R v Bej - [2024] QCA 135

SUPREME COURT OF QUEENSLAND

CITATION:

R v BEJ [2024] QCA 135

PARTIES:

R
v
BEJ
(applicant)

FILE NO/S:

CA No 222 of 2023
SC No 77 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Rockhampton – Date of Sentence: 18 October 2023 (Crow J)

DELIVERED ON:

30 July 2024

DELIVERED AT:

Brisbane

HEARING DATE:

17 April 2024

JUDGES:

Mullins P and Bond and Boddice JJA

ORDER:

Application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCING OF JUVENILES – RELEVANT FACTORS – GENERAL PRINCIPLES – where the applicant youth pleaded guilty to attempted murder committed when he was 16 years and four months old – where the stabbing of the complainant was premediated, unprovoked and random – where the applicant was sentenced to detention for seven years and ordered to be released after serving 50 per cent of the period of detention – where a conviction was recorded – where the sentencing judge recognised that the applicant’s autism spectrum disorder and borderline intellectual functioning had a mitigatory effect on the assessment of the offending behaviour and was the likely explanation for his lack of remorse but was also a risk factor for community protection – where the sentencing judge took into account that the applicant was partly motivated to commit the offence for sexual gratification – whether the period of detention was for the shortest appropriate period having regard to all the relevant circumstances – whether the sentence was manifestly excessive

Youth Justice Act 1992 (Qld), s 150

R v SCU[2017] QCA 198, cited
R v WAY; Ex parte Attorney-General (Qld) (2013) 238 A Crim R 477; [2013] QCA 398, considered
R v William (a pseudonym)[2020] QCA 174, considered

COUNSEL:

A C Freeman for the applicant
P J McCarthy KC for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MULLINS P: The applicant youth was just over 16 years and four months old when he committed the offence of attempted murder on 13 September 2021. He pleaded guilty on 10 July 2023 and was sentenced on 18 October 2023 when he was almost 18 and one-half years old. He was sentenced to detention for seven years and ordered to be released after serving 50 per cent of the period of detention. A conviction was recorded. The period of 764 days during which he had been held in detention from 13 September 2021 counted as part of the sentence that was imposed.
The applicant applies for leave to appeal against his sentence on the following grounds:
1.The learned sentencing judge erred by giving insufficient weight to relevant considerations, namely:
a.that imprisonment will weigh more heavily on the applicant because of his diagnosis of autism spectrum disorder (ASD) and borderline intellectual functioning than a person without a mental health condition: and
b.that the applicant had been diagnosed with impairments for which he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bej

Details

AGLC: R v Bej [2024] QCA 135
Case: [2024] QCA 135
Decision Date: 30 July 2024

CaseChat Overview and Summary

The appeal in R v Bej involved a 16-year-old youth who had pleaded guilty to attempted murder. The stabbing of the complainant was premeditated, unprovoked, and random. The youth was sentenced to detention for seven years, with the requirement that he serve 50 per cent of this period. The youth, who had autism spectrum disorder and borderline intellectual functioning, appealed against his sentence. The appeal raised questions about whether the sentence was for the shortest appropriate period and whether it was manifestly excessive.

The legal issues before the court were whether the sentencing judge had appropriately balanced all relevant factors, including the youth's mental health conditions and the mitigating effect of these conditions on his offending behaviour. The appeal also questioned whether the judge had given sufficient weight to the youth's need for treatment and supervision, and whether the sentence imposed was the shortest appropriate period under the statutory framework.

The court held that the sentencing judge had correctly balanced the relevant factors, including the youth's mental health conditions, and had appropriately reduced the detention period from 70 per cent to 50 per cent. The judge recognised the mitigating effect of the youth's conditions but also recognised the need for community protection. The court found that the sentence was not manifestly excessive and that the youth's appeal did not meet the threshold for appellate intervention.

The court ultimately refused the application for leave to appeal, affirming the original sentence. The decision underscores the importance of balancing various factors, including mental health considerations, in sentencing juvenile offenders while ensuring community protection.

Orders

Orders of the court

Application for leave to appeal refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The sentencing judge found that the special circumstances that the applicant needed treatment and supervision justified reducing the period to be served in detention from 70 per cent to 50 per cent, as the longer the period for which the applicant was supervised would have a greater (positive) impact upon the applicant’s functioning in the long term and further protect the community.Did the sentencing judge err by giving insufficient weight to the considerations identified in ground 1? In relation to ground 1, the applicant does not submit that the sentencing judge overlooked the considerations identified in ground 1, as they were referred to expressly by the sentencing judge in the sentencing remarks. The essence of the applicant’s submission is that a lesser period of detention would have been imposed if appropriate weight had been given to the considerations that imprisonment will weigh more heavily on the applicant because of his ASD and borderline intellectual functioning than a person without a mental health condition and that the applicant had never received treatment for these conditions for which the psychiatrist expressed the opinion that he required care and protection. This ground of appeal does not raise any of the principles recognised in House v The King (1936) 55 CLR 499 at 505 that permits an appellate court to interfere with the exercise of the sentencing discretion other than that the sentence was “unreasonable or plainly unjust”. The applicant’s argument based on insufficient weight having been given by the sentencing judge to these considerations applicable to the sentencing of the applicant is therefore appropriately dealt with in respect of grounds 2 and 3.Was the sentence imposed for the shortest appropriate period? It is convenient to deal with grounds 2 and 3 together. As the aspect of the sentence that is the focus of the applicant’s submissions is the length of the detention period, the applicant could only show that the sentence was manifestly excessive, if the sentence were not imposed for the shortest appropriate period required by s 150(2)(e) of the Act. The balancing exercise of all relevant factors undertaken in sentencing under the Act and the constraints imposed on the exercise of the sentencing discretion were relevantly explained by McMurdo JA (with whom Morrison JA agreed) in R v SCU [2017] QCA 198 at [150]-[153]. Sentencing of a child requires the exercise of the sentencing discretion but within the constraints of the Act. Even though s 150(2)(e) of the Act appears to express in absolute terms that a detention order should be imposed for “the shortest appropriate period”, there is generally not one “shortest appropriate period” because of the process undertaken in the exercise of the sentencing discretion. It must be the shortest appropriate period having regard to balancing all the relevant factors (which are more extensive in sentencing a child than an adult) and the relative weight given by the sentencing judge to the respective factors.

CITATION:	R v BEJ [2024] QCA 135
PARTIES:	R v BEJ (applicant)
FILE NO/S:	CA No 222 of 2023 SC No 77 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Rockhampton – Date of Sentence: 18 October 2023 (Crow J)
DELIVERED ON:	30 July 2024
DELIVERED AT:	Brisbane
HEARING DATE:	17 April 2024
JUDGES:	Mullins P and Bond and Boddice JJA
ORDER:	Application for leave to appeal refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCING OF JUVENILES – RELEVANT FACTORS – GENERAL PRINCIPLES – where the applicant youth pleaded guilty to attempted murder committed when he was 16 years and four months old – where the stabbing of the complainant was premediated, unprovoked and random – where the applicant was sentenced to detention for seven years and ordered to be released after serving 50 per cent of the period of detention – where a conviction was recorded – where the sentencing judge recognised that the applicant’s autism spectrum disorder and borderline intellectual functioning had a mitigatory effect on the assessment of the offending behaviour and was the likely explanation for his lack of remorse but was also a risk factor for community protection – where the sentencing judge took into account that the applicant was partly motivated to commit the offence for sexual gratification – whether the period of detention was for the shortest appropriate period having regard to all the relevant circumstances – whether the sentence was manifestly excessive Youth Justice Act 1992 (Qld), s 150 R v SCU[2017] QCA 198, cited R v WAY; Ex parte Attorney-General (Qld) (2013) 238 A Crim R 477; [2013] QCA 398, considered R v William (a pseudonym)[2020] QCA 174, considered
COUNSEL:	A C Freeman for the applicant P J McCarthy KC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent