" s6 Principles relating to the exercise of criminal jurisdiction
A court, in exercising criminal jurisdiction with respect to children, shall have regard to the following principles:
(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,
(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,
(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption.
(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,
(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind."
32 Commenting upon these principles Mathews J (with whom Gleeson CJ and Samuels JA agreed) in R v GDP (1991) 53 A Crim R 112, said this: (at 116)
"Some of these guidelines consist of sentiments and admonitions which are so general as to be of little assistance in the sentencing of young offenders. However due regard must be paid to subss (c) and (d), both of which would favour a non-custodial penalty being imposed on the present applicant."
33 That was a case involving a series of offences, all serious. The offender was 15 years old when sentenced. He had pleaded guilty to two counts of maliciously destroying or damaging property. He and a number of others had broken into a factory at Parramatta. Once inside, they had endeavoured to open a safe, using a power drill. They were unsuccessful. They had ransacked the premises, and then set them on fire. Damage totalling $550,000 was caused.
34 Some of the group, including GDP, thereafter went by train to Seven Hills. They broke into another factory. Again they ransacked and vandalised the premises, before setting the premises on fire. Damage of approximately $1 million was caused, although the fire was said to be the consequence of actions by a co-offender rather than GDP. The sentencing Judge imposed a sentence on GDP of 12 months incarceration in a juvenile detention centre, with supervision for a further period of 12 months. The offender appealed, asserting that the sentence was excessive.
35 On appeal, the Court emphasised the importance of rehabilitation. In R v Smith [1964] Crim LR 70, the Court said this:
"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."
36 Adopting these remarks, Yeldham J in Wilcox (Supreme Court (NSW), unreported, 15.8.79) said this:
"... 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, directed to his rehabilitation."
37 Citing these cases and applying these principles, Mathews J said this: (at 116)
"Returning then, to the case of the present applicant. Had it been an adult who had committed these offences, then the principles of retribution and, more importantly, general deterrence, would have demanded a custodial sentence of considerable length. But rehabilitation must be the primary aim in relation to an offender as young as this applicant. The evidence indicates that he has already rehabilitated himself to a substantial degree. He has now commenced Year 12, and thus faces the Higher School Certificate later this year. He is performing well in his studies, and is an outstanding sportsman. It would, on all accounts, be positively damaging to his rehabilitative prospects to remove him from this environment and return him to custody."
38 The Court ordered the offender's immediate release on probation.
39 As an offender increases in age and approaches adulthood it may be appropriate, depending upon the nature of the crime, to strike a different balance between rehabilitation, deterrence and denunciation. In R v Pham (1991) 55 A Crim R 128, Lee CJ at CL (with whom Gleeson CJ and Hunt J agreed) said this, in the context of one offender who was 17 and another who was 19: (at 135)
"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."
40 Here, the offender was very young indeed. He was approaching 14 years. His immaturity was relevant to the offence in a number of ways. He had failed to exercise self control. He was bound to be found out. The person he attacked was someone who went to the same school, who knew him.
41 In determining whether another sentence was warranted and whether this Court should intervene, the question becomes what is most likely to assist in KBM's rehabilitation, which is not to say that deterrence and denunciation are completely irrelevant.
42 The Juvenile Justice counsellor, Ms Liva, was in no doubt that KBM should remain with his sister, attending at the local High School where he was making good progress. In the passage set out above, she made it plain that she thought incarceration would impede his rehabilitation. She took that view for a number of reasons. First, research demonstrated that incarceration of youthful offenders increased the risk of recidivism. Secondly, KBM needed counselling and therapy, which is simply not available in a juvenile detention centre. In her evidence, she described what she believed KBM needed in these words: (T9)
"Q. What do you anticipate you could do for [KBM] over the period?
A. The department would provide weekly sessions, weekly one hour sessions with [KBM] initially, and that would, depending on [KBM's] level of participation, that would gradually ease off. We would be looking at a period of two years."