrictive principles than those that now apply to
children. This cannot be correct.
It cannot be stressed enough that s 21A (2) and 21A (3) factors are
additional too and not a replacement for matters required to be taken into
account by other Acts and rules of law. This is explicitly set out in s21A (1)
and s 21A(4).
Standard Non-Parole Periods
Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999
applies to offences committed on or after 1 February 2003. It introduces the
concept of a 'standard non-parole period'- the non-parole period for an offence
in the middle of the range of objective seriousness - for those offences listed
in the Table to the Division (s.54A (2)). The Table sets out 22 offences. More
may be added.
The most definitive consideration of Division 1A of Part 4 by the Court of
Criminal Appeal to date are the judgment in Way and Pellew
 NSWCCA 434. The key question is: 'Are there reasons for not imposing
the standard non-parole period'? That question is answered by considering,
i. The objective seriousness of the offence and
ii. The circumstances of aggravation and mitigation both in S.21A and at
The particular fact of the offenders use as set out in s 21A and the common
law must be found a reason for not imposing the standard non-parole period.
Once there are reasons for not imposing the standard non-parole
'...the Court should exercise its sentencing discretion in accordance
with established sentencing practice and by reference to the matters identified
in sections 3A, 21A, 22, 22A and 23 of the Act. The ultimate objective remains
one of imposing a sentence that is just and appropriate, having regard to all of
the circumstances of the offence and of the offender, and so as to give effect
to the purposes mentioned in s 3A of the Sentencing Procedure
'In this approach the standard non-parole period can properly take its
place as a reference point, or benchmark, or sounding board, or guidepost, along
with the other extrinsic aids such as authorities, statistics, guideline
judgments and the specified maximum penalty, as are applicable and relevant.
...The reference point has, in this sense, an important role to play in ensuring
consistency in sentencing'(Way at  &).
It is not a correct approach to start with the standard non-parole period and
then to 'oscillate about it by reference to the aggravating and mitigating
factors'. The standard non-parole period is not to dominate the remainder of
the sentencing exercise or fetter sentencing discretions. You don't simply start
at the standard point reduce for the plea of guilty and other mitigating
features then add on time for any aggravating features.
The Juvenile Offenders Legislation Amendment Act 2004
The new Act effectively establishes an intermediate system of imprisonment
for some offenders aged 16 to 18 and all aged 18 to 21 who committed their
offences as children. It allows for the imposition of adult-type administrative
punishments on these young persons and allows for the transfer to adult gaols of
those aged over 18, at the almost unfettered discretion of the Commissioner for
The amendments to s.41B and s.41C and 23 Crimes (Administration Sentences)
Act 1999, effectively allow for a court's s. 19 Children's (Criminal
Proceedings) Act 1987 order to be undermined.
Section 41C notes that the Commissioner can order a juvenile inmate of or
above the age of 18 years to be transferred from a juvenile correction centre to
an adult correctional centre. Sub-section 3 sets out the reasons for such a
transfer. They include; the inmates wishes and behaviour, safety and security
concerns and the 'Good order and discipline within the juvenile correction
The powers given to the Commissioner are extensive. The Commissioner's
decision is not bound by any of the critical requirements in s.19 Children's
(Criminal Proceedings) Act 1987. As there is no provision for appeal of the
Commissioner's decision, the Commissioner can, in effect, do as he or she likes.
This is simply not just.
My position can be briefly summarised.
* Those under 18 should never in an adult gaol at all.
* The juvenile
justice system is better equipped philosophically and practically to deal with
those who committed their offences as young persons, whether they are over or
under 18 when serving their sentence.
Some other recent cases
Hoang  NSWCCA 237: A Juvenile Justice Report must be obtained before
sentencing of a person under 21 who was a child at time of charge. Section C (C
P) Act is a mandatory provision.
AN  NSWCCA 239: Sets out the procedure for the imposition of limiting
term on juvenile offender with severe mental impairment.
AD  NSWCCA 208: When sentencing a juvenile offender charged with
serious sexual assault offence the judge’s sentencing discretion did not
miscarry because of a failure to refer to s 6 of Children’s (Criminal
Proceedings) Act 1987.
Tran  NSWCCA 35: When considering parity of sentence with a juvenile
co-offender that the children's court imposed a lesser sentence is not
irrelevant however once relevance is accepted, it is still up to the judge to
decide the effect the comparison should produce in a given case. Diamond CCA,
unreported 18 February 1993, applies,
“…. There is, … a stage at which the inadequacy of the sentence imposed upon
the co-offender is so grave that the sense of grievance engendered can no longer
be regarded as a legitimate one”.
In Tran the sentence was not disturbed.
However similar principles were applied in Takau  NSWCCA 181 to reduce the
Minister for Community Services & Another v Children's Court of
NSW & 3 Others  NSWSC 154: A bond condition that a child reside where
directed by DOCS was not beyond power but the condition did not in fact bind the
The protection of the community does not involve simply the infliction of
punishment appropriate to the objective gravity of the crime.
The community has a real interest in rehabilitation of offenders. That
interest, to no small extent, relates to society’s own protection. The community
interest in respect to its own protection is greater where the offender is young
and the chances of rehabilitation greatest. No one benefits if a young person is
crushed by the severity of the sentence. Too often “justice” is equated solely
with just a criminal getting what the Daily Telegraph would say were their “just
deserts”. As the Chief Justice has said “we live in a society which values both
justice and mercy”. The Chief Justice in the foreword to the Sentencing Manual -
"Law, Principles and Practice in New South Wales" (page 67). If we sacrifice the
positive human attribute of mercy for wholly negative responses of retribution
and revenge it diminishes us all
Andrew Haesler SC
Deputy Senior Public Defender