R v YTZ; Ex parte Attorney-General
[2023] QCA 87
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- Unreported Judgment
- R v YTZ; Ex parte Attorney-General[2023] QCA 87
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R v YTZ; Ex parte Attorney-General[2023] QCA 87
R v YTZ; Ex parte Attorney-General[2023] QCA 87
SUPREME COURT OF QUEENSLAND
CITATION: | R v YTZ; Ex parte Attorney-General (Qld); R v YTZ [2023] QCA 87 |
PARTIES: | In CA No 116 of 2022: R v YTZ (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant) In CA No 132 of 2022: R v YTZ (applicant) |
FILE NO/S: | CA No 116 of 2022 CA No 132 of 2022 SC No 69 of 2022 |
DIVISION: | Court of Appeal |
PROCEEDING: | Sentence Appeal by Attorney-General (Qld) Sentence Application |
ORIGINATING COURT: | Supreme Court at Brisbane – R v YTZ [2022] QSCSR 106 (Burns J) |
DELIVERED ON: | 2 May 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 14 March 2023 |
JUDGES: | Mullins P, Gotterson AJA and Henry J |
ORDERS: | In CA No 116 of 2022:
In CA No 132 of 2022:
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent youth pleaded guilty to two counts of manslaughter and other offences – where the sentencing judge found that the conditions in s 176(3)(b) of the Youth Justice Act 1992 (Qld) were met which increased the maximum detention period for each offence of manslaughter from 10 years’ detention to life – where the respondent was sentenced to 10 years’ detention with an order that the respondent be released after 60 per cent of the sentence – where the Attorney-General appeals against the sentence for each manslaughter offence – where the respondent was 17 years old at the date of the offending and had an extensive criminal and traffic history including unlawful use of motor vehicles, burglaries and drug offending – where the respondent stole a car and drove at high speeds and dangerously whilst affected by alcohol and cannabis for 20 minutes – where the respondent drove through a red light, then collided with another vehicle and the respondent’s car rolled through the air, striking and instantly killing a man and a woman who was pregnant – whether the sentence was manifestly inadequate CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the respondent youth pleaded guilty to two counts of manslaughter and other offences – where the sentencing judge found that the conditions in s 176(3)(b) of the Youth Justice Act 1992 (Qld) were satisfied – where the respondent was sentenced to 10 years’ detention with an order that the respondent be released after 60 per cent of the sentence – where the respondent was 17 years old at the date of the offending and had an extensive criminal and traffic history – where the respondent submits that his subjective circumstances when he offended precluded a finding that the manslaughter offences were “particularly heinous” pursuant to s 176(3)(b)(ii) of the Act – where the respondent stole a car and drove at high speeds and dangerously whilst affected by alcohol and cannabis for 20 minutes – where the respondent drove through a red light, then collided with another vehicle and the respondent’s car rolled through the air, striking and instantly killing a man and a woman who was pregnant – whether the sentencing judge erred in finding that the manslaughter offences were particularly heinous pursuant to s 176(3)(b)(ii) of the Act Youth Justice Act 1992 (Qld), s 150, s 176 R v AS; Ex parte Attorney-General (Qld) [2004] QCA 259, cited R v Clark [2009] QCA 361, cited R v D [2000] 2 Qd R 659; [1999] QCA 231, cited R v Glenbar (2013) 240 A Crim R 22; [2013] QCA 353, cited R v Henderson; Ex parte Attorney-General (Qld) [2013] QCA 63, cited R v Maygar; ex parte A-G (Qld); R v WT; ex parte A-G (Qld) [2007] QCA 310, considered R v Pavey-Rees [2020] QCA 29, cited R v William (a pseudonym) [2020] QCA 174, considered |
COUNSEL: | C W Heaton KC, with S L Dennis, for the appellant/respondent R M O'Gorman KC, with A M Hoare, for the respondent/applicant |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant/respondent Cridland & Hua for the respondent/applicant |
- [1]THE COURT: The Attorney-General appeals against the sentence of 10 years’ detention imposed on the respondent for each of two counts of manslaughter (counts 4 and 5) with an order that the respondent be released after 60 per cent of the sentence. The respondent was also disqualified absolutely from holding or obtaining a driver’s licence. The ground for the appeal is that the sentence was manifestly inadequate in that it fails to reflect the seriousness of the offending, particularly given the finding of the learned sentencing judge pursuant to s 176(3)(b)(ii) of the Youth Justice Act 1992 (Qld) (the Act) that the offences of manslaughter were “particularly heinous in all of the circumstances”. The effect of the sentencing judge proceeding on the basis that the conditions in s 176(3)(b) of the Act were satisfied was that the maximum detention period that applied to each offence of manslaughter was life imprisonment.
- [2]The respondent has applied for leave to appeal against the sentences imposed for counts 4 and 5 on the grounds, firstly, that the sentencing judge erred in finding the offences were particularly heinous, secondly, that finding caused the sentencing discretion to miscarry and thereby rendered the sentence manifestly excessive and, lastly, that the sentence was manifestly excessive.
- [3]Even though these reasons deal with the two proceedings that were heard together, the same terminology to describe both parties (respectively the Attorney and the respondent) will be used irrespective of which proceeding is being referred to.
- [4]The respondent was 17 years and six months old when on 26 January 2021 he committed the eight offences which were the subject of the indictment in one continuous episode of offending. He was held in detention on remand from 26 January 2021. He pleaded guilty to the eight counts on 4 February 2022. The sentencing was adjourned to enable a presentence report to be prepared. He pleaded guilty to three related summary charges on 7 June 2022 when sentencing submissions were made by the prosecutor and the respondent’s counsel. The sentences were imposed on 8 June 2022.
- [5]Apart from the sentences for counts 4 and 5, the respondent was sentenced to three years’ detention for burglary and stealing (count 1), two years’ detention for unlawful use of a motor vehicle (count 2), two and one-half years’ detention for dangerous operation of a motor vehicle with circumstances of aggravation (count 3), two years’ detention for burglary and stealing (count 6), six months’ detention for unlawful entry of a motor vehicle (count 7) and six months’ detention for wilful damage (count 8). All periods of detention were to be served concurrently and convictions were recorded. The respondent was convicted and reprimanded in respect of each of the summary offences and convictions were not recorded.
Circumstances of the offences
- [6]The offending was summarised by the sentencing judge at the commencement of the sentencing remarks (R v YTZ [2022] QSCSR 106) as follows:
“The offences were component parts of one episode of offending that commenced shortly before 5 pm that day, and resulted about 20 minutes later, in the heart-rending death of an innocent young couple, Katherine Jane Leadbetter, aged 31, and Matthew Phillip Field, aged 37. They were engaged to be married and expecting the birth of their first child, a son, who would have been named Miles. Ms Leadbetter was 24 weeks in term.
By way of an overview, you stole a late model four wheel drive motor vehicle from a house in Cleveland and then drove it so dangerously over a sustained period of around 20 minutes, including driving at extreme speeds, colliding with another vehicle, driving more than once on the wrong side of the road after mounting the median strip, and weaving through traffic without any regard for the safety of anyone on or about the road, that something like the terrible tragedy which unfolded must be seen to have been an almost inevitable consequence.
As to that, you drove at speed, through a busy intersection, against a red light, and in the face of traffic moving laterally ahead of you, before colliding with the cabin of a truck. The car you were driving left the roadway, rolled through the air, and struck Ms Leadbetter and Mr Field. They died instantly. You then fled the scene, attempted to steal another car, but were apprehended nearby a short time later.”
- [7]Even though the Attorney’s appeal is only in respect of the sentences imposed for counts 4 and 5, the fact that those two offences were committed as the culmination of a protracted course of reckless and grossly negligent driving during which the respondent drove with complete disregard for the safety of other users of the roads (and his own safety) was an extremely aggravating circumstance of the offending.
The respondent’s antecedents
- [8]The respondent’s biological parents separated when he was one year old. From the time the respondent was two years old, his mother was in a relationship with a man who the respondent identified as his father figure.
- [9]The sentencing judge described the respondent’s upbringing as “marked by significant deprivation and neglect”. When he was nine years old, the Department of Child Safety took the respondent and his younger sister into temporary foster care for about 17 months when their mother was admitted for psychiatric treatment and their stepfather was in prison. At that stage the respondent had been self-harming, exposed to his mother’s and stepfather’s drug use, left unsupervised and unfed, exposed to domestic violence committed by the stepfather against the respondent’s mother and the respondent was physically abused by the stepfather. The respondent started drinking alcohol and consuming cannabis at 12 years of age, MDMA at 13 years and amphetamines at 14 years. The respondent was frequently absent from school, running away and living between friends’ houses or in parks. He spent time with other vulnerable, disconnected youths involved in drug use and engaged in crime to obtain drugs and food.
- [10]The respondent’s lawyers had obtained a comprehensive psychological assessment of the respondent from psychologist Dr Jacqui Yoxall whose report dated 23 May 2022 was before the sentencing judge. The sentencing judge accepted Dr Yoxall’s opinion that the respondent remained highly vulnerable suffering from symptoms consistent with a complex post-traumatic stress disorder arising from his childhood trauma, a substance misuse disorder currently in remission, and an adjustment disorder with mixed anxiety and depressed mood. The sentencing judge dealt with the respondent on the basis that he had suffered, and continued to suffer, from those conditions and that they were largely untreated.
- [11]The respondent’s criminal history commenced in the Childrens Court on 6 June 2019 for 107 offences. The first was a burglary and commit indictable offence committed on 1 December 2017 but the rest of the offending was committed between 20 May and 28 December 2018. It included multiple charges of unlawful use of motor vehicles, stealing and possessing dangerous drugs and a charge of dangerous operation of a vehicle committed on 22 October 2018 (which arose out of the theft of a motorcycle which the respondent crashed at speed). He was also dealt with for traffic matters that are in his traffic history for the same date of 6 June 2019. On all charges (including the traffic matters) no convictions were recorded and a probation order for a period of 12 months was imposed. It was apparent from the sentencing remarks of that date that illicit drug use contributed to his offending. Prior to being sentenced, the respondent had been held on remand in detention for 261 days of which 40 days were spent in the watchhouse.
- [12]The respondent’s next series of offending (which was committed within the same period that was subject of his sentencing on 6 June 2019) was dealt with in the Childrens Court of Queensland before his Honour Judge Dearden on 13 December 2019. He had pleaded guilty to an assault occasioning bodily harm and unlawful entry of vehicle for committing indictable offence at night in which he used/threatened violence whilst armed in company both of which were committed on 24 December 2018. He also pleaded guilty to six charges of supplying schedule 1 dangerous drugs between 24 June and 1 September 2018, a further four charges of supplying schedule 2 dangerous drugs between 17 August and 2 September 2018, and summary offences committed on 14 September 2018 related to the drug offending. For the offences committed on 24 December 2018, he was sentenced to detention for a period of nine months to be served by way of a conditional release order. For the drug and summary offences, he was sentenced to probation for a period of 12 months. No convictions were recorded.
- [13]The respondent returned to the Childrens Court on 20 December 2019 where he was sentenced for a series of offences committed between 16 July and 12 October 2019 (notwithstanding that he had been before the Childrens Court on 6 June 2019 and was subject to a probation order when he committed the offences), including three charges of enter premises and commit indictable offence, three charges of unlawful use of motor vehicles, aircraft or vessels and one charge of possess tainted property. No convictions were recorded and a restorative justice order was made. Similar offending committed between 10 September and 19 November 2019 which was properly regarded as being part of the same period of offending for which he had been dealt with on his previous appearance had the respondent back before the Childrens Court on 3 February 2020 when no convictions were recorded and he was reprimanded. A similar outcome resulted from a further appearance in the Childrens Court on 23 March 2020 for one charge of enter premises and commit indictable offence and four charges of fraud all committed on 21 October 2019. Another unlawful use of motor vehicles, aircraft or vessels committed on 31 October 2019, an unlawful possession of suspected stolen property committed on 7 June 2020 and one traffic matter of bicycle rider fail to wear helmet committed on 7 June 2020 were dealt with in the Childrens Court on 4 September 2020. On all charges and the traffic matter, a good behaviour bond for a period of five months was imposed and no convictions were recorded.
- [14]At the date of the subject offences, the respondent only held a learner’s permit and was on bail for summary traffic offences committed on 18 November 2020. His learner’s permit was suspended on 1 February 2021 when he was dealt with for the November 2020 traffic offences.
The sentencing remarks
- [15]The sentencing judge set out in detail the nature of each of the eight counts and the three summary charges. In relation to counts 4 and 5, the sentencing judge noted that Ms Leadbetter and Mr Field were out walking their dogs and were standing together on a footpath at the intersection of Finucane and Allenby Roads waiting for the lights to change to allow them to walk to the other side. The sentencing judge described what happened next:
“After the traffic lights on Finucane Road that you were driving towards, changed to red, and the pedestrian sign facing Ms Leadbetter and Mr Field turned green, they started to walk across the intersection with their dogs, while at the same time traffic that had been stopped to their right in obedience to the traffic lights, started to move off parallel with them. At the same time, you approached the intersection at considerable speed. You were faced with a red light, and traffic through the intersection and across your path. Undeterred, you drove through anyway, and at high speed. CCTV footage from the intersection establishes that you were travelling at between 83 and 97 kilometres per hour in a 70 kilometre per hour zone. Further, data from an electronic control unit installed in the car you had stolen was later analysed, and from that it was concluded that you were travelling at 102 kilometres per hour just five seconds before the crash, and 79 kilometres per hour when the impact occurred. Your brake lights were seen to illuminate just prior to the collision.
On entering the intersection, you narrowly missed one vehicle but collided with the cabin of a tow truck which was travelling behind that vehicle. The driver of the tow truck only saw your vehicle just before impact, and braked heavily, but it was too late to avoid a collision. The left side of your vehicle collided with the front of the cabin of the truck before leaving the roadway, rolling through the air across the median strip and then landing upright on the road. At the time of impact, the tow truck’s cabin had almost reached the median strip, and Ms Leadbetter and Mr Field were roughly parallel with that position. In other words, they had made it across the road to the median strip when they were struck by the vehicle you had stolen and were driving.
The tow truck was pushed across the road and impacted with the side of another vehicle containing a man, a woman, and a four year old child. They were taken to hospital but discharged later that day. Ms Leadbetter and Mr Field were killed instantly. They both suffered catastrophic injuries. Their unborn child was delivered stillborn during the autopsy of Ms Leadbetter.”
- [16]The sentencing judge noted that the respondent was adversely affected by the consumption of both alcohol and cannabis at the time he drove. Blood taken from the respondent two hours after his arrest resulted in the estimate that his blood alcohol concentration at the time of driving was between 0.151 per cent and 0.192 per cent. After setting out the respondent’s antecedents, the sentencing judge noted that the respondent had “an extensive criminal history along with a not insignificant traffic history” and that the criminal history did not commence until 2018, much of the offending in the criminal history was thought by the writer of the presentence report to mirror behaviour the respondent witnessed from a young age from his mother and stepfather and there was a period in 2020 when the respondent had obtained employment, was in a stable relationship and when he abstained from drugs for a significant period of time, he did not offend. (That accords with the criminal and traffic history that shows no offences were detected between 19 November 2019 and 7 June 2020 when on the latter date he was charged with minor offending but by 18 November 2020 he was driving without a licence with a blood alcohol concentration of 0.049 per cent.) The sentencing judge noted that it was when the respondent lost his employment that he relapsed by filling his time drinking alcohol, smoking cannabis and using methylamphetamine and he was in that state at the time he committed the subject offences.
- [17]Consistent with the presentence report, Dr Yoxall’s report and the reference provided by a senior detention youth worker, the sentencing judge recorded that the respondent had demonstrated an appropriate degree of insight into his offending along with “genuine remorse and shame”, he had taken steps in various ways towards his rehabilitation, including the completion of several courses of education and programs, and the respondent had engaged with the Mental Health Alcohol Tobacco and Other Drugs Service.
- [18]The sentencing judge expressed, as is the case, that no sentence that could be imposed on the respondent would ever seem adequate in the face of the loss of life and the irremediable grief and sorrow that the respondent had caused.
- [19]The sentencing judge then explained that the sentencing discretion had to be exercised within the framework of the Act and in accordance with the established principles that guide and inform the exercise of the discretion. That meant by reason of the respondent’s age when he committed the offences and at the date of sentence, that he must be treated and sentenced as a child but there was no sentence other than a detention order that was appropriate in the circumstances of the respondent’s offending.
- [20]The sentencing judge’s sentencing remarks then included the following. The prosecution’s case for counts 4 and 5 proceeded on the basis that the respondent abjectly failed in the performance of the duty prescribed by s 289 of the Criminal Code (Qld). This was a case of gross negligence that fell “within the worst category of such cases”. The prosecution did not allege that the respondent had a specific intent to cause death or grievous bodily harm. Prominence had to be given to the sentencing objective of community protection, the objective seriousness of the offending, the respondent’s criminal history and the impact of the offending on the families of the victims. Those factors had to be balanced with those that would give the respondent “an opportunity to develop in responsible, socially beneficial ways because of the belief that every child has the potential for an honourable and productive life”. Principles 8(b) and 16 of the sentencing principles under the Act required the Court to deal with the respondent as a child in a way that gives him “an opportunity to develop in responsible, beneficial, and socially acceptable ways” and in a way that allows him to be reintegrated into the community. The sentence must be structured, so as to lead eventually to the respondent’s successful reintegration into the community.
- [21]It was an issue on the sentencing of whether the counts of manslaughter were offences that met the description in s 176(3)(b) of the Act which would increase the maximum sentence from 10 years’ detention to life. It was not submitted by either counsel before the sentencing judge that the manslaughter counts did not involve the commission of violence against a person. The sentencing therefore proceeded on the basis that the first condition under s 176(3)(b)(i) was satisfied. In determining whether each manslaughter offence was “a particularly heinous offence having regard to all the circumstances”, the sentencing judge had regard to the objective seriousness of those offences and the subjective factors personal to the respondent which included that the offending did not involve any specific element of intent, the respondent’s prejudicial upbringing, the respondent’s intoxication through alcohol and cannabis and his youth. The circumstances of the two offences of manslaughter that involved a protracted period of extremely dangerous driving culminating in a grossly negligent final act and the consequences of that act resulted in the conclusion that the offences of manslaughter were particularly heinous within the meaning of s 176(3)(b)(ii) of the Act.
- [22]The sentencing judge applied the approach in R v Nagy [2004] 1 Qd R 63 and imposed a sentence on each of the manslaughter counts to reflect the respondent’s criminality across the indictment and the summary charges and to impose lesser concurrent periods of detention on each of the other counts on the indictment. After taking into account the factors personal to the respondent which were described at the respondent’s adverse upbringing and the conditions reported by Dr Yoxall, the sentencing judge fixed the appropriate global sentence as 10 years’ detention with a release order after serving 60 per cent of the period of detention. The special circumstances found by the sentencing judge to reduce the period to be served in detention from 70 per cent to 60 per cent were:
“In my view, special circumstances do arise in this case. They are constituted by your plea of guilty, your remorse and the steps taken towards your rehabilitation, combined with the conclusion that I have reached that a lengthier period of supervision in the community than contemplated under the Act is appropriate in this case to advance your rehabilitation and reintegration into the community. When all of those matters are taken in aggregation, in my view, they amount to special circumstances.”
The Attorney’s submissions
- [23]The Attorney does not assert any specific error in the sentencing but submits that the ultimate result for the sentencing of the manslaughter counts in the circumstances of the respondent’s offending warranted a period of detention of more than 10 years and up to 14 years to give the prominence to the protection of the community that the circumstances of the offending warranted. Although the written submissions on behalf of the Attorney submit that the circumstances were not such as to justify the reduction of the statutory minimum period of 70 per cent of the sentence, in oral submissions Mr Heaton of King’s Counsel (who appears with Ms Dennis of counsel) concedes that the Attorney could not assert that the selection of 60 per cent of the term to be served by the respondent was outside the proper exercise of the discretion conferred under s 227(2) of the Act. That is an appropriate concession.
- [24]The Attorney acknowledges that the sentencing of the respondent was governed by the provisions of the Act and the relevant sentencing principles set out in s 150 of the Act and the Charter of Youth Justice Principles set out in schedule 1 to the Act. The focus of the Attorney’s submissions on the appeal is on Principle 1 of schedule 1 that “The community should be protected from offences and, in particular, recidivist high-risk offenders”. While accepting that matters personal to the respondent remained relevant, the Attorney submits that general deterrence was also an important sentencing goal in respect of the respondent. The Attorney’s written submissions state:
“The prevalence of criminal offending involving acts of dangerous driving causing the death or serious injury of others and otherwise jeopardizing the safety of the general public at large, particularly by young persons, is well recognised. Community protection demands an appropriately deterrent sentence.”
- [25]It was emphasised in oral submissions that the respondent fell within “the cohort of offender” that it is necessary that the courts deter by the imposition of “strong sentencing responses”.
- [26]Mr Heaton went on to explain that the cohort to which he was referring was “young people who steal motor vehicles and drive dangerously with … disregard for their own safety or for the safety of other road users and members of the community” and it is “a common feature that those that fall within that cohort have a background that reflects those circumstances which are present here”.
- [27]Although the parties referred the sentencing judge to vehicular manslaughter sentences for adult offenders acknowledging the limitations that arise from the differing sentencing regime that applies to adult offenders, the Attorney does not seek to advance the appeal by reference to any comparable decisions but by advancing the submission that the sentence imposed on the respondent was manifestly inadequate because it “is plainly unreasonable in that it fails to properly reflect the seriousness of the offences, the consequence to the deceased and their families and the need for community protection, notwithstanding the respondent’s age and prejudiced background”. The Attorney submits that “the learned sentencing Judge gave too much weight to the matters personal to the respondent, his prospects of rehabilitation, and matters in mitigation and gave too little focus on the need to protect the community by the imposition of a significant penalty”.
- [28]The Attorney also relied on selected extracts from previous appellate decisions such as R v AS; Ex parte Attorney-General (Qld) [2004] QCA 259 at [26] where observations were made to the effect that certain crimes committed by children are “so grave” that ordinary principles of sentencing outweigh the youth justice principles.
- [29]Before the sentencing judge, the experienced prosecutor ultimately submitted that the sentence for each of counts 4 and 5 should be not less than 10 years’ detention but to reflect all the offending should approach 12 years’ detention. The Attorney acknowledges the departure on the appeal from the submissions advanced by the prosecution before the sentencing judge but submits that this is an exceptional case that justifies the Court acting on an argument advanced for the first time on appeal.
- [30]The Attorney seeks to uphold the sentencing judge’s finding that the offences of manslaughter were particularly heinous for the reasons given by the sentencing judge.
The respondent’s submissions
- [31]In relation to the application of s 176(3)(b) of the Act, the respondent’s submissions challenge only the finding that the offence was “particularly heinous”. Before the hearing of the application, the parties became aware of the sentencing in R v BXY [2023] QSC 42 in which the offender who was 14 years old, the driver of the car and affected by drugs had pleaded guilty to the unlawful killing of the male passenger with whom the offender had stolen the car. The offender then drove the car dangerously and it crashed killing that male passenger and causing grievous bodily harm to another three passengers. A finding was made in BXY that the offending in that case did not involve the commission of violence against a person within the meaning of s 176(3)(b)(i) of the Act.
- [32]The respondent does not, however, wish to rely on BXY, as the respondent concedes that the decision of the majority in Chandler v Director of Public Prosecutions (2000) 49 NSWLR 1 at [49]-[50] supports the satisfaction of the condition in s 176(3)(b)(i) of the Act in respect of the respondent’s offending.
- [33]The respondent relies on the underlying assumption of the Act that immaturity contributes to a child’s offending, as explained by Sofronoff P (with whom Fraser JA and Boddice J agreed) in R v Patrick (a pseudonym); Ex parte Attorney-General (2020) 3 QR 578 at [45]-[46].
- [34]The respondent accepts that the manslaughter offences were heinous but submits that as all vehicular manslaughter offences result in death, the tragic deaths of Ms Leadbetter and Mr Field are not circumstances which render counts 4 and 5 “particularly heinous” and there is nothing about the subjective factors affecting Mr YTZ at the time of the offences which renders the offences particularly heinous.
- [35]The respondent acknowledges that the primary judge correctly identified the subjective circumstances of the offences including the factors personal to the respondent in considering whether the manslaughter offences were particularly heinous. The oral submissions on behalf of the respondent treat as an additional favourable subjective factor that, since the offending, the respondent has demonstrated by his progress and attitude in detention that he has “an intrinsic ability within himself … when in an appropriately supportive and supervised situation to be able to rehabilitate himself”, relying on the consideration given in R v William (a pseudonym) [2020] QCA 174 at [31] to the revelation of the true character of the offender through his conduct after the offence. The respondent submits that after taking all the subjective factors in his favour (including this additional factor) into account, the conclusion that the offences were particularly heinous was not open.
- [36]Even though the grounds for the application for leave to appeal against sentence alleged manifest excess as a separate ground, the submissions of Ms O'Gorman of King’s Counsel, who appears with Mr Hoare of counsel for the respondent, seek a sentence of nine years’ detention for each of the manslaughter offences to reflect the overall criminality of the offending, if the Court were required to resentence on setting aside the finding that the offences were particularly heinous. In the absence of that finding being set aside, the respondent does not pursue an independent ground that the sentence was manifestly excessive.
- [37]The seriousness of the respondent’s offending was fully exposed before the sentencing judge which meant that this was not an exceptional case where the Attorney should be permitted to depart from the sentencing submissions made by the prosecution before the sentencing judge, unlike R v KU; Ex parte Attorney-General (No 2) [2011] 1 Qd R 439 at [108] and R v Henderson; Ex parte Attorney-General (Qld) [2013] QCA 63 at [51].
Was there error in the finding that the manslaughter offences were particularly heinous?
- [38]There was common ground between the parties as to the effect of the authorities on the meaning of “particularly heinous”. This Court in R v D [2000] 2 Qd R 659 at [8] stated that a particularly heinous offence “must be one that was particularly odious or reprehensible”. In R v Maygar; ex parte A‑G (Qld); R v WT; ex parte A-G (Qld) [2007] QCA 310, Keane JA in applying s 176(3) of the Act at [74] referred to whether events of the offending inspired a “sense of outrage” in respect of the youth’s conduct. Keane JA (with whom the other members of the Court agreed) then stated at [77]:
“It is necessary to focus upon the nature of the offence of which the child has been found guilty for the purpose of determining whether the period of detention of the child should be increased from a maximum of 10 years to life. The provision expressly brings into focus all the circumstances of the offence, not merely those which serve to render the child responsible for the murder and liable to punishment. Attention must be paid to all the circumstances of the murder of which the child has been found guilty in order to determine whether the period of the child’s detention should be increased from a maximum of 10 years to life.”
- [39]The approach of Keane JA was then applied by Sofronoff P (with whom the other members of the Court agreed) in William where there was further explanation at [24]-[27] of the significance of the description “particularly heinous” and how the subjective factors applying to the offender at the time of the offending were relevant as circumstances of the offence.
- [40]As required by Maygar and William, the sentencing judge expressly identified the subjective factors affecting the respondent that were taken into account in considering whether the respondent’s offending was particularly heinous (or particularly odious or reprehensible) in all the circumstances. The additional factor propounded now on behalf of the respondent of his intrinsic ability “within himself” to rehabilitate himself when supported and supervised is not a factor additional to the subjective factors identified by the sentencing judge. It was implicit in those subjective factors that that were it not for his prejudicial upbringing, post-traumatic stress disorder and his intoxication through alcohol and cannabis when he offended, he was not without prospects of rehabilitation.
- [41]The features of the offending that outweigh the subjective aspects of the respondent’s circumstances are aptly described as inspiring a sense of outrage in the community. The respondent stole a high powered four wheel drive vehicle whilst affected by alcohol and drugs and drove it at speed and in a reckless and negligent manner that justifiably caused alarm to many persons in the vicinity of the vehicle for a period of 20 minutes before the fatal crash. The killing of the victims of counts 4 and 5 was, as the sentencing judge described, a “grossly negligent final act” that was the culmination of “a protracted period of extremely dangerous driving”. The outrage follows from the senselessness and selfishness of the respondent’s reprehensible conduct in driving the stolen vehicle in an intoxicated state and in such an utterly reckless and negligent manner and the randomness of the outcome that innocent bystanders and their unborn child died as a result.
- [42]The respondent fails to show that his subjective circumstances when he offended precluded the finding that the offences were particularly heinous. There was no error in the sentencing judge’s conclusion that the offences of manslaughter were particularly heinous.
- [43]It is therefore unnecessary to consider the other grounds of the respondent’s application.
Was the sentence manifestly inadequate?
- [44]The Court in sentencing under the Act must apply the provisions of the Act. The Act requires the balancing of several sentencing objectives that pull in opposite directions: R v SCU [2017] QCA 198 at [150]-[153] per McMurdo JA (with whom Morrison JA agreed). The overall effect of the Attorney’s submissions is that the sentencing judge did not give sufficient weight to the objectives of sentencing of community protection, general deterrence and denunciation.
- [45]Sentencing the respondent in accordance with the principles established under the Act required the sentencing judge to consider, weigh up and balance all the objectives of sentencing relevant to the sentencing of the respondent. He was not being sentenced as a representative of a “cohort of offenders”. The respondent was sentenced for his particularly heinous offending but also having regard to his circumstances and history. The deterrent effect of the sentence follows from an appropriate and just punishment for the respondent in those circumstances. Community protection and denunciation arises from the imposition of a lengthy sentence of detention on the respondent in accordance with the Act and the facilitation of the respondent’s rehabilitation through the courses and programs available to him first whilst he was held in detention as a youth and then whilst in custody in the adult prison.
- [46]To the extent that any guidance could be taken from appellate decisions concerning sentences imposed on adults for offences of vehicular manslaughter, including R v Pavey-Rees [2020] QCA 29 and the authorities referred to in that decision at [11]-[16], they do not demonstrate that detention for 10 years for the respondent’s offending was manifestly inadequate. Those authorities included two cases, R v Clark [2009] QCA 361 and R v Glenbar (2013) 240 A Crim R 22, both of which involved the vehicular manslaughters of two people. A head sentence of 10 years’ imprisonment in Clark was reduced on appeal to nine years, mainly because of a lack of allowance below for the causal contribution of Clark’s bipolar disorder. Leave to appeal the head sentence of 10 years’ imprisonment in Glenbar was refused. That is the same length as the period of detention imposed under the Act here. There are inevitably differences between individual cases but Clark and Glenbar tell markedly against the claim of manifest inadequacy here.
- [47]Care must be taken in relying on selected statements about the prominence to be given to community protection and deterrence in other appellate decisions against sentences imposed under the Act, as each statement must be considered in the context of the facts of the offending and the basis for the appeal. For example, AS resulted in an increase of the head sentence from detention of three and one-half years to five years for the offence of manslaughter of a taxi driver. The quote relied on by the Attorney does not translate easily to the respondent’s matter when the respondent’s sentence was detention of 10 years.
- [48]The careful and comprehensive sentencing remarks reveal that the sentencing judge was fully cognisant of the seriousness of the respondent’s offending and sentenced the respondent for the manslaughter offences by reference to the maximum of detention for life. The Attorney has failed to show that this is an exceptional case which justifies a departure on appeal from the submissions made by the prosecutor before the sentencing judge as occurred in Henderson at [51] or that the sentence imposed on the respondent was “unreasonable and plainly unjust”.
Orders
- [49]The orders are:
In CA No 116 of 2022:
- Appeal dismissed.
In CA No 132 of 2022:
- Application for leave to appeal against sentence refused.