R v BDY
[2023] QCA 40
•17 March 2023
SUPREME COURT OF QUEENSLAND
CITATION:
R v BDY [2023] QCA 40
PARTIES:
R
v
BDY
(applicant)FILE NO/S:
CA No 16 of 2022
DC No 20 of 2021DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Childrens Court at Ipswich – Unreported, 10 December 2021 (Lynch KC DCJ)
DELIVERED ON:
17 March 2023
DELIVERED AT:
Brisbane
HEARING DATE:
10 June 2022
JUDGES:
McMurdo and Bond JJA and Flanagan J
ORDER:
Application refused.
CATCHWORDS:
CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – RELEVANT FACTORS – GENERAL PRINCIPLES – where the applicant, aged 17 years and 8 months, broke into the complainant’s home and assaulted the complainant until she lost consciousness – where the applicant then slashed the child complainant across the ear, face and throat with broken glass – where the applicant was sentenced under the provisions of the Youth Justice Act 1992 (Qld) – where the sentence amounted to 6 years detention and due to special circumstances the applicant was to be released after serving 50 per cent of the detention order – where the applicant seeks leave to appeal the sentence – whether the sentence was manifestly excessive – whether the sentencing judge erred in finding the offence was premeditated – whether the sentence imposed did not adequately reflect the applicant’s mental health condition – whether the recording of a conviction was manifestly excessive
Youth Justice Act 1992 (Qld), s 150, s 184
R v JO[2008] QCA 260, cited
R v Minniecon [2017] QCA 29, cited
R v Patrick (a pseudonym); Ex parte Attorney-General (Qld) (2020) 3 QR 578; [2020] QCA 51, cited
R v SDK (2020) 6 QR 568; [2020] QCA 269, citedCOUNSEL:
C R Smith for the applicant
E L Kelso for the respondentSOLICITORS:
Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent
McMURDO JA: I agree with Bond JA.
BOND JA: On 10 December 2021 the applicant was convicted on her own plea of guilty of having committed the following offences on 9 November 2020:
(a)Count 1: she entered the dwelling of ERR with intent to commit an indictable offence in the dwelling with the aggravating features that the entry was means of a break and the applicant used actual violence and damaged property;
(b)Count 2: she unlawfully assaulted ERR and did her bodily harm; and
(c)Count 3: with intent to do grievous bodily harm to KJL, she unlawfully did grievous bodily harm to KJL.
The applicant’s conduct involved grave offending. ERR, aged 53, was the estranged mother of the applicant’s boyfriend, DAL, aged 32. KJL, aged 7, was DAL’s daughter, by a former partner. She was in the custody of ERR. The applicant, herself aged only 17 years and 8 months, approached ERR at her home in breach of a domestic violence order which had been obtained against her and ignored ERR’s instruction to leave. When ERR barricaded herself and KJL inside a room, the applicant broke into ERR’s home, forced her way into the room, assaulted ERR until she lost consciousness and then slashed KJL with broken glass causing grave damage to her ear, face and throat.
Given her age at the time of the offending, the applicant was sentenced under the provisions of the Youth Justice Act 1992 (Qld) and necessarily in accordance with the youth justice principles set out in that Act. Amongst other things, that meant that the sentencing judge was required to have regard to the principle that a child should be detained in custody for an offence only as a last resort and for the least time that is justified in the circumstances.
The sentencing judge imposed the following sentences:
(a)for count 1: 12 months detention, no conviction recorded;
(b)for count 2: 6 months detention, no conviction recorded;
(c)for count 3: 6 years detention, conviction recorded;
(d)all detention orders to be served concurrently;
(e)as there were special circumstances the child be released from custody after serving 50 per cent of the detention order;
(f)the period in custody while on remand for the offences would be counted as part of the period of detention that the applicant was required to serve, in accordance with s 218 of the Youth Justice Act 1992.
The applicant now seeks leave to appeal against sentence to advance the following grounds of appeal:
(a)Ground 1: the sentence was manifestly excessive in all the circumstances.
(b)Ground 2: the sentencing judge erred in finding that the offending was premeditated.
(c)Ground 3: the sentence imposed did not adequately reflect the applicant’s mental health condition.
(d)Ground 4: the recording of a conviction on count 3 rendered the sentence manifestly excessive.
For reasons which follow none of those grounds would succeed. The application for leave to appeal should be refused.
Circumstances of the offending
The circumstances of the offending were detailed in an agreed statement of facts.
The applicant was in a de facto relationship with her much older boyfriend DAL, aged 32. They had a child together, born June 2020, but that child had been taken into custody by the Department of Child Safety. ERR had full custody of DAL’s daughter, KJL, and had applied to become carer for the infant child of the applicant and DAL.
Consequent upon complaints made by ERR and KJL concerning incidents of domestic violence, the applicant and DAL were made the subject of protection orders under the Domestic and Family Violence Protection Act 2012 (Qld). DAL was required to be of good behaviour towards his mother and his daughter; was prohibited from approaching within 100 metres of their residence; and was prohibited contact of any kind except where permitted by court order. Similarly, the applicant was required to be of good behaviour towards DAL’s mother and daughter and was prohibited from entering, attempting to enter or remaining at their residence. She had been present in court when the order was made against her.
Shortly before 6 pm on the evening of 9 November 2020, the applicant attended ERR’s residence in breach of the protection order. She and ERR had a brief conversation in which she accused ERR of causing Child Safety to take custody of her infant child. ERR told her to leave and told her that she was breaching a protection order. She responded, “Fuck the court order, I've come to talk”.
Meanwhile, DAL approached his mother’s residence and she yelled for him to leave. He stood about 20 metres away across the road and repeatedly yelled to the applicant “Just slit their fucking throats, I’m coming to punch you in the mouth you fucking dog. [The applicant’s first name] just slit their throats”.
His mother fled inside her residence locking the front door and frantically closing and locking doors and windows. She called triple zero.
The applicant pulled and kicked at the front door trying to get access. She yelled at ERR that she was “going to kill her”. ERR grabbed KJL and they hid in a bedroom and attempted to barricade themselves by pulling a piece of furniture against the bedroom door. In the meantime, the applicant smashed through a window in the rear living room storming down the hallway armed with a piece of glass yelling “I’m going to kill you and if I can’t get at you, I’ll get your granddaughter. If we can’t have [naming her own natural daughter], no one can”.
The applicant forced entry into the bedroom pushing ERR in the chest causing her to fall backwards and hit her head. She yelled “You took my child I’m going fucking take yours” and “Payback’s a cunt. I’m going to slit your throat”. She punched ERR in the face, smacked her head into drawer handles and once ERR was on the ground, jumped on her head until ERR lost consciousness. She then turned and swung the large piece of glass in a slashing motion at KJL’s face causing a severe laceration to her chin and almost severing her left ear in half.
The applicant told ERR “I've slit her fucking throat and I'm coming back to fucking slit yours”. Meanwhile as one of ERR’s neighbours came to her assistance, the applicant pushed past fleeing through the front door and down the street. ERR and KJL sought refuge at neighbours while awaiting assistance from emergency services. KJL was bleeding profusely.
Eventually emergency services arrived and transported ERR and KJL to hospital. The applicant’s assaults on ERR led to her reporting ongoing pain and tenderness to her neck and thoracic spine area and ongoing headaches three days after the offending. KJL was more seriously injured. She had severe laceration to the ear canal and the skull bone behind the ear, causing the neck muscle to be partially severed. She had a superficial laceration under her chin. A paediatric specialist later opined that if the injury to her ear had not been surgically repaired it would have resulted in significant cosmetic disfigurement and may have impacted upon her hearing function.
Later that evening the applicant was apprehended by police. She was not offered the opportunity to participate in a recorded interview with police due to the time of night and the inability to locate a suitable support person. She was remanded in custody.
The sentencing judge received victim impact statements on behalf of both ERR and KJL. They revealed that each of them suffered terrifying experiences which scarred them both physically and emotionally. A letter from a psychologist revealed that they had suffered symptomology satisfying the criteria for post-traumatic stress disorder as a direct consequence of the assault. Both of them struggled to leave their home. Their social life was practically non-existent. KJL sometimes told ERR that she felt scared when she knew she had to go to unfamiliar places. They had repeated and unwanted memories of the event.
The sentencing remarks
The sentencing judge had received written and oral submissions from the Crown and on behalf of the applicant on 9 December 2021. He adjourned the matter overnight and sentenced the applicant the next day.
His Honour referred to the facts of the offending. He then noted that although the applicant was to be sentenced under the Youth Justices Act, due to her age at the time of sentencing she would be required to serve her sentence in an adult prison.
His Honour noted that she had been dealt with in the Children’s Court for minor offences in 2019 and 2020 but indicated that he did not consider that history to be relevant.
His Honour noted 395 days in pre-sentence custody which would be automatically counted as part of any sentence of detention.
His Honour referred to aspects of the contents of the following reports, which were before him:
(a)a psychologist’s pre-sentencing court report dated 20 May 2021;
(b)a youth justice case worker’s pre-sentence report dated 16 July 2021; and
(c)a consultant psychiatrist’s report on the applicant dated 14 November 2021.
The sentencing judge identified the applicant’s antecedents as expressed in the pre-sentence reports. In particular he noted that even as a young child her circumstances were difficult and that her family and her care were the subject of concerns by the relevant Child Safety department. The applicant had been educated to partway through Grade 10, but her education had been disrupted by periods of suspension due to significant conflicts with other students. She left school and worked for a period before moving in with her sister. She later moved in with DAL and had a child with him. The child was later taken into care. Her family did not support her relationship with DAL. In that relationship she was exposed to and was the victim of domestic violence and drug and alcohol abuse. She herself was a user of methamphetamine. He noted that she was intoxicated at the time of the offending, having used methamphetamine and alcohol. She had said that she had suffered a period of five days sleeplessness prior to the offending. She claimed to have a limited memory of the events.
The sentencing judge identified material found in the reports he had received which sounded upon the degree of premeditation involved in the applicant’s offending. Based on that information and inferences which he drew from the agreed statement of facts, he found there was some arrangement between the applicant and DAL to go to ERR’s residence and likely assault both ERR and KJL. He found that she had “deliberately inflicted harm, having broken into the residence to achieve that result”. His Honour found that the applicant was influenced by DAL and that her behaviour was disinhibited by reason of her use of substances.
The sentencing judge found that the material did not permit him to conclude that the applicant suffered from a borderline personality disorder, although he found that it was possible that she did. However, he observed that he did not think that question was a feature which significantly affected the appropriate penalty because such a disorder might mark the applicant as someone more intractable to treatment, who therefore might remain at risk of behaving in an antisocial way and who presented a danger to others.
His Honour considered that the applicant had limited insight. He noted as mitigating features the applicant’s pleas of guilty had saved ERR and KJL from having to give evidence, her expression of remorse, and that she had taken steps to address her mental health and drug use in detention and reengaged in education.
His Honour noted that he was required under the Youth Justice Act to take account of the principles listed in the charter of youth justice principles, amongst other things, and referred specifically to principles 9, 13, 17 and 18. His Honour also referred to s 150 of the Youth Justices Act and to the need to have regard to general sentencing principles.
He noted the serious impact of the offending upon the victims and the need to have a fitting proportion between the sentence he would impose and the offences. He observed –
“In this case, it can’t be doubted that this is very serious conduct; deliberately smashing your way into a residence for the purpose of causing harm and serious harm to the occupants and carrying out that threat in such a cold blooded and callous way and, particularly, in respect of a seven year old child. Of course, both of the victims were injured as a result. I regard the seriousness, the nature and seriousness of the offence as a very significant feature in determining an appropriate penalty.”
He noted he was required to regard a non-custodial order as better than detention in promoting the applicant’s ability to reintegrate into the community and made a second mention of the fact that a detention order should be imposed only as a last resort and for the shortest appropriate period.
He considered the possibility of a referral for a restorative justice process but given the very serious nature of the offending, her relationship to the victims and the impact of the offending on the victims thought it was not appropriate to do so.
He had regard to the submissions of the parties concerning sentence, noting that the prosecution had submitted that a detention period of six years was appropriate with a release after a period of 60 per cent and that a conviction should be recorded at least for count 3. He noted that on behalf of the applicant it had been submitted that a detention period of four years was appropriate with release after serving a period of between 50 and 60 per cent of that term. He noted that the applicant had submitted that a conviction not be recorded.
In relation to the question of recording a conviction his Honour referred to the decision of the R v Patrick (a pseudonym); Ex parte Attorney-General (Qld) (2020) 3 QR 578 and noted that some offences were of such grave seriousness that they undoubtedly warrant a significant term of detention even for a young child. He thought that although the applicant was still a child, her age at the time of offending placed her close to the time when she would no longer be termed a child.
He found that the nature and seriousness of the offences were so grave that a significant term of detention could not be avoided. He concluded that the period of six years detention was the minimum period of detention that could be ordered in the circumstances of the case. He stated that he had considered and rejected the proposition that it might be appropriate to order that the period of detention be served by a conditional release order on the grounds that such an order would involve supervision only for a period of a few months which would be completely inadequate to recognise the enormity of the applicant’s conduct.
He stated that a number of features in the applicant’s favour warranted forming the view that special circumstances existed such that he should order the applicant’s release after 50 per cent of the term of the detention order. He expressed the following inclusive list of those features:
(a)pleas of guilty;
(b)cooperation in the administration of justice and saving the complainants from having to give evidence;
(c)remorse;
(d)lack of relevant criminal history;
(e)subsequent engagement in education and engagement in treatment for mental health and drug abuse issues;
(f)expressions of intention to remain drug free and engage in treatment and not commit offences;
(g)expressions of intention to quality herself for employment and to engage in employment;
(h)that she will required to serve the period of custody in an adult facility;
(i)that this was her first time in custody; and
(j)that during the period which she had been in custody had suffered onerous restrictions because of the health pandemic.
He then specifically considered the question of recording a conviction. He considered the nature and circumstances of the offence, her age, the lack of previous convictions, the impact of recording a conviction on chances of rehabilitation and on finding or obtaining employment but noted that this was very serious offending and that she was 17 at the time of the offending. He felt that the circumstances favouring not recording a conviction were outweighed by the seriousness of the offending and proceeded to record a conviction against count 3.
Proposed ground 2 – error in finding that the offending was premeditated
The impugned findings by the sentencing judge concerning premeditation are identified in bold print in the following two passages from the sentencing remarks:
(a)First:
“Anyone hearing the circumstances of the commission of these offences could not be but shocked at the apparent callousness of the attack upon not just your former partner’s mother, but his seven year old daughter. You expressed an intention before harming either of them to kill them, and you are not charged with an offence of attempted murder but, rather, one of causing grievous bodily harm to the child with intent to cause grievous bodily harm; you certainly carried out that intention. In addition, you carried out a savage attack upon that child's grandmother. The circumstances, to me, suggest that there was some arrangement between you and your then partner to go to the residence and to confront and likely assault both his daughter and his mother.
You admitted as much to the psychologist, although you denied it to the author of the pre-sentence report and the psychiatrist. The circumstances, as contained in the schedule of facts, are strongly supportive that there was such a plan that you engaged in. That would tend to suggest that you were the instrument by which your then partner sought revenge for his own purposes against his mother and daughter. That you were influenced by him seems to me without question, and that your behaviour was also disinhibited by reason of your use of substances also seems to me obvious. You have a long history of dysregulation of in terms of your own behaviour.”
(b)Second:
“It seems to me that the nature and seriousness of the offences in this case is so grave that a significant term of detention cannot be avoided. Whilst the sentences imposed in cases I have been referred to have been of use, generally speaking, as a yardstick, in the end, the appropriate penalty to be imposed here must depend upon the circumstances of this offending. And of course, that means, taking account of your circumstances as part of that exercise. The offences are, as I have noted, gravely serious. You deliberately inflicted harm, having broken into the residence to achieve that result. You caused a very serious injury to the young child, and although it might be said that that injury itself is not a permanent one or does not result in a disability, clearly, it was very significant and, also, it was something which you intended to achieve, that is, to cause the child grievous bodily harm.”
It is convenient to deal first with the second impugned finding. In my view any criticism was misconceived. It was open to the sentencing judge to find that the applicant broke into the residence to inflict harm and that the harm which was inflicted was inflicted deliberately. That finding was justified by the record in the agreed statement of facts of what was said and done before, during and after breaking into the residence: see paragraphs [12] to [16] above.
In order to consider the first impugned finding, it is necessary to identify the relevant aspects of the evidence, apart from such inferences as might be drawn from the agreed statement of facts and in particular what was said and done before, during and after breaking into the residence.
The psychologist’s report recited the applicant’s account of the offending in the following terms:
“9.[The applicant’s] account of facts was largely consistent with the statement of facts, however she reported being under the influence of alcohol, methamphetamines and marijuana.
10.She reported that her ex-boyfriend had formulated the idea to break into his family home and threaten his mother. She reported feeling pressured to engage in this behaviour at the time.
11.[The applicant] reported her ex-partner started yelling and abusing his family from outside the house, which she reported spurred her on and recalled feeling suddenly angry and smashing a glass bottle.
12.She recalled picking up a piece of broken glass and assaulting the adult victim, and then slicing the child victim's face with the glass.
13.Upon realisation of what she had done she went to find her ex-partner, who reportedly advised her to run and she recalled running in the opposite direction to him.
14.[The applicant] demonstrated remorse and guilt for what she had done, she consistently reported being unsure as to why she did something like that, and demonstrated understanding surrounding the seriousness of the offence.”
It may be observed that the course of events as recorded in the agreed statement of facts is consistent with the record of events related to the psychologist at [10] and [11] above.
The youth justice case worker, on the other hand, who had been briefed with the psychologist’s report, recorded the following concerning the applicant’s account of the offending:
“In relation to the offences before the court, [the applicant] articulated to the author that she and her partner had an argument prior to the offending, and this was the reason she attended the address of the victims. [The applicant] advised the author she could not remember what the argument was about or what she intended to do upon arrival at the address of the victims. [The applicant] stated that her memory was impaired due to heavy substance use at the time of offending but advised the offence was not premeditated or planned. In direct contradiction to this, the [psychologist’s report] depicts [the applicant] providing information that suggests her ex-partner formulated the idea to break into the family home and that [the applicant] felt pressured to engage in the offence. Further that [the applicant] recalled the offence and advised her ex-partner was yelling abuse from outside the victim's address, [the applicant] was also able to recall smashing a glass bottle and using this to threaten the adult victim and proceed to cut the child victims face. Despite the author challenging [the applicant] on the disparity in regards to her recollection of the offences, [the applicant] refused to elaborate on her memory of the offence taking place with the pre-sentence report author.”
The psychiatrist, who had not been briefed with the psychologist’s report, recorded the account of the applicant in these terms:
“[The applicant] was familiar with the nature of her criminal charges.
[The applicant] explained that she was at a house of a family friend that lived in the neighborhood of the alleged victims. She recalled she was in the kitchen area drinking and doing drugs. Her partner [DAL] was with her, as well as her friend. [DAL] was also using amphetamines and smoking cannabis. [The applicant] stated that her ex-partner [DAL] was much older than her (aged 33).
An argument ensued between [the applicant] and her partner [DAL]. She swore at him and said that she was leaving. She was angry when she passed [DAL’s] mother’s house. She turned around and saw [DAL] following her. She said:
“I carried on talking to myself when I saw the house. Something switched in my head. It was triggered by my and [DAL’s] past. [DAL] always had control over me. I went insane and yelled at him “f***ing idiot”. Then I grabbed a bottle of beer and jumped over the fence”.
[The applicant] did not deny breaking into the house and assaulting [DAL’s] mother and daughter with a piece of broken glass. She said she could not explain this outburst of violence. She said she was not provoked by the alleged victims and was not angry at them. She was however under the influence of amphetamines. She said (emphasis added):
“Something changed in my head. I think I wanted to make [DAL] happy. He hated his mother”.
[The applicant] remembered the moment when she slashed the little girl. She realised what she was doing and dropped the piece of glass. [The applicant] and [DAL] ran away from the scene of the crime in separate ways. Five minutes later she stopped to clean the blood off her. She remembered there was a woman who offered her smoke and she saw police and ambulance arriving. Soon after that, [the applicant] was arrested and placed in a police vehicle. She said she could not think or feel anything, and everything seemed “random” (her word).”
The change in the recitation of the facts between the version of events first mentioned to the psychologist and the version given to both the case worker and the psychiatrist and the refusal to elaborate when challenged by the case worker by reference to what had been said to the psychologist were notable. Certainly, it was open to the sentencing judge to accept the version as expressed to the psychologist.
Further, his Honour was accurate in recording the admission made to the psychologist (concerning as it did the existence of a plan formulated by DAL into which the applicant was pressured to break into the home and threaten ERR). The consistency between the admission and the subsequent conduct as revealed in the agreed statement of facts well justified the sentencing judge’s finding. And it is also notable that the sentencing judge did not find there was a plan to assault the boyfriend’s mother let alone his child or that there was a plan to slash the child with glass. He only found that there was likely to have been an arrangement to go and confront and “likely assault” the complainants. I would interpret “likely assault” as a reference to the likely outcome of making threats to the mother in the contemplated circumstances.
The sentencing judge did not make the alleged error in fact finding. This appeal ground would fail.
Proposed appeal ground 3: the sentence imposed did not adequately reflect the applicant’s mental health conditions
As has been mentioned, the sentencing judge found that it was possible that the applicant suffered from a borderline personality disorder, although the material before him did not permit him to make a positive finding to that effect.
The applicant submitted that the psychiatrist’s report had disclosed specific relevant features as to the applicant’s mental health which were not referred to in the sentencing remarks, namely –
(a)the applicant’s history of self-harming behaviours;
(b)the applicant’s history of seizures, which appeared to be connected with a serious assault in which the applicant had suffered a head injury;
(c)the applicant had been taking antidepressant medication from the age of 15; and
(d)the applicant had been admitted to hospital in the past and diagnosed with bipolar affective disorder.
The applicant submitted that her particular vulnerabilities might explain her conduct and cause a sentencing court to consider that her moral culpability was reduced. The applicant suggested that these features required any sentencing court to consider the applicant was not an appropriate vehicle for sending a message of general deterrence.
In my view, the sentencing remarks revealed that the sentencing judge had considered both the psychologist’s report and the psychiatrist’s report. Indeed, the specific finding concerning the possibility of borderline personality disorder was a specific reference to the psychologist’s opinion that the applicant had showed symptoms of such a disorder. The sentencing judge also specifically referred to the psychiatrist’s report in terms which make it clear that he could not have overlooked the considerations identified in the applicant’s submissions. Amongst other things the sentencing judge noted that –
(a)the psychiatrist described the applicant’s circumstances and the management of her conditions as complex;
(b)the psychiatrist was of the opinion that the applicant required ongoing psychiatric and psychological care and therapy over an extended time including when she was returned to the community; and
(c)the psychiatrist had opined that the applicant would remain a chronic risk to herself and to others based on her personality factors and what he described as the likely emerging personality disorder.
When his Honour then remarked that her personal circumstances went some way to describing the reason for that offending, he should be taken to have shown that he did take into account the circumstances revealed by the evidence sounding as to the applicant’s mental health. And the sentencing judge made specific reference to the applicant’s engagement in treatment for mental health issues as one of the considerations which informed his judgement that circumstances justified his requiring the applicant to serve only 50 per cent of the sentenced term of imprisonment.
Insofar as this ground should be understood as advancing a case of specific error on the basis that the sentencing judge failed to take into account relevant considerations, that case must be rejected. As Gotterson JA observed in R v Minniecon:[1]
“I preface my discussion of these grounds with the observation that, insofar as each of Grounds 1 and 2 contends that the factor referred to in it was not “adequately” taken into account, that is to say, did not accord sufficient weight to the factor, it does not articulate any error of the kinds described in House v The King as errors that vitiate the exercise of the sentencing discretion. Nevertheless, it remains open to the applicant to rely on an inadequate taking into account of the factor as causing or contributing to manifest excessiveness in the sentence in all the circumstances.”
[1][2017] QCA 29 at [22].
This ground of appeal would fail.
Proposed appeal ground 1: 6 years detention was manifestly excessive in all the circumstances
Submissions in support of this ground naturally focussed on the sentence imposed on the most serious offence, count 3. The maximum penalty for that offence in the circumstances was ten years’ detention.[2]
[2]See s176(1) of the Youth Justice Act.
Before this Court, counsel for the applicant noted that the sentencing judge had been taken to R v SDK[3] and R v Patrick (a pseudonym); Ex parte Attorney-General (Qld)[4].
[3][2020] QCA 269; (2020) 6 QR 568.
[4][2020] QCA 51; (2020) 3 QR 578.
The appeal in SDK was not a helpful comparable case. It concerned a 17-year-old boy labouring under a "brief substance induced psychotic episode". He had attacked a 12-year-old girl on the street with a box cutter, slashing her face, head and arms. She was not previously known to him. He caused serious injuries to her which, though surgically repaired, would leave her with significant scarring. He had been sentenced on his plea of guilty to four years detention with release after serving 60 per cent. However, that aspect of the sentence was not the subject of the appeal.
Patrick too was not particularly helpful. A 16-year-old male was driving a vehicle at speed with the intention of preventing his lawful arrest. Police had laid tyre spikes to stop the vehicle. The driver saw the spikes, swerved to avoid them and in the process struck a police officer causing him catastrophic injuries. On the count of doing grievous bodily harm with intent to prevent arrest he was sentenced to 3 years detention to be released after serving 50 per cent, with a conviction recorded. On an appeal by the Attorney-General which contended that that sentence was manifestly inadequate, he was resentenced by the Court of Appeal to 5 years detention to be released after serving 50 per cent, with a conviction recorded.
Counsel for the appellant suggested that SDK and Patrick exposed a sentencing range of four to five years detention and that the prosecutor’s contention below for a head sentence of six years was arrived at on the basis that the offending was worse than those authorities. The essence of the applicant’s argument on appeal was that the manifest excess of the sentence was exposed by the fact that “the 6 years imposed sits at the top of the range or even beyond it.”
Although counsel acknowledged that SDK and Patrick were the only Court of Appeal authorities for the count 3 offence in relation to an offender to be sentenced under the Youth Justice Act, she had prepared a table which identified 14 single judge decisions between 2014 and 2021 concerning malicious act with intent and grievous bodily harm with intent offences committed by children in Queensland and noted there were no sentences exceeding four years in duration. Counsel also sought to draw this Court’s attention to a range of other cases which involved children sentenced for other categories of offence but which involved stabbing or the infliction of grievous bodily harm and in which the sentences imposed ranged from two to four and a half years detention.
The approach to be taken to a consideration of an argument of the nature of that advanced by the applicant is not in doubt.
Consistency in sentencing is an important goal in sentencing, but the consistency which is sought is consistency in the application of the relevant legal principles. Appellate intervention on the ground of manifest excessiveness is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.[5]
[5]R v Pham [2015] HCA 39; (2015) 256 CLR 550 per French CJ, Keane and Nettle JJ at [28].
Examination of sentences which have been imposed in comparable cases may provide a relevant yardstick by which a sentencing court can attempt to achieve consistency in sentencing and in the application of relevant sentencing principles, but the requirement to have regard to the sentences imposed in comparable cases does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed; rather, the range of sentences imposed in the past may inform a broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle.[6]
[6]R v Kilic [2016] HCA 48; (2016) 259 CLR 256 per Bell, Gageler, Keane, Nettle and Gordon JJ at [22], citing with approval remarks made in the Victorian Court of Appeal.
There is no merit in endeavouring some sort of case-by-case comparison of the circumstances in the present case with those which applied in the other cases referred to by the applicant. I agree with the submissions advanced by the respondent before this Court that none of the authorities referred to by the applicant had the constellation of features attending the present case. I cannot discern from the cases any particular yardstick which would be helpful on the present appeal. The disparity between the present sentence and those imposed in either Patrick or the other cases is not so high that I would be driven to infer that there had been some misapplication of principle by the sentencing judge.
This ground of appeal would fail.
Proposed appeal ground 4: The recording of a conviction on ground 3 rendered the sentence manifestly excessive
Section 184 of the Youth Justice Act provides that in considering whether or not to record a conviction, a court must have regard to all the circumstances of the case, including the nature of the offence; the child’s age and any previous convictions; the impact the recording of a conviction will have on the child’s chances of rehabilitation generally or of finding or retaining employment.
The sentencing judge carefully balanced the considerations adverted to in s184. But as Holmes JA (as her Honour then was) observed in R v JO [2008] QCA 260 (at [14], Mackenzie AJA and Douglas J agreeing) “Some offences committed by children are, of course, inherently so serious that a conviction must be recorded.”
In my view this is such a case. Certainly, there is no basis on which to infer that the decision that the case was so serious as to warrant recording a conviction was reached by way of some error of principle.
The observations made by Sofronoff P in relation to the offender in Patrick[7] apply equally to the applicant:
“The nature of the offence, including the objective circumstances that have been described, place this particular offending in the category of very serious offences for which a child might be held responsible. In that context, the absence of previous convictions means little.
Part of Patrick’s rehabilitation must involve, as Principle 8(a) requires, him accepting responsibility for what he has done and what harm he has caused. Acceptance of responsibility is much more than an offender’s verbal acknowledgment of personal fault. It must involve an actual appreciation and acknowledgement of the community’s revulsion at the crime and its consequences. That revulsion is partly manifested by the public record that is a conviction. It is true, as counsel for Patrick urged, that the recording of a conviction may affect Patrick’s future employment prospects but in a case like the present, that does not outweigh the justification for recording, as a conviction, the community’s denunciation of the offending act, notwithstanding that it was committed by a child in the circumstances in which Patrick found himself.”
[7]R v Patrick (a pseudonym); Ex parte Attorney-General (Qld) [2020] QCA 51; (2020) 3 QR 578 at [53]-[54], Fraser JA and Boddice J agreeing.
This appeal ground would fail.
Conclusion
The application for leave to appeal the sentence should be refused.
FLANAGAN J: I agree with Bond JA.
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