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Sentencing Young Offenders (Vic)

When determining any sentence, a court must consider a number of sentencing objectives and principles. These include just punishment, general deterrence (deterring the community), specific deterrence (deterring the offender), denunciation of the offence, protecting the community and rehabilitation of the offender. When courts sentence young adults, they recognise that they lack the same maturity in their decision making as an older adult and that young offenders who are incarcerated have a higher risk of returning to custody than an older offender.

Who is a young offender?

In Victoria, an offender who is under 25 at the time of sentencing can be categorised as either a young offender or a youthful offender. In rare circumstances, the court has determined that the offender may benefit from being considered as a youthful offender beyond the age of 25. However, the courts have refused (regardless of circumstance) to extend the consideration of an offender as a youthful offender to beyond the age of 28 at the time of sentencing.

The Sentencing Act 1991 provides that an offender under the age of 21 is to be considered a young offender. Case law provides that an offender who is over 21 but under 25 at the time of sentencing may be considered a youthful offender and may attract similar considerations to young offenders.

Sentencing Considerations for Young Offenders

In R v Mills, the Court of Appeal in Victoria made rehabilitation the primary consideration in sentencing a young offender. In that case, the Court of Appeal identified three key principles relevant to the sentencing of a young offender. These are:

  1. That the court must consider an offender’s youth as the primary consideration in sentencing.
    1. In this regard, the onus is particularly placed on the court to consider the offender’s youth when sentencing a person that does not have any history of prior offending,
  2. That rehabilitation ‘usually far more important than general deterrence’ because punishment may in fact lead to further offending.
    1. In this regard, the court has indicated that rehabilitation has a greater benefit to the community as well as the offender in the role that it plays in minimising the risk of reoffending and that society will benefit more greatly when a young person is ‘led away from a life of crime’. When making this consideration, the court has considered the impact of other prisoners that the offender may be introduced to, and that may influence the offender if unnecessarily introduced to the prison system.
  3. That a young offender should not be sent to an adult prison unless sentencing of this nature is unavoidable, especially if they are beginning to appreciate the effect of their offending.

The principles for consideration when sentencing a young offender were further considered in R v Azzopardi. At this time, the Court of Appeal discussed the consideration of youth and immaturity when determining proportionality and sentencing a young offender.

In this regard, the court noted that because of immaturity, a young offender is more prone to ill-considered or rash decisions’ and that they ‘may lack the degree of insight, judgement and self-control that is possessed by an adult’.

The court has also recognised in DPP (Vic) v Ellis that imprisonment may be more burdensome for a young offender than it would be for an offender of greater age. When sentencing a young offender, the court has dictated that, where possible, a young offender should be given an opportunity to reform, and that the sentence provided to a young offender should ‘fit the young offender more than it fits the crime’ (CNK at 644).

In both R v Mills and R v Azzopardi, the Victorian Court of Appeal has indicated that a young offender, should not, where possible be given a custodial sentence and that the court must consider whether options for rehabilitation through other means will achieve the objectives of sentencing for a young offender. These considerations include, whether rehabilitation can be achieved through programs that may be offered and required through the completion of a Community Corrections Order.  The impact of the decision in R v Azzopardi is that the court may consider that a younger offender is less morally culpable than older offenders and that, where it is determined that a custodial sentence is necessary, a shorter sentence or shorter parole period may be appropriate in the circumstances.

When is rehabilitation not the primary consideration?

It is important to note that the principles outlined in R v Mills and the requirement that greater weight to be placed on rehabilitation when sentencing a young offender must be considered in conjunction with the seriousness of the offending before the court.

In R v Shoma, the Supreme Court of Victoria determined that whilst an offender’s youth remains a relevant factor to be considered by the court, youth will carry less weight in situations where there is a greater need for just punishment and community protection. This is particularly relevant in relation to offending of a terrorist nature. Similarly, the court will moderate the sentencing considerations for dealing with young offenders where offending arose from the use of alcohol or drugs, where offences consist of particularly violent acts such as “glassing” or where the victim was particularly vulnerable.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.  

Kristen Moore - Practice Director - Werribee

This article was written by Kristen Moore - Practice Director - Werribee

Kristen Moore is a Practice Director and is responsible for supervising and managing the Victorian Criminal Law team. Kristen is a strong advocate with a history of running complex cases. Kristen defends clients charged with both state and commonwealth offences and has run cases in the Magistrates Court, County Court, Supreme Court and Court of Appeal. Kristen combines her advocacy...

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