R v MEO[2025] QCA 103

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  I agree with the reasons for judgment of Burns J and with the orders proposed by his Honour.
2. [2]
   BRADLEY JA:  I agree with Burns J.
3. [3]
   BURNS J:  On 17 September 2024, the applicant pleaded guilty in the Childrens Court at Townsville to 73 separate offences. Count 1 – an unlawful use offence – was committed on 20 November 2022. All other offences were committed over a 20-day period which commenced precisely one year later. In total, there were 22 offences of unlawful use of a motor vehicle, 39 offences of entering or attempting to enter residences or commercial premises (with or without various aggravating features), seven offences of stealing, two offences of dangerous operation of a motor vehicle, two offences of going armed in public so as to cause fear and one offence of wilful damage. The applicant’s pleas of guilty were early.
4. [4]
   The applicant received an effective head sentence of two years detention with release after serving 70 per cent of that period, with the learned sentencing judge recording convictions on 44 of the 73 counts. The applicant was also declared to be a Serious Repeat Offender pursuant to s 150A of the Youth Justice Act 1992 (Qld) and disqualified from holding or obtaining a driver’s licence for a period of two years.
5. [5]
   The applicant seeks leave to appeal against this sentence on the sole ground that it was manifestly excessive. No complaint was made about the effective head sentence. Rather, as his application was argued, the overall sentence was said to be manifestly excessive because the sentencing judge did not sufficiently take into account factors in mitigation: (1) in declining to set the applicant’s release from detention at an earlier point in time than the 70 per cent mark; and (2) by recording convictions for so many of the offences.
6. [6]
   Of course, the weight to be given to any one factor is a matter for the sentencing judge when exercising the sentencing discretion, and a contention to the effect that insufficient weight was accorded to a particular mitigating factor cannot justify the court setting aside the sentence.^[1] The question for this Court is whether the sentence was manifestly excessive having regard to all the relevant sentencing factors and taking into account whether or not, and the degree to which, the sentence differs from sentences that have been imposed in comparable cases. If so, it may be possible to conclude there had been some misapplication of principle resulting in manifest excess.
7. [7]
   Also, it is important to keep in mind that once the applicant was declared to be a Serious Repeat Offender, the making of which declaration was not opposed in the court below or challenged in this Court, the sentencing judge was required to have primary regard to the need to protect members of the community, the nature and extent of any violence used in the commission of the offences, the extent of disregard by the applicant for the interests of public safety in the commission of the offences, the impact of the offences on public safety and the applicant’s previous offending history and bail history.^[2] That is not to say that other factors such as the rehabilitation of the offender did not also fall for consideration,^[3] but they were not the primary focus of the sentencing task.

The applicant

8. [8]
   The applicant was 16 years and five months of age at the time of sentencing. When count 1 was committed, he was 14 years of age and on three months probation. That order was imposed by a Childrens Court magistrate at Townsville on 20 October 2022 for similar offending. By the time the balance of the subject offending took place, he was 15 and had been back before a Childrens Court magistrate on three further occasions (23 February 2023, 11 May 2023 and 30 October 2023) to be dealt with for a multitude of similar offences. Counts 2 to 73 were committed in breach of a Conditional Release Order that was imposed on the last of these occasions.
9. [9]
   A pre-sentence report placed before the court below established that the applicant is indigenous with cultural connections to Palm Island and Townsville. He had been exposed to a number of adverse childhood experiences, including domestic violence, and there was a lack of supervision and disregard for authority. The applicant was firmly associated with anti-social peers and engaged in substance abuse, having first begun using marijuana at the age of 14 years and methamphetamine shortly thereafter. He told the report writer he was under the influence of methamphetamine and marijuana at the time of the subject offending. The applicant had a poor school attendance history and had no greater reading proficiency than a Year 2 student. Each of these factors was regarded by the author as predisposing the applicant to involvement in the subject offences. His fragmented engagement in education, combined with a lack of adult supervision, were reported to be particular contributing factors. So too were what the report writer described as the applicant’s “anti-social and pro-criminal attitudes”. The applicant had a low level of insight into the impact of his offending and a limited understanding of the magnitude of his offending. The author of the report considered he lacked remorse and understanding of the severity of his overall conduct. For example, the applicant told her he liked “committing crime and feels happy stealing cars, doing burnouts in these cars and stealing money”. He boasted that he was “the leader not the follower during the offending”. Although the applicant was able to identify some potential emotional impacts experienced by his victims, other road users and police, he said he “likes to drive stolen vehicles in a dangerous manner”. 
10. [10]
    Whilst in detention awaiting sentence, the applicant had engaged with Lives Lived Well for substance use intervention but disengaged on 10 June 2024. He was, however, still engaged at the time of the assessment for the pre-sentence report with a psychologist for “stress, anxiety and emotional regulation” and was on a waitlist for two programs – Changing Habits and Reaching Targets and Emotional Regulation and Impulse Control. He was also enrolled in classes teaching numeracy, literacy, and the like and had received 10 positive behaviour reports during his tuition. As against that, the applicant also received six minor incident reports relating to poor behaviour, defiance and abusive language in the classroom. Also, whilst on detention, he was the subject of 62 recorded incidents and 58 behavioural issues relating to assaults as well as “risk causing/disruptive behaviour”. There were also one incident and nine behavioural issues involving inappropriate behaviour.
11. [11]
    At the date of sentencing, the applicant had been in detention for 282 days, of which 228 days was attributable to the offending the subject of this application. The sentence imposed by the learned sentencing judge will see the applicant released from detention on 26 June 2025, after a total of 511 days in custody, including a period of 54 days which was served by the applicant with respect to a six-month detention order that had earlier been imposed.

The offending

12. [12]
    The overall offending was both persistent and serious. In tandem with unknown co-offenders, the applicant entered, or attempted to enter, 28 separate residential and commercial properties and stole various items of property. A total of 22 different motor vehicles were also unlawfully used. Two shops were the subject of ram-raids using stolen vehicles. In all, 10 victims were personally confronted by the applicant’s conduct. An array of possessions was stolen, and damage was caused to a large number of properties and vehicles.
13. [13]
    In one episode of offending – counts 21 and 22 – the applicant and his co-offenders were disturbed by a female occupant after entering her home at night. The applicant pointed a replica firearm at her, pulled the trigger and then laughed when she reacted out of fear. They then decamped in three stolen vehicles. In another episode – count 53 – the complainant filmed the applicant driving a stolen motor vehicle on a vacant lot near her home. The applicant saw her filming and drove to her address where he twice rammed the complainant’s motor vehicle which was parked in her driveway. In the case of counts 60 to 62, the complainant was driving her vehicle near the Stockland Shopping Centre. The applicant and his co-offenders were in a stolen vehicle travelling immediately in front of the complainant’s vehicle. The stolen vehicle began “brake-checking” the complainant before reversing in an attempt to ram the complainant’s vehicle. The complainant managed to drive away but was pursued by the stolen vehicle which, when it caught up, rammed the back of her vehicle several times. Again, the complainant managed to accelerate away before stopping her vehicle adjacent to a school so that she could call the police. While her vehicle was stationary in that position, it was rammed by the stolen vehicle, shattering the side window adjacent to the complainant. The applicant alighted from the stolen vehicle armed with some sort of tool. He used it to smash the rear driver’s side window of the complainant’s vehicle and yelled, “We are from the C-gang, don’t mess with us you fucking bitch”. The complainant again accelerated away and, again, was pursued by the stolen vehicle. When she came to a halt, her vehicle was rammed from behind again. The applicant and a co-offender then emerged. They were “armed with tools” and approached the driver’s side window of the complainant’s vehicle, but retreated to the stolen vehicle and sped away when several neighbours in the vicinity who had been disturbed by the commotion appeared. Unsurprisingly, this offending had significant and lasting adverse effects on the complainant, as a victim impact statement before the court made clear.

The sentence

14. [14]
    When handing down the sentence, the sentencing judge outlined the facts of the offending which, when taken together, were rightly described by his Honour as brazen, lawless and gratuitous. It was also observed that the applicant “caused immense fear and apprehension within the community at large”. His Honour noted that count 1 was committed when the applicant was on probation and that the balance of the offending was committed whilst the applicant was the subject of a conditional release order. His Honour observed that the applicant had developed a lengthy criminal history for similar offending by the time counts 2 to 73 were committed, and remarked that this bracket of offending was “by far and away the most serious that [the applicant has] thus far engaged in”. His Honour concluded that “what the courts have done to the present time has had no positive effect whatsoever”. In his Honour’s view, not only did the sentencing orders previously made fail to deter the applicant from offending, his offending was “getting worse”.
15. [15]
    After weighing up whether a Serious Repeat Offender Declaration should be made, the sentencing judge said:

“Taking into account your previous offending history, your lack of remorse, your pro-criminal attitudes as identified in the pre-sentence report, your absence of efforts at rehabilitation, the serious nature and number of the offences, your high risk of reoffending, all together with the fact that you do have a previous order of detention for a prescribed offence, lead, as I have said, to the inevitable conclusion that this is an appropriate matter where such a declaration is made, and I so order.”

16. [16]
    His Honour then turned to a consideration of the contents of the pre-sentence report. A comprehensive summary of the essential features of that report were incorporated in his Honour’s sentencing remarks but, even more importantly, it is clear from what his Honour said that those features were carefully analysed and then weighed in the exercise of the sentencing discretion. In these respects, particular attention was paid to the various factors identified by the author of the pre-sentence report as contributing to the overall offending, that is to say, the applicant’s adverse childhood experiences, lack of supervision, disregard for authority, disengagement from education, anti-social peer influences and substance abuse. His Honour also noted the author’s view that the applicant did not appear remorseful and had a low level of insight into the impacts of his offending. His Honour said:

“You told the author, in fact, that for some of these offences, your deliberate intention was to cause fear to other people, whether that be road users or other victims of crime, and that you like driving stolen vehicles in a dangerous way. The author noted that you seemed to struggle to understand the extent of harm that your actions can cause to others. Again, which is completely inconsistent with remorse or regret for your actions.”

17. [17]
    In the court below, the Crown prosecutor submitted that a head sentence of two and a-half years detention should be imposed, whereas the applicant’s counsel contended for a head sentence of two years and that it should attach to only a handful of the offences. The applicant’s counsel also submitted that the court should “conclude that there are special circumstances such that [the applicant be required] to only serve 60 per cent of the sentence imposed”. His Honour acknowledged that the applicant had entered an early plea to all counts, but expressly found this was not “indicative of remorse”. Nonetheless, his Honour accepted that the early pleas saved the community the cost of a lengthy trial. His Honour then remarked that the “entirety of the offending conduct” would attract a sentence of two and a-half years in detention, but he had decided to reduce it to two years because of the early pleas.
18. [18]
    The sentencing judge then turned to the question whether release at an earlier point in time than the 70 per cent mark should be ordered. In that regard, the Crown accepted that it might be open to his Honour to order the applicant’s release at a point that was “somewhat less than 70 per cent”, but that there were “no matters in mitigation that would warrant release at the 50 per cent mark”. For the applicant, it was submitted he should be released after serving 60 per cent of the total period. However, his Honour was not satisfied that special circumstances existed such that he could order the applicant to serve less than the mandated 70 per cent: This was said:

“I am not of the view, though, that special circumstances exist such that I ought order that you serve less than the mandated 70 per cent that is otherwise required. I also do not agree with your counsel as to those charges to which the maximum – or the head sentence that is of two years’ detention, ought be attached. In my view, it is many more. As I have said, there are many serious offences here, and it seems to me that those that are most serious ought to reflect that by the imposition of an appropriate penalty. There can be no doubt that the most significant consideration on the sentence here is protection of the community. Your behaviour at times has put people at immense risk.

General and personal deterrence are also significant considerations on sentence. Your rehabilitation is a significant consideration on sentence. If you were somehow able to rehabilitate, it would be in your best interests, and therefore the community’s best interest. But I must say, you have provided precious little by way of hope that you are at a stage in life where you are striving to rehabilitate.

Given that I have made a Serious Repeat Offender Declaration, [s 150A(3)] has application which details matters that the court must have primary regard to. That includes the need to protect members of the community, the nature and extent of violence, if any, used in the commission of the offence, the [extent] of any disregard by the child in the commission of the offence for the interests of public safety, the impact of the offending conduct on public safety, and … your previous offending history and bail history.

So taking all those matters into account together with everything else that I have referred to during the course of these remarks, I order that you be sentenced to two years’ detention on the following offences.” 

19. [19]
    His Honour imposed that sentence on 18 of the offences, with lesser concurrent periods of detention for the balance. His Honour then said:

“And as I have indicated, I am not satisfied that special circumstances exist such that the requirement that you serve 70 per cent be reduced to anything less. I therefore order that you serve 70 per cent, having taken the plea of guilty into account in the reduction of the head sentence.”

20. [20]
    His Honour next considered whether convictions ought be recorded. In this regard, it had been submitted on the applicant’s behalf in the court below that the recording of convictions should be limited to what were described as the “three most serious counts”, that is to say, counts 21, 53 and 60. The Crown on the other hand submitted that a conviction should be recorded with respect to 44 of the 73 counts. His Honour agreed with the Crown’s submission:

“I then turn to the issue of the recording of convictions. I acknowledge, of course, that the recording of a conviction against a child offender is a very big step to take because of the potential harm it may do and the impact that it may have on the child’s rehabilitation and finding or maintaining employment. I take into account the provisions of [sections] 183 and 184 of the Youth Justice Act in that regard, which includes taking into account the nature of the offences, your age at the relevant time, any prior convictions, … and the impact that a recording of a conviction will have on your rehabilitation and in finding and maintaining employment.

In my view, the serious nature of this offending conduct, in the full context of all of the offences and all of the relevant considerations on sentence, mean that convictions ought be recorded on many of these charges. You have provided little by way of indicating that you wish to change your ways. In fact, you have provided nothing in that regard. Your prospects of finding employment presently are non-existent. That is not to say that that will be the position in the future, I appreciate that. But when one takes into account the matters that need and ought be taken into account on a matter of this nature, in my view it is appropriate that convictions be recorded such that the public can be aware of this dreadful offending on the following counts.

And I will deal with them via nature of type of offending conduct. So convictions are recorded in respect of the charges of unlawful use of a motor vehicle. They are counts 1, 2, 3, 17, 23, 24, 26, 27, 29, 31, 35, 36, 40, 42, 43, 49, 52, 54, 63, 64, 70 and 73. I then turn to the offences of burglary and stealing. Convictions are recorded for those offences. They being counts 4, 9, 16, 30, 32, 39, 45, 48, 50, 51, 56, 57 and 72. I then turn to the charges of burglary by break in the night. Convictions are recorded in that regard in respect of counts 10, 21 and 41.”

The first argument – release from detention

21. [21]
    Section 227 of the Act governs the release of children after serving a period of detention. As that provision stood at the date of sentencing, a child sentenced to serve a period of detention could not be released before he or she had served 70 per cent of that period unless an order was made under subsection (2). By s 227(2), the court could order that the child be released “after serving 50 per cent or more, and less than 70 per cent” of the period of detention if satisfied “special circumstances” existed.
22. [22]
    In this Court, it was argued on behalf of the applicant that, in refusing to order release at an earlier point in time, the sentencing judge failed to turn his mind to “significant matters of mitigation including the possible rehabilitation of the applicant”. It was submitted that the sentencing judge ought to have considered the applicant’s adverse childhood and social disadvantage which, combined with disengagement from education and a lack of supervision, set him on a path of offending. It was also submitted that the sentencing judge ought to have considered in mitigation that the applicant had already been in detention for a total of 282 days, of which 54 days was served by the applicant with respect to the six-month detention order that had earlier been imposed.
23. [23]
    The applicant’s counsel acknowledged to this Court that, the appeal ground being one of manifest excess and not specific error, the applicant’s case was that, even though the applicant could not identify specific error by the sentencing judge, the sentencing judge’s refusal to order release at an earlier point in time was so unjust or unreasonable that this Court should infer error.^[4] I am by no means persuaded that such an inference should be drawn,
24. [24]
    His Honour paid close attention to the contents of the pre-sentence report where the various matters relied upon by the applicant in this Court in support of this argument were canvassed. As for the possibility of rehabilitation, the fact of the matter is that the applicant had not demonstrated much of a commitment to his rehabilitation by the time of his sentence but his Honour nevertheless observed that the applicant’s rehabilitation was a significant consideration on sentence and remarked that, if the applicant was “somehow able to rehabilitate, it would be in [his] best interests, and therefore the community’s best interest”. Later, when his Honour observed in a different context that the applicant had “provided little by way of indicating that you wish to change your ways” and that his prospects of finding employment were “presently non-existent”, he added, “that is not to say that that will be the position in the future”. Furthermore, although his Honour did not specifically refer to certain aspects of the pre-sentence report which touched on a number of positive indicators concerning the applicant since he had been on remand – e.g., engagement with a psychologist, the receipt of tuition for literacy and numeracy and treatment until June 2024 for substance abuse – it would be wrong to conclude (and nor was it submitted on behalf of the applicant) that these indicators were in some way discounted or even ignored when it was abundantly clear his Honour carefully considered the whole of the pre-sentence report. Shortly stated, it is plain the sentencing judge gave such weight to the applicant’s rehabilitation as the material before the court justified. Likewise, his Honour must be taken to have been well-aware of the applicant’s period on remand net of the time served with respect to an earlier order of detention. Indeed, a Remand in Custody Report appended to the pre-sentence report made clear that the applicant had been detained for a total of 282 days and, of that, for 54 days he was detained for another sentence.
25. [25]
    In the end, on the whole of the material before the court below, it cannot be concluded that the finding that there were no special circumstances such as would justify earlier release pursuant to s 227(2) of the Act was so unjust or plainly unreasonable that this Court should infer error. This argument fails.

The second argument – recording convictions

26. [26]
    At the time of the sentence, ss 183 and 184 of the Act provided as follows:

3. “183
   Recording of conviction

3. (1)
   Other than under this section, a conviction is not to be recorded against a child who is found guilty of an offence.

3. (2)
   If a court makes an order under section 175(1)(a) or (b), a conviction must not be recorded.

3. (3)
   If a court makes an order under section 175(1)(c) to (g) or 176 or 176A, the court may order that a conviction be recorded or decide that a conviction not be recorded.

3. 184
   Considerations whether or not to record conviction

3. (1)
   In considering whether or not to record a conviction, a court must have regard to all the circumstances of the case, including—

3. (a)
   the nature of the offence; and

3. (b)
   the child’s age and any previous convictions; and

3. (c)
   the impact the recording of a conviction will have on the child’s chances of—

3. (i)
   rehabilitation generally; or

3. (ii)
   finding or retaining employment.

3. (2)
   Except as otherwise provided by this or another Act, a finding of guilt without the recording of a conviction is not taken to be a conviction for any purpose.

3. (3)
   A finding of guilt against a child for an offence without the recording of a conviction stops a subsequent proceeding against the child for the same offence as if a conviction had been recorded.”

27. [27]
    There can be no doubt the sentencing judge had regard to these provisions when deciding whether convictions should be recorded in this case. However, while the applicant accepted it was open to his Honour to record convictions with respect to what were described as “the most serious offences” – counts 21, 53 and 60 – it was submitted that his Honour failed to consider the impact recording convictions for an additional 41 offences would have on the applicant who was already disadvantaged by a limited education, a dysfunctional upbringing, a lack of supervision and other factors. It was also submitted that the sentencing judge placed too much weight “on the full context of the applicant’s offending” by recording convictions in the case of offences “that otherwise would not have ordinarily attracted convictions to be recorded”.
28. [28]
    Dealing first with the second part of that argument, a sentencing judge is required to have regard to “all the circumstances of the case” and this will, where applicable, include the circumstance that an individual offence is a component part of a wider body of offending making up the “case”.^[5] Plainly, it was right for the sentencing judge in this case to have regard to the overall offending when deciding whether or not to record convictions.
29. [29]
    As to the other part of this argument, the sentencing remarks make clear that his Honour was concerned to ensure that the convictions which were recorded gave an accurate picture of the applicant’s offending. Acceding to the applicant’s request to only record convictions on such a small number of offences would convey a misleading picture of both the nature and extent of the offending, as his Honour found. Otherwise, I am quite unpersuaded the sentencing judge failed to consider the impact doing so would have on the applicant’s prospects of rehabilitation, including his prospects of securing employment in the future. After all, his Honour expressly acknowledged that “the recording of a conviction against a child offender is a very big step to take because of the potential harm it may do and the impact that it may have on the child’s rehabilitation and finding or maintaining employment”. Then, after doing so, his Honour decided that it was necessary to record convictions on 44 of the offences so that the “public can be [made] aware of the extent of his offending”. In this way, his Honour was therefore “positively satisfied”^[6] a conviction should be recorded in the case of those offences. Indeed, such a conclusion was not only open on the material before the sentencing judge, it might also thought to be compelled by it. Once that is accepted, it was open to record convictions on the offences in question. This argument also fails.

Disposition

30. [30]
    It follows that neither argument advanced by the applicant to support the contention that the overall sentence in this case was manifestly excessive can be accepted.
31. [31]
    For these reasons, it is my view that leave to appeal must be refused.