Back in May I blogged about Kaye J’s decision in DPP v Hills & Ors (Ruling No 11) [2011] VSC 88. He decided [at 5],

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.

The matter has now been appealed and the Court of Appeal have reversed this finding in CNK v The Queen [2011] VSCA 228. Though the Children, Youth and Families Act does not exclusively cover the field on appropriate matters to be taken into account, general deterrence is not a relevant consideration in the sentence of a child being dealt with under that Act.

The appellant’s situation was an unusual one in that he’d been tried in the Supreme Court in its exclusive jurisdiction over attempted murder, but only convicted of lesser offences which could have been dealt with in the Childrens’ Court. As such it was accepted that the appellant came to be sentenced in accordance with the principles of the Children, Youth and Families Act 2005, which led to argument about if they were exclusive of, or in addition to, those in the Sentencing Act.

The sentencing judge applied the principles outlined in s 5 Sentencing Act, and determined that general deterrence required a custodial disposition.

I didn’t say so in that post (so my comments now do – and should – reek of revisionism) but Kaye J’s decision felt out-of-step when it was handed down. Not that there’s anything wrong, as a sentencing principle, with general deterrence as a relevant feature of sentencing an offender of any age. West Australian and New South Wales authorities are clear that it is. But it did feel contrary to the run of sentencing decisions out of the Supreme Court in recent times.

Maxwell P, Harper JA and Lasry AJA [at 6],

The relevant provision is s 362(1) of the CYF Act, which provides as follows:

(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.

In our view, the language of s 362(1), and the nature of the matters to which regard must be had, are such as to preclude any consideration of general deterrence.

While there was some reference to extrinsic materials, the Court unanimously found that the statute expressed a clear legislative intention to exclude general deterrence.

At 12,

General deterrence as a sentencing consideration is entirely foreign to a scheme of this character. For, unlike all other sentencing considerations, general deterrence is unconnected with the particular offender. Rather, the principle of general deterrence treats the offender as a means to an end, as an instrument for effecting a broader community interest. The Court must ask itself what sentence should be imposed on the offender in order to deter other persons who might be minded to engage in similar offending.

It is accepted that, where the principle of general deterrence applies, it may necessitate the imposition of a higher sentence than would be necessary if that principle were not applicable. (As will appear, the sentencing judge in the present case felt constrained by the need for general deterrence to reject a less stringent sentencing option put forward by the defence.[6]) By contrast, the unambiguous command of s 362(1) is that no greater sentence should be imposed on the child than the nature and circumstances of the child’s offending require. It would, in our view, be wholly inconsistent with this intention were the sentencing court to be obliged – where necessary – to impose a heavier sentence, not because of any aspect of the child’s offending or personal circumstances but because of the need to deter others from engaging in similar conduct.

Put another way, if a sentence were increased – for the purpose of general deterrence – beyond what would otherwise have been imposed on the child, the sentencing court would have breached its obligation to secure ‘as far as practicable’ the objectives set out in s 362(1). More particularly, to treat a child as a vehicle for general deterrence would amount to ‘making an example’ of the child, for the purpose of deterring others. This would, in our view, be in direct conflict with the Court’s obligation under s 362(1)(d) to ‘minimise the stigma to the child’ resulting from the Court’s determination.

In resentencing the appellant the Court made reference to New Zealand research that highlights, ‘the potential for the immature brain to respond to punitive punishments in such a way as to make recidivism more rather than less likely’.

So, is the Childrens’ Court going to become nothing more than a screening and referral service for the Department of Human Services, and Youth Justice Centres emptied of everyone under 18?

The Court [at 8] interpreted the words as far as practicable in s 362 to mean as far as it is possible to go and to the maximum extent possible. But this can’t mean to the maximum extent allowed under law. If it did require sentencing discretion to be exercised to the maximum extent possible to recognise the desirability of, for example, the child living at home and going to school, then no judicial discretion would really be exercised at all in giving effect to this invariable policy decision.

The judgment stands for the proposition that the circumstances of the child are the overriding consideration when a child is sentenced, to the exclusion of all others. The benefits of a non-custodial disposition will still be weighed against (1)(e), (f) and (g) of s 362, taking into account the sentencing considerations described in the Sentencing Act.

But general deterrence is not a part of that exercise.