R v VL

The appellant sought leave to appeal against sentence.  The proposed grounds included that the learned sentencing judge failed to take into account that, by operation of s 276B Youth Justice Act 1992, the appellant would serve part of his sentence in an adult correctional facility.  The court held that this cannot constitute, ordinarily, a relevant mitigating feature.  Leave to appeal was refused.

Sofronoff P and Fraser JA and Mullins J

7 December 2018

The applicant pleaded guilty to one count of doing grievous bodily harm and was sentenced to detention for two years with an order the he be released after serving 50%. [13]. The applicant was aged 16 at the time of the offending and 17 years and nine months at sentence.  The offending involved the applicant stabbing his pregnant 15-year-old partner four times while she slept, including in the abdomen.  The assault was apparently motivated by her refusal to have an abortion. [1]–[4].

The applicant sought leave to appeal against sentence on two grounds.  First, that the learned sentencing judge failed to take into account that he would serve part of his sentence in an adult correctional facility.  Second, that the sentence was manifestly excessive [14].

By operation of s 276B of the Youth Justice Act 1992, the applicant was to be transferred to an adult correctional facility when he turned 18. [16].

The lead judgment of Sofronoff P (Fraser JA and Mullins J agreeing) notes the overriding principle under s 276F(1), “that it is in the best interests of the welfare of all detainees at a detention centre that persons who are 18 years and 6 months or older are not detained at the centre”. [19]. The transfer of adult detainees is one of the normal incidents of a sentence of detention and exists for the benefit of detainees who are aged under 18 years. [21]. His Honour concluded that the operation of s 276B cannot constitute, ordinarily, a relevant factor in mitigation of sentencing and that the learned sentencing judge did not err in that regard. [23]–[25]. The reasons observe:

“There may be reasons in the case of a particular offender why a period of imprisonment in an adult facility will constitute an extra hardship that ought to be taken into account in fixing the appropriate penalty. However, the operation of s 276B itself does not constitute a factor in mitigation of a sentence of detention that is otherwise the proper sentence that has been imposed, as the statute requires, because there is no other alternative.” [24].

Therefore, the court rejected both proposed grounds of appeal and leave to appeal was refused. [26].

K Gover of Counsel