R v GYZ
[2023] QSC 127
•12 June 2023
SUPREME COURT OF QUEENSLAND
CITATION: R v GYZ [2023] QSC 127 PARTIES: R
v GYZ
(defendant)
FILENO/S: Indictment No 68 of 2023 DIVISION: Trial Division PROCEEDING: Sentence ORIGINATING COURT: Supreme Court at Brisbane DELIVEREDON: 12 June 2023 DELIVEREDAT: Brisbane HEARINGDATE: 7 June 2023 JUDGE: Kelly J ORDER: I declare that this sentencing proceeding is not a sentencing proceeding for “a child offence” within the meaning of s 132 of the Youth Justice Act 1992 (Qld). CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – SENTENCING AS ADULT OR CHILD AND
IMPRISONMENT – where the defendant plead guilty to multiple counts on an indictment including one count of trafficking in dangerous drugs – where the initial part of the relevant trafficking period occurred when the defendant was 17 years old – whether the sentence proceeding is a sentencing proceeding for “a child offence” within the meaning of s 132 of the Youth Justice Act 1992 (Qld)
Acts Interpretation Act 1954 (Qld) Drugs Misuse Act 1986 (Qld) Youth Justice Act 1992 (Qld)
R v Elhusseini [1988] 2 Qd R 442
R v Wyles; ex parte A-G [1977] Qd R 169
COUNSEL: T Corsbie for the Crown
V Trafford-Walker for the defendant
SOLICITORS: Director of Public Prosecutions for the Crown Legal Aid Queensland for the defendant
On 7 June 2023, the defendant pleaded guilty to multiple counts on an indictment, including one count of trafficking in dangerous drugs. The trafficking occurred between 1 March 2019 and 26 April 2021. For the initial part of that trafficking period, between 1 March 2019 and 30 April 2019, the defendant was 17 years old.
After his arraignment and the administration of the allocutus, a preliminary question arose as to whether, in respect of the trafficking offence, the sentencing proceeding was a proceeding for “a child offence” within the meaning of s 132 of the Youth Justice Act 1992 (Qld) (“the Youth Justice Act”). I have answered that question in the negative for the following reasons.
Youth Justice Act
Part 6, Division 11 of the Youth Justice Act is headed “Child offenders who become adults”.
Division 11 includes sections 132 to 146. Subdivision 1 of Division 11 contains ss 132 and 133 which are in the following terms:
“132 Definitions for pt 6, div 11
In this division—
adult offence means an offence committed by an adult. child offence means an offence committed by a child. offender means a person who has—
(a)committed an offence as a child; and
(b)since committing the offence become an adult
sentence, in relation to an offender sentenced as an adult, includes orders made instead of sentence.
133 Reference to offence includes alleged offence
A reference in this division to an offence committed by the offender includes, if the offender has not been found guilty of the offence, an offence the offender is alleged to have committed.”
The Youth Justice Act contains no relevant definition of “offence”. 1
Subdivision 4 of Division 11 is headed “Circumstances affecting whether offender is treated as adult or child”. Sections 140 and 144 appear within that subdivision and relevantly provide:
“140 When offender must be treated as an adult
(1)If 1 year has passed after an offender has become an adult—
1There is a definition of “offence” for the purpose of Division 2 of Part 7 of the Youth Justice Act 1992 (Qld) (“the Youth Justice Act”) which is not material.
(a)a proceeding afterwards started against the offender for a child offence must be taken as if the offender were an adult at the time of the commission of the child offence; and
(b)if found guilty in the proceeding—the offender must be sentenced as an adult.
…
(4)An offender must not be treated as an adult under this section if the court is satisfied that there was undue delay on the part of the prosecution in starting or completing the proceeding.
…
144 Sentencing offender as adult
(1)Subject to subsections (2) and (3), a court sentencing an offender as an adult under section 140, 141 or 143 has jurisdiction to sentence the offender in any way that an adult may be sentenced.
(2)The court must have regard to—
(a)the fact that the offender was a child when the child offence was committed; and
(b)the sentence that might have been imposed on the offender if sentenced as a child.
(3)The court can not order the offender—
(a)to serve a term of imprisonment longer than the period of detention that the court could have imposed on the offender if sentenced as a child; or
(b)to pay an amount by way of fine, restitution or compensation greater than that which the court could have ordered the offender to pay if sentenced as a child.
(4)Subsection (3) applies even though an adult would otherwise be liable to a heavier penalty which by operation of law could not be reduced.”
Division 12 of the Youth Justice Act is headed “Some provisions about admissibility of childhood offences”. Section 148 appears within that division and relevantly provides:
“148 Evidence of childhood finding of guilt not admissible against adult
(1)In a proceeding against an adult for an offence, there must not be admitted against the adult evidence that the adult
was found guilty as a child of an offence if a conviction was not recorded.
Part 7 of the Youth Justice Act is headed “Sentencing”. Section 149(e) provides that a court that sentences a child for an offence must sentence the child under that part.2 Section 150 then relevantly provides:
“150 Sentencing principles
(1)In sentencing a child for an offence, a court must have regard to—
…
(e) the child’s previous offending history.”
The offence of trafficking
For the purpose of the Criminal Code, an offence is defined as an “An act or omission which renders the person doing the act or making the omission liable to punishment”.3 The expression “act or omission” is given an extended operation by the Acts Interpretation Act 1954 (Qld) to include a series of acts or omissions.4
The specific offence of trafficking is created by s 5(1) of the Drugs Misuse Act 1986 (Qld) (“the Drugs Misuse Act”). Section 5(1) of the Drugs Misuse Act provides “a person who carries on the business of unlawfully trafficking in a dangerous drug is guilty of a crime”. In R v Elhusseini5, Connolly J observed6 “Carrying on the business of trafficking in any substance must include all acts which are part of such a business…”. In the same case, McPherson J said:7
“The expression ‘trafficking’ in a context like s 5 has been held to mean knowingly engaging in the movement of drugs from source to ultimate user ... ordinarily, if not invariably, an element of commercial enterprise is involved … carrying on business, particularly where the subject matter of that business is goods or services, usually involves a series of activities, such as advertising or promoting the ‘product’ by communicating with prospective buyers, setting up lines of supply; negotiating prices and terms of supply and payment; soliciting and receiving orders, arranging for places and times of delivery, and so on.”
In the present case, the count of trafficking to which the defendant pleaded guilty was particularised by reference to an extended period of time, and multiple occasions on which the defendant advertised, promoted and supplied illicit drugs.
Section 149(1) of the Youth Justice Act.
Criminal Code, s 2.
Section 32C(a) of the Acts Interpretation Act 1954 (Qld); R v Wyles; ex parte A-G [1977] Qd R 169.
[1988] 2 Qd R 442.
Ibid at 445.
Ibid at 450.
The significance of the preliminary question
The Crown submitted that, because the first two months of the trafficking period occurred when the defendant was a child, the sentencing proceeding was properly characterised as a proceeding “started against the offender for a child offence” within the meaning of that expression as used in s 140(1)(a) of the Youth Justice Act. According to that submission, as the defendant was being sentenced as an adult under s 140, s 144(2) applied and required the Court to have regard to the fact that the defendant was a child when the child offence was committed and “the sentence that might have been imposed on the offender if sentenced as a child”. In considering the sentence that might have been imposed on the defendant if sentenced as a child, it was submitted that the Court was required to have regard to the sentencing principles contained in Pt 7 of the Youth Justice Act, particularly s 150(1)(e), which obliged the Court to have regard to the defendant’s previous offending history as a child.
A proceeding started for a child offence?
Section 132 of the Youth Justice Act contains definitions for the purposes of Division 11 of Part 6 including “child offence”, “adult offence” and “offender”. The term “offence” is not relevantly defined. In the present case, the defendant has pleaded guilty to the offence of trafficking under the Drugs Misuse Act. It is that offence which is said by the Crown to be a “child offence”. The definitions introduce a dichotomy involving an “adult offence” and a “child offence”. Plainly, according to the statutory language, a “child offence” does not contemplate acts or omissions being committed by an adult. Similarly, an “adult offence” does not contemplate acts or omissions being committed by a child. The definition of “offender” reinforces the dichotomy as it speaks in terms of a child offender who “since committing the offence” has “become an adult”. None of these definitions contemplate offending involving the commission of acts or omissions as both a child and adult.
The Crown submitted that this proceeding had been started against the defendant for a child offence because, essentially, some of the acts or omissions involved in the single count of trafficking were committed whilst the defendant was a child. I reject that submission. The count of trafficking to which the defendant has pleaded guilty involves a series of activities over an extended period, including when the defendant was an adult. The count is not limited to acts engaged in as a child. The defendant is not “an offender” for the purposes of Division 11 of Part 6 because he is not someone who has become an adult since committing the offence the subject of the count on the indictment. The current proceedings are not properly characterised as a proceeding started for a child offence and Division 11 of Part 6 of the Youth Justice Act has no application. Rather, the current proceeding is a proceeding against an adult for “an offence” within the meaning of s 148 and there must not be admitted against the defendant, evidence that the defendant was found guilty as a child of an offence if a conviction was not recorded.
For these reasons, I declare that this sentencing proceeding is not a sentencing proceeding for “a child offence” within the meaning of s 132 of the Youth Justice Act.
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