R v IJ - [2022] QCA 138

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 2021

DIVISION:

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, distinguished

COUNSEL:

S R Lewis and S J Tan for the applicant (pro bono)
C M Cook for the respondent

SOLICITORS:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v IJ

Details

AGLC: R v IJ [2022] QCA 138
Case: [2022] QCA 138
Decision Date: 5 August 2022

CaseChat Overview and Summary

In the case of R v IJ, the applicant, a juvenile, was sentenced for various offences on eight separate occasions. This appeal concerns the sentences imposed for the separate counts of armed robbery in company and attempted robbery. The sentencing judge imposed a sentence of 12 months’ detention to be served by way of a conditional release. The applicant appealed against the sentence, arguing that 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 conditional release. The appeal was heard in the Queensland Court of Appeal.

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

Although, in different circumstances, I would have thought that a sentence of 12 months’ detention allied with a conditional release order would have been an appropriate response to the most serious of the applicant’s offending, for reasons which I have explained that option is not available here. The particular circumstances of this case suggest taking the pragmatic option of sentencing the applicant to 312 days’ detention. Because that time has already been served, there is no need to differentiate between the two counts for which he must be sentenced.Conclusion For the foregoing reasons, I propose the following 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.” DALTON JA: I agree with the reasons of Bond JA and with the orders he proposes.

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.

CITATION:	R v IJ [2022] QCA 138
PARTIES:	R v IJ (applicant)
FILE NO/S:	CA No 326 of 2021 DC No 44 of 2021
DIVISION:	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, distinguished
COUNSEL:	S R Lewis and S J Tan for the applicant (pro bono) C M Cook for the respondent
SOLICITORS:	No appearance for the applicant Director of Public Prosecutions (Queensland) for the respondent