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The content on this page was last reviewed on 12 August 2014.

Recent cases alert
Huynh v The Queen; Au v The Queen [2017] VSCA 216 — 27 year old drug trafficking offender not ‘relatively youthful’ and prior conviction for drug trafficking reduced any significance of youth.
DPP (Cth) v MHK [2017] VSCA 157 — youth given less weight in preparatory terrorism offence as offender old enough to know that what he was doing was grossly wrong, to give some thought to enormity of actions he was planning to carry out and to resist the allure of the influence of Islamic State.
DPP (Cth) v Besim [2017] VSCA 158 — offender’s youth given less weight due to objective gravity and serious criminality of preparatory terrorism offence.
Younan v The Queen [2016] NSWCCA 248 — youth not taken into account where psychological and medical reports did not suggest immaturity a factor in commission of offence.
R v Besim [2016] VSC 537 — youth important sentencing consideration in terrorism offences where offender exposed to extremist ideology at an impressionable age.
R v Curtis (No 3) [2016] NSWSC 866 — youth relevant but not significant as offender operated in adult sphere of business and was educated and worldly.
*Guidance from these cases has not yet been incorporated into the commentary

1. Overview

Section 16A(2)(m) of the Crimes Act 1914 (Cth) requires a court to take into account various factors personal to the offender including their age.

Section 16A
(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:

(m) the character, antecedents, age, means and physical or mental condition of the person

2. Offenders under the age of 18 Years

Courts sentencing federal offenders under the age of 18 years must also consider s 20C of the Crimes Act 1914 (Cth). See further Child or Young Person.

3. Youthful Offenders over the age of 18

At common law, courts have placed significant emphasis on an offender’s youth. For example, in R v Mills [1998] VSC 241; 4 VR 235, 241, Batt JA (with whom Phillips CJ and Charles JA agreed) stated:

Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court when that matter properly arises.

All Australian jurisdictions place broadly similar emphasis on the youth of an offender: see, eg, Mamarika v Murphy and Anor [2007] NTSC 58, [80] (Olsson AJ); Ugle v Western Australia [2012] WASCA 104,  [71] (Buss JA, Pullin JA agreeing), R v McGaffin [2010] SASCFC 22, [69] (White J), R v Hearne [2001] NSWCCA 37, [22]–[25] (Powell JA, Hulme and Dowd JJ); R v Kuzmanovski; Ex parte Attorney-General (Qld) [2012] QCA 19, [16] (Fraser JA, Muir and Chesterman JJA agreeing); Garcie v Lusted [2014] TASSC 27, [10]-[13], (Pearce J).

The treatment of youth as a mitigating factor at the Commonwealth level has been demonstrated in R v Leask [2013] WASCA 243; Stark v The Queen [2009] WASC 376.  

In Azzopardi v The Queen [2011] VSCA 372, the Court reaffirmed the general principles in R v Mills [1998] VSC 241 1 and noted that three main principles underlie the ‘general primacy of an offender’s youth as a sentencing consideration’. 2

The three main principles, which relate to issues of maturity, prospects of rehabilitation, and the effects of incarceration in adult prison, were set out by Redlich J in Azzopardi v The Queen [2011] VSCA 372, [34]-[36] (Coghlan and Macaulay JJA agreeing). To paraphrase the judgment these principles are:

  1. Young offenders being immature are therefore more prone to ill-considered or rash decisions, and may lack the degree of insight, judgment and self-control possessed by an adult. Further, they may not fully appreciate the nature, seriousness and consequences of their criminal conduct; 3
  2. Rehabilitation of young offenders is one of the great objectives of the criminal law, and courts recognize the potential for young offenders to be rehabilitated. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behavior than adults. There is a community interest in the effective rehabilitation of young offenders, as the community will be protected from further offending. 4
  3. Courts sentencing young adults are cognisant that the effect of incarceration in an adult prison on a young offender would more likely impair, rather than improve, the offender’s prospects of successful rehabilitation, due to the potential for exposure to corrupting influences and the exacerbation of anti-social tendencies. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community. 5

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3.1 Youthful Offenders and Rehabilitation

Emphasis is placed on rehabilitation when sentencing youthful offenders. 6

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 than general deterrence in the case of a youthful offender.

See further Rehabilitation.

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3.2 Youth may be deemed to carry diminished mitigatory weight

Courts have noted that there are cases in which factors such as youth and rehabilitation would take a ‘back seat’ to other sentencing considerations:

For example, where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced: Azzopardi v The Queen [2011] VSCA 372, [44] (Redlich JA, Coghlan and Macaulay JJA); IE v The Queen [2008] NSWCCA 70, [16] (Latham J, Spigelman CJ and Hulme J agreeing). 7

In DPP v Lawrence [2004] VSCA 154, Batt JA stated at [22]:

… with an offence as serious as intentionally causing serious injury and particularly with an instance of it as grave as this one, the offender’s youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant in the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence. As has been said, youth and rehabilitation must be subjugated to other considerations. They must, as the President said in Wright, take a “back seat” to specific and general deterrence where crimes of wanton and unprovoked viciousness (of which the present is an example) are involved, particularly where (again as here) the perpetrator has been given previous chances to control his aggressive habits. This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation of the conduct must be emphasised.

In Azzopardi, it was noted that where a crime is prevalent among a particular group, such as young offenders, that fact may require that deterrence receive particular emphasis, with a corresponding reduction in the emphasis to be given to a mitigating circumstance such as age. 8

However the court in Azzopardi, stated that only in circumstances of the gravest criminal offending and when there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished. 9

The emphasis given to rehabilitation rather than general deterrence and retribution may be moderated when the young person has conducted him or herself in the way that an older person might conduct him or herself. 10 In determining whether a young offender has engaged in ‘adult behaviour’ the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence. 11

For example, in Hartman v The Queen [2011] NSWCCA 261, the Court sentenced a 23-year-old offender under the Crimes Act 1914 (Cth) for offences of insider trading and communicating inside information, contrary to the Corporations Act 2001 (Cth). The Court stated that it placed no weight on the offender’s youth or immaturity, noting at [93]:

We do not agree, however, that, in the circumstances of this matter, the applicant’s youth and relative immaturity have any role to play in downgrading or lessening the importance of general deterrence. We recognise that in some cases these factors may be both relevant and important on the issue (MS2 and Ors v Regina [2005] NSWCCA 397; (2005) 158 A Crim R 93 per Simpson J at [9]; Adams J at [15]-[16]; BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 per Hodgson JA at [3]-[6], but see, Johnson J at [74]-[75]; R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451 at 458; KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at 577-578). We do not consider in the present matter that they are relevant and important in that way. The applicant was operating in the adult sphere of business and commerce in every respect, and of course he was himself an educated and worldly young adult in every sense of the word. The Court cannot lose sight of the need to deter young adults from taking the significant financial advantages offered by the contemporary business world in circumstances where, at the same time, they reject the legal and moral constraints properly imposed upon their commercial behaviour (emphasis added).

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3.3 Age required to be considered ‘youthful’

Courts sentencing federal offenders have been flexible in their approach to ‘youthful’ offenders and have held that the mitigating effect of age may persist well beyond eighteen years of age. For example, in R v Evans [2013] NTCCA 9, the 26-year-old offender was treated as a youthful offender with good prospects of rehabilitation. 12

In R v Chhom Nor [2005] VSCA 46, the 32-year-old offender argued that the sentencing Judge had failed to give sufficient weight to his youth when sentencing for drug trafficking offences. In dismissing that ground of appeal, the court observed that it was ‘generous’ for the trial judge to have treated the offender as youthful. 13

In the drug importation case of R v Nguyen; R v Pham [2010] NSWCCA 238, [72] Johnson J (Hulme J and MacFarlan JA agreeing) stated that a 32-year-old offender was not young, and therefore ‘the immaturity of youth cannot be claimed as a factor bearing upon their transgressions’.

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4. 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, but have emphasized it should not override the gravity of the offence and the need for deterrence. 14

In Ljuboja v The Queen [2011] WASCA 143, while sentencing under the Crimes Act 1914 (Cth), the court reviewed the principles applicable to elderly offenders, stating at [102]-[103]:

Australian authorities have established that advanced age is a relevant consideration in determining whether a sentence will be crushing. The rationale is that each year of a sentence represents a substantial proportion of the period of life which is left to an offender of advanced age… However, whether and, if so, to what extent leniency should be given to an offender of advanced age, depends on all of the facts and circumstances of the particular case. As Steytler P noted in Guylas (Gulyas v The State of Western Australia [2007] WASCA 263), the authorities emphasise that age is only one factor in the sentencing process, and that advanced age can never be a justification for a sentence which is not fairly proportionate to the offence or otherwise inappropriate. See also Hunter (103) (R v Hunter (1984) 36 SASR 101). An offence may be so serious that humanitarian considerations cannot be accommodated.

In Ljuboja, the court dismissed an appeal against a 25 year term imprisonment with a minimum of 16 years for serious drug charges, where at the time of sentencing the offender was 60 years old. The court stated at [116]-[117]:

The imposition of condign punishment was justified and necessary. As the sentencing judge noted, the appellant’s prospects of rehabilitation were poor. The most significant mitigatory factors were his age and his pleas of guilty. However, the extent of any leniency that could be extended to the appellant on account of his age was limited by the very serious nature of his offending.

In Mokbel v The Queen [2013] VSCA 118, the Court dismissed an appeal against a 30 year federal sentence imposed on a 46-year-old for serious drug trafficking offences. The offender was also suffering from ill-health. 15

In considering the argument that such a sentence was manifestly excessive or ‘crushing’ 16 the court cited the principles listed in the Victorian case of R v R L P [2009] VSCA 271, stating at [114]:

The age of an offender is always a relevant consideration and may, in particular cases, be of considerable significance. But it will never be determinative: DPP v Kien [2000] VSC 376.
In R v R L P (2009) 213 A Crim R 461 this Court was considering the case of an offender who was 77 when sentenced. The Court summarised the applicable propositions as follows:

We approach the conjunction of the appellant’s advanced years and ill health with these propositions in mind
1. The age and health of an offender are relevant to the exercise of the sentencing discretion.
2. Old age or ill health are not determinative of the quantum of sentence.
3. Depending upon the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody.
4. It is a weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody.
5. Other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect that the offender may not live to be released and that the offender’s ill health will make his or her period of incarceration particularly onerous.
6. Just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition notwithstanding the age and ill health of the offender.
7. Old age and ill health do not justify the imposition of an unacceptably inappropriate sentence: R v R L P (2009) 213 A Crim R 461, 476 [39].

In R v Hall (No 2) [2005] NSWSC 890, and R v Loiterton [2005] NSWSC 905, emphasis was placed on the old age of offenders convicted of offences under the Corporations Act 2001 (Cth). In both instances the Judge recognised that the defendants, aged in their 60s, had high prospects of rehabilitation and did not require specific deterrence. 17

However, in R v Knight [2004] NSWCCA 145, [33] Howie J (Grove and Simpson JJ agreeing) emphasized that advanced age and ill health cannot, generally speaking provide an excuse for the commission of criminal activity and does not necessarily warrant leniency. The offender in Knight had committed offences including defrauding the Commonwealth and dishonestly obtaining a financial advantage from a Commonwealth entity. The Court stated at [33]:

In a case such as this where the applicant has a record for serious fraudulent conduct over a lengthy period of time and these present offences continued unabated until his arrest, these subjective considerations can be given little, if any, weight.

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4.1 Courts consideration of  ‘advanced age’

In R v Sellars [2010] NSWCCA 133, [16] the Court noted that 51 years of age was not ‘an age where his advancing years were of any particular significance’.

Conversely, in Mokbel v The Queen [2013] VSCA 118, the age of the 46-year-old offender was considered relevant, where the offender was also suffering from ill-health. The offender had heart disease, and it was evidenced that as a result, he had a life expectancy of 24 years, 11 years less than a person without the health condition. 18

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  1.  See also R v Curtis [2013] ACTSC 291. 
  2.  Azzopardi v The Queen [2011] VSCA 372, [34] (Redlich JA, Coghlan and Macaulay JJA agreeing)
  3.  Azzopardi v The Queen [2011] VSCA 372, [34] (Redlich JA, Coghlan and Macaulay JJA agreeing)
  4.  Azzopardi v The Queen [2011] VSCA 372, [35] (Redlich JA, Coghlan and Macaulay JJA agreeing)
  5.  Azzopardi v The Queen [2011] VSCA 372, [36] (Redlich JA, Coghlan and Macaulay JJA agreeing)
  6.  See, eg, R v Evans [2013] NTCCA 9, [44] for emphasis on rehabilitation in the federal context.
  7.  See also R v Hearne [2001] NSWCCA 37, [24] where the Court noted: ‘… in none of the cases is it suggested that the weight to be given to the element of youth varies depending on the seriousness of the offence… Of course that is not to say that other factors such as deterrence or retribution may not have a relatively greater part to play in the more serious offences than they do in less serious ones.’ See further R v Mules [2007] QCA 47, [21] where McCurdo P noted: ‘This Court’s decision in R v Horne [2004] QCA 13, a case to which her Honour unfortunately was not referred, makes clear that youthful offenders with limited criminal histories and promising prospects of rehabilitation who have pleaded guilty and cooperated with the administration of justice, even where they have committed serious offences like these, should receive more leniency from courts than would otherwise be appropriate.’
  8.  Azzopardi v The Queen [2011] VSCA 372, [42] (Redlich JA, Coghlan and Macaulay JJA). However, the Court found in Azzopardi v The Queen [2011] VSCA 372, [43] that there was ‘no evidence to establish that such crimes are more prevalent amongst young offenders and … it should not be assumed that crimes of violence in public places are predominantly committed by youthful offenders, or that youthful offenders as an age group will represent a high proportion of those who commit acts of violence in such places.’
  9.  Azzopardi v The Queen [2011] VSCA 372, [44] (Redlich JA, Coghlan and Macaulay JJA).
  10.  KT v The Queen [2008] NSWCCA 51, [25] (McClellan CJ at CL); R v Adamson [2002] NSWCCA 349, [32]-[34] (Beazley JA, Bell J agreeing); R v Voss [2003] NSWCCA 182, [16] (Grove J, Whealy and Shaw JJ agreeing). KT v The Queen [2008] NSWCCA 51 was cited in the Commonwealth case of Hartman v The Queen [2011] NSWCCA 261, [93].
  11.  KT v The Queen [2008] NSWCCA 51, [25] (McClellan CJ at CL); Ugle v Western Australia [2012] WASCA 104, [71]-[72] (Buss JA, Pullin and Mazza JJA agreeing).
  12.  R v Evans [2013] NTCCA 9, [44]. See also R v Leask [2013] WASCA 243. 
  13.  R v Chhom Nor [2005] VSCA 46, [29] (Chernov JA, Winneke P and Cummins AJA agreeing).
  14.  R v Gordon [2012] QCA 334, [40] (White JA, Gotterson and Holmes JJA agreeing), citing R v Finlay [2007] QCA 400. 
  15.  See also Physical Condition. 
  16.  See also Totality Principle. 
  17.  R v Hall (No 2) [2005] NSWSC 890, [118]; R v Loiterton [2005] NSWSC 905, [188].
  18.  Mokbel v The Queen [2013] VSCA 118, [111].