R v BEJ[2024] QCA 135

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  The applicant youth was just over 16 years and four months old when he committed the offence of attempted murder on 13 September 2021.  He pleaded guilty on 10 July 2023 and was sentenced on 18 October 2023 when he was almost 18 and one-half years old.  He was sentenced to detention for seven years and ordered to be released after serving 50 per cent of the period of detention.  A conviction was recorded.  The period of 764 days during which he had been held in detention from 13 September 2021 counted as part of the sentence that was imposed.
2. [2]
   The applicant applies for leave to appeal against his sentence on the following grounds:

3. 1.
   The learned sentencing judge erred by giving insufficient weight to relevant considerations, namely:

3. a.
   that imprisonment will weigh more heavily on the applicant because of his diagnosis of autism spectrum disorder (ASD) and borderline intellectual functioning than a person without a mental health condition: and

3. b.
   that the applicant had been diagnosed with impairments for which he had never received treatment and support and the evidence of Dr Bala that he required care and protection.

3. 2.
   The sentencing judge erred by not imposing a sentence for the shortest appropriate period as required by s 150(2)(e) of the Youth Justice Act 1992 (Qld) (the Act).

3. 3.
   The sentence is manifestly excessive.

Circumstances of the offending

3. [3]
   The complainant who was 23 years old was sunbaking alone on a beach when the applicant approached her with a knife and stabbed her multiple times.  There were lacerations to her scalp, nostril and neck and wounds to her upper chest, left breast and knee.  She sustained a left-sided moderate to large pneumothorax and a right-sided mild pneumothorax.  Her injuries were life threatening.  The complainant was unknown to the applicant.  He desisted in the attack and left the area.  The complainant called triple 0.  Nearby tradesmen assisted the complainant with first aid and waited with her until paramedics arrived.  The complainant was admitted to hospital for five days and underwent immediate surgery.  The complainant recovered from the physical injuries but her victim impact statement disclosed that she had not recovered mentally and emotionally, as she was extremely anxious when alone or in public and had a constant fear of someone hurting her.
4. [4]
   The applicant later on the day of the offence attended the ATSILS office with the knife still in his possession.  Paramedics were called and the police alerted.  The applicant was arrested that same day.
5. [5]
   For about two to three weeks prior to the offending, the applicant had been walking around the town, armed with a knife, looking for isolated individuals he could stab or kill.  He had also been watching violent pornography and documentaries about serial killers and playing violent video games.

The applicant’s antecedents

6. [6]
   The applicant had no prior criminal history.  He had a history of drug dependency (cannabis).  His prejudicial upbringing saw him experience multiple adverse childhood experiences, including exposure to domestic violence, the death of his mother and sexual and emotional abuse by his stepmother.  Immediately prior to the offending, he was residing with his grandfather who offered little supervision.  The only period of stable care the applicant experienced was when he lived with his maternal grandmother, but six months before the offence his maternal grandmother and sister moved interstate which had a negative effect on him.
7. [7]
   The applicant was assessed by consultant psychiatrist, Dr Siva Bala, on 13 October 2022 who provided a report dated 18 October 2022 (the first report).  Dr Bala considered that the applicant had no current mental illness but made a secondary diagnosis of cannabis use disorder that was in remission in a controlled environment.  Dr Bala identified that the applicant was “an emotionally damaged and vulnerable young man who has had significant attachment difficulties in childhood” and he suffered depression and anxiety which he self-managed by cannabis use when his maternal grandmother who was his only stable caregiver moved interstate.  Dr Bala recommended psychological testing to determine whether the applicant had an autism spectrum disorder (ASD) and any cognitive deficits or intellectual disability.
8. [8]
   As a result, the applicant was assessed on 10 and 11 March 2023 by clinical psychologist, Ms Sadeed, who provided a report dated 29 April 2023 (the psychologist’s report).  Ms Sadeed confirmed that results of the applicant’s testing strongly indicated the presence of ASD.  Whilst he was not assessed as having a diagnosis of an intellectual disability, Ms Sadeed noted that he had a very low level of intellectual functioning that placed him below 96 per cent of similar-aged individuals and had apparent difficulties with processing speed, memory and social communication.
9. [9]
   Dr Bala provided a supplementary report dated 19 June 2023 (the second report) after being provided with the psychologist’s report.  Dr Bala expressed the opinion that ASD and low or borderline intellectual functioning were significant mitigating factors, because individuals with ASD have difficulty processing emotion and adopt rigid, fixated views or interests that lead to offending behaviour and the limited awareness of the feelings of others due to autism leads to a loss of inhibition against acting out.  Dr Bala considered the specific nature of the applicant’s offending reflected many of the impairments of ASD and low intellectual ability.  He stated (at [7]-[9]):

“The impairments that [the applicant] experiences mitigate the offending behaviour. He needs care and protection and is less likely to be deterred by sanctions against him. The motive for the offending is less clear than for a person without autism spectrum disorder and borderline intellectual functioning. His impairments affect his capacity for judgement and understanding and the ability to control his behaviour. He is a poor vehicle for general deterrence, given the evolving psychiatric disorders.

A term of imprisonment will weigh more heavily on [the applicant] when compared to a person of normal health. He is more vulnerable to bullying, social isolation, victimisation and exploitation. Interpersonal difficulties with prison staff and inmates are more likely, given his limited social awareness from autism. He may demonstrate inappropriate behaviours such as staring, lack of emotional resonance or empathy, or appear odd and aloof, leading to targeting by others. Staff in custodial environments lack effective training in dealing with autistic adults and [the applicant] is more likely to become overtly depressed and anxious to the point of having a frank psychiatric disorder. Psychiatric and psychological treatment in custody is limited to those with psychotic illnesses and severe risk issues; [the applicant] is unlikely to receive the care and treatment he requires in custody. There is a clear potential for detention and imprisonment to be more burdensome for [the applicant].

…The pervasive impairments of the autism spectrum disorder cannot be reversed with treatment, but can be managed with appropriate support, monitoring and professional care. The primary treatment is psychological in terms of education, monitoring, stress and anxiety management and assisting with socially appropriate roles and activities. Psychiatric treatment may be necessary if an illness develops.”

10. [10]
    A pre-sentence report dated 11 October 2023 was prepared pursuant to s 151(1) of the Act.  The report was compiled by the acting team leader of the relevant regional town’s Youth Justice Service Centre and was based on interviews with the applicant in person on 19 July, 31 August and 1 September 2023, a video interview with the applicant on 9 August 2023, interviews with the applicant’s aunt and information provided by Youth Justice Services including from the detention centre, the relevant Adolescent Forensic Mental Health Service, the Department of Education, Child Safety Services, the Mental Health Assessment Court Liaison Service Report dated 17 September 2021, the psychologist’s report and the first and second reports.  The applicant’s father and stepmother were not interviewed and attempts to interview the applicant’s grandfather were unsuccessful.
11. [11]
    The report identifies the following factors as contributing to the offence:

    1. complex childhood trauma, multiple adverse childhood experiences, and significant attachment disruptions;
    2. exposure to and use of graphic and violent media, including hardcore pornography and violent video games, videos, and images; and
    3. ASD and borderline intellectual functioning diagnosis.
12. [12]
    In relation to the second factor, the report noted that leading up to the commission of the offence, a substantial amount of the applicant’s time was spent accessing extreme graphic and violent material that extended to pornography.  The applicant disclosed to the author of the report that he was sexually attracted to the victim of the offence.  The author concluded that the applicant was partly motivated to commit the offence for sexual gratification.  The author assessed that the applicant’s history of sexual victimisation in conjunction with exposure to, and use of, extreme graphic and violent media “resulted in maladaptive sexual and social behaviours” which in turn led to the applicant experiencing levels of sexual arousal when thinking about killing someone and wanting to kill someone for sexual gratification.
13. [13]
    The pre-sentence report assessed the applicant as demonstrating little remorse or empathy about his offending behaviour.  Although the applicant said he regretted committing the offence, he displayed limited insight into his offending behaviour beyond the impacts on him.  The author considered that the applicant’s lack of remorse, empathy and limited insight into his offending behaviour may be attributed to his ASD diagnosis.  It was also noted that during his time at the detention centre, the applicant had maintained “gold status” behaviour for over 12 months.  That meant he consistently displayed a standard of behaviour that was respectful, responsible and safe and participated in learning and education.

Comparable authorities

14. [14]
    Two comparable authorities on which submissions were made to the sentencing judge were R v WAY; Ex parte Attorney-General (Qld) (2013) 238 A Crim R 477 and R v William (a pseudonym) [2020] QCA 174.  WAY was an unsuccessful appeal by the Attorney-General against the sentence of four years’ detention with an order that the respondent youth be released after serving 50 per cent for the offence of attempted murder committed by the respondent when he was 16 years old and to which the respondent pleaded guilty.
15. [15]
    The following facts are summarised from [4]-[14] of WAY.  The victim was a 14 year old female student at the same school as the respondent.  The victim had arrived at school at 7.00 am and went to the girls’ toilet.  She was putting on makeup when the respondent walked up to her, faced her and stabbed her on the neck and upper back.  She suffered stab wounds to her hands as she tried to protect herself.  He continued his attack despite her screams.  She escaped from the toilets but fell to the ground and he tried to drag her back in by her feet.  She kicked out at him, managed to get to her feet and tried to run.  Two male students then saw the attack and staff and students went to her assistance.  The respondent fled.  The victim had approximately 12 stab wounds that were not life-threatening.  The police recovered the knife which the respondent left at the scene.  Two more knives and a hammer were found in his locker.  He handed himself into a police station.  He had been researching violence and watching films which involved the actual killing of people and began to have suicidal thoughts.  He was preoccupied with this material.  He had prepared a document that was entitled “Pros and Cons” about his hurting someone and then killing himself because of the pressure with school work.  He had followed the victim (whom he did not know) into the girls’ toilet block, thinking it would be easier to overpower a female.  As he stabbed her, his hand slipped and he cut himself.  As he attacked her on the back of the neck, he was thinking “I’m finally doing this” and was scared, but it was too late to stop.  He was unable to kill himself and turned himself in.  He had no prior criminal history.
16. [16]
    It was noted (at [18] of WAY) that the respondent was assessed by a psychiatrist as not meeting the criteria for a specific psychiatric diagnosis, “although he had a tendency to generalised anxiety and perfectionism which has caused a level of distress and dysfunction in the past and might do so in the future but had improved since the offence”.  It was recorded (at [20]-[21]) that the author of the pre-sentence report stated that “disrupted self concept and fascination with violence and horror contributed to the respondent’s offending”, his “engagement in grandiose fantasies of power and control represented a maladaptive coping strategy to alleviate feelings of depression, insignificance and powerlessness”, and that he did not fully appreciate the severity of his offence.  It was also noted (at [22]) that the respondent had the support of his parents who had provided a stable, supportive pro-social family life and he had a supportive relationship with his counsellor; it was planned to continue this therapeutic engagement upon his release into the community.
17. [17]
    After considering comparable authorities for youth offenders who had pleaded guilty to attempted murder, McMurdo P (who wrote the leading judgment in WAY) concluded (at [71]) that after “balancing the competing contentions of the seriousness of the offence and its impact on the complainant and her family; the interests of the community both in terms of its protection and in the respondent’s rehabilitation; and the mitigating features”, the sentence imposed was not manifestly inadequate.
18. [18]
    Muir and Gotterson JJA agreed (at [72] and [75] respectively) with the orders and reasons of McMurdo P.  Muir JA made an additional observation (at [72]) (with which Gotterson JA also agreed) that the sentence imposed on the respondent was “very lenient”, even allowing for the early plea of guilty, the fact that the complainant recovered completely and quickly from her wounds and the absence of “a particularly heinous offence” finding.
19. [19]
    The offender in William succeeded on an appeal against the sentence imposed on his guilty plea for the attempted murder of his mother committed on 14 August 2018 when he was a few days short of his 18^th birthday.  The sentencing judge had found that the offence was a particularly heinous offence (which increased the maximum penalty) and the offender had been sentenced to imprisonment for seven years and six months with a parole eligibility date after serving three years in custody.  On appeal, it was held (at [32]) that the conclusion that it was a particularly heinous offence was not open, the sentencing discretion miscarried, and the sentence was reduced to six years’ imprisonment with a parole eligibility date after serving two years.
20. [20]
    The following facts of William are summarised from [1]-[17] of the judgment of Sofronoff P (with whom Morrison and Mullins JJA agreed).  The offender’s mother was involved in prostitution and was a drug addict who also sold drugs.  His mother smoked cannabis and, from the age of 12 years, the offender smoked cannabis.  His mother supplied him with the cannabis every second day and he became addicted.  When he was 14 years old, the offender’s mother gave him some methylamphetamine and he began using it every day.  (He was diagnosed as suffering from Cannabis Use Disorder and Stimulant Use Disorder.)  By the time the offender was 16 years old, his drug consumption had induced in him a Substance-Induced Psychotic Disorder.  In March 2016, he had a psychotic episode.  His mother took him to the hospital, and he was prescribed an anti-psychotic medicine.  He continued to be seen by doctors at the hospital until later in that year, when he stopped keeping appointments.
21. [21]
    At 7.00 am on the day before the offence, the offender went to see his mother and obtained some cannabis which he smoked.  He and his mother then drove to her supplier’s house and she gave the offender some methylamphetamine.  They eventually returned to his mother’s home, he and his mother smoked some methylamphetamine, and he stayed the night.  His mother had left some cannabis, a pipe and a lighter beside his bed and melted some methylamphetamine into the pipe for when he woke in the morning.  When he woke up on the day of the offence, he smoked the methylamphetamine in the pipe.  His mother took him to a party later that day at which he was given methylamphetamine to smoke.  He went home and smoked the remainder of the methylamphetamine that his mother had given him.  When he woke at 8.00 pm, he smoked more cannabis and he was thinking his mother was a mass murderer.  He went and got a knife, smoked some more methylamphetamine, and thought that his mother was planning to kill him.  He went into his mother’s bedroom, sat on the bed next to her, and then began to stab her.  She suffered multiple wounds, including a stab wound that led to a collapsed lung.  The offender’s progress after he was removed from this mother’s influence was positive. He responded well to the anti-psychotic medication given to him in detention.
22. [22]
    Because the indictment against the offender in William was presented more than a year after he turned 18 years old, s 140 and s 144 of the Act were applicable.  Even though s 140 required the offender to be sentenced as an adult, under s 144(2) the Court was required to have regard to the fact that the offender was a child when the offence was committed and the sentence that might have been imposed on him if sentenced as a child.  Under s 144(3), he could not be ordered to serve a term of imprisonment longer than the period of detention that the Court could have imposed if sentenced as a child.  The maximum sentence for attempted murder when being sentenced as a child was 10 years.  The matters relevant to the sentencing (set out at [33] of William) included the offence was violent with permanent effects on the victim, the offender was a child when he committed the offence, he had no relevant prior convictions, and the gross failure of his mother as a parent led to his commission of the offence.  It was also noted that his propensity to commit the offence was due, in large part, to his diagnosed mental disorder, of which there was a real prospect he would be cured.
23. [23]
    Even though the offender in William was sentenced when he was an adult, because the sentencing proceeded on the application of the sentencing principles applicable to a child, it is a comparable authority for a sentence imposed on a guilty plea by a child to the offence of attempted murder by the frenzied stabbing of the victim.

Sentencing remarks

24. [24]
    During the sentencing submissions, the sentencing judge ruled that s 538 of the Criminal Code (Qld) did not apply to the applicant’s offending.  There is no challenge to that finding on this application.
25. [25]
    The sentencing judge summarised the circumstances of the offending and the applicant’s antecedents from the first and second reports and the psychologist’s report.  He referred to the complainant’s victim impact statement and the devastating impact the attack has had upon her and that she remained extremely anxious when alone or in public.  The sentencing judge summarised the pre-sentence report.
26. [26]
    The primary judge noted that, as the applicant was being sentenced as a child, the maximum sentence was detention for 10 years.  The sentencing judge summarised the applicable sentencing principles under s 150 of the Act.  The sentencing judge noted that a detention order was the only realistic option because of the extreme violence of the offence and that must be imposed for the shortest appropriate period.
27. [27]
    The sentencing judge summarised the mitigating features:

“… the features that call for a more lenient sentence are your youth at the time of the sentence, 16 years and four months; importantly, the fact that you have no prior appearances, no criminal history; the fact that you have entered a timely plea of guilty - that is to your credit; the fact that you have had positive performance whilst in detention - that is the gold status that you have had for over 12 months; you have engaged in education, and your - one of your teachers speaks highly of you; you have spent a long - a long period already in custody, a little over 25 months. I take into account, in your favour, the fact that you have had a prejudicial background, that you have diagnosed mental health conditions, your autism spectrum disorder, your borderline intellectual functioning. As I have said, they are - they are positives for you, but also, they raise concerns about your future conduct; that is, your inability to control yourself, because of your condition, may lead you to violent acts in the future.”

28. [28]
    The sentencing judge took into account that the applicant’s time in custody had been difficult and made specific mention of the fact that the applicant had been in solitary confinement for 345 days of the 764 days in pre-sentence custody and 79 days of those days in solitary confinement had been for over 20 hours per day.  The sentencing judge noted that was due to staff shortages and had nothing to do with the applicant’s behaviour but it highlighted the fact that detention had been at times very difficult for the applicant.
29. [29]
    It was also a further factor in the applicant’s favour that he did desist in his offending, although the reason for that could not be stated with any confidence.
30. [30]
    The sentencing judge then outlined the features against the applicant which included the extremely serious nature of the offending, the complainant would have died without medical attention, the applicant had not demonstrated genuine remorse of the impact upon the complainant, there was premeditation where the applicant had been looking for a victim for some weeks, the attack was unprovoked and involved numerous blows, there was sexual motivation to the offending, and the applicant ran away from the crime scene.
31. [31]
    The conflicting sentencing principles for sentencing the applicant were noted by the sentencing judge.  Rehabilitation of the applicant to attempt to ensure, in the community’s interests, that the applicant did not commit this type of offending again would call for a shorter period of imprisonment and placement under supervision of the Department of Youth Justice with programs tailored for the applicant conflicted with the protection of the public and punishment for the offence committed by the applicant.
32. [32]
    The sentencing judge referred to WAY and William.  The sentencing judge noted that WAY did not provide much guidance as the Attorney’s appeal on the ground the sentence was manifestly inadequate was dismissed.  In addition, the injuries sustained by the complainant for the subject offence for which she required in-patient treatment for several days and subsequent surgery and was left with massive psychological scars could be contrasted with the less serious injuries sustained by the victim in WAY.  The sentencing judge considered the circumstances of the applicant’s offending were more serious than in William where the offender’s methylamphetamine use contributed to his psychotic state in which he attempted the murder of his mother and it was his mother who had supplied him with the methylamphetamine.  The applicant did not commit the subject offence under the influence of drugs, but was angry because of the way he had been raised and, in particular, the sexual abuse of him by his father’s partner and the applicant’s intention was to inflict violence upon anyone in the most violent way, by attempting to kill them.
33. [33]
    The sentencing judge resolved the balancing of all the relevant factors in the following terms:

“Taking all of these features into a matter and trying to balance them, it seems to me that I have the difficult decision that is weighing your rehabilitation against the protection of the community and punishment for the acts that you have perpetrated upon the victim... I consider that there is a good deal of substance in the submissions by your counsel regarding the need for you to rehabilitated and that there will be advantage to you in being released very soon, because you will get access to better treatment, which, in turn, may serve the community. It seems to me, however, that the difficulty of that - accepting that proposition is that it does not pay sufficient weight to the countervailing features of your offending: the very serious nature of your offending; the premeditation of your offending; the extreme violence at the time; the fact that there is … no remorse, which may be sourced on your two conditions, your autism spectrum disorder and your lack of cognitive intelligence. The sexual gratification issue also is deeply troubling.”

34. [34]
    The sentencing judge found that the special circumstances that the applicant needed treatment and supervision justified reducing the period to be served in detention from 70 per cent to 50 per cent, as the longer the period for which the applicant was supervised would have a greater (positive) impact upon the applicant’s functioning in the long term and further protect the community.

Did the sentencing judge err by giving insufficient weight to the considerations identified in ground 1?

35. [35]
    In relation to ground 1, the applicant does not submit that the sentencing judge overlooked the considerations identified in ground 1, as they were referred to expressly by the sentencing judge in the sentencing remarks.  The essence of the applicant’s submission is that a lesser period of detention would have been imposed if appropriate weight had been given to the considerations that imprisonment will weigh more heavily on the applicant because of his ASD and borderline intellectual functioning than a person without a mental health condition and that the applicant had never received treatment for these conditions for which the psychiatrist expressed the opinion that he required care and protection.
36. [36]
    This ground of appeal does not raise any of the principles recognised in House v The King (1936) 55 CLR 499 at 505 that permits an appellate court to interfere with the exercise of the sentencing discretion other than that the sentence was “unreasonable or plainly unjust”.  The applicant’s argument based on insufficient weight having been given by the sentencing judge to these considerations applicable to the sentencing of the applicant is therefore appropriately dealt with in respect of grounds 2 and 3.

Was the sentence imposed for the shortest appropriate period?

37. [37]
    It is convenient to deal with grounds 2 and 3 together.  As the aspect of the sentence that is the focus of the applicant’s submissions is the length of the detention period, the applicant could only show that the sentence was manifestly excessive, if the sentence were not imposed for the shortest appropriate period required by s 150(2)(e) of the Act.
38. [38]
    The balancing exercise of all relevant factors undertaken in sentencing under the Act and the constraints imposed on the exercise of the sentencing discretion were relevantly explained by McMurdo JA (with whom Morrison JA agreed) in R v SCU [2017] QCA 198 at [150]-[153].  Sentencing of a child requires the exercise of the sentencing discretion but within the constraints of the Act.  Even though s 150(2)(e) of the Act appears to express in absolute terms that a detention order should be imposed for “the shortest appropriate period”, there is generally not one “shortest appropriate period” because of the process undertaken in the exercise of the sentencing discretion.  It must be the shortest appropriate period having regard to balancing all the relevant factors (which are more extensive in sentencing a child than an adult) and the relative weight given by the sentencing judge to the respective factors.
39. [39]
    There can be no issue with the sentencing judge’s approach to the little assistance provided by WAY, as the majority of the Court in WAY considered the sentence imposed at first instance was very lenient, even though it was not manifestly inadequate.  Another distinguishing feature of WAY is that the injuries sustained by the victim were less serious than those sustained by the complainant for the subject offence.
40. [40]
    The applicant’s stabbing of the complainant, which was premeditated, unprovoked and random, was objectively more serious than in William who stabbed his mother whilst in a psychotic stated induced by drug use where the drug use and his addiction had been encouraged by his mother.  In other words, the offender in William had caused the harm to the person who had harmed him.  The applicant was younger when he committed the subject offence than the offender in William, but the offender in William benefitted on the re-sentencing by the reduction of his moral culpability for the offence due to his psychotic state and his good prospects of rehabilitation when removed from his mother’s influence.
41. [41]
    The sentencing judge accepted the opinion of the author of the pre-sentence report that the applicant was partly motivated to commit the offence for sexual gratification.  The sentencing judge recognised that the applicant’s ASD and borderline intellectual functioning had a mitigatory effect on the assessment of his offending behaviour and was the likely explanation for his lack of remorse but at the same time was a risk factor for community protection that also flagged the applicant’s need for support and monitoring in the community.
42. [42]
    The applicant had committed extremely violent offending.  The sentencing was complex because of the applicant’s mental health conditions that were diagnosed only during the preparation for the sentencing.  In all the circumstances applicable to the applicant and his offending, it was neither unreasonable nor plainly unjust for the sentencing judge to impose a period of detention that was longer by 12 months than the sentence of imprisonment which was imposed on the offender in William.  The applicant has neither shown that the sentence of seven years’ detention was not for the shortest appropriate period having regard to all the relevant circumstances nor that the sentence was manifestly excessive.

Order

43. [43]
    The order which should be made is: Application for leave to appeal refused.
44. [44]
    BOND JA:  I agree with the reasons for judgment of Mullins P and the order proposed by her Honour.
45. [45]
    BODDICE JA:  I agree with Mullins P.