R v CDV[2025] QCA 163

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  I agree with the reasons for judgment of Muir J and with the order proposed by her Honour.
2. [2]
   BODDICE JA:  I agree with Muir J.
3. [3]
   MUIR J:  On 16 November 2023, the applicant child pleaded guilty to a variety of summary and indictable offences before a Childrens Court magistrate in Townsville.  The 19 charges included six breach of bail conditions and an array of property and dishonesty offences, ranging from unauthorised dealing with shop goods to burglary in company.
4. [4]
   At the time of the sentence, the applicant, who is an Indigenous male child, had recently turned 15, had no criminal history and had spent a total of 36 days on remand in juvenile detention.  The learned Childrens Court Magistrate (“the Magistrate”) determined it would have been “manifestly inadequate” to deal with the applicant by way of a court diversion referral (as had been submitted on the applicant’s behalf).  The Magistrate instead reprimanded the applicant for the lower ended offending and otherwise sentenced him to various orders under the Youth Justice Act 1992 (Qld) for the more serious offending.  Most relevantly, the applicant was sentenced to a restorative justice order for the burglary offence, and a three-month good behaviour order for two unlawful use of a motor vehicle offences and two enter premises with intent offences.  No convictions were recorded.
5. [5]
   On 11 December 2023, the applicant sought a review of the sentence order by a Childrens Court judge under s 118 of the Youth Justice Act.  This was on the basis that the sentence order should be set aside and instead, the applicant should be referred to a restorative justice process under ss 162 to 164 of the Youth Justice Act.  The application for review was heard and determined on 25 January 2024, with the learned Childrens Court Judge (“the Judge”) confirming the sentence order of the Magistrate and otherwise dismissing the application.
6. [6]
   By his proposed amended grounds of appeal (for which leave is sought), the applicant seeks leave to amend the original notice of application for leave filed under s 118 of the District Court of Queensland Act 1967 (Qld) to appeal the order of the Judge confirming the sentence.  This amendment, if allowed, would mean that the application is instead filed as a Notice of Appeal or an application for leave to appeal against conviction or sentence (for appeals other than under s 118 of the District Court of Queensland Act).
7. [7]
   The proposed amended grounds of appeal allege that the Judge made three cascading errors, including applying the wrong standard of review, failing to consider a diversionary restorative justice order under s 162 of the Youth Justice Act, and imposing a sentence that was manifestly excessive.
8. [8]
   The respondent does not oppose leave being granted to amend the grounds of appeal but opposes leave being granted to appeal, on the basis that there is no jurisdiction for this Court to hear the appeal and otherwise, because the appeal is without merit.
9. [9]
   A preliminary question to be determined is therefore whether the Court of Appeal has jurisdiction to hear an application for leave to appeal a sentence order made by a Childrens Court judge under the sentence review scheme of the Youth Justice Act.
10. [10]
    For the reasons that follow, the answer to that question is “no”.

The preliminary jurisdictional issue

11. [11]
    There is no common law right of appeal.^[1]  The existence and scope of any appeal is determined by statute.^[2]
12. [12]
    The applicant submitted that a right of appeal emerges on a plain reading of the text of s 125(2)(b) of the Youth Justice Act, with the path to the Court of Appeal being found in chapter 67 of the Criminal Code (Qld), as made applicable by s 116 of the Youth Justice Act.  The respondent submitted that this pathway is blocked by the language of s 125(2)(a) as the Judge’s decision “takes effect” as the decision of the Magistrate, and as s 125(3) expressly precludes the usual path for an appeal against such a decision (that is, via s 222(2)(c) of the Justices Act 1886 (Qld)) or another sentence review under s 118 of the Youth Justice Act.  The respondent submitted that there is otherwise no right for a child to appeal from the Childrens Magistrates Court directly to the Court of Appeal.
13. [13]
    The statutory regime enabling the review of sentence orders of Childrens Court magistrates by Childrens Court judges was first introduced in Queensland in 1992.^[3]  Apart from a two-year hiatus in 2014, this regime has remained in place for over 25 years.  In this time, there does not appear to have been any applications for leave to appeal an order made by a Childrens Court judge following such a sentence review.  It is therefore unsurprising (although perhaps instructive) that the issue of whether such a statutory right exists has not previously been considered by this Court.
14. [14]
    Any right to appeal must be conferred in clear words by statutory provision and cannot be conferred by implication.^[4]  To determine Parliament’s will, the task of statutory construction requires the Court to construe the words used in the statute against the relevant context and purpose of the Act as a whole.^[5]  This task has been described as requiring “a sensible understanding of a specific purposive context”.^[6]  Context includes legislative history and relevant extrinsic material.^[7]
15. [15]
    The starting point is to understand the statutory framework under which the sentence review in this case was conducted, and by which, the applicant submits, a right of appeal to this Court is said to arise.

Appeal and review regime under the Youth Justice Act

16. [16]
    The Youth Justice Act establishes a separate and distinct code for dealing with children who have or are alleged to have committed offences.  One of the principal objectives of the Act is “to ensure that courts that deal with children who have committed offences deal with them according to principles established under this Act.”^[8]  Section 3 of the Youth Justice Act establishes a charter of 21 youth justice principles which are set out in Schedule 1 of the Act.  Those principles relevantly include that proceedings involving children “should be conducted in a fair, just and timely way”.^[9]
17. [17]
    Part 6 of the Youth Justice Act deals with jurisdiction and proceedings.  Relevantly, part 6, division 9 is titled “Appeal and review” and contains four subdivisions.
18. [18]
    Subdivision 3 (Appeals to Children Court judge) and subdivision 4 (Reviews of sentences by Childrens Court judge) offer the following two distinct pathways for a child to challenge the sentence order of a Childrens Court magistrate to a Childrens Court judge:

    1. Section 117 of the Youth Justice Act provides for an appeal under part 9, division 1 of the Justices Act in relation to orders made by justices dealing summarily with a child charged with an offence, so long as that appeal is made to a Childrens Court judge; and
    2. Section 118 provides for an application for a review of a sentence order made by a Childrens Court magistrate to a Childrens Court judge.
19. [19]
    These are alternate options.^[10]  A child cannot choose to appeal the sentence order and review the sentence order.  It is relevant then to consider the distinctions between these two options.

Option one: Appeals under s 222 of the Justices Act by s 117 of the Youth Justice Act

20. [20]
    Section 117 of the Youth Justice Act provides as follows:

“117 Appeals under Justices Act 1886, pt 9, div 1

1. The Justices Act 1886, part 9, division 1, applies in relation to an order made by justices dealing summarily with a child charged with an offence subject to subsections (2) to (4).

2. To appeal under the division, an aggrieved person must appeal to the Childrens Court judge.

3. All relevant references to a District Court judge are taken for the purpose to be references to the Childrens Court judge.

4. A District Court judge does not have jurisdiction to hear and decide the appeal.”

21. [21]
    Relevantly, s 222(2)(c) of the Justices Act (within part 9, division 1 of that Act) allows a defendant who pleaded guilty to an offence to appeal against a sentence order made in a summary way on the sole ground that the fine, penalty, forfeiture or punishment was excessive or inadequate.
22. [22]
    The nature of an appeal against sentence under s 222(2)(c) of the Justices Act was recently analysed by this Court in Chakka v Queensland Police Service [2024] QCA 213 (“Chakka”).  In Chakka, the Court unanimously determined that appellate intervention by a District Court judge is only permitted where an error of the kind recognised in House v The King (1936) 55 CLR 499 is established, and the error has resulted in a sentence which is excessive or inadequate.^[11]  By virtue of s 117(1) of the Youth Justice Act, these principles apply to an appeal by a child of a decision of a Childrens Court judge.
23. [23]
    If a s 222(2)(c) appeal is pursued, a child can appeal the sentence of the Childrens Court judge to the Court of Appeal under s 118 of the District Court Act.  Section 118 of the District Court Act permits an appeal, with leave of the Court, against the sentence passed on a person’s conviction.  The considerations relevant to such a grant of leave are a matter within the unfettered discretion of this Court.^[12]  Leave will ordinarily only be granted where an applicant can show a reasonable argument of an error to be corrected and that an appeal is necessary to correct a substantial injustice to the applicant.^[13]  Should leave be granted, an appeal from the District Court in its appellate jurisdiction is an appeal in the strict sense where, based on the material before the court, the Court considers whether there was an error.^[14]  Such an appeal is not limited to errors of law – intervention may also be justified in the case of errors of fact, subject to the constraint specified in s 119(1) of the District Court Act.^[15]

Option two: Section 118 sentence review under the Youth Justice Act

24. [24]
    Part 6, subdivision 4 of the Youth Justice Act establishes a scheme for the review of sentence orders of Childrens Court magistrates.  Section 118 of the Youth Justice Act provides for a sentence review as follows:

“118 Sentence review

A Childrens Court judge on application may review a sentence order made by a Childrens Court magistrate.”

25. [25]
    Section 119 provides for the application for review as follows:

“119 Application for review

1. An application may be made by—

1. a child against whom the sentence order was made; or

2. the chief executive acting in the child’s interests; or

3. the complainant or arresting officer for the charge for which the sentence order was made.

2. An application must be made within 28 days after the sentence order is made or within a later period that may at any time be allowed by the Childrens Court judge.

3. In this section—

Complainant means a complainant who makes a complaint under the Justices Act 1886.”

26. [26]
    Section 121 of the Youth Justice Act has the effect that where an application for sentence review has been made, the Childrens Court judge may make orders suspending all or part of the effect of the sentence order and may impose conditions on the suspended sentence order.
27. [27]
    The conduct of a s 118 sentence review is governed by s 122 as follows:

“122 Conduct of review

1. A review of a sentence must be by way of rehearing on the merits.

2. The Childrens Court judge may have regard to—

1. the record of the proceeding before the Childrens Court magistrate; and

2. any further submissions and evidence by way of affidavit or otherwise.

3. The review of a sentence order must be conducted expeditiously and with as little formality as possible.” (Emphasis added).

28. [28]
    The powers of a Childrens Court judge on a sentence review are set out in s 123:

“123 Review decision

1. On reviewing a sentence order, a Childrens Court judge may—

1. confirm the order; or

2. vary the order; or

3. discharge the order and substitute another order within the jurisdiction of the Childrens Court magistrate to make.

2. The judge may also make any other order a Childrens Court magistrate could have made in connection with the sentence order as confirmed, varied or substituted under subsection (1).”

29. [29]
    Under the sentence review scheme, a child cannot seek an ordinary appeal and a sentence review for the same sentence order.  That is made clear by the express provision of s 124:

“124 Interrelation with other types of appeal

1. If a child starts a proceeding for an ordinary appeal against a sentence order—

1. an application by the child for a sentence review of the sentence order can not be started; and

2. any application by the child for a sentence review of the sentence order pending at the start of the proceeding for an ordinary appeal lapses.

2. If—

1. a child starts a proceeding for an ordinary appeal against a finding of guilt against the child in relation to which a sentence order was made; or

2. a person other than a child against whom a sentence order has been made starts a proceeding for an ordinary appeal against the sentence order;

a Childrens Court judge can not proceed to hear and decide any pending application by the child for a sentence review against the sentence order until the ordinary appeal is finished.

…

4. In this section—

application by a child for a sentence review, includes an application by the chief executive acting in the child’s interests.

ordinary appeal means—

1. an appeal or application for leave to appeal under the Criminal Code, chapter 67; or

2. an appeal under the Justices Act 1886, part 9.

sentence review means a review under section 118 of a sentence order.”  (Emphasis added).

30. [30]
    If the sentence review option is pursued, under s 122(1), the Childrens Court judge is expressly required to conduct a “rehearing on the merits”.  The meaning of this expression is not defined in the Youth Justice Act.  The applicant submitted that the nature of the sentence review was best described as a review de novo with the task of the Judge being to exercise the sentencing discretion afresh.  The respondent agreed that no error needed to be shown but submitted that the sentence is not to be “reconsidered” as if it were “undecided” because the reviewing judge may have regard to the record of the original proceeding and any further submissions.^[16]
31. [31]
    The meaning of a review “by way of a rehearing on the merits” is relevant to the preliminary jurisdictional issue before this Court.  As will become clear, the role of a sentence review under the Youth Justice Act is distinct from the role of an ordinary appeal under the Act.  The distinctions between these two review pathways are best understood by reference to the legislative history of the Youth Justice Act, particularly the sentence review scheme.

Legislative history of the Youth Justice Act and the sentence review scheme

32. [32]
    The predecessor to the Youth Justice Act was the Juvenile Justice Act 1992 (Qld), which was “an Act to provide comprehensively for the laws concerning children who commit, or who are alleged to have committed offences.”^[17]  Before then, the Code for dealing with children in conflict with the law was contained in the Children’s Services Act 1965 (Qld), which was described in the Explanatory Notes to the Juvenile Justice Bill 1992 as “both outdated and inadequate”.^[18]  The name Juvenile Justice Act was changed to the Youth Justice Act in 2009.^[19]
33. [33]
    The sentence review regime was introduced by the Juvenile Justice Act when it was enacted.^[20]  Most of the original sentence review provisions are reflected in their modern-day counterparts in the Youth Justice Act.
34. [34]
    The Explanatory Notes to the Juvenile Justice Bill 1992 provide a small glimpse into the purpose and workings of the sentence review scheme:^[21]

“Clause 92 outlines how a sentence review is to be conducted. A review focuses on the merits of a sentence. To assess this, the Judge may have regard to the record of proceedings before the Childrens Court Magistrate and hear further submissions or evidence. Of particular importance to the effectiveness of the review, is the requirement that it be conducted as informally and expeditiously as possible.” (Emphasis added).

35. [35]
    Section 87 of the Juvenile Justice Act provided for appeal rights generally, and s 87(2) relevantly stated:

“In addition to the right to apply for a review of a sentence order under section 88 (Sentence review), a child has the same right as an adult to appeal against the order.”

36. [36]
    Section 87(2) was removed by the Juvenile Justice Amendment Act 2002 (Qld).^[22]  That Act also amended s 87 to include the words “other than as expressly provided by this part,” introducing a qualification to the general appeal rights Part 4 otherwise preserved.^[23]  The Explanatory Notes to the Juvenile Justice Amendment Bill 2002 noted that these amendments represented a restructuring of appeal provisions to acknowledge that appeals will be made to a Childrens Court (rather than a District Court) judge.^[24]  These Explanatory Notes also relevantly stated:^[25]

“Subdivision 1—General

• Section 87 provides that unless expressly provided for in this part, the right of any person to appeal is not affected.

….

Subdivision 2—Court of Appeal

• Section 87B provides that chapter 67 of the Criminal Code applies with necessary modifications for a child before the Childrens Court as it applies to an adult before the Magistrates or District Court.

Subdivision 3—Appeals to Childrens Court judge

• Section 87C requires that an appeal under section [sic] part 9, division 1 of the Justices Act 1886 is to be made to a Childrens Court judge.” (Emphasis added).

37. [37]
    Part 6, division 9, subdivision 4 of the current Youth Justice Act (Reviews of sentences by Childrens Court judge) was omitted by the Youth Justice and Other Legislation Amendment Act 2014 (Qld).^[26]  In abolishing the sentence review procedure, this Act concomitantly amended s 117 to broaden the appeal procedure under s 222 of the Justices Act to include orders made in breach proceedings by a Childrens Court magistrate.^[27]
38. [38]
    The Explanatory Notes for the Youth Justice and Other Legislation Amendment Bill 2014 for amendments to be moved during Consideration in Detail explained the reasons for the removal of the sentence review regime as follows:^[28]

“Omission of sentence reviews

The amendments to the Bill deliver on a recommendation by the Legal Affairs and Community Safety Committee to adjust the mechanisms by which Childrens Court judges provide judicial oversight of the sentencing and other decisions of Childrens Court magistrates.

To this end, amendment 9 inserts a new clause 7C into the Bill to omit part 6, division 9, subdivision 4 of the Youth Justice Act 1992, which provides that a Childrens Court judge may review a sentence order made by a Childrens Court magistrate.  This omission will leave appeals under subdivision 3—which provides for the appeal of magistrates’ orders to be heard by a judge under part 9, division 1 of the Justices Act 1886—as the single applicable mechanism under which a Childrens Court judge may provide judicial oversight of a magistrate’s sentencing and other decisions in relation to a child.

This will support the smooth and efficient administration of justice by ensuring all sentences handed down in the Magistrates Court are subject to the same appeals process regardless of the jurisdiction in which they were made.  It also reduces red tape by removing a superfluous process, with the existing appeals process providing a sufficient means for parties aggrieved by a magistrate’s sentencing decision to have that decision tested in a higher court.” (Emphasis added).

39. [39]
    The Second Reading Speech to the Youth Justice and Other Legislation Amendment Bill 2014 described the omission in the following terms:^[29]

“These amendments will omit sentence reviews from the Youth Justice Act 1992, focusing on appeals under the Justice Act 1986 [sic], as applied to decisions of Children’s Court magistrates, as the applicable mechanism for providing judicial oversight of magistrates’ sentencing decisions.  The amendments will also bring magistrates’ orders made on finding a child has breached a community based order within the Children’s Court’s appeal jurisdiction.”

40. [40]
    The sentence review regime was reintroduced by the Youth Justice and Other Legislation Amendment Act (No. 1) 2016 (Qld).^[30]  The Explanatory Notes to the Youth Justice and Other Legislation Amendment Bill 2015 provided the following explanation:^[31]

“Sentence reviews were also removed from the YJ Act by the previous Government in the course of the 2014 reforms.  That removal occurred in the face of criticism and opposition by the President of the CCQ and other key legal and youth sector stakeholders.  Consistent with the expectations of key stakeholders, the Bill reinstates sentence reviews and, in the interests of fairness, justice and the prompt resolution of youth justice matters, expands their former operation to include magistrates’ decisions on breaches of community based orders.” (Emphasis added).

41. [41]
    The Second Reading Speech for the Youth Justice and Other Legislation Amendment Bill 2015; Youth Justice and Other Legislation Amendment Bill 2016 provides further context to the controversy behind the removal of the sentence review scheme and the purpose of its reintroduction.^[32]  In particular, the Second Reading Speech refers to comments made by the President of the Childrens Court at the time, which characterised the sentence review procedure as offering a faster, less costly and more informal resolution of matters by allowing judges to rehear the matter on the merits and take a child’s (usually rapidly changing) circumstances into account more than would otherwise occur as part of the formal s 222 appeal process.^[33]

Rehearing on the merits: Nature of a sentence review

42. [42]
    The express legislative purpose for the introduction (and reintroduction) of the sentence review scheme into the Youth Justice Act was to enable an informal, fair, just and prompt resolution of challenges to Childrens Court magistrates’ sentence orders.  This purpose is expressly reflected in the text of s 122(3), which provides that “the review of a sentence order must be conducted expeditiously and with as little formality as possible”.
43. [43]
    This legislative context and purpose, which includes that a sentence review and a s 222 appeal are alternate options, gives shape to the requirement that a sentence review be conducted “by way of rehearing on the merits”.^[34]  As already foreshadowed, the nature of a sentence review forms part of the legislative framework by which any right of appeal to this court from such a review is to be considered.  For the following reasons, I am satisfied that the nature of a review by way of rehearing on the merits does not require any error in the sentencing discretion below to be demonstrated.  Rather, it requires a Childrens Court judge to exercise the sentencing discretion afresh by way of a rehearing de novo.
44. [44]
    First, whilst it is reasonable to infer that as a matter of practice, the sentence review is conducted with regard to the record of the proceeding below, the word “may” in s 122(2) contemplates that a review might be conducted without such recourse.  This flexibility is consistent with the overarching objectives of the Youth Justice Act and Parliament’s expressed intention for an efficient and informal resolution, as opposed to the formal s 222 Justices Act appeal process.
45. [45]
    Second, by s 122(2)(b), the Childrens Court judge may have regard to “any further submissions and evidence by way of affidavit or otherwise”.  This differs from the orthodox constraint imposed in an “ordinary” sentence appeal, which requires leave to adduce further evidence.^[35]  Relevantly, the discretion to consider further evidence under s 122(2)(b) is wide and includes oral evidence.^[36]  The power of the review court to review additional or substituted evidence or information was considered to be a decisive one (together with the power to make any order it considered appropriate) in Director of Public Prosecutions v Filippa [2005] 1 Qd R 587.  In that case, Douglas J determined that a review by a Supreme Court judge of a magistrate’s decision under s 19B of the Bail Act 1980 (Qld) was a rehearing de novo.^[37]
46. [46]
    Third, the wide powers of the Childrens Court in a sentence review under s 123 are consistent with the Childrens Court judge not being constrained by the need to identify error.  For example, the judge is obliged to give a decision on the current evidence,^[38] the judge must decide the matter in the same way as the Childrens Court magistrate might have done by exercising the sentencing discretion afresh,^[39] and the judge’s powers are wide, constrained only by what orders would be permitted in the jurisdiction of the magistrate.^[40]
47. [47]
    Lastly, the s 222(2)(c) Justices Act appeal avenue requires an error to be shown for there to be intervention.  It is therefore unlikely that Parliament intended sentence reviews to also require the identification of an error before a Childrens Court judge could intervene.
48. [48]
    Having established that a sentence review requires a fresh exercise of the sentencing discretion, I turn now to consider the nature of the decision made by a Childrens Court judge on a sentence review, with a view to ultimately determining how such a decision could be appealed to this Court under the relevant statutory frameworks.

Sentence review decisions: Is there a path to appeal?

49. [49]
    The incidents of a sentence review are stated in s 125 as follows:

“125 Incidents of review

1. No costs may be ordered against a party on a sentence review.

2. The decision of a Childrens Court judge on a sentence review—

1. takes effect as the decision of the Childrens Court magistrate who made the sentence order reviewed; and

2. subject to subsection (3), may be enforced or appealed against in the same way as the decision of the Childrens Court magistrate.

3. Subsection (2) does not authorise—

1. a further review by a Childrens Court judge of a sentence already reviewed under this division by a Childrens Court judge; or

2. an appeal to the Childrens Court judge under the Justices Act 1886, section 222.” (Emphasis added).

50. [50]
    What emerges from a plain reading of the text of s 125(2) is that following a sentence review, the Childrens Court decision becomes the decision of the Childrens Court magistrate; and may be appealed “in the same way” as the magistrate’s decision.  This suggests that the decision of a Childrens Court judge on a sentence review is not one which can be appealed to this court under s 118 of the District Court Act.  Rather, it is a decision which “takes effect” as a decision of a Childrens Court magistrate and, as discussed below, can only be appealed as such.
51. [51]
    This begs the question: in what ways can a sentence order of a Childrens Court magistrate able to be appealed?
52. [52]
    The immediate answer is by an appeal under s 222(2)(c) of the Justices Act to a Childrens Court judge, or a s 118 Youth Justice Act sentence review by a Childrens Court judge.  However, s 125(3) precludes both of these options once a decision has been made by a Childrens Court judge on a sentence review.  This is understandable because, apart from the need for finality of proceedings, as a matter of general policy, it would be undesirable for single judges of the same court (in this case, the Childrens/District Court) to review each other’s decisions.
53. [53]
    With s 222 appeals being precluded, another potential avenue for appeal from a Childrens Court magistrate to the Court of Appeal emerges in s 116 of the Youth Justice Act:

“116 Appeals to Court of Appeal

The Criminal Code, chapter 67, relating to appeals or applications for leave to appeal applies, with necessary modifications and any prescribed modifications—

1. in relation to a finding of guilt or order made in a proceeding against a child for an offence as it applies in relation to a conviction or order made in a proceeding against an adult for an offence; and

2. in relation to a proceeding before a Childrens Court magistrate as it applies to a proceeding before a Magistrates Court; and

3. in relation to a proceeding before a Childrens Court judge, sitting with or without a jury, as it applies in relation to a proceeding before the District Court.” (Emphasis added).

54. [54]
    Further, the definition of “ordinary appeal” in s 124 of the Youth Justice Act contemplates the availability of an appeal or application for leave to appeal by a child under the Criminal Code, chapter 67 or an appeal under part 9 of the Justices Act.
55. [55]
    Appeal rights generally are provided for in s 114 of the Youth Justice Act: 

“114 Appeal rights generally

Other than as expressly provided by this part, this part does not affect the right of any person to appeal, or apply for leave to appeal, under the Criminal Code or otherwise against the order of a court or judicial officer.” (Emphasis added).

56. [56]
    The parties did not refer to any other right of appeal under the Criminal Code other than in chapter 67.  Contained in chapter 67 is s 668D, which deals with a defendant’s right of appeal as follows:

“668D  Right of appeal

1. A person convicted on indictment, or a person convicted of a summary offence by a court under section 651, may appeal to the Court—

1. against the person’s conviction on any ground which involves a question of law alone; and

2. with the leave of the Court, or upon the certificate of the judge of the court of trial that it is a fit case for appeal, against the person’s conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the Court to be a sufficient ground of appeal; and

3. with the leave of the Court, against the sentence passed on the person’s conviction.

2. A person summarily convicted under section 651 may appeal to the court, with the leave of the court, against the sentence passed on conviction, including any order made under that section.” (Emphasis added).

57. [57]
    Section 668(1) of the Criminal Code defines “Court” as the Court of Appeal.  The term “indictment” is defined in s 1 of the Criminal Code to mean “a written charge preferred against an accused person in order to his trial [sic] before some court other than justices exercising summary jurisdiction”.^[41]  Section 651 in chapter 64 of the Criminal Code allows a court to decide summary offences if an indictment is before the court.  Ordinarily this occurs, for example, when an indictment is presented in the District or Supreme Court and there are associated summary offences arising from the same circumstances which are then transmitted to the higher court so they can be dealt with together on sentence.
58. [58]
    Relevantly, s 669A(1) in chapter 67 of the Criminal Code provides:

“669A Appeal by Attorney-General or Crown Law Officer

1. The Attorney-General may appeal to the Court against any sentence pronounced by—

1. the court of trial; or

2. a court of summary jurisdiction in a case where an indictable offence is dealt with summarily by that court;

and the Court may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper.”

59. [59]
    In R v Sprott: Ex parte Attorney-General (Qld) [2019] QCA 116, Sofronoff P observed of s 669A:^[42]

“The jurisdiction has been conferred so that the Court of Appeal can ensure that there will be consistency in sentencing because inadequate sentences are likely to undermine public confidence in the ability of courts to play their part in deterring the commission of crimes.”

60. [60]
    As can be seen, the only existing right for a defendant to appeal a conviction or sentence under chapter 67 of the Criminal Code is to the Court of Appeal by s 668D.  However, s 668D does not allow such an appeal for charges dealt with in the Magistrates Court and Childrens Magistrates Court, because such charges are not dealt with on indictment.  The Youth Justice Act’s express contemplation of an appeal right for a child under chapter 67 of the Criminal Code, but the lack of any such appeal right within that chapter, creates quite a quandary for this court’s determination.  The legislative history of chapter 67 gives some context to this predicament, particularly since it has not always been the case that defendants have had no direct right of appeal from the Magistrates Court to the Court of Appeal.

Legislative history of chapter 67 of the Criminal Code

61. [61]
    Between 1975 and 1997, s 673 within chapter 67 of the Criminal Code provided for appeals by defendants from summary convictions and against sentences passed on such convictions directly to the Court of Appeal as follows:

“673 Appeals from Summary Convictions

A person convicted summarily of an indictable offence may appeal against the person’s conviction and against the sentence passed on the person’s conviction on the same grounds and on the same conditions as if he had been convicted on indictment.

The rights conferred by this section are conferred to the exclusion of any other right of appeal conferred by the Justices Act 1886 on persons aggrieved by summary convictions and sentences passed on such convictions.”

62. [62]
    Both ss 673 and 669A were repealed and re-enacted by the Criminal Code and the Justices Act Amendment Act 1975 (Qld).^[43]  The Legislative Summary of the amending legislation described the changes as follows:^[44]

“Section 669A is repealed and re-enacted.

The right of appeal against sentence by the Attorney-General is extended to include sentences pronounced by a court of summary jurisdiction where that court deals summarily with indictable offences.

…

The new section 669A renders it necessary to repeal and re-enact section 673 so that a right of appeal to the Court of Criminal Appeal is conferred upon persons aggrieved by summary convictions for indictable offences and sentences passed upon such convictions, to the exclusion of the right of appeal presently conferred by the Justices Act to the Supreme Court.” (Emphasis added).

63. [63]
    As can be seen, s 673 expressly referred to but excluded a right of appeal under the Justices Act.  Relevantly, s 222 of the Justices Act was first introduced by the Justices Acts Amendment Act of 1949 (Qld).^[45]  The original section provided as follows:

“222 Appeal to a Judge of the Supreme Court

1. When any person feels aggrieved as complainant, defendant, or otherwise by any order made by any justices or justice in a summary manner upon a complaint for an offence or breach of duty such person may appeal as hereinafter provided to a Judge of the Supreme Court whose determination shall be final between the parties to the appeal.  Provided that in the case of a defendant who feels aggrieved by a summary conviction of an offence or by an order made by justices on the breach of a statutory duty an appeal under this section shall not lie unless—

1. The fine, penalty, or forfeiture exceeds the sum or value of five pounds or the imprisonment adjudged exceeds one month ; or

2. Such person has upon application made within seven days after the decision obtained the leave of a Judge to appeal under this section.

…” (Emphasis added).

64. [64]
    At the time of the introduction of this s 222 appeal right, there were no District Courts in Queensland.  The section was subsequently amended in 1988 so that appeals were to be made to a single Judge of the District Court.^[46]  As noted above, s 673 did not create an additional right of appeal to the Supreme Court (and then later the District Court) under the Justices Act.  It expressly excluded that path if an appeal under s 673 was pursued.
65. [65]
    Section 673 was subsequently removed by the Courts Reform Amendment Act 1997 (Qld).^[47]  The Explanatory Notes to the Courts Reform Amendment Bill 1997 describe one of the main objectives of the Bill as to “provide that all appeals from orders of Magistrates Courts in relation to simple and indictable offences are heard and determined in the District Courts.”^[48]  The Explanatory Notes further state that in removing s 673, rights of appeal under the Justices Act will be available to persons convicted summarily of an indictable offence.^[49]  The removal of appeals directly from the Magistrates Court to the Court of Appeal is explained as follows:^[50]

“A significant part of the Court of Appeal’s criminal case load has consisted of appeals from Magistrates Courts. The offences which are determined summarily by a Magistrate are generally at the less serious end of the scale.

It is appropriate that the limited resources of the Court of Appeal are confined to more serious cases, and those involving significant questions of law, and that all appeals from orders of Magistrates Courts exercising criminal jurisdiction should be dealt with in the District Court, with a further right of appeal available with the leave of the Court of Appeal.” (Emphasis added).

Consideration

66. [66]
    The applicant’s written submissions contend that the words “with necessary modifications” in s 116 of the Youth Justice Act “are intended to confer upon this Court jurisdiction to hear appeals from decisions of a Childrens Court judge, including on a sentence review” (emphasis added).^[51]
67. [67]
    In my view, this submission overlooks that the Childrens Court judge’s decision is expressly stated to “take effect” as the decision of the Childrens Court magistrate who made the sentence order reviewed.^[52]  As noted above, the decision becomes the decision of the Childrens Court magistrate.  This finding is consistent with the express provision in s 125(2)(b) that the sentence order as reviewed may be appealed “in the same way” as the decision of the Childrens Court magistrate.
68. [68]
    To overcome the apparent lack of an appeal right in chapter 67 of the Criminal Code, the applicant’s preferred construction was a confined one based on the “necessary modifications” referred to in s 116.  The applicant invoked those words to argue that the requirement under chapter 67 (particularly in s 668D) that the child be convicted on indictment does not apply, with this creating a direct right of appeal to this Court.
69. [69]
    There is an obvious internal tension or inconsistency in the Youth Justice Act.  On the one hand, s 125(2) and (3) contemplate an appeal from a sentence review decision.  However, the only potential avenue for such an appeal by a child (by operation of s 116) is through the machinations of chapter 67 of the Criminal Code.  As discussed, that chapter does not provide a child a right of appeal from a summary offence or an indictable offence dealt with summarily.
70. [70]
    The Court must strive to give meaning to every word and provision of an Act,^[53] and is to prefer the interpretation that will best achieve the purpose of the Act.^[54]  Section 14A(1) of the Acts Interpretation Act 1954 (Qld) requires that, in interpreting a provision, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.
71. [71]
    Sometimes the construction task can be difficult.  This is such a case.  But however difficult the task is, courts must persevere and wrestle with difficult language to find legislative meaning.^[55]  In doing so, it is the duty of the court to give the words “the construction that produces the greatest harmony and the least inconsistency”.^[56]  Where there are two provisions in a single piece of legislation which initially appear to be in conflict, since it is “improbable that the framers of legislation could have intended to insert a provision which has virtually no practical effect, one should look to see whether any other meaning produces a more reasonable result”.^[57]
72. [72]
    In circumstances where the court is unable to give effect to what it considers to be the evident purpose or object of the legislation, the following observations of Mason J (as his Honour then was) and Wilson J in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 are instructive:^[58]

“The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole.  But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.

The rules [of construction], as D C Pearce says in his Statutory Interpretation, p 14, are no more than rules of common sense, designed to achieve this object.  They are not rules of law.  If the judge applies the literal rule it is because it gives emphasis to the factor which in the particular case he thinks is decisive.  When he considers that the statute admits of no reasonable alternative construction it is because (a) the language is intractable or (b) although the language is not intractable, the operation of the statute, read literally, is not such as to indicate that it could not have been intended by the legislature.

On the other hand, when the judge labels the operation of the statute as ‘absurd’, ‘extraordinary’, ‘capricious’, ‘irrational’ or ‘obscure’ he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred.  But the propriety of departing from the literal interpretation is not confined to situations described by these labels.  It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.

Quite obviously questions of degree arise.  If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention.  If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.” (Emphasis added).

73. [73]
    Further, whilst the court must endeavour to give some effect to all provisions of an Act, the consequences of a particular interpretation are relevant.  This is particularly so where the choice is between an interpretation that will result in inconvenience, or even injustice or absurdity, and another that avoids such a result.  For example, in Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203, Nettle J rejected a proposed interpretation on the basis that “[i]t is not to be inferred that the provision was intended to require something which may prove to be impossible or impracticable”.^[59]

“Necessary modifications”

74. [74]
    As discussed, chapter 67 of the Criminal Code is made applicable (by s 116 of the Youth Justice Act) to a proceeding before a Childrens Court magistrate as it applies to a proceeding before a Magistrates Court “with necessary modifications and any prescribed modifications”.  Neither party in this appeal referred the Court to any prescribed modifications, nor do there appear to be any in the Youth Justice Regulation 2016 (Qld).  The expression “necessary modifications” is not defined in the Youth Justice Act.
75. [75]
    Reading s 116 as a whole, it is apparent that the inclusion of the words “necessary modifications” ensures that the same appeal rights available to an adult defendant under chapter 67 are also available to a child defendant.  This interpretation is consistent with the Explanatory Notes to the former s 87B (in identical terms to s 116) which stated that: “Section 87B provides that chapter 67 of the Criminal Code applies with necessary modifications for a child before the Childrens Court as it applies to an adult before the Magistrates or District Court”.^[60] (emphasis added).
76. [76]
    Relevantly, the phrase “necessary modifications and any prescribed modifications” is also used in s 66(2) of the Youth Justice Act:

“66 Application of usual laws where necessary

1. Subject to subsections (2) and (3), for the purposes of the powers and jurisdiction of a Childrens Court conferred by this Act, the provisions of the Criminal Code, Justices Act 1886 and other Acts apply to—

1. the institution and conduct of a proceeding before a Childrens Court; and

2. the exercise by a Childrens Court of its powers and jurisdiction; and

3. the enforcement of an order made by a Childrens Court.

2. Provisions applied under subsection (1) apply, with all necessary modifications and any prescribed modifications—

1. in relation to a Childrens Court judge in the way they apply in relation to the District Court; and

2. in relation to a Childrens Court magistrate in the way they apply in relation to a Magistrates Court.

3. To the extent that another provision of this Act is inconsistent with a provision applied under subsection (1), the other provision of this Act prevails.” (Emphasis added).

77. [77]
    Reading ss 66(1) and (2) together, the modifications contemplated by s 66(2) relate to the institution and conduct of proceedings, the court’s exercise of power and jurisdiction, and the enforcement of court orders in the Childrens District Court and Magisrates Court in the same way as they apply in the District and Magistrates courts.  This supports a construction of the “necessary modifications” contemplated by s 116 meaning only that appeals in relation to children follow the same procedures as adults, with adjustments to fit within the system of the Childrens Court.  In my view, “necessary modifications” means only those modifications as are necessary to achieve this purpose.

Applicant’s construction of s 125(2)(b): Is there really no work to be done?

78. [78]
    The applicant submitted that if an appeal avenue were found “not to exist”, then the words “[t]he decision of a Childrens Court judge on a sentence review…. may be …. appealed against” in s 125(2)(b) would be of no effect; with such a reading contrary to orthodox principles of statutory interpretation.^[61]
79. [79]
    In striving to give meaning to every word of a provision (and every provision of an Act), certain terms must not be cherry-picked but rather read in their entirety.  The applicant’s paraphrasing of s 125(2)(b) overlooks the subsequent qualification in the text that the decision may be appealed “in the same way as the decision of the Childrens Court magistrate.”  That section does not create an appeal right.  Rather, it contemplates that an appeal right may exist.  The text of the section does not make any specific reference to the availability of an appeal by a child.  The language is cast more generally.
80. [80]
    The applicant’s submission also overlooks that there is, in fact, an express and existing appeal right available from the Childrens Court magistrate court on a sentence where an indictable offence is dealt with summarily, albeit it is the right of the Attorney-General under s 669A of the Criminal Code rather than a right of a child.
81. [81]
    When read in this context, I do not accept that, strictly speaking, the words of s 125(2)(b) can be said to have no work to do.

Meaning of “in the same way” in s 125(2)(b)

82. [82]
    In relying on the reference to “necessary modifications” in s 116, the applicant further submitted that the words “in the same way” in s 125(2)(b) refer to the substance of the appeal relief available against a decision of a Childrens Court magistrate, rather than the form of appeal.  That is, “in the same way” that a decision of a Childrens Court magistrate may be appealed against under s 222 of the Justices Act where a decision is vitiated by error, the provisions of chapter 67 of the Criminal Code may be adopted to provide an avenue of appeal against a decision following a sentence review.
83. [83]
    I do not accept that the words “in the same way” are capable of being construed in this way.^[62]
84. [84]
    First, there is an underlying inconsistency in this submission, in that it overlooks that the Childrens Court decision may also be reviewed under s 118 of the Youth Justice Act.  As determined above, this review is by way of a rehearing de novo where there is no need to show error.
85. [85]
    Second, the applicant’s submission seeks to use the expression “in the same way” to broaden the meaning of “necessary modifications” to create a right of appeal that otherwise does not exist in chapter 67 of the Criminal Code.  Such a strained construction is not consistent with the context and purpose of s 116.
86. [86]
    Third, by s 668D of the Criminal Code, an adult cannot directly appeal a sentence imposed by a magistrate to the Court of Appeal. The consequences of the construction of “necessary modifications” advanced by the applicant extends further than what modifications are necessary. Further, the right of appeal it purports to create is inconsistent with the rights of appeal available to an adult in chapter 67.

Non-existing right of appeal

87. [87]
    The effect of the applicant’s construction is that it purports to create in s 668D (with necessary modifications) a direct path of appeal to the Court of Appeal from the Magistrates Court in relation to summary offences, and indictable offences dealt with summarily, in the context of the sentence review regime of the Youth Justice Act.  It may be that the applicant’s argument is even broader.  Indeed, given the express words of s 125(2) of the Youth Justice Act, it is difficult to avoid the perhaps unintended consequence of the applicant’s construction that there is an appeal right directly to the Court of Appeal in all cases where a child is sentenced summarily by a Childrens Court magistrate.  Either way, such an interpretation would lead to an unnatural and incoherent body of law because it is contrary to the express words of s 125(2)(b), which states that the appeal is to be “in the same way” that the decision of the Childrens Court magistrate can be appealed.  That is, the appeal right contemplated by this section is an existing right, not one to be created.
88. [88]
    There is a strong presumption that a State legislature does not intend to contradict itself.  Every attempt should be made to reconcile competing statutes. Reconciliation may be “reasonably and properly” achieved by reading one statute as subject to the other using the maxim “generalia specialibus non derogant” which means that a later general enactment will not derogate from or override an earlier specific enactment.^[63]
89. [89]
    In the context of this case, the general sentence review provisions and s 116 of the Youth Justice Act contemplate an appeal right which is not contained in the specific provisions of chapter 67.  A satisfactory reconciliation can be reached by reading the general provisions in the Youth Justice Act as being subject to an appeal right existing under chapter 67 of the Criminal Code.

Creation of inconsistent rights

90. [90]
    There is no equivalent right for an adult to apply for a sentence review from a decision of a magistrate as is available to a child under s 118 of the Youth Justice Act.  As discussed, the only appeal right is to the District Court under s 222(2)(c) of the Justices Act and then from the District Court (with leave) to this Court via s 118 of the District Court Act.  An identical appeal right from a Childrens Court magistrate is available to a child as well under s 117 of the Youth Justice Act.  I accept that an adult does not have a right to review the sentence as a child, but this does not mean that Parliament intended for there to be an additional right created by “necessary modifications” following a sentence review.  Such a construction would be contrary to the purpose of s 116, being to provide adults and children access to the same appeal rights under chapter 67.

Context and purpose

91. [91]
    The applicant submitted that it would be inconsistent with the purposes of the Youth Justice Act that an error made by a Childrens Court judge on a sentence review could not be appealed against.  I do not accept this submission.
92. [92]
    First, the purpose of the sentence review scheme, which is exclusive to the Youth Justice Act, is to provide an informal, inexpensive and fair resolution for a child dissatisfied with the sentence order of a Childrens Court magistrate.
93. [93]
    Second, the statutory regime of appeal and review plainly envisages two distinct processes: a formal, expensive, and slower option by way of a rehearing in the Chakka sense through a s 222 Justices Act appeal to a Childrens Court judge (with leave to appeal that decision to the Court of Appeal), or an informal, faster and less expensive path by way of a rehearing afresh before a Childrens Court judge, with that decision expressly stated to take effect as the decision of the Childrens Court magistrate.
94. [94]
    Construing s 116 to create an otherwise non-existent appeal right in chapter 67 of the Criminal Code would lead to an impractical, untenable and unintended outcome by:

    1. creating inconsistency between the appeal rights available to adults and children under chapter 67;
    2. partially recreating a right of appeal to the Court of Appeal from the Magistrates Court in circumstances where, at least in so far as indictable offences dealt with summarily are concerned, such a right was expressly repealed many years ago for sound policy reasons; and
    3. potentially opening the floodgates by extending a right of appeal to this Court not only in relation to indictable offences dealt with summarily but also to any summary offences dealt with by the Magistrates Court.  Such a broad right of appeal has never been contemplated or enacted under the Criminal Code.

Conclusion

95. [95]
    I am not satisfied that the Court of Appeal has jurisdiction to hear an appeal from a decision of a Childrens Court judge following a review under s 118 of the Youth Justice Act.  In reaching this view, I am content that this construction of the relevant text of the Youth Justice Act – most particularly the appeal and review scheme in part 6, division 9, does not overlook Parliament’s express yet general contemplation of an appeal right following a sentencing review.  Rather, this construction recognises that such a right is contingent on that right existing under chapter 67 of the Criminal Code.  In the applicant’s case, there is no such right.  This construction best fits the context of the statutory scheme of which the text forms part;^[64] and avoids a result which would lead to inconvenience and inconsistency.

Order

96. [96]
    The application for leave to appeal is dismissed.