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R v BZZ and AZY; Ex parte Attorney-General[2025] QCA 89

R v BZZ and AZY; Ex parte Attorney-General[2025] QCA 89

SUPREME COURT OF QUEENSLAND

CITATION:

R v BZZ & AZY; Ex parte Attorney-General (Qld) [2025] QCA 89

PARTIES:

In CA No 159 of 2024

R

v

BZZ

(respondent)

EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

(appellant)

In CA No 158 of 2024

R

v

AZY

(respondent)

EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

(appellant)

FILE NO/S:

CA No 159 of 2024

CA No 158 of 2024

SC No 236 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Attorney-General (Qld)

ORIGINATING COURT:

Supreme Court at Brisbane – [2024] QSC 138 (Davis J)

DELIVERED ON:

3 June 2025

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2025

JUDGES:

Flanagan JA and Burns and Cooper JJ

ORDERS:

  1. In CA No. 158 of 2024 the appeal is dismissed.
  2. In CA No. 159 of 2024 the appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where both respondents pleaded guilty to one count of burglary and stealing (Count 1), one count of unlawfully using a motor vehicle to facilitate the commission of an indictable offence (Count 2), one count of burglary by breaking, in the night, while armed, in company (Count 3), and four counts of malicious act with intent (Counts 4 to 7) – where AZY also pleaded guilty to one count of assault occasioning bodily harm whilst armed (Count 8) and one count of contravening order about device information from digital device (Count 9) – where AZY received an overall sentence of 7 years detention – where BZZ received an overall sentence of 8 years detention – where no convictions were recorded in respect of any of the offending – where, on account of the respondents’ lack of criminal history, rehabilitative efforts and personal circumstances, the sentencing judge ordered that the period of detention be reduced from 70 per cent to 50 per cent – where the Attorney-General appeals against the sentences imposed on Counts 4, 5, 6 and 7 – where the Attorney-General contends that the period of detention ordered in respect of each respondent, in combination with the reduction of the proportion that needed to be served before release and the non-recording of convictions, resulted in overall sentences that were manifestly inadequate – where the Attorney-General challenges the starting point that a conviction is not to be recorded against a child – whether the sentences imposed are manifestly inadequate

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where Counts 4, 5, 6 and 7 involved a consideration of s 176(3) of the Youth Justice Act 1992 (Qld) – where the sentencing judge found that Count 4 was a particularly heinous offence in relation to BZZ – where BZZ was sentenced to eight years imprisonment in respect of Count 4 – where the sentencing judge found that Count 5 was a particularly heinous offence in respect of both respondents – where both respondents were sentenced to seven years detention in respect of Count 5 – whether the sentencing judge failed to have regard to the commission of offending in Counts 4, 5, 6 and 7 in determining whether each of those offences was particularly heinous – whether the sentencing judge, in imposing the sentences for Counts 4 and 5, failed to have regard to the appropriate maximum penalty of life in detention

Criminal Code (Qld), s 669A

Youth Justice Act 1992 (Qld), s 150, s 176(3)(b), s 183, s 184, s 218, s 227(2)

Director of Prosecutions (Vic) v Bright (2006) 163 A Crim R 538; [2006] VSCA 147, cited

Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29, cited

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, cited

Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17, cited

R v Brown [2024] QCA 20, considered

R v DCD; Ex parte Attorney-General (Qld) [2024] QCA 91, explained

R v De Simoni (1981) 147 CLR 383; [1981] HCA 31, cited

R v Goulding; R v Goulding, Peters, Potts & Knox; Ex parte Attorney-General (Qld) [2016] QCA 65, cited

R v Guode (2020) 267 CLR 141; [2020] HCA 8, cited

R v Hopper; Ex parte Attorney-General (Qld) [2015] 2 Qd R 56; [2014] QCA 108, cited

R v Ireland; Ex parte Attorney-General (Qld) [2019] QCA 58, cited

R v KAL [2013] QCA 317, cited

R v Kane; Ex parte Attorney-General (Qld) [2022] QCA 242, cited

R v Lewis; Ex parte Attorney-General (Qld) [2022] QCA 14, cited

R v Palmer; Ex parte Attorney-General (Qld) [2019] QCA 133, cited

R v Patrick (a pseudonym); R v Patrick (a pseudonym); Ex parte Attorney-General (Qld) (2020) 3 QR 578; [2020] QCA 51, cited

R v SCU [2017] QCA 198, cited

R v Smith [2019] QCA 179, considered

R v Sprott; Ex parte Attorney-General (Qld) [2019] QCA 116, applied

R v TX [2011] Qd R 247; [2011] QCA 68, cited

R v William (a pseudonym) [2020] QCA 174, cited

R v YTZ; Ex parte Attorney-General (Qld); R v YTZ [2023] QCA 87, considered

COUNSEL:

C N Marco, with C M Cook, for the appellant in CA No 158 of 2024 and CA No 159 of 2024

L D Reece, with E D Boddice, for the respondent in CA No 158 of 2024

D M Caruana, with G M Elmore, for the respondent in CA No 159 of 2024 (pro bono)

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant in CA No 158 of 2024 and CA No 159 of 2024

Horgan Criminal Lawyers for the respondent in CA No 158 of 2024

ACLG Lawyers for the respondent in CA No 159 of 2024 (pro bono)

  1. [1]
    THE COURT:  On 9 February 2024 the respondents entered pleas of guilty to the following seven counts:

Count 1: Burglary and stealing.

Count 2: Unlawfully using a motor vehicle to facilitate the commission of an indictable offence.

Count 3: Burglary by breaking, in the night, while armed, in company.

Count 4: Malicious act with intent.

Count 5: Malicious act with intent.

Count 6: Malicious act with intent.

Count 7: Malicious act with intent.

  1. [2]
    AZY also pleaded guilty to two further counts:

Count 8: Assault occasioning bodily harm whilst armed.

Count 9: Contravening order about device information from digital device.

  1. [3]
    All offences were committed on 16 August 2021.
  2. [4]
    The respondents were sentenced by Davis J in the Supreme Court at Brisbane on 27 June 2024.  As BZZ was 15 years and 10 months of age at the time of the offences and AZY was 15 years and 8 months of age at the time of the offences, both respondents were sentenced pursuant to the provisions of the Youth Justice Act 1992 (Qld).[1]
  3. [5]
    The learned sentencing judge imposed the following sentences:

Count 1: Burglary and stealing – two years’ detention for both respondents.

Count 2: Unlawfully using a motor vehicle to facilitate the commission of indictable offence – 12 months’ detention for both respondents.

Count 3: Burglary by breaking, in the night, while armed, in company – three years’ detention for both respondents.

Count 4: Malicious act with intent – eight years’ detention for BZZ and seven years’ detention for AZY.

Count 5: Malicious act with intent – seven years’ detention for both respondents.

Count 6: Malicious act with intent – four years’ detention for both respondents.

Count 7: Malicious act with intent – three years’ detention for both respondents.

For Counts 8 and 9, which only concerned AZY, he was sentenced to six months’ and three months’ detention respectively.  The periods of detention were ordered to be served concurrently with each other.  Pursuant to s 227(2) of the Youth Justice Act his Honour ordered release after the respondents had served 50 per cent of the detention period.  No convictions were recorded.  In relation to each respondent, the period of custody while on remand for the offences was ordered to be counted as part of the period of detention served in a detention centre in accordance with s 218 of the Youth Justice Act.

  1. [6]
    His Honour sentenced BZZ in relation to Count 4 on the basis that the maximum sentence was life in detention based on his Honour’s finding, pursuant to s 176(3)(b) of the Youth Justice Act, that the offence was a particularly heinous offence having regard to all of the circumstances.  His Honour, in imposing seven years detention for both respondents in respect to Count 5, also proceeded on the basis that the maximum period of detention was life as his Honour considered that this offence was also a particularly heinous offence having regard to all of the circumstances.  There was no issue that both Counts 4 and 5 satisfied s 176(3)(b)(i), in that both counts involved the commission of violence against a person.
  2. [7]
    Pursuant to s 669A of the Criminal Code, the Attorney-General appeals against the sentences imposed on the respondents only in relation to Counts 4, 5, 6 and 7.
  3. [8]
    The grounds of appeal are that:
  1. The sentences imposed on Counts 4, 5, 6 and 7 were manifestly inadequate.  (Ground 1)
  2. The learned sentencing judge failed to have regard to the circumstances of the commission of the offending in Counts 4, 5, 6 and 7 in determining whether each of those offences was particularly heinous.  (Ground 2)
  3. In imposing the sentences for Counts 4 and 5, the sentencing judge failed to have regard to the appropriate maximum penalty of life in detention.  (Ground 3)
  1. [9]
    If the Attorney-General were able to establish Grounds 2 and 3, this would affect the Court’s consideration of Ground 1.  It is therefore appropriate to consider Grounds 2 and 3 prior to considering Ground 1.
  2. [10]
    The relevant principles applicable to an Attorney-General’s appeal against sentence are discussed below.  As a preliminary observation however, this Court may only re-exercise the sentencing discretion if the Attorney-General establishes error.  Even where error is established, this Court has a residual discretion as to whether any different sentence should be imposed.  In this respect, it is noted that AZY has served the entirety of his sentence and is now in the community and BZZ is to be released from detention on 18 August 2025.  As recently observed by this Court in R v Kane; Ex parte Attorney-General (Qld),[2] it is a relevant consideration on an appeal by the Attorney-General that the offender may have already been released from custody.[3]  Such a consideration may affect the exercise of the recognised residual discretion.  The court may decline to return to custody a person who has been released from custody pursuant to the sentence at first instance, even though the sentence imposed at first instance may have been manifestly inadequate.[4]
  3. [11]
    A further preliminary observation, again by reference to the decision of this Court in R v Kane,[5] is that an Attorney-General’s appeal against sentence “should succeed only if it is brought to establish some matter of principle to avoid manifest inadequacy or inconsistency in sentencing standards”.[6]
  4. [12]
    For the reasons which follow, the Attorney-General has failed to establish any error which would require this Court to consider whether the residual discretion ought be exercised.

Agreed statement of facts

  1. [13]
    The sentence proceeded on the basis of an agreed statement of facts.[7]  His Honour, in considering the agreed facts, drew a number of inferences, none of which are challenged on appeal.  It is therefore convenient to take the statement of facts from his Honour’s sentencing remarks:[8]

“At about 1:00 am on 16 August 2021, you, together with your two accomplices, saw a Mercedes car and a Hyundai car parked outside a house in Forest Lake. The pair of you broke into the house looking for the keys to the Mercedes. Your two accomplices waited outside. Once in the house, you stole a handbag, a bottle of whisky and a mobile telephone. The keys to the Mercedes were not in the handbag, but the keys to the Hyundai were. . The entering of the dwelling in Forest Lake and the theft of the handbag and contents constituted count 1 on the indictment.

The owner of the Hyundai, Ms Michelle Waters, awoke to find you two and your two associates in the Hyundai about to reverse down her driveway. Ms Waters ran alongside the car, but lost her footing and fell. You all sped off in Ms Waters’ car. The handbag was discovered on the driveway, but her purse, which contained credit cards and personal information, had been taken. Your unlawful use of the car constituted count 2 on the indictment, and your later use of it in the commission of count 3 established the circumstance of aggravation charged in count 2. Fortunately, Ms Waters was not seriously injured, although she did suffer bruising and scratches and was treated in hospital. She still has some residual damage to her right foot and leg.

The remaining counts on the indictment, being counts 3 to 8, result from the truly horrific events that unfolded when the pair of you broke and entered the home of Mr Toutai Kefu, his wife, Mrs Rachel Kefu, and their five children, then aged between 13 and 21 years. The four of you drove in the Hyundai to Coorparoo looking for another car to steal. You found yourself in [Buena Vista] Avenue, Coorparoo, and you noticed a Volkswagen car parked outside the Kefus’ house. You resolved to enter the house and steal the keys to the target car, the Volkswagen.

Mr Kefu had a long career as an international rugby player and therefore enjoys some fame. It is not suggested that you targeted the family’s house for that reason. You did not know who owned the house. You were attracted only by the prospect of stealing the Volkswagen. As I will explain, when you entered the house, you, [BZZ], were armed with a sickle and you, [AZY], were armed with a red-handled knife. You may have had in your possession other knives, but the two instruments that appear to have done the damage to the Kefu family are the sickle and the red-handled knife.

By the time you invaded the sanctity of the Kefus’ house, it was about 3 am. Buena Vista Avenue is very clearly a suburban residential area. You could have not but realised that by entering a house on Buena Vista Avenue, Coorparoo, in the early hours of the morning, when there was a car parked outside, that there was likely to be a family asleep inside the house. The evidence is that you were in fact well aware of the possibility that during your invasion of the house you may encounter the occupants. I take this from the agreed statement of facts, where it is recorded that there was a conversation in the Hyundai between you and your accomplices where it was said in effect that, “If someone wakes up, you just stab them.”

Several inferences should be drawn. Firstly, you realised the possibility of confronting an occupant of the house. Secondly, you were prepared to enter the house to steal the car keys regardless of the possibility that you may encounter an occupant. Thirdly, your plan was that if you did encounter an occupant, not to abandon your plan to steal the cars but to overcome resistance. Fourthly, you intended to overcome any resistance by use of force. Fifthly, the force contemplated by you to overcome any resistance included the use of bladed weapons, namely the sickle and the red-handled knife.

The Kefus’ house is situated on the northern side of Buena Vista Avenue. The land slopes downwards from south to north. You entered the property from the front and ascended stairs at the back of the house onto a deck. You entered the house through a window adjacent to the deck. Mrs Kefu was awoken by car doors closing. She looked out a window and saw what she now knows to be the Hyundai. Mistakenly assuming the car was being driven by an Uber driver, she went back to bed.

She then heard noises from downstairs and went to investigate. She discovered you two in her house. You demanded the keys to the car, being the Volkswagen, and Mrs Kefu screamed. You told her to shut up or you would kill her. Mr Kefu, alerted to the emergency by his wife’s screams, ran to her aid. You, [AZY], grabbed Mrs Kefu by the arm and held the knife to her. Mr Kefu implored you to leave Mrs Kefu alone and you demanded the keys to the car under threat of hurting her. During this time, you both were waving your weapons and demanding the car keys.

Although what occurred next is dealt with in the agreed statement of facts which was tendered, there are some disagreements as to the conclusions which I should draw. While you were demanding the keys, Mr and Mrs Kefu pointed to a bowl on the kitchen bench and indicated the presence of the keys. The fact that you were being offered the keys did not seem to register with you. Mrs Kefu took two kitchen knives from a knife block and handed one to her husband, but both then put those knives down. Mr Kefu instead armed himself with a metal barstool.

By this stage, you had been told to leave the house. There was nothing stopping you from leaving. Then you, [BZZ], struck Mrs Kefu a blow with the sickle. The Crown submits that the delivery of the blow with the sickle to Mrs Kefu was a deliberate, gratuitous act of violence in circumstances where you had been offered the keys to the car and invited to leave.

However, I accept submissions made on your behalf that the circumstances are not as clear as the Crown submitted. There is other evidence that Mrs Kefu may have reached towards the kitchen bench before she was struck. That is where the knives had been placed. The pair of you may not have appreciated that you were being offered the keys. To say that this was a dynamic and quickly escalating series of events is an understatement, and there is a possibility, which I should accept, that you were confused and struck Mrs Kefu in panic. The assault upon Mrs Kefu constitutes count 4.

In my view, these findings hardly reduce your culpability in any significant way. As already observed, you entered the house having already determined that if resistance was offered by any occupants, you would overcome that resistance by use of the bladed weapons with which you had armed yourselves and which you took into the house. As I have already found, you had every intention to use the weapons if necessary. Whether you, [BZZ], panicked or not, you did use the sickle to injure Mrs Kefu and the objective circumstances were such that you were not under threat and you could have simply left the house once you had been confronted.

The sickle is self-evidently a wicked weapon. The handle is relatively long, as is the blade. Given the injury to Mrs Kefu, you, [BZZ], must have wielded the sickle with some force. By your plea of guilty to count 4, which represents your act in injuring Mrs Kefu, you accept that you manifested an intention to do her grievous bodily harm, and you certainly did.

Mrs Kefu suffered a 10-centimetre cut to her left mid-forearm. The cut covered an arc of approximately 50 per cent of the circumference of her arm. This resulted in muscles, tendons, nerves and a major vein in her forearm being severed. The blade penetrated the cortex, being the outer part of the bone of her arm. Mrs Kefu has undergone surgeries and even now, almost three years after your attack upon her, she has significant residual disabilities in her arm.

Upon his wife being attacked, Mr Kefu turned the metal stool sideways and charged towards the pair of you. Neither of you fled. You both stood your ground and responded by attacking Mr Kefu with your weapons. In the course of that fight, Mr Kefu was stabbed. That is the act which constitutes count 5 on the indictment.

Mr Kefu’s major injury was a stab wound to his lower right chest. The blade entered his ribcage, severed an artery and penetrated his liver. This was an injury which would have been fatal had medical attention not been obtained. He underwent surgery, which, amongst other things, stopped the bleeding from the artery. Mr Kefu also suffered other injuries, including various cuts and fractures to his right foot. It is accepted by your barrister, [AZY], that the stab wound, being the most significant injury suffered by Mr Kefu, was inflicted by you with the red-handled knife. You, [BZZ], received a stab wound to your upper back in the altercation with Mr Kefu.

Although the violence continued, it is well to pause at this stage in the hope that you appreciate the nightmare that you had orchestrated. Mr and Mrs Kefu, on any version of events, had done absolutely nothing wrong. They were peacefully occupying their house with their five children. You entered the sanctity of that dwelling with weapons and with an intent to use them in order to achieve your purpose of stealing their car.

Any actions of violence by Mr Kefu to you were completely and totally justified. Because of your actions, he was in a position where he had to defend his family against life-threatening violence being inflicted by you two invaders. Within a short time of you entering the house, both Mr and Mrs Kefu were very severely injured, with Mr Kefu’s injuries threatening his life.

But more damage to the Kefu family was to come. Mrs Kefu screamed for the assistance of her and Mr Kefu’s adult son, Joshua. He came from his upstairs bedroom downstairs and tackled you, [BZZ], who was still armed with the knife. You, [BZZ], attacked him with the sickle, slashing his back and left side. This left a gaping wound. Joshua Kefu struggled with you, but you both slipped in blood on the floor. The fall dislocated Joshua Kefu’s left shoulder.

Joshua Kefu’s injuries were a 20-centimetre vertical laceration to the left shoulder blade. The wound was about 10 centimetres deep. There was a further 10-centimetre vertical laceration to his upper back and a 5-centimetre laceration to his right forearm. This penetrated the muscle. There was a relatively minor laceration to his chest. As discussed, Joshua Kefu’s left shoulder was also dislocated. The attack upon Joshua Kefu is reflected by count 6.

During Joshua Kefu’s struggle with you, [BZZ], Madison and Olivia Kefu tried to leave the house. Mrs Kefu had slipped in blood and Madison was attempting to help her to her feet when you, [BZZ], attacked her with the sickle. She put her arm out to protect herself and was cut across the hand. The injury was a deep 4-centimetre laceration to her right hand, which extended through muscles and damaged cartilage and bone at her wrist joint. The blade of the sickle chipped a small fragment of bone in her wrist joint. Fortunately, neither the ulnar nerve nor the artery were damaged. That constitutes count 7 on the indictment.

Eventually you, [BZZ], left via the window through which you had entered the house. As previously observed, you were injured. You had a 2-centimetre stab wound to your back which had penetrated your lung. You managed to get to the Hyundai and your accomplices took you to hospital. You [AZY] ran for the now open front door of the house. This was left open by Madison, who by this stage had managed to exit the house and was heading for a neighbour’s house to obtain help.

Mr Benjamin Cannon, the Kefus’ next door neighbour, hearing the commotion, had come to investigate. You, [AZY], effectively ran into him as you exited the house. You assaulted Mr Cannon and that is count 8. Mr Cannon suffered a 1.5 centimetre cut to his left ring finger, [grazes] to his left shin and a small graze near his left thumb. He apprehended you and in due course police arrived.”

The sentencing remarks

  1. [14]
    In commencing the sentencing remarks, his Honour considered it was of some significance that the indictment, for Counts 4, 5, 6 and 7, charged both respondents with four counts of attempted murder and in the alternative, counts of malicious acts with intent.  The respondents had pleaded guilty to the alternatives to those four counts.  The Crown had therefore accepted the respondents’ guilty pleas to Counts 4, 5, 6 and 7 to the alternative counts of malicious act with intent in discharge of the attempted murder counts.
  2. [15]
    His Honour made specific reference to the victim impact statements which were received from Ms Waters, Mrs Kefu and Mr Cannon.  As to Mrs Kefu’s victim impact statement, she explained that there had been financial impacts from the offending, including interruption to the conduct of her businesses while she was recovering from her injuries.  The offending also impacted her mental health and overall well-being.  His Honour noted that apart from suffering severe physical injuries herself, Mrs Kefu had witnessed life threatening injuries being inflicted upon her husband and serious injuries inflicted on two of her children.
  3. [16]
    As to Counts 4, 5, 6 and 7, his Honour noted that if the respondents were being dealt with as adults, the maximum sentence would be life imprisonment.  His Honour referred to s 176(3)(a) of the Youth Justice Act where for a relevant offence that is a life offence, the court may order that the child be detained for a period of not more than 10 years.  His Honour further noted that, pursuant to s 176(3)(b)(i) and (ii), the court may order that the child be detained up to and including the maximum of life if the offence involves the commission of violence against a person and the court considers the offence to be a particularly heinous offence having regard to all of the circumstances.  His Honour then considered the proper construction of s 176(3).  As the Attorney-General, by Ground 2, seeks to challenge his Honour’s construction of s 176(3), it is necessary to set out in full his Honour’s reasoning in this respect:[9]

“What is in consideration by section 176(3)(b)(i) is “the offence”. The offence is the act or omission which renders an offender liable to criminal sanction. If the Crown seeks to have you sentenced on any particular count on the basis that offence is particularly heinous and involves the commission of violence against a person, then those two elements must be [proved] in relation to that particular offence.

The two of you are criminally liable under each of counts 4, 5, 6 and 7 on different bases. You, [BZZ], did the acts which constituted each of counts 4, 6 and 7, which were the acts which injured Mrs Kefu, Joshua Kefu and Madison Kefu, respectively. [AZY], you did the act which constituted count 5, which was the stabs or cutting which injured Mr Kefu. It is likely that the injury to Mr Kefu was inflicted by the red-handled knife.

You, [AZY], were in possession of the red-handled knife. Your barrister, Ms Reece, sensibly accepts that the most significant injury to Mr Kefu, being the stab to his torso, was inflicted by you. I find you were the offender who inflicted the injury to Mr Kefu.

As to each of counts 4, 6 and 7, you, [AZY], are liable for [BZZ]’s actions as you aided him in the commission of those offences by your presence and your actions within the house. You, [BZZ], are liable for [AZY]’s actions in committing count 5 as you aided him in the commission of that offence by your presence and your actions within the house.

Section 176(3)(b)(ii) of the Youth Justice Act provides that in determining whether an offence is particularly heinous, the Court has regard to all the circumstances. The Crown submits that all the circumstances in relation to each of the five offences includes circumstances of the commission of each of the other offences and the particulars of the other offences.

It would be surprising if the Crown’s submission is correct. The section on its face does not refer to a series of offences. It does not contemplate consideration of the offending generally. The statutory intent of the section is to determine whether the offence is particularly heinous. There are cases where section 176 has been applied and the term “all the circumstances” have included subjective mitigating circumstances. No authority could be found as to the proposition that all the circumstances would include the commission of other offences in the determination of whether a particular offence was particularly heinous.

In R v D, the child offender murdered a female Japanese tourist and then interfered with her corpse. The murder attracted consideration of section 121(3) of the Juvenile Justice Act 1992, the legislative predecessor to section 176 of the Youth Justice Act. It was held that in determining whether the murder was particularly heinous, the sentencing Court could not have regard to the offender’s subsequent conduct in interfering with the corpse. The Court of Appeal held that what was relevant to whether the murder was particularly heinous were the circumstances of the killing itself and not the offender’s subsequent conduct in dealing with the body.

As observed, there are cases where subjective considerations beyond the direct circumstances of the commission of the offence were considered as circumstances militating against a finding of particular heinousness. In R v Maygar; Ex parte Attorney-General & R v WT; Ex parte Attorney-General, which I will call “Maygar”, the Court of Appeal considered an offence of murder committed by a child who acted under compulsion. Compulsion is not a defence to murder, but where life imprisonment was not a mandatory sentence, the fact of the offender acting under compulsion was a mitigating circumstance. The question in Maygar was whether that factor could also be taken into account in determining whether the offence was particularly heinous. Keane JA, as his Honour then was, observed this:

Section 176(3) of the Juvenile Justice Act is concerned with the extent of punishment to be imposed upon a child convicted of an offence. 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.

In R v William (a pseudonym), Sofronoff P, with whom Morrison JA and Mullins JA (as her [H]onour then was) agreed, analysed section 176 in the context of determining the extent to which circumstances peculiar to the offending child but separate from the objective features of the act or omission constituting the offence could be relevant considerations for the determination of whether an offence is particularly heinous. His Honour considered and followed Maygar and then turned to the youth justice principles and identified those which were relevant to the sentencing. After referring to a number of features relevant to the assessment of sentence, his Honour observed this:

These facts are some of the circumstances to which section 176 of the Youth Justice Act would have obliged the Court to have regard if William was sentenced as a child. They bear upon his true character and are therefore relevant to a consideration of the heinousness of his offence.

His Honour then held that all the circumstances include subjective factors such as rehabilitative prospects. Those comments do not answer the direct question posed here; however, what they establish is that the determination of whether an offence is or is not particularly heinous requires an assessment of the offending by reference to the relevant sentencing principles and considerations. The statutory task in relation to each of the five offences which the Crown seeks to have declared as particularly heinous requires the identification of the circumstances upon which the sentence is to be assessed.

Circumstances legitimately taken into account on sentence for a particular offence may be ones which show the commission of separate identifiable offences. However, there are limitations. These principles were considered in R v D but, as observed by the Court of Appeal in that case, they are often difficult to apply.

It is not necessary to delve into the various issues identified in R v D which may arise in determining what circumstances beyond the act or omission constituting the offence may be legitimately taken into account on sentence. It is sufficient to say that the circumstances which are relevant to the particular offence may be taken into account, but just as the commission of a separate offence cannot be taken into account so as to increase the sentence for the offence in question, neither can those circumstances be taken into account to elevate an offence to the status of particularly heinous.

There is nothing in section 150 of the Youth Justice Act which prescribes the principles for sentencing a child, or the youth justice principles, or section 9 of the Penalties and Sentences Act, which is incorporated into the sentencing process by section 150 of the Youth Justice Act, to suggest that particular heinousness is assessed by reference to all the conduct globally. The appropriate approach is to separately determine whether each of the five offences are particularly heinous by reference to factors, namely all the circumstances, which are relevant as determined by the usual principles on the question of sentence.

Those considerations include circumstances which explain the gravity of the offending, including that a particular offence is not an isolated one, but without taking into account the circumstances of the commission of the other offences which individually attract criminal sanction. The circumstances which are common to all five offences under consideration are: firstly, there was a group of four offenders; secondly, you entered a dwelling at night time; thirdly, it was foreseen that the house may be occupied at the time of entry and that resistance may be offered by the occupants; fourthly, weapons were taken into the house to overcome any resistance if necessary; and fifthly, violence to innocent persons lawfully occupying the house was therefore contemplated.

I turn now to consider whether each of the five offences were relevantly particularly heinous. The legislative introduction of the notion of a life offence being particularly heinous is a rather artificial legal device. The exercise of requiring a determination of whether an offence is particularly heinous is only necessary where the offence is one that carries a maximum of life imprisonment. As the harshest penalty that can be imposed under the criminal law of Queensland is life imprisonment, offences which carry such a sentence will, as a matter of policy, be those of the most serious nature and surely heinous by definition. However, section 176 draws a distinction between life offences which are particularly heinous and life offences which are not.

As Keane JA, as his Honour then was, observed in Maygar, section 176(3) necessarily contemplates that cases of murder will not be particularly heinous simply because the offence involved is murder. Therefore, what is in consideration are circumstances which elevate the offending to a higher level of culpability than normally attaches to such offending.

In R v D, the Court of Appeal observed to fall within the description of a particularly heinous offence, the offence must be one that was particularly odious or reprehensible. In R v William (a pseudonym), Sofronoff P adopted the dictionary definition of the term “heinous”, being, “hateful, odious, highly criminal or wicked, infamous, atrocious, chiefly characterising offences, crimes, sins and those who commit them.” His Honour then observed that it is not enough for the offence to be heinous. The test requires the offence to be particularly heinous.

The offence committed in each of the counts by each of you are the acts with any relevant state of mind or other circumstances of each of you. It is well established that when sentencing co-offenders, a sentencing Court looks at the respective roles and conduct in the commission of the count and that often leads to different offenders receiving different sentences.

The Crown approached the question of whether the offences were particularly heinous in a broad global way. They looked at the series of offences as something which was committed by you jointly and made no attempt to address the question posed by section 176 by reference to what each of you did in order to render yourself criminally liable.

In my view, the approach of the Crown is misconceived. The appropriate approach is to regard each count separately and consider what each of you did in all the circumstances to determine whether, in relation to each count, the offence which you each committed was particularly heinous.”

  1. [17]
    His Honour then considered whether each of Counts 4, 5, 6 and 7 was particularly heinous.  His Honour noted that in relation to Count 4 which involved Mrs Kefu being struck with a sickle, this act of BZZ was “a completely unnecessary act”.  His Honour identified that the act was premeditated in that both respondents had determined before entering the house to meet any resistance with force.  His Honour did not consider Count 4 particularly heinous in relation to AZY, as his liability arose as an aider or encourager.  AZY was not in possession of the sickle and did not make the decision to strike Mrs Kefu with the sickle.
  2. [18]
    As to Count 5 which involved Mr Kefu, his Honour, in addition to the five factors which were common to all five offences, noted that Mr Kefu when he utilised the stool, was acting in defence of himself, his home and by that stage, his critically injured wife.  His Honour observed that both respondents had stood their ground and attacked Mr Kefu with a sickle and a knife.  This resulted in Mr Kefu being very badly injured.  While it was AZY who actually stabbed Mr Kefu, BZZ was seeking to cut Mr Kefu with the sickle during the same episode in which Mr Kefu was stabbed.  His Honour therefore concluded that Count 5 was a particularly heinous offence in respect to each respondent.
  3. [19]
    As to Counts 6 and 7, his Honour considered that these counts were different to the circumstances of Counts 4 and 5 in that these counts alleged actual grievous bodily harm being caused, whereas Counts 6 and 7 alleged wounding.  For Count 6 while Joshua Kefu suffered various injuries, his Honour considered that those injuries were not caused as a result of a direct blow by BZZ with the sickle.  Further, the dislocated shoulder suffered by Joshua Kefu was not a wound.  AZY was not the principal actor in relation to the commission of Count 6.  In the result, his Honour did not find that Count 6 constituted a particularly heinous offence in relation to either respondent.  As to Count 7, it was BZZ who physically cut Madison Kefu with the sickle.  The liability of AZY was as an aider or encourager to BZZ.  His Honour noted that the four centimetre laceration to Madison Kefu’s right hand did not cause permanent damage and there was no prolonged attack upon her.  The injury was sustained from one blow with the sickle.  In the result, his Honour did not find that Count 7 constituted a particularly heinous offence in relation to either respondent.
  4. [20]
    Having undertaken the task required by s 176(3)(b), his Honour identified in regard to BZZ that the maximum sentence for each of Counts 4 and 5 was detention for life and for each of Counts 6 and 7 was 10 years detention.  For AZY, the maximum sentence for each of Counts 4, 6 and 7 was 10 years detention and for Count 5 was detention for life.
  5. [21]
    His Honour then considered the personal circumstances of both respondents.  As to BZZ, his Honour noted the following:
    1. BZZ was born in Melbourne and moved to Queensland at the end of 2018 with his family;
    2. at the start of grade 4 he began to display symptoms of Tourette Syndrome which manifested itself in involuntary jerks or ticks and involuntary vocalisation;
    3. in his first three years of school he had been subject to bullying and racial taunts;
    4. he was affected by the death of one of his school friends which had a profound impact upon him;
    5. he graduated from primary school in 2016 and commenced secondary school education in 2017.  He excelled at sport, particularly tennis.  In 2018 he had to cease playing tennis because of a persistent wrist injury;
    6. upon the family moving to Queensland at the end of 2018, he started a new high school in 2019 and was again bullied.  The bullying arose because of the effects of his Tourette Syndrome and his race;
    7. by grade 10 in 2021 he had begun associating with older students and engaging in substance use, including cannabis, tobacco and alcohol.  He was under the influence of substances when he committed the present offences;
    8. halfway through grade 10, he enrolled at a vocational school.  At this time there was a decline in his mental well-being and he expressed suicidal ideations;
    9. between 7 July 2021 and 13 July 2021, approximately one month before the commission of the current offences, he committed a number of offences for dishonesty, most of which concerned the unlawful use of motor vehicles.  On 11 July 2022, almost a year after the present offending, and while he was in detention, he was convicted of these offences.  No conviction was recorded and he was reprimanded;
    10. he had been in detention since 2021 and while in detention came under the care of a psychologist;
    11. he has been diagnosed as suffering from severe depression, extremely severe anxiety and moderate stress;
    12. the psychologist has noticed that BZZ has matured psychologically and emotionally.  He is now close to his family and has a deep religious faith;
    13. the psychologist also noted that BZZ is remorseful and has insight into his offending;
    14. during his time in detention he has enrolled and engaged in a wide variety of education programs, including general education, fitness, life skills, therapeutic and well-being programs, self-improvement programs and drug and alcohol programs;
    15. on 24 April 2024, he participated in a restorative justice conference in relation to the present offending.  While none of the victims participated in this conference, it was noted that BZZ showed remorse and insight into the offending as well as shame and regret.  He wished to express his remorse to the family;
    16. upon release, BZZ intends to relocate to Melbourne and commence an apprenticeship in barbering; and
    17. BZZ received a reference from the project manager of an organisation called Our Neighbourhood.  This organisation has been working with BZZ whilst in detention.  His Honour noted that the reference speaks highly of BZZ, noting that he holds a desire to reform and become a positive influence on society.
  6. [22]
    As to AZY:
    1. he had no prior convictions;
    2. he was one of eight children and had experienced community violence and obtained a humanitarian visa as a consequence of which he migrated to Australia in 2007;
    3. his upbringing had been marked with significant and continuous domestic violence perpetrated by his father upon his mother;
    4. he would absent himself from the family home from time to time to avoid the violence;
    5. as a result of the trauma at home, he gravitated towards peer groups who were involved in anti-social activities, including illicit substance abuse.  The current offences were committed while he was under the influence of substances.  Leading up to the offending, he increased his use of alcohol and cannabis;
    6. he has demonstrated remorse for his actions and insight into the damage that he has caused to the Kefus;
    7. he has made significant attempts at rehabilitation while in detention.  He engaged voluntarily in various services including a mental health service and speech pathology;
    8. he also received a reference from the project manager at Our Neighbourhood who spoke encouragingly about him;
    9. he engaged in a restorative justice conference in relation to the present offending, though again none of the victims participated in this conference; and
    10. through his counsel he apologised to the Kefu family.
  7. [23]
    His Honour then considered whether it was appropriate to make an order, pursuant to s 227(2) of the Youth Justices Act, that the respondents be released from detention after serving 50 per cent or more, and less than 70 per cent, of a period of detention.  In order to so order, his Honour was required to consider whether there were special circumstances.  In this respect, his Honour observed as follows:[10]

“Special circumstances exist here to enliven the discretion. As already observed, you, [BZZ], had not been convicted of any offence before the current offences were committed. You had committed offences some weeks before the current offences have been charged. However, you had not been dealt with and not dealt with for about another year. You, [AZY], have suffered no convictions other than the current ones.

It is unusual for offenders, be they adult or juvenile, who commit offences of this gravity to have no prior criminal history. The fact that neither of you had a prior criminal history means that neither of you have previously been within the system, and therefore neither of you have had the benefit of any orders for supervision made under the Youth Justice Act.

Your response to supervision while in detention bodes extremely well for your rehabilitation. Given that the prospect of rehabilitation fundamentally underpins the approach to juvenile justice prescribed by the Youth Justice Act, the fact that you have responded well to your first intervention constitutes special circumstances for the purposes of section 227…”

  1. [24]
    His Honour made reference to s 150 of the Youth Justice Act and also the Youth Justice Principles.  By reference to a number of comparatives, his Honour noted that the Crown submission of 10 years detention was not justified even by comparative sentences imposed upon adults.[11]
  2. [25]
    In sentencing the respondents, his Honour noted that they had both been in custody for almost three years.
  3. [26]
    As to not recording convictions, his Honour observed as follows:[12]

“The offending here is very serious. The seriousness of the offending may itself justify the recording of a conviction. However, as I have earlier explained, neither of you had prior convictions before the current offending and neither of you have had the benefit of supervision pursuant to orders under the Youth Justice Act. Both of you have taken the opportunities that have been presented to you whilst in detention. In those circumstances, notwithstanding the seriousness of the offending, no convictions ought to be recorded.

I have already concluded that special circumstances are present here to enliven the discretion to order your release from detention after you have served between 50 per cent and 70 per cent of the periods of detention I have just ordered. In all the circumstances, but especially the lack of prior criminal history and your rehabilitative efforts, I order that you both be released from detention after serving 50 per cent of the periods of detention I have imposed. The upshot is that you, [BZZ], are sentenced to eight years detention, to serve four years before release, with no convictions recorded. You, [AZY], are sentenced to seven years detention, to serve three years and six months, before release with no convictions recorded.”

Relevant principles for an Attorney-General’s appeal against sentence

  1. [27]
    For an appeal brought by the Attorney-General pursuant s 669A of the Criminal Code, the burden of persuasion rests with the Attorney-General.  As explained in R v Palmer; Ex parte Attorney-General (Qld):[13]

“[42] The burden of persuasion is entirely on the Attorney-General who has to demonstrate error and also has to persuade the Court of Appeal to exercise the discretion to impose a more severe sentence.  The ‘residual discretion’ refers to the requirement, in certain cases, for the Attorney-General to demonstrate not only error in the exercise of discretion and not only to establish that the sentence imposed was inconsistent with principle, but also that it would not be unjust to impose a fresh sentence that is more severe.”

  1. [28]
    The Court also explained the important difference between an Attorney-General’s appeal against sentence compared to an offender’s appeal against sentence:

“[29] An appeal against sentence by the Attorney-General is different from an appeal against sentence by an offender because the jurisdiction conferred upon the Court conflicts with the time-honoured concept that a person should not be put in jeopardy for a second time. An Attorney-General’s appeal puts an offender in jeopardy of losing the freedom that has been promised beyond the sentence imposed at first instance.” (citations omitted).

  1. [29]
    In R v Sprott; Ex parte Attorney-General (Qld),[14] the Court stated the nature of this Court’s jurisdiction conferred by s 669A of the Criminal Code:

“[9] Section 669A of the Criminal Code (Qld) confers jurisdiction upon the Court of Appeal to decide an appeal by the Attorney-General against any sentence imposed by the court of trial.  The section also confers the powers to be used by the Court of Appeal in the exercise of that jurisdiction.  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.  However, consistency is not to be sought or secured by the Court of Appeal’s substitution, in any case brought by the Attorney-General, of its own view of the appropriate sentence irrespective of the presence or absence of error on the part of the trial judge.  The jurisdiction so conferred requires that error on the part of the sentencing judge be demonstrated before the Court’s discretion to vary the sentence is enlivened.  That is a principle that must be applied as a safeguard against injustice in the particular case.  An injustice may arise from a failure to adhere to that principle for two reasons.

[10] First, a person has a strong vested interest in his or her freedom subject only to the sentence of the primary tribunal and that interest ought not be taken away without proper recognised cause.  This is another way of stating the proposition that the jurisdiction cuts across a time-honoured concept of criminal justice by putting in jeopardy for the second time the freedom beyond the sentence imposed.  Second, the just sentence to be passed on an offender after a trial, and even on a plea of guilty, depends, or may depend, on many considerations that are not apparent to the Court of Appeal.  The appearance of a complainant, the demeanour of witnesses, the offender’s appearance and conduct in court, the impression produced by words, the “atmosphere” of the proceeding, are or may be of great worth in estimating the appropriate penalty for the crime.  Moreover, due respect must be paid to the skills and experience of sentencing judges, whose almost daily task is to consider how to exercise the discretion in multifarious circumstances.” (citations omitted).

  1. [30]
    The Court also emphasised the need for error to be established:

“[12] In order to ensure that the jurisdiction is exercised only in appropriate cases, it is useful to remember that the question for the Court of Appeal in such cases is not whether a sentencing judge had a sufficient reason for the sentence.  It is whether the sentence involved error of a kind warranting interference with a discretionary judgment.  The finding of error is a necessary condition for the exercising of the discretion.  Unless some material error of fact or law can be seen in the sentencing judge’s reasoning, then the question is whether, by reason of the extreme leniency of the sentence, an error of principle can be inferred.

[13] In the latter class of case, the ground relied upon is that the sentence was “manifestly inadequate”.  This is really an argument from a conclusion.  The ground invites the Court to conclude that the sentence is so disproportionate to the offending that the inference is inescapable that the sentencing discretion has miscarried for some invisible reason.

[14] Commonly, such lack of proportion is sought to be demonstrated by reference to comparable cases which are said to support a sentencing range.  The submission then continues that the sentence under appeal is outside the range and, consequently, is “manifestly” inadequate, and implies error.  It is only when the Court of Appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in exercising the discretion to resentence.  Disagreement about the adequacy of the sentence is insufficient because sentencing is too inexact a process to make mere disagreement a sufficient criterion.  Intervention is only warranted when the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle.

[15] For this reason appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases.  It must not be overlooked that what is called “the range” is no more than information about sentences that have been imposed in comparable (but not identical) cases.  This information is expressed in terms of the order of the sentence that, subject to discretionary considerations that are idiosyncratic to the case at hand, might be expected to be imposed on a certain type of offender who commits a certain type of crime.  What is called the range of sentencing, therefore, is the historical fact that there has been a general pattern of sentencing over a particular period.  What is more, a judicial statement about what ought to be the range of sentences for an offence contains an assumption about the kind of case that will justify a sentence within a specified range.  It is those assumptions, and not the numerical result, that reflect or embody the relevant principles.  Consequently, a submission about the range of sentences without an articulation of the unifying principles which support those sentences is of no use.  Rather, in order to make good a submission that a sentence is manifestly inadequate because it is outside the range, it is necessary to identify the particular factors represented by cases within the range as well as by the instant case and then to articulate how particular principles make those factors material and render the instant sentence erroneous.  To draw attention only to the numerical result of a sentence and then to compare that result to other numerical results achieves nothing.  Consistency of sentencing, which is the aim of the jurisdiction to entertain an appeal against sentence by the Attorney-General, will be achieved by ensuring that there is a comparable outcome in cases that are relevantly comparable.  The corollary is that there must be different outcomes in cases that are relevantly different.  A study of numbers alone is irrelevant to the task of achieving consistency except as a starting point.” (citations omitted).

  1. [31]
    It has also been emphasised by this Court that Attorney-General appeals against sentence are exceptional, and that the Court’s jurisdiction under s 669A should be exercised only in rare and exceptional cases.[15]
  2. [32]
    This Court has often observed that it is not its role to substitute its own views as to the appropriate sentence.  As stated in R v Sprott:

“[42] It is not for the Court of Appeal to substitute its own views about such matters and, by that pathway, to substitute a sentence of its own.  Rather, it is for the Attorney-General to demonstrate actual error in the sentencing judge’s reasoning and, in my respectful opinion, and despite the helpful and illuminating arguments of Mr Rees, no error has been shown.  This is simply a case in which the learned judge accorded the weight he thought appropriate to the various matters put in front of him.  It is a case in which he judged that the mitigating facts were, in the unusual circumstances of this case, very weighty.  For that reason he imposed a lenient sentence.  For the reasons that I have given, this is not a case in which this Court is permitted to substitute its own opinions about these matters.  Further, while the sentences are outside the general range, so too are the facts of this case outside the usual run of cases.  For that reason this very sentence raises no implications of error.” (citations omitted).

  1. [33]
    It is not sufficient for the Attorney-General to rely on a submission that the sentence is manifestly inadequate without demonstrating error.  As already observed in R v Sprott, it was emphasised that:[16]

“[14] It is only when the Court of Appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in exercising the discretion to resentence. … Intervention is only warranted when the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle.”

  1. [34]
    Similarly, the Victorian Court of Appeal has posited a very high bar for establishing manifest inadequacy (albeit in the context of appeals by the Director).  In Director of Public Prosecutions (Vic) v Bright [2006] VSCA 147, Redlich JA stated:

“[10] … An examination of authorities suggests, as was conceded by the Director in argument, that manifest inadequacy alone will not be sufficient to warrant appellate intervention.  Something more is required to ensure that prosecution appeals do not unduly circumscribe the sentencing discretion of judges.  The inadequacy of the sentence must be ‘clear and egregious’, the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience and ‘undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes’.” (citations omitted)

  1. [35]
    The fact that reasonable minds may differ as to the appropriate sentence, does not therefore, warrant appellate intervention.  As Morrison JA noted in R v Lewis; Ex parte Attorney-General (Qld) [2022] QCA 14:

“[75]  It is true to say that another sentencing judge might have done something different, and perhaps imposed a serious violent offence declaration.  Ms Wooldridge submitted that the circumstances of this offending ‘would, in most cases, attract a serious violent offence declaration’.  But if that was the case then the head sentence may well have been lower.  However, the fact that another judge might have delivered a different outcome does not determine this appeal.  Manifest inadequacy can only be demonstrated if the outcome is the product of an error in principle, or that the result is so plainly unjust or unfair that it bespeaks error.  In my view, that is not the case here.  There is no demonstrated error of principle, and the sentence imposed was one derived by a careful balancing of competing requirements in an overall integrated sentencing approach.  That included whether to impose a serious violent offence declaration.  As it was, the nine and a-half years imposed was above the level of the sentence suggested by the Crown Prosecutor, albeit that the submission was based upon the imposition of a serious violent offence declaration.  In other words, his Honour’s approach was in accordance with what this Court said R v Free was one of the available approaches, namely to sentence towards the top of the bounds of appropriate discretion and not reduce the parole eligibility date, rather than sentence towards the bottom and impose a serious violent offence declaration.”

  1. [36]
    The requirement for the Attorney-General to establish error arises from the well-established principle that this Court cannot “substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion”.[17]
  2. [37]
    There must be a specific error or one which can be inferred from the result being unreasonable.  In this respect, and by reference to House v the King, the High Court observed in R v Guode:[18]

“One of the basic principles to be applied in an appeal from the exercise of a sentencing discretion is that ‘[i]t must appear that some error has been made in exercising the discretion’.  Either specific error must be identified in the reasons given or error inferred from the result being, on the facts, ‘unreasonable or plainly unjust’.  The reasons a sentencing court gives must speak for themselves.  Those reasons for sentence must be read, and read fairly, for what they say.  Either the reasons, when read fairly, reveal that a wrong principle has been applied, or they do not.” (citations omitted).

  1. [38]
    In R v Goulding; R v Goulding, Peters, Potts & Knox; Ex parte Attorney-General (Qld),[19] Gotterson JA referenced some of the relevant High Court authorities in this respect as follows:

“[43] In The Queen v Pham French CJ, Keane and Nettle JJ recently described the conclusion that an appellate court must reach in order to intervene for manifest excessiveness or inadequacy in a sentence.  Citing Wong v The Queen and Barbaro v The Queen, their Honours said:

“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 had been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”

[44] In Hili v The Queen, the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) reminded that the misapplication of principle in this context is one to be inferred from orders by a sentencing judge that are “unreasonable or plainly unjust”.  That description is the hallmark of discretionary error of the last kind mentioned in House v The King.” (citations omitted)

  1. [39]
    In the present appeal, the sentencing judge was required to exercise the sentencing discretion, not only in imposing the actual periods of detention, but also in determining whether the respondents were required to serve less than 70 per cent of the detention period and whether convictions ought to be recorded.  Each of these aspects of his Honour’s exercise of discretion are relied on by the Attorney-General in submitting that the sentences imposed were manifestly inadequate.  As a misapplication of principle must be demonstrated, it is apparent in the present appeal that the Attorney-General asserts that his Honour’s exercise of the sentencing discretion was plainly unreasonable or plainly unjust.
  2. [40]
    The drawing of an inference of unreasonableness was considered by the High Court in Minister for Immigration and Citizenship v Li,[20] where the Court observed:

“As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion ‘if upon the facts [the result] is unreasonable or plainly unjust’.  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.” (citations omitted).

  1. [41]
    The High Court has affirmed these principles in subsequent decisions.[21]

Ground 2: Failure to have regard to the circumstances of the commission of the offending for Counts 4 – 7 in determining whether each of those offences was “particularly heinous”

  1. [42]
    As already observed, his Honour found that Count 4, in relation to BZZ, was particularly heinous and that Count 5 in respect to both respondents was particularly heinous.  This ground of appeal is therefore limited to challenging his Honour’s failure to determine that Count 4, (in relation to AZY), and Counts 6 and 7 (in relation to both respondents) were particularly heinous offences.
  2. [43]
    The asserted error is that in accordance with s 176(3)(b) of the Youth Justice Act, the sentencing judge should not have excluded from consideration the circumstances of the commission of each of the other offences of which the respondents had been convicted:[22]

“To properly understand the gravity of the offending, and the moral culpability of the respondents, it was necessary that regard be had to the conduct that [preceded], and followed, each offence as they had a material bearing on both considerations.”

  1. [44]
    There are three primary reasons why this submission must be rejected and the reasoning of Davis J accepted.  The first was identified by his Honour and is based on the proper construction of s 176(3) of the Youth Justice Act.  This subsection provides:

“(3) For a relevant offence that is a life offence, the court may order that the child be detained for–

  1. a period not more than 10 years; or
  1. a period up to and including the maximum of life, if–
  1. the offence involves a commission of violence against a person; and
  1. the court considers the offence to be a particularly heinous offence having regard to all the circumstances.”
  1. [45]
    The effect of this section is to increase the maximum penalty for an offence from detention for a period of not more than 10 years to detention for life.  As correctly identified by his Honour, what is in consideration under s  176(3)(b)(i) is “the offence”.  That is, the offence which is the act or omission which renders an offender liable to criminal sanction.  It is a consideration of whether a particular offence is particularly heinous having regard to all the circumstances.  Consistent with this construction his Honour correctly gave separate consideration to each of Counts 4 to 7 for the purposes of applying s  176(3)(b)(ii).
  2. [46]
    Secondly, if one were to have regard to the acts constituting the offending for the other offences in determining whether one offence was particularly heinous, this would have the effect of the acts or omissions constituting the other offences informing and affecting the determination of the maximum penalty for another offence.  The determination of what maximum penalty applies to the commission of any particular offence has a direct effect on the exercise of the sentencing discretion.  As observed by Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen:[23]

“… careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly; because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.”

  1. [47]
    If the acts or omissions constituting other offending are able to be taken into consideration in determining the maximum penalty for another offence, this may offend the principle identified in R v De Simoni.[24]  In De Simoni, Gibbs CJ stated:

“However, the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted…The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.”

  1. [48]
    In Nguyen v The Queen,[25] Bell and Keane JJ stated that:

“… the De Simoni principle is an aspect of the fundamental principle that no one should be punished for an offence of which the person has not been convicted.” (citations omitted).

  1. [49]
    In applying this principle to the present circumstances, while it cannot be said that taking the acts or omissions of the other offences into account for the purposes of s 176(3)(b)(ii) results in the respondents being punished for an offence for which they were not convicted, it does have the result of the maximum sentence being increased for a particular offence by reference to other offending.
  2. [50]
    Thirdly, as correctly submitted by BZZ, if the Attorney-General’s submission was to be accepted, it would be permissible for a court to take into account a host of individual offences which were not, in and of themselves, of a particularly heinous character, and by so doing, deem one offence particularly heinous or the group of offences particularly heinous offending.[26]  The Attorney-General’s approach would have the effect of the maximum penalty for one offence increasing by virtue of the commission of other offences.  Such a result is inconsistent with the plain language of s 176(3).
  3. [51]
    More generally, his Honour’s approach does not reveal error.  Section 176(3)(b) requires consideration of “all of the circumstances” of an offence when a sentencing judge considers whether it was a particularly heinous offence.  As correctly submitted by BZZ, this Court in R v William (a pseudonym),[27] identified that “all of the circumstances” includes the nature and seriousness of the offence itself, and matters subjective to a defendant.  Further, the fact that a particular offence occurred within a group of other offences, will ordinarily form part of the circumstances relevant to that offence.  This was specifically identified by his Honour in the sentencing remarks, where his Honour observed:[28]

“Those considerations include circumstances which explain the gravity of the offending, including that a particular offence is not an isolated one, but without taking into account the circumstances of the commission of the other offences which individually attract criminal sanction.”

  1. [52]
    In his sentencing remarks, his Honour identified five common considerations, namely that:
    1. there was a group of four offenders;
    2. the respondents entered a dwelling at night time;
    3. it was foreseen that the house may be occupied at the time of entry and that resistance may be offered by the occupants;
    4. weapons were taken into the house to overcome any resistance if necessary; and
    5. violence to innocent persons lawfully occupying the house was therefore contemplated.
  2. [53]
    The Attorney-General submits that these considerations were crafted to comply with R v D,[29] which requires the Court to look to the circumstances of the particular offending, and not to any surrounding conduct generally.  In so doing, his Honour is said to have “unduly constrained the matters that were relevant to context that he took into account in deciding whether each individual offence was particularly heinous”.[30]
  3. [54]
    The Attorney-General maintains that the sentencing judge should have had regard to all of the circumstances of each of the offences in deciding whether any of those offences were particularly heinous.  Specifically, his Honour should have considered “the conduct as described in the schedule of facts”.[31]
  4. [55]
    In support of this approach, the Attorney-General relies on R v YTZ; Ex parte Attorney-General (Qld); R v YTZ,[32]  as providing an “example where the approach of considering features of other offending in the exercise of the discretion was taken”.[33]
  5. [56]
    The respondent in YTZ was close to 17 years of age at the time of the relevant offending which included:
    1. burglary and stealing (Count 1);
    2. unlawful use of a motor vehicle (Count 2);
    3. dangerous operation of a motor vehicle with circumstances of aggravation (Count 3);
    4. two counts of manslaughter (Counts 4-5);
    5. burglary and stealing (Count 6);
    6. unlawful entry of a motor vehicle (Count 7); and
    7. wilful damage (Count 8).
  6. [57]
    He was sentenced to 10 years detention in relation to Counts 4 to 5 for manslaughter, to be released after serving 60 per cent, with convictions recorded.  The sentencing judge determined that each manslaughter offence was particularly heinous.  In reaching that conclusion, his Honour had regard to the objective seriousness of those offences and the subjective factors personal to the respondent which included that the offending did not involve any specific element of intent, the respondent’s prejudicial upbringing, the respondent’s intoxication through alcohol and cannabis and his youth.
  7. [58]
    Here, the Attorney-General contends that the sentencing judge failed to have regard to the following additional considerations:[34]
    1. for Counts 4 to 7, the respondents held an intent to cause grievous bodily harm; and
    2. the respondents’ use of weapons to inflict injuries that amounted to grievous bodily harm and wounding.
  8. [59]
    These features, it is said, go to intent and are relevant to an assessment of the respondents’ moral culpability for that intent.
  9. [60]
    The submission that the sentencing judge unduly constrained the relevant circumstances cannot be accepted.  His Honour expressly referred to other factors outside the five considerations outlined above including the acts or omissions constituting each of the relevant offences.
  10. [61]
    For example, in respect of BZZ’s offending in relation to Count 4, his Honour stated:[35]

“In addition to the features that are common to all five offences, there are circumstances which lead me to the conclusion that count 4 as committed by you… is particularly heinous.  You struck Mrs Kefu a forceful blow with the sickle, which could only be described as a quite wicked instrument.

That was a completely unnecessary act.  Even accepting, as I do, that you may have been confused, you obviously decided to hurt her.  The act was premeditated in that, as I have previously explained, you had determined before you entered the house to meet any resistance with force.  That involved attacking the occupants of the house with bladed weapons, including the sickle.

And hurt her you did.  Mrs Kefu suffered a 10-centimetre cut to her left forearm, the blow cut muscle tendons and a major vein, penetrating the outer layers of bone.  Only two episodes of surgery have prevented the complete loss of function of her hand and wrist.  As it is, even after surgery she is partially disabled.  I have made the finding that the offence is particularly heinous, notwithstanding your personal and other mitigating circumstances which I later identify and which I have taken into account.”

  1. [62]
    Additional factors were also identified in respect of Count 5.[36]
  2. [63]
    His Honour expressly adopted in his sentencing remarks the approach the Attorney-General urges in this appeal: 

“Circumstances legitimately taken into account on sentence for a particular offence may be ones which show the commission of separate identifiable offences. However, there are limitations. These principles were considered in R v D but, as observed by the Court of Appeal in that case, they are often difficult to apply

There is nothing in section 150 of the Youth Justice Act which prescribes the principles for sentencing a child, or the youth justice principles, or section 9 of the Penalties and Sentences Act, which is incorporated into the sentencing process by section 150 of the Youth Justice Act, to suggest that particular heinousness is assessed by reference to all the conduct globally. The appropriate approach is to separately determine whether each of the five offences are particularly heinous by reference to factors, namely all the circumstances, which are relevant as determined by the usual principles on the question of sentence.”

  1. [64]
    While surrounding context is important, and the offending should not be considered in isolation, there is no requirement, as his Honour observed, to assess heinousness “by reference to all the conduct globally”.  It follows that no error has been established.

Ground 3: Failure to have regard to the appropriate maximum penalty of life in detention for offences found to be particularly heinous

  1. [65]
    The Attorney-General submits that the sentences imposed for Counts 4 and 5 “are incongruous with the proposition that the [sentencing] judge determined the appropriate sentence with reference to the yardstick of the applicable maximum penalty, which was detention for life”.[37]
  2. [66]
    The sentencing discretion is said to have miscarried in relation to AZY by his Honour imposing a sentence of seven years for both Counts 4 and 5 in circumstances where, having found that only Count 5 involved an offence which was particularly heinous, the maximum penalty was 10 years for Count 4 but life for Count 5.  The Attorney-General submits that the sentences should necessarily be different when proper regard is given to the appropriate maximum penalty.
  3. [67]
    The Attorney-General also points to the “marginal difference”[38] between the sentences imposed on AZY and BZZ for Count 4, despite his Honour only finding that BZZ’s offending for Count 4 was particularly heinous.  In other words, a sentence of 7 years for AZY, against a maximum of 10 years, and a sentence of 8 years for BZZ, against a maximum of life, when viewed comparatively, indicate that his Honour did not appropriately have regard to the relevant maximum penalty for each offence.
  4. [68]
    When one has regard to the sentencing remarks this asserted error is not established.  First, before making any determination as to whether the offences were particularly heinous, his Honour expressly noted the relevant maximum penalty for each of Counts 4 to 7.[39]
  5. [69]
    Secondly, it is apparent from the sentencing remarks that his Honour applied R v Nagy[40] in imposing global head sentences.  For BZZ, his Honour fixed the head sentence to Count 4 so as to reflect his total criminality and fixed the head sentence for AZY upon Count 5 in circumstances where all other sentences were made concurrent.  As the other terms of imprisonment, including that imposed on AZY for Count 4 were made concurrent, a sentence of seven years for Count 4 did not affect the global head sentence of seven years for Count 5.
  6. [70]
    Thirdly, the same sentence of seven years imposed on AZY for both Counts 4 and 5 properly reflects the differences in the offending highlighted by his Honour.  Although AZY was not the principal offender for Count 4, he was a party to an attack on Mrs Kefu by BZZ with a sickle.  His Honour described this act as “a completely unnecessary act”.  This is to be contrasted with AZY’s role in the attack on Mr Kefu.  While AZY was the principal offender, having stabbed Mr Kefu with the knife, this attack was in circumstances where Mr Kefu utilised a stool.[41]  The same sentence of seven years for AZY for Counts 4 and 5, more likely reflects the nature of the offending, rather than any asserted error in failing to have regard to the maximum penalties.
  7. [71]
    It follows that no error has been established.

Ground 1: The sentences were manifestly inadequate

  1. [72]
    Counsel for the Attorney-General contended in oral submissions that “the Attorney-General simply needs to satisfy the court that the sentences imposed were manifestly inadequate.  The Attorney-General does not need to find a reason for the error that led to the plainly unjust or unreasonable sentence”.[42]
  2. [73]
    While it may be accepted that an appeal on the grounds of manifest inadequacy is “an argument from a conclusion”,[43] it remains incumbent on the Attorney-General to establish some misapplication of principle.  While this may be established as a matter of inference it still needs to be established.
  3. [74]
    The Attorney-General must persuade this Court that the sentences imposed are disproportionate to the offending.  As Sofronoff P stated in R v Sprott; Ex parte Attorney-General (Qld):[44]

“[14] Commonly, such lack of proportion is sought to be demonstrated by reference to comparable cases which are said to support a sentencing range.  The submission then continues that the sentence under appeal is outside the range and, consequently, is “manifestly” inadequate, and implies error.  It is only when the Court of Appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in exercising the discretion to resentence…”

  1. [75]
    Counsel for the Attorney-General orally submitted that the cases both below and before this Court “are of no utility” and “do not provide yardsticks”.[45]  In this respect, no comparable cases have been put before this Court which facilitate the identification of a sentencing range.
  2. [76]
    Counsel for AZY has identified two authorities which, they submit, “tell markedly against the claim of manifest inadequacy”.[46]  These cases involve adult offenders.  In this respect, they provide only limited guidance given the differences between the applicable sentencing regimes for adult and juvenile offenders.
  3. [77]
    The first is R v Brown [2024] QCA 20.  In this case, the appellant was sentenced to nine years imprisonment for malicious act with intent committed against the male complainant, seven years imprisonment for malicious act with intent committed against the female complainant and imprisonment for two years and six months for each of the other two offences, to be served concurrently.  The appellant sought to establish that the sentences were manifestly excessive due to the serious violent offence declarations.
  4. [78]
    The second is R v Smith [2019] QCA 179.  The applicant there was sentenced to nine years imprisonment for one count of a malicious act with intent, a concurrent sentence of three years for one count of doing grievous bodily harm and lesser concurrent terms of imprisonment for three summary offences.  The offending involved three victims, the first of whom was subject to a premeditated attack.  While the applicant had a lengthy criminal history, including offences of violence, no serious violent offence declaration was imposed.  The applicant sought leave to appeal against sentence on the basis that it was manifestly excessive.
  5. [79]
    At first instance the sentencing judge had adopted a range of seven to ten years.  The applicant contended that such a range was not supported by the authorities of R v Gatti,[47] R v Piper,[48]  R v Oakes[49] and R v Beer.[50]  The Court of Appeal recognised that there were significant points of distinction between those cases and the one under consideration.  These included the criminal history of the offender, that the attack in this case was in company, the severe and permanent consequences of the stabbing on the first victim; and the fact that there was more than one victim.
  6. [80]
    Notwithstanding, Applegarth J made the following observation:[51]

“[50] His Honour’s statement that the appropriate range was one of between seven and ten years necessarily recognised that the stated range had to reflect the applicant’s violent criminal conduct on two different occasions which resulted in three victims. When regard is had to the range of sentences in cases that were not closely comparable, and which did not involve multiple victims of violence perpetrated on different dates, the sentencing judge’s statement of the appropriate range was appropriate for the different circumstances of this case. It was not a statement of the range appropriate to a case in which there was a single stab wound or even multiple stabs to a single victim.”

  1. [81]
    The application was dismissed.
  2. [82]
    Insofar as these cases offer any assistance to juvenile sentencing, the fact that both decisions involved sentences under 10 years imprisonment for broadly comparable offending may indicate that a global sentence 7 and 8 years for AZY and BZZ respectively is not “out of the range of sentences that could have been imposed”[52] such that it may be inferred that there has been a misapplication of principle.

Reduction in period of detention

  1. [83]
    The Attorney-General further submits that the period of detention ordered, in combination with the reduction of the proportion that needed to be served before release, resulted in an overall sentence that was manifestly inadequate.  The sentencing judge, in considering the respondents’ lack of criminal history, rehabilitative efforts and personal circumstances, made an order pursuant to s 227(2) reducing the period of detention from 70 per cent to 50 per cent.
  2. [84]
    As McMurdo P noted in R v KAL,[53] “[t]he discretion given to sentencing judges under s 227(2) is wide”, the exercise of which “will inevitably turn on the unique combination of circumstances pertaining in each individual case”.
  3. [85]
    In oral submissions, counsel for the Attorney-General challenged his Honour’s observation that it is unusual for offenders, be they adult or juvenile, who commit offences of this gravity to have no prior criminal history, on the basis that it was not supported by the material before the court and that it was an irrelevant consideration.
  4. [86]
    Even if this contention was to be accepted, it does not establish any error in the exercise of the discretion.  It is an observation that was clearly open to a judge of his Honour’s experience.
  5. [87]
    The special circumstances identified by his Honour are not dissimilar to factors which have been taken into account in other cases.  In R v Patrick (a pseudonym); R v Patrick (a pseudonym); Ex parte Attorney-General (Qld),[54] Sofronoff P accepted the sentencing judge’s finding that the respondent’s early pleas of guilty, acceptance of responsibility, lack of criminal history, expressions of remorse and efforts at rehabilitation constituted special circumstances for the purposes of s 227(2).
  6. [88]
    No error has been demonstrated.

No conviction recorded

  1. [89]
    The Attorney-General, in seeking to establish that the sentences for Counts 4 to 7 are manifestly inadequate, also relies on his Honour’s failure to exercise the discretion under s 183 and s 184 of the Youth Justice Act to record convictions.
  2. [90]
    Sections 183 and 184 provide as follows:

“183 Recording of conviction

  1. Other than under this section, a conviction is not to be recorded against a child who is found guilty of an offence.
  1. If a court makes an order under section 175(1)(a) or (b), a conviction must not be recorded.
  1. If a court makes an order under section 175(1)(c) to (g), 175A, 176 or 176A, the court may order that a conviction be recorded or decide that a conviction not be recorded

184 Considerations whether or not to record conviction

  1. In considering whether or not to record a conviction, a court must have regard to all the circumstances of the case, including—
  1. the nature of the offence; and
  1. the child’s age and any previous convictions; and
  1. the impact the recording of a conviction will have on the child’s chances of—
  1. rehabilitation generally; or
  1. finding or retaining employment.
  1. Except as otherwise provided by this or another Act, a finding of guilt without the recording of a conviction is not taken to be a conviction for any purpose.
  1. A finding of guilt against a child for an offence without the recording of a conviction stops a subsequent proceeding against the child for the same offence as if a conviction had been recorded.”
  1. [91]
    His Honour’s reasons for not recording convictions are set out at [26] above and incorporated the considerations set out at [23] above.
  2. [92]
    The Attorney-General submits that convictions ought to have been recorded to reflect the “irreducible minimum” level of denunciation that the gravity of the offending required.  As his Honour’s decision not to record convictions involved an exercise of discretion, the Attorney-General is required to establish that his Honour’s decision was unreasonable in that it lacked an evident and intelligible justification.[55]
  3. [93]
    The Attorney-General seeks to disturb the “well established [principle] that the prima facie position under provisions such as ss 183 and 184 of the [Youth Justice Act] is that a conviction is not to be recorded against a child”.[56]  The primary contention is that such a proposition is not supported by the express words of s 183(1).
  4. [94]
    Reliance is placed on the observations of Bond JA in R v DCD; Ex parte Attorney-General (Qld)[57] and earlier observations of Henry J in R v MDD.[58]  R v DCD was an Attorney-General’s appeal.
  5. [95]
    In R v DCD the relevant child had pleaded guilty to one count of sexual assault, four counts of rape and one count of robbery with personal violence committed in one episode of offending.  He had been previously sentenced for multiple offences including violent offences.  Despite the inherent seriousness of the offending, the Attorney-General in that appeal, accepted that the starting position under the Youth Justice Act was that a conviction should not be recorded and that this presumption could be overcome only if, in assessing all the relevant circumstances, a sentencing judge was “positively satisfied” that convictions should be recorded.  This test is a reference to the decision of this Court in R v DBU.[59]
  6. [96]
    In R v DCD the Attorney-General submitted that in determining how the discretion to record a conviction should be exercised, a sentencing judge must have regard to the purposes served in recording a conviction.  One of those purposes is to warn the community about the physical, moral or economic risk that the child offender poses.
  7. [97]
    In a joint judgment, Mullins P and Burns J, in dismissing the Attorney-General’s appeal, observed that the child “was entitled to the benefit of not having convictions recorded to assist with his rehabilitation, unless the sentencing judge was positively satisfied that they should be recorded”.[60]
  8. [98]
    This observation of Mullins P and Burns J is consistent with the statement of Sofronoff P in R v SCU:[61]

“… Like the principles that constrain the exercise of the sentencing discretion, the discretion to record a conviction emphasises the special considerations that inherently apply to the situation of a child but that are usually immaterial to the position of adults. Predominantly, apart from the nature of the offence and the other circumstances of the case, which are objective past matters that must be given due weight, the other factors look to the child’s possible future. Sections 184(1)(b) and 184(c) direct a court’s attention to the question of the child’s future chances to be a beneficial member of the community and requires a court to balance the possible deleterious effects of a recorded conviction while paying due regard to the circumstances of the offence. It has been emphasised repeatedly by authorities of this Court that the starting premise is that no conviction should be recorded. That being the position, a sentencing judge must be satisfied positively after considering the matters that the statute mandates should be considered that the proper exercise of discretion is in favour of recording a conviction. This is not a simple task as the cases considered by this Court have shown.” (citations omitted)

  1. [99]
    Mullins P and Burns J considered that the question of whether to record a conviction under s 184(1) of the Youth Justice Act is part of the sentencing process with the resulting sentence arrived at by instinctive synthesis.[62]
  2. [100]
    While Bond JA agreed in the result, his Honour’s obiter observations were limited to the concession made by the Attorney-General that the starting position under s 184 of the Youth Justice Act is that convictions should not be recorded and that this presumption can be overcome only if, in assessing all of the relevant circumstances, a sentencing judge is “positively satisfied” that a conviction should be recorded.  Having regard to the text of s 183, his Honour considered that the only starting point from which the section proceeds is that a conviction is not to be recorded against a child “other than under this section”.  The effect of s 183(2) was therefore to preclude the recording of a conviction when reprimanding or imposing a good behaviour order, whereas s 183(3) provides that a court may order that a conviction be recorded or decide that a conviction not be recorded when imposing certain other sentences including fines, probation, restorative justice orders, community service orders, intensive supervision orders and detention.
  3. [101]
    Bond JA specifically identified that if the matter was free from authority, his Honour would not construe it in the way that the Attorney-General had been content to accept.  As his Honour stated:[63]

“If the matter had been free from authority, I might well have been persuaded that the sentencing discretion proceeded erroneously by reference to a non-existent presumption against recording a conviction and, accordingly, it was appropriate to re-exercise the sentencing discretion.”

  1. [102]
    The starting point conceded by the Attorney-General in R v DCD does not arise from the wording of s 183 of the Youth Justice Act but rather finds support in the context of the whole Act, which relevantly includes its purposes and the Youth Justice Principles.  It is in this sense a contextual statutory assumption consistent with previous decisions of this Court including the observations of Mullins P and Burns J in R v DCD and Sofronoff P in R v SCU.
  2. [103]
    In the present case the sentencing judge, in exercising the discretion not to record convictions, did not specifically refer to the accepted starting point.  Both respondents at first instance in both oral and written submissions had emphasised the established starting point under the Youth Justice Act.[64]  As correctly submitted by AZY, while his Honour did not specifically reference such an approach, it may be inferred that his Honour accepted the position as uncontroversial.[65]
  3. [104]
    Two further matters should be noted.  First, the Crown at first instance did not make any submissions which sought to contradict those made by the respondents as to the established starting point.  Secondly, the grounds of appeal do not assert any specific error by the sentencing judge in this respect.  Even if such an error had been raised as a ground of appeal it has not been established.
  4. [105]
    The proposition that a child is entitled to the benefit of not having a conviction recorded to assist with their rehabilitation unless the sentencing judge is positively satisfied that a conviction should be recorded, is supported by an established line of authority of this Court which has not been overruled.  Nor, as explained above, can the obiter observations of Bond JA in R v DCD, constitute a proper basis for asserting that this line of authorities, including the joint judgment of Mullins P and Burns J in R v DCD and the judgment of Sofronoff P in R v SCU, is plainly wrong.[66]
  5. [106]
    To the contrary, the established line of authorities of this Court is consistent with the language of s 183 and s 184 construed in the context of the Youth Justice Act as a whole including its purposes and the Youth Justice Principles.
  6. [107]
    Irrespective of the correct starting point, it is apparent from the sentencing remarks that the sentencing judge identified the basis for his Honour’s exercise of discretion not to record convictions.  This included the reasons given in relation to ordering release after the respondents had served 50 per cent of the detention period.  His Honour’s decision is not one which lacked an evident and intelligible justification.  Quite apart from the pleas of guilty and the respondents not having any criminal convictions, they had been held in detention for approximately three years.  This afforded his Honour considerable visibility into their prospects of rehabilitation and the steps which each respondent had already taken in that regard.  This visibility was supported by pre-sentence reports in relation to both respondents.
  7. [108]
    The Attorney-General has not established that the sentences imposed were manifestly inadequate.

Disposition

  1. [109]
    The following orders should be made:
  1. In CA No. 158 of 2024 the appeal is dismissed.
  2. In CA No. 159 of 2024 the appeal is dismissed.

Footnotes

[1]  Reprint dated 3 May 2024.  The Youth Justice Act has been extensively amended by the Making Queensland Safer Act 2024 (Qld) which was assented to on 13 December 2024.

[2]  [2022] QCA 242 per Mullins P, Dalton and Flanagan JJA at [18].

[3]  See also Green v The Queen (2011) 244 CLR 462 at [43].

[4] R v Hopper; Ex parte Attorney-General (Qld) [2015] 2 Qd R 56 at [37]-[42].

[5] R v Kane; Ex parte Attorney-General (Qld) [2022] QCA 242, [17].

[6]  See also Everett v The Queen (1994) 181 CLR 295, 300 and Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [62].

[7]  RB, page 226–232.

[8]  RB, page 165, line 41 to page 169, line 22.

[9]  RB, page 170, line 40 to page 174, line 14.

[10]  RB, page 180, line 39 to RB, page 181, line 7.

[11]  RB, page 182, lines 38–40.

[12]  RB, page 184, lines 10–27.

[13]  [2019] QCA 133 (Sofronoff P, Morrison JA and Lyons SJA).

[14]  [2019] QCA 116 (Sofronoff P, Gotterson JA and Henry J).

[15] R v Ireland; Ex parte Attorney-General (Qld) [2019] QCA 58 at [16] (Gotterson JA and Boddice and Brown JJ); R v Sprott; Ex parte Attorney-General (Qld) [2019] QCA 116 at [11] (Sofronoff P, Gotterson JA and Henry J.

[16] R v Sprott; Ex parte Attorney-General (Qld) [2019] QCA 116 at [14]; see also Wong v The Queen (2001) 207 CLR 584 at [58] (Gaudron, Gummow and Hayne JJ).

[17] Lowndes v The Queen (1999) 195 CLR 665 at [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).

[18]  (2020) 267 CLR 141 at [42].

[19]  [2016] QCA 65.

[20]  (2013) 249 CLR 332 at [76].

[21] ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 459.

[22]  Outline of Submissions on behalf of the appellant, paragraph 42.

[23]  (2005) 228 CLR 357 at [31].

[24]  (1981) 147 CLR 383, 389.

[25]  (2016) 256 CLR 656 at [29].

[26]  Outline of Submissions on behalf of BZZ, paragraph 11.

[27]  [2020] QCA 174 at [25]–[26].

[28]  RB, page 173, lines 13–16.

[29]  [1996] 1 Qd R 363.

[30]  Transcript of Proceedings, 11 April 2025, page 1–21, lines 32–34.

[31]  Transcript of Proceedings, 11 April 2025, page 1–21, lines 24-27.

[32]  [2023] QCA 87.

[33]  Outline of Submissions of the appellant, paragraph 44.

[34]  Transcript of Proceedings, 11 April 2025, page 1–18, lines 46-49.

[35]  Transcript of Proceedings, 11 April 2025, page 1–11, lines 31-49.

[36]  See [18] above.

[37]  Outline of Submissions of the appellant, paragraph 50.

[38]  Outline of Submissions of the appellant, paragraph 52.

[39]  See [20] above.

[40]  [2004] 1 Qd R 63; [2003] QCA 175.

[41]  See [18] above.

[42]  Transcript of Proceedings, 11 April 2025, page 1–29, lines 7-10.

[43] R v Sprott; Ex parte Attorney-General (Qld) [2019] QCA 116 at [13].

[44]  [2019] QCA 116.

[45]  Transcript of Proceedings, 11 April 2025, page 1–28, lines 33-35.

[46]  Outline of Submissions of AZY, paragraph 12, citing R v YTZ; Ex parte Attorney-General (Qld); R v YTZ [2023] QCA 87.

[47]  [2018] QCA 98.

[48]  [2015] QCA 129.

[49]  [2012] QCA 336.

[50]  [2000] QCA 193.

[51] R v Smith [2019] QCA 179.

[52] Hili v The Queen (2010) CLR 520, 539 at [60].

[53]  [2013] QCA 317 at [32].

[54]  [2020] QCA 51.

[55]  See [40] above.

[56] R v TX [2011] QCA 68 at [33] citing R v B [1995] QCA 231; R v SBP [2009] QCA 408 at [21]; R v WAJ [2010] QCA 87 at [14].

[57]  [2024] QCA 91.

[58]  [2021] QCA 235.

[59]  (2021) 7 QR 453 at [43].

[60] R v DCD; Ex parte Attorney-General (Qld) [2024] QCA 91 at [48].

[61]  [2017] QCA 198 at [94].

[62] R v DCD; Ex parte Attorney-General (Qld) [2024] QCA 91 at [52].

[63] R v DCD; Ex parte Attorney-General (Qld) [2024] QCA 91 at [93].

[64]  RB, page 154, line 17 and RB, page 303.

[65]  Outline of Submissions of AZY, paragraph 15.

[66]  It is noted that the relevant sentencing principles stated in s 150 of the Youth Justice Act applied by the sentencing judge, have been extensively amended subsequent to the sentencing proceeding by the Making Queensland Safer Act 2024 (Qld).

Close

Editorial Notes

  • Published Case Name:

    R v BZZ & AZY; Ex parte Attorney-General (Qld)

  • Shortened Case Name:

    R v BZZ and AZY; Ex parte Attorney-General

  • MNC:

    [2025] QCA 89

  • Court:

    QCA

  • Judge(s):

    Flanagan JA, Burns J, Cooper J

  • Date:

    03 Jun 2025

  • Selected for Reporting:

    Editor's Note

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2024] QSC 13827 Jun 2024BZZ sentenced to head term of 8 years' detention on count of malicious act with intent (with shorter concurrent terms imposed on other counts), to be released after serving 50% with no conviction recorded; AZY sentenced to concurrent terms of 7 years' detention on two counts of malicious act with intent (with shorter concurrent terms imposed on other counts), to be released after serving 50% with no convictions recorded: Davis J.
Notice of Appeal FiledFile Number: CA 158/2424 Jul 2024Attorney-General's appeal against sentence filed.
Notice of Appeal FiledFile Number: CA 159/2424 Jul 2024Attorney-General's appeal against sentence filed.
Notice of Appeal FiledFile Number: CA 162/2425 Jul 2024Application for leave to appeal against sentence filed.
Appeal Discontinued (QCA)File Number: CA 162/2402 Apr 2025Notice of abandonment filed.
Appeal Determined (QCA)[2025] QCA 8903 Jun 2025Attorney-General's appeals against sentence dismissed: Flanagan JA, Burns and Cooper JJ.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Director of Public Prosecutions v Bright (2006) 163 A Crim R 538
1 citation
Jump To
Cite 1 - (2006) 163 A Crim R 538
Director of Public Prosecutions v Bright [2006] VSCA 147
2 citations
Jump To
Cite 1 - [2006] VSCA 147
Cite 2 - [2006] VSCA 147
Everett v The Queen (1994) 181 CLR 295
1 citation
Jump To
Cite 1 - (1994) 181 CLR 295
Green v The Queen (2011) 244 CLR 462
1 citation
Jump To
Cite 1 - (2011) 244 CLR 462
Hili v The Queen [2010] CLR 520
1 citation
Jump To
Cite 1 - [2010] CLR 520
Lacey v Attorney-General (Qld) (2011) 242 CLR 573
1 citation
Jump To
Cite 1 - (2011) 242 CLR 573
Lowndes v The Queen (1999) 195 CLR 665
2 citations
Jump To
Cite 1 - (1999) 195 CLR 665
Cite 2 - (1999) 195 CLR 665
Lowndes v The Queen [1999] HCA 29
1 citation
Jump To
Cite 1 - [1999] HCA 29
Markarian v R [2005] HCA 25
1 citation
Jump To
Cite 1 - [2005] HCA 25
Markarian v The Queen (2005) 228 CLR 357
2 citations
Jump To
Cite 1 - (2005) 228 CLR 357
Cite 2 - (2005) 228 CLR 357
Minister for Immigration and Citizenship v Li [2013] HCA 18
1 citation
Jump To
Cite 1 - [2013] HCA 18
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
2 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332
Nguyen v The Queen [2016] HCA 17
1 citation
Jump To
Cite 1 - [2016] HCA 17
Nguyen v The Queen (2016) 256 CLR 656
2 citations
Jump To
Cite 1 - (2016) 256 CLR 656
Cite 2 - (2016) 256 CLR 656
R v Brown [2024] QCA 20
2 citations
Jump To
Cite 1 - [2024] QCA 20
Cite 2 - [2024] QCA 20
R v BZZ and AZY [2024] QSC 138
1 citation
Jump To
Cite 1 - [2024] QSC 138
R v D [1996] 1 Qd R 363
1 citation
Jump To
Cite 1 - [1996] 1 Qd R 363
R v DBU(2021) 7 QR 453; [2021] QCA 51
1 citation
Jump To
Cite 1 - (2021) 7 QR 453
R v DCD; Ex parte Attorney-General [2024] QCA 91
5 citations
Jump To
Cite 1 - [2024] QCA 91
Cite 2 - [2024] QCA 91
Cite 3 - [2024] QCA 91
Cite 4 - [2024] QCA 91
Cite 5 - [2024] QCA 91
R v De Simoni (1981) 147 C.L.R., 383
2 citations
Jump To
Cite 1 - (1981) 147 C.L.R., 383
Cite 2 - (1981) 147 C.L.R., 383
R v Gatti [2018] QCA 98
1 citation
Jump To
Cite 1 - [2018] QCA 98
R v Goulding, Peters, Potts & Knox; ex parte Attorney-General [2016] QCA 65
2 citations
Jump To
Cite 1 - [2016] QCA 65
Cite 2 - [2016] QCA 65
R v Hopper; ex parte Attorney-General[2015] 2 Qd R 56; [2014] QCA 108
3 citations
Jump To
Cite 1 - [2014] QCA 108
Cite 2 - [2015] 2 Qd R 56
Cite 3 - [2015] 2 Qd R 56
R v Ireland; ex parte Attorney-General [2019] QCA 58
2 citations
Jump To
Cite 1 - [2019] QCA 58
Cite 2 - [2019] QCA 58
R v KAL [2013] QCA 317
2 citations
Jump To
Cite 1 - [2013] QCA 317
Cite 2 - [2013] QCA 317
R v Kane; Ex parte Attorney-General [2022] QCA 242
3 citations
Jump To
Cite 1 - [2022] QCA 242
Cite 2 - [2022] QCA 242
Cite 3 - [2022] QCA 242
R v Lewis [2022] QCA 14
2 citations
Jump To
Cite 1 - [2022] QCA 14
Cite 2 - [2022] QCA 14
R v MDD [2021] QCA 235
1 citation
Jump To
Cite 1 - [2021] QCA 235
R v Nagy[2004] 1 Qd R 63; [2003] QCA 175
2 citations
Jump To
Cite 1 - [2003] QCA 175
Cite 2 - [2004] 1 Qd R 63
R v Oakes [2012] QCA 336
1 citation
Jump To
Cite 1 - [2012] QCA 336
R v Palmer [2019] QCA 133
2 citations
Jump To
Cite 1 - [2019] QCA 133
Cite 2 - [2019] QCA 133
R v Patrick (a pseudonym)(2020) 3 QR 578; [2020] QCA 51
3 citations
Jump To
Cite 1 - [2020] QCA 51
Cite 2 - [2020] QCA 51
Cite 3 - (2020) 3 QR 578
R v Piper [2015] QCA 129
1 citation
Jump To
Cite 1 - [2015] QCA 129
R v SBP [2009] QCA 408
1 citation
Jump To
Cite 1 - [2009] QCA 408
R v SCU [2017] QCA 198
2 citations
Jump To
Cite 1 - [2017] QCA 198
Cite 2 - [2017] QCA 198
R v Smith [2019] QCA 179
3 citations
Jump To
Cite 1 - [2019] QCA 179
Cite 2 - [2019] QCA 179
Cite 3 - [2019] QCA 179
R v Sprott; ex parte Attorney-General [2019] QCA 116
6 citations
Jump To
Cite 1 - [2019] QCA 116
Cite 2 - [2019] QCA 116
Cite 3 - [2019] QCA 116
Cite 4 - [2019] QCA 116
Cite 5 - [2019] QCA 116
Cite 6 - [2019] QCA 116
R v TX[2011] 2 Qd R 247; [2011] QCA 68
2 citations
Jump To
Cite 1 - [2011] QCA 68
Cite 2 - [2011] QCA 68
R v WAJ [2010] QCA 87
1 citation
Jump To
Cite 1 - [2010] QCA 87
R v William (a pseudonym) [2020] QCA 174
2 citations
Jump To
Cite 1 - [2020] QCA 174
Cite 2 - [2020] QCA 174
R v YTZ; Ex parte Attorney-General [2023] QCA 87
3 citations
Jump To
Cite 1 - [2023] QCA 87
Cite 2 - [2023] QCA 87
Cite 3 - [2023] QCA 87
The Queen v B [1995] QCA 231
1 citation
Jump To
Cite 1 - [1995] QCA 231
The Queen v Beer [2000] QCA 193
1 citation
Jump To
Cite 1 - [2000] QCA 193
The Queen v De Simoni [1981] HCA 31
1 citation
Jump To
Cite 1 - [1981] HCA 31
The Queen v Guode [2020] HCA 8
1 citation
Jump To
Cite 1 - [2020] HCA 8
Wong v The Queen (2001) 207 CLR 584
1 citation
Jump To
Cite 1 - (2001) 207 CLR 584

Cases Citing

Case NameFull CitationFrequency
R v GBT; ex parte Attorney-General [2025] QCA 1572 citations
1

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