Sentencing children

Edit: The sentencing decision referred to below is no longer good law, due to the Court of Appeal’s decision in CNK v The Queen [2011] VSCA 228.

At 15,

For the reasons we have given, the language of the statute conveys a clear legislative intention to exclude general deterrence. Whilst that intention is not made explicit, it is necessarily implied by the terms in which s 362(1) prescribes the sentencing court’s task


There is a specific provision relating to the sentencing of children at s 362(1) of the Children, Youth and Families Act 2005.

It reads (in part),

362. Matters to be taken into account

(1) In determining which sentence to impose on a child, the Court must, as far as practicable, have regard to-

(a) the need to strengthen and preserve the relationship between the child and the child’s family; and

(b) the desirability of allowing the child to live at home; and

(c) the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and

(d) the need to minimise the stigma to the child resulting from a court determination; and

(e) the suitability of the sentence to the child; and

(f) if appropriate, the need to ensure that the child is aware that he or she must bear a responsibility for any action by him or her against the law; and

(g) if appropriate, the need to protect the community, or any person, from the violent or other wrongful acts of the child.

It hasn’t been clear whether these considerations were intended to replace, or supplement, the exclusive purposes of sentencing provided at s 5 of the Sentencing Act 1991:

(1) The only purposes for which sentences may be imposed are-

(a) to punish the offender to an extent and in a manner which is just in all of the circumstances; or

(b) to deter the offender or other persons from committing offences of the same or a similar character; or

(c) to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; or

(d) to manifest the denunciation by the court of the type of conduct in which the offender engaged; or

(e) to protect the community from the offender; or

(f) a combination of two or more of those purposes.

I’ve looked through the notable cases from the Children’s Court at AustlII but didn’t find any precisely on point. Grant J’s sentencing remarks in R v P and Ors [2007] VChC 3 and R v M and Ors [2008] VChC 4 suggest that only s 362 considerations should be applied, although his Honour does refer to s 8 of the Sentencing Act to assist in the application of s 362.

In DPP v Hills & Ors (No 11) [2011] VSC 88, Kaye J ruled that the considerations of 362 are taken into account as well as, not instead of, the general sentencing considerations

His Honour examined previous authorities and concluded [at 5] that they did not support the exclusion of general deterrence and community denunciation from the sentencing of children.

Thus, there is no decision of appellate authority, in Victoria, which supports the proposition now advanced [on behalf of the child]. On the contrary, in my view, there are a number of previous decisions of the Court of Appeal, applying to children, in which the court has clearly considered that considerations such as general deterrence and condemnation are relevant in sentencing offenders, who are children for the purposes of the Act. Furthermore, in my view, it is clear, from the text of the Act itself, that s 362 was not intended to preclude those considerations from being relevant in determining the appropriate sentence to be imposed upon an offender who is a child.

Kaye J referred to the Court of Appeal’s decisions in R v PP, DPP v SJK & GAS, R v PDJ and DPP v TY in finding that general deterrence and denuniciation are legitimate objectives when sentencing a child.

Support for this view was also found in ordinary principles of statutory construction [at 14]. If s 362 was exhaustive of sentencing considerations, his Honour reasoned, then relevant factors not addressed in s 362 such as the impact on the victim of the offence or the utility of an early plea would also be excluded.

At 15,

Thus, there are a number of sentencing factors, either implicit in, or assumed by, other provisions of the Act, which do not necessarily fall within any of the categories described in s 362(1). That consideration strongly supports the conclusion that s 362(1) was not intended to constitute an exclusive and exhaustive statement of the factors, to which the court must have regard in determining the sentence to impose on the child. Rather, it would seem clear that the purpose of s 362(1) is to ensure that, in determining a sentence in accordance with established sentencing principles, the court must take into account the specified factors, each of which are particularly relevant to the personal circumstances of a young offender. Thus, s 362(1) has the effect of giving emphasis to the factors specified. However, it does not do so to the exclusion of the ordinary sentencing considerations, including general and specific deterrence, rehabilitation and denunciation.

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