R v CDB[2024] QCA 79

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I agree with the reasons of Boddice JA and the orders his Honour proposes.
2. [2]
   BODDICE JA:  On 8 February 2024, the applicant, a juvenile, pleaded guilty to one count of unlawful use of a motor vehicle to facilitate the commission of an indictable offence, six counts of attempted armed robbery in company, four counts of attempted enter premises with intent to commit an indictable offence, one count of enter premises with intent to commit an indictable offence, two counts of wilful damage, one count of armed robbery in company, three counts of breaking and entering premises and stealing, three counts of burglary and stealing and one count of dangerous operation of a vehicle (“the first indictment”).
3. [3]
   On 15 February 2024, the applicant pleaded guilty to one count of unlawfully using a motor vehicle, in the night, in company, one count of common assault, one count of robbery, in company, with personal violence and one count of assault occasioning bodily harm, in company (“the second indictment”).
4. [4]
   On 1 March 2024, the applicant was sentenced to detention for 18 months for the count of unlawful use of a motor vehicle to facilitate the commission of an indictable offence, the six counts of attempted armed robbery in company, the four counts of attempted enter premises with intent to commit an indictable offence, the count of armed robbery in company, and the count of dangerous operation of a vehicle on the first indictment and the count of robbery in company with personal violence on the second indictment.  The applicant was sentenced to lesser, concurrent periods of detention in respect of each of the remaining counts on both the first and second indictments.  It was ordered, pursuant to s 227(2) of the Youth Justice Act 1992, that the applicant be released after serving 50 per cent of the period of detention.  A conviction was not recorded for any count.
5. [5]
   The applicant seeks leave to appeal the sentences of 18 months detention.  Should leave be given, the applicant relies on two grounds of appeal.  First, the learned sentencing judge failed to substantively consider all available sentencing options and failed to explain, in the sentencing remarks, why detention was being imposed rather than other available sentencing options.  Second, the sentences were manifestly excessive.

Offending

6. [6]
   The applicant’s offending was committed in two distinct periods.
7. [7]
   The first period concerned the 22 offences on the first indictment, committed by the applicant and several other young co-offenders, over a five-hour period, on 27 November 2022.  The applicant was aged 14 years at the time of the commission of those offences.
8. [8]
   The second period concerned the four offences on the second indictment, all committed by the applicant and his co-offenders on 28 July 2023.  The applicant was aged 15 years at the date of the time of those offences.
9. [9]
   The first period of offending involved the applicant driving the group of co-offenders from place to place in a stolen vehicle, whilst they committed the various offences.  Some of the co-offenders wore disguises and, at times, were armed with hammers and bottles.  Items stolen included a vehicle, two electric scooters and various other sundry items.  There was wilful damage of security cameras and some victims were personally accosted and threatened.  That offending ended following a police pursuit, during which the applicant drove dangerously, crossing over double lines onto the wrong side of the road, driving at excessive speed and running two red lights before crashing into two vehicles stopped at traffic lights, injuring two occupants.  The applicant was sentenced on the basis that he was a principal for the driving offences and an aider for the remaining offences.  At the time of the commission of the offences, the applicant was subject to a four-month probation order and a restorative justice order, both imposed on 5 September 2022.
10. [10]
    The second period of offending involved several co-offenders, who had collected the two complainants in a stolen vehicle, before the applicant, drove that stolen vehicle in convoy with another vehicle while “playing a game of tag”.  On occasions, the vehicles stopped briefly outside various houses.  In the early hours of the morning, in an empty car park, the co-offenders demanded clothing from the older male complainant and kicked the younger male complainant in the back of the leg, before punching him in the face.  Thereafter, the four co-offenders collectively assaulted the older male complainant, inflicting serious violence, including repeated punching, kicking and stomping on him.  The applicant was sentenced on the basis that he did not participate in any of the assaults, but “offered support by [his] physical presence”.  These offences were committed whilst the applicant was subject to probation and community service orders, imposed on 28 June 2023, and whilst on bail for the offences committed in the first period of offending.

Sentence hearing

11. [11]
    As at the date of the sentence hearing, the applicant had served a total of 179 days in pre-sentence detention (including 16 days in a police watch house), before being released on conditional bail on 6 September 2023.  His bail compliance was said to not be perfect, but there had been “meaningful engagement with the programs that were implemented since the imposition of the conditional bail program”.
12. [12]
    The prosecution submitted that the applicant had engaged in objectively very serious offending; that the applicant had a significant past criminal history, containing an escalation in the nature of his offending; that the applicant had continued to commit offences in breach of court orders; and that there was a need to protect the community from recidivist offenders.  The prosecution accepted that the applicant had pleaded guilty early, was particularly young and had shown remorse for his offending.
13. [13]
    The prosecution submitted that having regard to the applicant’s pre-sentence custody and his performance on the conditional bail program, a lengthy period of probation would see a continuation of his rehabilitation.  Further, a restorative justice process may be of benefit to the applicant.
14. [14]
    The applicant’s counsel submitted that given the pre-sentence custody and the applicant’s promising behaviour whilst on the conditional bail program, probation was an appropriate sentencing option.  Further, as the applicant wanted to obtain employment and finish his schooling, it was not in the applicant’s interests to be returned to detention.  Counsel submitted that having regard to that circumstance, together with the applicant’s sad and dysfunctional background, the sentencing judge could be satisfied that a sentence other than detention, was open.  Alternatively, it was open to immediately suspend any order for detention by way of a conditional release order.

Sentencing remarks

15. [15]
    The sentencing judge summarised the applicant’s first period of offending as having involved the applicant driving a group of male youths around in a stolen motor vehicle, aiding and enabling them “to commit a series of very serious offences, including them in company, usually while armed, confronting innocent members of the community or entering their premises and either attempting to or actually taking their property, including motor vehicles or damaging the property”.^[1]  The sentencing judge said that “terrorising members of the community in this way is intolerable”.^[2]  Further, the applicant had been involved in a police chase in which he drove at excessive speed and executed very dangerous manoeuvres in a suburban street, before colliding with two vehicles and injuring two occupants.
16. [16]
    The sentencing judge summarised the applicant’s second period of offending as being part of a group of males “who intimidated, terrorised and humiliated an 18 year-old man before commencing a protracted, cowardly and vicious assault upon him in a public place”.  Whilst the applicant did not inflict actual violence to the complainant, he was criminally responsible for aiding and enabling that offending by his presence and encouragement.  It was noted that the complainant had suffered a significant injury, although it was treated conservatively.
17. [17]
    The sentencing judge accepted that the applicant had pleaded guilty at an early time, but the applicant was a recidivist offender who had consistently offended since October 2021, despite having had the benefit of community based orders.  Some of his offending had also been committed whilst subject to a probation order and whilst on bail for the earlier offences.
18. [18]
    After noting that the pre-sentence custody of 179 days would automatically be counted as time served under any sentence of imprisonment and taking into account the pleas of guilty and their facilitation of the administration of justice and the applicant’s expressed remorse, the sentencing judge observed that the applicant had largely complied with a conditional bail program since September 2023; had endured a disadvantaged and dysfunctional childhood which had contributed to the circumstances of his offending; and that the applicant’s family now had started to engage with the Departmental officers in a positive way, as had the applicant.
19. [19]
    After observing that any sentence must help the applicant to rehabilitate; must punish him in a way that is just, in all of the circumstances; must be in proportion to the nature of the offending; must deter him and others from committing this type of offence; and must indicate the Court’s denunciation of this course of conduct, the sentencing judge concluded:

“Balancing the relevant considerations, taking into account the entire criminality and time already spent in pre-sentence custody and taking into account all other available sentences and the principles in schedule 1 of the Act, particularly number 18, in this case, I do not consider that a restorative justice process is appropriate instead of or to inform the sentencing order. And, taking into account the desirability of not holding a child in detention, I am satisfied that no other sentence other than detention is appropriate in the circumstances of this case.”^[3]

Consideration

Ground 1

20. [20]
    Sentencing judges are required to follow a particular methodology when sentencing, in accordance with the principles under the Youth Justice Act 1992 (Qld).  That methodology requires a sentencing judge to give consideration to all statutory factors and to consider all other available options, before imposing a sentence of detention, with the sentencing remarks explaining how the sentencing judge complied with that required process of reasoning.^[4]
21. [21]
    What is required, in order to satisfy an explanation of the reasoning process was enunciated in R v SDW:^[5]

20. “[17]
    To put it another way, this Court has concluded that the Youth Justice Act 1992, and in particular, ss 208 and 209, should be construed as requiring sentencing judges to follow a particular methodology. A sentencing judge cannot make a detention order for a child without first considering all other available sentences in the way that the law requires, and then forming the state of satisfaction referred to in s 208 in the way referred to in s 208. Moreover, it is not enough that the sentencing judge may have privately reasoned in that manner, ultimately concluded that no other sentence than detention is appropriate and then merely expressed the statement in the sentencing remarks that that consideration was performed. Rather, the sentencing judge must express his or her reasons in court in a way which explains how that ultimate result was arrived at by the application of the proper reasoning process.
21. [18]
    For example, if, as in the present case, there were four sentencing options reasonably open other than detention, then in order to comply with s 208 a sentencing judge could not impose detention unless he or she had first separately considered and rejected each of the other options and then formed the state of satisfaction referred to in s 208 in the way referred to in s 208. In order to comply with s 209, the sentencing remarks would have to explain the process undertaken, including by explaining the reasons for rejecting each of the other options.
22. [19]
    It must be noted that this Court has construed the obligation in s 208 as requiring express consideration of the sentencing options ‘reasonably available’. Of course, the adverb ‘reasonably’ does not appear s 208(a). That section requires the court to consider all other “available” sentences. The addition of the adverb ‘reasonably’ seeks only to communicate that the word ‘available’ should be construed as meaning suitable or appropriate for consideration. The extreme circumstances of a particular case might well mean that sentencing options which are theoretically open are so obviously unsuited to the circumstances of the case that they should not be regarded as ‘available’ within the meaning of s 208, and a sentencing judge might be justified in not dealing with them at all in his or her reasons.”

22. [22]
    The sentencing process miscarries where there is a lack of appropriate explanation of the reasoning process in the sentencing remarks.^[6]
23. [23]
    A consideration of the sentencing remarks in the present case, supports a conclusion that there was lack of explanation of the reasoning process in the sentencing judge’s remarks.  First, the sentencing judge did not explain the reason for imposing detention, rather than some other option, as submitted by both the prosecution and defence.  Second, the sentencing judge failed to expressly consider the available option of a conditional release order.
24. [24]
    The failure to consider a conditional release order was significant.  Not only was that option the subject of a specific submission by defence counsel, it was the subject of a report from the relevant Department.  Further, that option was an available option in the applicant’s case, in the event of detention, having regard to what was described as promising engagement since being subject to the conditional bail order and the consequence of a sentence of 18 months detention, namely, that it would require the applicant to be returned to detention.
25. [25]
    As the sentencing discretion miscarried, it is unnecessary to consider ground 2 as the sentencing discretion is to be re-exercised.
26. [26]
    In doing so, regard must be had to the additional time the applicant has served in detention since the imposition of the sentences on 1 March 2024.  The practical consequence is that the applicant has served over 240 days in detention.
27. [27]
    When regard is had to that significant period in detention and the significant positive changes in the applicant’s engagement with the authorities and his desire to obtain employment and finish school, the imposition of a conditional release order at this time would result in an unjust sentence.
28. [28]
    Allowing for that period of detention, I would re-sentence the applicant by varying the sentences of 18 months detention, to 16 months detention.  I would otherwise confirm the sentences.

Orders

29. [29]
    I would order:

2. 1.Leave to appeal sentence be granted.
3. 2.The appeal be allowed.
4. 3.Each of the sentences of 18 months detention be varied to 16 months detention.
5. 4.The sentences imposed on 1 March 2024, otherwise be confirmed.

30. [30]
    CALLAGHAN J:  I agree with Boddice JA and the orders his Honour proposes.