R v TBB

[2024] QCA 81

SUPREME COURT OF QUEENSLAND

CITATION:

R v TBB [2024] QCA 81

PARTIES:

R
v
TBB
(applicant)

FILE NO/S:

CA No 203 of 2023
DC No 263 of 2023
DC No 264 of 2023
DC No 343 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Brisbane – Date of Sentence: 27 September 2023 (Richards DCJ)

DELIVERED ON:

14 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

16 April 2024

JUDGES:

Mullins P and Dalton and Boddice JJA

ORDER:

The application for leave to appeal against sentence be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCING OF JUVENILES – RELEVANT FACTORS – GENERAL PRINCIPLES –GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant youth pleaded guilty to one count of unlawful use of a motor vehicle, one count of unlawfully using a motor vehicle to facilitate the commission of an indictable offence, one count of stealing, one count of attempted entering premises with intent to commit an indictable offence, one count of robbery in company, one count of armed robbery in company, one count of unlawfully using a motor vehicle to facilitate the commission of an indictable offence and one count of contravening an order about device information from digital device – where the applicant was sentenced to 18 months probation after spending 295 days in custody – whether the sentence was manifestly excessive, having consideration for the 295 days served in custody

R v IJ[2022] QCA 138, cited

COUNSEL:

J Fenton, with K Fuller, for the applicant
M A Green for the respondent

SOLICITORS:

Cridland & Hua Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. MULLINS P:  I agree with the reasons of Boddice JA and the order that the application for leave to appeal against sentence be dismissed.  I also agree with the additional reasons of Dalton JA.

2. DALTON JA:  The facts of the offending are described by Boddice JA.  I agree that some of the offending, in particular the robbery in company and the armed robbery in company, was serious.  From 21 November 2022 the applicant was on bail, granted after two days in custody.  That must be an aggravating factor.  The most serious offending, the robbery at the pharmacy, was committed just two weeks later.  I also agree that the chronology of the offending shows that the offending escalated over the period of November–December 2022.

3. By the time this matter came on for hearing, the applicant had spent 295 days in detention.  This was because the applicant chose not to apply for bail.  Counsel for the applicant told the Court that, although his legal representatives had discussed bail with the applicant on a number of occasions, he did not wish to apply for bail.  Her notes of his reasons were, “I feel like being in detention helped put me back in shape.  I was drinking too much and smoking too much.  Getting locked up and charged helped me change the way I think.” – t 1-8.

4. Because of his age the applicant was dealt with in the Children’s Court and under the Youth Justice Act 1992 (Qld). Schedule 1 to that Act contains a charter of youth justice principles which includes the principle that a child should be given the opportunity to participate in and understand a proceeding which is started against him or her – cl 7(b). A more general principle in the charter is that a parent of a child should be encouraged to fulfil their responsibility for the care and supervision of the child – cl 11. An aspect of that principle, so far as hearings are concerned, is found in s 69(1) of the Act, which allows the Children’s Court to adjourn a proceeding so as to enable a parent to be present at the hearing, and s 70 of the Act, which allows the Children’s Court to order a parent to attend.

5. In my opinion, the President of the Children’s Court applied both these principles in the hearing below.  She was concerned to use simple language and conducted a proceeding which was very interactive and inclusive of both the applicant and his mother.  She took particular care to speak to both the applicant and the applicant’s mother in order to try to understand why the applicant offended, and offended in such a serious way, without prior convictions, and when (having regard to his school results) he was an intelligent and capable young man.  While this Court has expressed reservations about what it is to make of statements in a sentencing hearing, as opposed to sentencing remarks, I think that where a case is being conducted in the way this one was in the Children’s Court, there is more scope for this Court to have regard to judicial statements during the hearing.

6. The information before the sentencing judge was that the applicant began using cannabis and alcohol around November and December 2022.  His instructions were that he had “been hanging out with the same group of people as he had been for a significant period of time” – t 1-8.  He attributed the change in his behaviour to drug use and it was said that he had some insight into how that caused problems for him.  That is consistent with his reasons for not applying for bail.

7. Also consistent with the instructions he gave about the effect of detention, is the fact that during the time he spent in detention he completed year 11 with good results.  The Court was told that he was “very motivated to continue and to get through year 12” – t 1-8.  The Court was also told that he planned on getting a job after finishing grade 12.

8. The Court heard from the applicant’s mother.  She was unable to explain his offending.  She did tell the sentencing judge that he was the quietest of her three boys, and that she thought that if he felt sad or “bad” he did not discuss it, but kept his feelings to himself.  Unlike the applicant, she thought he changed his friends before the offending.  Like the applicant, she thought that detention had been beneficial to him.  She said that she saw a lot of change in the applicant during the time he was in detention; he paid attention to his school work and did well.  She expressed the view that she would be grateful if he were released from detention but, “If he is still going to stay, I’m still happy about him”. – t 1-12.

9. The lack of communication about feelings noted by the applicant’s mother sits with the information before the Court about his attitude towards restorative justice and intervention programs offered to him.  He had indicated that he was not willing to engage in the restorative justice program and he had been unwilling to engage in intervention programs aimed at rehabilitation while he had been in detention.  He had also indicated an unwillingness to engage in such interventions in the community – t 1‑9.  The information before the Court was that he had changed his attitudes in relation to this in the last week or so before sentencing, which was attributed to a new case worker who reported that the applicant “showed optimism to being released and a keenness to engage with [the case worker] in the community on a probation order” – t 1-9.

10. The factual matter which made this sentence unusual was the length of time the applicant had spent in custody before being sentenced.  The prosecutor on the sentencing hearing initially submitted that a longer time had been served than was appropriate for the offending, although the sentencing judge clearly did not accept that – t 1-7.  She remarked that, had the applicant not spent that length of time in custody, she would have imposed a sentence of detention – t 1-3.

11. Lawyers acting for the applicant below submitted that, because of the time he had spent in detention, he ought to be reprimanded and not further punished.  The same submission was made in this Court.  There would be two difficulties with such a sentence.  First, in this case the offending was far too serious for the only punishment imposed by the Court to be a reprimand.[1]  Secondly, the applicant would be released into the community with almost no support.

    [1]Cf R v IJ [2022] QCA 138, [29]. That case was also a case where the child had served a lengthy period in detention before the sentencing hearing.

12. The prosecutor asked for a period of probation to be imposed so that the applicant had assistance and support when released from detention.  She spoke of access to services on probation as “an opportunity to develop responsible and socially acceptable ways of dealing with issues” – t 1-7.  The representative for the Department of Youth Justice went so far as to say that even if the applicant were not placed on a probation order, “some informal supervision can be provided on a short‑term basis to really transition [the applicant] back into the community …” – t 1‑10.

13. Some relevant special considerations in sentencing children are that, “a non‑custodial order is better than detention in promoting a child’s ability to reintegrate into the community” and “a detention order should be imposed only as a last resort and for the shortest appropriate period” – s 150(2)(b) and (e) of the Youth Justice Act.  It would have been possible for the sentencing judge to order detention for the same period of custody as the applicant had already served,[2] but that would have had the undesirable effect that the applicant was released into the community with minimal support.  Another alternative would have been to sentence to a period of detention longer than that already served, so that the applicant would be released into the community immediately, but on a conditional release order.  In the circumstances of this case, that would have meant that the sentence of detention to be imposed would have been too lengthy.[3]

    [2]Cf R v IJ.

    [3]Cf R v IJ where the sentencing judge apparently did take that course, but it was disapproved on appeal.

14. To continue the applicant’s rehabilitation and provide personal deterrence, a period of supervision in the community was highly desirable.  The applicant had demonstrated how, in the controlled conditions on detention, he had been abstinent from drugs and alcohol, and had achieved very good results at school.  His thinking had changed during this period of detention, so that he was minded to continue to study and seek a job.  In these circumstances, it seems to me that the sentencing judge was correct to sentence the applicant so as to provide support and supervision on his release into the community.

15. The nearly 300 days the applicant had served in detention was a relevant factor to be taken into account in favour of the applicant on sentence.  The President did take it into account.  In my view, she was right to consider that a more sophisticated and nuanced approach to the sentence than that urged by the applicant below (and on this appeal) was warranted.  She had not sentenced the applicant to detention, much less 300 days detention.  She did however comment that had he not served that period of detention, she would have imposed a sentence of detention.  Taking into account the time the applicant had already been on detention, she imposed a lesser sentence, one of probation, and did not record a conviction.  The sentence imposed was one which saw the applicant released from detention immediately, and returned to his family.  However, it was also one which was designed to provide support and supervision for him in the community, so that hopefully, he would live a law‑abiding life in the future.  I cannot see that the sentence bespeaks error, according to the principles in House v The King.  I cannot see that it was manifestly excessive.  I agree with the order proposed by Boddice JA.

16. BODDICE JA: On 27 September 2023, the applicant, a juvenile, pleaded guilty to one count of unlawful use of a motor vehicle, one count of unlawfully using a motor vehicle to facilitate the commission of an indictable offence, one count of stealing, one count of attempted entering premises with intent to commit an indictable offence, one count of robbery in company, one count of armed robbery in company, one count of unlawfully using a motor vehicle to facilitate the commission of an indictable offence and one count of contravening an order about device information from digital device. The applicant was sentenced to probation, under s 193 of the Youth Justice Act 1992, for a period of 18 months, in respect of all counts.  A conviction was not recorded in respect of any count.

17. The applicant seeks leave to appeal that sentence.  The sole ground of appeal, should leave be granted, is that the sentence was manifestly excessive.

    Offences

18. The applicant’s offending involved three distinct periods.  At the time, the applicant was 15 years of age.  He had no prior criminal history.

19. The first period involved one offence of unlawful use of a motor vehicle, on 1 May 2022.  That offence was committed when the applicant occupied the front passenger seat of a stolen motor vehicle.

20. The second period involved offences committed between 10 and 15 November 2022.  Again, the applicant was an occupant of a stolen motor vehicle when it was used to commit a number of offences.  That circumstance constituted the count of unlawful use of a motor vehicle to facilitate the commission of an indictable offence.

21. On 11 November 2022, the applicant used the stolen vehicle to steal fuel.  That event constituted the count of stealing.

22. On 13 November 2022, the stolen vehicle was used by the applicant and three other males to travel to a liquor store where they attempted to enter the locked front door.  That circumstance constituted the offence of attempted enter premises with intent to commit an indictable offence.

23. On the same day, the applicant and those three individuals, used the stolen vehicle to travel to a hotel from which they stole alcohol.  When confronted by a staff member, the applicant brandished a bottle of alcohol and threatened to throw it at the staff, before throwing it, striking a staff member on the arm.  That circumstance constituted the offence of robbery in company.

24. The final period involved offences committed in December 2022.  On 4 December 2022, the applicant and six others entered a pharmacy wearing masks and hooded jumpers.  They were armed with baseball bats and machetes.  They shouted at staff and customers, used their weapons to knock products of the shelves before opening a safe and stealing 26.422 kilograms of medicinal cannabis, valued at $234,332.40.  That circumstance constituted the offence of armed robbery in company.

25. Upon leaving the pharmacy, the applicant and the other offenders fled in stolen vehicles.  That circumstance constituted the offence of unlawfully using a motor vehicle to facilitate the commission of an indictable offence.

26. On 12 December 2022, the applicant was intercepted by police.  During the arrest, he was ordered to provide the passcode to his phone.  He replied that he could not remember.  That circumstance constituted the offence of contravene an order about device information from digital device.

    Sentencing remarks

27. The sentencing judge recorded that the applicant had been doing well at school, although not so well on undertaking courses whilst spending some 300 days in pre-sentence detention.  The applicant had also been recognised as having the potential to use his intelligence to influence others to be good.  The sentencing judge said it was unusual for someone who had not been in trouble before, to be doing something as serious as the armed robbery in company.

28. The sentencing judge recorded that the applicant’s offending in respect of the pharmacy was “really serious”, noting that even though he was young and had not been in trouble before, if he had been an adult he “would be looking at seven or eight years in jail”.  The sentencing judge said that if the applicant had not spent “those 300 days in custody”, he would be given detention for that offence.  Its seriousness meant that it would not have been a conditional release order, but actual detention.

29. The sentencing judge recorded that she took into account the applicant’s pleas of guilty, his good behaviour in detention and that he had been free from drinking and using cannabis.  The sentencing judge concluded:

    “Well, taking into account that you were 15 had not been in trouble before and you pleaded guilty, despite the fact that – as I say, particularly the chemist shop offence is serious – very serious, nonetheless it seems to me as though there is some real prospects for you staying out of trouble and getting a good career going.  So with all those factors in mind, no conviction is recorded but you are sentenced to 18 months probation on those conditions that I spoke to you about.”[4]

    [4]AB 41/28–33.

    Consideration

30. The applicant submits that in circumstances where he had served 295 days in pre-sentence detention, a sentence of 18 months’ probation was manifestly excessive, having regard to comparable authorities.[5]

    [5]R v RAO, BCR & BCS; ex parte Attorney-General (Qld) [2014] QCA 7; R v FAY [2020] QCA 154; R v CCS [2021] QCA 231; R v GBJ [2022] QCA 52; R v IJ [2022] QCA 138.

31. Whilst each of the comparable authorities did involve multiple property offences, committed by juvenile offenders whilst armed with weapons, and those offenders each had significant past criminal histories, the sentence of 18 months’ probation reflected the applicant’s overall criminality.

32. That criminality escalated from a robbery in company, in which a bottle was improvised to be used as a weapon, to an orchestrated armed robbery in company where the applicant and others deliberately targeted a pharmacy, arrived armed with baseball bats and machetes and stole 26 kilograms of medicinal cannabis valued at well over $200,000.

33. The seriousness of that offence, in the context of escalating criminality, supports a conclusion that the observation of the experienced sentencing judge that, but for that extended period in pre-sentence detention, the applicant would have been serving actual detention, fell well within a sound exercise of the sentencing discretion.

34. The period of 295 days in pre-sentence detention was a significant period, particularly for a 15-year-old juvenile with no prior criminal history.  However, a sentence which took into account that period of pre-sentence detention and ordered probation for 18 months with no convictions recorded, was neither plainly unjust nor unreasonable.

35. The sentence imposed was not manifestly excessive.

    Order

36. I would order:

    1.The application for leave to appeal against sentence be dismissed.