R v WBP - [2022] QCA 9

SUPREME COURT OF QUEENSLAND

CITATION:

R v WBP [2022] QCA 9

PARTIES:

R
v
WBP
(appellant)

FILE NO/S:

CA No 231 of 2021
DC No 60 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Cairns – Date of Sentence: 10 September 2021 (Everson DCJ)

DELIVERED ON:

Date of Orders: 19 November 2021
Date of Publication of Reasons: 11 February 2022

DELIVERED AT:

Brisbane

HEARING DATE:

19 November 2021

JUDGES:

McMurdo and Mullins JJA and Boddice J

ORDERS:

Orders delivered: 19 November 2021

1.   Grant leave to appeal.

2.   Allow the appeal.

3.   Set aside the order of detention imposed by the sentencing judge on 10 September 2021.

4.   Order that the appellant be detained for 12 months.

5.   Further order that the period of detention be suspended immediately, the appellant be immediately released from detention and that she participate in a program as directed by the Chief Executive for a period of three months from today and that, during the period of the order:

(i)      she will abstain from violation of the law; and

(ii)     she will comply with every reasonable direction of the Chief Executive; and

(iii)   she will report and receive visits as directed by the Chief Executive; and

(iv)   she will or a parent of the appellant will notify the Chief Executive within 2 business days of any change of address, employment or school; and

(v)     she will not leave, or stay out of, Queensland without the prior approval of the Chief Executive.

6.   The order that a conviction not be recorded is confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the appellant was sentenced after pleading guilty in the Childrens Court of Queensland for one count of armed robbery in company – where the appellant was sentenced to detention for 15 months with release after serving 70 per cent of that period – where the author of the pre-sentence report assessed the appellant as suitable for a conditional release order – where a supervised release order had applied to the appellant following an earlier period of detention – whether the sentencing judge erred in the application of s 208 of the Youth Justice Act 1992 (Qld) in imposing the detention order

Youth Justice Act 1992 (Qld), s 150, s 208, s 223

R v HBV[2019] QCA 21, considered
R v HCG[2021] QCA 200, followed
R v SCU[2017] QCA 198, followed
R v TAO[2020] QCA 4, considered

COUNSEL:

V Trafford-Walker for the appellant
J A Geary for the respondent

SOLICITORS:

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

McMURDO JA: The reasons of Mullins JA accord with my own for joining in the making of the orders on 19 November 2021.
MULLINS JA: The appellant who pleaded guilty on 23 July 2021 was sentenced by the learned sentencing judge in…

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 WBP

Details

AGLC: R v WBP [2022] QCA 9
Case: [2022] QCA 9
Decision Date: 11 February 2022

CaseChat Overview and Summary

In the Supreme Court of Queensland, the appellant, a minor, appealed against the sentence imposed by the Childrens Court following her guilty plea to armed robbery in company. The appeal centred on the contention that the sentencing judge applied an incorrect legal principle when imposing a detention order, contrary to the statutory provisions of the Youth Justice Act 1992 (Qld). The appellant argued that the judge failed to appropriately consider the recommendations of the pre-sentence report, which had assessed her as suitable for a conditional release order. Additionally, the appellant's legal team contended that the sentence was disproportionate given the mitigating factors and her suitability for alternative sentencing options.

The court examined whether the sentencing judge erred in applying section 208 of the Youth Justice Act 1992 (Qld). The appeal hinged on whether the judge had acted on the wrong principle by imposing a detention order rather than considering a more lenient conditional release order. The court noted that the pre-sentence report indicated the appellant was suitable for such an order, and the sentencing judge had not adequately justified the departure from this recommendation. The court found that the judge's decision was influenced by an incorrect application of the law, leading to a sentence that was not aligned with the principles of youth justice.

The Supreme Court granted the appeal, set aside the detention order, and ordered a new sentence. The court determined that a 12-month detention order should be suspended immediately, with the appellant to be released and participate in a program as directed by the Chief Executive for three months. During this period, the appellant must comply with various conditions, including abstaining from law violations and adhering to reporting and visitation directives. The court's decision underscored the importance of correctly applying sentencing principles and considering pre-sentence reports in youth justice matters.

Orders

Orders of the court

Orders delivered: 19 November 2021

1. Grant leave to appeal.

2. Allow the appeal.

3. Set aside the order of detention imposed by the sentencing judge on 10 September 2021.

4. Order that the appellant be detained for 12 months.

5. Further order that the period of detention be suspended immediately, the appellant be immediately released from detention and that she participate in a program as directed by the Chief Executive for a period of three months from today and that, during the period of the order:

(i) she will abstain from violation of the law; and

(ii) she will comply with every reasonable direction of the Chief Executive; and

(iii) she will report and receive visits as directed by the Chief Executive; and

(iv) she will or a parent of the appellant will notify the Chief Executive within 2 business days of any change of address, employment or school; and

(v) she will not leave, or stay out of, Queensland without the prior approval of the Chief Executive.

6. The order that a conviction not be recorded is confirmed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v WBP [2022] QCA 9
PARTIES:	R v WBP (appellant)
FILE NO/S:	CA No 231 of 2021 DC No 60 of 2021
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Cairns – Date of Sentence: 10 September 2021 (Everson DCJ)
DELIVERED ON:	Date of Orders: 19 November 2021 Date of Publication of Reasons: 11 February 2022
DELIVERED AT:	Brisbane
HEARING DATE:	19 November 2021
JUDGES:	McMurdo and Mullins JJA and Boddice J
ORDERS:	Orders delivered: 19 November 2021 1. Grant leave to appeal. 2. Allow the appeal. 3. Set aside the order of detention imposed by the sentencing judge on 10 September 2021. 4. Order that the appellant be detained for 12 months. 5. Further order that the period of detention be suspended immediately, the appellant be immediately released from detention and that she participate in a program as directed by the Chief Executive for a period of three months from today and that, during the period of the order: (i) she will abstain from violation of the law; and (ii) she will comply with every reasonable direction of the Chief Executive; and (iii) she will report and receive visits as directed by the Chief Executive; and (iv) she will or a parent of the appellant will notify the Chief Executive within 2 business days of any change of address, employment or school; and (v) she will not leave, or stay out of, Queensland without the prior approval of the Chief Executive. 6. The order that a conviction not be recorded is confirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the appellant was sentenced after pleading guilty in the Childrens Court of Queensland for one count of armed robbery in company – where the appellant was sentenced to detention for 15 months with release after serving 70 per cent of that period – where the author of the pre-sentence report assessed the appellant as suitable for a conditional release order – where a supervised release order had applied to the appellant following an earlier period of detention – whether the sentencing judge erred in the application of s 208 of the Youth Justice Act 1992 (Qld) in imposing the detention order Youth Justice Act 1992 (Qld), s 150, s 208, s 223 R v HBV[2019] QCA 21, considered R v HCG[2021] QCA 200, followed R v SCU[2017] QCA 198, followed R v TAO[2020] QCA 4, considered
COUNSEL:	V Trafford-Walker for the appellant J A Geary for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent