SUPREME COURT OF QUEENSLAND
CITATION:
R v IJ [2022] QCA 138
PARTIES:
R
v
IJ
(applicant)FILE NO/S:
CA No 326 of 2021
DC No 44 of 2021DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Childrens Court at Townsville – Date of Sentence: 12 November 2021 (Dearden DCJ)
DELIVERED ON:
5 August 2022
DELIVERED AT:
Brisbane
HEARING DATE:
25 July 2022
JUDGES:
McMurdo and Bond and Dalton JJA
ORDERS:
1. Leave to appeal granted.
2. On each count, set aside the sentence and substitute the following sentence: “Conviction not recorded. Order that the offender be detained for 312 days.”
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant, a juvenile, had been sentenced for various offences on eight occasions – where the application before this Court concerned sentences imposed for separate counts of armed robbery in company and attempted robbery – where a pre-sentence custody report was before the sentencing judge which identified different sentencing options – where the sentencing judge sentenced the applicant to detention to be served by way of a conditional release – where the sentencing judge did not explain why the other options identified as suitable by the pre-sentence custody report were rejected in favour of detention to be served by way of conditional release – whether the sentencing judge failed to arrive at the sentence by the required process of reasoning – whether the sentence should be set aside – whether the sentencing discretion should be exercised afresh
Youth Justice Act 1992 (Qld), s 115, s 208, s 212, s 218(1), s 219, s 220, s 227(2), s 228, sch 1
R v Cunningham [2014] 2 Qd R 285; [2014] QCA 88, distinguished
R v DBU (2021) 7 QR 453; [2021] QCA 51, distinguished
R v MDD[2019] QCA 197, applied
R v MDD[2021] QCA 235, distinguished
R v PBE[2019] QCA 185, distinguished
R v SCU[2017] QCA 198, applied
R v TAO[2020] QCA 4, distinguishedCOUNSEL:
S R Lewis and S J Tan for the applicant (pro bono)
C M Cook for the respondentSOLICITORS:
No appearance for the applicant
Director of Public Prosecutions (Queensland) for the respondent
McMURDO JA: I agree with the orders proposed by Bond JA and his reasons.
BOND JA:
Introduction
As at the date of the hearing of the application for leave to appeal against sentence before this Court, the applicant was not yet 18.
He had already been sentenced in the Townsville Childrens Court on eight occasions. And on many of those occasions, the applicant had been sentenced for multiple counts of offending, with separate sentences dealing with separate charges or groups of charges. Further, he had served two significant periods of actual detention, and as at the date of the hearing, remained in custody serving a third period of detention.
The application before this Court concerned the following sentences, imposed on…
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- R v IJ [2022] QCA 138
- Case
- [2022] QCA 138
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the sentencing judge failed to arrive at the sentence by the required process of reasoning and whether the sentence should be set aside. The Court noted that the sentencing judge did not explain why the other options identified as suitable by the pre-sentence report were rejected in favour of detention to be served by conditional release. The Court found that the sentencing remarks did not reveal that the sentencing judge arrived at the sentence by the required process of reasoning and that the sentencing process miscarried. The Court also noted that the lack of appropriate explanation in the sentencing remarks meant that the sentencing process miscarried.
The Court allowed the appeal and set aside the sentence, substituting the following sentence: “Conviction not recorded. Order that the offender be detained for 312 days.” The Court found that the particular circumstances of the case suggested taking the pragmatic option of sentencing the applicant to 312 days’ detention, which had already been served. The Court emphasised that the sentencing process must be carried out by the required process of reasoning, and that the sentencing remarks should explain how the sentencing judge complied with the required process of reasoning, including by expressing the sentencing judge’s reasons for imposing detention rather than taking some other option.
Orders
Orders of the court
1. Leave to appeal granted.
2. On each count, set aside the sentence and substitute the following sentence: “Conviction not recorded. Order that the offender be detained for 312 days.”
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The sentencing judge then explained the conditions of a conditional release order to the applicant and obtained his consent to such an order.Consideration In R v SCU [2017] QCA 198 at [53] and [85] to [86] and MDD 2019 at [54] to [58] the Court has made clear that:(a)The duty of the sentencing judge under the Youth Justice Act is to give consideration to all statutory factors relevant to a particular case, as well as the facts of the case itself before deciding on the appropriate sentence.(b)Section 208 requires the sentencing judge to consider all other options reasonably available before imposing a sentence of detention, including the desirability of not holding a child in detention.(c)The section should be taken to prescribe a process of reasoning.(d)The sentencing remarks should explain how the sentencing judge complied with the required process of reasoning, including by expressing the sentencing judge’s reasons for imposing detention rather than taking some other option. In this case, the sentencing judge did not explain why the other options identified as suitable by the pre-sentence report were rejected in favour of detention to be served by conditional release. It is perhaps understandable how that happened in light of the fact that the applicant had already served 312 days on remand and given both the desirability for some degree of supervision of the applicant and the tenor of the submissions which had been advanced. However the fact that the applicant had already spent time on remand did not necessarily make it appropriate that he be sentenced to any detention at all. Nor, it may be observed, did the time which the applicant had already served have any necessary bearing on the minimum period of detention which should be imposed, particularly bearing in mind that one of the statutory factors which the sentencing judge was obliged to consider was that expressed in paragraph 18 of the Charter of youth justice principles:“A child should be detained in custody for an offence, whether on arrest, remand or sentence, only as a last resort and for the least time that is justified in the circumstances”. The sentencing judge appeared to start with the assumption that a period of detention at least as long as the time which had been served was appropriate. Having regard to the prosecutor’s submission, set out above at [19], it may be inferred that his Honour arrived at a period of detention of 15 months because the time already served was about 70% of that period. The sentencing remarks do not reveal that the sentencing judge arrived at the sentence by the required process of reasoning. The lack of appropriate explanation in the sentencing remarks meant that the sentencing process miscarried. It is unnecessary to consider the contention that the sentence should be regarded as manifestly excessive.Re-sentencing It is appropriate first to consider whether options other than detention are appropriate in this case. The applicable provisions of the Youth Justice Act and the principles to be applied have been identified in R v SCU and MDD 2019 and do not need to be recapitulated here.