R v SBU

Case [2011] QCA 203


SUPREME COURT OF QUEENSLAND

CITATION:

R v SBU [2011] QCA 203

PARTIES:

R
v
SBU
(applicant/appellant)

FILE NO/S:

CA No 317 of 2010
SC No 616 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

13 July 2011

JUDGES:

Muir and Fraser JJA and McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.Grant the application for leave to appeal.  

2.Allow the appeal.  

3.Set aside the sentence and orders made by the sentencing judge on 15 December 2010 and instead order that:  

(a)The applicant be detained for a period of 12 years.    

(b)The applicant serve the unserved period of that detention as a period of imprisonment from 21 July 2011, pursuant to s 276B of the Youth Justice Act 1992 (Qld).    

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of murder – where the applicant was 14 years of age at the time of the offence – where the applicant had struck the deceased in the head multiple times with a fence paling – where the attack on the deceased was sustained and marked by ferocity but was not premeditated – where the applicant was assessed as having extremely low cognitive functioning and immaturity – where the sentencing judge found the applicant to be older than his years – where the applicant was sentenced to detention for life – whether the sentence was manifestly excessive

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – RELEVANT FACTORS – GENERAL PRINCIPLES – where detention for life was the maximum sentence which could be imposed on the applicant pursuant to the Youth Justice Act 1992 (Qld) – where the sentencing judge found that the applicant was a continuing danger to the community – where there was evidence that the applicant has prospects of rehabilitation – whether the sentencing judge erred in imposing the maximum sentence

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – OTHER MATTERS – where the sentencing judge made an order pursuant to s 234 of the Youth Justice Act 1992 (Qld) allowing publication of the applicant’s identifying particulars – whether the sentencing judge erred in making the order

Corrective Services Act 2006 (Qld), s 181(3)
Criminal Code
1899 (Qld), s 305(1)
Penalties and Sentences Act 1992 (Qld), s 9(1)
Youth Justice Act
1992 (Qld), s 150, s 150(1)(a), s 150(1)(b), s 150(1)(d), s 150(2)(a), s 150(2)(e), s 155, s 176(3), s 227, s 233, s 234, s 276B, sch 1

BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159, cited
R v Carroll
[1995] QCA 399, distinguished
R v D
[2000] 2 Qd R 659; [1999] QCA 231, distinguished
R v Dwyer[2008] QCA 117, considered
R v Gwilliams[1997] QCA 389, distinguished

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Details
AGLC
R v SBU [2011] QCA 203
Case
[2011] QCA 203
Decision Date

CaseChat Overview and Summary

The case of R v SBU involved a juvenile who was convicted of murder. The applicant had attacked the deceased multiple times with a fence paling, resulting in the deceased's death. The applicant was fourteen years old at the time of the offence and had extremely low cognitive functioning and immaturity. The sentencing judge found the applicant to be a continuing danger to the community, despite evidence of the applicant's prospects for rehabilitation. The applicant was sentenced to detention for life, the maximum sentence available under the Youth Justice Act 1992 (Qld). The applicant appealed against the sentence, arguing that it was manifestly excessive. The court was required to determine whether the sentence was manifestly excessive or inadequate, whether the sentencing judge erred in imposing the maximum sentence, and whether the sentencing judge erred in making an order allowing publication of the applicant's identifying particulars.

The court considered the principles of sentencing juveniles, including the need to protect the community and rehabilitate the offender. The court noted that the attack on the deceased was sustained and marked by ferocity but was not premeditated. The court also considered the applicant's age, cognitive functioning, and prospects for rehabilitation. The court found that the sentence of detention for life was manifestly excessive, given the applicant's age, cognitive functioning, and prospects for rehabilitation. The court also found that the sentencing judge erred in imposing the maximum sentence, as there were mitigating factors that should have been taken into account. The court further found that the sentencing judge erred in making the order allowing publication of the applicant's identifying particulars, as it was not in the interests of justice to do so.

The appeal was allowed, and the sentence and orders made by the sentencing judge were set aside. The court ordered that the applicant be detained for a period of 12 years and serve the unserved period of that detention as a period of imprisonment. The court also noted that the applicant's identifying particulars should not be published. The court's decision highlights the importance of considering the unique circumstances of each case when sentencing juveniles, and the need to balance the need to protect the community with the need to rehabilitate the offender.

Orders

Orders of the court

1.Grant the application for leave to appeal.

2.Allow the appeal.

3.Set aside the sentence and orders made by the sentencing judge on 15 December 2010 and instead order that:

(a)The applicant be detained for a period of 12 years.

(b)The applicant serve the unserved period of that detention as a period of imprisonment from 21 July 2011, pursuant to s 276B of the Youth Justice Act 1992 (Qld).

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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