R v SBU

Case [2011] QCA 203 23 August 2011

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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

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 SBU

Details

AGLC: R v SBU [2011] QCA 203
Case: [2011] QCA 203
Decision Date: 23 August 2011

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

R v SBU [2011] QCA 203

Most Recent Citation

R v SDK [2020] QCA 269

Cases Citing This Decision

R v PZW [2025] QSC 39
Citation 1 (Para 38)

…ticular regard to the more recent decisions: R v SBU [18], R v YTZ [19], and R v HST, [20] together with my own decision in R v LZY & Porter [21] [18][2011] QCA 203. [19][2023] QCA 87. [20]Unreported, Supreme Court of Queensland, Sullivan J, 13 May 2024. [21][2024] QSC 237.…
R v BXY [2023] QSC 42
Citation 2 (Para 28)

…Another case that, in my view, supports the conclusion that the Crown’s contended 12 year sentence is too high is R v SBU [2011] QCA 203. That was the term imposed, following a successful appeal, on a 14 year old offender convicted of the violent murder of a stranger, in company with another person, who was an ad…
Dickey v R [2023] NZCA 2
Citation 3 (Para 4)

…for murder successfully appealed the sentence, which was quashed and substituted with a finite sentence of 12 years’ imprisonment.[66] [66] R v SBU [2011] QCA 203, [2012] 1 Qd R 250.…
R v SDK [2020] QCA 269
Citation 4 (Para 28)

…bsection (2) of section 234 that identifying information about the offender can be published.” [13][2008] QCA 395. [14][2012] 1 Qd R 250; [2011] QCA 203.…

See all citing cases →

Cases Cited

R v Handlen & Paddison [2010] QCA 371
Citation 1 (Para 34)

…[4][2000] 2 Qd R 659 at 661 [10]-[11]. See also R v Rowlingson [2008] QCA 395 at [34]-[35] and R v Handlen & Paddison [2010] QCA 371 at [135].…
BP v R [2010] NSWCCA 159
Citation 2 (Para 1)

…s the benefit of responsible adult supervision and guidance of which he was previously deprived. [15]See the similar conclusion in BP v R [2010] NSWCCA 159 at [6] per Hodgson JA and at [108] per Rothman J.…
R v Rowlingson [2008] QCA 395
Citation 3 (Para 1)

…ned his innocence after the trial, and the psychiatric evidence justified the finding that the offender was “presumably highly dangerous”. [7][2008] QCA 395. [8][2000] 2 Qd R 659.…
R v Dwyer [2008] QCA 117
Citation 4 (Para 1)

…hat the offence considered in that case was not a spur of the moment error of judgment which might be explicable by the child’s immaturity. [13][2008] QCA 117 at [30]. [14][2008] QCA 395 at [36].…
R v. Maygar; ex parte A-G (Qld); R v WT; ex parte A-G (Qld) [2007] QCA 310
Citation 5 (Para 1)

…e Justice Act must be observed by a sentencing judge.” The applicable sentencing principles are prescribed in s 150 of the Youth Justice Act : [5][2007] QCA 310 at [57].…
R v WS [2007] QCA 207
Citation 6 (Para 1)

…is the applicant’s young age. Taking all of the circumstances into account, I consider that the appropriate sentence is 12 years detention. [16][2007] QCA 207. [17][2000] 1 Qd R 460.…
R v D [1999] QCA 231
Citation 7

…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 R v Maygar; ex parte A-G (Qld); R v WT; ex parte A-G (Qld) [2007] QCA 310, considered R v Rowlingson [200…
R v Gwilliams [1997] QCA 389
Citation 8 (Para 1)

…11] In R v Gwilliams the offender was 16 years old and the Court also took into account that there was an element of premeditation in the offence. [9][1997] QCA 389. [10][1995] QCA 399. [11]The judgment describes that offender as being 17 years of age, but the stated date of birth and date of the offence suggests…
Veen v The Queen (No 2) [1988] HCA 14
Citation 9

…nsidered R v Rowlingson [2008] QCA 395, distinguished Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, applied COUNSEL: J Hunter SC for the applicant/appellant D C Boyle for the respondent SOLICITORS: Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the…

Legislation Cited

Youth Justice Act 1992 (Qld) 150, 227, 233
4 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld) 9(1)
2 mentions (from Para 1)
Corrective Services Act 2006 (Qld) 181(3)
1 mention (from Para 1)
Victims of Crime Assistance Act 2009 (Qld)
1 mention

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