R v HCN[2023] QCA 97

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  This was an application for leave to appeal against a sentence imposed under the Youth Justice Act 1992 (Qld).  It was said to be manifestly excessive.  The application was refused when it was heard.  These are my reasons for joining in that order.
2. [2]
   The applicant was convicted of six offences: stealing, four counts of common assault, and robbery in company with violence.  The offences were committed between 4 December 2021 and 2 February 2022 when the applicant was 14 years old.  She turned 15 in April 2022.  The sentencing judge imposed a restorative justice order on one count of common assault, because the victim of that assault indicated in court that he would be prepared to meet with the applicant as part of that process, and the sentencing judge recognised that there would be value in the applicant meeting with the complainant and apologising to him.  On each other count of common assault the sentencing judge imposed a sentence of two years probation.  On the count of stealing she imposed a sentence of six months probation.  On the charge of robbery in company with violence she imposed a sentence of three years probation.  All the sentences were concurrent.  No convictions were recorded.
3. [3]
   The sentencing with which we were concerned occurred on 16 August 2022.  Shortly before that, on 9 June and 14 June 2022, the applicant had attended before the courts for sentencing on other offending.  On 9 June 2022 she was sentenced to four months probation with no conviction recorded for 14 predominantly property offences, which she had committed between 26 August 2021 and 16 April 2022.  On 14 June 2022 she was sentenced for unlawful use of a motor vehicle on 20 March 2022.  She was reprimanded and no conviction was recorded.  This sequence of court appearances meant that, while it was true to say that at the time of the offending with which this Court was concerned the applicant had no criminal history; by the time she was sentenced she did have two pages of history resulting from the two June sentences described above.  Some of those offences predated the offences which were the subject of this application, but only by a few months.
4. [4]
   The other result of the sequence of sentencing just described was that at the time of this sentencing the applicant was on probation, which probation order had two months to run, so that the sentences imposed by the sentencing judge in this case overlapped with those existing orders; in total the applicant will serve three years and two months probation.
5. [5]
   The applicant wished to argue on appeal that the sentence of three years for robbery in company with actual violence was manifestly excessive.  I cannot see that it was.  The offending which was dealt with below was very serious.  Count 1 involved stealing food and tampons from Coles Express.  The applicant was in the company of two other juveniles.  They took what they wanted and left the shop without making any effort to pay.  The applicant refused to participate in a police interview.
6. [6]
   The first two common assaults occurred that same day.  The complainants were a married couple.  The applicant was with a group of between 10 and 15 youths who boarded a bus at the South Bank bus stop at around midnight.  The bus stopped outside the Mansfield Tavern, and the driver idled for a short time at the stop.  One of the youths abused the driver and moved to approach him.  One of the complainants, the husband, told that youth to calm down.  The driver asked the group to leave the bus; they refused.  Some members of the group assaulted another passenger on the bus.  After that three girls, including the applicant, approached the second complainant, the wife.  One said, “What are you staring at?”  Another of the girls attempted to take the wife’s phone from her.  Her husband intervened, trying to move the girl away from his wife.  The applicant hit the husband in the back of the head twice.  At that point a number of the male youths approached the husband and assaulted him.  The applicant watched that assault by the male youths, and then walked forward to the wife and struck her in the head.  Another girl joined in and delivered more punches to the wife’s head.  The husband tried to protect his wife, but a girl (not the applicant) continued to punch his wife in the head seven to 10 times.  The wife made a victim impact statement in which she said she was scared for her life during the attack, and had thoughts that her children would be orphaned as both she and her husband would be killed.
7. [7]
   The other two common assaults took place at a bus station at about 9.30 pm at night on 30 January 2022.  A 15 and 16-year-old girl were waiting for an elevator at the bus platform.  The applicant and another girl walked up to them and asked, “What do you want?”  The complainants turned and walked away.  The applicant’s companion punched one girl to the back of her head and the applicant joined in the assault, hitting the second complainant to the left shoulder.  That girl crouched down and covered her head with her arms but the applicant continued to hit and kick her while she crouched on the ground.  The applicant’s companion continued to assault the first complainant.
8. [8]
   The robbery in company had taken place 10 days earlier.  At 11.30 pm the 19-year-old complainant had walked to Coles through a bus station.  She had noticed a group of youths at the bus station but did not pay much attention to them.  Having bought her groceries, she walked home through the bus station.  As she left the bus station, the applicant and another girl approached her, one in front of her and one behind.  The applicant’s companion punched the complainant to the right eye, then the applicant struck her from behind which caused her to fall to the ground.  Both girls continued to strike the complainant while she was on the ground, including punching and kicking her.  One of them stomped on the complainant’s face.  Repeated demands were made for the complainant’s phone.  A passerby intervened and the applicant and her companion ran away.  They took confectionery and an AirPod.
9. [9]
   Fortunately all the complainants to the offences of violence suffered only minor physical sequelae.  However, all of them suffered emotional or psychological sequelae which outlasted their physical injuries.
10. [10]
    In support of the submission that the sentence below was manifestly excessive, it was pointed out that three years probation is the longest period of probation which can be imposed under the Youth Justice Act.  That may be so, but it is not the most severe sentence which can be imposed for that offending under that Act; detention is.  There was no substance in the submission made below that the applicant’s offending was not in the worst category of cases of robbery in company with violence and that, therefore, the maximum amount of probation could not be imposed.  It may be accepted that the robbery in company with violence was not in the worst category of cases, but the worst category of cases would be punished by detention, not probation.
11. [11]
    Further, I cannot see that imposing a restorative justice order on count 2, in combination with a probation order, was in any way unduly burdensome to the applicant.  Nor can I see that, because the probation imposed for this offending will cumulate with the earlier probation order made on 9 June, the sentence is manifestly excessive.
12. [12]
    The applicant relied upon R v RAO & BCR & BCS; Ex parte Attorney-General (Qld)^[1] and R v B^[2] as cases said to demonstrate the manifest excess of the sentence below.  These cases do not demonstrate that the sentence imposed below was manifestly excessive.
13. [13]
    The first of the cases concerned three children who were aged 16 and 15 at the time of their offending.  That is, they were older than the applicant.  The two 16-year-olds were convicted on three counts of armed robbery in company along with one count of unlawful use of a motor vehicle.  One of them was additionally convicted of dangerous operation of a motor vehicle; the other was additionally convicted of one count of entering premises and stealing.  The 15-year-old was convicted of four counts of armed robbery; one of taking petrol without paying, one of receiving a stolen mobile phone and one count of using a motor vehicle to facilitate the commission of an indictable offence.  None of the children had criminal history.  The most comparable offences to the offending this Court is dealing with, were the armed robbery in company offences.  The three youths acted in concert; one driving the car while the other two, armed with a small axe, knives and a baton, robbed passersby, demanding money and phones.  Despite their carrying weapons, there was no actual violence.  One of the 16-year-olds was sentenced to 18 months probation and disqualified from holding a driver’s licence for a period of six months.  The other two offenders were both sentenced to two years probation and 40 hours of community service each.  Convictions were recorded against none of them.
14. [14]
    The Attorney-General appealed on the grounds of manifest inadequacy.  The Court of Appeal noted firstly that in order to “trigger the jurisdiction to re-sentence conferred on this Court by s 669A(1), the Attorney-General must demonstrate that the sentence under appeal is affected by legal error” – [26].  The Attorney relied upon House v The King.^[3]  The Attorney-General contended that the sentences were manifestly inadequate because the sentencing judge in that case failed to impose a period of detention, and failed to record convictions.  The Attorney had to acknowledge that the Youth Justice Act requires a detention order be imposed only as a last resort, and then only for the shortest appropriate period – s 150(2)(e).  Further, that the case law provided that prima facie a conviction was not to be recorded against a child in sentencing under the Youth Justice Act – ss 183 and 184 of that Act and R v TX.^[4]
15. [15]
    Against this legislative and case law background, the Court of Appeal refused to interfere with the sentence below.  However, the judgment in the Court of Appeal included the following paragraph:

“The respondents’ offending deserved the condemnatory epithets attributed to it by the learned sentencing judge. For BCR and BCS, it would have been open to her Honour to have reflected the seriousness of their offending somewhat more severely. She could have recorded convictions. She could have imposed a period of detention subject to immediate release under conditional release orders as had been canvassed as an option in their pre-sentence reports. However, the fact that she did not choose those options is a manifestation of leniency in sentencing. It is not a demonstration that the sentences of probation for substantial periods without conviction that she did impose are manifestly inadequate.” – [43].

16. [16]
    Because R v RAO & BCR & BCS was an Attorney’s appeal, and because it is a case where this Court refused to interfere, the case is not of great value in assessing whether another sentence imposed in another case is manifestly excessive.  It also lacks value as a comparator on this application because in this case the applicant used actual violence, of a serious type, whereas there was no actual violence in R v RAO & BCR & BCS.  Comparison with that case does not demonstrate that the sentence imposed in this case was manifestly excessive.
17. [17]
    In R v RAO & BCR & BCS the Court of Appeal discussed six other comparable cases.  One of them, R v WAN^[5], is worth noting, although it was not relied upon by the applicant.  In that case the Court of Appeal set aside a sentence of three years detention on a count of burglary with wilful damage and instead imposed a sentence of two years detention with release after serving 50 per cent.  However, a sentence of two years detention on a separate count of robbery in company with personal violence was undisturbed on that appeal.  The offender in WAN committed the robbery in company when he was almost 16, older than the present applicant.  He and several others set upon a young couple at night in South Bank Parklands.  The offender in WAN, and his friends, kicked their victims to the head, including while they were on the ground.  They stole some of their possessions.  The robbery in WAN, and the violence used in that robbery, was more serious than the robbery participated in by the applicant.  WAN had no previous convictions.  However, he lacked insight into his behaviour.
18. [18]
    It seems that the burglary with wilful damage offending in WAN was more serious than the robbery in company offending in that case, and more serious than any of the offending by the present applicant.  These contrasting factors allow an understanding of the sentence in WAN.  The offender was older, the offending was more serious, and a very much more severe sentence was imposed.  However, comparison with WAN lends no support to the notion that the sentence imposed in this case was manifestly excessive.
19. [19]
    The case of R v B is a case where a 13-year-old girl, who had been before the court on four previous occasions, was sentenced to a term of six months detention, immediately suspended conditioned on her participation in a three month community program, for a series of offences including: attempted robbery whilst pretending to be armed; burglary, and assault occasioning bodily harm.  It seems that the most serious of those charges, burglary and assault occasioning bodily harm, occurred in retaliation to racist abuse by the complainants.  Nonetheless the offending was serious.  The Court of Appeal described B’s previous offending as “not substantial”, although remarking that it appeared to be persistent.  It seemed to the court, however, that B had good prospects of rehabilitation and that given the child’s age, “the imposition of a detention order on such a young person is likely to tell against her in the future”.  The detention order was set aside and 12 months probation was imposed.  B was younger than the present applicant, and she committed offences of less criminality than the applicant.  I do not think that the case is particularly comparable; certainly comparison with it does not demonstrate that the sentence imposed here was manifestly excessive.
20. [20]
    The Crown sought to rely upon the case of R v MCP,^[6] and the applicant relied upon it too.  The difficulty is that the issue in MCP was an issue of parity, not an issue of excess.  In my view, it is not a case which assists the applicant in demonstrating manifest excess.
21. [21]
    FLANAGAN JA:  I agree with Dalton JA.
22. [22]
    CROW J:  I agree with Dalton JA.