R v MDJ - [2021] QCA 176

SUPREME COURT OF QUEENSLAND

CITATION:

R v MDJ [2021] QCA 176

PARTIES:

R
v
MDJ
(applicant)

FILE NO/S:

CA No 52 of 2021
DC No 43 of 2020
DC No 7 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Maroochydore – Date of Sentence: 5 March 2021(Long SC DCJ)

DELIVERED ON:

27 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

28 July 2021

JUDGES:

Fraser and Morrison JJA and Applegarth J

ORDER:

The application for leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER – where the applicant pleaded guilty to armed robbery in company with personal violence, wounding, assault occasioning bodily harm while armed and in company, and possession of a category H weapon in public – where the applicant was sentenced to three years’ detention on the count of armed robbery in company with personal violence and eight months’ detention for possession of a category H weapon – where the applicant was ordered to be released after serving 50 per cent of the sentence – where the applicant was sentenced shortly after he turned 18 years of age – where the sentence imposed would result in the applicant being transferred to an adult prison – whether the learned sentencing judge failed to properly consider the effect of Part 8, Division 2A of the Youth Justice Act 1992 (Qld) on the sentence

Youth Justice Act 1992 (Qld), Part 8, Division 2A

R v VL [2019] 3 Qd R 166; [2018] QCA 339, considered

COUNSEL:

J P Benjamin for the applicant
D Nardone for the respondent

SOLICITORS:

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

FRASER JA: I agree with the reasons for judgment given by Morrison JA and the order proposed by his Honour.
MORRISON JA: The applicant was born on 14 February 2003. On 5 March 2021, soon after he turned 18, he was sentenced in the Childrens Court for a number of offences:
(a)armed robbery in company with personal violence;
(b)wounding;
(c)assault occasioning bodily harm while armed and in company; and
(d)possession of a category H weapon, short firearm in public.
He was sentenced to three years’ detention on the count of armed robbery in company with personal violence. He was sentenced to eight months’ detention for possession of a category H weapon. Each of those terms were to be served concurrently.
Prior to the sentence he had served 279 days in presentence custody, which was automatically counted as part of the sentence of detention.[1]
[1]Pursuant to s 218 of the Youth Justice Act1992 (Qld).
The applicant was ordered to be released from detention after serving 50 per cent of the sentence. Under that order his release date would be 29 November 2021.
The applicant seeks to challenge the sentence on one ground that the learned sentencing judge failed to properly consider the effect…

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 MDJ

Details

AGLC: R v MDJ [2021] QCA 176
Case: [2021] QCA 176
Decision Date: 27 August 2021

CaseChat Overview and Summary

In the case of R v MDJ, the applicant appealed against his sentence imposed following his guilty pleas to various serious offences including armed robbery and possession of a category H weapon. The applicant was sentenced to three years' detention for armed robbery and eight months for possession of the weapon, with a requirement to serve 50% of the sentence. The applicant argued that the sentencing judge failed to properly consider the impact of the sentence, which would result in his transfer to an adult prison. This was a critical issue because the applicant would turn 18 years old shortly after the sentence was handed down, leading to his transfer to an adult facility.

The central issue for the court was whether the sentencing judge properly considered the implications of transferring the applicant to an adult prison under Part 8, Division 2A of the Youth Justice Act 1992 (Qld). The applicant's legal team contended that the judge did not engage in any meaningful analysis of the consequences of the transfer, despite acknowledging its possibility. They argued that the transfer was a relevant circumstance that should have influenced the sentence's length. The court needed to determine if the judge's failure to consider these implications warranted a resentencing. The Youth Justice Act provided that a child sentenced to detention must serve it in a detention centre, subject to the Act's other provisions, and Section 276B addressed transfer to a corrective services facility for those over 18 years with a remaining detention period of six months or more.

The court found that the sentencing judge had acknowledged the possibility of transfer and eventual parole but did not engage in detailed analysis of its consequences. However, the court held that the sentencing judge was not required to consider the transfer's impact in detail as it was not a mitigating factor but a relevant circumstance. The court also noted that the applicant would be transferred to an adult prison on 16 August 2021, still having three and a half months of sentence left to serve before release. Given that the applicant would have served only 50% of his sentence, the court did not find that the failure to consider the transfer's impact was so significant as to warrant interference with the sentence. Consequently, the application for leave to appeal was refused.

The court did not find it necessary to resentence the applicant. The applicant would be transferred to an adult prison on 16 August 2021, with three and a half months of his sentence left to serve before his release on 29 August 2021. The application for leave to appeal was accordingly refused.

Orders

Orders of the court

The application for leave to appeal is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The contentions advanced on behalf of the applicant centred around the proposition that the learned sentencing judge had failed to properly consider the effect of Part 8, Division 2A of the Youth Justice Act on the sentence of three years’ detention. That part of the Act provided for the transfer of detainees to adult prisons once they reached 18 and a-half years. The contentions included the following:(a)that the sentencing judge did not engage in any analysis of what the effect of the transfer might be even though his Honour acknowledged the possibility of the transfer and eventual release on parole;(b)the applicant will be transferred to adult prison on 16 August 2021, at which time he will still have three and a-half months of sentence to serve before his release date;(c)the effect of a sentence which involves a transfer must be considered in determining the appropriate period of detention that was the “least time that is justified in the circumstances”, as required by Principle 18 of the Charter of Youth Justice Principles;(d)whilst accepting that a transfer was not a mitigating feature, the fact that the sentence would result in transfer was a relevant circumstance to the discretion overall;(e)his Honour was not alerted to the actual consequences of such a sentence, nor did he engage in any analysis of his own in that respect; and(f)this Court should resentence to a head sentence of two and a-half years detention; maintaining the position that the applicant should serve only 50 per cent, that meant his release should occur on 29 August 2021.Consideration The central feature of the contentions advanced on behalf of the applicant are that the learned sentencing judge failed to properly take into account the effect of the sentence imposed insofar as it would result in a transfer to adult prison. It is therefore necessary to examine what the position is in relation to transfer and what its effect may be. The Youth Justice Act contains a number of provisions which have an impact on this issue. The first of those is s 208 which provides that a court may only make a detention order against a child if the court, after considering various matters, is satisfied that no other sentence is appropriate in the circumstances of the case. Here, it should be noted, the applicant does not contest that an order for detention was appropriate. Therefore, he must be taken to concede that the sentencing judge cannot be criticised for having determined that detention was “the only appropriate response to the present circumstances”.[19][19]AB 68 line 31. Section 210(1) provides that, subject to the Act, a child sentenced to serve a period of detention “must serve the period of detention in a detention centre”. On its face it provides for the default position as being that a child must serve the detention in a detention centre rather than any other place. However, that default position is still made subject to the Act otherwise. Section 276B of the Act relevantly provides for transfer to a corrective services facility:“The following persons are liable to be transferred to a corrective services facility—(a)…(b)A person beginning detention who—(i)is 18 years or older when beginning detention; and(ii)is liable to serve a remaining period of detention of 6 months or more.”

CITATION:	R v MDJ [2021] QCA 176
PARTIES:	R v MDJ (applicant)
FILE NO/S:	CA No 52 of 2021 DC No 43 of 2020 DC No 7 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Maroochydore – Date of Sentence: 5 March 2021(Long SC DCJ)
DELIVERED ON:	27 August 2021
DELIVERED AT:	Brisbane
HEARING DATE:	28 July 2021
JUDGES:	Fraser and Morrison JJA and Applegarth J
ORDER:	The application for leave to appeal is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER – where the applicant pleaded guilty to armed robbery in company with personal violence, wounding, assault occasioning bodily harm while armed and in company, and possession of a category H weapon in public – where the applicant was sentenced to three years’ detention on the count of armed robbery in company with personal violence and eight months’ detention for possession of a category H weapon – where the applicant was ordered to be released after serving 50 per cent of the sentence – where the applicant was sentenced shortly after he turned 18 years of age – where the sentence imposed would result in the applicant being transferred to an adult prison – whether the learned sentencing judge failed to properly consider the effect of Part 8, Division 2A of the Youth Justice Act 1992 (Qld) on the sentence Youth Justice Act 1992 (Qld), Part 8, Division 2A R v VL [2019] 3 Qd R 166; [2018] QCA 339, considered
COUNSEL:	J P Benjamin for the applicant D Nardone for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent