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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v Eric (a pseudonym); Ex parte Attorney-General (Qld)  QCA 81
ERIC (a pseudonym)
ATTORNEY-GENERAL OF QUEENSLAND
CA No 5 of 2021
DC No 76 of 2020
Court of Appeal
Sentence Appeal by Attorney-General (Qld)
Childrens Court at Beenleigh – Date of Sentence: 1 December 2020 (Chowdhury DCJ)
30 April 2021
16 April 2021
Sofronoff P and McMurdo JA and Boddice J
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent pleaded guilty to one count of grievous bodily harm – where the respondent was 17 at the time of offending and sentenced to five months detention followed by a period of 12 months probation under the Youth Justice Act – where the Attorney-General appeals the sentence on the ground that it was manifestly inadequate as it gave too much weight to matters of mitigation and failed to give appropriate weight to the objective seriousness of the offence – whether the sentence imposed was manifestly inadequate
Youth Justice Act 1992 (Qld), s 150, Schedule 1
Barbaro v The Queen (2014) 253 CLR 58;  HCA 2, cited
House v The King (1936) 55 CLR 499;  HCA 40, cited
Wong v The Queen (2001) 207 CLR 584;  HCA 64, cited
T A Fuller QC, with S J Muir, for the appellant
J Benjamin and E Lewsey for the respondent
Director of Public Prosecutions (Queensland) for the appellant
YFS Legal Community Centre for the respondent
- SOFRONOFF P: The respondent pleaded guilty to the offence of doing grievous bodily harm. He was 17 years and one month old when he committed the offence and is now over 18 years old. On 1 December 2020, Chowdhury DCJ sentenced the respondent in the Childrens Court to a period of detention of five months to be followed by a period of 12 months probation commencing after his release. No conviction was recorded. The Attorney-General has appealed against that sentence on the ground that the sentence is so manifestly inadequate that it must be taken that the sentencing discretion miscarried. The offence was committed in the following circumstances.
- On the evening on 18 October 2019 the respondent was at a party at a house in Woodridge with a number of his friends. At about 6.30 pm several people from the party drove to a nearby service station to buy cigarettes. While they were there one of the young women who had gone on this errand saw a man she knew, James Jaba, returning to his car after paying for petrol. She spoke briefly to him. She then reported to her friends that a female friend of hers claimed that she had been sexually assaulted by a man called “Hennessy”. She identified Mr Jaba and the passenger in Mr Jaba’s car as friends of Hennessy’s. The group returned to the party and told the others about this allegation and about having seen Mr Jaba and his friend. Some of the young men at the party decided to take revenge for the alleged sexual assault. One of these was the respondent. He and five other young men, as well as three young women, got into a car and began to look for Mr Jaba and his companion. They located him in a local carpark. Mr Jaba was there with his brother and two young women, as well as Ali Abdi Ali, who had been the passenger in Mr Jaba’s car. Mr Ali and Mr Jaba were standing near Mr Jaba’s car drinking beer and listening to music coming from the car. They saw the group, including the respondent, coming towards them. Mr Ali did not know any of them nor did any of them know Mr Ali. The respondent was holding a metal pole which he had brought with him. Saying nothing to Mr Ali, he struck him on the head with this metal pole. Mr Ali fell unconscious to the ground. Other members of the respondent’s group then began hitting Mr Ali and then chased after Mr Jaba who managed to get away. Members of the group used a hammer to smash Mr Jaba’s car’s windscreen. One of the young women drove the car in which she had come with the others into Mr Jaba. The group then left.
- The consequences to Mr Ali were very serious. He was a 21 year old man. The blow fractured his skull and he suffered external and internal bleeding. He remained in hospital between 19 October 2019, the night he was attacked, until discharged on 5 December 2019.
- While he is now able to function independently in relation to personal care, bathing, grooming and eating, he is unable to perform other ordinary daily activities. He needs to be prompted by others to initiate necessary daily tasks. As a consequence, his family has to assist him with cooking, cleaning, laundry and other such things. He cannot handle his own finances or manage his own health needs. While he used to be an active young man, he now declines to participate in leisure activities that require him to leave the house. His driving licence was suspended. He needs to be driven to appointments with therapists and is often unable to recall when he needs to go. His family has to take responsibility for arranging these kinds of things for him. His sleeping has been severely affected so that he is often fatigued. His family are anxious about his symptoms as well as the possibility that he might fall and injure his head again or might do something unsafe or make a bad decision of some kind and hurt or endanger himself.
- According to a report that was tendered at sentencing, Mr Ali presents with “severely impaired memory, attention and reduced speed of processing”. He has “[d]ifficulties with executive functioning and communication deficits” and these “impact his ability to set realistic goals and identify suitable therapy activities”. He “shows some perceptual difficulties which may reduce his ability to search and locate objects and utilise external memory aids”. He “presents with cognitive communication deficits”. His family has reported “concerns with verbal aggression and argumentativeness”. He experiences low mood and anxiety and these are accompanied by dizziness, nausea, headaches and sleeping difficulties. He is frightened of falling and is unwilling to leave the house because he is worried that he might be injured again. He is now unemployed.
- In short, the respondent’s unprovoked bashing of Mr Ali has wrecked his life.
- Police could not immediately identify the respondent as the offender. They had to seek assistance and information from the public and received a tip that the assault had been recorded and uploaded to an Instagram account. The operator of this account was identified by police and a search warrant was executed at that person’s property. In this way the police identified the respondent as the offender and arrested him and his girlfriend, who had driven the car that night. During his interview with the police the respondent falsely implicated one of his friends as the offender and it was only when he was confronted with the video recording of his commission of the offence that he admitted his involvement.
- There has been no suggestion that the respondent’s upbringing was of the kind that is so common in such cases, namely, that of a child brought up in a violent and abusive home. On the contrary, the respondent’s family moved to Australia from California when the respondent was five years old. He had strong bonds with his mother and his siblings until, around the time he turned 17, he began a relationship with the young woman, or girl, who was his co-offender. He then moved out of the family home at Forest Lake to live with his girlfriend in a house in Kingston. He stopped associating with what was described in the pre-sentence report as a “long-standing pro-social peer group” and began associating with the friends of his girlfriend who were, like her, uninterested in education and spent time together doing nothing useful. This group “modelled anti-social behaviours including poor conflict resolution through means of aggression and violence, substance abuse and offending behaviour”. In short, he left the good influence of his family and friends and began to associate with a group of violence-prone young people. On the night of the offence the respondent had drunk a lot of alcohol. He said that he felt “drunk”. Undoubtedly this affected his judgment and may have inflamed a propensity to aggression. His girlfriend was the driver of the car that took the group to the site of the offence.
- The author of the pre-sentence report expressed the opinion that the respondent has “a good understanding of the impacts of his behaviour on the victims” and expressed himself to be “full of sorrow”. She was of the opinion that he has an understanding of the injuries that he caused as well as the ongoing effects of the brain injury suffered by Mr Ali. He expressed remorse for this. The author of the report says that the respondent “finds it hard to cope with the feelings of guilt he experiences” and that this has manifested itself in self-disorder and depression.
- He ended his relationship with his girlfriend and with the people associated with her and, after his arrest, he moved back into his family home. He began to seek employment and has re-established friendship with his better-intentioned peers.
- He participated in a Pre-Sentence Restorative Justice Process. The representative of the respondent’s victim acknowledged his frank and open participation in this conference and the respondent promised to “listen to the wisdom of those around him and become a valued member of his community”. The respondent apologised to Mr Ali and to his family. So too did the respondent’s mother, and her unjustified but natural sense of responsibility for his crime is another burden that the respondent surely feels.
- The learned sentencing judge, Chowdhury DCJ, took into account the serious objective circumstances of the offence that have been related. He also took into account the mitigating effect of the respondent’s personal circumstances that have been set out above. His Honour rejected a conditional release order as an inadequate penalty having regard to the gravity of the offending. His Honour then reasoned as follows:
“All things being equal, I would have sentenced you to three years detention. I would have reduced that to two years, because of the restorative justice referral. And then to give effect to the principle that I have to sentence you to the least appropriate time, appropriate in the circumstances, I would have otherwise reduced you to 18 months with 50 per cent release.
Mr Edridge has urged me to consider section 180 of the Youth Justice Act 1992, which allows the court to make a detention order and a probation order for a single offence. The court may make the detention order only for a maximum period of six months and may not make a conditional release order. The probation order may only start when the child is released from the detention, under the detention order, and for a maximum period ending one year after the release. So I’ve considered that. As I said, I would have started at three years. I would have given you benefit for the restorative justice referral by reducing it to two years. And then, to give effect to the principle that should be, at the least appropriate time served, and would have reduced it to 18 months after 50 per cent, would have seen you released after serving nine months.
I considered in the circumstances that, given that I do think you have to serve actual custody, but I should give you recognition for the time you served since the offence, no reoffending, the positive features in the pre-sentence report, the fact that you did the restorative justice referral successfully, but I should sentence you to the minimum time allowed under the Act. What I’ll do, is sentence you to five months imprisonment, followed by a lengthy period of probation.”
- The Attorney-General submits that the passage quoted above evidences an approach to sentencing that was forbidden by the High Court in Barbaro v The Queen. In that case, French CJ, Hayne, Kiefel and Bell JJ said that sentencing an offender is not, and cannot be undertaken as an exercise in addition or subtraction. A sentencing judge must reach a sentence for an offence by balancing many different and conflicting features and so the sentence cannot, and should not, be “broken down into some set of component parts”. Their Honours reiterated dicta from Wong v The Queen that, because a judge must take into account all of the circumstances of the offence and the offender and to single out some of those considerations and then to attribute specific numerical or proportionate values to the chosen features is necessarily to distort the necessary balancing exercise.
- The submissions of the Attorney-General must be accepted. The statutory principles to which a court must have regard when sentencing a child according to s 150 of the Youth Justice Act 1992 include the following:
“(d) the nature and seriousness of the offence;
- (a)any impact of the offence on a victim, including harm mentioned in information relating to the victim given to the court under the Penalties and Sentences Act 1992, section 179K; and
- (k)the fitting proportion between the sentence and the offence.”
- The Youth Justice Principles set out in Schedule 1 of the Act also include the following:
“1. The community should be protected from offences.
- A child who commits an offence should be –
- (a)held accountable and encouraged to accept responsibility for the offending behaviour; and
- (b)dealt with in a way that will give the child the opportunity to develop in responsible, beneficial and socially acceptable ways;
- A child should be dealt with under this Act in a way that allows the child:
- (a)to be reintegrated into the community;…
- A child should be detained in custody for an offence, whether on arrest, remand or sentence, only as a last resort and for the least time that is justified in the circumstances.”
- The passage quoted from the learned judge’s sentencing remarks begin with the proposition that “all things being equal” a sentence of three years detention would have been appropriate. The words do not reveal, and it is impossible to see from the reasons, why a period of three years was chosen as a starting point for the mathematical exercise which followed or what the factors were which were taken into account to arrive at that figure. Whatever might have been the foundation for taking three years detention as a starting point, the reduction of that period by two years “because of the restorative justice referral” and a further reduction of six months to “give effect to the principle that I have to sentence you to the least appropriate time” involved the process of reasoning forbidden by Barbaro v The Queen.
- After having arrived at a notional sentence of 18 months detention with a release after serving 50 per cent of that period, his Honour said:
“I considered in the circumstances that, given that I do think you have to serve actual custody, but I should give you recognition for the time you served since the offence, no reoffending, the positive features in the pre-sentence report, the fact that you did the restorative justice referral successfully, but I should sentence you to the minimum time allowed under the Act. What I’ll do, is sentence you to five months imprisonment, followed by a lengthy period of probation.”
- In fact the respondent had served no time in remand and the restorative justice referral had already been taken into account in the mathematics that led to the notional sentence of detention for 18 months with release after serving 50 per cent. However, even after taking these four factors into account his Honour then decided to reduce the period of 18 months further to one of five months, to be followed by a “lengthy period of probation”. Since the maximum period of probation that could be ordered under s 180 of the Act was 12 months, that is the period that was ordered. The same section permits a sentence of detention to be coupled with probation only if the detention is for no longer than six months. The rationale for this further reduction to five months emerged in a subsequent comment by his Honour:
“Well the reason why I’m giving five months is simply so he doesn’t have to have one month transferred to an adult prison.”
- His Honour also decided not to record a conviction because of the respondent’s young age, his efforts at rehabilitation and the restorative justice referral.
- In my respectful opinion the Attorney-General’s submission that the sentencing discretion miscarried must be accepted. As a starting point, I would respectfully disagree with the learned judge’s conclusion that the respondent was of a “young age” when he committed the offence or that this was a factor that could be taken into account in deciding not to record a conviction. The fact that the respondent was under 18 years of age rendered him the beneficiary of the leniency afforded by the Youth Justice Act. However, in the category of offenders to whom that Act applies, the respondent should have been regarded as a child on the cusp of adulthood when he committed this offence.
- It can be accepted that there is a great deal to be said in favour of the respondent. He was evidently brought up in a sound and loving way by his mother who loves him very much. That can be expected to form the foundation of a good character into manhood and beyond, as the learned sentencing judge hoped. This has been demonstrated by his prompt return to a path of decency, by his insight into the gravity of what he has done to Mr Ali and how he has affected the lives of Mr Ali’s loved ones. His willingness to engage in the Restorative Justice Process and his success in that endeavour shows him to be a young man of fundamentally good character. However, the Youth Justice Act does not require the objective seriousness of an offence committed by a child to be minimised. On the contrary, as has been said, the Act requires the nature and seriousness of the offence and any impact of the offence upon the victim to be taken into account. The Act requires that there should be proportionality between the sentence and the offence. It is also a deeply embedded feature of sentencing at common law that an act constituting an offence which happens to cause little injury will call for a light sentence while the same kind of act which happens to cause a very serious injury will demand a much more severe sentence. Offences which are premeditated also generally call for more severe sentences than offences committed spontaneously.
- Factors such as these are sometimes subsumed into the factor of denunciation and at other times, into considerations of general deterrence. In any event, they are highly significant to the sentencing discretion.
- The provisions of the Youth Justice Act do require a much more lenient approach to the sentencing of children than the approach required when sentencing adults under the Penalties and Sentences Act 1992. That is because, however serious the objective circumstances of the offending might be, our community demands that children be given every chance to become decent and honourable adults and sentencing should, to the extent possible, support that aim. However, the Youth Justice Act recognises that the protection of members of the community against criminal injury may, in an appropriate case, require a child to serve a lengthy period of detention. The Act provides in s 175(1)(g) that, subject to s 176, a judge may sentence a child to detention for no longer than half the maximum term of imprisonment provided or five years, whichever is the shorter. Section 176 provides for offences carrying a maximum sentence of 14 years and life imprisonment (subject to exceptions). For offences carrying a maximum of 14 years imprisonment, the maximum period of detention for a child is seven years. In cases where the maximum penalty is life imprisonment, a child may, in the worst kind of cases, even be sentenced to detention for life. The offence committed by the respondent rendered him liable to detention for seven years. The maintenance of public confidence in the sentencing process may require a child to serve a lengthy period of detention despite the fact that the evidence shows, as in this case, that the need for personal deterrence is very low.
- This was a pre-meditated violent offence. It was a brutal and dangerous attack with a weapon upon a young man who had done nothing to provoke the attack and who must have been entirely unprepared to react defensively to protect himself. The injuries which the respondent inflicted upon Mr Ali seem to be largely permanent and are severe. Their effect upon Mr Ali’s life has been tragic. These consequences of the offence cannot be ignored or regarded as less significant than the respondent’s mitigating factor.
- The sentence of five months’ detention imposed upon the respondent was the result of erroneous reasoning and was, in any case, inadequate having regard to the nature of the offence, its objective circumstances and the effect upon the offender’s victim.
- In my respectful opinion, taking into account the aggravation factors and the mitigating factors in this case, the respondent should have been sentenced to a period of two years detention and having regard particularly to the seriousness of the offending and the consequences for the victim of the offending a conviction recorded. One consequence of a sentence of two years detention in this case is that the respondent will be transferred to an adult prison pursuant to s 276B of the Act. This is a normal and inevitable aspect of the sentencing regime for children. Some of them become adults while under sentence. The transfer of such adult detainees to a prison is a result of the need to protect detainees who are still children and is not to punish further the detainee who is transferred. Nevertheless, in an appropriate case, such a transfer may be a mitigating factor in sentencing. The respondent’s previous good character and the optimism for his future revealed in the evidence means that he should only serve 12 months of that period of two years before being released pursuant to s 227(2) of the Act.
- McMURDO JA: I agree with Sofronoff P.
- BODDICE J: I agree with Sofronoff P.
- Published Case Name:
R v Eric (a pseudonym); Ex parte Attorney-General (Qld)
- Shortened Case Name:
R v Eric (a pseudonym)
 QCA 81
Sofronoff P, McMurdo JA, Boddice J
30 Apr 2021