he was over 17 years old and his proximity to 18 years was “However, pertinent. The nature of the Applicant's offences were such that general deterrence was a dominant factor on sentence.” Conclusion When I sentence anyone I constantly refer back to what the High Court said of the sentencing process in Veen No 2: sentencing is not a purely logical exercise, and the troublesome nature of “ … the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment . The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what an appropriate sentence is in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.” Practitioners should do the same. There are many guidelines, yardsticks, rules, tests, principles and statutory requirements but, no fixed rules. In fact, to resurrect a term from my legal youth, only golden rule is there is no golden rule.” The trend to “the elevate general deterrence over other principles is just that; a trend. Obviously, the more objectively serious the offence the more likely a severe sentence will result, but, particularly in relation to children, there is no rule that punishment is the prime sentencing objective. Sentences must ultimately reflect the interests of the community. Our system of law is also a system designed to ensure justice, not just to the offender but to the community as a A sentence submission that enables a judge to meet that objective and advance the child offender’s interests will generally be well received. To reiterate, that requires preparation. Andrew Haesler 18 May 2013
“However, he was over 17 years old and his proximity to 18 years was pertinent. The nature of the Applicant's offences were such that general deterrence was a dominant factor on sentence.” Conclusion When I sentence anyone I constantly refer back to what the High Court said of the sentencing process in Veen No 2: “ … sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment . The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what an appropriate sentence is in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.” Practitioners should do the same. There are many guidelines, yardsticks, rules, tests, principles and statutory requirements but, no fixed rules. In fact, to resurrect a term from my legal youth, “the only golden rule is there is no golden rule.” The trend to elevate general deterrence over other principles is just that; a trend. Obviously, the more objectively serious the offence the more likely a severe sentence will result, but, particularly in relation to children, there is no rule that punishment is the prime sentencing objective. Sentences must ultimately reflect the interests of the community. Our system of law is also a system designed to ensure justice, not just to the offender but to the community as a A sentence submission that enables a judge to meet that objective and advance the child offender’s interests will generally be well received. To reiterate, that requires preparation. Andrew Haesler 18 May 2013
Sentencing-Children-Higher-Courts-2013.docx