R v TBF
[2025] QCA 67
•9 May 2025
SUPREME COURT OF QUEENSLAND
CITATION:
R v TBF [2025] QCA 67
PARTIES:
R
v
TBF
(applicant)FILE NO/S:
CA No 145 of 2024
DC No 24 of 2024
DC No 36 of 2024
DC No 43 of 2024DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Townsville – Date of Sentence: 13 June 2024 (Rosengren DCJ)
DELIVERED ON:
9 May 2025
DELIVERED AT:
Brisbane
HEARING DATE:
12 March 2025
JUDGES:
Mullins P and Gotterson AJA and Crow J
ORDER:
Application for leave to appeal sentence refused.
CATCHWORDS:
CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – SENTENCING AS ADULT OR CHILD AND IMPRISONMENT – where the applicant pleaded guilty to some 20 charges in the Magistrates Court – where no allocutus was administered – where the magistrate did not sentence the applicant at that hearing but made an order that a pre-sentence report be prepared in respect of all but five of the 20 offences – where the offending took place before the applicant attained 18 years of age – where 17 of the offences were then the subject of an ex officio indictment – where the applicant was later charged on an indictment filed in the Supreme Court – where Count 1 on the indictment alleged robbery with a dangerous weapon and Count 2 alleged attempted murder or alternatively, malicious act with intent – where the applicant pleaded guilty to Count 1 and to the alternative in Count 2 – where the indictment was remitted to the District Court – where the applicant was arraigned at the sentence hearing in the District Court on the 17 counts in the ex officio indictment and on three summary offences – where the applicant pleaded guilty to all those offences – where the applicant was 19 years old when those pleas were made – where the applicant was sentenced in the District Court in respect of Counts 1 and 2 on the remitted indictment, the 17 counts in the ex officio indictment and three summary offences – where the learned sentencing judge proceeded on the basis that by virtue of the guilty pleas made in the District Court, the applicant was to be sentenced as an adult but to no greater penalty than he would have received as a child – whether the learned sentencing judge erred by sentencing the applicant as an adult in relation to the charges contained in the ex officio indictment and the summary charges – whether each sentence in respect of those charges should be set aside and the applicant should be resentenced
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to five years imprisonment to serve 60 per cent – where a conviction was recorded in relation to the offence of malicious act with intent – where the learned sentencing judge made a declaration that the applicant is a serious repeat offender – where the applicant had a lengthy history of offending – where the learned sentencing judge considered that the malicious act with intent involved a degree of premeditation and an escalation in the applicant’s offending – where the learned sentencing judge recognised that the applicant had had a very prejudicial upbringing with early exposure to trauma, criminal behaviour within the family, and neglect – where the applicant has been diagnosed with foetal alcohol spectrum disorder – where the learned sentencing judge viewed this factor as reducing the applicant’s moral culpability for offending – where the learned sentencing judge found that the applicant lacked insight into the harm caused to others by his offending behaviours – whether the sentence imposed is manifestly excessive
Justices Act 1886 (Qld), s 145(4)
Youth Justice Act 1992 (Qld), s 84(3), s 140(2), s 150A(2), s 151(1)R v BDY[2023] QCA 40, cited
R v Jerome and McMahon [1964] Qd R 595, cited
R v MDD (2021) 293 A Crim R 14; [2021] QCA 235, followed
R v Nerbas [2012] 1 Qd R 362; [2011] QCA 199, followed
R v Patrick (a pseudonym), Ex parte Attorney-General (Qld) (2020) 3 QR 578; [2020] QCA 51, cited
R v SDK (2020) 6 QR 568; [2020] QCA 269, citedCOUNSEL:
L D Reece for the applicant
S J Gallagher for the respondentSOLICITORS:
Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent
MULLINS P: I agree with Gotterson AJA.
GOTTERSON AJA: On 13 June 2024, the applicant was sentenced by Judge Rosengren in the Childrens Court of Queensland at Townsville in respect of some 22 offences. He was born in March 2005. All of the offending took place before he attained 18 years of age.
Seventeen of the 22 offences were the subject of 17 counts on an ex officio indictment presented at the commencement of the sentence hearing which took place over two days on 3 and 6 June 2024. Two of the offences, the latest in time to have been committed, were charged by separate indictment. The remaining three offences were charged summarily.
To give context to the parties’ submissions, I propose first to summarise what those offences were, when they occurred, and how they came to be before the Childrens Court of Queensland.
Offences and history of prosecution
The applicant was remanded in custody in December 2021 on account of six offences (Offences 1–6) involving wilful damage by graffiti, dishonesty including receiving tainted property, unlawful use of a motor vehicle, and attempted burglary, all committed by him at Mt Isa between 1 and 17 December 2021. He was detained at the Cleveland Youth Detention Centre (“CYDC”) in Townsville.
On 22 January 2022, the applicant assaulted a male youth detention worker at CYDC by punching him in the face twice, causing bruising to his eye and swelling to his lip (Offence 7).[1]
[1]Statement of Facts, Exhibit 11, [11]–[14]; AB 365.
On the same day, he became aggressive towards a female youth detention worker whom he had never previously met. When she attempted to flee from him, he chased her, punched her in the face and then continued to threaten her and lunge at her. She sustained two fractured molars, chipped teeth and a neck strain (Offence 8).[2]
[2]Exhibit 11, [15]–[19]; AB 365–366.
On 22 March 2022, the applicant assaulted a case worker at CYDC with a knife to her face, causing her to bleed. He said that he did not know the case worker and did not feel bad about the attack. She suffered a small and permanent scar under her eye and long-lasting effects to her personal life (Offence 9).[3]
[3]Exhibit 11, [20]–[23]; AB 366.
The applicant was released on bail on 14 July 2022. Over 23 to 25 July, he renewed his offending by unlawful use of motor vehicles, breaking and entering and attempted burglary, all committed at Townsville (Offences 10–13).[4] He was remanded again at CYDC on 26 July 2022.
[4]Exhibit 11, [24]–[26]; AB 367.
On 16 August 2022, the applicant committed four offences against two employees of CYDC. With a co-accused, he caused cuts and abrasions to the wrist of one employee whilst attempting to obtain detention centre keys from him (Offence 14). He pushed the other employee who had come to the aid of his colleague. Then he threatened both employees with a knife (Offences 15–17).[5]
[5]Exhibit 11, [30]–[35]; AB 367–368.
I now turn to the applicant’s offending on 10 December 2022 when he was 17 years and eight months of age. At that time he was housed in the CYDC’s Lorikeet Unit for “high risk” children.
The applicant robbed a youth detention worker of his keys in a premediated effort to obtain access to the cell of another youth, T, in the unit. He used a knife to threaten the worker and ultimately was able to steal his keys (Offence 18).[6]
[6]Statement of Facts, Exhibit 10, [7]–12]; AB 357.
The applicant then unlocked another juvenile, K, from his cell and together they made many attempts to unlock T’s cell. T made attempts to hold the two off but was unsuccessful. The appellant entered T’s cell and held his hair to stop him escaping. He stabbed T in the upper torso, neck, upper back and ribs with his knife, a total of 28 times within the 38 second attack. The applicant caused lacerations and fractures to one of T’s ribs (Offence 19). T did not fight back at any stage and the offending only stopped when the applicant was restrained by detention workers. He told others: “I have anger issues and I just needed to kill someone…He was talking shit, I will kill that mother fucker”.[7]
[7]Exhibit 10, [13]–[21]; AB 358–359.
The applicant was charged in respect of all of these offences. With regard to Offence 19, he was charged with attempted murder, or, in the alternative, unlawful wounding with intent to do grievous bodily harm. The charges were brought before a Childrens Court constituted by a magistrate in Townsville on 16 February 2023. Also before the Court at that time were summary charges for three offences alleged to have been committed by the applicant, namely, two of obstructing police at Mt Isa on 16 and 17 December 2021 respectively (Offences 20 and 21) and one of possessing tainted property at Townsville on 26 July 2022 (Offence 22).
The three charges relating to Offences 18 and 19 were mentioned for committal only at the hearing.[8] However, the applicant was required to plead to the charges relating to the other offences (Offences 1–17 and 20–22), some 20 charges in all. The magistrate read each charge and invited the applicant to plead to it. He pleaded guilty in each instance.[9] However, an allocutus was not administered in respect of any of the pleas; nor did the magistrate expressly state that the pleas were accepted.
[8]Affidavit of Joshua Salm, sworn 3 March 2025, Exhibit JS-2, Tr 1–4, ll29–30.
[9]Ibid, Tr 1–6, l 15–Tr 1–9, l l27.
The magistrate did not sentence the applicant at that hearing. An order was made that a pre-sentence report be prepared in respect of all but five of the 20 offences. Those five were offences which the magistrate and the legal representatives were in agreement would not be punished by a detention order.[10] Such a report was prepared.[11] It is dated 14 March 2023 and is addressed to the Presiding Magistrate of the Childrens Court at Townsville.
[10]Ibid, Tr 1–10, l23–Tr 1–11, l20. See also Youth Justice Act 1992 s 207.
[11]AB 203–209.
At the conclusion of the hearing on 16 February 2023, the magistrate remanded the applicant in custody and adjourned “everything” to 16 March 2023. There was an expectation that on that date, the applicant would be sentenced in respect of the offences to which he had pleaded guilty and that there would be a committal in respect of the Offences 18 and 19 charges, in the event that it was ready to proceed.[12] However, neither occurred on that date or thereafter before the magistrate.
[12]Ibid, Tr 1–11, ll25–26.
Some time later, the applicant was charged on indictment filed in the Supreme Court of Queensland at Townsville on 9 October 2023 (Indictment No 100 of 2023) with respect to the offending on 10 December 2022. There were two counts on the indictment. The first (Count 1) alleged robbery with a dangerous weapon in contravention of ss 409 and 411(1) and (2) of the Criminal Code (Qld) (“Code”). The second (Count 2) alleged attempted murder in contravention of s 306(1)(a) of the Code or, alternatively, unlawful wounding with intent to do grievous bodily harm in contravention of s 317(1)(b) and (e) thereof. The alternative is conventionally referred to as “malicious act with intent.”
The applicant was arraigned on Count 1 and on the alternative in Count 2 before Justice North in the Supreme Court at Townville on 15 March 2024, a nolle prosequi having been entered in respect of the attempted murder charge in Count 2. He pleaded guilty to Count 1 and to the alternative in Count 2. The allocutus was administered in both instances.
The Crown then applied for the indictment to be remitted to the Childrens Court of Queensland constituted by a District Court judge. An order to that effect was made by Justice North that day. Later, on 25 March 2024, an order for the provision of a pre-sentence report in respect of this offending was made by a judge of the Childrens Court of Queensland. That report was prepared.[13] It is dated 29 May 2024 and is addressed to the Presiding Judge of the Childrens Court of Queensland at Townsville.
[13]AB 222-232.
An ex officio indictment was presented at the Childrens Court of Queensland at Townsville on 19 April 2024. It listed 17 counts in the same terms and sequence as Offences 1 to 17 to which the applicant had pleaded guilty before the Childrens Court magistrate on 16 February 2023. Apparently this indictment had been suggested on behalf of the applicant in order that sentencing for those offences could take place at the same time as sentencing for the counts on the indictment remitted from the Supreme Court. In any event, it is common ground that such an indictment could be presented notwithstanding that the applicant had pleaded to like offences before the magistrate.
Thus, there were before Judge Rosengren in the Childrens Court of Queensland on 3 June 2024 two indictments: the indictment remitted by Justice North which was given a fresh filing number by the Childrens Court of Queensland as Indictment 24 of 2024 and the ex officio indictment presented in the Childrens Court of Queensland on 19 April 2024 which was given the filing number Indictment 36 of 2024. Also before the Childrens Court of Queensland that day were the three summary charges which had been transmitted to the Childrens Court of Queensland for sentencing with the indictable offences pursuant to an application made under s 652 of the Code.
The sentence hearing
It is unnecessary for present purposes to traverse the sentence hearing in detail. There are two aspects of it of present relevance that warrant explanation at this point.
First, on the first day of the sentence hearing, the applicant was arraigned on the 17 counts in Indictment 36 of 2024 and on the three summary offences. He pleaded guilty to them all. The allocutus was then administered.[14] I note that prior to the arraignment, defence counsel had indicated that he thought that the applicant needed to be arraigned on the counts in the ex officio indictment.[15]
[14]Sentence Transcript 3 June 2024 (“ST1”) 1-16 l41–1-17 l36; AB 56, 57.
[15]ST 1, 1-11, ll3-7; AB 57. As s 597C of the Criminal Code (Qld) would require.
Secondly, given that the applicant was 19 years old when these pleas were made, a question arose as to whether the applicant was to be sentenced as an adult in respect of the counts in the ex officio indictment and the summary offences. The prosecutor submitted that by virtue of entering pleas of guilty that day in the Childrens Court of Queensland, the applicant was to be sentenced as an adult but to no greater penalty than he would have received as a child.[16] Defence counsel submitted that his client ought to be sentenced as a child, he having pleaded guilty to all of those offences on 16 February 2023 when he was 17 years and 10 months of age.[17] Judge Rosengren accepted the prosecutor’s submission and proceeded to sentence the applicant on that basis for those offences.[18] The applicant was sentenced under the Youth Justice Act 1992 (Qld) (“YJA”) in respect of Counts 1 and 2 in the other indictment.
[16]ST 1, 1-5, ll6-8; AB 45.
[17]ST 1, 1-8, ll42-44; AB 48.
[18]Sentence Transcript 13 June 2024 (“ST3”) 1-3 ll1-3; AB 179.
Sentences
On 13 June 2024, Judge Rosengren imposed the following sentences on the applicant:
Indictment 24 of 2024
Count 1: 15 months detention;
Count 2:five years detention, to be released after serving 60 per cent of that period in detention.
A conviction was recorded on Count 2.[19]
It was noted under the YJA that the 551 days spent in custody from the date of the offending on these counts, 10 December 2022, until the date of sentence would automatically be taken into account as time served.[20]
[19]ST 3, 1-22 l43; AB 198.
[20]ST 3, 1-12 ll40–41; AB 188.
Indictment 36 of 2024
Counts 1-6, 10-13 and 15-17: convicted and not further punished.
Counts 7 and 8: 3 months imprisonment on each count.
Count 9: 6 months imprisonment.
Count 14: 1 month imprisonment.
A declaration was made in relation to these counts that the applicant had been held in an adult prison for six months.[21]
Summary Offences
Offences 1-3 convicted and not further punished.
All sentences of imprisonment were ordered to be served concurrently.[22]
[21]ST 3, 1–25, ll1–8; AB 201.
[22]ST 3, 1-14 ll44-46; AB 190.
Also on 13 June 2024, the Childrens Court magistrate who had made the orders on 16 February 2023 was informed that all of the offending for which charges were pending in that court had been dealt with by way of ex officio indictment and that the applicant had been sentenced in the Childrens Court of Queensland in respect of that offending earlier that day. The magistrate noted that the prosecution offered no evidence and the charges were dismissed.[23]
[23]Affidavit of Joshua Salm, Exhibit JS-1, Tr 1–3, l31–Tr 1–4, l14.
Grounds of appeal
The applicant wishes to appeal against sentence on the following two grounds:
Ground 1 -
The learned sentencing judge erred by sentencing the applicant as an adult in relation to the charges contained in the ex officio indictment (Indictment 36 of 2024) and the summary charges;
Ground 2 -
The sentence of five years to serve 60 per cent with a conviction recorded in relation to Count 2 on Indictment 24 of 2024 is manifestly excessive.[24]
[24]Application for leave to appeal sentence: AB 1-5.
In the event that Ground 1 succeeds, the applicant submits that all sentences for those charges should be set aside and that he should be resentenced. Given the time already spent on remand, it would be open to this Court, it is submitted, to convict and not further punish the applicant on all such charges.[25] I note that even if that were to occur, the period that the applicant is to spend in detention would be unchanged, given the concurrency of all sentences.
[25]Applicant’s Written Submissions, para 17.
As to Ground 2, the applicant submits that if it succeeds, the sentence on Count 2 should be set aside and he be resentenced. A head sentence of four years detention with release at 60 per cent would be appropriate, it is submitted.[26]
[26]Ibid, para 34.
The issue of the recording of a conviction for this count is not pressed.[27]
[27]Ibid, para 35.
Ground 1
Judge Rosengren sentenced the applicant as an adult, and not a child, in respect of the offences charged in the ex officio indictment and the summary offences on the footing that s 140(2) of the YJA required her to do so. That sub-section states:
“If –
(a)a proceeding has started against an offender for a child offence in the way provided in this Act for a child; but
(b)the proceeding has not been completed to a finding of guilty or not guilty by the time 1 year has passed after the offender becomes an adult;
then –
(c)the proceeding must be finished in the way provided in this Act for a child; but
(d)if found guilty—the offender must be sentenced as an adult.”
At the sentencing hearing, it was submitted for the applicant that this provision was inapplicable because the condition in sub-section (2)(b) was not satisfied. That was because the proceeding before the magistrate in respect of the offences had been completed to a finding of guilt on 16 February 2023 at a time when the applicant was still a child. It was further submitted that such a finding had been made because the applicant had pleaded guilty to each of the offences on that date and because the magistrate, at that time, had ordered a pre-sentence report for those of the offences which were punishable by a detention order.
The expression “finding of guilt” is defined in Schedule 4 to the YJA to mean “a finding of guilt, or the acceptance of a plea of guilty, by a court, whether or not a conviction is recorded”. No finding of guilt was made on 16 February 2023 by the magistrate in respect of any of the offences. So much is acknowledged by the applicant. His submission is that his pleas of guilty were accepted by the magistrate on that date.
The question for this Court is whether the pleas of guilty were so accepted. Schedule 4 to the YJA does not define what a court must do in order to accept a plea of guilty.
In R v MDD,[28] Henry J (with whom Fraser and McMurdo JJA agreed) gave the term “a finding of guilt” the following explanation:
“That is, finds a defendant who has pleaded ‘not guilty’, guilty or unequivocally accepts a defendant’s plea of guilty, for instance by administering the allocutus or proceeding to impose sentence.”[29]
His Honour referenced the decision of this Court in R v Nerbas [2012] 1 Qd R 362 at [7]–[8] as justifying this explanation. In that case, the relevant issue was whether an individual who had pleaded guilty to an offence had, in the circumstances in which the plea was made, been convicted of it.
[28][2021] QCA 235.
[29]At footnote 29.
I would respectfully agree with his Honour’s qualification that an acceptance of a plea of guilty must be unequivocal. It finds support in s 145(4) of the Justices Act 1886 (Qld) which, pursuant to s 84(3) of the YJA, applies if a child has pleaded guilty to an indictable offence at a summary hearing before a Children’s Court magistrate. That section stipulates that if a defendant pleads guilty, the Magistrates Court shall convict the defendant, or make an order against the defendant or deal with the defendant in any other manner authorised by law. That is to say, it must take some action which unequivocally gives effect to the plea.
Here, there was no express statement by the magistrate that, or to the effect that, the pleas of guilty were accepted. As not infrequently happens in the Magistrates Court, an allocutus was not administered.
In these circumstances, it is submitted for the applicant that acceptance of the pleas is a fact to be inferred from the ordering of the pre-sentence report. Reference is made to s 151(1) of the YJA which authorises the court to order a pre-sentence report before sentencing a child found guilty of an offence and to the following observations of Gibbs J, as a judge of the Supreme Court of Queensland, in R v Jerome and McMahon:[30]
“In the present case the court has done nothing upon the plea of guilty to indicate a determination of the question of guilt. The court might do that by imposing a punishment; by discharging a prisoner on his own recognisances; by releasing him upon parole; or even perhaps by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained. Nothing of that kind occurred in the present case. The pleas of guilty, it is true, were said to be accepted, but they were never acted upon in such a way that the court finally determined the guilt of the accused persons.”[31]
These observations were cited by this Court in Nerbas.[32]
[30][1964] Qd R 595.
[31]At 604.
[32]At [7].
I am not prepared to infer that there was an unequivocal acceptance of the pleas of guilty by the magistrate in this case. The fact that sentencing did not proceed on 16 March 2023 notwithstanding provision of the pre-sentence report two days earlier, or thereafter, is suggestive of some equivocation. Nor, in my view, does the observation of Gibbs J with respect to adjournment of proceedings in order to obtain information relevant to sentencing, require that such an inference be drawn. In the first place, his Honour’s observation as to such a circumstance was, by use of the words “even perhaps”, cast equivocally. Secondly, it is not clear whether his Honour had in mind a circumstance where an allocutus had already been administered.
For these reasons, I consider that Judge Rosengren was correct in concluding that the proceeding before the magistrate had not been completed to a finding of guilty in respect of the 20 offences to which the applicant pleaded guilty on 16 February 2023. This ground of appeal cannot succeed.
I would add, as a general observation, that the acceptance of a plea of guilty to an offence for the purposes of the YJA, should not be left to inference. Where the plea is accepted, there should be an express statement by the presiding judicial officer to that effect and such acceptance should be recorded as part of the record of proceedings.
Ground 2
In her sentencing remarks, Judge Rosengren recorded that the Crown had applied for a declaration pursuant to s 150A(2) of the YJA that the applicant is a serious repeat offender. Her Honour noted that the criteria for such a declaration in s 150A(2)(a) were met; that she had considered the applicant’s pre-sentence reports; and that having regard to his previous offending and lack of rehabilitation, she was satisfied that there was a high probability that the applicant would commit a further prescribed indictable offence.[33] The application was unopposed and the declaration was made.[34]
[33]ST 3, 1-6, ll36-44; AB 182.
[34]ST 3, 1-7, ll2-3; AB 183.
As a consequence of the declaration, her Honour was required by s 150A(3) to have primary regard to five factors which she listed.[35] They are the need to protect members of the community, the nature and extent of the violence used, the extent of any disregard for the interests of public safety, the impact of the offending on public safety, and the child’s previous offending history and bail history.
[35]Ibid, ll5-9.
In speaking of the offending on 10 December 2022 for which the maximum penalty is 10 years imprisonment on each count, Judge Rosengren noted that there was a degree of premeditation and repeated threatening with a knife in securing the keys to T’s cell and that the attack on T was “prolonged, frenzied and brutal”.[36] The applicant did not desist even when detention workers came into the cell.
[36]ST 3, 1-8, ll10-34; AB 184.
As to the applicant’s history of offending, her Honour stated that he had appeared in courts for sentencing on 20 occasions, usually for multiple offences. The offending comprised street and drug-related offences, numerous offences of dishonesty, break-and-enter offences, offences of violence including many entries for common assault, assault occasioning bodily harm and serious assault of police officers or public officers both in the community (at times, whilst on probation) and in detention.[37] In her Honour’s view, the attack on T marked a serious escalation in the applicant’s offending.[38]
[37]Ibid, ll36-43.
[38]Ibid, ll 44-45.
Judge Rosengren noted that the applicant is Aboriginal with family ties to Mornington Island. He had a “lengthy and concerning” juvenile history, dating back to when he was 10 years of age.[39] Relying on the pre-sentence reports and two reports by Dr Meg Perkins, a psychologist, her Honour recorded that the applicant had had a very prejudicial upbringing with early exposure to trauma, criminal behaviour within the family, and neglect.[40] He had been diagnosed as having a foetal alcohol spectrum disorder which, in the context of his background, had reduced his moral culpability for offending.[41] Notwithstanding, the applicant’s lack of insight into the harm caused to others by his offending behaviours, particularly on 10 December 2022, was concerning, in her Honour’s view.[42]
[39]ST 3, 1-7, ll34-35; AB 183.
[40]ST 3, 1-10, ll6-8; AB 186.
[41]Ibid, ll18-33.
[42]Ibid, ll38-39.
Comparable sentencing decisions to which Judge Rosengren had regard included R v SDK,[43] R v Patrick (a pseudonym), Ex parte Attorney-General (Qld),[44] R v MDD,[45] R v PBE,[46] R v IJ[47] and R v BDY.[48]Her Honour was satisfied that no other sentence than detention was appropriate. She noted that the applicant’s counsel at sentence conceded as much.[49]
[43][2020] QCA 269.
[44][2020] QCA 51.
[45][2021] QCA 235.
[46][2019] QCA 185.
[47][2022] QCA 138.
[48][2023] QCA 40.
[49]ST 3, 1-12, ll23-24; AB 188.
In explaining the sentence she was about to impose, Judge Rosengren said:
“The Youth Justice Act recognises that the protection of members of the community against criminal injury may require a juvenile in the appropriate case to serve a lengthy period of imprisonment. And that is my view here: that this is appropriate. If I could just have a moment, please. In relation to the sentence for the offences on the 10th of December 2022, I have regard to the fact that I need to impose a sentence for the least amount of time justified in the circumstances. I need to take into account that while the 551 days that you have spent in custody in relation to this offending will automatically be taken into account, that there is the additional 394 days, about 13 months, that you have spent in custody which will not be.
For your offending on the 10th of December 2022, and taking a global approach I consider an appropriate period of detention to be in the order of six years. However, I will reduce this to five years to take into account this additional period that you have spent in custody which will not automatically be taken into account. Pursuant to section 227 of the Youth Justice Act, you are required to serve 70 per cent of the period of detention, unless I order your release after some earlier period, if there are special circumstances. I am satisfied that there are special circumstances here, which would warrant your release after 60 per cent of the period of the five years. These special circumstances are the matters referred to in the pre-sentence reports and the reports of Dr Perkins that reduce your moral culpability for this offending and also the periods of separation that you have endured for reasons outside your control. For the malicious act with intent I order that you be detained for a period of five years. Pursuant to section 227(2), of the Youth Justice Act, I order that you be released after serving 60 per cent of the period of detention”.[50]
(The 394 days to which her Honour referred comprised periods in which the applicant was in detention prior to 10 December 2022, of which some 225 days were declared when he was sentenced by Judge Coker on 1 February 2023 for prior offending and an additional 124 days which were taken into account in structuring the sentence imposed on that date.)[51]
[50]ST 3, 1-12, l34 – 1-13 l8; AB 188, 189.
[51]AB 352, 353.
In written submissions, counsel for the applicant proposed that the cases to which Judge Rosengren referred, supported a sentence of five years detention, absent the applicant’s personal background and pre-sentence custody.[52] The constellation of factors referred to in the pre-sentence reports and Dr Perkins’ reports, together with the very lengthy period in detention including the conditions of detention, it was submitted, distinguished the applicant’s case and required mitigation of his sentence.[53] That had not occurred; and, it was further submitted, as a consequence, the applicant’s sentence is manifestly excessive.[54] It should be set aside and the applicant be sentenced to four years imprisonment, to serve 60 per cent of it in detention.[55]
[52]Applicant’s Written Submissions, para 31.
[53]Ibid, para 32.
[54]Ibid, para 33.
[55]Ibid, para 34.
In my view, the cases to which her Honour referred, justify a six year sentence as being within range for the Count 2 offending. That is all the more so, given that the applicant had been declared to be a serious repeat offender and that the sentence was to be imposed globally for all offending on 10 December 2022 as well as for the other offending for which he was being sentenced to concurrent terms of imprisonment. In none of the sentencing decisions to which her Honour referred, had the juvenile offender been declared a serious repeat offender. It is sufficient to refer to several of the decisions as illustrating support for the six year sentence starting point in this instance.
In R v SDK, the 17 year old male offender lunged at, and struck several times in the face with a boxcutter, a 12 year old girl who was on her way to school. She was not known to the offender. The injuries caused significant scarring to her face. The offender pleaded guilty to a count of malicious act and with intent. He had no criminal history but had experienced mental health issues for several years. His sentence of four years detention to be released after serving 60 per cent of it was derived by the sentencing judge from an “objective starting point” of six years detention, reduced to five years to allow for some impairment of mind and depression and further reduced so as to impose the lowest appropriate sentence in the circumstances.[56] The sentence was not disturbed on appeal; however, a finding that the offending was a particularly heinous offence was set aside.
[56]At [27].
In R v Patrick (a pseudonym) Ex-Parte Attorney-General (Qld), the 15 year old male offender was charged on counts involving burglary, robbery and unlawful use of a motor vehicle as well as doing grievous bodily harm to prevent arrest. The latter offence, for which he was sentenced to three years imprisonment to be released after serving 50 per cent of it, involved accelerating at speed in the stolen vehicle, swerving to the left and hitting a police constable who had deployed “stingers” on the road to stop the vehicle. The police officer was rendered unconscious and sustained numerous fractures which left him with significant long-term impairments. The Attorney-General appealed the sentence as manifestly inadequate. The appeal succeeded and a sentence of five years imprisonment with 50 per cent of it to be served in detention was imposed.
More recently, in R v BDY, leave to appeal was refused to a 17 year old female who was sentenced for three offences committed consecutively. Two of the offences concerned entry of a dwelling to commit an offence, and unlawful assault of a 53 year old female. The third was for malicious act with intent committed against a seven year old girl within the house. For that offence, the offender was sentenced to six years detention to be released after serving 50 per cent of it. The entry into the house was in breach of a domestic violence order. The offender slashed the young girl with broken glass causing great damage to her ear, nose and throat.
In addition, it was submitted for the applicant that whilst Judge Rosengren referred to his reduced moral culpability and periods of separation in detention, her Honour did not, in fact, mitigate the sentence on that account.[57] That is not so. Having mitigated the sentence by one year to five years in order to take into account the additional periods spent in custody prior to 10 December 2022, she mitigated the period to be spent in detention from the 70 per cent of the five year period that otherwise would have applied pursuant to s 227 of YHA, to 60 per cent of it. Thus, the period to be spent in detention was thereby reduced by six months on account of the reduced moral culpability and periods of separation in detention.
[57]Ibid, para 32.
The applicant has not demonstrated that the sentence imposed is markedly different from sentences imposed in comparable cases. There is no basis at all for concluding that the sentence was a product of the misapplication of principle, unreasonable, or plainly unjust.[58]
[58]House v The King (1936) 55 CLR 499 at 504-505; R v Pham [2015] HCA 39; (2015) 325 ALR 400 at [28].
For these reasons, the applicant’s complaint that his sentence on Count 2 is manifestly excessive must fail.
Disposition
Since neither ground of appeal would succeed, leave to appeal the applicant’s sentence should be refused.
Order
I would propose the following order:
1.Application for leave to appeal sentence refused.
CROW J: I agree with the reasons of Gotterson AJA.