R v MDJ[2021] QCA 176

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  I agree with the reasons for judgment given by Morrison JA and the order proposed by his Honour.
2. [2]
   MORRISON JA:  The applicant was born on 14 February 2003.  On 5 March 2021, soon after he turned 18, he was sentenced in the Childrens Court for a number of offences:

   1. (a)
      armed robbery in company with personal violence;
   2. (b)
      wounding;
   3. (c)
      assault occasioning bodily harm while armed and in company; and
   4. (d)
      possession of a category H weapon, short firearm in public.
3. [3]
   He was sentenced to three years’ detention on the count of armed robbery in company with personal violence.  He was sentenced to eight months’ detention for possession of a category H weapon.  Each of those terms were to be served concurrently.
4. [4]
   Prior to the sentence he had served 279 days in presentence custody, which was automatically counted as part of the sentence of detention.^[1]
5. [5]
   The applicant was ordered to be released from detention after serving 50 per cent of the sentence.  Under that order his release date would be 29 November 2021.
6. [6]
   The applicant seeks to challenge the sentence on one ground that the learned sentencing judge failed to properly consider the effect of Part 8, Division 2A of the Youth Justice Act 1992 (Qld) on the sentence of three years’ detention.

The offending conduct

7. [7]
   On 18 May 2020 the complainant and his partner went to a pharmacy in Nambour.  They were standing outside the pharmacy speaking to a mutual friend when the applicant arrived in a vehicle.  The applicant was driving with his 25-year-old co-accused (Sarre).
8. [8]
   The applicant called to the complainant to come over to the car.  An exchange occurred with the applicant asking about obtaining drugs from the complainant, and the complainant saying he had none on him.  The applicant told him to get in the car so they could talk.
9. [9]
   The complainant told his partner that he would be back in five minutes, and got into the car sitting in the passenger seat behind the applicant.
10. [10]
    The complainant noticed a 20 centimetres long kitchen knife in the centre console of the car.  The applicant drove away in an erratic manner on the wrong side of the road.  The applicant accused the complainant of being implicated in the death of his brother,^[2] Bowdean, who had died the previous day as a result of a rumoured drug overdose.  They argued and the applicant pointed a sawn-off rifle at the complainant.
11. [11]
    The complainant started to use his mobile phone.  He explained he was looking for someone to supply drugs to the applicant.  The applicant and Sarre took his phone and looked through it for messages relating to Bowdean.
12. [12]
    The applicant continued driving.  The complainant pleaded to know where they were going and asked if they could pull the car over to talk.  The applicant responded, “Just shut up and you’ll be alright”.  The applicant stopped pointing the rifle at the complainant and placed it between his legs.
13. [13]
    The applicant stopped in a dead-end road surrounded by bushland.  He told the complainant to get out of the car, and they both did.  The applicant pointed the rifle at the complainant and kept it trained on him.  They were standing at the rear of the car, and Sarre remained in the front seat.  The applicant and Sarre then robbed the complainant, taking $50-$60, a gold chain and three cigarette lighters.  In the course of doing so the applicant folded the barrel of his rifle forward and tilted the rifle to show the complainant that he had a round in the chamber. The applicant said, “I can blast your head off right now if I want to.”
14. [14]
    Either the applicant or Sarre opened the boot of the applicant’s car.  The applicant gestured towards the boot with his rifle, saying “Go and sit on the edge of the boot”.  The complainant sat on the back of the boot and the applicant said, “You’re going in the back of the boot.  You’re going for a boot ride.”  The complainant replied, “Nah man.  No dude.  I’ve done everything you’ve wanted me to.”
15. [15]
    At that point the applicant looked around.  The complainant reached out and grabbed the barrel of the rifle with both hands.  The complainant tried to pull the gun away and fire it away from his body.  He pulled the firing pin back and fired a shot into the ground while he struggled with the applicant.  The complainant screamed, “Help me! Help me!”.  The complainant and the applicant continued to wrestle for control of the rifle, with the applicant calling out for assistance from Sarre.
16. [16]
    Sarre walked towards the complainant.  The complainant was on the ground wrestling over the rifle.  He punched the applicant in the head twice.  Sarre grabbed the complainant around his neck from behind and applied pressure.  The complainant could not breathe.  Sarre said “You wanna die do you?  You’re dum.  Don’t be fucking stupid.”
17. [17]
    The applicant stabbed the complainant in the left arm with the knife from the centre console of the car.  The knife remained lodged in the complainant’s arm.  Sarre punched the complainant in the mouth.  The complainant let go of the rifle, and Sarre and the applicant unleashed a flurry of punches on the complainant.  The applicant struck the complainant with the rifle, including across the back.  The complainant screamed out, “My back! My back! You’se have broken by back!”  Sarre hit the complainant in the front of his left shin with the rifle.  Either the applicant or Sarre hit the complainant in the head, and he felt like he was going to pass out.
18. [18]
    The complainant lay on his side in pain.  The applicant looked through the centre console of his car.  Sarre sat on the ground beside the complainant.  Sarre and the applicant yelled at the complainant, “Give us your watch!”, Sarre grabbed the complainant’s left arm and took his wristwatch off.
19. [19]
    The complainant rose to his feet and ran into the bushland, collapsing to the ground after about 30 metres.  He continued running and fell again.  He stopped, crouched and hid himself behind a tree.  The applicant and Sarre left in the car.
20. [20]
    The complainant began walking towards the road.  The kitchen knife was still embedded in his left arm near his elbow.  He flagged down a motorist, asking him to pull the knife out of his arm but not call the police.  The motorist called the police and requested an ambulance.
21. [21]
    The sentence proceeded on the basis that Sarre and the applicant robbed the complainant of: (i) a sum of money; (i) a gold necklace; (iii) a mobile telephone; (iv) three cigarette lighters; and (v) a wristwatch.
22. [22]
    The offending was aggravated because Sarre and the applicant inflicted personal violence on the complainant, and were armed with a rifle and in company with each other at the time.  The applicant did not have a firearm licence or a driver’s licence at the time.
23. [23]
    The complainant was transported to the hospital where he was found to have the following injuries: (i) a penetrating wound to the left forearm with the knife in situ; (ii) haematomas to the left shin and right forehead; and (iii) a right chest wall contusion.
24. [24]
    The knife was removed from the complainant’s arm and he was treated with wound irrigation, suturing and oral antibiotics.  The left shin haematoma was treated with pain relief medication, bandaging, elevation and crutches.  The right chest wall contusion was treated with pain relief medication.  The complainant was observed for a period of time and discharged the same day.
25. [25]
    The sentence proceeded on the basis that the injury to the left forearm constituted wounding, and the injuries to the left shin and right chest wall constituted bodily harm.

Possession of a weapon

26. [26]
    On 19 April 2020 police intercepted a car at Bli Bli.  The applicant was seated in the rear passenger seat behind the driver.  A search of the car revealed a bag pushed under the driver’s seat.  It contained a cut down category H bolt action rifle.  The rifle was loaded and had a round in the chamber.
27. [27]
    The driver told police that the applicant had said to him, “Just drive, I’ve got a gun” and “If we get stopped, you are taking the charge for the gun”.
28. [28]
    The sentence proceeded on the basis that the applicant was in possession of the firearm, and the offending was aggravated because the firearm was shortened and possessed in a public place.

Progress and presentence report

29. [29]
    On 1 December 2020 the applicant appeared before the Childrens Court and entered pleas of guilty to all counts with the exception of the firearm offence, which was the subject of an ex officio indictment at a later point in time.
30. [30]
    A presentence report was obtained and tendered at the sentence hearing.
31. [31]
    The report summarised the applicant’s criminal history which commenced in August 2018 when he was about 15 and a-half years old.  That history included three probation orders, three community service orders and six conditional release orders.  The offending predominantly pertained to property, weapons, motor vehicles and offences of violence.
32. [32]
    The report pointed out that at the time of the offences the applicant was subject to six conditional release orders and a community service order.  The conditional release orders involved offences including: (i) attempted robbery; (ii) threats; (iii) threatening violence; (iv) robbery armed in company; (v) two counts of entering a dwelling with intent while armed and in company; (vi) dangerous conduct with a weapon; and (vii) trafficking in dangerous drugs.
33. [33]
    The report noted various factors that were said to have contributed to the offending.  They included a family history of domestic violence, pro-criminal attitudes, involvement in criminal activities, and chronic substance abuse starting with cannabis but progressing to methamphetamine.  The report opined that the applicant had long since formed the belief that aggressive and violent behaviour was an appropriate way of dealing with conflict, and that use of weapons had become a dominant theme in his offending.  Just prior to the offending in question a close peer of the applicant had suddenly died, precipitating a three-day bender on benzodiazepine, methamphetamine and gamma hydroxybutyrate.  The applicant was still intoxicated at the time of the offending.
34. [34]
    The report examined the impact of the various sentencing options.  It included, relevantly, a passage concerned with the applicant’s liability to be transferred to a corrective services facility from the detention facility:^[3]

“Should [the applicant] receive a Detention Order, in accordance with section 276B (1B)(i)(ii) of the Youth Justice Act, [the applicant] is liable to be transferred to a corrective services facility should he be sentenced to a term of detention that would see him remain in custody for a further 6 months.  Should [the applicant] receive a sentence shorter than this period, upon release from the Brisbane Youth Detention Centre, [he] would be subject to the conditions of a Supervised Release Order.  During the Supervised Release Order period, [he] would be subject to regular reporting requirements and other statutory conditions including engaging in therapeutic supports as directed.”

35. [35]
    Annexure D to that report was a document from the Department of Youth Justice which examined sentencing options under the Act.  That included a section^[4] referring to the fact that a person under a detention order must serve 70 per cent of their sentence in a detention centre, unless the court directed otherwise, and that a court could order that 50 per cent or more, but less than 70 per cent of the order, be served in detention.  It also included a section specifically dealing with the prospect of a transfer from youth detention to adult prison:^[5]

“A young person becomes liable for transfer to an adult correctional facility and will be issued a prison transfer direction by the department, if:

• they will turn 18 years of age while serving a period of detention, and are liable to serve a remaining period of six months or more in custody following their eighteenth birthday;
• they are between 18 years and 18 years and six months of age when sentenced to a DO, and are liable to serve a remaining period of six months or more in custody.

A young person may apply for a temporary delay of the transfer to an adult correctional facility.  They can make their application to a court on the day of sentence or when they receive their prison transfer direction from the department.

If a young person who has already turned 18 makes and application at the time of sentence that is refused, they will be transferred immediately.

If a young person is 18 years and six months old or older at the time of sentence, and receives a DO requiring them to serve actual custody, they will immediately go to an adult correctional facility.  No application for temporary delay will apply.”

The sentencing hearing

36. [36]
    During the course of submissions on behalf of the Crown, reference was made to the prospect of the applicant being transferred to adult detention.^[6]  Specifically reference was made to the fact that if a further period of detention was ordered as part of the sentence the applicant was “liable to be transferred to an adult detention centre … six months from his 18^th birthday”.  The learned sentencing judge, having corrected when that prospect would accrue, observed that it was “not that far away”.^[7]
37. [37]
    Counsel for the applicant addressed that matter in the course of submissions.^[8]  The points made by the applicant’s counsel included:

    1. (a)
       that if the head sentence required him to serve “more than six further months”, then “that would then place him in a position where he would be transferred to the adult correctional centre”;
    2. (b)
       such a transfer was a factor that weighed against rehabilitation; and
    3. (c)
       the applicant would be “exposed to the trauma of an adult custodial environment … six months after he turns 18”.
38. [38]
    In the course of an exchange with defence counsel shortly thereafter, the learned sentencing judge indicated that he had considered the presentence report and the programs referred to in it.^[9]

The approach of the sentencing judge

39. [39]
    The first point to note is that the learned sentencing judge heard submissions on 9 February 2021 but did not sentence the applicant until 5 March 2021.  That was in accordance with his Honour’s indication that he would not be sentencing immediately, but rather taking some time to consider the matter.^[10]
40. [40]
    The learned sentencing judge referred to the factual aspects of the offending conduct and then some of the features of the presentence report.^[11]  His Honour then made observations on the applicant’s criminal history, pointing out to him that he was “now an adult and any future offending by you … will be dealt with under a different regime and the laws applying to adults in our community.”^[12]  Referring to the criminal history, his Honour observed that it had “demonstrated little regard for the laws of the community or for court orders”.^[13]
41. [41]
    His Honour observed that the applicant had the benefit of being dealt with by the Childrens Court and that the consequence of that included the need to have regard to the prospects of rehabilitation, the Youth Justice Principles, and also that a detention order should be imposed only as a last resort and for the shortest appropriate period.^[14]
42. [42]
    The learned sentencing judge found that a detention order was “the only appropriate response to the present circumstances” and that his Honour was “satisfied that the seriousness of your offending is such as to not allow for your immediate release, even allowing for the period of pre-sentence detention”.^[15]
43. [43]
    His Honour also referred to the need to balance the Youth Justice Principles, which recognised a need to protect the community from further offending, with general sentencing principles which included denunciation of offending and personal and general deterrence.  The learned sentencing judge considered that personal deterrence was “of some significance in this case”.^[16]
44. [44]
    His Honour then continued the comments about the need to balance various sentencing principles:^[17]

“Neither do the other cases to which reference was made for comparison, being R v NBF [1995] QCA 426 and R v H [2001] QCA 477, on examination, include fully comparable circumstances.  The circumstances of each case necessarily differ but again and not withstanding that there was the home invasion aspect in one of them, neither to (sic) do they represent the same extent, as your actual personal involvement in these offences.  However, some guidance may be obtained from them, to a conclusion that notwithstanding, as must also be recognised, there is the likelihood, if not eventuality, that the effect of these orders will be that you will find your way into an adult prison, with an eventual release on parole being the effect …”

45. [45]
    His Honour imposed the three year sentence as appropriate on a balancing of all considerations to which he had referred.^[18]  His Honour then went on to find that there were special circumstances warranting that the applicant serve only 50 per cent of the period of detention.

Applicant’s contentions

46. [46]
    The contentions advanced on behalf of the applicant centred around the proposition that the learned sentencing judge had failed to properly consider the effect of Part 8, Division 2A of the Youth Justice Act on the sentence of three years’ detention.  That part of the Act provided for the transfer of detainees to adult prisons once they reached 18 and a-half years.  The contentions included the following:

    1. (a)
       that the sentencing judge did not engage in any analysis of what the effect of the transfer might be even though his Honour acknowledged the possibility of the transfer and eventual release on parole;
    2. (b)
       the applicant will be transferred to adult prison on 16 August 2021, at which time he will still have three and a-half months of sentence to serve before his release date;
    3. (c)
       the effect of a sentence which involves a transfer must be considered in determining the appropriate period of detention that was the “least time that is justified in the circumstances”, as required by Principle 18 of the Charter of Youth Justice Principles;
    4. (d)
       whilst accepting that a transfer was not a mitigating feature, the fact that the sentence would result in transfer was a relevant circumstance to the discretion overall;
    5. (e)
       his Honour was not alerted to the actual consequences of such a sentence, nor did he engage in any analysis of his own in that respect; and
    6. (f)
       this Court should resentence to a head sentence of two and a-half years detention; maintaining the position that the applicant should serve only 50 per cent, that meant his release should occur on 29 August 2021.

Consideration

47. [47]
    The central feature of the contentions advanced on behalf of the applicant are that the learned sentencing judge failed to properly take into account the effect of the sentence imposed insofar as it would result in a transfer to adult prison.  It is therefore necessary to examine what the position is in relation to transfer and what its effect may be.
48. [48]
    The Youth Justice Act contains a number of provisions which have an impact on this issue.  The first of those is s 208 which provides that a court may only make a detention order against a child if the court, after considering various matters, is satisfied that no other sentence is appropriate in the circumstances of the case.  Here, it should be noted, the applicant does not contest that an order for detention was appropriate.  Therefore, he must be taken to concede that the sentencing judge cannot be criticised for having determined that detention was “the only appropriate response to the present circumstances”.^[19]
49. [49]
    Section 210(1) provides that, subject to the Act, a child sentenced to serve a period of detention “must serve the period of detention in a detention centre”.  On its face it provides for the default position as being that a child must serve the detention in a detention centre rather than any other place.  However, that default position is still made subject to the Act otherwise.
50. [50]
    Section 276B of the Act relevantly provides for transfer to a corrective services facility:

“The following persons are liable to be transferred to a corrective services facility—

1. (a)
   …
2. (b)
   A person beginning detention who—

   1. is 18 years or older when beginning detention; and
   2. is liable to serve a remaining period of detention of 6 months or more.”

51. [51]
    For the purposes of that section the “remaining period of detention” is taken to start on the day a person begins detention if that person is 18 years or older when beginning detention: s 276B(2)(a).
52. [52]
    The actual transfer to a corrective services facility is governed by s 276C which relevantly provides that as soon as practicable after the chief executive becomes aware that a person is liable to be transferred to a corrective services facility under s 276B, the chief executive must give a written direction to that effect to the chief executive (corrective services).  The person to be transferred is to be given a copy of that direction together with information about how the person will be held at the corrective services facility, and that person’s rights under the Act to apply for a delay of the transfer: s 276C(3).
53. [53]
    A person the subject of a detention order may apply for a temporary delay of the transfer to a corrective services facility.  That is governed by s 276D which relevantly provides:

“(1) If, when a court makes a detention order against a person for an offence, the person becomes liable to be transferred to a corrective services facility under section 276B, the person may immediately apply to the court for a temporary delay of the person’s transfer to the corrective services facility.

3. (2)
   A detainee given a copy of a prison transfer direction under section 276C(3) may, before the transfer, apply to the Childrens Court for a temporary delay of the detainee’s transfer to the corrective services facility.

3. (3)
   On receipt by the court of a detainee’s application made under subsection (2), the detainee’s transfer is stayed until the application is decided, withdrawn or otherwise ends.

3. (4)
   The court may grant an application made under subsection (1) or (2) only if it is satisfied the delay—

1. (a)
   would be in the interests of justice; and

2. (b)
   would not prejudice the security or good order of the detention centre at which the applicant is, or is to be, detained; and

3. (c)
   would not prejudice the safety or wellbeing of any detainee at the detention centre at which the applicant is, or is to be, detained; and

4. (d)
   would not cause the person to be detained at a detention centre after the person turns 18 years and 6 months.”

54. [54]
    The phrase “temporary delay” in s 276D means a delay of 6 months or less: s 276D(8).
55. [55]
    As can be seen, where a detainee becomes liable to be transferred to a corrective services facility because they were 18 years or more when beginning detention and liable to serve a period of more than six months, a temporary delay can be ordered.  However, it cannot be ordered if the result would be that the person was detained at the detention centre “after the person turns 18 years and 6 months”.
56. [56]
    The applicant was born on 14 February 2003, and turned 18 on 14 February 2021.  He was thus 18 years and a few weeks when sentenced on 5 March 2021.  He would turn 18 years and six months on 14 August 2021.  Therefore, no temporary delay order could be made beyond 14 August 2021.
57. [57]
    The effect of a transfer to a corrective services facility is the subject of s 276E of the Act in these terms:

“(1) This section applies if a person is transferred to a corrective services facility under this subdivision.

2. (2)
   From the transfer—

1. (a)
   the person is liable to serve a term of imprisonment equal to the period of detention the person remains liable to serve at the transfer; and

2. (b)
   the person is taken to be a prisoner subject to the Corrective Services Act 2006; and

3. (c)
   any rights, liberties or immunities of the person as a detainee end and are not preserved, transferred or otherwise applicable for the person as a prisoner; and

4. (d)
   the day the person would otherwise have been released under section 227, for the period of detention, is the day the person is to be released on parole under the Corrective Services Act 2006.

3. (3)
   However, the release is subject to the Corrective Services Act 2006 as if granted under a court ordered parole order (the statutory parole order) and the provisions of that Act applying to parole orders also apply to the statutory parole order.”

58. [58]
    The reference to the day the person would have been otherwise released under s 227 refers to the release date set by the court order for detention.  Under s 227(1) a child sentenced to detention must be released after serving 70 per cent of the period, but under s 227(2) an earlier date can be set if the court considers there are special circumstances.  That is what happened here.
59. [59]
    Finally, reference needs to be made to s 276F of the Youth Justice Act.  It provides that persons who are over 18 years and six months should not serve a period of detention at a detention centre:

“(1) This Act is subject to the overriding principle that it is in the best interests of the welfare of all detainees at a detention centre that persons who are 18 years and 6 months or older are not detained at the centre.

2. (2)
   To give effect to the principle—

1. (a)
   a person who is 18 years and 6 months or older must not—

1. (i)
   enter a detention centre to begin serving a period of detention; or

2. (ii)
   return to a detention centre to continue or complete a period of detention, including, for example, returning because of a contravention of a conditional release order or supervised release order; and

2. (b)
   an application for a temporary delay of a transfer is of no effect if the applicant is 18 years and 6 months or older; and

3. (c)
   an application for a temporary delay of a transfer lapses when the applicant turns 18 years and 6 months; and

4. (d)
   a temporary delay of a transfer under section 276D is of no effect to the extent it delays the transfer of a person for any period after the person turns 18 years and 6 months.

3. (3)
   If the application of subsection (2)(a) prevents a person from being detained at a detention centre, the person must instead be held at a corrective services facility.

4. (4)
   For holding the person at a corrective services facility—

1. (a)
   the person is liable to serve a term of imprisonment equal to the period of detention the person remains liable to serve when the person would otherwise enter or return to a detention centre; and

2. (b)
   the person is taken to be a prisoner subject to the Corrective Services Act 2006; and

3. (c)
   any rights, liberties or immunities of the person as a detainee are not preserved, transferred or otherwise applicable for the person as a prisoner; and

4. (d)
   the day the person would otherwise have been released under section 227, for the period of detention, is the day the person is to be released on parole under the Corrective Services Act 2006.

5. (5)
   However, the release is subject to the Corrective Services Act 2006 as if granted under a court ordered parole order (the statutory parole order) and the provisions of that Act applying to parole orders also apply to the statutory parole order.

6. (6)
   This section applies despite anything else in this Act.”

60. [60]
    A consideration of the provisions noted above in the Youth Justice Act reveal that the legislature has, as a matter of policy, determined that any person who reaches 18 years and six months should not serve any further detention in a detention centre, but rather in a corrective services facility.  Section 276F(1) makes it clear that the overriding principle under the Youth Justice Act is that anyone who is 18 and a-half years old is not to be detained at a detention centre.  That principle overrides the default provision in s 210(1), providing that a child sentenced to detention must serve the period of detention in a detention centre.
61. [61]
    Further, to give effect to the overriding principle, any pending application for a temporary delay lapses when the person turns 18 years and six months, and any temporary delay that has been ordered is of no effect if it extends beyond when the person turns 18 years and six months: s 276F(2)(c) and (d).
62. [62]
    It is true to say that s 276F(2)(a) does not govern the applicant (because when he turns 18 years and six months on 14 August 2021 he will not then be entering a detention centre to begin serving his period of detention, nor will he be returning to a detention centre to continue or complete it).  Nonetheless, s 276F is the embodiment of the legislative policy to move people out of child detention and into an adult prison from when they turn 18 and no later when they were 18 years and six months.
63. [63]
    Thus understood, even if the applicant had been ordered to serve an additional five and a-half months detention, he would still be liable to transfer to a corrective services facility because he turned 18 and a-half while in detention.
64. [64]
    The effect of a transfer to a corrective services facility under s 276B and s 276C is that provided for in s 276E.  However, that does not impose a greater period of detention than was originally the case, nor does it affect the release date set by the sentencing judge.  Instead, s 276E(2) ensures that the release date is preserved, albeit a release on parole.  Further, whilst it is true to say that the person who is transferred into a corrective services facility then becomes subject to the Corrective Services Act and thereby loses any rights, liberties or immunities held in the detention centre, that is of no consequence here, as none are suggested to be relevant.  Thus for the applicant, his period of incarceration does not change and he maintains the release date set when he was sentenced in the Childrens Court.
65. [65]
    In my view, the contention that the learned sentencing judge did not consider the effect of the transfer to a corrective services facility, cannot be maintained.  His liability to be transferred was expressly adverted to by both the Crown^[20] and by defence counsel.^[21]  The learned sentencing judge was well aware that the applicant would have just turned 18 by the time he was sentenced and the “likelihood, if not eventuality” that the effect of the orders would be that the applicant would find himself in an adult prison was expressly adverted to in the sentencing remarks.^[22]
66. [66]
    More specifically, the learned sentencing judge’s attention was expressly directed to s 276B of the Youth Justice Act by the presentencing report.^[23]  It is clear that the learned sentencing judge took the presentencing report into account, and there is no reason to imagine that he missed that point.  In fact, it was repeated in an addendum to the presentence report.^[24]
67. [67]
    Moreover, the question of a transfer from youth detention to adult prison under the Youth Justice Act was expressly the subject of Annexure D to the presentence report.^[25]
68. [68]
    In my respectful view, it is plain that the learned sentencing judge gave consideration to the fact that the sentence he might impose would have the result that the applicant was transferred to adult prison, and within a relatively short time following the sentence.  It was one of the factors that his Honour weighed in the balance when considering the appropriate sentence, and at the same time as he weighed into account the Youth Justice Principles.  That his Honour had the Youth Justice Act provisions in mind is evident from the fact that he exercised the power under s 227 by determining that there were special circumstances which warranted that only 50 per cent of the time be served, rather than 70 per cent.  That was a practical difference of about 10 months in favour of the applicant.
69. [69]
    Given that the statutory effect of the transfer is to preserve the applicant’s release date but otherwise make him subject to the Corrective Service Act, there is no basis upon which one can conclude that there was a material factor which might have affected the outcome of the sentence imposed.  The condemnatory characterisation of the offending was justified given the violent and threatening nature of the armed robbery and the use of a loaded rifle.
70. [70]
    Further, in R v VL^[26] this Court observed, in relation to the provisions under the Youth Justice Act for transfer to an adult prison:

“[21] The operation of these provisions means that the transfer of an 18 year old detainee to an adult facility is one of the normal incidents of a sentence of detention.  It is an aspect of the punishment regime under the Youth Justice Act 1992 that exists for the benefit of detainees who are aged under 18 years.

[22] Although, when considering an application for a temporary delay of transfer, an applicant’s vulnerability must be taken into account, as must the availability of ‘interventionist, rehabilitation or similar activities’, even those interests of an applicant yield to the ‘overriding principle’ stated in s 276F that no detainee who reaches the age of 18 years and six months can remain in a detention centre.

[23] Consequently, in the absence of evidence to the contrary, the fact that a detainee will turn 18 during the period of detention and will be transferred to an adult facility cannot, ordinarily, constitute a relevant factor in mitigation of sentencing.  Such a transfer is merely the consequence of a detainee reaching an age at which the law deems the offender to be an adult and, therefore, an inappropriate person to detain with children.”

71. [71]
    Though made in a different guise, the contentions for the applicant seek to convert the transfer provisions of the Youth Justice Act into a mitigating factor.  They are not.  No discernible disadvantage, beyond those imposed on adults as a matter of a policy consideration by the legislature, has been identified.  Thus, there was no error on the part of the learned sentencing judge.
72. [72]
    I propose the following order:

1. The application for leave to appeal is refused.

73. [73]
    APPLEGARTH J:  I agree with the reasons of Morrison JA that the learned sentencing judge considered the fact that the sentence would result in the applicant being transferred to an adult prison and that this factor was weighed in the balance in arriving at the most appropriate sentence.  I agree that the application for leave to appeal should be refused.
74. [74]
    I would only add something about the observations in R v VL^[27] which are quoted by Morrison JA at [70].  These observations are to the effect that the fact that the offender will turn 18 during the period of detention and will be transferred to an adult facility cannot, ordinarily, constitute “a relevant factor in mitigation of sentencing”.^[28]  The applicant does not contest this proposition.
75. [75]
    Principles of sentencing are applied against the background of policies enacted into law about detention in correctional and other facilities.  Morrison JA has detailed how the law of this State reflects a policy that a person who reaches 18 years and six months should not remain in a detention centre, but be transferred to a corrective services facility.
76. [76]
    This fact was taken into account by the learned sentencing judge.  This may have entailed some consideration of any difference in the harshness to the applicant of spending part of his period of detention in an adult facility compared to a detention centre.^[29]  Any such consideration was factored into the process of arriving at a just punishment, including the period to be served in actual custody.  Any difference in the harshness of custody in an adult facility compared to a detention centre would not justify reducing what would otherwise be a proper sentence so as to avoid the applicant spending time in the kind of facility that the law says is appropriate for someone of his age.
77. [77]
    Ultimately, the sentencing court was required to impose a just punishment upon the applicant for very serious and violent offending.  That punishment was imposed against a legislative background which dictates where custodial periods will be served.  The learned sentencing judge imposed a just sentence and did so without error.