DPP v TY

Supreme Court of Victoria|2007-11-28|Before: BELL J

CRIMINAL LAW - sentencing - murder - young offender (aged 14 years) - applicable sentencing principles - spur of the moment killing - unreasonable reaction to perceived fear - sincere remorse - excellent prospects of rehabilitation - youth and rehabilitation - mitigating factors of first importance - Convention on the Rights of the Child - how relevant - serious crimes - other pressing factors - for example, just punishment and general deterrence - re-sentencing after a retrial - delay awaiting retrial - time served under another sentence awaiting retrial - power of Adult Parole Board to direct sentence of imprisonment be served in youth justice centre - procedure adopted by sentencing judge to facilitate that consideration - sentence of imprisonment for 11 years and 46 weeks with non-parole period of seven years and 46 weeks - Children, Youth and Families Act 2005, s 471(1).

HUMAN RIGHTS - judicial powers and discretions - international human rights - when relevant generally - sentencing discretion - Convention on the Rights of the Child - how relevant specifically.

ADMINSTRATIVE LAW - judicial powers and discretions - international human rights - determining relevance.

Mr M Tinney (27 February 2007) and Mr R Gibson (5 October 2007)

1 TY, you have been found guilty by a jury of the charge of murdering Christopher Thomas Williams on 25 October 2003.

2 The maximum penalty for the crime of murder is life imprisonment. It is the most serious of all of the criminal offences. Christopher had no more precious human right than the right to life.

3 You were previously found guilty of this crime by a jury. That occurred on 2 March 2005. You had pleaded not guilty to the charge of murder but pleaded guilty to the charge of manslaughter. That latter plea was not accepted by the prosecution. You were sentenced by Teague J to imprisonment for 14 years with a non-parole period of nine years.[1] This conviction was set aside by the Court of Appeal on the ground that the jury had been misdirected.[2] In the retrial, you pleaded not guilty to the charge of murder and did not plead guilty to the charge of manslaughter. You accepted that your actions resulted in the death of the deceased, but you claimed to be acting in self-defence. The jury rejected that defence and, as I have said, found you guilty of the charge of murder once again. I think the jury decided that you acted towards Christopher with the intention of doing him really serious injury and that your actions were not a reasonable response to the circumstances that you thought you faced.

4 The crime occurred in the following circumstances.

5 Christopher was a Year 12 student at St Bernard's College in Essendon. Monday 20 October 2003 was his last day of school. It was a very important day for him and his friends and their families. He and some of his friends had spent the night celebrating in the city (having organised a bus to take them there and back). They attended Breakfast with the Stars at Moonee Valley Racecourse early in the morning of Tuesday 21 October 2003, and then had a breakfast barbecue with their teachers. From there they met up with their friend Rachael Ryan at another friend's place. Rachael was also breaking up from school. She was a Year 12 student at St Columba's College, St Bernard's sister school and also in Essendon. In the spirit of the occasion, Rachael had taken to her school dress with scissors, converting it into a skirt.

6 This happy-go-lucky group of friends went to the Royal Hotel in Essendon at about 10.30am, staying until about 3.00pm. Five of them then decided to catch a tram to McDonald's, so they walked over to the tram stop on the corner of Mt Alexander Rd and Russell St, which was close by. The group consisted of Christopher (aged 18 years), Blake Henderson (aged 18 years), Joe White (aged 18 years), David Scerri (aged 17 years), who was Rachael's boyfriend, and Rachael herself (aged 17 years).

7 You, TY, were aged 14 years and eight months at the time and were studying to be a chef at TAFE. You had no classes that day and had met up with friends to go to Airport West Shopping Centre. First you met your friend, Peter Mumbler (aged about 15 years) and then Zak Dalrymple (aged 14 years). At Zak's place you were given a golf umbrella by his mother, as there was rain about. You had a small pop-up umbrella of your own but, being the biggest of your friends, you were given the golf umbrella, and the pop-up one went to one of the others. The three of you then caught the train to Essendon Station, where you ran into Gavin Sims (aged 22 years).

8 You did not go out looking for trouble that day, TY. You had not been drinking or using drugs. However, at that time of your life, you were prone to getting into arguments and fights. So it was not altogether surprising that, on the way to the tram stop, you called a girl at a café a "bitch" and got into a heated argument with her and her friend. But then you moved on and went to the tram stop to wait for a tram with your three friends.

9 Shortly after you arrived, Christopher and his friends came along, still happy-go-lucky. You were sitting on a seat near the shelter with Mr Sims. You made a remark about Rachael, loud enough for her and her friends to hear. It was something like: "Look at that fucking girl, she's a disgrace, she looks like a slut, look at her". As you have admitted, this kind of abusive remark was completely uncalled for. Nothing that Rachael had said or done, nothing in the way she looked, nothing in the way she had cut up her dress for fun on the occasion, justified your remarks. You were showing off as a young tough guy in front of your friends.

10 You then addressed yourself to David Scerri. You said something like: "Is that your girlfriend?" and "take a bit of control over your missus, mate". David had neither said nor done anything to provoke these remarks. I think these remarks were strange ones for a boy aged 14 years to make, and really confirm that you were acting up in front of your friends.

11 David chose not to react to the remarks you made towards him and Rachael. Rachael's reaction was to say jokingly to Christopher something like: "You'll stand up for me, won't you?" This is the kind of thing that any girl in her position on that day might have said, just reacting frivolously to the moment, and never expecting anything to happen. However, Christopher did stand up for her. In retrospect, none of his friends or family were surprised, for that is the kind of person he was.

12 What happened next is not exactly clear, and various accounts have been given by the witnesses. I have examined the evidence and the submissions made by counsel to the jury. I have carefully considered the verdict of the jury, the basis of which I have already described. I think the account that I am about to give is consistent with that verdict.[3] It is also based on what I can be satisfied of on the balance of probabilities.[4]

13 Christopher turned around towards you and asked what you had said about his friend Rachael, but he did not do so aggressively. You said something like: "I wasn't fucking talking about you". Other words were spoken between you. Christopher was facing you and about half an arms length away. You felt intimidated and believed you were going to get bashed by him or his friends, some of whom were bigger than you and all of whom were older. That belief was not justified. You were the aggressor, not he or them. Christopher had not threatened you, lifted his hands, shouted at you or done anything else of that nature. He was simply asking what you had said about Rachael. But, being out of your depth, and acting on the spur of the moment, your reaction was terrible. You struck Christopher twice to the head with the golf umbrella, the second time with considerable force, driving its sharp metal tip deep into this poor young man's brain. You then immediately boarded a tram that had just arrived and were heard to say something like: "I don't give a fuck who he is."

14 Christopher was fatally wounded, and died in the intensive care unit at the Royal Melbourne Hospital, as a result of your acts, and in the presence of his loving family, on 25 October 2003. A Certificate of Graduation from St Bernard's College was presented to him by the principal as he lay critically ill shortly before his death.

15 Christopher's death has had a profound effect on his family and friends. The victim impact statements are heart-rending. They come from:

• Garry Williams, another of Christopher's brothers.

16 Ms Debnam-Williams, you read your victim impact statement as evidence during the plea hearing, and in TY's presence, with dignity, strength and moral conviction. You said you missed Christopher every day. He was your last thought in the evening and your first thought in the morning. You described in moving terms the treasured place this loving young person held in your family. Christopher was virtually a surrogate father in late 2001 when your husband Greg fell grievously ill. You go through each of the people in your family and his circle of friends who have been affected, and explain how profound that effect has been.

17 Mr Williams, you wished you could have been there to help your son, as his father. You tell us he was a gentleman to all his family and friends. He was the one you admired most, was your strength and your inspiration. You always carry a sense of sadness of what could have been. You are justly proud of the Graduation Certificate that he got on his death-bed, for you attach it to your statement. You attach a beautiful child's picture from young Max who was aged four years at the time of his eldest brother's death. Max has also written a touching message in his small-child's hand. These will remain safe on the court file, unless you or Max should request their return.

18 Keith and Garry, your statements are in similar terms. Keith, you write of how much you loved your older brother, how much you miss him and how he will not now grow up and have a family. Garry, you write of the changes that have occurred within your family, symbolised by the obvious omission at family dinners and gatherings. And you say so truly that parents should not have to bury their children.

19 Rachael, I have read your statement also, which is very poignant. I only want to say this to you: you were in no way to blame - repeat, in no way to blame - for what happened to Christopher.

21 You were born on 18 February 1989 and are now 18 years of age.

22 Your parents, you and your two older brothers left war-torn, poverty-stricken Lebanon when you were very young. In Australia, the relationship between your mother and father broke down. There was domestic violence within the family and you yourself were exposed to harsh physical discipline. Your mother ended up leaving your father when you were very young.

23 Your mother repartnered and you have a half-sister by that new relationship. You and your brothers initially lived with your mother but later began living with your father. You were living with him and a brother when you committed the crime. The environment in the home was unstable. You were not being adequately supervised at the time. Your other brother was serving an adult prison sentence.

24 Your education had been severely disrupted due to frequent family relocations and the breakdown of your parents' relationship. You attended five primary schools before commencing secondary education at Erinbank Secondary College, where you completed Year 8.

25 Your teachers found you to have poor social skills and to be frequently involved in fights with peers. You were given assistance by a case manager at school to address your antisocial behaviour. It was ultimately determined you would be better off at Broadmeadows TAFE, which you began in 2002. You also took up casual employment at the Broadmeadows Fruit and Vegetable Market.

26 In 2001 and 2002 you appeared in the Children's Court at Broadmeadows. On 3 July 2001 you were charged with theft. That charge was found proven and dismissed without conviction on your accountable undertaking for six months. On 22 October 2002, you were charged with burglary (four counts), failing to answer bail (two counts), theft (three counts) and going equipped for theft (one count). The charges were found proven and dismissed without conviction on your accountable undertaking of nine months.

27 It may therefore be said of you that, in 2003, when you committed the crime, you were the product of a highly disadvantaged background and had a tendency towards violent behaviour. If that description was accurate at that time, the self-improvement that you have brought about since could not be more dramatic.

28 I have three detailed reports into your personal development in youth detention. The first is from Dr David List, a consultant psychologist at Park Street Consulting, and it is dated 12 December 2006. The second is from Christine Miller, your treating psychologist at the Adolescent Forensic Health Service, and it is dated 23 February 2007. The third is from Ms Alicia Zineder and Ms Eva West from the Department of Human Services Juvenile Justice Unit and it is dated 20 March 2007, updating an earlier report dated 8 March 2005. I want to acknowledge and express my thanks for the effort that has been put into producing these reports.

29 Dr List writes of your genuine remorse for the heinous character of your crime, your total commitment to rehabilitation and your desire to make something of yourself.

30 Ms Miller describes the various forms of therapy you have undertaken and your acquisition of problem-solving skills for dealing with difficult situations. She states that, at the Justice Centre, your prospects for rehabilitation are promising, but she cannot anticipate the impact of an adult prison on your future.

31 I have read and considered the 2005 and 2007 reports from the Department of Human Services. The positive progress recorded between the two stands strongly in your favour. The reports describe the maturation of a boy who entered detention as an immature 14 year old to the young man who stands before me now aged 18 years.

32 The 2007 report sets out the various steps you have taken to rehabilitate yourself, which have included education and vocational training and counselling.

33 As to educational and vocational training, you have participated in numerous programs, in fact too many to mention. The areas you have studied include woodwork, ceramics, art and music. You use music as a therapeutic tool. You have undertaken the Victorian Certificate of Applied Learning and now have commenced your Victorian Certificate of Education. You are studying Standard Maths, English, Personal Finance and Music. You hope to complete your VCE in 2008 and commence a university degree in structural engineering. Your academic work is of a high standard and you dedicate a lot of time to your studies.

34 As to counselling, you have acknowledged that, as a younger person, you rationalised violent behaviour as a response to confronting situations as acceptable. You actively and positively participated in individual counselling from an early stage of your incarceration and have worked through a whole range of issues associated with your offending. You have also undertaken two extensive anger management and violence aversion programs - one called "Stop the Violence" and the other "Be Real About Violence". You are motivated to implement the strategies you have learnt.

35 The report assesses your current situation in detention in positive terms and recommends you continue with your long-term rehabilitation.

36 Against this background, I can now turn to the issues of remorse and rehabilitation.

37 As to remorse, you have expressed a strong sense of remorse from an early stage. On the tram leaving the scene of the crime, you were heard to say something like: "Oh, I hope I haven't - oh, jeez, I hope I haven't just killed him over a couple of words." I think that is a truer indication of your initial feelings about what you did to Christopher than the earlier comment I mentioned. You have expressed strong feelings of remorse to every professional in the justice system and otherwise with whom you have come in contact, and that sense of remorse has been fully demonstrated in all proceedings conducted before me, including during the hearing on sentence. One example is something you said in the evidence you gave during the trial, which was this: "It's never reasonable to stab someone in the head... It's never reasonable. No-one should be like that. Nothing like that should happen." That evidence, which was freely given, would have been damaging to your defence of self-defence.

38 It is true that you have struggled with accepting the jury's verdict of guilty of murder. You have told many people, as you told the jury, that you had no intentions towards Christopher and did not mean to kill him or do him really serious injury. I think your pleas of not guilty at the trial conducted before me reflected your genuinely-held personal views in that regard. However, the jury formed the view that you did intend to cause Christopher really serious injury and, as I have said, I think they convicted you on this basis. I do not think that your resistance to that verdict detracts from your remorse, for you completely accept, and are extremely sorry, that your actions caused Christopher's death, to the inconsolable grief and suffering of his family and friends.

39 As to rehabilitation, when I look at you aged 14 years, and compare that with what I see now, it is no exaggeration to say that, in terms of rehabilitation, practically nothing more could be asked of you. You have actively taken up every means of support and improvement made available to you. I will not repeat the references I have already made to these matters.

40 I think your long-term prospects of rehabilitation are excellent, as long as you continue on your present path of study, personal improvement and general maturation. It follows that, on the same basis, I would assess you as being at very low risk of further offending.

41 I must sentence you, a boy aged 14 years at the time, for murder. Christopher's family and friends have called for an appropriate sentence. I think it is therefore important that I say something about the applicable principles of sentencing, especially those relating to the sentencing of young offenders.

42 The principles of sentencing provide that youth is a mitigating consideration of the first importance.[5] There are two reasons for the approach of the courts in this regard, and both are important in this case.

43 The first is that the immaturity of the offender may affect the court's assessment of their moral culpability for the crime. A person as young as a child, while being criminally responsible,[6] may lack the degree of insight, judgment and self-control that is possessed by an adult. As Phillips CJ and Chernov and Vincent JJA said in Director of Public Prosecutions v SJK and GAS,[7] by "reason of the stage of development that an offender may have reached, he or she may not fully appreciate the seriousness and real consequences of the offending actions",[8] especially when the crime is committed on the "spur of the moment",[9] as many crimes committed by children are. The law recognises this in other ways. For example, the objective test in the law of negligence[10] and of manslaughter by unlawful and dangerous act[11] takes account of youth. It does so, in the words of Kitto J in McHale v Watson,[12] because children are different to adults when it comes to "things which pertain to foresight and prudence - experience, understanding of causes and effects, balance of judgment, thoughtfulness ..."[13]

44 The second is that the community has a very strong interest in the rehabilitation of all offenders,[14] but most especially young offenders,[15] which, in the case of the latter, is "one of the great objectives of the criminal law."[16] That objective may be achieved, depending on the circumstances, by a non-custodial sentence, which is by far the preferred course,[17] or a sentence of youth detention rather than adult prison,[18] or, if a sentence of imprisonment is positively called for, one of shorter length than might otherwise be the case and, finally, by a shorter than usual non-parole period.[19]

45 The application of these sentencing principles is very challenging when the crime committed by the young person is very serious. True, youth and rehabilitation remain mitigating considerations of the first importance.[20] But, they may apply with less force in such cases, having regard to the enhanced significance of other considerations, such as general and specific deterrence[21] and the denunciation of the heinous nature of the crime. Thus, while rehabilitation will be of primary importance in the usual case, it is not the only objective of the criminal law and, when the crime is very serious, it may be displaced in favour of those other considerations. [22]

46 Where the balance is to be struck in cases of serious crimes depends on the overall circumstances.[23] For example, objectively the crime may be very grave, such as murder. In such cases, despite the youth of the offender, the sentence must reflect the gravity of the crime and not be disproportionately low.[24] That, TY, applies to your case. Or it may appear that the young offender was behaving like an adult or had engaged in premeditated criminal activity, in which case they may have an adult-like degree of moral culpability.[25] That is not the case with you, TY. Or the young person may show no remorse, which may affect the court's assessment of their prospects of rehabilitation.[26] I have already acknowledged your sincere remorse, TY. Overall, depending on the circumstances, the rehabilitation of a young offender, even in cases of serious crime, is a relevant sentencing consideration, but the scope for actual leniency of sentence on account of age is less.[27] This is the main reason why, TY, despite you being aged only 14 years at the time, I must sentence you to a significant term of imprisonment for committing the crime.

47 It is appropriate to mention the Convention on the Rights of the Child.[28] Australia is a party to the Convention. By becoming a party, Australia has, in terms of art 40(1), recognised -

the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.

48 The Convention has not been incorporated into Australian law, which means it cannot operate as a direct source of law.[29] However, as I held in Tomasevic v Travaglini,[30] international human rights, such as those recognised in art 40(1), can be a relevant consideration in the exercise of judicial powers and discretions. Moreover, as Maxwell P pointed out in Royal Women's Hospital v Medical Practitioners Board,[31] Australian courts have been prepared to consider international human rights conventions in exercising sentencing discretions. [32] At least four cases have involved taking the Convention into account.[33] Doing so can cut both ways, for where the victim is a child - and Christopher was aged barely 18 years - the Convention reminds us, to use the words of Cummins J in his recent decision in Director of Public Prosecutions v Farquharson: "Children are precious and are vulnerable. They are entitled to love, to care, to health, to education, to security and to safety.[34] Most of all they are entitled to life." [35]

49 When can an international human right stated in an unincorporated convention be taken into account in the exercise of a judicial power or discretion? As a general proposition, I think it can be if the subject matter of the case before the court comes within its scope, which is a test of relevance; if taking the human right into account is not inconsistent with any applicable legislation, the operation of which such a convention obviously does not impair; and if doing so is not inconsistent with the common law (broadly defined), the content of which, equally obviously, such a convention does not alter. I did not explicate that approach in the two cases[36] I have previously decided on this subject, but it is inherent in the analysis and the result. [37]

50 I turn now to apply that general proposition to the discretion that must be exercised in this case. As to subject matter, this is a sentencing case, and art 40(1) of the Convention deals with how a child, recognised as having infringed the penal law, should be treated. As to any applicable legislation, taking art 40(1) into account is not inconsistent, indeed it is in keeping, with such legislation as the Sentencing Act 1991 and the Children, Youth and Families Act 2005. As to the common law, taking the matters referred in art 40(1) into account is not inconsistent with, indeed it reinforces, the proper application of the sentencing principles of this Court which, as relevant to this case, I have stated. It can be seen, therefore, that the Convention runs with the grain of the Court's sentencing discretion, not against it. It follows that, in passing sentencing upon you, TY, it is open to me to consider this matter

51 Thus possessing the capacity to do so, I would take art 40(1) of the Convention into account, for two essential reasons: on becoming a party, Australia signified its respect for the fundamental human rights that the Convention expresses; and I think the exercise of the sentencing discretion will be the better for it.[38] In practical terms, the main significance of considering this matter will be to supply a further basis for, and to reinforce the existing principle of, giving primary emphasis to youth and rehabilitation as a mitigating factor when sentencing children. Article 40(1) also brings home that, by the way the courts deal with children in the sentencing process, they can promote both their positive development and the growth of their understanding of, and respect for, the human rights of others. Of course, the sentencing principles of this Court, and the provisions of any relevant legislation, such as the Sentencing Act, remain applicable and must be applied. I point out, in particular, that taking the Convention into account does not lead to the result that children can escape criminal responsibility and just punishment; where the crime is very serious, considerations other than youth and rehabilitation can become more pressing, in the way I have explained.

52 In your case, TY, the crime was murder. Intending to cause Christopher really serious injury, you took away his life. He was only 18 years of age, on the threshold of what would doubtless have been a full and positive life, when he was loved by his family and friends, and simply enjoying his last day of school. This crime warrants my unequivocal denunciation and is of such objective gravity that, despite your youth and the other mitigating considerations, you must be sentenced to an immediate term of imprisonment, of appropriate length. The sentence I impose must also be sufficient to provide a general deterrence to others who would contemplate committing such a serious crime, from which the community is entitled to expect some protection.

53 While your crime was murder, there are two considerations that affect my assessment of the degree of your moral culpability.

54 The first is your very young age at the time - only 14 years and eight months. You are criminally responsible for this crime, of which the jury has found you guilty. But you were intellectually, socially and emotionally immature, indeed more immature than usual for someone of your age, according to psychological evidence I have already mentioned.

55 The second is that the crime was not planned or premeditated and was not committed with a weapon carried for the purpose. It was committed with an object already to hand on the spur of the moment in response to an unjustifiably but genuinely perceived fear.

56 These two considerations, in my mind, place your moral culpability for the crime in its proper perspective, which I will take into account. But I emphasise, youth and lack of premeditation are not excuses for murder which, in your case, involved an intention to do really serious injury to Christopher.

57 On 20 April 2005, Teague J sentenced you to imprisonment for 14 years with a non-parole period of nine years. The prosecution submitted this sentence was "about right" and invited me to follow it.

58 When an appeal court overturns a conviction and an accused is re-convicted on the retrial, the re-sentencing judge, when exercising his or her individual sentencing discretion, normally takes strong account of the original sentence.[39] That principle is most commonly applied where the question is whether a more severe sentence should be imposed. Here, nothing justifies that course, and the question is whether I should impose a lesser sentence. It is accepted that, if the circumstances justify it, a lesser sentence can be imposed.[40] In deciding that question, I will take into account the fact that, in three respects, the position that is before me is different to the position that was before Teague J.

59 First, and most importantly, you, TY, gave evidence in the trial before me but did not do so in the trial before Teague J. I have had the considerable benefit of hearing your evidence and therefore know more than Teague J about precisely what happened at the tram stop and why you did what you did. Second, you have spent two more years in detention since being sentenced by Teague J. The pre-sentence reports have been significantly updated. I am in a stronger position than Teague J to assess your prospects of rehabilitation and unlikelihood of re-offending. Third, for reasons I will later give, the delay up until the second verdict is itself a sentencing consideration.

60 For these reasons, I cannot regard Teague J's previous sentence as a complete guide to the proper exercise of my sentencing discretion in this case, although I have respectfully noted the sentence and the reasons given by his Honour for it.

61 I will now consider the issue of delay. You were arrested on 21 October 2003. You were charged soon thereafter and tried before Teague J in February-March 2005, being found guilty by the jury on 2 March. You were sentenced by Teague J on 20 April 2005. The appeal against conviction and sentence was heard on 7 March 2006 and upheld on 24 May of that year. You were retried in November-December 2006 before me, being found guilty by the jury on 8 December. Your hearing on sentence on 26 February 2007 was adjourned at your counsel's request.

62 The delay relied on is the time from your first being charged until the second conviction - about three years. Your counsel submits that delay is inordinate and should be taken into account in reduction of sentence. The prosecution opposes that submission, essentially on the ground that a delay of that order is not unusual where there has been a successful appeal.

63 It is established that inordinate delay not attributable to the offender can be a significant mitigating factor.[41] The reasons given are, one, that it may be a period during which rehabilitation has occurred and, two, that it is fair to the accused, who has had the matter hanging over their head.

64 In my view, the delay in this case of three years from arrest and charge to final conviction has been inordinate to some degree. It has been brought about principally by the need for the retrial, although inordinate delay is a sentencing factor howsoever caused.[42] I will take it into account as one sentencing consideration.

65 In determining the period of imprisonment to which you should be sentenced, the sentencing principles require me to take into account the period of 43 days imprisonment - say 6 weeks - which you served between 24 May 2006 and 5 July 2006 for another offence. That former date was the one on which the Court of Appeal upheld your appeal against your first conviction and ordered a retrial. If you had been properly tried and then sentenced on that first occasion, the period of six weeks' imprisonment would have been served as part of the term of imprisonment then imposed. It would not have been served as an additional period of imprisonment. This being a sentence after a retrial, s 18 of the Sentencing Act 1991 does not permit this period to be taken into account in calculating the amount of pre-sentence detention that you have served, which has been agreed at 1457 days. But the Court of Appeal has established that, in fairness to a convicted person in your position, the period can be taken into account in the calculation of a term of imprisonment that is to be imposed. [43] The way it is taken into account is to reduce the term of the head sentence and the non-parole period, [44] which is what I will do in this case.

66 Maxwell P has said, and I respectfully agree, that consistency "in sentencing is absolutely fundamental to public confidence in the criminal justice system. It is also a basic requirement of the rule of law."[45] It is therefore legitimate to consider the sentences imposed in other cases. In consequence I have looked at a number of cases in which young people have been sentenced for the crimes of murder[46] and manslaughter.[47] I have set out the sentences in short summary form and I won't stop to discuss them here.

67 In my view, the sentences in these cases cannot be analysed statistically, for two reasons. First, the number of cases is too small. Second, on my examination, the sentences meted out turned on the individual facts and circumstances of each case, especially the nature and gravity of the crimes committed, the degree of moral culpability of the offenders and their prospects for rehabilitation. With those qualifications, I have found this examination to be generally useful, especially as to the range of sentences imposed in such cases, as to the difference in the ranges as between the crimes of murder and manslaughter and as to the considerations that have been seen to justify different individual sentences within the ranges for these crimes.

68 I do note that most of these cases - especially the murders - involved crimes committed in quite brutal and often premeditated circumstances. Dreadfully serious though your crime undoubtedly was, TY, it was committed in circumstances of lesser moral culpability. You were also younger at the time than the offenders in these other cases and your prospects of rehabilitation are very strong indeed. Your case requires a sentencing response that reflects these individual considerations but, I stress again, the sentence must reflect the gravity of the crime you committed, which the jury found to be murder not manslaughter.

69 You have submitted through your counsel that you do not wish to serve any sentence of imprisonment in an adult prison. I will be sentencing you to a term of imprisonment, and that term must, in the circumstances, be greater than the three year maximum which I can direct be served in a youth justice centre.[48] However, given your age and the other matters I have referred to, I think the prospects of your rehabilitation will be very much more advanced by you serving the term of imprisonment in a youth justice centre rather than an adult prison. That, however, is not a matter for me, but for the Adult Parole Board.

70 As you are under the age of 21 years, TY, the Board possesses the power to direct that you be transferred from prison to a youth justice centre.[49] So that the Board can consider whether to exercise that power today, I have sent it the papers in advance. I am informed that the Board will consider the matter this morning, after I hand down this sentence. In the meantime, you will remain in the cells of this Court. This procedure is available to a sentencing judge who considers it to be appropriate, in a particular case, for the Board to determine whether to exercise the power of transfer. If the Board does exercise this power, you will be taken, later today, back to the youth justice centre rather than an adult prison.

72 TY, in all of the circumstances, for the murder of Christopher Williams I would sentence you to be imprisoned for 12 years. I would fix a minimum of eight years before you become eligible for parole. Taking into account the six weeks that you served in prison on another matter, the actual sentence that I impose is that you be imprisoned for 11 years and 46 weeks. I fix a minimum of seven years and 46 weeks before you become eligible for parole. Pursuant to s 18 of the Sentencing Act I declare that the time that you have spent in custody in relation to these proceedings is 1457 days (inclusive of today) and I direct that it be reckoned as a period of imprisonment already served under the sentence imposed.

[3] Cheung v R [2001] HCA 67; (2001) 209 CLR 1, 12-14.

[4] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, 281.

[5] R v Kumar [2002] VSCA 139; (2002) 5 VR 193, 228; R v Athuai [2007] VSCA 2, [12].

[6] If not under the age of 10 years: s 344 of the Children, Youth and Families Act 2005.

[10] McHale v Watson [1966] HCA 13; (1966) 115 CLR 199, 214.

[11] Director of Public Prosecutions v TY (No 2) [2006] VSC 494; (2006) 14 VR 430, 434.

[14] Director of Public Prosecutions v Tokava [2006] VSCA 156, [21]- [24]; R v Detenamo [2007] VSCA 160, [27].

[15] R v Mills [1998] 4 VR 235, 241-242; R v Woodburn [2002] VSC 72, [18]-[22]; R v Lam [2005] VSC 495, [8]; Director of Public Prosecutions v McCloy [2006] VSCA 99, [59]; Director of Public Prosecutions v Bridle [2007] VSCA 173, [10]; Director of Public Prosecutions v Turnbull [2007] VSCA 251, [29].

[17] R v Misokka (Unreported, Supreme Court of Victoria, Court of Appeal, Charles, Callaway JJA and Vincent AJA, 9 November 1995) 10-11; R v Mills [1998] 4 VR 235, 241-242; Director of Public Prosecutions v Tokava [2006] VSCA 156, [21]-[24]; Director of Public Prosecutions v Bridle [2007] VSCA 173, [10].

[18] R v Woodburn [2002] VSC 72, [19]; R v Johns [2003] VSC 415, [33]; R v PP [2003] VSCA 100; (2003) 142 A Crim R 369, 374; Director of Public Prosecutions v Turnbull [2007] VSCA 251, [29].

[19] R v Nguyen [2003] VSC 62, [30]; R v Perera [2003] VSC 146, [44].

[20] R v Edwards (1993) 67 A Crim R 486, 489; R v Tipas [2004] VSC 25, [13]; Director of Public Prosecutions v Reynolds and Ors [2004] VSC 533, [29]; R v Athuai [2007] VSCA 2, [12]; R v BTB [2006] VSC 374, [22]-[27]; Director of Public Prosecutions v Bridle [2007] VSCA 173, [10].

[21] R v Giles [1999] VSCA 208, [18]; R v Tran [2002] VSCA 52; (2002) 4 VR 457, 462; R v PP [2003] VSCA 100; (2003) 142 A Crim R 369, 375-376; Director of Public Prosecutions v Lawrence [2004] VSCA 154; (2004) 10 VR 125, 132; Director of Public Prosecutions v Angelopoulos [2005] VSCA 258, [44]-[47]; Director of Public Prosecutions v McCloy [2006] VSCA 99, [62]; R v Nguyen [2007] VSCA 165, [42]-[44].

[22] R v Tran [2002] VSCA 52; (2002) 4 VR 457, 462; R v Tipas [2004] VSC 25, [13],[18] and [23]; Director of Public Prosecutions v Karipis [2005] VSCA 119, [13].

[23] R v Ung [2002] VSCA 101, [29]; R v Schneider [2007] VSCA 103, [15]-[17].

[24] R v Teichelman [2000] VSCA 224, [20]; R v Giles [1999] VSCA 208, [20]; R v Bell [1999] VSCA 223; (1999) 30 MVR 115, [14]; Director of Public Prosecutions v SJK and GAS [2002] VSCA 131, [61]-[62]; R v GM [2006] VSC 473, [32].

[25] R v JPD [2001] VSC 204, [15]-[16]; R v PDJ [2002] VSCA 211; (2002) 7 VR 612, 629.

[26] R v Mills [1984] 4 VR 235, 241; Director of Public Prosecutions v SJK and GAS [2002] VSCA 131, [66]; Director of Public Prosecutions v Turnbull [2007] VSC 251, [29].

[27] Director of Public Prosecutions v SJK and GAS [2002] VSCA 131, [65]; R v Kumar [2002] VSCA 139; (2002) 5 VR 193, 228.

[28] Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

[29] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, 287.

[30] [2007] VSC 337, [60]-[65].

[32] Examples include R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23, 37, 43; R v Hollingshed (1993) 112 FLR 109, 115. See also Walsh v Department of Social Security [1996] SASC 5795; (1996) 67 SASR 143, 147; Bates v Police [1997] SASC 6749; (1997) 70 SASR 66, 70 (but see contra Smith v R (1998) 98 A Crim R 442, 448).

[33] R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23, 43; Walsh v Department of Social Security [1996] SASC 5795; (1996) 67 SASR 143, 147; Bates v Police [1997] SASC 6749; (1997) 70 SASR 66, 70 (but see contra Smith v R (1998) 98 A Crim R 442, 448); Director of Public Prosecutions v Farquharson [2007] VSC 469, [3].

[34] Declaration on the Rights of the Child and Convention on the Rights of the Child.

[36] Tomasevic v Travaglini [2007] VSC 337; In re TLB [2007] VSC 439.

[37] See Tomasevic v Travaglini [2007] VSC 337, [61]-[65] and In re TLB [2007] VSC 439, [16]-[20].

[38] See generally Tomasevic v Travaglini [2007] VSC 337, [64].

[39] R v Chen (1993_)_ [1993] VicRp 64; 66 A Crim R 154, 174-175; R v Bedford (1986) 5 NSWLR 711, 713-714; Williams (No. 2) [1982] WAR 281, 283-284.

[40] See eg R v Faure [2000] VSC 208, [26]-[45].

[41] R v Cockerell [2001] VSCA 239; (2001) 126 A Crim R 444, 447; R v Tiburcy; R v Gardner; R v Zeuschner [2006] VSCA 244; (2006) 166 A Crim R 291, 292-293.

[42] R v Merrett, Piggott and Ferrari [2007] VSCA 1; (2007) 14 VR 392, 400.

[43] R v Heaney (Unreported, Supreme Court of Victoria, Court of Appeal, Winneke P, Brooking JA and Hampel AJA, 27 March 1996) 6; R v Stares [2002] VSCA 70; (2002) 4 VR 314, 321.

[44] R v Stares [2002] VSCA 70; (2002) 4 VR 314, 323.

[45] Director of Public Prosecutions v Ross [2006] VSCA 223; (2006) 166 A Crim R 97, 104.

[46] R v JPD [2001] VSC 204 (15YO: 16Y/12Y) (confirmed on appeal: R v PDJ [2002] VSCA 211; (2002) 7 VR 612); R v Seater [2001] VSCA 217 (19YO: 17Y - total effective sentence 20Y/15Y); R v Kumar [2002] VSCA 139; (2002) 5 VR 193 (20YO: 20Y/16Y); R v Khoder [2005] VSC 445 (19YO: 19Y - total effective sentence 20Y/15Y); R v Lam & Ors [2005] VSC 495 (several accused: 23YO: 18Y + 18Y - total effective sentence 30Y/23Y; 27YO: 18Y + 18Y - total effective sentence 30Y/23Y; 23YO: 18.5Y/15Y; 22YO: 16Y/12.5Y; 20YO: 15Y/11Y; 20YO: 15Y/11Y; 20YO: 14.5Y/10Y); R v JH [2006] VSC 201 (18YO: 14Y/9Y); Director of Public Prosecutions v DJE [2006] VSC 339 (17YO: 14Y/9Y); R v Tran [2006] VSC 352 (21Y: 14.5Y/10Y); and R v Athuai [2007] VSCA 2 (17YO: 18Y/14Y); see also R v Redenbach (1991) 52 A Crim R 95.

[47] R v KMW and RJB [2002] VSC 93 (two accused 14YO and 16YO: 3Y good behaviour bond_); R v Woodburn_ [2002] VSC 72 (18YO: 3Y youth training centre); Director of Public Prosecutions v SJK and GAS [2002] VSCA 131 (two accused 15YO and 16YO: 9Y/6Y); R v Nguyen [2003] VSC 62 (17YO: 8Y/5Y); R v Perera [2003] VSC 146 (17YO: 5Y/3Y); R v Maretas [2003] VSC 159 (18YO: 7Y/5Y); R v Talj [2003] VSCA 87 (19YO: 7Y/5Y); R v PP [2003] VSCA 100; (2003) 142 A Crim R 369 (15YO: 5Y/2.5Y); R v Johns [2003] VSC 415 (19YO: 6Y/3.5Y); R v Tipas [2004] VSC 25 (17YO: 6Y/3Y); Director of Public Prosecutions v Reynolds and Ors [2004] VSC 533 (three accused 16YO and 16YO: 5Y/2Y; 18YO: 5Y/2Y); R v LMA [2005] VSC 152 (16YO: 5.5Y/3Y); R v BTP [2006] VSC 374 (15YO: 5Y/2.5Y); R v GM [2006] VSC 473 (16YO: 8Y - total effective sentence 9.5Y/6Y).

Youth and Families Act 2005

At a glance

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Before

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Judgment (123 paragraphs)

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Legislation Cited (3)

Cases Cited (17)