R v CDB - [2024] QCA 79

SUPREME COURT OF QUEENSLAND

CITATION:

R v CDB [2024] QCA 79

PARTIES:

R
v
CDB
(applicant)

FILE NO/S:

CA No 38 of 2024
DC No 574 of 2023
DC No 49 of 2024

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Brisbane – Date of Sentence: 1 March 2024 (Moynihan KC DCJ)

DELIVERED ON:

Date of Orders: 7 May 2024
Date of Publication of Reasons: 10 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

30 April 2024

JUDGES:

Morrison and Boddice JJA and Callaghan J

ORDERS:

Date of Orders: 7 May 2024

1.   Leave to appeal sentence be granted.

2.   The appeal be allowed.

3.   Each of the sentences of 18 months detention be varied to 16 months detention.

4.   The sentences imposed on 1 March 2024, otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCING OF JUVENILES – RELEVANT FACTORS – GENERAL PRINCIPLES –GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant youth pleaded guilty to some 26 violence, property and driving offences – where the applicant was sentenced to 18 months detention for one count of unlawful use of a motor vehicle to facilitate the commission of an indictable offence, six counts of attempted armed robbery in company, four counts of attempted enter premises with intent to commit an indictable offence, one count of armed robbery in company, one count of dangerous operation of a vehicle and one count of robbery in company with personal violence – where the applicant was sentenced to lesser periods of detention for the remaining counts – where all detention orders were to be served concurrently – where the learned sentencing judge received submissions identifying viable alternatives to detention – where the sentencing judge did not provide reasons as to why detention was preferred to the alternatives – whether the sentence should be set aside – whether the sentencing discretion should be re-exercised

R v IJ[2022] QCA 138, cited
R v SDW (2022) 12 QR 479; [2022] QCA 241, cited

COUNSEL:

G F Perry for the applicant
S L Dennis for the respondent

SOLICITORS:

Ashkan Tai Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: I agree with the reasons of Boddice JA and the orders his Honour proposes.
BODDICE JA: On 8 February 2024, the applicant, a juvenile, pleaded guilty to one count of unlawful use of a motor vehicle to facilitate the commission of an indictable offence, six counts of attempted armed robbery in company, four counts of attempted enter premises with intent to commit an indictable offence, one count of enter premises with intent to commit an indictable offence, two counts of wilful damage, one count of armed robbery in company, three counts of breaking and entering premises and stealing, three counts of burglary and stealing and one count of dangerous operation of a vehicle (“the first indictment”).
On 15 February 2024, the applicant pleaded guilty to one count of unlawfully…

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 CDB

Details

AGLC: R v CDB [2024] QCA 79
Case: [2024] QCA 79
Decision Date: 10 May 2024

CaseChat Overview and Summary

The case of R v CDB involved a young person who pleaded guilty to multiple serious offences, including violence, property crimes, and driving offences. The applicant was sentenced to 18 months detention for one count of unlawful use of a motor vehicle to facilitate the commission of an indictable offence, along with other counts that were to be served concurrently. The applicant appealed against the sentence, arguing that the sentencing judge had not adequately considered viable alternatives to detention and had failed to provide reasons for preferring detention over these alternatives.

The legal issues that the court was required to decide centred on the proper methodology for sentencing juveniles under the Youth Justice Act 1992 (Qld). Specifically, the court had to determine whether the sentencing judge had correctly considered all available sentencing options before concluding that detention was the only appropriate sentence. The court also had to assess whether the sentencing judge's failure to provide reasons for rejecting the alternative sentencing options constituted grounds for interference with the sentence.

The court found that the sentencing judge had not followed the required methodology as established in previous cases. It was held that the sentencing judge was required to explicitly consider all available sentencing options, reject those options, and provide reasons for doing so in the sentencing remarks. The court noted that while the sentencing judge had considered the entire criminality and the time already spent in pre-sentence custody, the remarks did not adequately explain the process of rejecting other available sentencing options. Consequently, the court concluded that the sentence should be set aside and the sentencing discretion re-exercised.

The final orders of the court were that leave to appeal the sentence be granted, the appeal be allowed, and each of the sentences of 18 months detention be varied to 16 months detention. The sentences imposed on 1 March 2024, otherwise confirmed.

Orders

Orders of the court

Date of Orders: 7 May 2024

1. Leave to appeal sentence be granted.

2. The appeal be allowed.

3. Each of the sentences of 18 months detention be varied to 16 months detention.

4. The sentences imposed on 1 March 2024, otherwise confirmed.

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

After observing that any sentence must help the applicant to rehabilitate; must punish him in a way that is just, in all of the circumstances; must be in proportion to the nature of the offending; must deter him and others from committing this type of offence; and must indicate the Court’s denunciation of this course of conduct, the sentencing judge concluded:“Balancing the relevant considerations, taking into account the entire criminality and time already spent in pre-sentence custody and taking into account all other available sentences and the principles in schedule 1 of the Act, particularly number 18, in this case, I do not consider that a restorative justice process is appropriate instead of or to inform the sentencing order. And, taking into account the desirability of not holding a child in detention, I am satisfied that no other sentence other than detention is appropriate in the circumstances of this case.”[3]Consideration[3]AB67/7-14.Ground 1 Sentencing judges are required to follow a particular methodology when sentencing, in accordance with the principles under the Youth Justice Act 1992 (Qld). That methodology requires a sentencing judge to give consideration to all statutory factors and to consider all other available options, before imposing a sentence of detention, with the sentencing remarks explaining how the sentencing judge complied with that required process of reasoning.[4][4]R v SCU [2017] QCA 198 at [53]; [85]–[86]. What is required, in order to satisfy an explanation of the reasoning process was enunciated in R v SDW:[5]“[17] To put it another way, this Court has concluded that the Youth Justice Act 1992, and in particular, ss 208 and 209, should be construed as requiring sentencing judges to follow a particular methodology. A sentencing judge cannot make a detention order for a child without first considering all other available sentences in the way that the law requires, and then forming the state of satisfaction referred to in s 208 in the way referred to in s 208. Moreover, it is not enough that the sentencing judge may have privately reasoned in that manner, ultimately concluded that no other sentence than detention is appropriate and then merely expressed the statement in the sentencing remarks that that consideration was performed. Rather, the sentencing judge must express his or her reasons in court in a way which explains how that ultimate result was arrived at by the application of the proper reasoning process.[18]For example, if, as in the present case, there were four sentencing options reasonably open other than detention, then in order to comply with s 208 a sentencing judge could not impose detention unless he or she had first separately considered and rejected each of the other options and then formed the state of satisfaction referred to in s 208 in the way referred to in s 208. In order to comply with s 209, the sentencing remarks would have to explain the process undertaken, including by explaining the reasons for rejecting each of the other options.[19]It must be noted that this Court has construed the obligation in s 208 as requiring express consideration of the sentencing options ‘reasonably available’. Of course, the adverb ‘reasonably’ does not appear s 208(a). That section requires the court to consider all other “available” sentences. The addition of the adverb ‘reasonably’ seeks only to communicate that the word ‘available’ should be construed as meaning suitable or appropriate for consideration. The extreme circumstances of a particular case might well mean that sentencing options which are theoretically open are so obviously unsuited to the circumstances of the case that they should not be regarded as ‘available’ within the meaning of s 208, and a sentencing judge might be justified in not dealing with them at all in his or her reasons.”[5](2022) 12 QR 479 at [17]–[19].

CITATION:	R v CDB [2024] QCA 79
PARTIES:	R v CDB (applicant)
FILE NO/S:	CA No 38 of 2024 DC No 574 of 2023 DC No 49 of 2024
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Brisbane – Date of Sentence: 1 March 2024 (Moynihan KC DCJ)
DELIVERED ON:	Date of Orders: 7 May 2024 Date of Publication of Reasons: 10 May 2024
DELIVERED AT:	Brisbane
HEARING DATE:	30 April 2024
JUDGES:	Morrison and Boddice JJA and Callaghan J
ORDERS:	Date of Orders: 7 May 2024 1. Leave to appeal sentence be granted. 2. The appeal be allowed. 3. Each of the sentences of 18 months detention be varied to 16 months detention. 4. The sentences imposed on 1 March 2024, otherwise confirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCING OF JUVENILES – RELEVANT FACTORS – GENERAL PRINCIPLES –GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant youth pleaded guilty to some 26 violence, property and driving offences – where the applicant was sentenced to 18 months detention for one count of unlawful use of a motor vehicle to facilitate the commission of an indictable offence, six counts of attempted armed robbery in company, four counts of attempted enter premises with intent to commit an indictable offence, one count of armed robbery in company, one count of dangerous operation of a vehicle and one count of robbery in company with personal violence – where the applicant was sentenced to lesser periods of detention for the remaining counts – where all detention orders were to be served concurrently – where the learned sentencing judge received submissions identifying viable alternatives to detention – where the sentencing judge did not provide reasons as to why detention was preferred to the alternatives – whether the sentence should be set aside – whether the sentencing discretion should be re-exercised R v IJ[2022] QCA 138, cited R v SDW (2022) 12 QR 479; [2022] QCA 241, cited
COUNSEL:	G F Perry for the applicant S L Dennis for the respondent
SOLICITORS:	Ashkan Tai Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent