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R v IJ[2022] QCA 138

SUPREME COURT OF QUEENSLAND

CITATION:

R v IJ [2022] QCA 138

PARTIES:

R

v

IJ

(applicant)

FILE NO/S:

CA No 326 of 2021

DC No 44 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Townsville – Date of Sentence: 12 November 2021 (Dearden DCJ)

DELIVERED ON:

5 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

25 July 2022

JUDGES:

McMurdo and Bond and Dalton JJA

ORDERS:

  1. 1.Leave to appeal granted.
  2. 2.On each count, set aside the sentence and substitute the following sentence: “Conviction not recorded. Order that the offender be detained for 312 days.”

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant, a juvenile, had been sentenced for various offences on eight occasions – where the application before this Court concerned sentences imposed for separate counts of armed robbery in company and attempted robbery – where a pre-sentence custody report was before the sentencing judge which identified different sentencing options – where the sentencing judge sentenced the applicant to detention to be served by way of a conditional release – where the sentencing judge did not explain why the other options identified as suitable by the pre-sentence custody report were rejected in favour of detention to be served by way of conditional release – whether the sentencing judge failed to arrive at the sentence by the required process of reasoning – whether the sentence should be set aside – whether the sentencing discretion should be exercised afresh

Youth Justice Act 1992 (Qld), s 115, s 208, s 212, s 218(1), s 219, s 220, s 227(2), s 228, sch 1

R v Cunningham [2014] 2 Qd R 285; [2014] QCA 88, distinguished

R v DBU (2021) 7 QR 453; [2021] QCA 51, distinguished

R v MDD [2019] QCA 197, applied

R v MDD [2021] QCA 235, distinguished

R v PBE [2019] QCA 185, distinguished

R v SCU [2017] QCA 198, applied

R v TAO [2020] QCA 4, distinguished

COUNSEL:

S R Lewis and S J Tan for the applicant (pro bono)

C M Cook for the respondent

SOLICITORS:

No appearance for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    McMURDO JA:  I agree with the orders proposed by Bond JA and his reasons.
  2. [2]
    BOND JA:

Introduction

  1. [3]
    As at the date of the hearing of the application for leave to appeal against sentence before this Court, the applicant was not yet 18.
  2. [4]
    He had already been sentenced in the Townsville Childrens Court on eight occasions.  And on many of those occasions, the applicant had been sentenced for multiple counts of offending, with separate sentences dealing with separate charges or groups of charges.  Further, he had served two significant periods of actual detention, and as at the date of the hearing, remained in custody serving a third period of detention.
  3. [5]
    The application before this Court concerned the following sentences, imposed on 12 November 2021, the applicant having been earlier convicted of the offences on his own pleas of guilty:

Date

Charge

Sentence

03.01.21

Robbery armed in company

Conviction not recorded. Order that the offender be detained for 15 months. Further order that the period of detention be suspended immediately, the offender be released immediately from detention and that the offender participate in a program as directed by the Chief Executive for the next 3 months and abstain from violation of the law during the program period.

03.01.21

Attempted robbery – use/threaten violence

Conviction not recorded.  Order that the offender be detained for 12 months. Further order that the period of detention be suspended immediately, the offender be released immediately from detention and that the offender participate in a program as directed by the Chief Executive for the next 3 months and abstain from violation of the law during the program period.

  1. [6]
    For reasons which follow, the application for leave to appeal against sentence should succeed.  On each count the sentence should be set aside and the following sentence substituted:

“Conviction not recorded. Order that the offender be detained for 312 days.”

Relevant juvenile criminal history

  1. [7]
    The applicant’s juvenile criminal history as tendered to this Court revealed that the chronological list of the applicant’s offending was as set out in table 1 below.  The periods of custody appear in their chronological context.

Item

Date of offence

Offence

1

17.01.19

Trespass; commit public nuisance.

2

18.01.19

Trespass; unauthorised dealing with shop goods.

3

28.07.19

Stealing.

4

09.08.19

Enter premises and commit indictable offence.

5

10.08.19

Enter premises and commit indictable offence.

6

12.08.19

Robbery with actual violence armed/in company/wounded/used personal violence.

7

21.08.19

Stealing.

8

18.09.19

Stealing.

9

22.10.19

Commit public nuisance x 2.

10

07.03.20

Unlawful entry of vehicle for committing indictable offence at night.

11

09.03.20

Burglary and commit indictable offence.

12

10.03.20

Possessing dangerous drugs; possess utensils or pipes etc that had been used.

13

31.03.20

Burglary and commit indictable offence.

14

01.04.20

Burglary and commit indictable offence; possessing dangerous drugs; possess utensils or pipes etc for use; unlawful possession of weapons; fraud – dishonest application of property of another.

15

05.04.20

Unlawful use of motor vehicle.

16

06.05.20

Possess by night instrument of house breaking.

17

21.10.20

Burglary and commit indictable offence; unlawful use of motor vehicle.

18

22.10.20

Enter dwelling with intent by break at night in company damages property; burglary and commit indictable offence; unlawful use of motor vehicle x 2.

19

03.01.21

Attempted unlawful entry of vehicle for committing indictable offence; unlawful use of motor vehicle x 2; burglary and commit indictable offence; receiving tainted property; commit public nuisance x 2; stealing.

20

03.01.21

Robbery armed in company.

21

03.01.21

Attempted robbery – use/threaten violence.

 

04.01.21

Placed in custody.[1]

22

29.06.21

Common assault (offence committed whilst on remand).

 

12.11.21

Sentenced for items 20 and 21.  Released from custody after 312 days in pre-sentence custody.

23

25.11.21

Stealing; receiving tainted property.

24

25.11.21

Unlawful use of motor vehicle; attempted enter dwelling with intent; enter dwelling with intent by break at night.

 

26.11.21

Returned to custody.[2]

 

31.01.21

Sentenced for items 23 and 24.  Released from custody after 67 days in pre-sentence custody.[3]

25

February and March 2022

Counts concerning entry or attempted entry of premises with intent, some with the aggravated features of being at night or in company x 17.

26

February and March 2022

Stealing x 9.

27

February and March 2022

Unlawful use of motor vehicle x 15; burglary and commit indictable offence x 11; failing to appear in accordance with undertaking; trespass; common assault; receiving tainted property.

 

March 2022

Returned to custody.[4]

 

13.07.22

Sentenced to items 25, 26 and 27, by which time 99 days served in pre-sentence custody.  Remains in custody.

  1. [8]
    The sentences which have been imposed in respect of the offending identified in table 1 were recorded in his juvenile criminal history as set out in table 2 below.

Date sentenced

Offences dealt with

Sentence imposed

15.05.19

Item 2

No conviction recorded. Reprimanded.

Item 1

No conviction recorded. Reprimanded.

28.04.20

Item 6

No conviction recorded. Sentenced to 2 years’ probation.

29.04.20

Item 15

No conviction recorded. Sentenced to 20 hours’ community service, to be completed within 1 year.

Items 3, 4, 5, 8, 9

No conviction recorded. On all charges with traffic matters: reprimanded.

06.05.20

Item 16

No conviction recorded. Sentenced to 30 hours’ community service, to be completed within 1 year.

12.11.21

Item 20

No conviction recorded. Sentenced to 15 months’ detention.  Detention to be served by way of a conditional release order.

Item 21

No conviction recorded. Sentenced to 12 months’ detention.  Detention to be served by way of a conditional release order.

12.11.21[5]

Items 7, 10 to 14, 17 to 19, 22

On all charges: no conviction recorded; sentenced to 3 months’ detention to be served concurrently.  Detention to be served by way of a conditional release order.

On all charges with traffic matters: no conviction recorded. Sentenced to 6 months’ probation.

On all charges: no conviction recorded; reprimanded.

31.01.22

Item 23

On all charges: no conviction recorded; sentenced to 1 month detention to be served concurrently.  Declare that 67 days spent in pre-sentence detention be deemed as time already served under this sentence.

Item 24

On all charges: no conviction recorded; sentenced to 4 months’ detention to be served concurrently.  Declare that 67 days spent in pre-sentence detention be deemed as time already served under this sentence.

13.07.22

Item 25

On all charges: no conviction recorded; sentenced to 6 months’ detention to be served concurrently.  Declare that 99 days spent in pre-sentence detention be deemed as time already served under this sentence.

Item 26

On all charges: no conviction recorded; sentenced to 3 months’ detention to be served concurrently.  Declare that 99 days spent in pre-sentence detention be deemed as time already served under this sentence.

Item 27[6]

On all charges: no conviction recorded; sentenced to 9 months’ detention to be served concurrently.  Declare that 99 days spent in pre-sentence detention be deemed as time already served under this sentence.

On all charges with traffic matters: no conviction recorded; reprimanded; MDL disqualified period 3 months; MDL disqualified period 2 years.

The circumstances of the offending

  1. [9]
    The circumstances of the attempted robbery count were as follows:
    1. (a)
      The applicant was in a stolen car with four to five males.
    2. (b)
      The stolen car was driven so as to block the complainant’s car while the complainant was loading it with groceries.  The applicant got out of the stolen car and walked up to the complainant demanding her car keys.  He was said to be bouncing and jittery.
    3. (c)
      The complainant, who felt threatened, locked her car and crossed the road to gain the attention of some council workers. The applicant followed her and thumped his chest yelling “Have a go at me”.
    4. (d)
      Two other male occupants had exited the stolen car to try to enter the complainant’s car, but when they could not, the applicant and the other two men got back in the stolen car which sped away.
  2. [10]
    The robbery count occurred within minutes thereafter:
    1. (a)
      Again, the stolen car was driven so as to block another car while it was parked and the complainant was nearby.
    2. (b)
      The applicant and two other males got out of the stolen car, surrounded the complainant and demanded her car keys.  The applicant was described as staggering, as if he was drunk.
    3. (c)
      They shoved the complainant so that she was up against her car.  She started to scream.  They demanded her keys and she refused and screamed for help.
    4. (d)
      The applicant reached into the back of her car and took out a green canvas backpack that had been on her back seat.  The complainant snatched it back from him.  As she did this, one of the larger males punched her in the chin.
    5. (e)
      Although this shocked her she stood her ground continuing to scream for help.  The three offenders backed away from the complainant.  She jumped into the back seat of her car and locked the doors.
    6. (f)
      Two of the males, the applicant and one larger male, returned to her car and tried to open the doors.  For about 10 to15 seconds, they banged on the windows and pulled the handles, while the complainant leaned into the front and was beeping the horn continuously.  The two offenders then ran back to their car and drove off.
    7. (g)
      The complainant realised that the keys to her friend's unit and his car had been taken during the incident.
  3. [11]
    A few hours later, the applicant was arrested on a park bench.  He was not questioned at the time because he appeared to be intoxicated.  The police located the keys belonging to the second complainant’s friend on the applicant.
  4. [12]
    A victim impact statement from the second complainant attested to the adverse emotional impact which the offending had on her.   She required counselling after the event and continues to feel anxiety when driving and parking, particularly if other people are close to the car.  She feels anxious all the time and is now less trusting of people generally.

Other material before the sentencing judge

  1. [13]
    Not all of the juvenile criminal history of the applicant which has been identified above was before the sentencing judge.  Quite apart from the offences which post-dated the date of sentencing, the offences identified at items 7, 10 to 14, 17 to 19 and 22 were not before the judge.  They were dealt with by a sentencing magistrate after the sentencing judge formulated his sentence.
  2. [14]
    A pre-sentence custody report was before the sentencing judge.
  3. [15]
    The author explained her view that the following aspects of the applicant’s personal circumstances had contributed to the offending before the Court:
    1. (a)
      Family circumstances, background and adverse childhood experiences.
    2. (b)
      Unresolved grief and loss consequent upon (1) the death of his father by suicide in 2007; (2) the sudden loss of his grandfather in 2015; and (3) the death of close friends in a car accident in 2020, and maladaptive coping mechanisms in relation to that grief and loss.
    3. (c)
      Substance misuse, particularly in relation to marijuana and alcohol.
    4. (d)
      Antisocial family and peer associations and negative role modelling.
    5. (e)
      Pro-criminal attitudes and antisocial behaviours consequent upon those associations.
  4. [16]
    The author recorded that the applicant had very minimal insight into his offending and had not reflected on the offending or on its impact on his victims.  He had some regret for his offending, but that was focussed on the consequences of his offending for him, rather than on his victims.  She thought that he lacked appropriate empathy or remorse, although she acknowledged that his ability to demonstrate that matters might have been limited by his own childhood experiences.
  5. [17]
    The author identified the sentencing options as options which might be considered by the Court, in these terms:

Restorative justice processes

Your Honour has the option of referring [the applicant] to participate in a restorative justice process. A restorative justice process would require [the applicant] to participate in a conference process and would ensure that [the applicant] is held accountable for his actions in a safe and supportive environment for both himself and the victim. It would attempt to raise his awareness of the range of consequences and impacts of his offending faced by the victim. Participation in such a process would allow [the applicant] to accept responsibility and make amends for his offending.

A restorative justice process can be facilitated through either a diversionary referral, pre-sentence referral or by way of a sentenced order.

Probation order

Your Honour may consider probation as an appropriate sentencing option for [the applicant].

[The applicant] would be required to report for the probation order on a regular basis as determined by his caseworker in order to monitor his progress and compliance on the order, participate in individual sessions aimed at developing his motivation and capacity to change, engaged in identified interventions, encourage his involvement in pro-social activities and address any other issues that may arise during the currency of the order. [The applicant] would also receive assistance from Youth Justice to re-engage in education and/or vocational activities.

[The applicant] has been assessed as being a suitable candidate by the department to participate in the Changing Habits And Reaching Targets (CHART) program with specific focus on the six core modules and the discretionary modules Drugs and Alcohol, Motor Vehicle Offending and Violence. CHART is a structured individual intervention program for clients to reduce their risk of re-offending. [The applicant] would also be required to be involved in discussions with his caseworker regarding the impacts of his offending upon the victims and the development of victim empathy.

Community service order

Your Honour may order [the applicant] to perform unpaid community service of up to 200 hours. [The applicant] is currently subject to a 30 hour community service order, and to date has completed 9 hours of the order. As per section 200(4) of the Youth Justice Act 1992, any ordered community service hours that exceed the maximum allowed are of no effect.

A community service order would allow [the applicant] to make reparation to the community for his offending through performing a nominated amount of unpaid work activities. Youth Justice would conduct an assessment with [the applicant] to determine an appropriate community service agency and timetable for attendance, and will provide transport assistance, youth worker support and if deemed necessary, supervision in order to participate in and complete community service activities.

It should be noted that the interventions and supports available through a probation order would not however be available through a community service order.

Conditional release order

Should Your Honour deem a detention order the most appropriate sentence in relation to these offences, Your Honour may wish to consider suspending the order and making a conditional release order. Such an order would reinforce the seriousness of [the applicant]'s offending whilst giving him a final opportunity to remain in the community.

A conditional release order would require [the applicant] to be involved in a structured program for a maximum period of three months. The conditional release order program would require [the applicant] to participate in an educational program, reintegrative activities, and interventions to reduce the likelihood of further offending. [The applicant] would be required to work intensively with his Youth Justice caseworker throughout the duration of this order.

As a part of the conditional release order program, [the applicant] would be required to participate in interventions aimed at addressing his offending behaviour such as:

  • Participate in educational, vocation and/or work activities.
  • Participate in re-integrative activities.
  • Engage with support services to address underlying mental health issues.
  • Engage in support services to address substance use.
  • Participate in pro-social recreational and cultural activities.
  • Engage in Changing Habits and Reaching Targets (CHART) program with his caseworker during reporting sessions.
  • Engage in Emotional Regulation and Impulse Control (ERIC) program with his caseworker during reporting sessions.
  • Participate in discussions with his caseworker regarding the impacts of his offending upon the victims and the development of victim empathy.

[The applicant] has been assessed as a suitable candidate for a conditional release order and a copy of a proposed program, developed by the department, is attached and marked “C”.

Detention order

Your Honour has the option of sentencing [the applicant] to a period of detention for these offences.

A detention order would provide a clear punishment for [the applicant] and a strong message that such offending is unacceptable, however it would deny [the applicant] the opportunity to address his offending behaviour with his community-based support network.

As outlined in the placement during the remand period section of this report, [the applicant] has spent 312 days remanded in custody in relation to these offences.

Following his release from detention, [the applicant] would be subject to a supervised release order for the remaining period of the detention order. The focus of this order would be around re-integrating [the applicant] back into community-based programs and interventions and ensuring that he has access to adequate supports to assist him in this transition. The extent and nature of support that Youth Justice would provide to [the applicant] during this time would be determined by his individual support needs rather than the length of the order.

Pursuant to section 228 Youth Justice may also impose conditions on this order that is considered appropriate taking into consideration the factors identified as having contributed to [the applicant]'s offending and his progress to date in addressing identified risk factors.”

Submissions before the sentencing judge

  1. [18]
    Before the sentencing judge, counsel for the Crown:
    1. (a)
      summarised the circumstances of the offending;
    2. (b)
      noted that aggravating features of the offending were that it occurred:
      1. during the currency of the probation order made on 28 April 2020 which was for similar offending; and
      2. whilst he was subject to community service orders made on 29 April 2020 and 6 May 2020;
    3. (c)
      noted the lengthy pre-sentence custody of 312 days;
    4. (d)
      drew the attention of the Court to the pre-sentence custody report and, in particular, the discussion of the applicant’s personal circumstances;
    5. (e)
      submitted that the applicant’s lack of insight into his offending was of concern;
    6. (f)
      accepted that there was some promise demonstrated by the response of the applicant to focussed interventions which had occurred during the period in which he had been on remand; and
    7. (g)
      did not submit that the circumstances called for the recording of a conviction, relying in that regard on R v MDD [2019] QCA 197 (MDD 2019).
  2. [19]
    In terms of structuring a sentence, counsel for the Crown submitted that the only appropriate option was a sentence of detention.  He submitted that the only question was whether a period of detention was structured in a way which was subject to conditional release or supervised release.  He concluded with these submissions:

“The conditional release order involves a program up to three months and annexure C of the report details what would be involved in that program.

The benefit of supervised release, however, is that, depending on the head sentence, it can see him supervised for a longer period of time whilst still providing the programs that he needs to have adequate support to reintegrate into the community. I note, however, he has never been subject to a detention order previously and never had the benefit of conditional release order which are factors that are relevant.

On the other hand, he’s reverted to criminal conduct of a similar kind and the community would benefit from his supervision on release. On my calculations, your Honour, 312 is 70 per cent of 455 days; 455 equates to about 14.63 months, so if your Honour was to order release after 70 per cent, 14 months would, essentially, be the head sentence.”

  1. [20]
    Counsel for the applicant advanced only brief submissions.  He noted that a magistrate was listed to deal with other matters later that day.  He noted that the time served in pre-sentence custody must be regarded as a significant punishment already experienced, especially given the applicant’s age.  He submitted that the applicant had effectively done his time.  He acknowledged that there was some attraction in a 3 month conditional release program.  He did not argue against the possibility that a sentence of 15 months to be served by conditional release order of which 312 days had already been served would be appropriate.

The reasoning of the sentencing judge

  1. [21]
    The sentencing judge noted with concern that at the time of offending the applicant was on probation and also subject to community service orders, and that the probation sentence had been imposed in respect of an offence of robbery with actual violence while armed in company, wounding and using personal violence, which was a very serious matter.
  2. [22]
    He noted that he had read the pre-sentence report.  He made some remarks addressed to the applicant.  The critical parts of his reasoning were contained in two brief paragraphs as follows (emphasis added):

I have considered the alternatives.  This offence – or these offences, I should say, this offending was committed while you are on probation for a serious robbery. You were taken into custody. You have done 312 days. Subject to whatever the magistrate does downstairs, I accept that that is enough time. [The applicant’s counsel] will explain to you how it is going to work. I can not tie the magistrate’s hands. It is a matter for him or her to decide what to do. But I will sentence you in respect of these matters. On the robbery in company, having considered all of the other alternatives in accordance with the Youth Justice Act, in particular considering also the restorative justice issues, that is unsuitable in these circumstances, given the nature of the offending and the response of the complainants. A detention order is, in my view, the only alternative, but it will be served by way of a conditional release order.

On [the attempted robbery count], you are sentenced to a period of 12 months detention. [The robbery count], a period of 15 months detention, just to distinguish between the slightly different seriousness of the two matters.”

  1. [23]
    The sentencing judge then explained the conditions of a conditional release order to the applicant and obtained his consent to such an order.

Consideration

  1. [24]
    In R v SCU [2017] QCA 198 at [53] and [85] to [86] and MDD 2019 at [54] to [58] the Court has made clear that:
    1. (a)
      The duty of the sentencing judge under the Youth Justice Act is to give consideration to all statutory factors relevant to a particular case, as well as the facts of the case itself before deciding on the appropriate sentence.
    2. (b)
      Section 208 requires the sentencing judge to consider all other options reasonably available before imposing a sentence of detention, including the desirability of not holding a child in detention.
    3. (c)
      The section should be taken to prescribe a process of reasoning.
    4. (d)
      The sentencing remarks should explain how the sentencing judge complied with the required process of reasoning, including by expressing the sentencing judge’s reasons for imposing detention rather than taking some other option.
  2. [25]
    In this case, the sentencing judge did not explain why the other options identified as suitable by the pre-sentence report were rejected in favour of detention to be served by conditional release.  It is perhaps understandable how that happened in light of the fact that the applicant had already served 312 days on remand and given both the desirability for some degree of supervision of the applicant and the tenor of the submissions which had been advanced.  However the fact that the applicant had already spent time on remand did not necessarily make it appropriate that he be sentenced to any detention at all.  Nor, it may be observed, did the time which the applicant had already served have any necessary bearing on the minimum period of detention which should be imposed, particularly bearing in mind that one of the statutory factors which the sentencing judge was obliged to consider was that expressed in paragraph 18 of the Charter of youth justice principles:

“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”.

  1. [26]
    The sentencing judge appeared to start with the assumption that a period of detention at least as long as the time which had been served was appropriate.  Having regard to the prosecutor’s submission, set out above at [19], it may be inferred that his Honour arrived at a period of detention of 15 months because the time already served was about 70% of that period.  The sentencing remarks do not reveal that the sentencing judge arrived at the sentence by the required process of reasoning.  The lack of appropriate explanation in the sentencing remarks meant that the sentencing process miscarried.  It is unnecessary to consider the contention that the sentence should be regarded as manifestly excessive.

Re-sentencing

  1. [27]
    It is appropriate first to consider whether options other than detention are appropriate in this case.
  2. [28]
    The applicable provisions of the Youth Justice Act and the principles to be applied have been identified in R v SCU and MDD 2019 and do not need to be recapitulated here.
  3. [29]
    I would reject the suggested option of a reprimand as a manifestly inadequate recognition of the gravity of the applicant’s offending and his recidivist behaviour.  It was an option which has been tried before in relation to the applicant and proved insufficient.
  4. [30]
    I would reject the option of a restorative justice order for the same reasons.  The lack of insight and empathy exhibited by the applicant and his recidivist behaviour strongly suggests the need for a stronger sentence.
  5. [31]
    A previous probation order for similarly grave offending had been insufficient to deter the applicant from the index offending.  The same observations may be made in relation to the community service order option.  Both options having been tried and failed in relation to applicant, and for the same reasons as expressed in the previous paragraph, a stronger sentence is called for.
  6. [32]
    Despite the general undesirability of sentencing a child to detention, and the legal requirement that a sentence to detention should be regarded as a last resort, a detention sentence was appropriate in this case.  Putting aside for the moment the significance of the time which had already been served and the significance of events after the index sentences, the applicant’s circumstances strongly suggest it would be appropriate to sentence the applicant to an appropriate period of detention to be served by a conditional release order.  As the author of the pre-sentence report suggested, that would reinforce the seriousness of his offending whilst giving him a final opportunity to remain in the community.
  7. [33]
    The question would be what period of detention would be appropriate, particularly having regard to the need to sentence for the least amount of time justified in the circumstances.
  8. [34]
    In support of his argument that there should be no interference with the sentences which had been imposed, counsel for the Crown referred to R v Cunningham [2014] QCA 88 (2 years’ detention to serve 70%) and R v PBE [2019] QCA 185 (16 months’ detention to serve 50%), but neither case gave particularly helpful guidance because although the offending was comparable, the only issue on appeal was the question of recording a conviction, rather than the length of the sentence of detention.
  9. [35]
    Counsel for the applicant referred to:
    1. (a)
      R v TAO [2020] QCA 4 (18 months’ detention, suspended immediately with release on a conditional release order for 3 months for robbery in company with violence, where each of the complainants suffered significant blows to the head);
    1. (b)
      R v DBU [2021] QCA 51 (18 months’ detention with a release after serving 50% of that period for armed robbery involving the use of a knife); and
    2. (c)
      R v MDD [2021] QCA 235 (20 months’ detention with release after serving 10 months for attempted robbery with wounding caused by stabbing a complainant in each thigh causing “deep laceration wounds”),

but they too were cases where the only issue on appeal was the question of recording a conviction.

  1. [36]
    If the applicant had not served any significant time on remand, I would have concluded that it would be open to sentence the applicant to a period of 12 months’ detention to be served by a conditional release order for the maximum period of 3 months in respect of the robbery count, with the same sentence open in respect of the attempted robbery count, albeit with a slightly reduced period of detention.
  2. [37]
    However in the particular circumstances of this case, those sentences would not be appropriate.  I make the following observations:
    1. (a)
      It appears that the applicant was released from custody on the conditional release orders on 12 November 2021, but, as has been recorded in table 1, he returned to custody on 26 November 2021 in respect of the offending on 25 November 2021 (items 23 and 24 of table 1) for which he was sentenced on 31 January 2022.
    2. (b)
      By application filed on 13 December 2021, the applicant applied for leave to appeal against the sentences imposed on him by the sentencing judge on 12 November 2021 on the sole ground that they were manifestly excessive. Because of s 115 of the Youth Justice Act, the filing of the application had the result that the effect of the orders made on 12 November 2021 were stayed until the application was finalised.  At the time the orders were stayed there was about 2 months of the period of conditional release still to be served.  It does not appear from any material before the Court that any steps were taken under the Youth Justice Act in respect of breach of the conditional release order before the effect of the orders was stayed.
    3. (c)
      As has been recorded in table 1, the applicant returned to custody in March 2022 in respect of the offending in February and March 2022 (items 25, 26 and 27 of table 1) for which he was sentenced on 13 July 2022.  Although it does not appear in the juvenile criminal record, counsel informed us that the sentences imposed on that date included an order pursuant to s 227(2) of the Youth Justice Act that the applicant be released after serving 70% of the detention ordered.  It follows that the applicant still has about 3 months to serve in custody in respect of those sentences before he will be released under supervised release order for the remaining period of the 9-month period of detention to which he was sentenced.
    4. (d)
      Section 219 of the Youth Justice Act provides that the purpose of a conditional release order is to provide an option for immediate release of a child into a structured program with strict conditions.  Section 220 provides that if such an order is made, the child must be immediately released in accordance with the order.  Because the applicant is presently in custody for other offending, a conditional release order cannot now be made.  Subsequent events have, therefore, overtaken and rendered inutile the option of requiring the applicant to serve further detention for the index offending by way of any period of conditional release.
    5. (e)
      In any event, as 312 days of a notional 12-month period of detention has already been served (by s 218(1)), a conditional release order could not be made for a longer period than the remaining period of detention.  In such circumstances, and even if a conditional release order could now be made, it would serve no purpose beyond supervised release under s 228.
  3. [38]
    That reasoning suggests that the only apposite sentence would be to a period of detention.
  4. [39]
    One possibility is this Court could sentence the applicant to 12 months’ detention.  As the applicant is presently in detention, the remaining period of detention for the index offences after deducting the 312 days in pre-sentence custody would be regarded as being served concurrently with the period for which he is presently in detention: s 212 of the Youth Justice Act.  Notably, that period will have been fully served by the time the applicant is made the subject of a supervised release order in respect of the sentences imposed on 13 July 2022.
  5. [40]
    Counsel submitted on behalf of the applicant that the applicant should be given a sentence that involved no further punishment or obligation after the date of sentence.  If this Court sentenced the applicant to detention for the 312 days he had already spent in pre-sentence custody, the applicant would be regarded as already having completed the period of detention in full and would have no further contingent obligation in relation to the sentence.  Accordingly, the result sought by the applicant could be achieved by a sentence to detention of 312 days or less.
  6. [41]
    Either approach would have the same practical impact on the applicant.
  7. [42]
    Although, in different circumstances, I would have thought that a sentence of 12 months’ detention allied with a conditional release order would have been an appropriate response to the most serious of the applicant’s offending, for reasons which I have explained that option is not available here.  The particular circumstances of this case suggest taking the pragmatic option of sentencing the applicant to 312 days’ detention.  Because that time has already been served, there is no need to differentiate between the two counts for which he must be sentenced.

Conclusion

  1. [43]
    For the foregoing reasons, I propose the following orders:
  1. 1.Leave to appeal granted.
  2. 2.On each count, set aside the sentence and substitute the following sentence:

“Conviction not recorded. Order that the offender be detained for 312 days.”

  1. [44]
    DALTON JA:  I agree with the reasons of Bond JA and with the orders he proposes.

Footnotes

[1] Remand in custody report, Appeal Record at 49.

[2] This is an inference from the 67 days’ pre-sentence custody identified in the sentences imposed on 31 January 2022.

[3] Counsel informed us that the sentences imposed on that date included an order pursuant to s 227(2) of the Youth Justice Act 1992 (Qld) that the applicant be released after serving 50% of the detention ordered.  I infer that he must have been released from custody on about the day he was sentenced under a supervised release order for the remaining 2 months of the 4-month period of detention to which he was sentenced

[4] This is an inference from the 99 days’ pre-sentence custody identified in the sentences imposed on 13 July 2022.

[5] The offending identified in items 7, 10 to 14, 17 to 19, and 22 was not dealt with by the judge who imposed the sentence in respect of items 20 and 21.  Those offences were dealt with by a sentencing magistrate later on the same day.  Three sentences were imposed by the sentencing magistrate for a multiplicity of counts and the material before this Court does not permit the precise identification of which sentence related to which particular counts.

[6] The offending identified in item 27 was the subject of the two sentences identified in table 2.  It constituted a multiplicity of counts and the material before this Court does not permit the precise identification of which sentence related to which particular counts.

Close

Editorial Notes

  • Published Case Name:

    R v IJ

  • Shortened Case Name:

    R v IJ

  • MNC:

    [2022] QCA 138

  • Court:

    QCA

  • Judge(s):

    McMurdo, Bond, Dalton JJA

  • Date:

    05 Aug 2022

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC44/21 (No citation)12 Nov 2021Date of sentence (Dearden DCJ)
Notice of Appeal FiledFile Number: CA326/2113 Dec 2021-
Appeal Determined (QCA)[2022] QCA 13805 Aug 2022-

Appeal Status

Appeal Determined (QCA)

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