SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: The application for leave to appeal against sentence should be refused for the reasons given by Jerrard JA.

[2]  JERRARD JA:  On 23 October 2006 the applicant WS pleaded guilty to the murder of his father, committed on or about 3 May 2006 at Eimeo in Queensland.  He was 16 years and six months old when he committed the murder, and 16 years and 11 months old when he pleaded guilty.  On 12 February 2007, when he was 17 years and three months, he was sentenced to 12 years detention under the provisions of the Juvenile Justice Act 1992 (Qld) (“the Act”), particularly those in Part 6, Division 11, which required that in those circumstances he be treated as a child when sentenced.  He has applied for leave to appeal against that sentence, and his counsel argues that the learned judge ought to have made an order under s 227(2) of the Act, ordering that the applicant be released from detention after serving 50 per cent of that 12 year period of detention. 

[3] The applicant was sentenced to 12 years detention under s 176(3) of the Act.  It relevantly provides that for a serious offence that is a life offence (and murder is a life offence):

“...the court may order that the child be detained for –

(a) a period not more than 10 years; or

(b) a period up to and including the maximum of life – if

(i) the offence involves the commission of violence against a person; and

(ii) the court considers the offence to be a particularly heinous offence having regard to all the circumstances.”

[4] The learned sentencing judge was satisfied that the murder was a particularly heinous offence, having regard to all of the circumstances, and that conclusion is not challenged on this application.  Nor is the learned judge’s conclusion that a sentence of 12 years detention was appropriate to recognise the serious aspects of the offence.  The applicant’s counsel, Mr Long SC, focused on the submission that the learned judge was in error in not making an order under s 227 of the Act; because no order to the contrary was made, the applicant is required to serve 70 per cent of the 12 year sentence, and he must then be released from detention.  Section 227 allows a court, if satisfied there are special circumstances, to fix the minimum period of detention at anywhere between   50 per cent and 70 per cent of the detention ordered.  The section requires that release occur at the end of either the automatically occurring 70 per cent mark, or the specially ordered 50 per cent to 70 per cent mark.  There is no discretionary power under that Act to hold an offender not assessed as suitable for release.  Mr Long SC, in arguing for an ordered release at the 50 per cent mark, urged that the learned sentencing judge did not give due regard to the applicant’s co-operation with the administration of justice, and further, and independently, erred in finding that:

“An early release would pose a risk to the community.”

[5] The circumstances of the offence, described in the applicant’s written outline and accepted by the respondent, were that in the early hours of the morning of 3 May 2006, WS entered his father’s bedroom, took a .22 rifle from a wardrobe and ammunition from a dresser drawer, went down to a hallway to load the rifle, re-entered the bedroom, and discharged the rifle against his sleeping father’s forehead, killing his father.  He had been living with his father since he was 13, when his parents had separated, and at the time of the murder a Peter Mobbs, then aged 19, was also living in the house.  WS had identified his own homosexual ideation at the age of 14, and from the age of 15 had been involved in sexual relationships with other males.  Those relationships were accepted by his father, although the deceased and the applicant had a difficult relationship.  Peter Mobbs and WS were in a sexual partnership, and the deceased had provided employment for both of them in his roofing business.

[6] The applicant’s case included the contention that Peter Mobbs had counselled him to commit the murder, and that Peter Mobbs had sent text messages to others before the killing, advising that the offence would happen.  On the evening before the murder Peter Mobbs had obtained a bank account card of the deceased and withdrawn $900 from it; the applicant was present when he did that.  After the shooting, Peter Mobbs and WS were involved together in disposing of the gun and the clothes WS had worn, and they attempted to disguise what had happened by feigning forced entry to the house.  WS then raised the alarm with neighbours, pretending that the shooting had happened when he and Peter Mobbs were absent. WS maintained that account to the police, until he discovered Peter Mobbs had implicated them both in the killing.  They had travelled after the shooting to three different locations to dispose of different parts of the rifle, and the clothing.  The applicant also let off some “party poppers” in the hope the residue from that would disguise any gunshot residue that might remain on his hands.

[7] The only identifiable motive for the crime, described in a statement to the police and to a psychiatrist Dr Kippax, was a fear that a person called “Don”, whom the applicant understood had threatened the applicant’s father, might come to the house to harm the deceased, and that WS (and Peter Mobbs) might suffer some injury when and if that happened.  Accordingly, the applicant concluded that it would be safer for him if he killed his father first so that the risk of “Don” doing that and hurting the applicant would not materialise.

[8] The applicant went to a neighbour’s house at about 6.43 am on 3 May 2006, saying his father had been shot, and he told the police that he and Peter Mobbs had gone to the movies the previous night, withdrawn money from his father’s bank account for wages, and returned home by taxi at about 11.00 pm.  He said he had heard a noise at the front door at about 2.30 am, had gone to watch the sunrise with Peter Mobbs at about 4.00 am, and had stopped at a Caltex Service Station at 5.00 am to get some food before returning home.  When he went to wake his father he found him dead.  A fly screen had been removed and placed on the bed inside the deceased’s bedroom.  The applicant adhered to that story until told by the police that he was implicated.  He then confessed to the killing, and said that it had been discussed beforehand.  He also admitted disassembling the rifle after the shooting and packaging it into a suitcase, burning the stock with Peter Mobbs at Shoal Point, and burning the clothes that he was wearing at a BBQ, and then throwing the trigger assembly of the rifle away in undergrowth near the BBQ.  The rifle barrel was thrown into mangroves, and the bolt into a saltwater lake.  The investigating police established that at least one witness described hearing the applicant and Peter Mobbs discussing the killing some days earlier, and two witnesses received text messages from Peter Mobbs the night before the murder advising that the deceased would be killed that night.

[9] WS pleaded guilty to the murder, and undertook to give evidence against Peter Mobbs.  He in fact did that on 13 February 2007, in a proceeding conducted the next day after his sentence and before the same judge who had sentenced him.  Peter Mobbs had pleaded not guilty to murder, but guilty to being an accessory after the fact to the murder committed by WS.  The Crown did not accept that plea in discharge of the indictment, and this Court was informed that Peter Mobbs was subsequently acquitted of murder by a jury, and so sentenced on his own plea as an accessory.

[10]  The learned sentencing judge expressly took into consideration that WS had pleaded guilty at an early stage, and that he agreed to give evidence against Peter Mobbs, that he had no criminal history, and was only 16 years and six months old when he killed his father.  The judge considered that the overwhelming features of the offence were the gratuitous nature of the crime, the cold blooded and premeditated way in which it was carried out, and the methodical way in which WS and Peter Mobbs had set about trying to conceal the crime.  The judge had been assisted by a series of reports tendered by WS’s counsel, and the judge considered that those did not establish that WS had any real remorse for what had happened.  The judge accurately summarised the contents of the various reports, and concluded in the circumstances that on balance the judge was satisfied that an early release for WS would pose a risk to the community. 

[11]  A pre-sentence report dated 2 February 2007, to which was annexed a psychiatric report by a Dr Kippax dated 12 December 2006, contained the observation that WS was significantly disconnected from his family and peers, and that while he had remained in custody he had not demonstrated or expressed significant regret or remorse for killing his father.  The report by Dr Kippax dated 12 December 2006 described WS as clearly attached to Peter Mobbs, and missing him, when first admitted to the Cleveland Youth Detention Centre in Townsville, but that WS was now detaching from Peter Mobbs.  Dr Kippax considered that the applicant’s account of the pre-offence and pre-murder period came across as a studied effort to implicate Peter Mobbs in the major role in their planning, and observed that WS expressed no regret over killing his father; his main expressed concern was in relation to upsetting his mother and sisters, and his anger over how Peter Mobbs had taken them in with what WS now considered to be lies.

[12]  Dr Kippax considered that WS’s presentation was consistent with a conduct disorder, in transition into an antisocial personality disorder; a conduct disorder was a diagnosis that could be made in childhood or adolescence of a:

“...repetitive and persistent pattern of behaviour in which the basic rights of others or major age appropriate societal norms or rules were violated.” 

That doctor concluded that outside of an institutional setting, WS represented a considerable risk to others, with a small window of opportunity over the next several years for treatment and rehabilitation.

[13]  A psychologist’s assessment, also annexed to the pre-sentence report and dated 5 January 2007 described WS as having an air of detachment when remarking that:

“No one has the right to kill someone.”;

almost as if speaking about an incident that had happened to someone else.  He was assessed as extremely depressed, and as an extremely vulnerable youth who had been very much in the thrall of Peter Mobbs.  Avoidance and detachment were evident in his expressions of remorse, and the psychologist predicted that he would be very vulnerable in an adult correctional centre due to his youthful appearance, slight build, and sexuality. 

[14]  A separate report by another psychologist, dated 5 February 2007, described WS claiming that he had drunk large amounts of alcohol, mostly spirits, on a daily basis between the ages of 13 and 16, and that he liked to drink until he was comatose.  He stopped in grade 10 because he realised he would fail school.  The psychologist considered that WS did not suffer from any major mental illness, did not belong to a criminal subculture nor endorse a criminal lifestyle, and accepted that the murder:

“...may be summarised as a brutal murder by a youth whose personal judgment had become grotesquely distorted in a pathological sexual relationship.”

That opinion was a quotation from one put forward by a second psychiatrist, a Dr Fama, whose report dated 7 December 2006 diagnosed WS with an adjustment disorder, and offered the opinion that the circumstances of the offence were peculiar and highly individual.  Dr Fama considered there was no likelihood of WS re-offending in such a manner in the future, particularly because further maturation could be expected during his transition to full adulthood. 

[15]  That more favourable report led to an addendum report being obtained from Dr Kippax, who explained that she did not believe WS lacked the capacity for the development of empathy, and that he was certainly not “psychopathic”.  She was prepared to accept the diagnosis of an adjustment disorder, which by definition could arise from sustained stress and could result in quite major disturbances in mood and behaviour.  She also accepted that it could be considered to be “in remission”, but stated that her diagnosis suggested a greater reason for caution than Dr Fama’s did, and a higher potential for risk to self and others in the short term.  She advised that the next several years would be critical in steering WS towards a more normal lifestyle, and that this process could get derailed if he was returned too early to the community.  She advised that there was still a significant element of risk if WS were to be at large in the general community, and that in five years that risk might be negligible.

[16]  That body of opinion, and the circumstances of the killing put before the learned trial judge, support the conclusion by the judge that an early release would pose a risk to the community.  I respectfully disagree with the submission by Mr Long SC that the judge erred in that conclusion.  It would have been a very strong finding that an early release would not pose a risk to the community.  The murder was premeditated, serious attempts were made to conceal what had happened, and the only acknowledged motive reflected WS’s willingness without compunction or conscience to do anything at the suggestion of, or to please, a sexual partner.  If that was not the motive, then the murder was really not explained.

[17]  The other ground of attack on the sentence contended that not enough regard had been given to WS’s co-operation with the administration of justice.  It is true that WS gave a statement before he was sentenced, in which he alleged that Peter Mobbs had suggested that he kill his father instead of having someone else come around and do it and have the two of them at risk, and true that WS did give evidence against Peter Mobbs.  But the learned sentencing judge specifically referred to that matter.  The judge had a discretion to conclude that special circumstances, such as the plea of guilty,[1] or the force of the suggestions by Peter Mobbs upon the applicant’s judgment, should result in WS being released after he had served less than 70 per cent, and no more than 50 per cent, of the 12 years before being released.  But the material before the judge did not oblige the judge to find that the offence was procured by Peter Mobbs, or that if it was, that that fact made a special circumstance in which an order that no more than 50 per cent of the time in detention be served was appropriate.  The orders made by the judge were a cautious exercise of the sentencing power and insufficient reason has been shown for substituting any other order.  I would dismiss the application.

[18]  PHILIPPIDES J:   I have read the judgment of Jerrard JA and agree that the application should be dismissed for the reasons stated therein.