R v DCB[2023] QCA 73

SUPREME COURT OF QUEENSLAND

HENRY J:  The applicant seeks leave to appeal a sentence imposed upon her under the Youth Justice Act 1992 (Qld) on 24 May 2021, when she was 17 and a-half years old.  Her application was filed about half a month out of time, but she was given an extension of time back on 19 July 2021, a year and nine months ago.  There was evidently a prolonged delay in the applicant progressing her application to hearing.  She would have finished serving her sentence long ago.

The object of her proposed appeal is to persuade this Court to set aside the recording of convictions against her.  Her proposed grounds are:

3. 1.
   the sentence imposed was manifestly excessive by the recording of a conviction;

3. 2.
   the learned sentencing judge erred by failing to distinguish between the offences when considering whether conviction should be recorded;

3. 3.
   the learned sentencing judge erred in not giving proper consideration to a conditional release order.

For the following reasons, the applicant has no prospect of successfully appealing on any of those grounds and her application for leave do so should be refused.

Ground 1 is specifically founded on an argument that the recording of convictions rendered the sentence manifestly excessive.  The viability of such a ground cannot tentatively be considered without some contextual overview of the circumstances of the case.

The applicant pleaded guilty to an indictment charging her with six offences on 26 and 27 August 2020, namely, two counts of robbery in company with personal violence, two counts of attempted robbery in company and two counts of unlawful use of a motor vehicle.  She also pleaded guilty to a second indictment charging her with two offences committed on the morning of 6 January 2021, namely, robbery in company with personal violence and unlawful use of a motor vehicle to facilitate the commission of an indictable offence.  The various forms of robbery charges each attracted 18 months’ detention orders and the various forms of unlawful use of motor vehicle charge each attracted 12 month detention orders.  Convictions were recorded in respect of all offences and the applicant was ordered to be released after serving 50 per cent of her concurrent periods of detention.

The first set of offending occurred on 26 into 27 August 2020 when the applicant was 16 years and eight months old.  It involved consecutive offending, as the night progressed, against four separate victims.  The first victim, a nurse, parked her vehicle at 10 pm and started to walk towards the hospital where she worked.  She was approached by the applicant and a female co-offender and deflected their requests for money.  They blocked her way, demanding the keys to her car.  The co-offender grabbed for her keys and the applicant grabbed the strap of her handbag.  The complainant pulled away and started to flee.

The applicant chased and cornered her as a third offender, a male, approached.  The applicant shoved her in the chest and the male offender wrenched her bag away.  That fractured her little finger, leaving her unable to work for a month.  The complainant’s vehicle was taken and, within a few hours, was crashed and abandoned, covered in graffiti including, “Crime for life.  Don’t stop,” and “FTP,” meaning, “Fuck the police”.  It was a write-off and, over and above the insurer’s loss, the complainant’s loss included a $600 excess.

The second victim was driving home from work soon after midnight when a vehicle, which had earlier overtaken her, suddenly stopped in her path and a group of juveniles, including the applicant, alighted and formed a semi-circle in front of her car.  Two of them ran to either side of her vehicle, moving to open its doors, but she drove off on the wrong side of the road and fled the attempted carjacking.

The third victim was not so fortunate.  She was also driving and saw a vehicle following her closely.  She pulled into an apartment building driveway and the occupants of the following vehicle alighted and ran to her car, swearing and yelling at her to get out.  Two females, one of whom was the applicant, opened the front driver and passenger doors and repeatedly punched her head.  As she started to get out of the car, a male offender grabbed and thrusted her out.  They fled in her vehicle which was later found abandoned.

The fourth victim was driving on the same night when a vehicle started following her closely.  She deviated her route but the vehicle kept following.  Eventually, when she had to stop at a red light, the following vehicle, whose occupants included the applicant, sped around her and blocked her path.  A male alighted and tried to open her door but it was locked and the offenders fled.

The applicant was arrested later that day and remanded in custody before being released on 3 September 2020.  By this point, she had already accumulated a significant juvenile criminal history, including for two robberies, one very similar to the aforementioned robbery of the nurse, and multiple enter premises, stealing and unlawful use of motor vehicle offences.  A restorative justice order, a community service order, and multiple reprimands, good behaviour bonds and terms of probation had all failed to curb her recidivism.  She had spent five months in custody on remand before her previous robbery sentences.

She was on her third probation order at the time of her offending on 26 and 27 August 2020.  On 4 December 2020, she was placed on probation a fourth time for 11 offences committed between 27 June and 4 October 2020, including enter premises, unlawful use of motor vehicles and dangerous operation of a motor vehicle.

Then on 6 January 2021, when the then 17 year old applicant was on probation and on bail, she committed the offences in the second indictment.  On that date, the applicant was seen travelling into a shopping centre car park in a car stolen from a residence in a burglary the previous night.  Minutes later, a middle-aged lady walking through the car park was approached by the applicant and another female offender.  They grabbed at her handbag and a violent struggle ensued, even after the victim had fallen to the ground while struggling with them for possession of her handbag.  A male offender then entered the fray and ripped the bag from the victim.  The offenders fled with her handbag and its contents.  The applicant was arrested later that day and remained remanded in custody pending her sentence.

Pre-sentence reports before the sentencing Court outline the Indigenous applicant’s dysfunctional, disadvantaged, neglectful and traumatic upbringing.  The applicant’s mother was in jail at the time of sentence and her father’s whereabouts are unknown.  Her childhood trauma, prolonged lack of parental support, negative peer associations and substance misuse were all identified as contributing to her offending.  She displayed limited remorse for, or insight into, her offending and its impact upon her victims and was unwilling to participate in a restorative justice process.  Her perception she can utilise violence and intimidation to control others to achieve her desires was said to be normalised and entrenched.

The learned sentencing judge concluded the applicant’s appalling background and the factors which contributed to her offending constituted special circumstances, justifying a conclusion there were special circumstances so that, pursuant to s 227 of the Act, he would order her release from detention after serving 50 per cent rather than 70 per cent of the 18 months’ detention imposed.

It is not suggested the 18 months’ detention imposed was manifestly excessive, nor could it be given the inherent gravity of the offending and the applicant’s recidivism.  Those same considerations make the case a poor vehicle for the argument that the recording of convictions thereby render this sentence manifestly excessive.

The applicant by this point on the cusp of adulthood, had not previously had convictions recorded against her.  The learned sentencing judge was expressly conscious of the well-established starting principle that a sentencing Court should not record convictions against a child offender unless positively satisfied there is good reason for doing so – see, for example, R v DBU (2021) 7 QR 453.

In deciding to record convictions his Honour had regard, as required by s 184(1) of the Act, to all the circumstances of the case and the matters inclusively listed in s 184(1).  His Honour accepted the impact of recording a conviction would inevitably have adverse impacts upon the applicant’s employment prospects but nonetheless concluded convictions should be recorded in light of the serious nature of the offending, the applicant’s previous convictions, including for robbery, and her continued offending, including on probation and on bail.  Such a conclusion was reasonably open in the exercise of his Honour’s discretion and did not give rise to a sentence of such severity as to bespeak error.

Proposed ground 2 complains of specific error by failing to distinguish between offences when considering whether convictions should be recorded.  The submission is, in essence, that his Honour should have made such a distinction because some offences were less serious than others.  The submission assumes the correct approach when sentencing for multiple offences and having regard, as s 184(1)(a) requires, to “the nature of the offence” is to only have regard to the nature of each discrete offence in isolation.  This ignores that s 184(1) requires regard to be had to “all” the circumstances of the case.  If those circumstances involve courses of offending, as here, then regard should obviously be had to the overall nature of the offending as part of the circumstances of the case.  It is conceivable there may be cases in which there is so little connection between multiple offences, and such variability in their nature, as to warrant a distinction of the kind contended for.  But the circumstances of this case, involving the repeated pursuit of the offences of robbery and unlawful use a motor vehicle, did not warrant any such distinction.

Proposed ground 3 complains of a failure to give proper consideration to a conditional release order, which order is an option pursuant to s 220 of the Act in the event of a detention order.  The proposed content of a conditional release order, if one were to be made, was before his Honour and such an order had been urged in the submissions of the applicant’s counsel below.  His Honour’s ensuing reasons for sentence had express regard as to whether such an order should be made and expressly rejected such a course because of the offending having occurred despite the applicant being the subject of probation and, later, bail.  It cannot be said the rejection of such an option was not reasonably open to his Honour.

Ground 3, in substance, distils to a complaint his Honour did not speak at greater length in explaining his evident conclusion that a conditional release order was inappropriate in light of the past failure of supervisory orders to stem the applicant’s recidivism.  It is not a credible complaint.  Proper consideration of a sentencing option does not require verbose consideration.

The proposed grounds of appeal, having no prospect of succeeding, I would order application for leave to appeal sentence refused.

CROW J:  I agree.

BODDICE JA:  I agree.

The order of the Court is leave to appeal is refused.

Ms Goldie, you and Ms Feely and your instructing solicitors are thanked for undertaking this task on a pro bono basis.  It always helps the Court to have that assistance.