R v SDW[2022] QCA 241

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P and BOND JA:

Introduction

2. [2]
   The applicant had pleaded guilty to 16 offences charged on indictments 29, 31 and 39 of 2022, which offending had taken place over five days in a three-month period between July and October 2021.
3. [3]
   The applicant’s offending was serious.  It was summarised, correctly, by counsel for the Crown in this way:

“… the applicant and others committed a number of offences including violent offences for the purpose of stealing and damaging property, most particularly, motor vehicles. The applicant’s most concerning offending included engaging himself in three ‘car-jacking’ offences one of which he was personally armed with a knife used to menace the driver of the vehicle and in another he used actual violence to overcome resistance. One car so stolen was burned by the applicant and another. The violence and property damage occasioned in this case at the hands of the applicant and his co-defendants was not insignificant.”

4. [4]
   The applicant was very young, being aged between 13 years and 11 months and 14 years and one month at the time of the offending.  He had no prior criminal history.  His circumstances had changed considerably between the time of his offending and the time he was to be sentenced, and he had not re-offended in that intervening period.  There was reason to be hopeful about the prospects of rehabilitation.
5. [5]
   He fell to be sentenced according to the provisions of the Youth Justice Act 1992 (Qld), a statute which emphasises a child’s age as a mitigating factor; which privileges rehabilitation as a sentencing principle; and which makes very plain that a child should be sentenced to detention only as a last resort after considering all other available sentencing options, and then only for the least time that is justified in the circumstances.  It is well recognised that these and other considerations mean that there are distinct differences between sentencing children under that Act and sentencing other offenders under the Penalties and Sentences Act 1992 (Qld).
6. [6]
   Despite these considerations, on 4 August 2022, the applicant was sentenced to 15 months’ detention for each of the three most serious counts on indictments 29/22 and 31/22.  For each of the remaining eight counts on those indictments he was sentenced to six months’ detention.  Each period of detention was to be served concurrently.  Pursuant to s 227(2) of the Youth Justice Act the sentencing judge ordered that he be released after serving 50% of the period of detention.  Indictment 39/22 was presented only shortly before sentencing and no pre-sentence custody report had been obtained in respect of the counts with which it dealt.  The result was that, pursuant to s 207 of the Youth Justice Act, a detention order could not be made in relation to those counts.  For each of the five counts on indictment 39/22 the applicant was sentenced to 18 months’ probation.  No convictions were recorded.
7. [7]
   The applicant sought leave to appeal from those sentences.  He proposed two grounds of appeal: first, that the sentences imposed were manifestly excessive, and, second, that the sentencing judge had made a specific error by failing to explain in his sentencing remarks why other reasonably available sentencing options were not taken before imposing sentences of detention.
8. [8]
   His application came on for argument before this Court on 31 October 2022.  By that date, having regard to the time he had spent on remand before he had been sentenced, the applicant had been in detention for a total period of 148 days.  He had a little over two and a half months left to serve: ss 218(1) and 228(1) Youth Justice Act.  Unless this Court interfered with the detention sentences, at the end of that period, the chief executive would make a supervised release order releasing the applicant from detention subject to a supervised release order for the remaining 50% of the period of detention: s 228(1) Youth Justice Act.
9. [9]
   At the hearing before this Court, counsel on the applicant’s behalf clarified that the applicant only sought to overturn the sentences imposed in respect of the offending the subject of indictments 29/22 and 31/22 and the applicant did not seek to prosecute his appeal in respect of the offending the subject of indictment 39/22.  Accordingly, the probation order would stand.
10. [10]
    After the conclusion of argument on 31 October 2022, the Court made the following orders:

    1. Leave to appeal granted.
    2. Appeal allowed.
    3. Set aside the sentences on each of the charges on indictments 29/22 and 31/22.
    4. Order that the applicant be detained for a period of 148 days for each offence on those indictments.
    5. Convictions not recorded.
    6. Confirm the sentence of 18 months’ probation for the charges on indictment 39/22 and that convictions not recorded.
    7. Reasons to be published at a later date.
11. [11]
    For reasons which follow, we joined in the making of those orders.

Specific error was established

12. [12]
    There had been a pre-sentence report obtained in respect of the offending the subject of indictments 29/22 and 31/22.  It had identified the following sentencing options as open in respect of the applicant:

    1. (a)
       A restorative justice order under Division 6A of the Youth Justice Act.
    2. (b)
       A probation order under Division 6A of the Youth Justice Act.
    3. (c)
       A community service order.
    4. (d)
       A combination order:

       1. combining a probation order and a community service order; or
       2. a restorative justice order combined with either a probation order or a community service order.
    5. (e)
       A conditional release order.
    6. (f)
       A detention order.
13. [13]
    Pursuant to s 192A of the Youth Justice Act, a court may only make a restorative justice order if the child indicates a willingness to comply, and in this case the pre-sentence report recorded that the applicant had indicated an unwillingness to comply with such an order.  Unless that position changed (and it had not) then despite the pre-sentence report, as a matter of law a restorative justice order was not open.  However, probation; community service; a combination of probation and community service; a conditional release order; and a detention order were all available for the offending the subject of indictments 29/22 and 31/22.
14. [14]
    In response to the second ground of appeal, counsel for the Crown submitted that:

“A review of his Honour’s remarks, particularly those at ARB 93 – 97, in combination with the submissions of the prosecutor, the applicant’s counsel and his Honour’s remark at ARB 98.46 – 48, reveals his Honour properly considered all available options to him.

It was only after considering the sentencing options that his Honour came to conclude that the seriousness of the offending and the applicant’s lack of direct engagement in the bail program was such that a period of detention, with a further approximately 6 months to be served, was not only an available sentencing option but the only sentence appropriate. As such, his Honour did not err in in consideration as to the sentencing options.”

15. [15]
    The submission must be rejected.
16. [16]
    In R v SCU [2017] QCA 198 at [53] and [85] to [86] (per Sofronoff P); R v MDD [2019] QCA 197 at [54] to [58] (per Davis J, with whom Sofronoff P and Mullins J agreed); and, most recently, R v IJ [2022] QCA 138 at [24] (per Bond JA, with whom McMurdo JA and Dalton JA agreed), this Court has made plain 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.
17. [17]
    To put it another way, this Court has concluded that the Youth Justice Act, and in particular, ss 208 and 209, should be construed as requiring sentencing judges to follow a particular methodology.  A sentencing judge cannot make a detention order for a child without first considering all other available sentences in the way that the law requires, and then forming the state of satisfaction referred to in s 208 in the way referred to in s 208.  Moreover, it is not enough that the sentencing judge may have privately reasoned in that manner, ultimately concluded that no other sentence than detention is appropriate and then merely expressed the statement in the sentencing remarks that that consideration was performed.  Rather, the sentencing judge must express his or her reasons in court in a way which explains how that ultimate result was arrived at by the application of the proper reasoning process.
18. [18]
    For example, if, as in the present case, there were four sentencing options reasonably open other than detention, then in order to comply with s 208 a sentencing judge could not impose detention unless he or she had first separately considered and rejected each of the other options and then formed the state of satisfaction referred to in s 208 in the way referred to in s 208.  In order to comply with s 209, the sentencing remarks would have to explain the process undertaken, including by explaining the reasons for rejecting each of the other options.
19. [19]
    It must be noted that this Court has construed the obligation in s 208 as requiring express consideration of the sentencing options “reasonably available”.  Of course, the adverb “reasonably” does not appear s 208(a).  That section requires the court to consider all other “available” sentences.  The addition of the adverb “reasonably” seeks only to communicate that the word “available” should be construed as meaning suitable or appropriate for consideration.  The extreme circumstances of a particular case might well mean that sentencing options which are theoretically open are so obviously unsuited to the circumstances of the case that they should not be regarded as “available” within the meaning of s 208, and a sentencing judge might be justified in not dealing with them at all in his or her reasons.
20. [20]
    It should also be noted that whilst it is to be hoped that in most cases the sentencing options identified in the pre-sentencing report will be those which should be regarded as reasonably available and necessary to consider, that will not inevitably be the case.  In this case, for example, and for reasons we have already expressed, the pre-sentencing report identified an option which could only have been regarded as open if the applicant had changed his mind and expressed a willingness to comply with that option.
21. [21]
    Finally, it is also to be noted that an option will not cease to be an option which is properly to be regarded as reasonably available and therefore necessary to consider merely because it was not pressed in counsel’s submissions: see R v Volkov [2022] QCA 57 at [6] to [8] (per McMurdo JA, with whom Fraser JA and Williams J agreed).
22. [22]
    Although counsel for the Crown did not seek to challenge the summary of the law recorded in R v IJ and expressed at [16] above, we should address some observations made in R v DBT [2020] QCA 170 which are inconsistent with that summary.
23. [23]
    R v DBT concerned applications for leave to appeal against detention sentences by three offenders who fell to be sentenced under the Youth Justice Act.  The offending concerned what the sentencing judge had described as “a very serious example of the offence of rape”.  Williams J (with whom Morrison JA and Boddice J agreed) accepted that description.  In dealing with the proposed ground of appeal that the sentencing judge had failed to consider all other sentencing options reasonably available before imposing the sentence of detention, Williams J observed at [99] to [101]:

“His Honour did not specifically refer to ss 208 or 209 of the Youth Justice Act in the sentencing remarks or expressly undertake a consideration of the sentencing options. Other than to record that counsel for NY considered that a conditional release order was an appropriate sentence in respect of NY (and also, counsel’s submissions in relation to DBT), there is no reference in the sentencing remarks to a conditional release order under s 220 of the Youth Justice Act.

Whilst the sentencing judge is obliged to give a real consideration to all sentencing options before imposing a sentence of detention, and to give reasons for the sentence imposed, a failure to set out in those reasons why a conditional release order would not be adequate to serve all of the purposes of punishment will not vitiate the sentence imposed if, having regard to the seriousness of the offence and its circumstances, the imposition of a conditional release order could not serve the requisite purposes of sentencing under the Act.

R v SCU is not authority to the contrary. [Her Honour went on to quote from the judgment of Sofronoff P at [81] to [84], but not the critical paragraphs at [85] and [86] where his Honour explained that s 208 prescribes a process of reasoning and that in order to comply with the section a sentencing judge is obliged to explain that compliance in the sentencing remarks.]”

24. [24]
    In our view the observations by Sofronoff P in R v SCU and in particular at [85] and [86] were authority to the contrary of the view expressed in the second paragraph of the quote above.  Further, the remarks of Sofronoff P had been adopted in R v MDD and R v MDD was authority to the contrary.  Unfortunately, it does not appear that R v MDD was drawn to the attention of the Court.  And in any event the appeal ground raised only the argument that it could be inferred that the sentencing judge had failed to consider the other options.  There was no specific ground of appeal which suggested that failing to explain in his sentencing remarks why other reasonably available sentencing options were not taken before imposing sentences of detention was itself sufficient to demonstrate that the sentencing discretion had miscarried.  Accordingly, it might be contended that the remarks were not ratio.  Nevertheless, insofar as the passages from R v DBT which we have quoted are contrary to the approach we have summarised at [16] above, we respectfully conclude that they are contrary to the law.  We would not follow them.
25. [25]
    We turn now to the application of principle to the circumstances of the present case.
26. [26]
    In this case the sentencing remarks:

    1. (a)
       explained that the sentencing judge had considered the option of a restorative justice order and that he rejected it because the pre-sentence report informed him of the applicant’s unwillingness to comply with such an order and that, accordingly, he concluded that there was no utility in making one;
    2. (b)
       explained that he considered the option of a detention order immediately suspended by a conditional release order and the option of a detention order which required the applicant to serve further time in detention over and above the 59 days already served on remand; and
    3. (c)
       explained why he rejected the former in favour of the latter.
27. [27]
    However, in relation to the offending which was the subject of indictments 29/22 and 31/22, the sentencing judge did not explain in his sentencing remarks his reasoning for rejecting the options of a probation order; a community service order; or an order combining a probation order and a community service order.  Whilst the sentencing judge was not taken to R v MDD, and R v IJ was not published until the day after the sentence was imposed, it must still be concluded that his Honour’s remarks reflected proceeding in a way inconsistent with law as explained in those cases and reiterated above.
28. [28]
    We find, accordingly, that the second proposed appeal ground, namely that “[t]he sentencing Judge erred in not explaining why the other options reasonably available in the pre-sentence report were not taken before imposing a sentence of detention” should be upheld.
29. [29]
    Specific error having been demonstrated, it falls on this Court to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed: Kentwell v The Queen (2014) 252 CLR 601 at 615 [35] (per French CJ, Hayne, Bell and Keane JJ).
30. [30]
    It was not suggested that this Court should reach the latter view.  In any event, it will shortly appear that we would not reach that conclusion.  Indeed, whilst it is unnecessary to deal with the proposed appeal ground which contended that the sentence was manifestly excessive, we will observe that in our view, especially given the applicant had already served 59 days on remand, there was a powerful argument that it was manifestly excessive not to formulate an order which did not provide for any further actual detention.

Re-sentencing

31. [31]
    It is appropriate first to record the nature of the relevant offending in a little more detail than has yet been identified.
32. [32]
    The indictments, offending and sentences imposed are identified in the table below:

33. [33]
    As to the offending the subject of indictment 39/22, for which the applicant was sentenced to 18 months’ probation, and in respect of which sentence the applicant no longer presses an appeal:

    1. (a)
       At about 2.00 am on 29 July 2021, the applicant broke into the home of a 94-year-old woman and her 64-year-old daughter.  He had tried to disguise himself with a face mask.  He forced entry to the home through a sliding door, after damaging the front door handle.  The applicant was confronted by the 94-year-old woman who had woken to use the bathroom.  She screamed, waking her daughter.  He ran towards the exit, but when confronted by the daughter who had chased him, he demanded the car keys (Count 1).  He left the house when there was the indication that police were being called.  The defendant took from the garage a mountain bike, bank cards and about $85 to $135 in cash (Count 2).  Victim impact statements attested to the trauma suffered by both women.  They had to spend about $5,000 in repairing and replacing locks and screens and installing additional security.
    2. (b)
       On 11 August 2021, the applicant with two other youths attended the Stockland car park at 1.30 am.  The applicant filmed on a phone as the two other boys climbed, jumped, kicked and stomped on a sedan parked in the car park.  The vehicle sustained extensive damage (Count 3).
    3. (c)
       The applicant and his group then walked along the side of the shopping centre.  He filmed himself as he threw a bottle at a glass door causing damage to the value of $2,762 (Count 4).
    4. (d)
       Later that day, the applicant with others attended Wecare Disability and Social Work Services Pty Ltd.  The applicant caused extensive damage within the building.  They stole mobile phones, headphones, and smashed two laptops, four computer monitors, security cameras and multiple windows.  The group sprayed drinks and a fire extinguisher throughout the building.  The damage caused was approximately $19,000 (Count 5).  Again, the applicant filmed himself as he engaged in the offending.
34. [34]
    As to the offending the subject of indictment 29/22:

    1. (a)
       On 15 August 2021, the applicant returned to Stockland shopping centre.  He was in the company of multiple youths.
    2. (b)
       The applicant carjacked a Toyota Rav-4 from a man waiting for his wife to finish work.  The applicant and six other youths approached their victim and took his car keys.  The man ran after the offenders, but the applicant managed to open the car and reach the driver's seat first (Count 1).  The applicant pushed the man into the door as he tried to regain his keys.  A co-offender hit the man a number of times to the head.  The applicant kicked the man’s arm and drove the car forward (Count 2).  The applicant drove the car directly at the man (Count 3).  The applicant’s victim suffered a laceration to his ear and his wife suffered shock after finishing work and finding out what had happened.
    3. (c)
       The applicant drove the stolen car and picked up two co-offenders and decided later that night that the group were going to carjack another vehicle.  He drove to where their female victim was sitting parked in her Toyota Corolla waiting for her daughter to finish work at 7.50 pm.  A co-offender opened the driver's door, demanded “get out of the fucking car bitch” and punched the woman about six times to the head (Count 5).  The co-offender held a knife to the woman’s throat and continued to punch her until she exited the car, whereupon co-offenders drove off with the car (Count 6).  Their victim suffered bruising to her eye, nose and forehead but described to police that when the knife was to her throat she was “trembling and crying and screaming” and that she was “in shock for about half an hour after”.
    4. (d)
       Police sought to apprehend the group and some were arrested.  Despite the arrest of some of the members of his group, the applicant continued to offend.  At 9.30 am on 16 August 2021, a woman who had noticed that the Rav-4 had its number plates removed began to film the applicant and a co-offender on her mobile phone.  It appears that the applicant and a co-offender noticed her filming, pulled the Rav-4 out into traffic and accelerated towards the car she was in.  They collided with her vehicle, near where her child was seated in the car.  Her vehicle sustained damage to the driver’s door and mirrors (Count 10).  After the collision, the applicant and his co-offender continued to follow the complainant’s car until she was able to lose them in traffic.
    5. (e)
       Within half an hour, the applicant and his co-offender drove to a place where they deliberately lit the Rav-4 on fire, destroying the vehicle (Count 11).  The car was dumped along a path in a residential area.  A short time later they were detected and arrested.  They declined to participate in an interview and were charged.
35. [35]
    As to the offending the subject of indictment 31/22:

    1. (a)
       The applicant continued to offend in a similar way, whilst on bail for the offences subject to indictment 29/22.
    2. (b)
       He was involved in his third carjacking on the morning of 5 October 2021.  The applicant and two co-offenders approached a woman as she had parked her car.  The applicant demanded the keys and then produced a knife, holding it to her face, continuing to demand the keys.  The applicant and his co-offenders wore masks to try to disguise their appearance.  Understandably, the woman screamed and ran off, but the offenders followed her, continuing to demand the keys.  The applicant continued to hold the knife out to the woman.  Eventually, the offenders located the keys, returned to the vehicle and the applicant drove away with his passengers (Counts 1 & 2).  Their victim later described to police that she had feared for her safety during the event.
    3. (c)
       The applicant drove the stolen car to a service station and stole $50.24 worth of fuel (Count 3).
    4. (d)
       About five hours later, the applicant was involved in his fourth carjacking.  He parked the stolen car next to another woman’s vehicle.  Two co-offenders got out of the stolen car and confronted the woman with a knife as she was getting out of her car.  She immediately returned to her car and locked the doors.  The applicant reversed behind her car to block her in.  The applicant got out of the stolen car.  A co-offender struck the driver’s window.  All offenders ultimately returned to the stolen car and drove off (Count 4).  Their victim subsequently described to police how frightened she had been during the event.
    5. (e)
       The applicant was arrested about four hours later when the police deployed road spikes to stop the stolen car he was driving.  He was arrested and declined an interview with police.
36. [36]
    The applicant was an indigenous child who had first come to the attention of the authorities only 11 days prior to the commencement of the offending recorded above.  He had absconded from the family home (where he was living with his father and his father’s partner) and was couch surfing at the home of one of the youths who later became one of his co-offenders.  He was not attending school, was associating with negative peers and was attempting to gain notoriety.
37. [37]
    The pre-sentence report identified a number of factors which contributed to his offending, namely:

    1. (a)
       multiple adverse childhood experiences compounded by the absence of a supportive caregiver/parental figure;
    2. (b)
       disruptive attachments leading to attention seeking behaviours;
    3. (c)
       exposure to anti-social and pro-criminal behaviour; and
    4. (d)
       peer influence.
38. [38]
    His offending appeared to be motivated, in part, to gain attention from his father.  The applicant told the author of the pre-sentence report when discussing the offending “I wanted my family to hurt”.
39. [39]
    The pre-sentence report summarised relevant considerations in this way:

“When considering an appropriate sentencing option for [the applicant], Your Honour may wish to take in to account the following:

• [The applicant] is currently 14 years and 9 months of age and identifies as Aboriginal. [The applicant] was aged 13 years and 11 months when he committed the offences in August 2021.
• [The applicant] has spent 59 days remanded in custody in relation to the offences subject to this report.
• [The applicant] has no previous supervised order history.
• On 2 December 2021, [the applicant] was ordered to comply with a conditional bail program.  This program focused on his re-engagement in mainstream education, stakeholder referral and engagement, motivational intervention and other supports aimed at reducing his risk of reoffending.
• In January 2022, [the applicant] made positive changes in his life which contributed to an improvement in his behaviour and attitudes, stability, and improved family connections.  At this time, [the applicant] chose to relocate to [another regional centre] to reside with his mother and five siblings.
• [The applicant] has accepted referrals to services, including the Emergency and Long-Term Accommodation Incorporation (ELAM) and Mackay and District Support Service (MDSS).  These services will work collaboratively to support [the applicant]'s participation in pro-social recreational activities, such as local youth groups, sports teams, gym mentoring and boxing classes.
• Upon [the applicant]'s relocation to [the other regional centre], he enrolled at [a local] State High School and commenced Grade 9.  [The applicant]'s participation at school continues to be supported by family and Youth Justice, with a goal of increasing his attendance rate.
• [The applicant] has not been charged with any further offences over the past seven months, since he relocated to [the other regional centre].”

40. [40]
    The applicant’s engagement with the programs referred to in his conditional bail release had been somewhat mixed.  He had commenced one of the programs, but there was no evidence that he had engaged in any others, and he had been warned about the consequences of non-compliance.  And although he had enrolled at school, he had been failed to attend school on 68 occasions (59 full days and nine part days) out of the 102 school days which were available in the period prior to sentencing.  Nevertheless, as noted above, the pre-sentence report recorded that “[the applicant]’s participation at school continues to be supported by family and Youth Justice, with a goal of increasing his attendance rate”.
41. [41]
    The applicant’s pleas of guilty should be regarded as early pleas in the face of a strong Crown case, but nevertheless as pleas which demonstrated cooperation with the administration of justice.  The applicant expressed to the author of the pre-sentence report feelings of remorse, empathy and insight for his offending behaviour.
42. [42]
    Before the sentencing judge, the Crown had submitted that the appropriate sentence was 18 months’ detention and that the applicant be required to serve 50% or 60% of that period.  Counsel for the applicant had accepted that was within a proper exercise of discretion but had submitted that any period of detention be served by way of a conditional release order.
43. [43]
    Before this Court, counsel for the Crown had submitted that leave to appeal should be refused.  The proposed appeal ground of specific error was opposed for the (erroneous) reason we have already identified.  The proposed appeal ground alleging the sentence was manifestly excessive was opposed on the basis that the sentence, although strong, was not in the circumstances unreasonable or plainly unjust.  It must be observed that such a submission is inherently self-contradictory in the context of sentencing under the Youth Justice Act.  If it is appropriate to describe a sentence as “strong” then it could hardly be a sentence which had complied with the “special consideration” stated in s 150 that a detention order should be imposed only as a last resort and for the shortest appropriate period.
44. [44]
    In his written submissions, counsel for the applicant had focussed on supporting the proposed ground alleging specific error.  His written submissions simply contended that a sentence other than immediate detention should have been preferred.  Before this Court, he submitted that once the Court recognised that the applicant would remain the subject of a lengthy probation period (in respect of the unchallenged sentence imposed in respect of the offending the subject of indictment 39/22) the Court should take the view that the applicant had served enough time in detention and should formulate an order which provided for his immediate release.
45. [45]
    The applicable provisions of the Youth Justice Act and the principles to be applied have been identified in R v SCU and R v MDD and do not need to be recapitulated here.
46. [46]
    Although the applicant committed a string of serious offences over a relatively short period, and although the offending the subject of indictment 31/22 was committed after he had already come to the attention of the criminal justice system and been admitted to bail, in our view, the applicant should be treated as a very young first offender who had chosen to make a palpable change to his circumstances by moving to the other regional location and who, thereby and by his non-offending since, had demonstrated that he had prospects of rehabilitation.  His incomplete compliance with the conditions of his bail would not gainsay that conclusion.
47. [47]
    Of course, the applicant’s offending was serious and considerations of just punishment, general deterrence and denunciation were strongly engaged.  The community has a right to be protected against the sort of offending in which the applicant engaged.  But it is well recognised that under the Youth Justice Act the youth of the child “affects the weight to be given to the objects of punishment, denunciation and deterrence and thereby lessens their importance relative to the object of rehabilitation”: see R v SCU at [152] (per McMurdo JA).
48. [48]
    We agree with the applicant’s submission that a sentence other than immediate detention should have been preferred initially.  The seriousness of the offending may well have justified a rejection of community service as an option.  But the fact that 59 days had already been served on remand, meant that a probation order warranted close and specific examination.  And even if that was rejected there would still have been much to be said in favour of sentencing the applicant to an appropriate period of detention to be served by immediate release under a conditional release order for the maximum period of three months.
49. [49]
    But none of those options were selected, and by the time the application came before this Court the applicant has already served a total of 148 days in detention.  Sentencing to community service was unnecessary in light of the time he had already served.  And sentencing to probation or to conditional release was unnecessary in light of the extant probation order for the offending the subject of indictment 39/22. In light of the time he has already served, we determined that it was not necessary to do anything other than conclude the applicant should serve no further time in detention.  Sentencing him to the 148 days already served achieved that result.
50. [50]
    CROW J:  I agree with the conclusion of Mullins P and Bond JA, however I have a different view on some issues.
51. [51]
    In my view, the inclusion of the word “reasonably” into paragraph [16(b)] of Mullins P and Bond JA’s reasons (also 24(b) of R v IJ [2022] QCA 138) is unnecessary.  This may be seen by consideration of the text of ss 208 and 150(2)(e) of the Youth Justice Act 1992 (Qld) (‘the Act’).  Section 208 provides:

“208 Detention must be only appropriate sentence

A court may make a detention order against a child only if the court, after—

1. (a)
   considering all other available sentences; and

2. (b)
   taking into account the desirability of not holding a child in detention;

is satisfied that no other sentence is appropriate in the circumstances of the case.”

52. [52]
    The word “reasonable” or “reasonably” does not appear in s 208 but rather s 208 makes a distinction between available sentences and an appropriate sentence.  In my view a sentencing judge is required to determine whether a sentencing option in pt 7 of the Act is available or not.^[1]
53. [53]
    Section 150(2)(e) provides:

“150 Sentencing principles

[…]

3. (2)
   Special considerations are that—

[…]

5. (e)
   a detention order should be imposed only as a last resort and for the shortest appropriate period.”

54. [54]
    Section 150(1)(c) of the Act requires a court to have regard to special considerations stated in s 150(2).  Therefore, whilst the special consideration that a detention order should be imposed only as last resort and for the shortest appropriate period is not the only sentencing principle, it is an important sentencing principle that a court must have regard to.  Importantly, s 150(2)(e) recognises that there is a range of time frames which can be considered within the appropriate period.
55. [55]
    It seems to me if ss 150(2)(e) and 208 are read together, the result must be that if there are two (or more) available sentencing options and one of those options includes a detention order, then a sentencing court is obliged to not choose the detention order as it is the “last resort” of available sentencing options.  Accordingly, if a non-custodial sentencing option is available and reasonable or “reasonably available” then ss 150(2)(e) and 208 compel the imposition of the non-custodial option.  If guidance is required on the meaning of the word “available” then I agree with Mullins P and Bond JA at [19] above that “available” may be construed as “appropriate for consideration”.
56. [56]
    Section 208 demands that a judge sentencing a child state reasons as to why each non-custodial sentencing option which is available is not appropriate in the circumstances of the case.
57. [57]
    On appeal it was conceded by the Crown that there were other options reasonably available, in particular probation, or probation combined with a community service order.  The concession having been made in terms of paragraph 24(b) of IJ (and 16(b) of Mullins P and Bond JA’s reasons above) it was necessary for the sentencing judge to state reasons for rejecting the non-custodial options which were available.  I appreciate that the concession of other available sentencing options was not made to the sentencing judge but, regardless of the submissions before the sentencing judge, the Act requires a sentencing judge to determine all available sentencing options.  As Mullins P and Bond JA have demonstrated,^[2] the non-custodial options may be rejected for the same reasons.  It seems to me that R v SCU [2017] QCA 198, as explained by Mullins P and Bond JA,^[3] requires reasons to be stated for the rejection of each non-custodial sentencing option in youth justice matters, with the exception of “extreme” cases where the other options are not available.  Although it may be inferred that the sentencing judge did consider all other non-custodial options by his reference to the pre-sentence report (which sets out each of the options) and by his reference to annexure B of the report, it was necessary for the sentencing judge to state the reasoning process of rejecting those available non-custodial sentencing options.
58. [58]
    The mitigating features were clearly articulated by the sentencing judge.  They were the early pleas of guilty, the applicant’s lack of prior convictions, his young age at the time of the commencement of the offending (13 years 11 months), and his 59 days in pre-sentence custody.  These features, combined most importantly with his change in circumstances, that is his removal from Townsville to a remote place without any offending for several months after he was removed from Townsville, support the Crown’s concession that other options were available, which in turn required reasoning as to why each of those options were to be rejected in favour of detention.  In this regard, I agree with Mullins P and Bond JA that that specific error has been shown.
59. [59]
    In the present case, the Crown not only conceded that other non-custodial options were readily available to the sentencing judge but specifically submitted that the sentencing judge’s sentence was “a substantial sentence in the circumstances”^[4] and a “strong”^[5] sentence.
60. [60]
    Section 208 of the Act is a statutory directive which requires a sentencing court to presume that there is desirability of not holding a child in detention and requires a sentencing court to consider all available sentences other than detention and only to impose a detention if no other sentence is appropriate in the circumstances.
61. [61]
    A concession by the Crown on appeal that the primary judge had imposed a “strong” and “substantial” sentence in my view amounts to a concession that the sentencing judge did not sentence according to the sentencing principles as set out in s 150(1)(c) and (2)(e) of the Act.
62. [62]
    The pre-sentence report set out five sentencing options.  Option one, a restorative justice order, was not available as the applicant had indicated he was not willing to comply with a restorative justice order.  As to option two, a community service order, the court may have ordered the appellant to perform unpaid community service up to 100 hours as per s 200(4) of the Act.  Given the accused had spent 59 days in custody prior to the sentencing, a community service order was at least arguable, however, and solely because of the repetitiveness and seriousness of the offending with violence, it ought to have been properly rejected.
63. [63]
    As to options three and four, that is a probation order or a combined community service and probation order, these were at least “available” and therefore required reasoning, if these options were to be rejected.  The reasoning may have included the serious repetitive violent nature of the offending.
64. [64]
    In this present case, I do not join with the majority in considering that there was a powerful argument that the sentence imposed by the sentencing judge was manifestly excessive, despite the concessions by counsel for the Crown that it was a strong substantial sentence.  Rather, it seems to me that the sentence imposed was at the top end of the available range,^[6] which fell within the “shortest appropriate period” as referred to in s 150(2)(e).  The reference to “period” in s 150(2)(e) makes it plain that there is no one singular amount of time which must be correct given one set of factual circumstances, but rather, there is, in accordance with ordinary sentencing jurisprudence, a period which is open.  As, in my view, the 148 days’ detention already served was also within the “shortest appropriate period”, the appeal ought to be allowed.