R v WBP[2022] QCA 9

SUPREME COURT OF QUEENSLAND

1. [1]
   McMURDO JA:  The reasons of Mullins JA accord with my own for joining in the making of the orders on 19 November 2021.
2. [2]
   MULLINS JA:  The appellant who pleaded guilty on 23 July 2021 was sentenced by the learned sentencing judge in the Childrens Court of Queensland on 10 September 2021 for one count of armed robbery in company committed on 3 May 2021.  She was sentenced to detention for 15 months with release after serving 70 per cent of that period.
3. [3]
   There were two grounds of appeal.  One was that the sentencing judge erred in the application of s 208 of the Youth Justice Act 1992 (Qld) (the Act) by failing to consider properly the suitability of a conditional release order and the other was that the sentence imposed was manifestly excessive.  It was not necessary to consider the latter ground of appeal, as it was apparent from the sentencing remarks that the sentencing judge had made a similar error to that which was the subject of the decision of this court in R v HCG [2021] QCA 200 and not considered properly the suitability of a conditional release order before imposing the sentence of detention.  At the conclusion of the hearing of the application, the court granted leave to appeal, allowed the appeal and substituted a sentence of detention for 12 months suspended immediately to enable the appellant to be released on a conditional release order to engage in a conditional release program for a period of three months.  These are my reasons for joining in the orders made by the Court.

The appellant’s antecedents

4. [4]
   The appellant was aged 17 years and two months when she committed the offence.  At the age of two years, the appellant’s birth parents allowed her to be culturally adopted by an older couple.  The cultural father passed away in 2017.  At the time the pre-sentence report was prepared for the purpose of the sentencing, the appellant was residing with her birth mother, but maintained a close relationship with her cultural mother and referred to both as “mum”.  The report noted that the appellant had been exposed to domestic violence in the households where she resided and within her own personal relationships and in recent years the appellant had been “quite transient” between the homes of the birth mother, her cultural mother and an aunt.
5. [5]
   The appellant stopped attending high school about a year prior to the sentence hearing.
6. [6]
   The appellant’s supervised history commenced on 13 December 2017 when a probation order for six months was imposed for two common assaults.  The pre-sentence report described the appellant as successfully completing that probation order by reporting on 13 of 27 occasions and being excused on a further six occasions.
7. [7]
   The appellant was sentenced in the Childrens Court of Queensland on 27 June 2019 by Morzone DCJ for a series of offences that were charged on four indictments.  A robbery in company with personal violence was committed on 8 September 2018 against a 16 year old complainant, when the appellant and others pushed her and a co-accused snatched her phone and, when the complainant refused to give the password, the co-accused punched her in the eye.  Another co-accused then went through the complainant’s handbag.  Later the same day, the appellant was in a group of eight girls and, when the complainant and her friend did not want to give over money, the appellant tried to take her bag and punched her in the eye before the complainant got away.  The next series of offences were committed on 10 September 2018 and involved the appellant and others trying to snatch a handbag as they rode past a complainant sitting outside a shopping centre.  The offences were attempted stealing, attempted robbery in company and an assault occasioning bodily harm.  The last in the series of offending was committed on 19 October 2018 when the appellant and others confronted a shopper in a shopping centre carpark and, when she said she had no money, either the appellant or a co-offender hit her head and snatched her wallet and phone while another co-offender stood by.  The appellant pleaded guilty to robbery in company with personal violence.
8. [8]
   At the time of the sentencing on 27 June 2019, the appellant had been in custody for 107 days.  For some of the charges, the appellant was sentenced to detention for 152 days to be released from custody after serving the period of 107 days that had already been served.  At the same time the appellant was also placed on a probation order for three years.  The sentencing discretion on 27 June 2019 was therefore constrained to an extent by the period the appellant had spent in pre-sentence custody.
9. [9]
   According to the appellant’s criminal history, she attended before a Magistrate constituting the Childrens Court on 28 June 2019 and it appears that all outstanding charges that could be dealt with summarily were disposed of on that date when the appellant was reprimanded and no conviction recorded.  There were offences associated with the offending committed on 8 September 2018, stealing charges committed on 4 and 14 May and 11 June 2019 and a wilful damage of police property committed on 11 September 2018.
10. [10]
    In respect of the probation order for three years, the pre-sentence report noted that the appellant had “largely maintained regular reporting for the duration of the Order” until the bail conditions for the subject offence required the appellant to report to a new caseworker in Gordonvale.  The report noted that the appellant refused to do so after the initial meeting and for six consecutive occasions from 22 June to 27 July 2021.  The explanation given at the sentencing was that the appellant did not have the same rapport with the caseworker as she did with the caseworker in Cairns.  The appellant received a verbal warning, but subsequently reported to the Cairns Youth Justice Service Centre on three occasions as directed.
11. [11]
    The appellant was before the Childrens Court on 24 July 2020 for stealing and common assault that were committed on 27 March 2020.  She was ordered to perform 80 hours of community service.  The appellant completed 34.5 hours of community service and was dealt with for non-compliance in the Childrens Court on 23 July 2021 where the breach was conceded, the community service order was discharged and the appellant was resentenced to a good behaviour order for four months.  The appellant committed an assault occasioning bodily harm on 14 October 2020 for which she was dealt with in the Childrens Court on 16 December 2020 when a restorative justice order was made, but the victim of the offence was unwilling to participate in the conference process.
12. [12]
    A letter was tendered at the sentencing from the appellant’s case manager at Youth Empowered Towards Independence (YETI).  The letter noted that the appellant had been engaged with YETI case management support since late 2020 and during the case manager’s time working with the appellant “she has expressed insight into her actions and recognises the impacts that her actions have had on other as well as herself”.
13. [13]
    After one day in custody for the subject offence, the appellant was released on bail and there was no offending whilst on bail which was a period of about four months.

The circumstances of the offence

14. [14]
    Before committing the offence, the appellant had been chroming with her co-offenders.  The appellant and two female co-offenders (who were also 17 years old) were collected by the complainant taxi driver in his taxi around 11.30 pm.  They directed him to an address.  Upon arrival, one co-offender got out of the vehicle, stood near the door holding a screwdriver and covered her face with black fabric.  The other co-offender pressed a sharp object against the complainant’s neck.  The co-offender and the appellant pulled their shirts up over their noses.  The offenders demanded money.  The appellant removed $150 from the complainant’s shirt pocket.  One co-offender demanded more money and the other co-offender made a stabbing motion towards the complainant.  The complainant produced a further $190 from his pocket.  One co-offender snatched the money from the complainant and ran away.  That co-offender also took the complainant’s mobile phone.  The appellant and the co-offenders ran from the area.  The offending was caught on CCTV.  It was the co-offenders that were armed.  The sentencing proceeded on the basis that the appellant did not have a weapon.
15. [15]
    Police located the appellant on 4 May 2021.  She participated in a record of interview and made full admissions to the offending.

The pre-sentence report

16. [16]
    The author of the pre-sentence report assessed the factors of childhood trauma, lack of regard for parental rules and boundaries, poor emotional regulation and impulse control, substance misuse and negative peer associations as factors that may have contributed to the appellant’s committing the subject offence.  The author of the report expanded on circumstances that resulted in the identification of these factors.  It was assessed that a lack of consistency in the care provided to the appellant as she moved between households made it difficult for the appellant to secure attachments to any parental figure and lack of consistent parental guidance resulted in the appellant’s anti-social decision-making and a lack of regard for others.  On the day of the offence it was the birthday of a co-offender and the appellant indicated the intention to steal was a group decision, but the author’s assessment was that the appellant had a need for belonging and connection with others and may have felt compelled to offend in order to impress the co-offender on her birthday and gain social acceptance from her peer group.
17. [17]
    The pre-sentence report set out the sentencing options and noted that the appellant was willing to comply with any supervised order imposed by the court, except for a community service order and that the appellant was willing to attend counselling in relation to the substance use and emotional regulation.
18. [18]
    The report noted that, if the sentencing judge deemed a detention order as the most appropriate sentence, consideration could be given to sentencing the appellant to a conditional release order.  The report then stated:

“Such an Order would reinforce the seriousness of [the appellant’s] offending whilst providing her with an opportunity to further develop pro-social skills, education and developing new positive social groups through structured activities.  The program will require [the appellant] to engage in the following components:

• Therapeutic interventions targeted towards offending behaviours, including participation in relevant developmental programs, such as cognitive skills and victim awareness and empathy, as important interventions for assisting [the appellant] to ascertain key developmental milestones correspondent to her age.
• Integrative programs to support [the appellant’s] positive involvement in her community and programs that challenge negative thought patterns which contribute towards offending behaviours.
• Continue to support [the appellant] to explore and undertake employment and educational opportunities.
• [The appellant] would also be required to work intensively with her Youth Justice Case Worker for the duration of the Order and engage in monthly reviews of the program.”

19. [19]
    The report noted that the conditions of a conditional release order and consequences of non-compliance had been explained to the appellant who indicated she was willing to comply with this type of order.  Pursuant to s 223 of the Act, the author of the report had assessed the appellant as suitable for a conditional release order.  A copy of the proposed conditional release order program was attached to the report.  Relevantly, having regard to the appellant’s no longer being at school, there was an option proposed for the appellant to engage in a program to explore vocational education and training options and to engage in employment readiness activities.

The error

20. [20]
    During the sentencing hearing, the sentencing judge had inquired of the officer in attendance from the department of Youth Justice as to the difference between the proposed conditional release order and the supervised release order that had applied to the appellant after being released from detention on 27 June 2019 and also the probation order and the assistance from the YETI program.  The officer informed the court that the difference was in the number of days that the appellant would be required to attend upon Youth Justice.  Under the supervised release order, the appellant would have reported once per week.  Whilst the appellant was subject to both the probation order and the community service order, she would have been required to attend one day for the probation order and one day for community service activities.  Under the conditional release order, the appellant would be required to report for a minimum of four days per week.  The same programs were offered through the conditional release program and the supervised release order and there was the option with the probation order to refer the appellant to other programs.
21. [21]
    During the sentencing remarks, the sentencing judge referred to s 208 of the Act and the sentencing principles that a non-custodial order is better than detention in promoting a child’s ability to reintegrate into the community, and the detention order should be imposed only as a last resort and for the shortest appropriate period.  The sentencing judge noted that the appellant had not previously been the subject of a conditional release order and the explanation given for sentencing the appellant to detention was as follows:

“This is serious, premeditated offending which warrants a sentence which not only is reflective of the need to rehabilitate you, but also considerations of deterrence and community denunciation. It is stated in the pre-sentence report that I could consider placing you on a conditional release order. The program is set out at attachment C of the pre-sentence report.

However, as [the officer] from the department has explained to me, this program is essentially the same program as you received on probation and that which was the subject of the supervised release order following the period of detention imposed by Judge Morzone. The difference is that pursuant to both the probation order and the supervised release order, you had to attend one day a week, whereas under the conditional release order, you will have to attend four days a week. The fact that you have returned to similar, serious, premeditated offending – notwithstanding the previous efforts, both pursuant to your probation order and pursuant to the counselling you have received at the Youth Empowered Towards Independence organisation – is such that I am satisfied that a conditional order would not serve the purposes of preventing reoffending and the development of you into a law-abiding adult.

I am satisfied that, notwithstanding the requirements of the Youth Justice Act – both pursuant to section 150 and section 208 – that it is necessary to impose a detention order.”

22. [22]
    McMurdo JA (with whom Morrison JA agreed) explained in R v SCU [2017] QCA 198 at [150]-[153] the balancing exercise that must be undertaken under the Act in the sentencing of a child with the emphasis on the rehabilitation of the child.  In sentencing a child for an offence, a court under s 150(1)(c) of the Act must have regard to the special considerations set out in s 150(2).  As McMurdo JA (with whom the other members of the court agreed) explained in HCG, by paragraph (b) of s 150(2), the court must accept that a non-custodial order is better than detention in promoting a child’s ability to reintegrate into the community and, by paragraph (c) of s 150(2), the court must accept that the rehabilitation of a child would be greatly assisted by opportunities to engage in educational programs and employment.
23. [23]
    In the appellant’s case, opportunities to engage in programs that would assist her in gaining employment as proposed in the conditional release program prepared for the appellant are particularly pertinent.  It was also relevant that a conditional release order had not been made previously in sentencing the appellant.  The conditional release program proposed for the appellant has more intensive requirements for the appellant to attend on the Youth Justice Service for four days each week rather than the one day each week required under the probation order that applied to the appellant before she was sentenced for the subject offence.
24. [24]
    The sentencing judge’s statement that a conditional release order would not serve the purposes of preventing reoffending and the development of the appellant into a law-abiding adult was inconsistent with an application of paragraphs (b) and (c) of s 150(2) of the Act.
25. [25]
    As the sentencing discretion miscarried by the sentencing judge’s error in applying the provisions of the Act, it was necessary to resentence the appellant.

Resentencing

26. [26]
    At the hearing of the application, the appellant’s instructions were confirmed that she was willing to participate in the proposed conditional release program and comply with the conditions of a conditional release order.
27. [27]
    As outlined above, there are advantages for the appellant’s rehabilitation in undertaking the more intensive program proposed under the conditional release order that was prepared to address the factors contributing to the appellant’s committing the subject offence.  Having regard to s 208 of the Act, I concluded that a detention order should not be imposed on the appellant without also imposing a conditional release order which would allow the appellant to be released immediately from custody for the purpose of participating in the conditional release program.
28. [28]
    It was necessary to determine the appropriate period of detention that should be imposed for the offence before making the conditional release order.
29. [29]
    The only comparable decision that was referred to the sentencing judge was R v TAO [2020] QCA 4 in which the only aspect that was the subject of the successful appeal was whether the recording of convictions made the sentence manifestly excessive.  TAO was 15 years old when she committed an assault occasioning bodily harm whilst in company and two offences of robbery in company with personal violence.  She was 16 years old when sentenced to a probation order for 18 months in respect of the assault and detention for a period of 18 months suspended immediately with the child being released on a conditional release order for three months in respect of each of the robberies.  There was no challenge to the period of the detention order.  The child was in company with two other females.  They confronted three complainants who were strangers.  The child assaulted one of the complainants.  The co-offenders assaulted the other two complainants.  The mobile phones of all complainants were taken without their consent.  The child had engaged in similar behaviour in the past for which she had been sentenced to detention with a conditional release order and probation for two years.  The offending had occurred in the context of the child living for extended periods on the streets and associating with other offenders, but she was in a more stable domestic situation by the time of her sentence.
30. [30]
    On the hearing of the application, the appellant also relied on R v HBV [2019] QCA 21.  HBV was 16 years old and successfully appealed against a sentence for one count of armed robbery with actual violence committed in company of detention for nine months with release after serving 50 per cent.  He successfully appealed and obtained an order for suspension of the detention order and that he be released immediately upon a conditional release order for a period of three months.  The child and two others formed a plan to steal from backpackers.  He was armed with a nunchaku and rode his bicycle near the complainant and demanded money.  A co-offender kicked the complainant in the back before punching him on the nose, the child also punched the complainant, and all three left without stealing anything.  The child had an extensive criminal history over a period of four years.
31. [31]
    The appellant had been sentenced to a detention order for about five months in 2019 for similar offending to the subject offence for which she served 107 days.  It was a concerning aspect of the subject offence that the appellant and her co-offenders had chosen a taxi driver who was vulnerable to being robbed.  In all the circumstances relevant to sentencing the appellant, I considered that a period of 12 months was the shortest appropriate period for the detention order that would be immediately suspended to facilitate the release of the appellant on the conditional release order for a period of three months.  Neither counsel who appeared on the hearing of the application sought to dissuade the court from selecting the period of 12 months for the detention order.
32. [32]
    BODDICE J:  I have had the advantage of reading the reasons of Mullins JA.  Those reasons accord with my reasons for joining in the making of the orders on 19 November 2021.