R v GBL
[2023] QCA 104
•19 May 2023
SUPREME COURT OF QUEENSLAND
CITATION:
R v GBL [2023] QCA 104
PARTIES:
R
v
GBL
(applicant)FILE NO/S:
CA No 225 of 2022
DC No 45 of 2022
DC No 52 of 2022
DC No 56 of 2022DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Childrens Court at Townsville – Date of Sentence: 30 September 2022 (Clare SC DCJ)
DELIVERED ON:
19 May 2023
DELIVERED AT:
Brisbane
HEARING DATE:
11 May 2023
JUDGES:
Mullins P and Flanagan and Boddice JJA
ORDER:
Leave to appeal be refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant youth was convicted on his own pleas of guilty to some 27 violence, property and driving offences – where the most serious offending comprised of armed robbery, in company, of a taxi driver (count 7) and assault occasioning bodily harm, while armed in company, of an 80-year-old female complainant at her residence (count 21) – where the applicant was sentenced to an effective head sentence of 20 months detention, to be released after serving 50 per cent – where convictions were recorded on counts 7 and 21 – where the applicant was aged 17 years at the time of the commission of the offences – where much of the offending occurred in the context of substance misuse – where the applicant’s childhood had been marked by significant deprivation well beyond the disadvantage typically seen in the Childrens Court – where the applicant had a lengthy juvenile history for which no convictions had been recorded to date – whether the sentencing judge’s reference to “exceptional circumstances” in the sentencing remarks was the erroneous imposition of a threshold of exceptional circumstances as being the test for recording convictions under s 184(1) of the Youth Justice Act 1992 (Qld) – whether the recording of convictions on counts 7 and 21 rendered the sentence manifestly excessive
Youth Justice Act 1992 (Qld), s 184
R v DBU (2021) 7 QR 453; [2021] QCA 51, cited
COUNSEL:
C J Tessmann for the applicant
S L Dennis for the respondentSOLICITORS:
Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent
MULLINS P: I agree with Boddice JA.
FLANAGAN JA: I agree with Boddice JA.
BODDICE JA: On 2 September 2022, the applicant pleaded guilty, in the Childrens Court at Townsville, to: one count of entering premises with intent to commit an indictable offence (count 1); one count of entering premises and stealing (count 2); one count of attempted burglary, in the night, while armed, in company (count 3); one count of burglary and stealing, in the night, while armed, in company (count 4); one count of unlawfully using a motor vehicle (count 5); one count of dangerous operation of a vehicle with a circumstance of aggravation (count 6); one count of armed robbery, in company (count 7); two counts of receiving stolen property (counts 8, 11); one count of breaking and entering premises and stealing (count 9); one count of wilful damage (count 10); five counts of stealing (counts 12, 14, 15, 17 and 19); two counts of attempted burglary, by breaking, in company, in the night (counts 13, 16); one count of attempted stealing (count 18); one count of burglary, by breaking, in company, in the night (count 20); and one count of assault occasioning bodily harm, while armed, in company (count 21).
On 23 September 2022, the applicant pleaded guilty to five further counts contained on a separate indictment, being two counts of serious assault, one count of wilful damage and two counts of common assault.
On 30 September 2022, the applicant was sentenced to 20 months detention in respect of counts 7, 20 and 21. The applicant was sentenced to lesser concurrent periods of detention in respect of the remaining counts, and in respect of a charge of possessing tainted property, to which the applicant had pleaded guilty that day.
It was ordered that the applicant be released after serving 50 per cent of the period of detention. The period of custody served on remand was to be counted as part of the detention period.
It was further ordered that convictions be recorded in respect of counts 7 and 21, but that convictions not be recorded in respect of the remaining counts and the charge.
The applicant seeks leave to appeal those sentences on the ground that the sentencing judge erred in exercising the discretion to record a conviction. Should leave be given, the applicant seeks leave to rely on further evidence on the resentence. In that event, the respondent does not oppose leave being given to rely on that evidence. As will appear, it is unnecessary to refer to that evidence.
Background
The applicant, an Indigenous male who grew up largely on Mornington Island and in Mount Isa, was aged 17 years at the time of the commission of the offences and aged 18 at the date of sentence.
The applicant had been diagnosed with foetal alcohol spectrum disorder (FASD) and a mild to moderate intellectual disability. As a consequence, he had difficulties managing emotions and controlling his behaviour.
The applicant had an extensive past criminal history. He had over 20 court events, involving many driving and property offences. He also had multiple offences for violence. No convictions had been recorded for any of those prior offences.
Offences
All of the offences were committed over a seven-and-a-half-month period.
The two offences of serious assault were committed on 5 August 2021 and 10 August 2021 respectively, the offence of wilful damage on 10 August 2021, and the offences of common assault on 18 January 2022. All were committed while the applicant was detained at the Cleveland Youth Detention Centre. Each serious assault involved the applicant punching youth detention workers in the head. The wilful damage was caused when the applicant and another young person threw a metal trolley against a wall, causing parts of the trolley to break on impact. Each common assault also involved striking staff members at that centre.
The remaining offences were committed after the applicant had been released from detention.
Counts 1 and 2 were committed on the evening of 7 November 2021. The applicant and unknown co-offenders entered the yards of adjoining properties and attempted to open multiple windows and doors, before entering two vehicles and stealing a padlock key and loose change. The applicant and his co‑offenders decamped when they were disturbed by a neighbouring dog.
Counts 3 to 7 were committed on the evening of 11 November 2021.
The applicant and a juvenile co-offender, whilst in the company of an unknown co‑offender, attempted to enter the unit of a female complainant (count 3). Both the applicant and his juvenile co-offender were wearing dark clothing, surgical gloves and surgical masks, in order to avoid detection. The applicant’s juvenile co-offender was armed with a metallic baseball bat. They left when they were unable to gain entry to the property.
The applicant and his juvenile co-offender then entered a residence occupied by three complainants, all of whom were home at the time of the offence. Entry was gained through a closed, but unlocked, back door. The applicant and his juvenile co-offender stole two handbags, situated on the dining room table and, using the keys located in one of the handbags, stole a motor vehicle from the garage. Small amounts of cash were also stolen from the handbags (count 4).
The stolen motor vehicle was then driven around the streets of Mount Isa. The applicant was a front-seat passenger in that vehicle, whilst the unlicensed driver performed burnouts, skids, drifts and drove on the wrong side of the road, reaching speeds of 100 kilometres per hour. At one point, the driver drove to the Mount Isa Police Station and beeped the horn, in an effort to antagonise police to engage in a pursuit. At another point, the driver drove past a patrolling police vehicle and one of the passengers, not the applicant, shouted, “fuck the police” (count 5).
During this driving episode, the applicant and his juvenile co-offender decided to rob a taxi driver they had observed parked in a nearby carpark. The stolen vehicle was driven at speed towards the taxi driver, before the applicant and his juvenile co-offender exited the vehicle and approached wearing gloves and masks. The applicant was armed with a metallic baseball bat. He struck the taxi, before the taxi driver drove off.
At that point, the applicant and his juvenile co-offender returned to the stolen vehicle which was driven by another in pursuit of the taxi driver, who attempted to evade them by driving at speeds of up to 100 kilometres per hour. The taxi driver also telephoned triple zero whilst he drove. At one point, the driver of the stolen vehicle accelerated to impact the rear of the taxi. At another point, the driver attempted to nudge the taxi. Ultimately, the taxi driver lost control of his vehicle, colliding with a light pole, at a speed of 70 kilometres per hour. The pursuit had lasted over two minutes.
After the collision, the applicant and his juvenile co-offender exited the stolen vehicle. The applicant hit the driver’s side door of the taxi and window multiple times with the baseball bat, before demanding that the taxi driver give them all his money. The taxi driver gave the applicant $100 through an open window, before the applicant’s co-offender opened the front passenger door and demanded all of the money. The taxi driver then gave the applicant’s juvenile co-offender a bag containing $80 in coins (count 7).
After obtaining that money, the applicant and his co-offender returned to the stolen vehicle, which was driven off at speeds of 120 kilometres per hour in an area which had a designated speed limit of 60 kilometres per hour (count 6). The vehicle was later abandoned in a riverbed. It had sustained damage to its front.
Police located the applicant on 18 November 2021. He voluntarily participated in a record of interview, where he made full and frank admissions to his conduct, the subject of counts 3 to 7, although he did not reveal the identity of his co-offenders when asked by police. The applicant was charged and remanded in custody, until granted bail on 23 February 2022.
The remaining counts were committed whilst the applicant was subject to that bail order. All were committed by the applicant and two juvenile co-offenders in the early hours of 19 March 2022.
Counts 8 and 9 were committed when the applicant and his co-offenders took a hammer from the front yard of a male complainant. The applicant used the hammer to smash the passenger window of a vehicle parked at that address. He and a male co-offender entered the vehicle and stole a quantity of cigarettes.
Counts 10 and 11 were committed when the applicant forced open an automatic gate at the property of another male complainant, causing damage to that gate. The applicant and his male co‑offender entered the property and stole a multi-grip tool. Count 12 was committed at this point, when they took a can of spray paint from the tray of a utility vehicle parked at the address. They painted initials on the roadway, before throwing that can of paint into nearby bushes.
Counts 13 and 14 were committed when the applicant cut the mesh of a screen door of a residence occupied by another male complainant. The applicant used the multi‑grips stolen from the previous premises on the main door handle, in an attempt to gain entry to the residence. He was unsuccessful. As he and his co-offenders left, his female co-offender stole a garden sprinkler.
Count 15 was committed when the applicant and his co-offenders entered the front yard of another male complainant. The applicant walked underneath the two-storey residence and stole a metal crowbar.
Count 16 was committed when the applicant unsuccessfully attempted to gain entry to the house of a female complainant, by using the stolen multi-grip tool on the door handle. His efforts damaged the door handle. Whilst in the yard, the applicant stole a t-shirt (count 17).
Counts 18 and 19 were committed when the applicant entered the property of another female complainant. The applicant located a bicycle locked to a pole and attempted to remove the bicycle lock with a wire-stripping tool. When he was unsuccessful, the applicant entered a shed and stole a hockey stick.
Counts 20 and 21 were committed when the applicant and his male co-offender entered the house of an 80-year-old female complainant through a closed, but unlocked, front door. They searched the house for property to steal, while the applicant’s female co-offender remained outside as a lookout. The complainant, who lived alone in the residence, left her bedroom to investigate a noise. The applicant concealed himself near the front door. When the complainant approached her front door, which was ajar, the applicant leapt from his hiding place and struck her across the forehead with the crowbar stolen from the previous premises, causing an eight-centimetre laceration above the left eye, which actively bled.
The complainant struggled with the applicant and wrestled the crowbar away from him, before moving to the living room where she sat on a chair, placing the crowbar beside her. The complainant apologised to the applicant, saying, “I’m so sorry, I don’t have any money, I’m poor”, before embracing the applicant and saying, “I wish I could help you”. At that point, the applicant’s male co-offender approached the female complainant, asking “where’s your purse?”. His demeanour changed upon seeing her injury.
The applicant and his male co-offender assisted the complainant by providing her a cloth to press against her injury. They then ran into her bedroom and obtained her mobile telephone. The female complainant called emergency services. The applicant and his co-offenders left, before police arrived. The stolen crowbar and multi-grips were abandoned in the complainant’s yard.
The female complainant was taken to hospital. She presented with an eight‑centimetre laceration to the left forehead, extending to the eyebrow and bruising to the left eyelid. It was recorded that the laceration was bleeding profusely despite pressure and a dressing being applied. A CT scan revealed a large, left frontal haematoma between the skull and the skin of the skull, which had spread towards the eye, but did not impact upon the structures of the eye. There were no fractures to the skull or facial bones. The laceration was stitched at the hospital.
Sentencing hearing
At the sentencing hearing, it was submitted that the applicant’s most serious offending related to the taxi driver and the 80-year-old female complainant. It was accepted that much of the applicant’s offending occurred in the context of substance misuse. It was also accepted that the applicant had a lengthy juvenile history for which no convictions had been recorded to date, with many property offences and, specifically, two counts of assault occasioning bodily harm whilst armed and one count of armed robbery, which had occurred when the applicant was aged 13 years.
The material placed before the sentencing judge established that the applicant’s childhood had been marked by significant deprivation, well beyond the disadvantage typically seen in the Childrens Court. A pre-sentence report summarised that background:
“Information provided by Child Safety reflects a childhood characterised by neglect, exposure to domestic violence, parental substance misuse, parental involvement with the criminal justice system, and physical misconduct by [the applicant’s biological mother] towards [the applicant]. This resulted in [the applicant] being subject to various child protection orders from 2010 onwards and a long-term guardianship order from May 2013 until he turned 18 years of age.”
The pre-sentence report also noted that the applicant displayed pro-criminal attitudes with limited insight.
A psychometric report tendered at the sentence concluded that the applicant had:
“significant deficits in cognition, executive functioning and attention/concentration and impairments in Speech and Language and adaptive functioning which are likely to have a significant impacts [sic] on his learning and ability to lead a meaningful life unless he receives ongoing support and treatment.”
At the time of sentence, the applicant had spent 289 days in pre-sentence detention. Whilst his behaviour in detention in the past had been poor, it was noted his behaviour during his most recent period (22 March 2022 until sentence) was much better, with the applicant having achieved six months of “gold behaviour”.
At the sentencing hearing, the Crown sought a sentence of two years detention, to be released after serving 60 per cent. It was submitted it was open to record convictions on counts 7, 20 and 21. Defence counsel sought a sentence of 20 months detention. It was submitted that no convictions should be recorded, although it was accepted it was “on the cusp of how your Honour may deal with that”.
Sentencing remarks
The sentencing judge noted that the applicant had difficulty learning and a diagnosis of FASD, as well as head injuries. It was also noted that the applicant had been exposed “to a lot of things no child should see”. It was accepted the applicant had not had a parent to look after him, as a consequence of which he was taken into protection, and that things had “been really tough” growing up.
The sentencing judge observed that the applicant had started offending when he was just 13 years of age, and had been given the benefit of probation, a restorative justice order and three conditional release orders. The applicant had also been in detention on six occasions.
The sentencing judge recorded that the applicant’s offending was serious, with his behaviour having become worse. The applicant had broken into houses, cars and businesses, looking for money for drugs. He did so with other children. His offending had involved planning, with steps to conceal his identity. He had worn masks and gloves. He had stolen from people and taken a car.
The sentencing judge recorded that the applicant’s offending against the taxi driver was particularly disturbing. He had a weapon and had used a stolen car. He also wore a mask. The taxi driver had been hunted and chased with dangerous manoeuvres, until he crashed his taxi. Whilst trapped in the vehicle, the applicant had demanded money.
The sentencing judge recorded that the applicant had been caught soon after that offending and readily confessed to police, although his cooperation did not extend to identifying others involved in the offending.
The sentencing judge recorded that the applicant then went back into detention, and whilst there committed offences, attacking a 65-year-old worker who had been kind to him, before assaulting other workers at that centre.
The sentencing judge recorded that shortly after the applicant’s release, he went back to committing break and enters, using stolen multi-grips and a hammer, with the last offence being committed close to his 18th birthday against the 80-year-old woman, who was living alone in her own home. That offence involved attacking her with a crowbar to the head, causing a not insignificant injury. Whilst the applicant had taken steps to obtain a cloth for her injury, he left the home before the arrival of assistance. The sentencing judge recorded that that offending involved a painful and terrifying attack on an elderly woman, who continued to suffer the memory of that attack, although, remarkably, she forgave the applicant.
After recording that the applicant had pleaded guilty, had served another significant period in detention, for most of which he had been of good behaviour, showing leadership to other children in detention, and that the applicant had been able to see how he had hurt some of his victims, the sentencing judge imposed an effective head sentence of 20 months detention, with release after serving 50 per cent of that detention.
After imposing concurrent lesser periods of detention for the remaining counts and charge, the sentencing judge said:
“A conviction on any offence may bring some adverse consequences for you, and ordinarily convictions ought not be recorded for juvenile offenders, but there are exceptional circumstances here. In particular is such that there is a risk to the safety of other people, notwithstanding the many previous Court orders and past warnings. Your recent progress is promising but it does not remove the danger, especially considering the level of violence against [the 80-year-old female complainant].”
The sentencing judge ordered that convictions be recorded for counts 7 and 21, and that no convictions be recorded for the other offences.
Submissions
The applicant submits that the sentencing judge’s reference to “exceptional circumstances” was a specific error. Whilst the sentencing judge correctly recorded that ordinarily convictions were not recorded against children, the sentencing judge had treated a threshold of exceptional circumstances as being the test for recording convictions, rather than a balancing of all of the circumstances, including the matters specifically required to be taken into account under s 184(1) of the Youth Justice Act1992 (Qld) (“the Act”). Further, the sentencing judge specifically failed to have regard to the applicant’s significantly disadvantaged background, when determining whether to record convictions in respect of counts 7 and 21.
The applicant submits that in re-exercising the sentencing discretion, two features justify not recording convictions for those counts. First, the applicant’s exceptionally prejudicial childhood and related mental impairment. Second, the applicant’s remorse and reasonable prospects of rehabilitation. Whilst the pre‑sentence report had concluded that the applicant struggled to display remorse or insight into most of his offending, the author of the report specifically noted that the applicant’s responses had generally been brief, and that that was likely due to the author having no prior relationship with him, his associated cognitive and language difficulties and cultural considerations, rather than an active defiance from the applicant. Further, the applicant in his most recent period of detention had achieved “gold behaviour” for six months, demonstrating leadership and mentoring skills, and had engaged well in sessions with his psychologist, making progress towards his goals. The applicant also now had a National Disability Insurance Scheme plan and was progressing well outside the structure of a detention centre.
The respondent submits that the sentencing judge did not err in the exercise in the discretion to record convictions. The sentencing judge was cognisant of the relevant matters for consideration, and had regard to each of those matters. The term “exceptional circumstances” was not the articulation of a test; it was an expression of the serious nature of the offences for which convictions were ordered to be recorded.
The respondent further submits that should error be established, a resentencing would result in a recording of convictions for those counts. The applicant’s lengthy and unrelenting criminal conduct since the age of 13, notwithstanding the imposition of multiple detention orders, conditional release orders, community service orders and probation orders, together with the commission of the most serious offending whilst on bail, and at a time when the applicant was approaching 18 years of age, with mixed contents in the pre-sentence report, supported an exercise of the discretion to record convictions in respect of those most serious offences.
Consideration
A review of the sentencing remarks evidences the sentencing judge’s careful consideration of the applicant’s pleas of guilty, his tragic upbringing and learning and other difficulties when structuring a sentence which afforded the applicant the significant benefit of release after serving 50 per cent of the detention period, thereby avoiding serving any time in an adult prison.
However, the recording of any conviction was a matter to be considered separately, after giving specific regard to the nature of the offence, the applicant’s age, his previous convictions and the impact the recording of a conviction would have on his chances of rehabilitation generally, and of finding and retaining employment.
Section 184 of the Act lists those mandatory requirements for consideration when exercising such a discretion, without any of those requirements being given paramountcy. The sentencing judge must have regard to all of the circumstances of the case, including those specific matters.
There is good reason why the Act does not place paramountcy on any particular factor. In the case of a youthful offender, the recording of a conviction is a potential oppression, which may stand in the way of rehabilitation of that youthful offender. The purpose of recording a conviction in respect of a youthful offender is that it serves as a warning “to those dealing with a young person that they must be warned about the risk of serious, physical, moral or economic loss despite the fact that such a warning will affect a young offender’s rehabilitation and employment prospects”.[1]
[1]R v DBU [2021] QCA 51 at [32] per Lyons SJA (with whom Morrison and McMurdo JJA agreed).
The sentencing judge specifically recorded that a conviction may bring “some adverse consequences” and that ordinarily convictions were not to be recorded for juvenile offenders, before finding that there were “exceptional circumstances here”, noting in particular a risk to the safety of other people, and that the applicant’s recent progress, whilst promising, did not remove that danger, especially considering the level of violence inflicted on the 80-year-old female complainant.
The applicant’s offending against the 80-year-old female complainant was particularly serious. It was conduct warranting consideration of the need for a warning to others, by the recording of a conviction in respect of those offences. However, the sentencing judge was required to have regard to not only the serious nature of that offending and the applicant’s considerable criminal history. The sentencing judge was also required to have regard to the applicant’s tragic background, the learning and other difficulties, which were relevant to his behaviour to date, and the good behaviour shown by the applicant in his most recent period of detention, which was in the order of six months.
That good behaviour was a significant change to that shown by the applicant in previous periods of detention. The applicant was said to have also shown leadership in respect of other young detainees. Those changed attitudes were properly to be factored in when determining whether to record convictions.
In my view, a consideration of the sentencing remarks supports a conclusion that those matters were factored in, when exercising the discretion to record convictions for counts 7 and 21.
The term “exceptional circumstances” was a shorthand reference to the applicant’s tragic upbringing, learning and other difficulties, which increased the danger he posed to others, notwithstanding recent changes in attitude, because they led to impulsiveness in his use of violence against others.
The term “exceptional circumstances” was not used as a test to be met, nor did its use evidence a failure to balance all of the factors necessary to be considered in the exercise of the discretion to record convictions in respect of counts 7 and 21.
Conclusion
Once the sentencing remarks are understood in this way, there is no basis to conclude there was any error in the exercise of the discretion to record convictions for counts 7 and 21. Whilst the discretion was finely balanced, to order convictions for those counts was not outside a sound exercise of that discretion.
Orders
I would order:
Leave to appeal be refused.