SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The applicant, a 15 year old juvenile at the time of the offences, pleaded guilty on 7 April 2008 in the District Court at Southport to two counts of assault occasioning bodily harm in company.  A pre-sentence report was ordered.  He was sentenced on 24 April 2008.  Convictions were recorded and on each count he was sentenced under the Juvenile Justice Act 1992 (Qld) ("the JJA") to 15 months detention with an order that after 50 per cent of that period he be released under a supervised release order.  Ninety-one days in pre-sentence custody from 19 November 2007 to 18 February 2008 were declared to be time served as part of the detention period.  He applies for leave to appeal against that sentence which he contends was manifestly excessive.

[2] The applicant had only one entry in his criminal history: on 17 July 2007 he was reprimanded without conviction for obstructing a police officer. 

The facts of the offences

[3] The circumstances of the offences are as follows.  The applicant was charged jointly with Harley Lee Trindall, MLS, Tiani Jade Slockee, NI, TT, JRG, KSM, AMS, and BAM.  Like the applicant, all his co-offenders pleaded guilty to both counts.  BAM's sentence has been adjourned until 13 August 2008.  Another youth aged 11, DDS, was originally charged but the charges were withdrawn by the prosecution on 17 June 2008.  The complainant in count 1 was a 27 year old off-duty police officer, Rawson James Armitage.  The complainant in count 2 was his 26 year old de facto partner, Michelle Renee Alexandra Dodge.  Trindall also pleaded guilty to stealing a wallet and contents from the person of Mr Armitage.

[4] On the evening of 16 November 2007, Mr Armitage and Ms Dodge had been out with friends at an establishment in Griffith Street, Coolangatta.  They eventually left their friends and walked north along Griffith Street.  They noticed a group of young people sitting near a public garden.  Just before 1.00 am on 17 November, Tiani Slockee skipped towards them.  She attempted to hit Mr Armitage.  Trindall then approached as Mr Armitage grabbed Slockee's arm or wrist.  He pushed Slockee away and this caused Trindall to fall over.  Trindall got to his feet and struck Mr Armitage in the jaw with a closed fist.  He punched Mr Armitage at least twice more to the jaw and Slockee struck Ms Dodge. 

[5] Members of the group of young people sitting in the public area ran towards the fracas.  Some members of the group began to assault either Mr Armitage or Ms Dodge.  JRG pushed Ms Dodge in the face and against a wooden fence.  JRG repeatedly punched Ms Dodge in the head and face and then threw her to the ground by the hair.  AMS also punched Ms Dodge.  KSM removed her right shoe and joined in the assault.  Ms Dodge thought she was struck in the head by the shoe. 

[6] Trindall hit Mr Armitage in the face with his elbow knocking him unconscious and causing him to fall to the ground.  Whilst he was unconscious on the ground TT, BAM and MLS each kicked him in the head.  The prosecutor submitted that the applicant jumped or stomped more than once on Mr Armitage's head whilst the applicant was holding on to the nearby fence to keep his balance and to take aim.  Trindall removed Mr Armitage's wallet from his back pocket and ran away.  He was followed by others who were involved in or watched the assault.  The applicant and NI were recorded slapping each other's hands in a congratulatory manner.  AMS and KSM remained at the scene.  A witness, Anderson, approached Mr Armitage to ascertain his condition.  Ms Dodge asked AMS to use her mobile phone, apparently to get assistance for Mr Armitage.  AMS said it was not working.  Ms Dodge slapped AMS and AMS grabbed Ms Dodge by the hair and punched her.  KSM then also punched Ms Dodge and AMS walked away with a handful of Ms Dodge's hair in her hands.  Other witnesses approached the complainants, called an ambulance and flagged down a passing police vehicle.  Mr Armitage was still unconscious. 

[7] The incident was recorded on closed circuit television (CCTV).  The members of the Court have watched this recording more than once.  I have watched it a number of times both at normal speed and frame by frame.  The applicant is a tall and well-built youth.  Although the recording plainly shows his enthusiastic physical involvement in the dreadful attack on Mr Armitage while Ms Dodge was also being attacked by others in his group, I saw the applicant jump once, not twice, in the vicinity of Mr Armitage.  I could not see if or where he made contact with the complainant.  One witness said the applicant's feet landed on Mr Armitage's shoulder.[1]  Another witness claimed the applicant punched and kicked Mr Armitage before he fell down but this account seems inconsistent with the CCTV recording.  Other witnesses said the applicant used the fence as leverage to stomp on Mr Armitage's head and shoulders.[2]

[8] Mr Armitage was treated at hospital for concussion, lacerations and contusions.  He received a number of stitches to a laceration to his head and underwent a CT scan of his head.  He had some problems with vision.  He returned to hospital on 19 November 2007 with ongoing pain in his neck and was diagnosed with soft tissue injury.  On 23 November 2007 he returned to hospital to have his sutures removed.  Ms Dodge received bruising to the right side of her face near the eye and cheekbone and above her eyebrow.  She suffered abrasions to the right top side of her head, bruising and swelling to the bottom left side of her head, an abrasion to the right knee and suffered strong pain in her right shoulder and neck area and had bald spots on her scalp.  She underwent a CT scan on 19 November 2007 because she continued to suffer from headaches, nausea and neck pain.  At sentence, she was still suffering from pain to the side of her head and neck and had visited a chiropractor on 12 occasions, a psychologist twice and an optometrist once because of problems following the assault.

[9] Victim impact statements from the complainants attested to the very significant physical, financial and emotional effect of the offences on them. 

[10]  The applicant did not take part in an interview with police.

The pre-sentence report

[11]  A pre-sentence report was prepared under the JJA in respect of the applicant.  It recorded the following information.  The applicant was forthcoming in the interview with the author but found it difficult to identify why he had offended.  After extended discussions, the author concluded that the combination of two factors, alcohol misuse and negative peer associations, was the key to his involvement in this offending.  His alcohol misuse on the night of the offences is consistent with his inability to remember details and would have had a disinhibiting effect.  He and his friends had attended "schoolies" celebrations in Surfers Paradise without incident.  He had drunk about 12 cans and shared a bottle of bourbon.  Some of his associates that evening had previously been involved in the youth justice system.  He displayed some ambivalence towards the seriousness of alcohol misuse and the associated risks.  Whilst the applicant initially demonstrated understanding of victim awareness, the author felt there was some inconsistency in his responses in this area. 

[12]  His incarceration in the Brisbane Youth Detention Centre for these offences was a salutary consequence for him of his behaviour.  Whilst in detention, he completed numeracy and literacy courses, four sessions of a drug and alcohol course, hospitality, art and some recreation programs.  He wished to gain fulltime employment as an apprentice plasterer.  He completed the Duke of Edinburgh Bronze medallion within his community.  His parents are supportive and are committed to helping him with his future goals and aspirations. 

[13]  He expressed willingness to comply with a probation or community service order or a combined order.  As he lived in New South Wales, he would be required to comply with such orders outside Queensland.[3]  He could also be sentenced to a period of detention to be served by way of a conditional release order under s 221(1)(a) of the JJA.  A detention order involving actual custody was a last resort under the JJA.  In respect of a custodial sentence, the author referred the judge to three matters: the applicant had not previously had the opportunity to be involved in a supervised order; he had spent 91 days on remand for these offences; and detention was considered only as an option of last resort.  A further sentencing option was a combined order of probation for up to 12 months after detention for up to six months. 

The submissions at sentence

[14]  The submissions of the prosecutor at sentence included the following.  The applicant had been remanded in custody for 91 days.  He had been on bail since 18 February.  His role in the offences was serious.  Were he an adult, his actions would warrant a substantial period of imprisonment.  He had served three months in detention so that it would be appropriate to order that he serve a period of 12 months detention immediately suspended on a three month conditional release order.  Such a program would require him to attend programs for 32 hours each week.  Although he lived in Tweed Heads, under s 221(3) of the JJA the order could be effective outside Queensland. 

[15]  The learned sentencing judge expressed a preliminary view that a period of three months actual detention was insufficient punishment for the applicant's offending.  The prosecutor responded that, whilst ordinarily that would be so, it was difficult to order further detention when the applicant had spent 91 days in custody, been released into the community and had begun his rehabilitation.

[16]  The applicant's counsel at sentence made the following submissions.  This was an opportunistic attack on two civilians.  It was not initially known that Mr Armitage was a police officer.  The applicant was 15 years old and had been drinking.  It was unlikely he would have become involved in the offences but for this.  He pleaded guilty at a very early time.  Although the victim impact statements were graphic and detailed, the charges to which the applicant had pleaded guilty were ones of assault occasioning bodily harm in company.  The applicant had asked his barrister to offer a very genuine apology.  The applicant's parents are ashamed of their son's behaviour and the applicant knows this.  He is trying to rebuild his future.  He has obtained part-time employment as a plasterer and is hoping to obtain a plastering apprenticeship.  A reference was tendered from his employer describing him as honest, reliable, enthusiastic and able to work well in teams.  He is completing grade 10 with Southern Cross Distance Education.  He lives at home with his parents who are respected people in the Tweed Heads community.  He has not touched alcohol since he was arrested.  His criminal history was minimal.  A conditional release order as proposed by the prosecutor was the appropriate sentence.

The judge's sentencing remarks

[17]  In passing sentence, the judge made the following observations.  The offences were serious offences of violence.  The complainants suffered significant injuries, both physical and psychological.  Seven of the nine offenders before the court were juveniles and were to be dealt with under the Juvenile Justice Act.  This was not an appropriate case for a youth justice conference.  The offenders' conduct had brought disgrace and shame upon themselves, their families and their communities.  The judge referred to the pertinent principles of juvenile justice. 

[18]  In respect of Trindall, an adult, his Honour noted that he was 18 at sentence and 17 at the time of the offences; he had the additional offence of stealing Mr Armitage's wallet as he lay unconscious on the ground.  Trindall's offending effectively breached a probation order imposed on 8 September 2006 for one count of grievous bodily harm.  He had spent 155 days in pre-sentence custody.  He was also on bail at the time of the present offences for New South Wales charges of assault occasioning bodily harm and affray.  The offences were committed in breach of the bail conditions which imposed a curfew between 7.00 pm and 7.00 am.  Trindall commenced the attack on Mr Armitage.  He was the oldest in the group.  His girlfriend, AMS, had wanted to celebrate schoolies week.  When Trindall saw his co-offender Slockee being grabbed by Armitage, he went to her aid.  He had not planned for others to join in the violence.  Trindall wrote a letter of apology to the court.  He had a dysfunctional upbringing.  On each count the judge sentenced Trindall to two and a half years imprisonment suspended after nine months with an operational period of three years.  The 155 days spent in pre-sentence custody was declared part of the sentence.  He was sentenced to a three month concurrent term of imprisonment in respect of the offences the subject of the breach of probation.

[19]  Slockee, also an adult, was 18 at sentence and 17 at the time of the offences.  She had no criminal history and had spent 91 days in pre-sentence custody.  At the time of these offences she was on bail for offences in New South Wales.  She had indicated an early plea of guilty.  She had a dysfunctional background.  She was currently employed by her grandfather in his fishing business.  She had removed herself from her former peers and was now drug-free so that she had a low risk of re-offending.  Neither offence would have occurred but for Slockee's instigation.  The judge convicted her on each count and ordered that she be imprisoned for 91 days, which was already served by way of pre-sentence custody, and ordered that she be placed on two years probation with a special condition that she undergo such counselling or treatment as directed by an authorised corrective services officer with respect to substance abuse, specifically alcohol.

[20]  The remaining offenders were sentenced as juveniles.  TT was 16 years and 10 months at sentence.  The present offences effectively breached a probation order made on 2 July 2007 for one count of robbery with actual violence.  The judge found the breach proved but made no further order in respect of it.  He was also on an eight month suspended sentence imposed in New South Wales for assault occasioning bodily harm and robbery in company.  Alcohol abuse, negative peer associations and poor decision-making were the reasons for his offending.  TT had spent 93 days in pre-sentence custody.  He kicked Mr Armitage to the head whilst Mr Armitage was unconscious on the ground.  In respect of the present offences, the judge ordered that TT be held in detention for 15 months with a supervised release order after serving 50 per cent.  The 93 days spent in pre-sentence custody were ordered to be counted as part of the period of detention.

[21]  In respect of the applicant, his Honour noted that he was 15 years and nine months at sentence.  He had a minor criminal history.  The applicant's:

"… role in the assault upon Mr Armitage almost defies comprehension. While Mr Armitage was lying on the ground, whether unconscious or not I do not know, you jumped on his head on more than one occasion. You did so whilst holding onto the adjacent fence in order to keep your balance, to gain leverage and to assist you with your aim. You were later seen to slap hands with others of your group in a congratulatory manner."

[22]  The judge noted that alcohol misuse and negative peer associations were considered the reasons for the applicant's involvement in these offences, described by his counsel as reprehensible and sickening.  His conduct was, however, not planned; he was not the instigator of the violence and he acted impulsively as part of a herd mentality.  His Honour noted that the applicant was in part-time employment and that references had been tendered on his behalf.  He was living with supportive parents in a good home and had not touched alcohol since the offences.  After giving careful consideration to the submissions made on behalf of the applicant, his Honour concluded that the applicant's "… conduct was the most despicable aspect of the entire assault upon Mr Armitage. How you could jump on a man's head on two occasions as he lies helpless on the ground, as I have said, simply defies comprehension."  His Honour sentenced the applicant to 15 months detention with an order that he be released under a supervised release order after serving 50 per cent of it.  The 91 days pre-sentence custody were to be counted as part of the period of detention.  Convictions were recorded.

[23]  In respect of NI, the judge noted that at sentence he was aged 16 years and nine months.  He had a minor criminal history for an offence of public nuisance committed on 31 December 2006 for which he was reprimanded without conviction.  His participation in the assaults was by encouraging others.  He did not directly apply force or violence to either complainant.  After the assault he was seen to slap hands with the applicant in a congratulatory manner.  NI's counsel submitted that this was more a sign of association rather than congratulation but the judge stated that he had "some difficulty accepting that particular submission".  He had the support of his mother and had apologised to the complainants.  He was remorseful and ashamed.  The factors contributing to the offending were negative peer association, group dynamics, alcohol misuse and limited parental supervision.  He had served 38 days in pre-sentence custody.  The judge ordered that NI be admitted to probation for 12 months without conviction on each count with a special condition requiring him to undergo such counselling or treatment as directed with respect to substance abuse, specifically alcohol.  He was also ordered to perform unpaid community service for 100 hours. 

[24]  The judge noted that MLS was 17 years and two months at sentence.  She had spent 19 days in pre-sentence custody.  She kicked Mr Armitage in the head with significant force such that the fence next to him was seen to move.  Alcohol misuse was a primary factor in her offending.  She had no criminal history.  She cooperated with the administration of justice by offering to give evidence.  She had apologised to the victim.  She claimed she was unaware Mr Armitage was unconscious when she kicked him.  The degree of violence she used on the helpless victim was a very serious matter.  However, because of her cooperation with the authorities, the judge was persuaded to order that she be sentenced to detention for nine months but that it be suspended by the making of an immediate conditional release order. 

[25]  In respect of JRG, the judge noted that she was 14 years and ten months old at sentence.  She had no previous convictions.  She had spent four days in pre-sentence custody.  She pushed Ms Dodge against the wooden fence, hit her in the face, repeatedly punched her in the head and face and threw her to the ground by her hair.  She was a principal offender in respect of the offence against Ms Dodge.  It seems that the factor contributing to her offending was a misguided understanding of family values.  She had apologised and was remorseful.  She hoped to finish her education at TAFE.  No conviction was recorded and she was placed on two years probation and ordered to perform unpaid community service for 100 hours. 

[26]  In respect of AMS, the judge noted that she was 17 years and one month at sentence.  She had no criminal history and had spent no time in pre-sentence custody.  She punched Ms Dodge and later refused to let her use her mobile phone when the complainant was obviously distressed at Mr Armitage's condition.  AMS then grabbed her by the hair, punched her and walked away with a handful of Ms Dodge's hair in her hand.  She and KSM remained with Mr Armitage after others in the group decamped although they left before the police and ambulance officers arrived.  The factors contributing to AMS's offending were inappropriate attitudes to violence, alcohol misuse, peer group dynamics and lack of supervision.  She had completed hospitality courses at TAFE and had employment.  A reference was tendered on her behalf.  She pleaded guilty at an early stage.  She presented herself to police some days after the commission of the offences and participated in an interview and made some admissions.  The judge ordered that she be placed on probation for two years with the special condition that she undergo treatment or counselling as directed by the chief executive officer for substance abuse, specifically alcohol and that she perform 200 hours unpaid community service.  No convictions were recorded.

[27]  The judge noted that KSM was 14 years and seven months at sentence.  She had no prior criminal history.  She removed her right shoe and joined in the assault on Ms Dodge.  The judge accepted that she used the shoe to strike Ms Dodge in the head and later punched Ms Dodge when she requested the use of the mobile telephone.  The offences occurred when she went to the aid of her sister, AMS.  She was undertaking home schooling at grade 9 level because she was bullied at school and assaulted by another female student.  She was a promising athlete.  She hoped to attend TAFE.  She had written a letter of apology to the court and a reference was tendered on her behalf.  She pleaded guilty at an early stage and co-operated in an interview with police in which she made some admissions.  Contributing factors to the offending were negative peer associations, alcohol misuse and disregard for parental discipline.  The judge ordered that she be placed on two years probation with a special condition that she undergo such counselling or treatment with respect to substance abuse, specifically alcohol.  She was also ordered to perform 100 hours unpaid community service.  No convictions were recorded.

The submissions on appeal

[28]  Counsel for the applicant, Mr Chowdhury, submits that the learned sentencing judge erred in failing to consider and to then make an order which would not only reflect the seriousness of the offences, but would also provide an opportunity for the applicant to be supervised in the community where he could continue his rehabilitation.  Although the Juvenile Justice Act and the principles contained in it do not remove from courts their duty to consider the protection of the community from offences of violence in imposing deterrent sentences in appropriate cases,[4] a child offender should be "dealt with in a way that would give the child the opportunity to develop in responsible, beneficial and socially acceptable ways".[5]  The pre-sentence report provided for the imposition of a variety of sentencing options other than detention, especially as the applicant had served a significant period of detention already.  He had not previously had the benefit of a supervision order in the community.  Mr Chowdhury contends that R v Dempsey and Perks; ex parte A-G;[6] R v D[7] and R v S[8] demonstrate that the sentence imposed on the applicant was manifestly excessive.  He submitted that a sentence of between three and 12 months with immediate release, either on parole or under a conditional release order, was within the range.  The judge should have imposed a sentence of 91 days detention, already served, followed by 12 months probation. 

[29]  Mr G P Cash for the respondent supports the sentence imposed at first instance because of the seriousness of the applicant's offending. 

Discussion and conclusion

[30]  The learned and experienced sentencing judge had the difficult task of sentencing nine co-offenders, two of whom were adults to be sentenced under the principles contained in the Penalties and Sentences Act 1992 (Qld), and seven of whom were juveniles to be sentenced under the principles contained in the Juvenile Justice Act.  Each offender had to be sentenced according to the circumstances of the offences applicable to him or her, in light of the applicable exacerbating and mitigating factors applying in each case, and according to the appropriate sentencing principles contained in the relevant statute. 

[31]  The maximum penalty for the offences committed by the applicant as a juvenile was five years detention.[9]  The offences were serious examples of street violence in company.  The unfortunate and apparently completely innocent victims were set upon by the young adults, Trindall and Slockee, in the early hours of the morning in a popular entertainment area of Coolangatta during the infamous schoolies week.  A large number of young people, including the applicant, joined in the fracas.  He had been drinking alcohol heavily, especially for a 15 year old.  It seems that his alcohol abuse is why he has no recollection of his violent actions and why he behaved so badly.  He was recorded on the CCTV as jumping in the vicinity of Mr Armitage's head while he was lying on the ground.  According to witnesses he made contact with Mr Armitage's head and shoulders.  The applicant held on with both hands to the fence behind Mr Armitage as he did so.  The CCTV recording depicts a sickening episode of violence of very short duration involving multiple offenders.  Even watching it frame by frame, it is almost impossible to determine what each offender did and whether any one offender was the most culpable.  I am not persuaded the judge was right in concluding that the applicant's conduct was "the most despicable aspect of the entire assault on Mr Armitage" or even that he jumped on Mr Armitage's head on two occasions, rather than the one jump I was able to see. 

[32]  Unlike Trindall, the adult and first male involved in the offending, who had a previous conviction and was on probation for an offence of violence at the time of these offences, the applicant had no convictions at all and no relevant criminal history.  TT was a juvenile but considerably older than the applicant.  He was on probation for an offence of violence when he committed these offences by kicking the prostrate complainant to the head.  MLS, another juvenile, who was also older than the applicant, also used significant violence against Mr Armitage by kicking him to the head when he was lying on the ground so that the fence next to Mr Armitage was seen to move. 

[33]  That said, the applicant's role in these offences, particularly the offence committed on Mr Armitage, was rightly described by the judge as "despicable".  It involved very significant violence.  It warranted a correspondingly significant penalty to deter the applicant and others who might be disposed to participate in mob street violence.  The applicant and his co-offenders, as well as Mr Armitage and Ms Dodge, were all fortunate that the assaults did not result in more serious injuries.  Mr Armitage in particular could easily have suffered permanent brain damage or even death.  The offenders must, however, be sentenced for the offences actually committed and the injuries actually suffered by the complainants. 

[34]  Although the applicant was tall and well-built, it is essential to remember that he was 15 years old and had the maturity of a 15 year old.  He was subject to the sentencing principles contained in the Juvenile Justice Act.  These include that the court must have regard to the general principles applying to the sentencing of all persons,[10] the juvenile justice principles[11] and the special considerations stated in s 150(2) of the JJA.[12]  These special considerations include that a child's age is a mitigating factor;[13] a non-custodial order is better than detention in promoting a child's ability to reintegrate into the community;[14] the rehabilitation of a child is greatly assisted by the child's family and opportunities to engage in educational programs and employment;[15] and a detention order should be imposed only as a last resort and for the shortest appropriate period.[16]  Under s 208 of the JJA, a court may make a detention order against a child only if the court, after considering all other available sentences and taking into account the desirability of not holding a child in detention, is satisfied that no other sentence is appropriate in the circumstances of the case.  The juvenile justice principles set out in Sch 1 of the JJA underlie the operation of the JJA.[17]  In addition to principle 8(b) to which Mr Chowdhury has referred, other relevant principles include:

"16A child should be dealt with under this Act in a way that

allows the child to be reintegrated into the community.

17A child should be detained in custody for an offence, whether

on arrest or sentence, only as a last resort and for the least

time that is justified in the circumstances."

[35]  The applicant had no prior convictions and a very minor criminal history.  He had not previously had the benefit of supervision in the community.  He pleaded guilty at an early time and expressed remorse.  He had served 91 days in detention before being released on bail.  Whilst on bail he had obtained part-time employment and was continuing his education.  Alcohol misuse was a significant factor in his offending.  He claimed he had abstained from drinking alcohol since his arrest on these offences.  He had promising prospects of obtaining an apprenticeship with his employer.  The pre-sentence report and the submissions made by both the prosecutor and the applicant's counsel at sentence supported a conclusion that, despite the serious aspects of the applicant's offending, there were sentencing options other than further detention which would provide a framework to encourage the applicant's continued rehabilitation in the community whilst still providing proper protection to the community by way of a deterrent sentence.  Returning the applicant to detention risked jeopardising his promising rehabilitation.  It was not necessary to conclude that the serious nature of the offending required that a further period of detention was the only sentencing option open in the circumstances.  Whether or not the judge erred in ordering further detention, as Mr Chowdhury submits, R v D does not support the period of 15 months detention imposed as being "for the shortest appropriate period".[18]  The sentence was manifestly excessive.

[36]  This error means that the application for leave to appeal should be granted and the appeal allowed.  This Court must re-sentence the applicant.  He has now served a period of about 175 days or almost six months detention, a substantial sentence for these offences for a juvenile without prior convictions.  Mr Chowdhury has informed the court that the applicant is still able to return to his supportive family, his education and to his part-time employment if now released on probation and he continues to have promising prospects of an apprenticeship as a plasterer.  The sentence which now most appropriately meets the principles of juvenile justice is one that releases the applicant with supervision and guidance into the community to enable him to continue his rehabilitation under a probation order.  He has already served a significant custodial term of about six months.  This can be combined with a 12 months probation order under s 180 of the Juvenile Justice Act.  In combination, this is a significant penalty to impose on this applicant in light of the mitigating circumstances.  It is a most substantial deterrence, both to him and to other youths who might consider participating in mob street violence.  The recording of convictions for these offences would be likely to impose a significant detrimental impact on the prospects of his rehabilitation generally and in his finding or retaining employment.  It is not, in my view, necessary, desirable or just for convictions to now be recorded in all the circumstances.  I emphasise it is my intention that the applicant is to be released on probation on the day of the delivery of these reasons.

[37]  I would grant the application for leave to appeal, allow the appeal, set aside the sentence imposed at first instance and instead on each count order under s 180 Juvenile Justice Act 1992 (Qld) that he be sentenced to a period of 175 days detention and that he be placed on 12 months probation on the usual terms and conditions under the Juvenile Justice Act, together with the further conditions that he undergo such counselling or treatment as directed by the chief executive for substance abuse and in particular alcohol abuse, and that under s 193(3) he comply with the probation order outside the State.  The 91 days pre-sentence custody from 19 November 2007 to 18 February 2008 is declared as time served under the detention order.  It is further directed that the applicant's legal representatives explain to him the purpose and effect of these orders.

Orders:

1.      Application for leave to appeal granted.

2.      Appeal allowed.

3.      Sentence imposed at first instance set aside.

4.      Instead, on each count order under s 180 Juvenile Justice Act that the applicant be sentenced to 175 days detention and that he be placed on 12 months probation on the usual terms and conditions under s 193 Juvenile Justice Act together with the further conditions that he undergo such counselling or treatment as directed by the chief executive for substance abuse and in particular alcohol abuse, and that under s 193(3) he comply with the probation order outside the State.

5.      The 91 days pre-sentence custody from 19 November 2007 to 18 February 2008 is declared as time served under the detention order.

6.      The applicant's legal representatives are directed to explain to him the purpose and effect of these orders under s 158 Juvenile Justice Act.

[38]  MUIR JA:  I agree with the orders proposed by McMurdo P.  I also agree with Her Honour’s reasons save, possibly, in one respect.  If it is implicit in the reasons that the learned sentencing judge erred in ordering detention beyond the 91 days spent by the applicant in pre-sentence custody, I would respectfully disagree. 

[39]  The offending conduct was potentially life threatening.  It was an act of random, mindless violence perpetrated in the course of a mob attack on persons using a public thoroughfare in the evening.  As the sentencing judge concluded, it merited condign punishment.

[40]  I make one other observation.  This court, unlike the sentencing judge, had the benefit of extensive submissions relating solely to this applicant’s sentence.  This court also had the advantage of having before it the careful and extensive sentencing remarks in respect of all nine offenders sentenced on 7 April 2008.

[41]  LYONS J:  I have had the advantage of reading the reasons for judgment of McMurdo P.  I agree with the reasons and the orders proposed by her Honour.