R v RSG[2023] QCA 70

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P: For the reasons given by Dalton JA, I joined in the Court’s order made on 14 April 2023 refusing the application for leave to appeal.
2. [2]
   BOND JA: For the reasons given by Dalton JA, I joined in the making of the Court’s orders on 14 April 2023.
3. [3]
   DALTON JA: This is an application for leave to appeal against a sentence which was imposed under the Youth Justice Act 1992 (Qld). At the hearing of this application the Court made orders refusing the application. I give my reasons for joining in that order.
4. [4]
   At age 15 the applicant was out with a group of friends. He carried a knife. His group of friends encountered another group of young men. That other group of young men did not know or have any interest in the applicant’s group of friends and in no way sought or provoked interaction with the applicant’s group of friends. The applicant’s group of friends began a fight with the second group of youths. The applicant pulled out his knife, which was concealed in his pants, and stabbed two of the youths in the other group. He killed one and did grievous bodily harm to the other. He struck only three blows; one to the back of the first youth, a moment later, one to the chest of the deceased youth, and then a moment after that, one to the chest of the first youth.
5. [5]
   Four members of the applicant’s group were listed to stand trial. At the beginning of the trial the applicant pled guilty to murder and to grievous bodily harm with intent. The applicant took no further part in the trial which continued. The killing, and the infliction of grievous bodily harm were caught on CCTV. At the conclusion of the trial the trial judge sentenced the applicant. She was in a very good position to understand the factual circumstances surrounding his offending.
6. [6]
   On the sentence she recorded her findings based on the CCTV and the evidence at the trial. She found that the applicant was enthusiastic about the prospect of at least watching a fight between the two groups of youths, and that the applicant had shown an interest in the other group of youths from the time they first arrived in proximity to the applicant’s group. The sentencing judge found that none of the applicant’s companions intended to do any serious harm to anyone in the other group of youths and that none of them expected the applicant to pull out his knife. His companions were looking for a fist fight “for something to do”. She found that the other group of youths had no interest in the applicant’s group, “They did not know you. They had aparty to go to. They could not understand why your group was bothering them, and they just wanted you to leave them alone.” The sentencing judge found that the applicant was “reaching for your knife before the first blow in the fight was struck”. She also found that when the applicant stabbed his two victims he was not scared and was not under any real threat: “My impression of the footage was that you were waiting for your moment to get engaged in the fight and your use of the knife had nothing to do with fear on your part. It was absolutely senseless violence.”
7. [7]
   The sentencing judge imposed a sentence of 10 years detention on the murder count. In the circumstances of this case, 10 years was the maximum penalty she was able to impose under the legislation (although this sentence took into account the criminality of the offending against the second victim). The sentencing judge imposed concurrent sentences of four years each on the two counts of malicious act with intent. She said, “I gave some thought to whether cumulative sentences were warranted in your case, but I have decided against them to reflect your age, your plea, your lack of criminal history, your emotional, mental health and other vulnerabilities and your lack of decent role models.”
8. [8]
   An appeal ground that the sentencing judge had not adequately taken into account the applicant’s plea was abandoned at the hearing of this application. There was no basis for it in the facts and circumstances of this case. That meant that the sole ground of appeal related not to the 10 year sentence of detention imposed, but was that the sentencing judge ought not to have imposed a requirement that the applicant serve 70per cent of the sentence in detention.
9. [9]
   Section 227 of the Youth Justice Act provides:

“227Release of a child after service of period of detention

3. (1)
   Unless a a court makes an order under subsection (2), a child sentenced to serve a period of detention must be released from detention after serving 70% of the period of detention.

3. (2)
   A court may order a child to be released from detention after serving 50% or more, and less than 70%, of a period of detention if it considers that there are special circumstances, for example to ensure parity of sentence with that imposed on a person involved in the same or related offence.”

10. [10]
    It was argued that there were special circumstances in this case which must have caused the sentencing judge to exercise her discretion to reduce the time spent in detention to 50 per cent of the sentence imposed. This is a difficult argument to make. In R v KAL^[1] President McMurdo said:

“… The discretion given to sentencing judges under s 227(2) is wide. The fact that one judge in one case finds a circumstance or combination of circumstances to amount to special circumstances under s 227(2) does not necessarily bind another judge in another case. The judicial exercise of the s 227(2) discretion according to law will inevitably turn on the unique combination of circumstances pertaining in each individual case: see R v S. …”

11. [11]
    Given the wide discretion allowed by s 227(2) of the Youth Justice Act, the applicant must show that it was not within the sound exercise of that discretion to conclude that there were no special circumstances in this case. The applicant has not discharged this onus. The applicant’s counsel relied upon the fact that the applicant had turned himself in (but only after footage of the offending was released on social media) and that he pled guilty to a very serious charge, murder. The plea was in the context where there was CCTV footage of the offending and it was entered, not early, but at the beginning of the trial. The applicant had a prejudicial background, as do many offenders, and many young offenders, before the courts. The applicant had no criminal history, which is not an unusual circumstance when the offender is a 15year old child. It was submitted that the applicant demonstrated insight into his offending, genuine remorse, and real prospects of rehabilitation. It does not seem to me that the sentencing judge accepted those matters in an unqualified way, nor from the material before her was she bound to do so.
12. [12]
    It seems to me that the applicant has not demonstrated that the sentencing judge erred in not finding special circumstances within the meaning of s 227(2) of the Youth Justice Act and (separately) exercising her discretion to reduce the amount of time which this offender must spend in custody.