R v HCZ[2025] QCA 147

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  I have had the advantage of reading in draft the reasons for judgment of Boddice JA.  His Honour’s recitation of the salient facts and of the way in which the sentencing judge approached his task permit me to identify in a relatively summary way why I reach a different conclusion to that reached by his Honour.
2. [2]
   As his Honour explained in his analysis of ground 1 of the appeal, the question whether the offence was such that pursuant to s 176(3) of the Youth Justice Act 1992 (Qld) the sentencing judge was empowered to order a child to be detained for a period of more than 10 years turned on whether the judge considered the offence met the statutory criterion of being “particularly heinous” having regard to all the circumstances.  That is a question which admits of “but one legally permissible answer, even if that answer involves a value judgment”.^[1]  Accordingly, the standard of appellate review applicable to a ground of appeal which alleges an error has been made in the application of the statutory criterion is the Warren v Coombes^[2] correctness standard and not the House v The King^[3] deferential standard.
3. [3]
   I agree with Boddice JA, for the reasons which his Honour gives, that the primary judge did not err as alleged in ground 1.
4. [4]
   Once a decision was correctly made that the offence met the “particularly heinous” statutory criterion, the task for the sentencing judge was to arrive at a single sentence up to and including the maximum of life,^[4] which was just in all the circumstances, but which had due regard to all of the relevant factors, some of which might pull in different directions and some of which might be inconsistent.^[5]
5. [5]
   In the present case, pursuant to ss 227(1) and (2) of the Youth Justice Act 1992 (Qld), the child would be released after serving the statutory default of 70 per cent of the period of detention to which he was sentenced unless the sentencing judge considered there were special circumstances, in which case the sentencing judge could order the child be released from detention after serving 50 per cent or more, and less than 70 per cent of the period of detention.  At the time the child was required to be released, and for whatever was the remaining proportion of the period of detention to which he had been sentenced, the child would be subject to a supervised release order imposed by the chief executive under s 228.
6. [6]
   Thus the process of determining the appropriate single sentence required the sentencing judge not merely to consider an appropriate head sentence of a period of detention, but also to consider the extent to which the child should serve in detention before the child would be released subject to a chief executive’s supervised release order.
7. [7]
   The determination of the appropriate single sentence to be imposed on the child is, ex hypothesi, a determination which “tolerates a range of outcomes”.^[6]  The applicable standard of appellate review is the House v The King deferential standard.  This court’s task on appeal is the familiar one of determining whether the sentencing discretion has miscarried either because of specific or inferred error.  As Boddice JA has recognised, neither ground 2 nor ground 3 raised a case of specific error.  In particular, neither appeal ground suggested that the sentencing judge had made a specific error when, having considered all the circumstances, he formed the view that he did not consider that there were special circumstances warranting an order of a reduced minimum period of detention.  Accordingly, as the High Court observed in R v Pham:^[7]

“Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”

8. [8]
   I respectfully record however that I am unable to agree with Boddice JA that the sentence in this case was such that this court should infer that there must have been some misapplication of principle.  The sentencing judge carefully considered all the relevant factors including both the plea of guilty and the question whether special circumstances existed such as would justify earlier release pursuant to s 227(2).  The sentencing judge imposed a 14-year sentence and found that there were no special circumstances.  The result was that the child would have to serve about 9 years and 10 months in detention (inclusive of pre-sentence detention) and would, on release, be made the subject of a supervised release order for 4 years and 2 months for the particularly heinous murder of a mother in front of her family on the front lawn of the family home.
9. [9]
   I am unable to conclude that the outcome imposed by the sentencing judge was so unjust or plainly unreasonable that this Court should infer error.
10. [10]
    If, for example, the 70 per cent statutory default was reduced to 60 per cent as Boddice JA would do, the child would have to serve about 8 years and 5 months in detention (inclusive of pre-sentence detention) and would, on release, be made the subject of a supervised release order for 5 years and 7 months.  To my mind the difference in outcome between that imposed by the sentencing judge and that which Boddice JA would impose bespeaks merely that the legal standard tolerates a range of outcomes, each of which could be reached in the proper exercise of the sentencing discretion.
11. [11]
    I would conclude that the applicant has not demonstrated the sentence was manifestly excessive.  I would refuse the application for leave to appeal sentence.
12. [12]
    BODDICE JA:  On 11 March 2024, the applicant, a juvenile, pleaded guilty to one count of burglary (by breaking, in the night, while armed, in company) (count 1), one count of murder (count 2), one count of malicious act with intent (count 3) and one count of assault occasioning bodily harm, in company (count 4).
13. [13]
    On 13 May 2024, the applicant was sentenced to detention for a period of 14 years in respect of the count of murder and lesser concurrent periods of detention in respect of the remaining counts.  It was ordered that a period of 503 days spent on remand be taken as time served under the periods of detention.
14. [14]
    No specific order was made in relation to the time to be served in detention prior to release.  Accordingly, the applicant was required to serve 70 per cent of the ordered detention period prior to release.^[8]
15. [15]
    The applicant seeks leave to appeal the sentence for murder.  Should leave be granted, three grounds are relied upon by the applicant.  First, that the sentencing judge erred in finding that the offence of murder was “particularly heinous”.  Second, that the sentencing judge failed to give any or any adequate weight to the applicant’s pleas of guilty and personal circumstances.  Third, that the sentence, in all of the circumstances, was manifestly excessive.

Background

16. [16]
    At the time of the offence, the applicant was 17 years of age.  He was aged 19 at the date of sentence.
17. [17]
    The applicant had an extensive criminal history, commencing when aged 15 years.  He had not previously been ordered to serve detention.  He had, on three occasions, been placed on a probation order.

Indictment

18. [18]
    All of the offences were committed on the evening of 26 December 2022 at a home in a suburb north of Brisbane.
19. [19]
    The count of murder was charged as a felony murder pursuant to s 302(1)(b) of the Criminal Code (Qld).  It was particularised as the applicant forming a common intention with another male to steal from the deceased’s residence whilst armed and in the execution of that unlawful purpose the applicant thrust a knife at the deceased to deter resistance or avoid apprehension when the thrusting of that knife was an act of such a nature as to likely endanger human life.

Sentence hearing

20. [20]
    The sentencing hearing was conducted on the basis of an agreed statement of facts.
21. [21]
    Relevantly, the statement of facts recorded the following matters:

    1. The offences were committed at approximately 11.30 pm on 26 December 2022 in a residential area.
    2. The relevant residence, which was occupied by the deceased, her husband and their two teenage daughters, had a home security closed circuit television system (CCTV) which captured the front porch and front lawn and could be monitored by a mobile phone application.
    3. The family ordinarily locked their front door, but on this night the front door was inadvertently unlocked.
    4. The applicant had spent most of the previous day at a residential facility for young people located in the same street.  There was not a residential care worker supervising the household at that time.
    5. At 11.27 pm on 26 December 2022, the applicant and another 17 year old male walked to the front of the residence and opened the front door.  The applicant closed the front door and motioned a thumbs up to the other male.  The other male entered the residence followed by the applicant, who was holding a knife in his hand (count 1).
    6. When the applicant and the other male entered the residence, the dogs inside were barking.  The deceased awoke, checked the home security application on her mobile phone and said to her husband, who had been awoken by the barking dogs, “the front door is open”.
    7. The deceased’s husband opened the bedroom door to find the applicant standing in front of him in the hallway.  The other male was in the living room and walked towards the deceased’s husband and the deceased, both of whom yelled and swore at the applicant and the other male to get out, pushing them out the front door.
    8. Within three minutes of entering the home, the applicant ran outside the open front door, still armed with a knife.  There was a physical struggle outside the front door.  The deceased’s husband was primarily engaged in a struggle with the other male.  The deceased was engaged in a struggle with the applicant.
    9. During the struggle, the applicant struck out towards both the deceased and her husband, with the knife, but did not connect with either.  A neighbouring security system picked up an audio recording of the applicant, or the other male saying, “I’ll kill you”.
    10. All four moved onto the front lawn.  The other male ran and briefly fell onto the road.  The deceased and her husband were both engaged in a physical struggle with the applicant.  The applicant struck the deceased to the chest with the knife (count 2) and the deceased’s husband to the back with the knife (count 3).
    11. At that point, the other male approached the group attempting to extricate the applicant from the physical struggle.  The applicant forced the deceased’s husband to the ground and kicked him several times to the face causing bruising (count 4).  The deceased collapsed to her knees and slumped forward.  She was holding a crossbody bag that the applicant had been wearing, in her hands.  The applicant and the other male then fled the residence.
    12. Police found the deceased on the ground with her face on the grass.  Her daughters were sobbing over her body.  The deceased was not conscious or breathing.  Paramedics arrived at 11.43 pm and commenced CPR.  A medical officer arrived at the scene at 11.54 pm and performed open heart chest surgery on the front lawn.  This procedure revealed a four to five centimetre near vertical incisional wound on the left ventricle of the deceased’s heart.
    13. The deceased was transported to hospital.  She required defibrillation four times before regaining coordinated cardiac contractions.  Paramedics also had to perform intermittent internal cardiac massage.
    14. The ambulance arrived at hospital at 12.53 am.  An examination revealed the deceased’s heart muscle was contracting weakly and globally.  She was cold centrally and had no pulse.  It was decided that further resuscitation attempts would be futile.  The deceased died a short time later.
    15. An autopsy conducted at 8.30 am on 29 December 2022, revealed a stab wound in the left lower chest.  The wound was approximately 130 millimetres deep and penetrated the pericardial sac into the left ventricle of the heart.  At least moderate force would have been used to inflict the wound.  That single stab wound to the heart was the cause of the deceased’s death.
    16. A medical examination of the deceased’s husband revealed he had sustained stab wounds to the shoulder blade and back of his right arm.  The wound to the shoulder blade broke the true skin.
    17. Police located the applicant and the other male in a bed, under a blanket, in the adjacent residential facility.  The applicant’s shorts had blood splatter.  The applicant lied and said he had fallen over earlier, although he could not point to any injuries to account for the blood.  The applicant’s t-shirt had a cut to the left of his chest.  The other male had injuries to his knees, consistent with the fall depicted in the CCTV footage.  The applicant further lied by telling police that he had been asleep since 9.00 pm.
    18. Body-worn camera footage recorded that at approximately 4.20 am, when the applicant was informed that he was under arrest for murder, he replied that he had been asleep from 9.00 pm that night and had an alibi.  The applicant was also recorded laughing after his arrest.  Shortly after, the applicant asked, “Did someone actually die right now?  That’s what I want to know because you said I’m here for murder.  I just want to know, you know, did someone die?  That’s the question.”  Police told the applicant to stop talking.
    19. The knife used to stab the deceased had broken at the scene.  The blade was found on the front lawn.  It measured approximately 115 millimetres in length.  The handle was found on a lounge chair in the adjacent residential facility.  The crossbody bag that the applicant was wearing, was left on the front lawn of the deceased’s residence.  Inquiries by police revealed that a mobile telephone located inside it was registered in the name of the other male’s mother.
    20. A scientific examination revealed that both the deceased and her husband’s DNA was on the applicant’s shoes and under his fingernails.  The DNA of the applicant and the deceased was on the base of the knife blade.  The DNA of the deceased and her husband was on the tip of the knife blade.  The applicant and the other male’s DNA was present at the doorway of the house.  The applicant’s fingerprints were on the bedroom door of the deceased and her husband.
22. [22]
    The Crown submitted that having regard to the seriousness of the offending, as a whole, in the context of the applicant’s lengthy criminal history, the only appropriate penalty was detention.  Further, the offence of murder was of such a nature that it was a particularly heinous offence, such that the maximum penalty was life.
23. [23]
    The Crown submitted that having regard to those circumstances, a sentence of not less than 10 years’ detention ought to be imposed to reflect the totality of the offending and that notwithstanding the applicant’s early plea of guilty, youth and dysfunctional background, the court ought not to find special circumstances warranting a reduction of the time to be actually served in detention, pursuant to s 277(2) of the Act.  The Crown also submitted that convictions be recorded.
24. [24]
    The defence submitted that having regard to the applicant’s chaotic upbringing, the contents of a pre-sentence report, and the fact that the applicant had pleaded guilty to felony murder, not intentional murder, the applicant’s moral culpability did not warrant a finding that this offence of murder was a particularly heinous offence.
25. [25]
    The defence submitted that a sentence of less than 10 years’ detention ought to be imposed and, further, that there were special circumstances such that the discretion under s 277(2) of the Act was enlivened, warranting an order that the applicant be released after serving 50–60 per cent of the period of detention.

Sentencing remarks

26. [26]
    The sentencing judge recorded that the applicant had pleaded guilty to the offences and that it was an early plea, albeit against the background of an overwhelmingly strong Crown case.  The sentencing judge said the pleas were important, saving the need for a trial and more importantly, sparing members of the deceased’s family and other persons traumatised by the applicant’s actions from having to give evidence, which was a factor the sentencing judge would take into account on sentence.
27. [27]
    The sentencing judge recorded that the basis upon which the applicant was being convicted of murder, was “felony murder” with the pathway to murder being on the basis that the deceased’s death was caused by an act done in the prosecution of an unlawful purpose, where the act was of such a nature as to be likely to end another human life.  The plea of guilty to murder was not on the basis that the applicant intended to kill or cause grievous bodily harm to the deceased.
28. [28]
    The sentencing judge recorded that the applicant’s upbringing could be described as one of deprivation, with the applicant observing violence in the context of excessive consumption of alcohol from his earliest years.  The applicant moved to the care of other relatives, rarely seeing his mother other than at school holidays.  The most positive and important person within his life was his grandmother, who passed away when he was aged 14.  At that time, the applicant returned to his mother’s residence.  There was still alcohol, cannabis and violence present in that residence and the applicant experienced periods of parental neglect and a lack of appropriate supervision in those years.  Whilst he re-entered school, he did not cope and left at grade 8 level.  The applicant had, by that stage, commenced consuming alcohol, inhaling glue and using illicit drugs.
29. [29]
    The sentencing judge further recorded that the month prior to the applicant’s 17^th birthday, the applicant had discovered that a step-brother, who was both close in age and relationship, had committed suicide.  The applicant found him hanging in the backyard.  The sentencing judge accepted that had a substantial impact on the applicant, noting that the pre-sentence report recorded that the applicant experienced both guilt from not being able to prevent the outcome, as well as pain for the loss of that relationship.  The applicant’s drug and alcohol use increased, as did occasions of absconding.  The sentencing judge observed that the pre-sentence report referred to published research supporting a connection between the exposure to adverse childhood experiences, periods of parental neglect and lack of appropriate supervision and care, as factors which predisposed children to the development of anti-social behaviours.  Another correlating factor was affiliation with other delinquent peers and the applicant had, after the death of his grandmother, established an extensive network of likeminded persons.
30. [30]
    The sentencing judge recorded that the applicant had expressed sorrow for the consequences of his offences.  One of the greatest consequences the applicant had experienced had been the guilt and shame he felt having subjected his family to shame, which was a pattern which would align with his age.
31. [31]
    The sentencing judge accepted that whilst on remand, the applicant had engaged in a variety of substance abuse, cultural and educational processes in an appropriate way, noting that the applicant was Indigenous and that the offences had been committed when he was aged 17 years and 8 months.
32. [32]
    The sentencing judge observed that the applicant had an extensive criminal history.  There were a total of 84 offences.  None reflected any offences of violence.  Sixteen of those previous offences involved unlawful entry or attempted entry of premises or dwellings, with seven being related to dwellings.  Of those seven, on two occasions the dwellings had been occupied at the time of his unlawful entry.  Commonly, the purpose for that unlawful entry was to obtain car keys.  The applicant’s criminal history had 11 offences for unlawful entry or use of vehicles.  The applicant had, on four prior occasions, been given probation.  During each of those probation periods, he had attended weekly for participation in programs directed at targeting his property offending behaviours, with a view to reducing future offending.
33. [33]
    The sentencing judge recorded that victim impact statements presented in the sentencing process spoke of the devastation to a loving family from the loss of the deceased.  The sentencing judge said no sentence the court could impose would adequately address the devastating effect on the deceased’s family and friends and that what had occurred at their home, violated entirely the family life of ordinary citizens in their own home where they were entitled to feel safe.
34. [34]
    The sentencing judge recorded the statutory framework within which the sentencing principles were to be applied, including that the process required a consideration of, among other things, the seriousness of the offence, the applicant’s youth and his personal circumstances, as well as the youth justice principles in s 150 of the Act.  The sentencing judge concluded that no sentence, other than detention, was appropriate in the circumstances of the case.
35. [35]
    In respect of counts 1, 2 and 3, the sentencing judge recorded that the maximum period of detention was 10 years, except if the offence included the commission of violence against a person and the court was satisfied the offence was a particularly heinous offence, having regard to all of the circumstances.  Upon satisfaction of those two elements, detention included a maximum of life imprisonment.
36. [36]
    The sentencing judge found that eight factors supported a finding that the offence of murder was a particularly heinous offence, noting that was the only count in respect of which such a finding was sought by the Crown.
37. [37]
    Those factors were: that the applicant had, on a number of previous occasions, broken into other premises and dwellings in circumstances where he elected, on this occasion, to arm himself with a knife before entering the premises; that a motor vehicle in the driveway of the residence, together with the stealth method of entry, supported an inference that the applicant appreciated there was a risk that people may be inside the house; whilst the applicant initially sought to flee, he chose to make two strikes at the occupants, with his knife, the first strike being a full arm-length strike with the second being aimed at the deceased’s husband who was otherwise engaged with the other male and effectively defenceless; the strike that penetrated the deceased’s heart was delivered after those first two attempted strikes, with at least moderate force when the applicant could have, but did not, discard the knife at any stage before the fatal blow; the offence was committed whilst the applicant was subject to a probation order which had included engagement through specifically designed modules to deter him from the commission of further property offending; the applicant had pleaded guilty to the offence on the basis of felony murder, with no intention to kill or cause grievous bodily harm, but that the CCTV footage of the struggle did not depict a mere presenting of a knife as a deterrent, but contained a visual record of two significant attempted strikes, representing a preparedness to use the knife for more than just a threat and after both the deceased and her husband had been stabbed, and whilst the husband was on the ground and offering no further attempt to struggle, the applicant kicked him in the head once; and the offence occurred against a background of having invaded the home of entirely innocent and unsuspecting citizens, with the violence inflicted likely to have profound implications for others, including those who came to the assistance of the family.
38. [38]
    The sentencing judge was satisfied that the other factors, independently of the kicking incident, justified a finding that the offence of murder was a particularly heinous offence, with the kicking merely reinforcing a conclusion that the applicant was prepared to use violence against the occupants of the residence.  The sentencing judge also observed that the kicking was gratuitous violence unrelated to any attempt to escape from the scene.
39. [39]
    The sentencing judge found that it was correct to describe the offence of murder as atrocious and one which would create a sense of outrage in the general community.  Accordingly, it was a particularly heinous offence within the meaning of that expression in s 176(3)(b)(ii) of the Act.
40. [40]
    The sentencing judge referred to comparable yardsticks,^[9] noting that the yardsticks relied upon by the Crown demonstrated the imposition of sentences within nine to 14 years, whilst defence counsel submitted for a sentence close to 10 years, even if a finding of a particularly heinous offence was made in the circumstances.
41. [41]
    The sentencing judge concluded that having regard to the circumstances of the case, including matters in mitigation and the youth justice principles, the appropriate sentence for the count of murder was 14 years detention.  The sentencing judge said in coming to that conclusion, a number of factors has been taken into consideration, including the early plea of guilty, the fact that the applicant was subject to a level of intoxication at the time of the offending, the deprivation of the applicant’s upbringing, the loss of his grandmother and step-brother and its effect upon him, and his expressions of remorse which were accepted to be genuine.
42. [42]
    The sentencing judge recorded that he had taken into consideration that the applicant was sentenced as a child, but that it was relevant to take into account that his age at the time of the offence was 17 years and 8 months.  The sentencing judge took into account the various material which supported a finding that the applicant had prospects of rehabilitation over time.  Taking into account those factors, together with the seriousness of the offence and its circumstances, the applicant’s prior criminal history and the fact that he was on probation at the time, together with the consequences of the offending, the sentencing judge found that there were not special circumstances warranting a reduction of the period of detention to be served.
43. [43]
    The sentencing judge said that relevant factors were the early plea of guilty, the deprivation of the applicant’s upbringing and the positive signs of rehabilitation.  However, the sentencing judge accepted the Crown’s submissions that the discretion must be exercised in all of the circumstances and despite those factors, the offending was serious, involving the active use of a knife at the front door, twice, before inflicting the fatal wound, against a background of repeated offending, including multiple prior probation orders and a plea of guilty in the face of an overwhelmingly strong case.  Further, childhood deprivation was not an uncommon factor and the applicant was at the upper end of the age where he would be treated as a child.
44. [44]
    Finally, the sentencing judge found that having regard to all of the circumstances of the case, including the nature of the offence, the applicant’s age and previous convictions and the impact of recording a conviction, it was appropriate to record convictions for each of the counts.  The applicant had a criminal record which spanned some two and a-half years with a repetition of breaking into premises and houses and whilst there were indications of an ability to rehabilitate and convictions may have some future effects on employment prospects, those factors did not outweigh the factors which supported a recording of convictions for the offences.

Consideration

Ground 1

45. [45]
    Section 176(3) of the Act limits the period to which a child may be detained for no longer than 10 years, unless the offence for which the person is to be sentenced is an offence for which a person sentenced as an adult would be liable to life imprisonment and the offence involved the commission of violence against a person and the court considers the offence to be a particularly heinous offence, having regard to all the circumstances.^[10]  If those conditions are met, the maximum period of detention is life.
46. [46]
    In R v William (a pseudonym),^[11] Sofronoff P observed:

“[25] The word heinous is defined in the Oxford English Dictionary (2^nd ed.) to mean, ‘Hateful, odious; highly criminal or wicked; infamous, atrocious: chiefly characterising offences, crimes, sins, and those who commit them’.  One might think that any act of attempted murder would be a heinous offence.  That is why the word ‘heinous’ is qualified by two things.  First, it is not enough for the offence to be heinous.  It must be, in the court’s opinion, particularly heinous.  Second, the heinousness of the offence is not to be judged by the objective facts involved in the commission of the offence only.  It is to be evaluated ‘having regard to all the circumstances’.

[26] All the circumstances include subjective factors.  In cases involving child offenders the subjective circumstances of the offence necessarily loom large.  The Charter of Youth Justice Principles set out in Schedule 1 of the Act include the requirement that a child who commits an offence should be ‘held accountable and encouraged to accept responsibility for the offending behaviour’ and should be ‘dealt with in a way that will give the child the opportunity to develop in responsible, beneficial and socially acceptable ways’.  These requirements cannot possibly be satisfied if the relevant subjective factors affecting the child are ignored.  Thus, for example, if William were to have been sentenced as a child, his prospects for development in a responsible, beneficial and socially acceptable way would require consideration to be given to the fact that his mental disability is one that was induced by his mother’s reckless cruelty in feeding him poisons from a young age and to the fact that, as his history before and after the offence shows, he has a huge capacity for normalising his own behaviour if afforded a sane and safe environment.

[27] Why is an offender who commits an offence that is a ‘particularly heinous having regard to all the circumstances’ to be treated more severely than another offender committing the same offence but in circumstances that do not warrant that characterisation?  It is because the community rightly expects that offenders who commit crimes that are revolting and offensive beyond the norm must suffer a punishment that is proportional to the insult that they have inflicted upon the community’s sensibility.  That is why it was relevant for Keane JA in R v Maygar, to refer, as relevant to the question whether an offence was particularly heinous, that it did not ‘inspire a sense of outrage’.

[28] The frenzied stabbing by a boy of his mother might rightly be described as heinous.  But, when one has regard to the conditions which drove this offender to commit the offence, that is to say, when one has regard to all the circumstances, the character of the offence may be regarded differently and very far from an offence that is particularly heinous.”

47. [47]
    In determining whether events of the offending are of such a nature as to inspire a “sense of outrage”, Keane JA (as his Honour then was) observed in R v Maygar; ex parte Attorney-General (Qld); R v WT; ex parte Attorney-General (Qld):^[12]

“It is necessary to focus upon the nature of the offence of which the child has been found guilty for the purpose of determining whether the period of detention of the child should be increased from a maximum of 10 years to life. The provision expressly brings into focus all the circumstances of the offence, not merely those which serve to render the child responsible for the murder and liable to punishment. Attention must be paid to all the circumstances of the murder of which the child has been found guilty in order to determine whether the period of the child’s detention should be increased from a maximum of 10 years to life.”

48. [48]
    In the present case, the sentencing judge expressly referred to the applicable principles, including the need to consider all of the circumstances, including the applicant’s personal circumstances, when determining that the offence of murder was a particularly heinous offence.  No error is shown in the application of those principles by the sentencing judge.
49. [49]
    A consideration of all of the circumstances supports a conclusion that the sentencing judge’s finding, that the offence of murder was a particularly heinous offence, was plainly correct.  The offence of murder, although a felony murder, involved a 17 year 8 month old offender armed with a knife, entering in the dead of night the residential premises of the deceased and her family, and when confronted by them, using that knife to lash out at both the deceased and her husband in forceful ways before using it to penetrate the heart of the deceased.  These strikes occurred after the applicant had broken free from the deceased.  The death of an entirely innocent person, on their own front lawn, as the consequence of a knife attack by a youthful offender who had just been driven from their home, is properly to be described as invoking a sense of outrage, notwithstanding the applicant’s personal circumstances, including the deprivation suffered in his upbringing, including exposure to violence, parental neglect and excessive alcohol and drug use and the recent losses of both his grandmother and step-brother, the latter in tragic circumstances.

Ground 2

50. [50]
    The sentencing judge expressly referred to the applicant’s early pleas of guilty and expressly stated that the fact of those early pleas was taken into account on sentence.
51. [51]
    Against that background, there is no basis upon which the applicant can establish that the sentencing judge failed to give any weight to the applicant’s pleas of guilty and personal circumstances.
52. [52]
    A proposed ground that the sentencing judge failed to give adequate weight to the pleas, is not a ground of appeal to establish specific error.  The weight to be given to factors is a matter for the sentencing judge.

Ground 3

53. [53]
    To succeed on a ground that the sentence imposed was manifestly excessive, it is not sufficient for the applicant to establish that the sentence imposed was different or even markedly different from comparable yardsticks.  The sentence imposed must be shown to be so different as to warrant a conclusion that there was a misapplication of principle, or a finding that having regard to all of the circumstances, the sentence imposed was plainly unjust or unreasonable.^[13]
54. [54]
    The applicant submits that the sentence imposed for murder was manifestly excessive as the offence did not involve an intention to kill, or do grievous bodily harm.  The basis for the plea was felony murder.  That fact reduced the applicant’s moral culpability such that a sentence of 14 years’ detention for that offence was plainly unjust or unreasonable.
55. [55]
    In imposing the sentence of 14 years’ imprisonment, the sentencing judge expressly had regard to comparable yardsticks.  The sentencing judge recognised that one of those comparable yardsticks, R v Gwilliams,^[14] had distinguishing features from the applicant’s case, notwithstanding the Crown’s submissions that there was little distinction to the present proceeding.
56. [56]
    The exercise of the sentencing discretion requires a sentencing judge to impose a sentence which is appropriate having regard to the balance that must be undertaken between the many relevant factors, including the need for deterrence and denunciation and a consideration of mitigating factors, including, in the case of youthful offenders, rehabilitation and the other principles identified in the youth sentencing principles.
57. [57]
    A consideration of the relevant sentencing principles, in the context of the seriousness of the applicant’s offending conduct and the applicant’s mitigating circumstances, amply support a conclusion that the sentence of 14 years’ detention for murder fell within a sound exercise of the sentencing discretion.  The applicant caused the death of an innocent person by using a knife, following his removal from the person’s home which he had entered in the dead of night, to steal property.  He thrust the knife more than once in their direction, despite having freed himself from them.  Such an offence deserved condign punishment, notwithstanding the applicant’s mitigating circumstances.
58. [58]
    However, the requirement that the applicant serve 70 per cent of what was condign punishment, did render the sentence for murder manifestly excessive.
59. [59]
    The applicant had entered early pleas of guilty to the offences.  Whilst it may be said to have been an overwhelming case, there was plain utility in those pleas of guilty.  They saved the deceased’s family the trauma of having to attend a trial, which would have included the giving of evidence, traumatic for them to listen to, particularly in circumstances where they had been present on the night in question.
60. [60]
    Whilst the sentencing judge referred to factors such as the early plea of guilty, the applicant’s deprivation in upbringing and the positive signs and ability to rehabilitate, the sentencing judge allowed the seriousness of the offending to overwhelm those factors.  In doing so, the sentencing judge misapplied sentencing principles.
61. [61]
    The utility of the plea of guilty is a matter of significance in the exercise of sentencing discretion.  In the circumstances of this case, it was a factor which went beyond merely being an early plea of guilty.  When combined with the applicant’s genuine remorse and prospects of rehabilitation, a finding that there were special circumstances justifying an order for release from detention, after serving less than the statutory requirement of 70 per cent, ought to have been made.
62. [62]
    Section 227(2) of the Act conferred a discretion on the court to reduce the period from 70 per cent, but not below a minimum of 50 per cent, in circumstances where the court was satisfied there are special circumstances.  The failure of the sentencing judge to find there were special circumstances, was an error requiring the sentencing discretion to be re-exercised.
63. [63]
    Having regard to the utility of the plea of guilty, the applicant’s expressed remorse and prospects of rehabilitation, I would exercise the discretion under s 227(2) of the Act, to reduce the period the applicant must serve in detention prior to release, from 70 per cent to 60 per cent.

Orders

64. [64]
    I would order:

1. Leave to appeal sentence granted.
2. Appeal against sentence allowed.
3. The sentence below is varied such that it be further ordered that the applicant be released from detention after serving 60 per cent of the sentence of detention for count 2.

65. [65]
    FREEBURN J:  I agree with Boddice JA.