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

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.
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.
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…

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 TBB

Details

AGLC: R v TBB [2024] QCA 81
Case: [2024] QCA 81
Decision Date: 14 May 2024

CaseChat Overview and Summary

In the case of R v TBB, the applicant appealed against the sentence imposed on him following his guilty pleas to multiple serious offences. The court had to determine whether the sentence was manifestly excessive, considering the applicant had already served 295 days in custody before sentencing. The applicant argued that the sentence of 18 months probation was excessively lenient, especially given the length of time he had already spent in detention.

The court considered the arguments and the principles of sentencing for juveniles. It noted that the sentencing judge had taken into account the applicant’s age, his pleas of guilty, good behaviour in detention, and his previous lack of criminal history. The court found that the sentence reflected the escalating nature of the applicant's criminal activities and the serious nature of the offences committed. The sentencing judge had concluded that there was a real prospect of the applicant staying out of trouble and leading a law-abiding life.

After reviewing the comparable authorities, the court concluded that the sentence was within the sound exercise of the sentencing discretion. The sentence of 18 months probation, coupled with the consideration of the 295 days spent in pre-sentence detention, was neither plainly unjust nor unreasonable. Therefore, the appeal against the sentence was dismissed.

The court's final order was to dismiss the application for leave to appeal against the sentence, upholding the original sentencing decision.

Orders

Orders of the court

The application for leave to appeal against sentence be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 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. 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. 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. 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. 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. The sentence imposed was not manifestly excessive.Order I would order:1.The application for leave to appeal against sentence be dismissed.

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