R v SDK - [2020] QCA 269

SUPREME COURT OF QUEENSLAND

CITATION:

R v SDK [2020] QCA 269

PARTIES:

R
v
SDK
(applicant)

FILE NO/S:

CA No 70 of 2020
DC No 97 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Beenleigh – Date of Sentence: 10 March 2020 (Chowdhury DCJ)

DELIVERED ON:

4 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2020

JUDGES:

Fraser and Philippides and McMurdo JJA

ORDERS:

1. Grant leave to appeal.

2. Allow the appeal.

3. Set aside the order made by the sentencing judge, pursuant to s 234 of the Youth Justice Act1992, that the publication of identifying information about the appellant be allowed.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – OTHER MATTERS – where the sentencing judge found that the offence was a “particularly heinous offence” under s 176(3) of the Youth Justice Act 1992 (Qld) (“the Act”) – where the sentencing judge made an order permitting the publication of identifying information about the applicant under s 234 of the Act – where a finding of a particularly heinous offence is made for the purpose of determining whether the period of detention of the child should be increased from a maximum of 10 years to life under s 176(3) of the Act – whether the sentencing judge erred in making that finding – whether the sentencing judge erred in making the order under s 234 of the Act

Youth Justice Act 1992 (Qld), s 176, s 234

R v Maygar; Ex parte Attorney-General (Qld); R v WT; Ex parte Attorney-General (Qld)[2007] QCA 310, applied
R v Rowlingson [2008] QCA 395, considered
R v SBU [2012] 1 Qd R 250; [2011] QCA 203, considered

COUNSEL:

J Crawford for the applicant
N W Crane 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 of McMurdo JA and the orders proposed by his Honour.
PHILIPPIDES JA: I agree with the orders proposed by McMurdo JA for the reasons given by his Honour.
McMURDO JA: This is an application for leave to appeal against a sentence imposed in the Childrens Court, for an offence of intentionally doing grievous bodily harm. The sentence imposed was four years’ detention, with release after 60 per cent of the term that had been served. A period of 508 days was declared as pre-sentence custody, and a conviction was recorded.
There is no challenge to any of those orders. What is challenged is a further order, made under s 234(2) of the Youth Justice Act 1992 (Qld) (“the Act”), permitting the publication of identifying information about the applicant.
The applicant was 17 years of age when he committed the offence. The victim was a 12 year old school girl who was unknown to him. By chance, she was walking past the applicant on her way to school when, without warning, he lunged at her and struck…

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 SDK

Details

AGLC: R v SDK [2020] QCA 269
Case: [2020] QCA 269
Decision Date: 4 December 2020

CaseChat Overview and Summary

In the case of R v SDK, the applicant appealed against his conviction and sentence for murder, as well as the sentencing judge's order permitting the publication of his identifying information. The applicant, who had murdered his brother, was sentenced to life imprisonment for the offence of murder and various terms on other offences. The sentencing judge had found the offence to be particularly heinous and made an order permitting the publication of the applicant's name.

The court was required to decide whether the sentencing judge erred in finding the offence to be particularly heinous, and in making the order permitting the publication of the applicant's name. The court considered the applicant's lack of remorse and the risk he posed to the community as factors supporting the sentencing judge's decision. The court also examined the relevance of the interests of the applicant's family in the exercise of the discretion under s 234 of the Youth Justice Act 1992.

The court found that the sentencing judge had given anxious consideration to the feelings of the applicant's parents but that the weight which could reasonably be accorded to this consideration was diminished by the fact that the community was already familiar with the circumstances of the case and the identity of the applicant. The court concluded that the sentencing judge's discretion under s 234 of the Youth Justice Act to permit the publication of the applicant's name did not miscarry.

ORDERS:
1. Grant leave to appeal.
2. Allow the appeal.
3. Set aside the order made by the sentencing judge, pursuant to s 234 of the Youth Justice Act 1992, that the publication of identifying information about the appellant be allowed.

Orders

Orders of the court

1. Grant leave to appeal.

2. Allow the appeal.

3. Set aside the order made by the sentencing judge, pursuant to s 234 of the Youth Justice Act 1992, that the publication of identifying information about the appellant be allowed.

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

The respondent’s submissions emphasised a number of references, in reports of nurses and in Dr Beech’s report, to the effect that the applicant showed no sign of distress or remorse about his offence. It is submitted that the protection of the community and the rehabilitation of the applicant were competing features for the exercise of the discretion under s 234, and that it was open to the sentencing judge to conclude that the applicant demonstrated “a continuing danger to the community”. The lack of remorse, it is submitted, was a crucial finding. And it is submitted that the applicant had not demonstrated that he was an offender who was conducive to accepting necessary treatment.Consideration In R v Rowlingson, the applicant pleaded guilty to murder, interfering with a corpse, stealing and unlawful use of a motor vehicle. At the time of his offending, he was aged 16 years and 10 months, and he was 18 years old when sentenced. He murdered his brother, who was 19 years old. He was sentenced to life imprisonment for the offence of murder, and various terms, not exceeding 12 months, on the other offences. A conviction was recorded and an order was made under s 234, permitting publication of the applicant’s name. The Court dismissed his appeal in all respects. As to s 234, Keane JA[16] said:“[47] It is submitted that the order permitting the naming of the applicant is apt unnecessarily to bring shame upon his family. This concern was recognised by the learned sentencing judge as a factor relevant to the exercise of the discretion under s 234 of the Juvenile Justice Act. It may be open to question whether, in accepting that the interests of the applicant’s parents were relevant to the exercise of the discretion in s 234, her Honour was unduly generous to the applicant. It is arguable that the considerations relevant to the discretion concern the balance between the rehabilitation and proper punishment of the offender; on that view the interests of the offender’s family may be thought to be somewhat remote at least where the sentence imposed is such that the offender will not be spending any period of post-custody release with his family as a dependent child. On the other hand, it may be said that the “interests of justice” within s 234(1)(c)(ii) properly encompass the interests of the applicant’s parents as victims of his crime. In the event, it is not necessary for present purposes to resolve this question.[48]There can be no doubt that her Honour gave anxious consideration to the feelings of the applicant’s parents who have already suffered so much. The weight which could reasonably be accorded to this consideration was, however, diminished by the circumstance, noted by her Honour, that the community in which the applicant’s parents live were already familiar with the circumstances of the case and the identity of the applicant.[49]The applicant committed a particularly heinous crime: he is a dangerous man; there is a legitimate reason in terms of the protection of the community – including, bearing in mind Dr Harden’s opinion that “an institutional context … may provide opportunities for him to continue to exercise power and control …”, his fellow inmates in prison – why the facts in this regard should be made public.[50]In these circumstances, I do not consider that the learned sentencing judge’s discretion under s 234 of the Juvenile Justice Act to permit the publication of the applicant’s name miscarried.”[16]With whom Muir and Fraser JJA agreed.

CITATION:	R v SDK [2020] QCA 269
PARTIES:	R v SDK (applicant)
FILE NO/S:	CA No 70 of 2020 DC No 97 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Beenleigh – Date of Sentence: 10 March 2020 (Chowdhury DCJ)
DELIVERED ON:	4 December 2020
DELIVERED AT:	Brisbane
HEARING DATE:	31 July 2020
JUDGES:	Fraser and Philippides and McMurdo JJA
ORDERS:	1. Grant leave to appeal. 2. Allow the appeal. 3. Set aside the order made by the sentencing judge, pursuant to s 234 of the **Youth Justice Act1992, that the publication of identifying information about the appellant be allowed.**
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – OTHER MATTERS – where the sentencing judge found that the offence was a “particularly heinous offence” under s 176(3) of the Youth Justice Act 1992 (Qld) (“the Act”) – where the sentencing judge made an order permitting the publication of identifying information about the applicant under s 234 of the Act – where a finding of a particularly heinous offence is made for the purpose of determining whether the period of detention of the child should be increased from a maximum of 10 years to life under s 176(3) of the Act – whether the sentencing judge erred in making that finding – whether the sentencing judge erred in making the order under s 234 of the Act Youth Justice Act 1992 (Qld), s 176, s 234 R v Maygar; Ex parte Attorney-General (Qld); R v WT; Ex parte Attorney-General (Qld)[2007] QCA 310, applied R v Rowlingson [2008] QCA 395, considered R v SBU [2012] 1 Qd R 250; [2011] QCA 203, considered
COUNSEL:	J Crawford for the applicant N W Crane for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent