R v GBD

Case [2018] QCA 340

SUPREME COURT OF QUEENSLAND

CITATION:

R v GBD [2018] QCA 340

PARTIES:

R
v
GBD
(applicant)

FILE NO/S:

CA No 264 of 2018
DC No 2092 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport – Date of Sentence: 21 September 2018 (Smith DCJA)

DELIVERED ON:

7 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2018

JUDGES:

Sofronoff P and Fraser JA and Mullins J

ORDERS:

1.   Grant the application for leave to appeal.

2.   Allow the appeal.

3.   Vary the sentence imposed in the District Court by substituting a period of three months for the period of four months imposed in the District Court as the period for which the applicant is to be imprisoned.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – SENTENCING AS ADULT OR CHILD AND IMPRISONMENT – where the applicant was convicted on his plea of guilty to rape – where the applicant was sentenced to four months imprisonment to be released on probation for a period of two years – where the complainant was the applicant’s four year old cousin – where the Youth Justice and Other Legislation (Inclusion of 17-year-old Persons)Amendment Act 2016 (Qld) extends the benefits of the Youth Justice Act 1992 (Qld) to 17-year-olds but under s 5(1) of the Youth Justice (Transitional) Regulation 2018 (Qld) only where (a) there is a current proceeding for the offence and (b) the person is 17 years old on the commencement of the regulation – where the applicant was 17 years old when he committed the offence and the indictment was presented – where the sentencing judge determined that the applicant was to be sentenced as an adult because he turned 18 before the commencement of the amending legislation – where the applicant argued that s 5(1)(b) of the Youth Justice (Transitional) Regulation 2018 (Qld) was invalid and the applicant therefore should have been sentenced as a child – whether the sentencing judge erred in sentencing the applicant as an adult – whether s 5(1)(b) of the Youth Justice (Transitional) Regulation 2018 (Qld) is invalid

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUND FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant is a lawful non-citizen – where the applicant was at risk of his visa being cancelled and being deported to New Zealand after completing the custodial part of his sentence – where the applicant had lived in Australia since he was eight and his family was in Australia – where the Minister was required to cancel the applicant’s visa for not passing the character test due to the combined effect of ss 501(3A) and 501(6)(e) of the Migration Act 1958 (Cth) but could revoke that decision under s 501CA(4) after the applicant made representations to the Minister about the revocation – where the applicant argued that the sentencing judge failed to take into account that the rehabilitative component of the sentence would be frustrated…

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Details
AGLC
R v GBD [2018] QCA 340
Case
[2018] QCA 340
Decision Date

CaseChat Overview and Summary

In the matter of R v GBD, the applicant was convicted of raping his four-year-old cousin and sentenced to four months imprisonment, to be released on probation for two years. The applicant, who was 17 at the time of the offence and turned 18 before the commencement of the Youth Justice and Other Legislation (Inclusion of 17-year-old Persons) Amendment Act 2016 (Qld), argued that he should have been sentenced as a child under the Youth Justice Act 1992 (Qld) and related regulations. The applicant contended that the sentencing judge erred in sentencing him as an adult and that the relevant transitional regulation was invalid.

The court examined whether the sentencing judge erred by not applying the youth justice legislation and whether the transitional regulation was valid. The court found that the sentencing judge did not err in applying the adult sentencing provisions, as the applicant was 18 when the regulation commenced, and thus did not meet the criteria for youth justice treatment. Additionally, the court upheld the validity of the transitional regulation, stating it was a permissible mechanism to implement the legislative changes. The court also considered the applicant's argument regarding his immigration status and the potential impact on his rehabilitation, but found no error in the sentencing judge's failure to explicitly address this factor.

The court granted leave to appeal, allowed the appeal, and varied the sentence to three months imprisonment in place of the four months originally imposed.

Orders

Orders of the court

1. Grant the application for leave to appeal.

2. Allow the appeal.

3. Vary the sentence imposed in the District Court by substituting a period of three months for the period of four months imposed in the District Court as the period for which the applicant is to be imprisoned.

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

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