R v BZZ & AZY; Ex parte

Case [2025] QCA 89

SUPREME COURT OF QUEENSLAND

CITATION:

R v BZZ & AZY; Ex parte Attorney-General (Qld) [2025] QCA 89

PARTIES:

In CA No 159 of 2024
R
v
BZZ
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

In CA No 158 of 2024
R
v
AZY
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 159 of 2024
CA No 158 of 2024
SC No 236 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Attorney-General (Qld)

ORIGINATING COURT:


Supreme Court at Brisbane – [2024] QSC 138 (Davis J)

DELIVERED ON:

3 June 2025

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2025

JUDGES:

Flanagan JA and Burns and Cooper JJ

ORDERS:

1.   In CA No. 158 of 2024 the appeal is dismissed.

2.   In CA No. 159 of 2024 the appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where both respondents pleaded guilty to one count of burglary and stealing (Count 1), one count of unlawfully using a motor vehicle to facilitate the commission of an indictable offence (Count 2), one count of burglary by breaking, in the night, while armed, in company (Count 3), and four counts of malicious act with intent (Counts 4 to 7) – where AZY also pleaded guilty to one count of assault occasioning bodily harm whilst armed (Count 8) and one count of contravening order about device information from digital device (Count 9) – where AZY received an overall sentence of 7 years detention – where BZZ received an overall sentence of 8 years detention – where no convictions were recorded in respect of any of the offending – where, on account of the respondents’ lack of criminal history, rehabilitative efforts and personal circumstances, the sentencing judge ordered that the period of detention be reduced from 70 per cent to 50 per cent – where the Attorney-General appeals against the sentences imposed on Counts 4, 5, 6 and 7 – where the Attorney-General contends that the period of detention ordered in respect of each respondent, in combination with the reduction of the proportion that needed to be served before release and the non-recording of convictions, resulted in overall sentences that were manifestly inadequate – where the Attorney-General challenges the starting point that a conviction is not to be recorded against a child – whether the sentences imposed are manifestly inadequate

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where Counts 4, 5, 6 and 7 involved a consideration of s 176(3) of the Youth Justice Act 1992 (Qld) – where the sentencing judge found that Count 4 was a particularly heinous offence in relation to BZZ – where BZZ was sentenced to eight years imprisonment in respect of Count 4 – where the sentencing judge found that Count 5 was a particularly heinous offence in respect of both respondents – where both respondents were sentenced…

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Details
AGLC
R v BZZ & AZY; Ex parte [2025] QCA 89
Case
[2025] QCA 89
Decision Date

CaseChat Overview and Summary

The appeal in CA No. 158 of 2024 was brought by the Attorney-General against the sentence imposed on BZZ, while the appeal in CA No. 159 of 2024 was brought against the sentence imposed on AZY. Both respondents had pleaded guilty to multiple counts of burglary, theft, and assault. The Attorney-General contended that the sentences were manifestly inadequate given the severity of the crimes and the respondents' lack of criminal history, rehabilitative efforts, and personal circumstances. The court was required to decide whether the sentences imposed were manifestly inadequate and whether the sentencing judge failed to properly consider the heinousness of the crimes and the appropriate penalties.

The court found that the Attorney-General had not established any error in the sentences imposed. The sentencing judge had considered all relevant factors, including the respondents' lack of criminal history, their rehabilitative efforts, and their personal circumstances. The court held that the reduction in the proportion of the sentence that needed to be served before release and the non-recording of convictions were appropriate given the respondents' age and background. The court also found that the sentencing judge had properly considered the heinousness of the crimes and the appropriate penalties. The sentences imposed reflected the gravity of the offences and were not manifestly inadequate.

The appeal in CA No. 158 of 2024 and the appeal in CA No. 159 of 2024 were both dismissed.

Orders

Orders of the court

1. In CA No. 158 of 2024 the appeal is dismissed.

2. In CA No. 159 of 2024 the appeal is dismissed.

Background

Background to the litigation

For the reasons which follow, the Attorney-General has failed to establish any error which would require this Court to consider whether the residual discretion ought be exercised.Agreed statement of facts The sentence proceeded on the basis of an agreed statement of facts.[7] His Honour, in considering the agreed facts, drew a number of inferences, none of which are challenged on appeal. It is therefore convenient to take the statement of facts from his Honour’s sentencing remarks:[8][7]RB, page 226–232.[8]RB, page 165, line 41 to page 169, line 22.“At about 1:00 am on 16 August 2021, you, together with your two accomplices, saw a Mercedes car and a Hyundai car parked outside a house in Forest Lake. The pair of you broke into the house looking for the keys to the Mercedes. Your two accomplices waited outside. Once in the house, you stole a handbag, a bottle of whisky and a mobile telephone. The keys to the Mercedes were not in the handbag, but the keys to the Hyundai were. . The entering of the dwelling in Forest Lake and the theft of the handbag and contents constituted count 1 on the indictment.The owner of the Hyundai, Ms Michelle Waters, awoke to find you two and your two associates in the Hyundai about to reverse down her driveway. Ms Waters ran alongside the car, but lost her footing and fell. You all sped off in Ms Waters’ car. The handbag was discovered on the driveway, but her purse, which contained credit cards and personal information, had been taken. Your unlawful use of the car constituted count 2 on the indictment, and your later use of it in the commission of count 3 established the circumstance of aggravation charged in count 2. Fortunately, Ms Waters was not seriously injured, although she did suffer bruising and scratches and was treated in hospital. She still has some residual damage to her right foot and leg.The remaining counts on the indictment, being counts 3 to 8, result from the truly horrific events that unfolded when the pair of you broke and entered the home of Mr Toutai Kefu, his wife, Mrs Rachel Kefu, and their five children, then aged between 13 and 21 years. The four of you drove in the Hyundai to Coorparoo looking for another car to steal. You found yourself in [Buena Vista] Avenue, Coorparoo, and you noticed a Volkswagen car parked outside the Kefus’ house. You resolved to enter the house and steal the keys to the target car, the Volkswagen.Mr Kefu had a long career as an international rugby player and therefore enjoys some fame. It is not suggested that you targeted the family’s house for that reason. You did not know who owned the house. You were attracted only by the prospect of stealing the Volkswagen. As I will explain, when you entered the house, you, [BZZ], were armed with a sickle and you, [AZY], were armed with a red-handled knife. You may have had in your possession other knives, but the two instruments that appear to have done the damage to the Kefu family are the sickle and the red-handled knife.By the time you invaded the sanctity of the Kefus’ house, it was about 3 am. Buena Vista Avenue is very clearly a suburban residential area. You could have not but realised that by entering a house on Buena Vista Avenue, Coorparoo, in the early hours of the morning, when there was a car parked outside, that there was likely to be a family asleep inside the house. The evidence is that you were in fact well aware of the possibility that during your invasion of the house you may encounter the occupants. I take this from the agreed statement of facts, where it is recorded that there was a conversation in the Hyundai between you and your accomplices where it was said in effect that, “If someone wakes up, you just stab them.”Several inferences should be drawn. Firstly, you realised the possibility of confronting an occupant of the house. Secondly, you were prepared to enter the house to steal the car keys regardless of the possibility that you may encounter an occupant. Thirdly, your plan was that if you did encounter an occupant, not to abandon your plan to steal the cars but to overcome resistance. Fourthly, you intended to overcome any resistance by use of force. Fifthly, the force contemplated by you to overcome any resistance included the use of bladed weapons, namely the sickle and the red-handled knife.The Kefus’ house is situated on the northern side of Buena Vista Avenue. The land slopes downwards from south to north. You entered the property from the front and ascended stairs at the back of the house onto a deck. You entered the house through a window adjacent to the deck. Mrs Kefu was awoken by car doors closing. She looked out a window and saw what she now knows to be the Hyundai. Mistakenly assuming the car was being driven by an Uber driver, she went back to bed.She then heard noises from downstairs and went to investigate. She discovered you two in her house. You demanded the keys to the car, being the Volkswagen, and Mrs Kefu screamed. You told her to shut up or you would kill her. Mr Kefu, alerted to the emergency by his wife’s screams, ran to her aid. You, [AZY], grabbed Mrs Kefu by the arm and held the knife to her. Mr Kefu implored you to leave Mrs Kefu alone and you demanded the keys to the car under threat of hurting her. During this time, you both were waving your weapons and demanding the car keys.Although what occurred next is dealt with in the agreed statement of facts which was tendered, there are some disagreements as to the conclusions which I should draw. While you were demanding the keys, Mr and Mrs Kefu pointed to a bowl on the kitchen bench and indicated the presence of the keys. The fact that you were being offered the keys did not seem to register with you. Mrs Kefu took two kitchen knives from a knife block and handed one to her husband, but both then put those knives down. Mr Kefu instead armed himself with a metal barstool.By this stage, you had been told to leave the house. There was nothing stopping you from leaving. Then you, [BZZ], struck Mrs Kefu a blow with the sickle. The Crown submits that the delivery of the blow with the sickle to Mrs Kefu was a deliberate, gratuitous act of violence in circumstances where you had been offered the keys to the car and invited to leave.However, I accept submissions made on your behalf that the circumstances are not as clear as the Crown submitted. There is other evidence that Mrs Kefu may have reached towards the kitchen bench before she was struck. That is where the knives had been placed. The pair of you may not have appreciated that you were being offered the keys. To say that this was a dynamic and quickly escalating series of events is an understatement, and there is a possibility, which I should accept, that you were confused and struck Mrs Kefu in panic. The assault upon Mrs Kefu constitutes count 4.In my view, these findings hardly reduce your culpability in any significant way. As already observed, you entered the house having already determined that if resistance was offered by any occupants, you would overcome that resistance by use of the bladed weapons with which you had armed yourselves and which you took into the house. As I have already found, you had every intention to use the weapons if necessary. Whether you, [BZZ], panicked or not, you did use the sickle to injure Mrs Kefu and the objective circumstances were such that you were not under threat and you could have simply left the house once you had been confronted.The sickle is self-evidently a wicked weapon. The handle is relatively long, as is the blade. Given the injury to Mrs Kefu, you, [BZZ], must have wielded the sickle with some force. By your plea of guilty to count 4, which represents your act in injuring Mrs Kefu, you accept that you manifested an intention to do her grievous bodily harm, and you certainly did.Mrs Kefu suffered a 10-centimetre cut to her left mid-forearm. The cut covered an arc of approximately 50 per cent of the circumference of her arm. This resulted in muscles, tendons, nerves and a major vein in her forearm being severed. The blade penetrated the cortex, being the outer part of the bone of her arm. Mrs Kefu has undergone surgeries and even now, almost three years after your attack upon her, she has significant residual disabilities in her arm.Upon his wife being attacked, Mr Kefu turned the metal stool sideways and charged towards the pair of you. Neither of you fled. You both stood your ground and responded by attacking Mr Kefu with your weapons. In the course of that fight, Mr Kefu was stabbed. That is the act which constitutes count 5 on the indictment.Mr Kefu’s major injury was a stab wound to his lower right chest. The blade entered his ribcage, severed an artery and penetrated his liver. This was an injury which would have been fatal had medical attention not been obtained. He underwent surgery, which, amongst other things, stopped the bleeding from the artery. Mr Kefu also suffered other injuries, including various cuts and fractures to his right foot. It is accepted by your barrister, [AZY], that the stab wound, being the most significant injury suffered by Mr Kefu, was inflicted by you with the red-handled knife. You, [BZZ], received a stab wound to your upper back in the altercation with Mr Kefu.Although the violence continued, it is well to pause at this stage in the hope that you appreciate the nightmare that you had orchestrated. Mr and Mrs Kefu, on any version of events, had done absolutely nothing wrong. They were peacefully occupying their house with their five children. You entered the sanctity of that dwelling with weapons and with an intent to use them in order to achieve your purpose of stealing their car.Any actions of violence by Mr Kefu to you were completely and totally justified. Because of your actions, he was in a position where he had to defend his family against life-threatening violence being inflicted by you two invaders. Within a short time of you entering the house, both Mr and Mrs Kefu were very severely injured, with Mr Kefu’s injuries threatening his life.But more damage to the Kefu family was to come. Mrs Kefu screamed for the assistance of her and Mr Kefu’s adult son, Joshua. He came from his upstairs bedroom downstairs and tackled you, [BZZ], who was still armed with the knife. You, [BZZ], attacked him with the sickle, slashing his back and left side. This left a gaping wound. Joshua Kefu struggled with you, but you both slipped in blood on the floor. The fall dislocated Joshua Kefu’s left shoulder.Joshua Kefu’s injuries were a 20-centimetre vertical laceration to the left shoulder blade. The wound was about 10 centimetres deep. There was a further 10-centimetre vertical laceration to his upper back and a 5-centimetre laceration to his right forearm. This penetrated the muscle. There was a relatively minor laceration to his chest. As discussed, Joshua Kefu’s left shoulder was also dislocated. The attack upon Joshua Kefu is reflected by count 6.During Joshua Kefu’s struggle with you, [BZZ], Madison and Olivia Kefu tried to leave the house. Mrs Kefu had slipped in blood and Madison was attempting to help her to her feet when you, [BZZ], attacked her with the sickle. She put her arm out to protect herself and was cut across the hand. The injury was a deep 4-centimetre laceration to her right hand, which extended through muscles and damaged cartilage and bone at her wrist joint. The blade of the sickle chipped a small fragment of bone in her wrist joint. Fortunately, neither the ulnar nerve nor the artery were damaged. That constitutes count 7 on the indictment.Eventually you, [BZZ], left via the window through which you had entered the house. As previously observed, you were injured. You had a 2-centimetre stab wound to your back which had penetrated your lung. You managed to get to the Hyundai and your accomplices took you to hospital. You [AZY] ran for the now open front door of the house. This was left open by Madison, who by this stage had managed to exit the house and was heading for a neighbour’s house to obtain help.Mr Benjamin Cannon, the Kefus’ next door neighbour, hearing the commotion, had come to investigate. You, [AZY], effectively ran into him as you exited the house. You assaulted Mr Cannon and that is count 8. Mr Cannon suffered a 1.5 centimetre cut to his left ring finger, [grazes] to his left shin and a small graze near his left thumb. He apprehended you and in due course police arrived.”The sentencing remarks

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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