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Last Updated 12 March 2010
Commentary on Age as a Sentencing Factor under the Crimes Act 1914 (Cth)
Section 16A(2)(m) requires a court to take into account various factors personal to the offender including their age:
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(2)
In addition to any other matters, the court must take into account
such of the following matters as are relevant and known to the
court: |
The following are some examples where a court has taken age into consideration as a mitigating factor in sentencing federal offenders:
Offenders under the age of 18 Years
Courts sentencing federal offenders under the age of 18 years must also consider section 20C of the Crimes Act 1914 (Cth). For commentary on this provision click here.
Youthful Offenders
At common law, courts have placed significant emphasis on an offender’s youthful age.
In R v Mills [1998] VSC 241; 4 VR 235, 241, Batt JA (with whom Phillips CJ and Charles JA agreed) stated:
Emphasis is placed on rehabilitation when sentencing youthful offenders. In Lahey v Sanderson [1959] Tas SR 17, 21, Bunbury CJ indicated that the reformation of a young offender is an important and potentially dominant consideration in sentencing. Similarly, in R v Mills [1998] VSC 241, 4 VR 235, 241, Batt JA held that rehabilitation is usually more important that deterrence in the case of a youthful offender.Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court when that matter properly arises.
See further Rehabilitation.
Courts sentencing federal offenders have been flexible in their approach to young offenders or ‘youthful’ offenders. The mitigating effect of age may persist well beyond eighteen years of age.
In R v Chhom Nor [2005] VSCA 46; (2005) 152 A Crim R 118, the offender, who was aged 32 at sentencing, appealed on several grounds including failure by the sentencing judge to give sufficient weight to his youth. In dismissing the ground of appeal, Chernov JA (with whom Winneke P and Cummins AJA agreed) observed at [29] that it was ‘generous’ for the trial judge to have treated the offender as youthful.
Conversely, in R v Stanbouli [2003] NSWCCA 355; (2003) 141 A Crim R 531, [175] Carruthers JA (with whom Spigelman CJ agreed), considered the fact that the respondent was ‘relatively young by modern standards’ a determinative factor when resentencing the 30 year old offender.
Elderly Offenders
At common law, the fact that an offender is elderly may mitigate sentence. In R v Hunter (1984) 36 SASR 101, 103, King CJ said of the 73 year old offender:
A sentencing judge cannot overlook the fact that each year of the sentence represents a substantial proportion of the period of life which is left of him.
In sentencing federal offenders courts have taken old age into account. For example, in R v Hall (No 2) [2005] NSWSC 890 and R v Loiterton [2005] NSWSC 905; (2005) 54 ASCR 728 emphasis was placed on the old age of offenders convicted of offences under the Corporations Act. In both instances the judge recognised that the defendants, aged in their 60s, had high prospects of rehabilitation and did not require specific deterrence: R v Hall (No 2) [2005] NSWSC 890, [118]; R v Loiterton [2005] NSWSC 905; (2005) 54 ASCR 728, [188].