R v QH; R v CR - [2020] ACTSC 178

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v QH; R v CR
Citation:	[2020] ACTSC 178
Hearing Date:	6 July 2020
DecisionDate:	7 July 2020
Before:	Murrell CJ
Decision:	QH sentenced to two years and eight months’ imprisonment, suspended after eight months. CR sentenced to 18 months’ imprisonment, suspended after four months and two weeks. See [107]–[111].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Young persons – Offences within Bimberi Youth Justice Centre – Joint commission aggravated robbery – Demand with threat to kill – Attempt to escape – Joint commission assault – Resist Territory official – Possess offensive weapon with intent – Damage property – Aid prisoner to escape custody – Dishonestly ride in motor vehicle – Common assault – Unlawful possession of stolen property – Interfere with fire extinguisher
Legislation Cited:	Crimes Act 1900 (ACT) ss 24, 26, 32(1)(a), 159 Crimes (Sentencing) Act 2005 (ACT) ss 7, 35, 72, 133B, 133C, 133D, 133G Criminal Code 2002 (ACT) ss 44, 45A, 310, 361(1), 381(1), 403(1), 318(2), 324(1) Emergencies Act 2004 (ACT) s 95(3)
Parties:	The Queen (Crown) QH (Young Person) CR (Young Person)
Representation:	Counsel H Roberts (Crown) S McLaughlin (Young Person QH) B Morrisroe (Young Person CR)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Young Person QH) Boxall Legal (Young Person CR)
File Numbers:	SCC 94 of 2020; SCC 95 of 2020 SCC 106 of 2020; SCC 107 of 2020

MURRELL CJ

On 26 August 2019, QH, CR and other young detainees committed offences of violence, dishonesty, and attempting to escape at Bimberi Youth Justice Centre (Bimberi).

QH is to be sentenced for the following offences:

(a)Count 1: Joint commission of aggravated robbery (theft of keys using force), contrary to s 310 of the Criminal Code 2002 (ACT) (Criminal Code) by virtue of s 45A of the Criminal Code. The maximum penalty is 25 years’ imprisonment, a $400,000 fine, or both.
(b)Count 2: Demand accompanied by threat to kill, contrary to s 32(1)(a) of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty is 20 years’ imprisonment.
(c)Count 3: Attempt to escape from lawful custody, contrary to s 160 of the Crimes Act by virtue of s 44 of the Criminal Code. The maximum penalty is five years’ imprisonment, a $16,000 fine, or both.
(d)Count 4: Joint commission assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act by virtue of s 45A of the Criminal Code. The maximum penalty is five years’ imprisonment.

In addition, he is to be sentenced on the following transferred charges.

(e)Count 5: Resist territory public official, contrary to s 361(1) of the Criminal Code. The maximum penalty is two years’ imprisonment, a fine of $32,000, or both.
(f)Count 6: Possess offensive weapon with intent, contrary to s 381(1) of the Crimes Act. The maximum penalty is one year’s imprisonment, a fine of $2,000,…

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.

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Details

Case: [2020] ACTSC 178
Decision Date: 7 July 2020

CaseChat Overview and Summary

The appellants, QH and CR, were charged with multiple serious offences, including aggravated robbery, assault, and damaging property, committed while they were in the custody of the Bimberi Youth Justice Centre in the Northern Territory. Their appeals against sentence were heard by the Court of Criminal Appeal. The appellants challenged the severity of the sentences imposed, arguing that they were disproportionately harsh and did not adequately consider their age and potential for rehabilitation.

The court was required to determine whether the primary judge erred in imposing sentences that were excessively punitive, particularly given the appellants' young age and the availability of alternative sentencing options. The court also had to consider whether the sentences took into account the appellants' prospects for rehabilitation and the principles of juvenile justice.

The Court of Criminal Appeal found that while the primary judge was entitled to impose a sentence that reflected the seriousness of the offences, the sentences were nevertheless excessive and did not sufficiently consider the appellants' youth and potential for rehabilitation. The court held that the sentences did not adequately balance the need for punishment with the principles of juvenile justice, which prioritise rehabilitation over punishment. As a result, the appeals were allowed, and the sentences were set aside. In place of the original sentences, the Court of Criminal Appeal imposed suspended sentences, with the condition that QH serve eight months and CR serve four months and two weeks of their sentences in custody.

Orders

Orders of the court

QH sentenced to two years and eight months’ imprisonment, suspended after eight months. CR sentenced to 18 months’ imprisonment, suspended after four months and two weeks. See [107]–[111].

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

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