R v SEG

Case [2024] QCA 95

SUPREME COURT OF QUEENSLAND

CITATION:

R v SEG [2024] QCA 95

PARTIES:

R
v
SEG
(applicant)

FILE NO/S:

CA No 137 of 2023
DC No 24 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville – Date of Sentence: 27 July 2023 (Coker DCJ)

DELIVERED ON:

28 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2024

JUDGES:

Morrison and Bond JJA and Brown J

ORDER:

The application for leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING A CHILD – SERIOUS REPEAT OFFENDER DECLARATION – SUBJECTIVE JURISDICTIONAL FACTS – CHILD ENTITLED TO EXPLANATION OF SENTENCE – where the applicant pleaded guilty to a number of offences, including unlawful use of a motor vehicle, driving without a licence, stealing, wilful damage, breaking and entering premises, attempted burglary in company and attempted entering of premises with intent to commit an indictable offence – where the applicant was sentenced as a child under the Youth Justice Act 1992 (Qld) – where the applicant was declared to be a Serious Repeat Offender under s 150A of the Youth Justice Act 1992 (Qld) – whether the sentencing judge erred in making the Serious Repeat Offender declaration – whether the sentencing judge exposed sufficient reasons for making the finding that there was a high probability that the applicant would commit a further prescribed indictable offence – whether the sentencing judge failed to explain the sentence, or more specifically, the making of the Serious Repeat Offender declaration, under s 158 of the Youth Justice Act 1992 (Qld)

CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to eighteen months detention, with convictions being recorded for three of the most serious offences – whether the sentence was manifestly excessive, having regard to the applicant’s early plea, conditions of pre-sentence custody and deprived background

Young Offenders Act 1994 (WA), s 124
Youth Justice Act 1992 (Qld), s 77, s 150, s 150A, s 150B, s 158, s 160, s 209

Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377; [1999] EWCA Civ 811, cited
JSA v Western Australia (2012) 42 WAR 473; [2012] WASCA 25, applied
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited
R v Atasoy[2023] QCA 121, cited
R v H[2001] QCA 356, considered
R v MCT[2018] QCA 189, cited
R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited
R v SCU[2017] QCA 198, cited
R v SDW (2022) 12 QR 479; [2022] QCA 241, cited
R v TA [2023] QChC 2, cited
S.H.A. Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd [2020] QSC 307, cited

COUNSEL:

C R Smith for the applicant
S J Muir for the respondent

SOLICITORS:

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

  1. THE…

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R v SEG [2024] QCA 95
Case
[2024] QCA 95
Decision Date

CaseChat Overview and Summary

In this case, the applicant appealed against his sentence and the Serious Repeat Offender declaration made under the Youth Justice Act 1992 (Qld). The applicant pleaded guilty to multiple offences, including unlawful use of a motor vehicle, driving without a licence, stealing, wilful damage, breaking and entering premises, attempted burglary in company, and attempted entering of premises with intent to commit an indictable offence. The applicant was sentenced as a child and declared to be a Serious Repeat Offender, which led to an eighteen-month detention sentence, with convictions being recorded for three of the most serious offences.

The legal issues in the case revolved around whether the sentencing judge erred in making the Serious Repeat Offender declaration and whether the sentencing judge provided sufficient reasons for making the finding that there was a high probability that the applicant would commit a further prescribed indictable offence. Additionally, the court examined whether the sentencing judge failed to explain the sentence or the making of the Serious Repeat Offender declaration as required under s 158 of the Youth Justice Act 1992 (Qld).

The court found that while the sentencing judge did not specifically identify the prescribed indictable offence the applicant would commit, he had satisfied himself that there was a high probability that the applicant would commit "a" further prescribed indictable offence. The court also held that the sentencing judge had addressed the correct matters to satisfy himself of the preconditions for making the Serious Repeat Offender declaration and no error was established. However, the court did find that the sentencing judge failed to explain the effect of the Serious Repeat Offender declaration under s 150B of the YJA in relation to any subsequent offending and any sentence that would be imposed in relation to subsequent offending. Despite this, the court found that the sentence imposed was open on the facts, and the application for leave to appeal was refused.

The court's reasoning and outcome in this case demonstrate the importance of ensuring that sentencing judges properly consider the principles of the Youth Justice Act 1992 (Qld) when making a Serious Repeat Offender declaration and providing sufficient reasons for their findings. While the court found that the sentence imposed was open on the facts, it also highlighted that detention should only be imposed as a last resort and that sentencing courts should not lose sight of the principles of s 150 of the Act. Additionally, the court's decision emphasised the importance of providing adequate explanations to the child about the consequences of the Serious Repeat Offender declaration under s 158 of the YJA.

Orders

Orders of the court

The application for leave to appeal is refused.

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

The sentence imposed upon such a young man who is still in his formative years, albeit close to what is regarded as adulthood, is at the most serious end of sentencing for a youth offender. The applicant has continued to offend on multiple occasions, committing indictable offences, notwithstanding previous opportunities to avoid detention on multiple occasions, with attempts at rehabilitation having little success. His participation in offending involving unlawful use of a motor vehicle and, particularly, ram raids posed a risk to the safety of the public. His history of previous offending supported the fact it was likely to continue and would not be contained by any community-based order. In the circumstances of this case, where the sentencing judge properly concluded the preconditions to making the SRO were satisfied, the sentence imposed was open on the facts, notwithstanding the mitigating factors, particularly the periods of separation. However, notwithstanding the introduction of ss 150A and 150B of the YJA, sentencing courts should not lose sight of the fact that the principles of s 150 continue to apply and detention should only be imposed as a last resort.Conclusion The application for leave should be refused.

Ratio Decidendi

Legal Principle Established

As to the suggestion his Honour had not identified the prescribed indictable offence, the Crown’s submissions, which were considered by the sentencing judge, had set out the definition of “prescribed indictable offence”. His Honour specifically referred to the consideration being “a high probability that you commit a further prescribed indictable offence” in identifying the matter to be considered. The section does not require that the sentencing judge specifically identify “the” prescribed indictable offence that the child would commit, but rather that he be satisfied that there is a high probability that the child would commit “a” further prescribed indictable offence. As long as the sentencing judge is satisfied that the child would commit a further prescribed indictable offence within the category of offences that are defined, that is sufficient. Section 150A(2)(d) does not call for the prescribed indictable offence to be specifically identified. The offences for which the applicant was being sentenced included a number of offences relating to unlawful use of a motor vehicle,[26] which was a prescribed indictable offence. His Honour referred to the applicant’s prior criminal history as including 30 previous offences for unlawful use of a motor vehicle. While it may have been preferable for his Honour to have identified the prescribed offence he considered the applicant would commit relevant to s 150A(2)(d), it is evident in the circumstances and context of his Honour’s comment that “the past is the best indicator of the future”, that his Honour was satisfied that the applicant would commit a further prescribed indictable offence consistent with those he had committed in the past. His Honour had addressed the correct matters to satisfy himself of the precondition and no error is established.Ground 2 – failure to explain the sentence and, specifically, the making of the Serious Repeat Offender declaration[26]Criminal Code (Qld) s 408(1)(a). In the course of his reasons, the sentencing judge explained the consequence of making the SRO in the context of its effect on the sentence to be imposed upon the applicant under s 150A(3). However, his Honour did not explain the effect of the SRO under s 150B of the YJA in relation to any subsequent offending and any sentence that would be imposed in relation to subsequent offending.[27] According to the applicant, his Honour’s explanation therefore did not comply with s 158 of the YJA.[27]Comments by the sentencing judge during the Crown’s sentencing submissions demonstrate that his Honour was plainly aware of the effect of the SRO. Section 158 of the YJA provides that:“(1)When making an order sentencing a child for an offence a court must take steps to ensure that the child understands—(a)the purpose and effect of the order; and(b)the consequences (if any) that may follow if the child fails to comply with the order.(2)Examples of the steps a court may take are—(a)directly explaining these matters in court to the child; or(b)having some appropriate person give the explanation; or(c)having an interpreter or other person able to communicate effectively with the child give the explanation; or(d)causing an explanatory note in English or another language to be supplied to the child.(3)Subsection (1) does not apply where the child’s presence is not required at sentence.”