R v SEG[2024] QCA 95

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  The applicant comes before this Court as a seventeen-year-old who is one of the first defendants to be subject to the regime for serious repeat offenders introduced by the Queensland Government under the Strengthening Community Safety Act 2023.  Following his plea of guilty to a number of offences, the applicant was declared to be a Serious Repeat Offender and sentenced to eighteen months detention, with convictions being recorded for three of the most serious offences.
2. [2]
   The applicant applies for leave to appeal from the decision of Judge Coker of the District Court, alleging three specific errors by the sentencing judge in:

   1. making a Serious Repeat Offender declaration (SRO) pursuant to s 150A of the Youth Justice Act 1992 (Qld) (YJA);
   2. failing to explain the sentence to the applicant pursuant to s 158 of the YJA, specifically the effect of the making of the SRO declaration; and
   3. finding that the applicant lacked an appreciation of the wrongness of his offending.
3. [3]
   The applicant further contends that the sentence imposed is manifestly excessive.
4. [4]
   The applicant did not pursue the third ground during the oral hearing so it is unnecessary to comment upon it further.
5. [5]
   The applicant was sentenced in the Childrens Court of Queensland at Townsville on 27 July 2023, after the Magistrate had refrained from exercising jurisdiction pursuant to s 77 of the YJA.
6. [6]
   The offences for which he was sentenced, and sentences were imposed, were:

7. [7]
   The sentences were ordered to be served concurrently. An SRO was made pursuant to s 150A of the YJA.
8. [8]
   A breach of a probation order made on 18 January 2023 at the Childrens Court at Yarrabah for two counts of serious assault of public officer performing their function was found to be proven but no additional punishment was imposed.
9. [9]
   An order was made that the applicant be released from custody after serving 50 per cent of the period of detention.

Circumstances of offending

10. [10]
    The schedule of facts setting out the circumstances of the offending, which was the agreed basis upon which the applicant was to be sentenced, was extensive, being some thirteen pages long.  The present offending took place over a relatively concentrated period between 24 January 2023 and 5 March 2023.  The learned sentencing judge summarised the offending the subject of the indictment and summary charges in the following terms, which appear uncontentious:

“Insofar as the circumstances of the offending are concerned, they have been reduced to writing and I must say have been comprehensively addressed in the schedule of facts that has been provided to the Court. As I said, there are eight counts of unlawful use of a motor vehicle; three counts of entering premises and committing an indictable offence by break; and other offences including the attempt to enter premises with intent to commit an indictable offence. The statement and schedule of facts details the offending. It spans from the 24^th of January 2023 – and there is relevance in that date, and I shall come to it shortly – until the last of the counts contained within the indictment, the 5^th of March 2023. It was shortly after that that you were apprehended by police, taken into custody, and have been held in pre-sentence detention since that time.

The other offending which is contained within the summary charges, as I say – two charges of driving a motor vehicle without a driver’s licence – relate to the unlawful use of the motor vehicle by you. And as has been submitted to me, it is clear that at least on those two occasions that make up those two charges, the 28^th of February 2023 and the 3^rd of March 2023, you were able to be identified as the driver of the stolen vehicles. The last of the charges contained in the summary offences is the wilful damage of property. That relates to offending whilst you were held in pre-sentence detention and relates to a situation on the 17^th of May 2023 where instructions were given to you and to three others who were in your company, to return to your cells in relation to behavioural issues identified on the day…

There are, as I say, numerous instances of unlawful use of motor vehicles where vehicles were taken from people’s residences or otherwise at night, keys were stolen, wallets were stolen, and the like. The vehicles were then taken and, of course, it was also the case that at least on two of those occasions, the stolen vehicles were then used for what is colloquially referred to as ram-raids, where they were smashed into businesses, giving rise to the doors or entry ways collapsing and you and the others in your company then entering those stores or businesses, removing various items, food, soft drinks, and the like and then removing yourself in the vehicles from the locality”.

11. [11]
    The applicant was also found guilty of summary charges which are referred to above.  The charge of wilful damage related to damage to property while in detention.

Applicant’s antecedents

12. [12]
    The applicant was 16 years old at the time of offending and 17 years old at the time of sentence.
13. [13]
    Unfortunately, the applicant is no stranger to the justice system.  He has an extensive juvenile history of some fourteen pages.  The summary of the history adopted by the sentencing judge is uncontroversial.  It was summarised in the following terms:

“This offending needs to be further viewed in the context of the child having a lengthy and concerning criminal history involving offences such as attempted robbery, assault occasioning bodily harm, common assault, 20 previous entries for wilful damage, 15 previous offences of burglary or entering a dwelling, 15 previous offences of attempted entering a dwelling at night, multiple previous offences for entering a premises and committing an indictable offence, entering a premises with intent, multiple entries for attempted entering a premises with intent, multiple previous offences of stealing, over 30 previous entries for unlawful use of a motor vehicle, multiple previous offences of attempting to unlawfully use a motor vehicle, attempted stealing, multiple entries for failing to appear and nine previous entries for serious assault as well as other, less serious entries.”

14. [14]
    No convictions had been recorded prior to this sentence.  The applicant had been sentenced to actual detention on three previous occasions.^[1]  The offending before the court occurred while the applicant was subject to a supervised release order, as well as being subject to a nine-month probation order imposed on 18 January 2023.
15. [15]
    The pre-sentence report noted the applicant had a deprived and unstable upbringing, which included physical harm and exposure to domestic violence.  He had a lack of consistent parenting and disengaged from education at the age of eleven or twelve.  He had begun to engage in challenging behaviour after his father left when he was ten, the result being that his mother struggled to manage him.  She subsequently sent him to relatives in Townsville and Yarrabah.  The applicant stopped engaging in any form of education to any real extent from the age of 11 or 12.  According to the author of the report he was unable to “demonstrate adequate insight or remorse in relation to his offending behaviours” and appeared to be “more concerned with the effects experienced by himself rather than the victims and appears to be motivated to offend in order to seek acceptance from his peers.”
16. [16]
    At the hearing, a separation report and supplementary report were tendered, which detailed the considerable amount of time spent by the applicant confined to his room.  This included 52 days where he was held “in separation” for periods of 22 hours or more and 52 days where he was held for periods of 20 hours or more, largely due to staff shortages.

The sentence

17. [17]
    The sentencing judge, after receiving submissions from the Crown and the child’s representative and having heard evidence from a support manager of the Youth Detention Centre where the applicant was held, balanced a number of considerations including the following:

    1. the number of offences;
    2. the serious nature of a number of the offences and the maximum penalty in relation to those offences, as well as the other offending that occurred;
    3. the applicant’s early plea of guilty;
    4. the content of the pre-sentence report, including references to the applicant’s lack of adequate insight or remorse in relation to his offending;
    5. the circumstances of the offending, which were both the subject of the indictment and summary charges;
    6. the real harm that was caused to businesses and individuals;
    7. the background of the applicant contained in the pre-sentence report;
    8. details of the applicant’s deprived upbringing, the influence of peers and engagement in anti-social behaviours, which include behaviours that are a result of his disengagement from education and surplus of free time.  The opinion of the author of the report is that the applicant’s difficult childhood in his formative years has contributed to his not being able to secure attachments and develop appropriate self-regulatory behaviours, and has increased his vulnerability to engage in serious unregulated high risk behaviours, which is only exacerbated by his lack of education, employment and pro-social activities;
    9. the previous attempts to provide assistance through different orders;
    10. the fact he was placed on a probation order for nine months in relation to an assault committed against youth detention workers and that he began to re-offend within six days of that order;
    11. the circumstances of the applicant’s detention and the content of the separation reports;
    12. the pre-conditions in relation to the making of an SRO and its effect on the sentence to be imposed;
    13. relevant case law;
    14. alternative orders available to detention and that detention was to be imposed only as a last resort;
    15. the effect of recording a conviction, particularly upon the applicant’s future, including employment; and
    16. the broader considerations provided under the YJA.
18. [18]
    The sentencing judge determined that he would impose an SRO, which is discussed below.  Taking into account the realigned priorities under s 150A(3) of the YJA and other factors relevant to sentence, the sentencing judge considered that the appropriate head sentence attaching to the most serious offences, which were counts 3, 11 and 13, would be detention for two years.  According to his Honour, such a sentence took into account the applicant’s reoffending and escalation in that offending.  In sentencing the applicant, his Honour stated, however, he had reduced the period in detention from two years to eighteen months to take into account mitigation, including periods of separation.  His Honour also determined that the applicant should serve 50 per cent of the period ordered in detention, where his Honour noted that the starting point is normally that 70 per cent of any period of detention is served, to further take into account the period of separation as well as the applicant’s background factors in terms of life and experience.  Convictions were recorded in respect of counts 3 and 13.

Ground 1 – Serious Repeat Offender

19. [19]
    The applicant contends that the sentencing judge erred in his approach to being satisfied that an SRO should be made and that his Honour did not address the requirement that he be satisfied there is a “high probability” that the applicant would commit a further indictable offence in stating:

“Quite frankly, if the past is the best indicator of the future, then there is a high probability that you would commit a further indictable offence.”

20. [20]
    The applicant also contends that his Honour erred insofar as he did not identify any specific prescribed indictable offence for which he was satisfied that there was a “high probability” of occurring in the future.
21. [21]
    Both contentions are rejected by the Crown, which submits the applicant has failed to take into account his Honour’s detailed consideration of the issue, particularly the applicant’s criminal history.  It contends that the making of the SRO was open on the facts of the case.

The legislation

22. [22]
    In sentencing a child for an offence, the court must have regard to the sentencing principles which are contained in s 150 of the YJA.^[2]
23. [23]
    Provision was made for the making of an SRO under ss 150A and 150B of the YJA, which commenced on 22 March 2023 and applies where a court is sentencing a child for a prescribed indicatable offence.  The legislature provided for the sections to apply retrospectively, insofar as they apply to sentences for offences committed before commencement.
24. [24]
    Section 150A of the YJA provides that:

3. “(1)
   This section applies if a court is sentencing a child for a prescribed indictable offence.

3. (2)
   The court may, on application by the prosecution, declare the child to be a serious repeat offender if—

3. (a)
   at least one detention order has previously been made against the child in relation to a prescribed indictable offence; and

3. (b)
   the court has—

3. (i)
   ordered the chief executive to prepare a pre-sentence report; and

3. (ii)
   received and considered the report; and

3. (c)
   the court has had regard to—

3. (i)
   the child’s previous offending history and bail history; and

3. (ii)
   any efforts of rehabilitation by the child, including rehabilitation carried out under a court order; and

3. (iii)
   any other matter the court considers relevant; and

3. (d)
   the court is satisfied that there is a high probability that the child would commit a further prescribed indictable offence.

3. (3)
   If the court makes a declaration that the child is a serious repeat offender, the court in sentencing the child must have primary regard to—

3. (a)
   the need to protect members of the community; and

3. (b)
   the nature and extent of violence, if any, used in the commission of the offence; and

3. (c)
   the extent of any disregard by the child in the commission of the offence for the interests of public safety; and

3. (d)
   the impact of the offence on public safety; and

3. (e)
   the child’s previous offending history and bail history.

3. (4)
   If the court makes a declaration that the child is a serious repeat offender, the court must state in its sentencing remarks for the child reasons for making the declaration.

3. (5)
   For the purposes of the Criminal Code, chapter 67, a declaration made under this section is taken to be a sentence imposed on conviction.

3. (6)
   For the purposes of the Human Rights Act 2019, section 43(1), it is declared that this section has effect—

3. (a)
   despite being incompatible with human rights; and

3. (b)
   despite anything else in the Human Rights Act 2019.”

25. [25]
    The effect of making such an order is outlined in s 150B of the YJA, which provides that:

“(1) This section applies if—

1. a court (the "sentencing court") is sentencing a child for a prescribed indictable offence; and

2. a court of like or higher jurisdiction (the "original court") has previously made a declaration under section 150A that the child is a serious repeat offender; and

3. the offence for which the child is being sentenced by the sentencing court was committed during the relevant period for the child.

2. The sentencing court, in sentencing the child, must have primary regard to the matters mentioned in section 150A(3)(a) to (e).

3. For the purposes of the Human Rights Act 2019, section 43(1), it is declared that this section has effect—

1. despite being incompatible with human rights; and

2. despite anything else in the Human Rights Act 2019.

4. In this section—

"relevant period", for a child, means—

1. if the child was ordered by the original court to be detained—the period starting on the day the declaration under section 150A was made by the original court and ending on the day that is 12 months after the day the child is released from detention; or

2. otherwise—the period starting on the day the declaration under section 150A was made by the original court and ending on the day that is 12 months later.”

26. [26]
    A “prescribed indictable offence” is defined in schedule 4 of the YJA as meaning:

“(a) a life offence; or

2. an offence of a type that, if committed by an adult, would make the adult liable to imprisonment for 14 years or more, other than an offence against the Drugs Misuse Act 1986, section 9(1) for which the maximum penalty is 15 years imprisonment; or

3. an offence against any of the following provisions of the Criminal Code—

1. section 315A;

2. section 323;

3. section 328A;

4. section 339;

5. section 408A(1), if the offence involves a motor vehicle;

6. section 408A(1), to which section 408A(1A) applies;

7. section 412; and

8. section 421(1).”

Extrinsic Material

27. [27]
    The Court may have regard to extrinsic material as part of the context of a provision in construing the legislation in question.^[3]
28. [28]
    The amendments which introduced ss 150A and 150B of the YJA were part of a suite of legislative amendments contained in the Strengthening Community Safety Act 2023, which the Queensland Government introduced with the aim of keeping the community safe and included provisions seeking to respond to a small cohort of serious repeat offenders who engaged in persistent and serious offending.  The Explanatory Note to the Strengthening Community Safety Bill 2023 stated that changes to the YJA included:

“creating the ability of a sentencing court to declare a child a serious repeat offender in certain circumstances to ensure considerations such as community safety are paramount during sentencing and that serious repeat offenders are held in detention on sentence for longer than would normally be the case.  This will mean that, where appropriate, child offenders will have the opportunity to complete the necessary rehabilitation programs identified in any pre-sentence report …”

29. [29]
    The Explanatory Note further stated:

“It is expected that courts sentencing a serious repeat offender will more likely impose harsher penalties, including imposing a period of detention. The regime will operate with a degree of retrospectivity in that it will apply to sentences for offences committed before commencement. This breaches section 4(3)(g) of the [Legislative Standards Act 1992].

In this regard, cl 21 will impact on the rights and liberties of child offenders; however, it is considered justified to address the acute problem presented by serious repeat offenders who continue to put the community at harm. It is noted that there are provisions in the Bill to require a court to provide reasons for making the declaration.”

30. [30]
    The section had not been the subject of detailed consideration, save by Judge Smith DCJA, who considered whether the retrospective application of ss 150A and 150B of the YJA^[4] affected its validity, which his Honour rejected.

Did the sentencing judge err?

31. [31]
    At the hearing, the Court sought some further clarification of the nature of the error which the applicant contended his Honour made.  The applicant contends that, in determining to make the SRO, his Honour did not expose sufficient reasons for making the finding that there was a “high probability” that the child would commit a further prescribed indictable offence.  The applicant contends that the correct approach was set out by Murphy JA in JSA v Western Australia (JSA),^[5] where his Honour stated that there ought to be an appropriate degree of caution or circumspection in applying a modification to the sentencing principles that would ordinarily apply because of the impact of making a declaration.  In the applicant’s submission, the sentencing judge could not have been persuaded to the degree required if exercising the level of circumspection that was required.
32. [32]
    The applicant also appears to further rely on the fact that learned sentencing judge did not identify the prescribed indictable offence he considered would be committed in the future as being indicative of his Honour’s failure to consider the requirement in s 150A(2)(d) to the requisite level, as well as constituting a separate error.
33. [33]
    The applicant contends that his Honour also made errors of fact insofar as he found that the SRO should be declared in circumstances where the restrictive conditions of the applicant’s pre-sentence custody should have militated against any positive finding that his efforts at rehabilitation were lacking or, alternatively, that restrictive custodial conditions should have been considered under s 150A(2)(c)(iii) of the YJA as militating against the declaration.
34. [34]
    As is evident from the extrinsic material and the terms of s 150A of the YJA itself, the declaration is directed to serious repeat offenders who are considered to be offenders who would commit a further prescribed indicatable offence.  Consistent with the fact that the Explanatory Note says the provisions are directed to a small cohort of offenders, s 150A(2)(d) provides a high threshold to be met before the Court could determine that it should make the SRO.
35. [35]
    Section 150A of the YJA provides for the power in s 150A to be exercised if the various preconditions in s 150A(2) are met, including, in particular, that the sentencing judge is satisfied of the matter referred to in s 150A(2)(d).  It is not uncommon for statutes to provide that a particular power may be exercised only if a decision maker is satisfied of the existence of certain matters specified in a statute.^[6]  In the present case, given the terms of the section and particularly the “if” in the chapeau, the serious consequences that flow from the making of such a declaration and the underlying objective of the provision having regard to the stated intent of the legislature in the Explanatory Note, the validity of the exercise of the power would depend on the proper formation of the evaluative judgment referred to in s 150A(2)(d) and compliance with the other matters referred to in s 150A(2).
36. [36]
    In what circumstances might an appellate Court reach the view that the formation of the s 150(2)(d) evaluative judgment miscarried?
37. [37]
    Given that s 150A(2)(d) requires the sentencing judge to form an opinion as to the likelihood of a matter occurring in the future, the sentencing judge is not seeking to determine whether or not an objective fact presently exists.  This precondition is properly characterised as an exercise of power to determine the existence of what has been described as a subjective jurisdictional fact.^[7]  If a party challenges the existence of a subjective jurisdictional fact, the party seeking to contend that error has occurred will generally have to persuade the appellate (or reviewing) Court that the required state of mind did not exist because it was not reached by the primary judge in a way contemplated by the legislature.^[8]  As has been observed by Derrington J, writing extra-curially, the use of a subjective jurisdictional fact limits the review of the decision-maker’s state of mind, given the number of valid pathways that may be used to reach the required state of mind and the variety of opinions that may be available.^[9]  Where the state of satisfaction is a subjective jurisdictional fact, the Court looks, in determining whether an error of law has occurred, to see whether the formation of the opinion was arbitrary, capricious or irrational as well as not bona fide.^[10]  An error of law may also occur if the decision has no basis in evidentiary material,  is contradicted by the overwhelming weight of material or there is a contradiction in processes by which conclusions were released or it is based upon the drawing of inferences which were not properly open or the Court has misdirected itself as to the applicable law.^[11]
38. [38]
    The question of what was required to meet a standard of “high probability” was considered in JSA.^[12]  Section 124(1)(d) of the Young Offenders Act 1994 (WA) (YOA) provides that:

“This Division applies to the sentencing of the offender for a serious offence (the current offence) if-

…

4. the court, after taking into account the offender’s history of re-offending after release from custody, is satisfied that there is a high probability that the offender would commit further offences of a kind for which custodial sentences could be imposed.”

39. [39]
    On appeal, it was submitted the sentencing judge had failed to properly direct himself as to the level of satisfaction required by s 124(1)(d) of the YOA.  Buss JA considered the question having regard to the backdrop of the position at common law where there are only two standards of proof – the criminal standard requiring proof beyond reasonable doubt and the civil standard requiring proof on the balance of probabilities.  His Honour also noted that in the case of the civil standard, satisfaction as to whether proof has been established depends upon the gravity of the allegation in question and its consequences,^[13] as discussed in Briginshaw v Briginshaw.^[14]
40. [40]
    Like the YJA in Queensland, the term “high probability” in the YOA is undefined.  Buss JA in JSA considered that, given the adoption of the term against the background of a civil and criminal standard of proof, the phrase “expresses a materially different concept from the common law criminal and civil standards of proof.”^[15]
41. [41]
    Buss JA (with whom Hall J agreed) considered that the words “high probability” within “is satisfied that there is a high probability” are not amenable to more precise explanation or meaning “than to say that they require a higher degree of probability than a mere balance of probabilities and a lower degree of probability than beyond reasonable doubt.”^[16]  His Honour considered that the phrase did not call for a gloss or qualification, stating that:^[17]

“The provision simply requires that that the court be satisfied after taking into account all relevant factors etc that there is a high probability that the offender would commit offences of the specified kind.

…

the words ‘high probability’ require a higher degree of probability than a mere balance of probabilities. Satisfaction that there is a high probability that the specified recidivism would occur will not exist if, for example the court is merely satisfied that there is a 51% prospect that the offender would commit further offences of the specified kind.”

42. [42]
    Murphy JA agreed with Buss JA, save that he described the proper construction of s 124(1)(d) differently, observing that s 124(1)(d) did not in its terms require the court to be satisfied as to an existing fact or past event.  His Honour considered that the words “high probability” did not qualify the word “satisfaction”.  The court’s satisfaction in its prediction of an event “means … no more, and no less, than reasonable satisfaction.”^[18]  His Honour stated that the words “high probability” refer to the court’s assessment of the chance of the offender reoffending in the relevant sense.  In Murphy JA’s view, the language of the section “directs attention to the degree of probability of the future event occurring, rather than to the standard of proof, as that concept is conventionally understood and applied in the general law.”^[19]
43. [43]
    The applicant placed weight on the following statement by Murphy JA:^[20]

“The requirement for the chance to be assessed as a ‘high probability’ is presumably intended to reflect an appropriate degree of caution or circumspection in applying a modification of the sentencing principles which would ordinarily apply to a juvenile offender.  The words ‘high probability’ would, in ordinary parlance, signify a chance somewhere in excess of or beyond a bare probability (just over evens) and less than a certainty…”

44. [44]
    His Honour further observed that:^[21]

“Beyond those observations, there is the risk that in an attempt to interpret the words, the court may end up substituting a different statutory formula for the one used by Parliament… The court can and should, do no more than be reasonably satisfied that the chances are such that there is a ‘high probability’ that the offender would reoffend in the relevant way.”

45. [45]
    Prior to making a declaration, the court must be satisfied of the preconditions set out in s 150A(2) of the YJA.  Section 150A(2)(a) provides that the court must be satisfied as matter of fact that least one detention order has previously been made.  Section 150A(2)(b) provides for a pre-sentence report to be obtained but also that it is “received and considered” by the court.  Section 150A(2)(c) requires the court to consider the matters outlined.
46. [46]
    Reading the section as a whole, the matters in ss 150A(2)(b) and 150A(2)(c), which the court is required to consider or have regard, are relevant in informing the court as to whether it can be satisfied to the degree required that the child would commit a further prescribed indicatable offence in the sense of s 150A(2)(d).
47. [47]
    While counsel for the applicant particularly concentrated on the reference by Murphy JA to exercising a degree of circumspection, it is necessary to consider whether either of the approaches of Murphy JA or Buss JA should be adopted in considering s 150A(2)(d) of the YJA.  In particular, the case of JSA raises a question of whether “high probability” is referable to the degree of proof of which the court must be satisfied or the level of predictability of the event in question occurring.  Having regard to the wording of the subsection, we consider that “satisfied” should be read conjunctively with the requirement that there is a high probability of the event occurring.  In that regard, we consider the construction of a similar phrase in similar legislation, the YOA, by Buss JA in JSA is more persuasive than that of Murphy JA.  Given the differences in the terms of the legislation, neither is determinative.
48. [48]
    The fact that “higher probability” relates to the degree of satisfaction is supported by the words “satisfied that there is a high probability” which connects the level of satisfaction with “a high probability”, notwithstanding the court is called to be satisfied as to a child’s future conduct.  As was the case in JSA, the legislature in using the phrase “high probability” in the Queensland YJA must have used that phrase against the background of the civil and criminal standard.  The higher level of satisfaction is consistent with the fact that the provisions are only directed to repeat offenders and the fact such a declaration will result in a potentially heavier sentence, given the realignment of considerations, than would otherwise be served.  Section 150A(2)(d) is the critical assessment which the Court is required to make under s 150A(2), having determined the other preconditions have been satisfied and taking into account the considerations in ss 150A(2)(b)-(c).  Like Buss JA in JSA, we do not think it a phrase capable of precise explanation more than the fact that it imports a higher degree of satisfaction than the civil standard and a lower degree of satisfaction than the criminal standard.  While Murphy JA refers to a degree of circumspection or caution being applied in the modified principles of sentencing flowing from the reference to “high probability”, that, in my view, is an unnecessary gloss on the words used.  Section 150A(2)(d) provides for the degree of persuasion to be higher to reflect the consequences that flow if the SRO declaration is made.
49. [49]
    Turning to the question of error, where the sentencing judge has to be satisfied of a subjective jurisdictional fact, the proper approach of the Court in determining whether there is error is to consider whether the repository of power arrived at the relevant state of mind in the way contemplated by the legislature.^[22]  As outlined above, the Court must consider whether the sentencing judge has formed the opinion required.  Accordingly, the bases upon which the decision may be impugned as tainted by error are limited.  In effect, the applicant’s counsel appear to contend that the statement made by his Honour that he was satisfied under s 150A(2)(d) of the YJA was cast in such perfunctory terms, in circumstances where the applicant had had long periods of “separation” that impacted upon his rehabilitation, that his Honour in effect could not have formed the view to the degree of satisfaction required.
50. [50]
    However, the applicant’s contention does not take proper account of the context in which the statement by his Honour was made.
51. [51]
    In the present case, it was not in contest that the preconditions in ss 150A(1), 150A(2)(a) and 150A(2)(b)(i) had been satisfied.  As to the other matters, the learned sentencing judge considered in detail the applicant’s prior criminal history, early plea of guilty and the content of pre-sentence report, before considering the specific preconditions in s 150A to the making of an SRO, noting that it was relevant in determining how to best deal with the offending and he had considered it in the context of the Crown seeking a declaration and recording of convictions.  His Honour then specifically examined the statutory criteria which had to be met before the court could exercise its discretion as to whether a declaration should be made, stating that “there are  a number of factors that need to be considered and there are a number of criteria that need to be met before even the exercise of the discretion with regard to whether a declaration is made should be met.”  His Honour went through each individual criterion, identifying that each was met.  He stated that he had considered the pre-sentence report, as was evident from his previous remarks, considered the applicant’s previous criminal history and bail history and considered the applicant’s efforts at rehabilitation.  While his Honour noted the applicant’s efforts at rehabilitation were limited, he did take into account that the “efforts that have been made through the state and the youth centre have not been as comprehensive as might have been expected…”.
52. [52]
    When his Honour came to consider s 150A(2)(d) in the terms identified by the applicant, namely that he was satisfied commenting that “the past is the best indicator of the future”, his Honour had already considered in detail the matters to which I have referred.  Amongst those considerations discussed by his Honour were:

    1. the applicant’s limited remorse for his offending and insight into its effect;
    2. the “cycle of dysfunction and upheaval that gives rise to the difficulties” the applicant experiences;
    3. the applicant’s lack of engagement in education opportunities and pro-social activities from a young age;
    4. the applicant’s preference to associate with negative peers and engage in antisocial behaviours, particularly criminal behaviour;
    5. the nature of the offending consisting of multiple offences, particularly indictable offences;
    6. the applicant’s lengthy criminal history; and
    7. the applicant’s lack of response to court orders and rehabilitation, particularly demonstrated by the short time between him being previously convicted and recommencing offending.
53. [53]
    The sentencing judge’s consideration of these factors supports the conclusion that his Honour properly formed the requisite state of satisfaction required under the terms of s 150A(2)(d) of the YJA.  His Honour noted the shortcomings in the applicant’s rehabilitation by the State and the youth centre, which, in the context of the sentence and the evidence given, must have referred to the separation to which the applicant was subject and lack of access to rehabilitation.  His Honour, however, reached the view that in this case, that did not outweigh all the other considerations favouring the making of the declaration, such that the declaration should not be made.  That view was open in the particular circumstances of this case.
54. [54]
    In making the declaration, it is clear that his Honour was well aware of the effect of the declaration and its consequences, accurately summarising the matters to which the court had to have primary regard in sentencing upon the making of the declaration.
55. [55]
    There is no basis to suggest his Honour’s consideration was arbitrary, capricious or irrational, nor that it lacked bona fides.  His Honour carefully stepped through the requirements of s 150A(2) and the consequences of such declaration, correctly identifying the matters of which he had to be satisfied.  He directed himself properly as to the statutory test that had to be applied.  There is no evidence of error in terms of his Honour forming the high level of satisfaction required as to the applicant’s future commission of prescribed indictable offences or his reasoning process.  No error on behalf of the sentencing judge is established.  The fact that the applicant had been subject to significant separation, which limited his engagement in activities or programs that may have encouraged his rehabilitation, was considered.  However, his Honour properly balanced these considerations against the applicant’s response to rehabilitation in the past, which his Honour found to have been of little effect.  The complaints are as to matters of weight given to each matter, not an error of law.^[23]
56. [56]
    As to the oral submission that the learned sentencing judge failed to give adequate reasons in reaching the conclusion that he was satisfied within s 150A(2)(d) of the YJA, what is required in terms of adequate reasons varies depending on the circumstances of the case.
57. [57]
    Inadequacy of reasons does not necessarily amount to an appealable error.  An appeal court will only intervene in the event it determines that the inadequacy gives rise to a miscarriage of justice.^[24]
58. [58]
    The context of the decision being made is relevant in determining whether reasons are adequate or not.  They do not need to be lengthy and elaborate.  Where the dispute involves a form of intellectual exchange with reasons and analysis advanced on either side, the judge must “enter into the issues canvassed before him and explain why he or she prefers one case over another.”^[25]
59. [59]
    It is plain from the discussion above that his Honour did give adequate reasons supporting his making of the declaration, when regard is had to the reasons as a whole and the context in which the statement as to satisfaction of s 150A(2)(d) was made.  The reasons that Coker DCJ concluded the declaration should be made are evident from the sentencing remarks.  This ground is not established.
60. [60]
    As to the suggestion his Honour had not identified the prescribed indictable offence, the Crown’s submissions, which were considered by the sentencing judge, had set out the definition of “prescribed indictable offence”.  His Honour specifically referred to the consideration being “a high probability that you commit a further prescribed indictable offence” in identifying the matter to be considered.  The section does not require that the sentencing judge specifically identify “the” prescribed indictable offence that the child would commit, but rather that he be satisfied that there is a high probability that the child would commit “a” further prescribed indictable offence.  As long as the sentencing judge is satisfied that the child would commit a further prescribed indictable offence within the category of offences that are defined, that is sufficient.  Section 150A(2)(d) does not call for the prescribed indictable offence to be specifically identified.  The offences for which the applicant was being sentenced included a number of offences relating to unlawful use of a motor vehicle,^[26] which was a prescribed indictable offence.  His Honour referred to the applicant’s prior criminal history as including 30 previous offences for unlawful use of a motor vehicle.  While it may have been preferable for his Honour to have identified the prescribed offence he considered the applicant would commit relevant to s 150A(2)(d), it is evident in the circumstances and context of his Honour’s comment that “the past is the best indicator of the future”, that his Honour was satisfied that the applicant would commit a further prescribed indictable offence consistent with those he had committed in the past.  His Honour had addressed the correct matters to satisfy himself of the precondition and no error is established.

Ground 2 – failure to explain the sentence and, specifically, the making of the Serious Repeat Offender declaration

61. [61]
    In the course of his reasons, the sentencing judge explained the consequence of making the SRO in the context of its effect on the sentence to be imposed upon the applicant under s 150A(3).  However, his Honour did not explain the effect of the SRO under s 150B of the YJA in relation to any subsequent offending and any sentence that would be imposed in relation to subsequent offending.^[27]  According to the applicant, his Honour’s explanation therefore did not comply with s 158 of the YJA.
62. [62]
    Section 158 of the YJA provides that:

“(1) When making an order sentencing a child for an offence a court must take steps to ensure that the child understands—

1. the purpose and effect of the order; and

2. the consequences (if any) that may follow if the child fails to comply with the order.

2. Examples of the steps a court may take are—

1. directly explaining these matters in court to the child; or

2. having some appropriate person give the explanation; or

3. having an interpreter or other person able to communicate effectively with the child give the explanation; or

4. causing an explanatory note in English or another language to be supplied to the child.

3. Subsection (1) does not apply where the child’s presence is not required at sentence.”

63. [63]
    The majority of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority^[28] stated:

“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment ... There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.” (footnote omitted)

64. [64]
    Notwithstanding the importance of providing an explanation of a sentence imposed, there are a number of features which are indicative of a statutory intention that a failure to comply will not lead to the invalidity of the sentence imposed.
65. [65]
    The following features support the fact that the legislative purpose was not to invalidate the sentence as a result of any failure to comply with s 158 of the YJA:

    1. The section is a curious one insofar as it only requires that the court “must take steps to ensure that the child understands” the matters identified.  It outlines a number of pathways which the court may take to satisfy the section as examples, one of which is “directly explaining these matters in court to the child” but another includes having “some appropriate person give the explanation.”
    2. The provision does not apply when a child’s presence is not required at sentence.  Neither party could direct the court to an example of a circumstance where a child’s presence is not required.  Prima facie, one would have thought, if the section was intended to invalidate a non-compliant sentence, that was an occasion on which it would have been of greater importance to ensure such steps was taken.
    3. It applies to any sentence and is not limited to those sentences of offences at the more serious end.
    4. The giving of the explanation is not a precondition to the validity of the sentence.  The obligation under the section to take such steps logically follows the sentence having been determined, given it requires the court to take steps to make sure the child understands the purpose and effect of the order and the consequences that may flow from non-compliance.
    5. Given the fact the court does not need to take the steps itself to explain the sentence, but can direct others to do it or reduce the explanation to an explanatory note, the section clearly contemplates that an explanation can be provided outside of court after the sentence has been imposed.
66. [66]
    The fact that there are other sections in the YJA which provide that a failure to comply with the particular section will not invalidate a sentence, does not suggest that the legislative purpose of s 158 is such that its absence would invalidate the sentence.  Those provisions apply in a different context to s 158.  For instance, s 209 of the YJA, requires reasons to be given when making orders as to detention.  Section 209(2) provides that a court’s failure to provide reasons does not affect the sentence order, but s 209(3) does provide it is a matter to be considered on appeal or review.  Section 209 is a specific provision which only applies to detention and provides for the reasons to be given when the court makes the detention order.  That is reflective of it being a sentence at the heavier end of possible sentences, yet non-compliance does not result in invalidity.  As set out above, s 158 of the YJA is not so prescriptive and does not require that it be complied with in court.  It appears to serve as a catch-all provision given other provisions are directed to the making of specific orders.  Section 158 is also supplemented by s 160(2) of the YJA, which provides that a copy of a sentence order^[29] is to be given to a child, a parent and a chief executive.  Notably, s 160(4) provides that the failure to comply with s 160(2) does not affect the validity of the order or decision.  That further supports the legislative intent that a failure to comply with s 158 of the YJA does not invalidate the sentence, albeit not express.
67. [67]
    In the present case, the sentencing judge did explain the sentence he imposed, particularly how he had taken into account the considerations under s 150A.
68. [68]
    In any event, the making of the declaration would not appear to be part of the sentencing to which s 158 applies.  That is supported by the fact that there is a separate provision in s 150A(4) of the YJA providing for the explanation of the reasons for making the declaration.  That was complied with by his Honour in the reasons provided at the time of sentencing.  While he did not explain the effect in the future of making the SRO declaration under s 150B of the YJA, it is not part of the sentencing itself, nor is there any specific obligation to do so at the time the declaration is made.
69. [69]
    In the circumstances, his Honour did not fail to comply with s 158 of the YJA.  Even if that was the case, it would not impugn the validity of the sentence itself.

Final Ground - was the sentence manifestly excessive?

70. [70]
    The final ground upon which the applicant contends that the sentencing judge erred is that the sentence was manifestly excessive, given the applicant’s early plea, conditions of pre-sentence custody and deprived background.  The Crown contends that the sentence was not manifestly excessive, given that the applicant was an older juvenile with a lengthy criminal history and, when he reoffended, he breached court orders.  The Crown also contends that the offences arising out of “ram raids” show an escalation in offending.  It contends that the SRO obliged the court to have regard to factors which would have aggravated the sentence and that the sentence of 18 months detention fell well short of the maximum penalty, even though the offending was at the serious end of such offending and was accompanied by other offending.
71. [71]
    The applicant acknowledged in oral submissions that, if the court did not consider that the SRO was made in error, the applicant would face considerable difficulties in establishing that the sentence was manifestly excessive on the basis that a conditional release order should have been imposed.  However, even in that case, counsel for the applicant maintained that the sentence was manifestly excessive having regard to the applicant’s deprived background and the extent of his separation in pre-sentence custody.
72. [72]
    The learned sentencing judge took into account the applicant’s early plea, conditions of pre-sentence custody and deprived background in determining the sentence to impose, as well as carefully considering whether other sentences could be imposed rather than detention.  Having considered the alternatives, many of which were canvassed in the pre-sentence report, his Honour determined that the sentence ordering detention was the appropriate sentence.  In doing so, his Honour acknowledged that detention is a last resort, even when an SRO is made.
73. [73]
    The applicant does not point to any particular cases which demonstrate a sentence is manifestly excessive.  Rather, counsel sought to point to the importance of certain considerations and while she did not contend his Honour had erred in not considering them, contends that the sentence imposed in light of those matters was manifestly excessive.
74. [74]
    In order to establish a sentence is manifestly excessive, it is not enough to establish that a sentence was different or even markedly different from sentences imposed in other matters.  It must be demonstrated that the difference is such that the court “is driven to conclude that there must have been some misapplication of principle”,^[30] or that the sentence is “unreasonable or plainly unjust”.^[31]
75. [75]
    The applicant submitted that R v H,^[32] which had been relied upon by the Crown to support a sentence of between 12 months to 2 years detention for the most serious offences and was one of the cases to which his Honour referred, did not support the fact that detention was the only appropriate order in this case.
76. [76]
    R v H supports the making of such an order and the sentence imposed.^[33]  In that case, the applicant was 16 at the time of the offences and 17 at the time of sentence.  He had been sentenced for a total of 20 offences to which he pleaded guilty.  All bar one of the ten counts of burglary were committed in the period between March and June of 2000.  Other than burglary, the applicant had committed two counts of attempted burglary, five counts of unlawful use of a motor vehicle, two counts of breaking, entering and stealing, and one count of stealing.  The applicant in R v H was sentenced to two years in detention with a declaration that a period of 163 days in pre-sentence custody was time already served under the detention order.  In R v H, the applicant, like the applicant, had a substantial and extensive prior criminal history, for which he had been subject to various sentences.  These sentences included two detention orders, one of which was for eighteen months detention with an order that he be released after serving fifty per cent of that term for various property and dishonesty offences and six offences relating to unlawful use of a motor vehicle.  The applicant’s’s previous sentences had included a restorative justice order, a conditional release order, three actual detention orders in November 2021, February 2022 and October 2022 and probation for nine months ordered on 18 January 2023.  The applicant in R v H, like the applicant, had an unfortunate family life, with his parents having separated early in his life.  Although, unlike the applicant in this case, he said at the time of the hearing that he had the support of his family.  The applicant in R v H was a drug addict and had made some progress in a rehabilitation program, although he used marijuana towards the end of the program.  The applicant in this case is said to have been using methylamphetamine at the time of committing the offences, which he had been using since he was 13, but there was no evidence of any rehabilitation in that regard.  Notwithstanding the support of the applicant’s family in R v H and steps taken towards rehabilitation, neither of which are evident in the present case, the Court of Appeal found the detention order was appropriate and did not consider the term was excessive when “one has regard to his previous offences and the sentences previously imposed upon him and the seriousness of the offences…”.^[34]  Although there is no indication that applicant in R v H had been subject to separation while in custody, as in the present case, the case of R v H supports the sentence imposed, particularly given his Honour reduced the head sentence to 18 months.
77. [77]
    It was relevant to the sentence in the present case that the applicant had a deprived background, being exposed to the infliction of physical harm (particularly by his father), domestic violence, neglect, inadequate supervision and parental substance abuse, which were outlined in detail in the pre-sentence report.  The effects of the applicant’s deprived background, which does not diminish over time, must be given full weight in sentencing.^[35]  Those considerations are, however, suborned to the considerations outlined in s 150A(3) of the YJA, to which the court must have primary regard in sentencing.  The seriousness of the offending, the repeated offending of a similar nature which had not been deterred by previous orders and lack of any significant rehabilitation or remorse were also relevant matters which enlivened the specific considerations under s 150(3)(a), (c)-(e) to be considered.
78. [78]
    Concerningly, the applicant was subject to long periods of separation.  This included his being confined to his room for extensive hours with limited periods of time for recreation, to engage in programs and attend education and recreation programs.  He generally had access to health professionals, case workers, staff and phone services and visits and was provided with what is described as some educational activities during that time.  The confinement was largely due to staff shortages at the youth detention centres.  The period of separation was, as the sentencing judge quite aptly stated, “a disgrace and an embarrassment to every right-minded member of our community.”  It serves the applicant and the community no benefit if a youth offender is ordered to serve detention, but then has minimal access to rehabilitation to assist the offender to change his or her behaviour before being released into the community and entering into adulthood.  While “separation” is not necessarily as harsh as solitary confinement, it is not significantly different when large periods of time are spent by a youth in isolation and confined to their room.  The deleterious effects of detention in those circumstances has been noted in decisions of this Court and others.
79. [79]
    His Honour did, however, recognise the periods of separation and its negative effects, citing in particular the comments of Fantin DCJ in R v TA.^[36]  Consistent with the principles in R v Atasoy,^[37] his Honour did make adjustments to decrease what he considered would otherwise have been the appropriate head sentence for the most serious offences by six months and the period to be served before release to fifty per cent to take account of the separation and other mitigatory factors.  While the applicant’s counsel contended that the guilty plea alone would have justified the reduction of time to be served in detention to fifty per cent, there is, as she properly conceded, a broad discretion under s 227(2) of the YJA.  The Crown pointed out that notwithstanding the early plea of guilty, the question of release would have also taken into account the offending by the applicant while on probation and release at fifty per cent of the period of detention being served would not have necessarily been considered appropriate.  We accept that to be so.  Relevantly, the sentencing judge observed that:

“The great tragedy here, as I have sought to emphasise, is that only a matter of weeks after release from the last period of detention, whilst still subject to supervision and still subject to a probation order, exactly the same thing occurred. In fact, an escalation in relation to it…”

80. [80]
    His Honour accepted the value of the plea of guilty as a positive and that the applicant would have the benefit of it, notwithstanding the evidence of offending excluded any possibility of a defence and the plea did not appear to be the result of remorse.  In that regard, his Honour referred to the pre-sentence report, where the author had stated that the applicant lacked insight and remorse in relation to his offending.
81. [81]
    The applicant also submitted that the periods of separation affected rehabilitation opportunities.  There is no doubt there was evidence that the periods of separation had some effect of inhibiting the applicant’s rehabilitation opportunities.  That, again, was recognised by the sentencing judge.  His Honour, however, found that the rehabilitation opportunities the applicant did have available were not “great” and were contributed to by his “stepping away” from education from the age of 11 or 12.  He found that the applicant’s response to numerous orders to facilitate rehabilitation had not had a great effect, with the applicant offending within five to six weeks of his release from detention and less than a week after a probation order was made.
82. [82]
    The applicant’s Counsel contends that the detailed proposed conditional release order, which had identified programs for which the applicant was suitable, was an available alternative to detention which would be adequate to serve all the purposes of punishment and was required to be considered, consistent with the statement of Sofronoff P in R v SCU^[38] and Mullins P and Bond JA in R v SDW^[39].  The learned sentencing judge was aware of SCU having expressly referred to it in his reasons.  His Honour clearly considered possible alternatives to detention in his reasons, a number of which had been canvassed in the pre-sentence report.  He considered each was not appropriate, particularly in light of the fact such orders had been imposed before and had not changed the applicant’s behaviour.  He stated, in relation to the previous conditional release order and supervised release orders, that “Notwithstanding those, and in particular the services and assistance provided, offending has reoccurred repeatedly.”
83. [83]
    The learned sentencing judge further stated that:

“For the record, again I would therefore reflect here that I am not at all satisfied that a conditional release order would meet the expectations that arise, particularly now in the circumstances where there is also the requirement to specifically consider protection of the members of the community and the previous disregard by you of the interests of the public and the community.”

84. [84]
    As the applicant contends the considerations of the SRO had an effect on the sentencing judge’s consideration of the conditional release order given the above comments, but as was fairly conceded by the applicant’s Counsel, his Honour’s approach was aligned with legislative intent.  Similarly, his Honour was well aware that the realigning of factors that had to be considered in sentencing due to the SRO did not displace the need to consider all matters detailed in the YJA “with regard to consideration of the effects upon a child of penalties, and to assure the community as a whole that detention is the last resort.”
85. [85]
    While the sentencing judge could have combined the detention order on some offences with a probation order on others, his Honour had considered the prospect of probation and stated why it was not appropriate.  It is relevant that s 228 of the YJA empowers the Chief Executive to make a supervised release order upon a youth’s release from detention, which can include a direction to attend programs without a probation order.  The lack of provision for the alternative does not make the sentence excessive.
86. [86]
    His Honour carefully considered all relevant matters and options and mitigating factors before imposing the sentence.  There is no matter to which we have been directed which supports the sentence being a misapplication of principle or being oppressive and unjust, as harsh as the sentence may be on a young man such as the applicant.
87. [87]
    The sentence imposed upon such a young man who is still in his formative years, albeit close to what is regarded as adulthood, is at the most serious end of sentencing for a youth offender.  The applicant has continued to offend on multiple occasions, committing indictable offences, notwithstanding previous opportunities to avoid detention on multiple occasions, with attempts at rehabilitation having little success.  His participation in offending involving unlawful use of a motor vehicle and, particularly, ram raids posed a risk to the safety of the public.  His history of previous offending supported the fact it was likely to continue and would not be contained by any community-based order.  In the circumstances of this case, where the sentencing judge properly concluded the preconditions to making the SRO were satisfied, the sentence imposed was open on the facts, notwithstanding the mitigating factors, particularly the periods of separation.  However, notwithstanding the introduction of ss 150A and 150B of the YJA, sentencing courts should not lose sight of the fact that the principles of s 150 continue to apply and detention should only be imposed as a last resort.

Conclusion

88. [88]
    The application for leave should be refused.