R v GBL

Case [2023] QCA 104

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 2022

DIVISION:

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 respondent

SOLICITORS:

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

  1. MULLINS P:  I agree with Boddice JA.

  2. FLANAGAN JA:  I agree with Boddice JA.

  3. 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);…

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Details
AGLC
R v GBL [2023] QCA 104
Case
[2023] QCA 104
Decision Date

CaseChat Overview and Summary

The applicant, a 17-year-old Indigenous male with a history of substance misuse and significant childhood deprivation, sought leave to appeal his sentence for multiple violent, property, and driving offences. The most serious offences included armed robbery of a taxi driver and assault occasioning bodily harm to an 80-year-old woman, for which convictions were recorded. The applicant was sentenced to 20 months detention, with release after serving 50 per cent. The applicant argued that the sentencing judge incorrectly applied a threshold of "exceptional circumstances" when deciding to record convictions under section 184(1) of the Youth Justice Act 1992 (Qld) and that the recording of convictions rendered the sentence manifestly excessive.

The court had to determine whether the sentencing judge correctly exercised the discretion to record convictions and whether the sentence was manifestly excessive. The court examined the sentencing judge's remarks and found that the term "exceptional circumstances" was not used as a threshold but rather as part of a balanced consideration of all relevant factors, including the nature of the offences, the applicant's age, his previous convictions, and the potential impact on his rehabilitation and employment prospects. The court held that the sentencing judge did not err in exercising the discretion to record convictions for the most serious offences. The court also concluded that the sentence was not manifestly excessive, given the applicant's extensive criminal history and the seriousness of the offences.

The court refused leave to appeal and noted that the sentencing judge had carefully considered the applicant's background and circumstances in imposing the sentence. The court highlighted that the recording of convictions was warranted due to the serious nature of the offences, particularly the assault on the elderly woman, and the risk to public safety. The court found that the sentence, which allowed for early release, was appropriate and balanced the need for punishment and rehabilitation.

LEAVE TO APPEAL BE REFUSED.

Orders

Orders of the court

Leave to appeal be refused.

Background

Background to the litigation

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).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.