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R v WBR[2022] QCA 62

SUPREME COURT OF QUEENSLAND

CITATION:

R v WBR [2022] QCA 62

PARTIES:

R

v

WBR

(applicant)

FILE NO/S:

CA No 129 of 2020

DC No 110 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maryborough – Date of Sentence: 5 June 2020 (Richards DCJ)

DELIVERED ON:

29 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

22 October 2021; Further written submissions received 15 March 2022 and 21 March 2022

JUDGES:

Fraser and Morrison and McMurdo JJA

ORDERS:

  1. Grant leave to appeal.
  2. Allow the appeal.
  3. Vary the sentence imposed on 5 June 2020 by deleting the order for a parole eligibility date and ordering that the applicant be released from detention forthwith.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was found guilty of one count of rape which the applicant committed on 28 July 2017, when he was aged 17 years and nine months – where the indictment was not presented until 7 March 2019 and the undue delay in bringing the indictment was the fault of the prosecution – where the applicant was sentenced on 5 June 2020, when he was 20 years of age – where the applicant was sentenced as an adult – where Part 6 Division 11 of the Youth Justice Act 1992 (Qld) provides for the sentencing of an adult for an offence committed as a child – where the applicant’s offence was a “child offence” within the meaning of s 132 of the Youth Justice Act 1992 (Qld) – whether the applicant should have been sentenced as a child or as an adult – whether the exercise of the sentencing discretion miscarried

Youth Justice Act 1992 (Qld)

R v Knight [1997] QCA 55, considered

COUNSEL:

K V Juhasz for the applicant

E L Kelso for the respondent

SOLICITORS:

Guest Lawyers for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    FRASER JA:  I agree with the reasons for judgment of McMurdo JA and the orders proposed by his Honour.
  2. [2]
    MORRISON JA:  I have had the advantage of reading the reasons for judgment of McMurdo JA.  I agree with those reasons and with the orders proposed by his Honour.
  3. [3]
    McMURDO JA:  After a trial, the applicant was found guilty by the judge of one count of rape, which the applicant committed when he was aged 17 years and nine months.  The complainant was a 16 year old girl who had been homeless before being taken into the applicant’s family home.  The applicant committed this offence on the very day that he had been sentenced and then released from custody for a number of other offences.
  1. [4]
    There was a delay in the matter commencing and proceeding to trial.  The offence occurred on 28 July 2017 and the indictment was not presented until 7 March 2019.  By the time he was sentenced, on 5 June 2020, the applicant was 20 years of age.
  2. [5]
    He was sentenced to three years’ imprisonment with a parole eligibility date set at 5 November 2021.  It appears that the judge intended that he be eligible for parole at the half way mark of his sentence, which would have resulted in the eligibility date being 5 December 2021.  Nevertheless, her Honour fixed the earlier date.
  3. [6]
    He appealed against his conviction and applied for leave to appeal against his sentence.  He did not pursue the conviction appeal.
  4. [7]
    At the hearing in this Court, there was no challenge to the head sentence.  The effect of the submissions for the applicant was that he should be released by an order for the partial suspension of the sentence.  It was submitted that this would ensure that the sentence, as far as possible, corresponded with that which he would have received had he been sentenced as a child.  We were addressed as to the effect to be given to sub-sections (2) and (3) of s 144 of the Youth Justice Act 1992 (Qld).
  5. [8]
    Subsequent to the hearing, the Court requested and received submissions on a further question, namely whether the applicant should have been treated as a child for the purposes of this proceeding, rather than as an adult.
  6. [9]
    Part 6 Division 11 of the Youth Justice Act provides for the sentencing of an adult for an offence committed as a child.  The relevant provisions within this division are as follows.
  7. [10]
    Section 134 provides that subject to this division, the offender must be treated as a child for the purposes of the Act in relation to a “child offence” committed by the offender.  A child offence is defined by s 132 to mean an offence committed by a child.
  8. [11]
    Section 140 relevantly provides as follows:

140 When offender must be treated as an adult

  1. (1)
    If 1 year has passed after an offender has become an adult—
  1. (a)
    a proceeding afterwards started against the offender for a child offence must be taken as if the offender were an adult at the time of the commission of the child offence; and
  1. (b)
    if found guilty in the proceeding—the offender must be sentenced as an adult.
  1. (2)
    If—
  1. (a)
    a proceeding has started against an offender for a child offence in the way provided in this Act for a child; but
  1. (b)
    the proceeding has not been completed to a finding of guilty or not guilty by the time 1 year has passed after the offender becomes an adult;

then—

  1. (c)
    the proceeding must be finished in the way provided in this Act for a child; but
  1. (d)
    if found guilty—the offender must be sentenced as an adult.

  1. (4)
    An offender must not be treated as an adult under this section if the court is satisfied that there was undue delay on the part of the prosecution in starting or completing the proceeding.”
  1. [12]
    Subject to s 140(4), this case was within s 140(1).  A year had passed after the applicant had become an adult before this proceeding was started against him.  According to s 140(1) the proceeding had to be taken as if the offender was an adult at the time of the commission of the offence, and upon being found guilty, he had to be sentenced as an adult.
  2. [13]
    However that was subject to s 140(4).  The judge was told at the commencement of the trial that there had been an undue delay on the part of the prosecution.  The judge asked counsel “Why is this in the Childrens Court?”[1]  Defence counsel responded: “Because if he had been charged promptly, it would have… proceeded in the Childrens Court, but, because there was a delay purely on the fault of the prosecution, as I understand it, the prosecution have conceded that it should proceed in the Childrens Court”.  The prosecutor agreed.  As the submissions in this Court agree, s 140(4) was engaged.[2]
  3. [14]
    Section 141 of the Act provides as follows:

141 When offender may be treated as an adult

  1. (1)
    This section applies if—
  1. (a)
    a proceeding has started against an offender for a child offence in the way provided in this Act for a child (the childhood proceeding); and
  1. (b)
    by the time 1 year has passed after the offender becomes an adult—
  1. (i)
    the childhood proceeding has not been completed to a finding of guilty or not guilty; and
  1. (ii)
    the offender, for another offence—
  1. (A)
    is proceeded against as an adult; or
  1. (B)
    has been sentenced as an adult.
  1. (2)
    The court hearing the childhood proceeding may decide to continue the proceeding as if the offender were an adult when the child offence was committed.
  1. (3)
    For subsection (2), the Childrens Court may continue the proceeding in its concurrent jurisdiction.
  1. (4)
    If the offender is found guilty, the offender must be sentenced as an adult.
  1. (5)
    This section applies despite section 140(2).”
  1. [15]
    In the respondent’s submission, this was a case within s 141(1), and the judge should be understood to have decided to continue the proceeding, according to s 141(2), as if the applicant had been an adult when the offence was committed.
  2. [16]
    The applicant submits that s 141 was not engaged because of the operation of s 140(4).
  3. [17]
    In my opinion, s 141 was not engaged, although for a different reason.  Sections 140 and 141, of course, must be read together.  In s 140(1) and s 140(2) there is a distinction according to whether the proceeding is commenced only after the offender’s 19th birthday, or has been started before but not completed until after that day.  In the latter case, the case must proceed to a determination of guilt or otherwise in the way provided in the Act for a child, but the offender must be sentenced as an adult.
  4. [18]
    The text of s 141(1)(a) and (b)(i) corresponds with the text of s 140(2)(a) and (b).  In a case under s 141, however, the Court may decide to finish the proceeding in the way provided for an adult.  The Court is given that power where there is the additional circumstance that the offender, for another offence, has been proceeded against as an adult or has been sentenced as an adult.  That circumstance existed in the present case.  But it does not follow that s 141 was engaged.
  5. [19]
    The text of s 141 is unambiguous in confining its operation to a proceeding which is started before the offender turns 19 years of age.  It applies only when, on that day, “the childhood proceeding has not been completed to a finding of guilty or not guilty”.  Section 141 then displaces the operation of s 140(2) where there is the additional circumstance that the offender, for another offence, is proceeded against as an adult or has been sentenced as an adult.
  6. [20]
    In this matter, this proceeding did not start until after the applicant’s 19th birthday.  This case was not within s 141.
  7. [21]
    The respondent’s argument seeks support from this Court’s judgment in R v Knight.[3]  That was a judgment which considered the relevantly identical provisions of what were then s 105 and s 106 of the Juvenile Justice Act 1992 (Qld), as this Act was then named.  The circumstances there were different in that the proceeding was commenced before the date which was one year after the offender became an adult.  (Further, there was not the circumstance that the offender, for another offence, had been proceeded against as an adult or sentenced as an adult).  Consequently, the Court reasoned, the case was within the equivalent of the present s 140(2).  Unlike the present case, the Court held that there had been no undue delay on the part of the prosecution in starting or completing the proceeding.  Consequently that offender had been correctly sentenced as an adult.  The Court did observe that “The notion of artificially treating an older … person as a child for the purpose of sentencing is fraught with problems that are bound to increase as that person grows older”.  And to that Court, these provisions seemed to be “a clumsy method of promoting expedition on the part of the prosecution”.  If all of that is accepted, however, there is still no basis for departing from the unambiguous text of these provisions.
  8. [22]
    Section 144 governs the sentencing of an offender as an adult under s 140, s 141 or s 143.  It is unnecessary to discuss s 143 of the Act.  As I have explained, neither s 140(1)-(2) nor s 141 applied.
  9. [23]
    Consequently, s 134 required the applicant to be treated as a child in relation to this offence.  Clearly, her Honour was not asked to do so and she did not do so.  The exercise of the sentencing discretion thereby miscarried and it is for this Court to re-sentence the applicant.
  10. [24]
    The important consequence for the applicant being sentenced as a child is that if he was to be detained, he was to be detained until he had served 70 per cent of his term, or a shorter period (no less than 50 per cent of his term) according to whether there were special circumstances.[4]  Sentenced as an adult, he could not have been given a parole release date because this was a sexual offence in the terms of s 160D of the Penalties and Sentences Act 1992 (Qld).
  11. [25]
    The applicant’s counsel does not challenge the three year term.  It is unnecessary to set out all of the facts and circumstances from which, in my view, that term was appropriate.  The respondent’s counsel concedes that there are special circumstances in this case which justify an earlier release date than at 70 per cent of the term.  In particular, it is submitted that the applicant’s rehabilitation will be better served with a relatively longer period of supervision and assistance.  There is also the consideration that the sentencing judge saw fit to allow for his release at the half way mark of the term.  Having regard to those circumstances, he should be released now.
  12. [26]
    I would order as follows:
  1. Grant leave to appeal.
  2. Allow the appeal.
  3. Vary the sentence imposed on 5 June 2020 by deleting the order for a parole eligibility date and ordering that the applicant be released from detention forthwith.

Footnotes

[1]ARB Vol 2, page 68.

[2]Applicant’s supplementary submissions, paragraph 3; respondent’s supplementary submissions, paragraph 2.6.

[3][1997] QCA 55.

[4]Youth Justice Act 1992 (Qld), s 227.

Close

Editorial Notes

  • Published Case Name:

    R v WBR

  • Shortened Case Name:

    R v WBR

  • MNC:

    [2022] QCA 62

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Morrison JA, McMurdo JA

  • Date:

    29 Apr 2022

  • Selected for Reporting:

    Editor's Note

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC110/19 (No citation)05 Jun 2020Sentenced for one count of rape to 3 years’ imprisonment with parole eligibility date intended to be fixed at halfway mark but in fact fixed slightly earlier; offender 17yo at time of offence, proceedings commenced after 19th birthday, 20yo at sentence; undue delay on part of prosecution in starting or completing proceeding; offender proceeded against or sentenced as adult for another offence; sentencing judge not asked to sentence offender as child and did not do so (Richards DCJ).
Appeal Determined (QCA)[2022] QCA 6229 Apr 2022Application for leave to appeal against sentence granted, appeal allowed, sentence varied; exercise of sentencing discretion miscarried; as neither Youth Justice Act 1992 (Qld) ss 140 or 141 applied, s 134 required offender to be sentenced as a child; upon resentencing, offender did not challenge length of term, Crown conceded existence of special circumstances justifying release earlier than 70%, offender released forthwith: McMurdo JA (with whom Fraser and Morrison JJA agreed).

Appeal Status

Appeal Determined (QCA)

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