11. Serious crimes
Updates and background for this project (Digest)
INTRODUCTION
11.1 Sentencing a young offender raises particular problems where the offence is of a serious nature. Generally in juvenile justice, s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) (“CCPA”) establishes a sentencing regime pertaining to young offenders, setting out the principles that are to apply. In addition, the common law promotes rehabilitation as the dominant principle in sentencing young offenders.1 However, grave criminality in a young person qualifies the operation of these principles. In particular, the seriousness of the crime in question may demand that greater consideration be given to retribution, incapacitation and personal deterrence in sentencing the young offender than would have been necessary in the case of a less serious offence.2
SERIOUS CRIMES UNDER THE CCPA
11.2 Section 17 of the CCPA requires that a young person (under the age of 18 when the offence was committed and under 21 when charged before a court with the offence) who has pleaded guilty to, or been found guilty or convicted of, a serious children’s indictable offence be dealt with according to law in the District or Supreme Court. Except for committal proceedings, the Children’s Court has no jurisdiction in respect of serious children’s indictable offences.3 “Serious children’s indictable offences” refer to: homicide; offences punishable by imprisonment for life or for 25 years; a number of serious sexual offences (including attempts to commit such offences); offences relating to the manufacture or sale of firearms punishable by imprisonment for 20 years; and offences prescribed by regulation.4 Regulation extends the definition of “serious children’s indictable offences” to certain sexual offences where the victim is under ten years of age.5
CURRENT SENTENCING PRACTICE
11.3 Under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), where a young offender is sentenced for a serious children’s indictable offence, the court must first set a non-parole period, that is, the minimum period for which the offender must be kept in detention. The balance of the term of the sentence must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more.6 Section 21A of the Act provides that an offender’s youth may be a mitigating factor, in that it suggests that he or she has good prospects of rehabilitation.7
11.4 The problems presented by the application to young offenders of the sentencing regime outlined above are illustrated in the decision of the New South Wales Supreme Court in R v SLD.8 The young offender in that case was a boy aged 13 years and 10 months who murdered a 3-year-old girl by stabbing her to death. Applying general sentencing principles and the procedure in s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), Justice Wood imposed a sentence of 20 years, with a non-parole period of ten years.
11.5 The court found the objective seriousness of the offence to be extremely high. Although the offender’s criminality was reduced by his emotional immaturity, intellectual impairment and disturbed background, the court found that he posed a substantial risk of committing further offences of both a violent and sexual nature.
11.6 It is not easy for a court to assess the prospects of rehabilitation of a young offender who is still developing, intellectually and emotionally. Expert medical evidence in R v SLD suggested that it is difficult to diagnose with certainty a personality disorder before maturity. The experts agreed that reviewing the sentence when the offender was in his early twenties would have merit. By that time, the offender would have served about 6 years in detention, and his progress and potential danger to the community could be better assessed.
11.7 Fortunately, it is very unusual for a court to have to adjudicate on crimes by a young offender of such a horrific nature as those dealt with in R v SLD. However, the current sentencing options in these rare cases are limited in a way that appears to benefit neither the public interest nor the interests of the young offender. On general sentencing principles, the response of the court in such cases ought to focus on the rehabilitation, incapacitation and deterrence of the young offender (general deterrence being of little relevance in such cases).9 Yet, the offender’s unknown future emotional and intellectual development and maturing, obstructs the court’s ability to balance these principles fittingly.
THE UK APPROACH
11.8 In his reasons in R v SLD, Justice Wood suggested a possible amendment to the law to cater for the difficulty of sentencing young offenders who commit very serious crimes. His Honour said:
The cases I have in mind are those involving juveniles who are convicted of offences attracting a possible maximum sentence of 25 years or more, who are aged less than 15 years at the time of the offence, and where the information available at the time of sentencing does not permit the Court to make a proper assessment as to the presence or likely development of a serious personality or psychiatric disorder, and/or propensity for future dangerousness. In such a case it would be desirable, in my view, if the Court could sentence the offender initially to be detained at her Majesty’s pleasure, with provision for review and resentencing at a later date, for example at the age of 21 years, or after say 5 years in custody.10
11.9 Justice Wood’s use in R v SDL of the expression “at her Majesty’s pleasure” refers to the requirement in England and Wales to sentence a person under 18 convicted of murder or any other offence for which the sentence fixed by law is life imprisonment, to detention during Her Majesty’s pleasure.11 In all but the most exceptional cases, however, the sentencing judge must specify a minimum term,12 on the expiry of which the prisoner becomes eligible for release on licence pursuant to the “early release provisions” of the Crimes (Sentences) 1997 (UK).13 Nonetheless, the sentencing judge may order that the early release provisions are not to apply to the young offender.14 In such cases, the Secretary of State determines when those provisions become applicable.15
11.10 The minimum term is set at one half of the normal determinate sentence that would have been imposed for the offence if a life sentence were not prescribed.16 This normal “starting point” (12 years) is then reduced to take into account the maturity and age of the offender.17 The appropriate reduction to achieve the correct starting point depends heavily upon the stage of the development of the individual offender.18 While a “mechanistic approach is never appropriate”, a reduction in the starting point of one year for each year that the young person is under 18 years of age provides a “rough check”.19 The judge must then consider any aggravating or mitigating factors in the particular case, which may take the minimum term above or below the starting point.20 These introduce a sliding scale that recognises “the greater degree of understanding and capacity for normal reasoning which develops in adolescents over time as well as the fact that young offenders are likely to have the greatest capacity for change”.21 The judge also needs to take into account the welfare needs of the young person and the desirability of his or her reintegration into society.22
OPTIONS FOR REFORM IN NSW
11.11 Except in the tightly circumscribed circumstances in which mentally ill or disordered persons can be detained in hospital,23 there is no modern tradition of detention “at pleasure” in New South Wales, where the Attorney General does not have the same functions in relation to sentencing as the Home Secretary does in England and Wales. Further, the Commission affirms its previously expressed general opposition to any form of indeterminate sentencing,24 which sits uneasily with the emphasis that the High Court placed on proportionate punishment in Veen (No 2).25
11.12 However, in the case of young offenders, as Justice Wood stated, the information before the sentencing court to enable a proper assessment of culpability and prospects for rehabilitation may be lacking. The presence or likely development of a serious personality or psychiatric disorder, or a propensity for future dangerousness is difficult to know. A better sentencing mechanism is needed, that allows the objectives of sentencing to be fully realized.
11.13 In the Commission’s view, this is best achieved by requiring the judge, in the case of a serious children’s indictable offence, to sentence the young offender according to the normal method prescribed by s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and to invest the judge with a discretion to make an order, in appropriate cases, that the offender be re-sentenced at a specified period before the end of the non-parole period or minimum term.
11.14 Re-sentencing has been extensively used in New South Wales to deal with the effect of changes in sentencing law and policy on existing life sentences.26 The NSW Court of Criminal Appeal has rejected the argument that “the State Parliament is not empowered to alter sentencing laws applicable to existing offenders”.27 The Court held that “[t]here is no reason in principle that precludes Parliament from so legislating”28 and that such legislation would not be incompatible with Chapter III of the Constitution.
11.15 The Commission has concluded that the availability of a re-sentencing option would inject necessary flexibility into the process of sentencing young offenders convicted of serious crimes.
Recommendation 11.1
Section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) should be amended to give a judge who sentences a young offender in respect of a “serious children’s indictable offence” (as defined in s 3 of the Children (Criminal Proceedings) Act 1987 (NSW)) the discretionary power to make an order that the young offender be re-sentenced at a determinate time before the expiry of the non-parole period. For this purpose, “young offender” means a person who was under the age of 18 years when the offence was committed and under the age of 21 years when charged before a court with the offence.
Footnotes
1. R v SLD [2002] NSWSC 758 at para 20. See also K Warner, Sentencing in Tasmania (2nd edition, Federation Press, Sydney, 2002) at para 3.218.
2. R v SLD [2002] NSWSC 758 at para 20. See also R v MA [2004] NSWCCA 92 at [28] (Dunford J): “It is true that in the case of young offenders, there is generally greater emphasis given to rehabilitation and less to deterrence than in the case of adult offenders, but that depends in part on the age of the young person and the circumstances of the offence; and there comes a point at which the seriousness of the crime committed by a young offender, particularly if a crime of violence, is so great that the special attention normally given to rehabilitation in the case of young offenders must give way, and greater emphasis given to punishment and deterrence …”. See also R v LNT [2005] NSWCCA 307 at [31] (Rothman J).
3. Children (Criminal Proceedings) Act 1987 (NSW) s 28(1).
4. Children (Criminal Proceedings) Act 1987 (NSW) s 3(1).
5. Children (Criminal Proceedings) Regulation 2004 (NSW) cl 4, bringing the offence under s 80A of the Crimes Act 1900 (NSW) (but only if the victim of the offence was under the age of 10 years when the offence occurred) within the definition of “serious children’s indictable offence”. (Note that cl 4 of the Regulation also refers to s 78I of the Crimes Act 1900 (NSW) but that this section has been repealed.)
6. Crimes (Sentencing Procedure) Act 1999 (NSW) s 44.
7. Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3)(h)
8. R v SLD [2002] NSWSC 758.
9. R v SLD [2002] NSWSC 758 at para 21.
10. R v SLD [2002] NSWSC 758 at para 147.
11. Powers of Criminal Courts (Sentencing) Act 2000 (UK) s 90. See also Criminal Justice Act 2003 (UK) Chapter 5 dealing with detention of “dangerous offenders” for public protection.
12. Powers of Criminal Courts (Sentencing) Act 2000 (UK) s 82A. See also Practice Statement [2002] 3 All ER 412 at para 20. Sch 21 cl 7 of the Criminal Justice Act 2003 (UK) provides that, for an offender aged under 18 when he or she committed the offence, the appropriate starting point in determining the minimum term is 12 years.
13. Crimes (Sentences) Act 1997 (UK) s 28(5).
14. Powers of Criminal Courts (Sentencing) Act 2000 (UK) s 82A(4).
15. Crimes (Sentences) Act 1997 (UK) s 28.
16. Practice Statement [2002] 3 All ER 412 (31 May 2002) para 23.
17. Practice Statement [2002] 3 All ER 412 (31 May 2002) para 24.
18. Practice Statement [2002] 3 All ER 412 (31 May 2002) para 24.
19. Practice Statement [2002] 3 All ER 412 (31 May 2002) para 24.
20. Practice Statement [2002] 3 All ER 412 (31 May 2002) para 25.
21. Practice Statement [2002] 3 All ER 412 (31 May 2002) para 25.
22. Practice Statement [2002] 3 All ER 412 (31 May 2002) para 26.
23. See Mental Health Act 1990 (NSW) Chap 4, Pt 2, Div 1, especially s 35-37A.
24. See New South Wales Law Reform Commission, Sentencing (Discussion Paper 33, 1996) at para 4.99-4.107; New South Wales Law Reform Commission, Sentencing (Report 79, 1996) at para 10.3-10.8.
25. Veen v The Queen (No 2) (1988) 164 CLR 465.
26. See Crimes (Sentencing Procedure) Act 1999 (NSW) Sch 1; and Sentencing Act 1989 (NSW) s 13A (Note that this Act has been repealed).
27. R v Baker (2002) 130 A Crim R 417 at [82] (Ipp AJA). (The case dealt with aspects of the now repealed Sentencing Act 1989 (NSW)).
28. R v Baker (2002) 130 A Crim R 417 at [82] (Ipp AJA).
