Sentencing Juvenile Offenders
122In sentencing an offender I am first required to take into account the objective seriousness of the offence, the subjective circumstances of the offender and the special sentencing considerations applicable to young offenders.
123Because of his age as at the date of the offence, 15 years, the provisions of the Children (Criminal Proceedings) Act 1987 are, for sentencing purposes, applicable.
124Section 6 of that Act sets out "principles" to which I am required to have regard. In particular, the youth of an offender is a relevant factor in the sentencing consideration, to be given the appropriate weight, together with all other relevant factors. The above principles in their application will, of course, depend upon the nature of the offence charged as well as the age and conduct of the offender: R v Voss [2003] NSWCCA 182; R v AEM [2002] NSWCCA 58.
125In R v Pham & Ly (1991) 55 A Crim R 128 Lee J (with whom Gleeson CJ and Hunt J (as his Honour then was) agreed) stated in the context of offenders respectively aged 17 and 19:
"It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes."
126The principles that apply in the sentencing of young offenders were set out in KT v Regina [2008] NSWCCA 51 by McClellan CJ at CL at [22]-[25].
127Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. It has been noted that there remains a strong public interest in deterring antisocial conduct.
128In KT v Regina, supra, it was stated that the emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when a young person has conducted him or herself in the way an adult might conduct him or herself, and has committed a crime of violence of considerable gravity. In determining whether a young offender has engaged in "adult behaviour" the court will look to various matters including the use of weapons, planning or premeditation, the existence of an extensive criminal history and the nature and circumstances of the offence. Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society. In the present case, as I have noted, on the finding I have earlier made there was the use by the offender of a bottle as a weapon, there was very limited premeditation, commencing at or just prior to the offender picking up the bottle, the circumstances of the offence to which I have referred, and the fact that the offender does not have a criminal history.
129In JT v R [2011] NSWCCA 128 Hoeben J (as his Honour then was) was not persuaded in that case involving an offender who was 16 years and 7 months at the time of the offence, that it was the sort of offence which indicated impulsivity and immaturity on the part of the applicant so that the need for rehabilitation should be given paramount consideration. Rather, his Honour said, it was the very sort of offence that was referred to in KT at [24] and [25].
130The weight of authority is that the seriousness of an offence is relevant to the emphasis that can be given to the youth of an offender. It has been observed, however, that that does not mean that youth is not an important consideration; but retribution and deterrence cannot, in a case as serious as the present case, give way entirely or even substantially to the interests of rehabilitation: JM v R [2012] NSWCCA 83 per Simpson J at [108] (dissenting but not on this point).
131In a case such as the present where there was a use of extreme violence occasioning death and occurring in the circumstances to which I have referred, general deterrence and retribution cannot be ignored.
132The factors to which I have referred in the sentencing of juvenile offenders, often pull in different directions. That is particularly marked in this case. The offender was in his mid-teens and has no criminal history. Allowance must be made for his immaturity. He has rehabilitation prospects although it is difficult on the evidence to say how strong those prospects are. Much will depend upon his capacity to free himself from peer groups with so-called normalised views on violence and the success of intervention strategies that provide insight about his use of violence as noted in the Juvenile Justice Report, part of Exhibit A.
133This is a case where individual deterrence and to a lesser extent, general deterrence, must be properly taken into account. The extreme level of violence, unprovoked, the use of the bottle as a weapon on a highly vulnerable victim as part of a calculated group attack upon him, mark the offence for which the offender is to be sentenced, as an extremely grave one and one that cannot be categorised as the crime of a child.
134In determining sentence I have considered a number of sentencing decisions which I do not reproduce here. I attach to these remarks a list of the decisions to which I refer.
135Given the various circumstances of each case they do not, of course, establish any particular pattern of sentencing.
136By reason of the particular matters associated with the objective gravity of the offence, the sentence I propose to impose is a substantial one.