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SKM v Director of Public Prosecutions[2022] QCHC 14

SKM v Director of Public Prosecutions[2022] QCHC 14

CHILDRENS COURT OF QUEENSLAND

CITATION:

SKM v Director of Public Prosecutions [2022] QChC 14

PARTIES:

SKM

(Applicant)

v

DIRECTOR OF PUBLIC PROSECUTIONS

(Respondent)

FILE NO/S:

CCJ 134/22

DIVISION:

Childrens Court of Queensland

PROCEEDING:

Bail Application

ORIGINATING COURT:

Cleveland Childrens Court

DELIVERED ON:

28 April 2022 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

22 April 2022

JUDGE:

Dearden DCJ

ORDER:

  1. (1)Application for bail refused

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – BAIL – where application for bail refused in the Cleveland Childrens Court – where the applicant is in a show court position – where the applicant submits that strict bail conditions would satisfy the risk of granting bail – where the respondent submits that there is an unacceptable risk of the applicant failing to appear and committing further offences – whether bail should be granted

LEGISLATION

Bail Act 1980 (Qld)

Criminal Code 1899 (Qld) s 320A

Evidence Act 1977 s 93A

Youth Justice Act 1992 (Qld) ss 47, 48AAA, 48AF, 227, sch 4

CASES

R v E; ex-parte Attorney-General [2002] QCA 417

Re JTL [2021] QSC 211

COUNSEL:

I Munsie for the applicant

S Butler for the respondent

SOLICITORS:

Macdonald Law for the applicant

Office of the Director of Public Prosecutions for the respondent

Introduction

  1. [1]
    This is the matter of SKM and a bail application. The applicant, SKM, seeks bail in respect of the following 21 charges as follows:-[1] 
 

Date

Offence

  1.  

22 December 2021

Threats – no requirement to be dealt with summarily

  1.  

22 December 2021

Threats

  1.  

22 December 2021

Trespass

  1.  

22 December 2021

Possess tainted property

  1.  

22 December 2021

Possess dangerous drugs (MDMA)

  1.  

22 December 2021

Possess dangerous drugs (methamphetamine)

  1.  

26 December 2021

Wilful damage

  1.  

26 December 2021

Common assault

  1.  

26 December 2021

Assault occasioning bodily harm, in company (using lighter to burn complainant’s leg in carpark)

  1.  

12 January 2022

Assault occasioning bodily harm, in company (pushing off the chair and kicking on the floor)

  1.  

12 January 2022

Common assault (spitting on complainant)

  1.  

12 January 2022

Assault occasioning bodily harm, in company (kicking complainant on the floor)

  1.  

12 January 2022

Assault occasioning bodily harm, whilst armed, in company (deodorant burn of complainant)

  1.  

12 January 2022

Assault occasioning bodily harm, whist armed, in company (deodorant burn of complainant)

  1.  

12 January 2022

Assault occasioning bodily harm, whilst armed, in company (knife cuts to complainant)

  1.  

12 January 2022

Assault occasioning bodily harm, in company (strangling complainant)

  1.  

12 January 2022

Assault occasioning bodily harm, whilst armed, in company (wooden spoon used to strike complainant)

  1.  

12 January 2022

Assault occasioning bodily harm, whilst armed (metal pole used to strike complainant)

  1.  

12 January 2022

Assault occasioning bodily harm, whilst armed, in company (lighter used to singe complainant’s head and hair)

  1.  

12 January 2022

Torture

  1.  

12 January 2022

Deprivation of liberty

  1. [2]
    The applicant was refused bail at the Cleveland Childrens Court on 21 January 2022,[2] and it is common ground that the applicant is in a “show cause” position, having committed two prescribed indictable offences while on bail for other prescribed offences.[3]
  1. [3]
    The applicant submits that he has shown cause why detention is not justified, and that strict bail conditions, as proposed in a conditional bail program, would sufficiently ameliorate the risks associated with the grant of bail, to an acceptable level.[4]
  1. [4]
    The respondent submits that even if cause is shown (which is not conceded), there are unacceptable risks of the applicant failing to appear, and of committing further offences.[5]

The Law 

  1. [5]
    The Bail Act 1980 (Qld) applies to a child charged with offences, subject to the provisions of the Youth Justice Act 1992 (Qld) (‘YJA’).[6]
  1. [6]
    The applicant is in a “show cause” position pursuant to YJA section 48AF, having allegedly committed prescribed indictable offences of assault occasioning bodily harm,[7] and torture.[8]
  1. [7]
    As at 12 January 2022, when the applicant allegedly committed the prescribed offences, he was on bail for two indictable offences of threats, allegedly committed on 22 December 2021.
  1. [8]
    YJA section 48AF(2) obliges a court to refuse to release a child from custody, in these circumstances, unless cause is shown.
  1. [9]
    The risk assessment process for releasing children from custody is outlined in YJA section 48AAA and requires a consideration (relevantly) of the risks that the child would:-[9]
  1. (a)
    commit offence that endanger the safety or welfare of the community or others and it is not practicable to mitigate that risk by conditions; 
  2. (b)
    commit further offences; interfere with witnesses or otherwise obstruct the course of justice;  or
  3. (c)
    fail to appear and surrender into custody.
  1. [10]
    The approach to consideration of juvenile bail applications is helpfully outlined by Henry J in re JTL [2021] QSC 211 as follows:-[10] 
  1. “[5]
    Consideration of juvenile requires, as with adult bail, consideration of risk.  However, a much more benevolent approach notoriously needs to be taken for juveniles.  Pursuant to s 48AA in Youth Justice Act 1992 (Qld), the decision-maker may have regard to a host of consideration in s 48AA, including s 48AA(4)(b);  considerations which tend inevitably to weigh in favour of a grant of bail.

Of course, it is a significant consideration that I’m dealing with a young and obviously immature person and I bear in mind at the forefront of my mind that and other aspects favourable to her, to which I have generically referred by reference to the section.  However, the problem is her repeated pattern of behaviour.

…

  1. [7]
    There comes a point in time when the interests of the community and the safety of the community trumps the specific interests of the community in treating juveniles with care and avoiding their incarceration, particularly whilst awaiting sentence.  Section 48AAA Youth Justice Act contemplates that if satisfied, if the child is released, there is an unacceptable risk that the child will commit an offence that endanger the safety of the community and that it is not practicable to adequately mitigate that risk by imposing particular conditions, then the court must decide to keep the child in custody.”
  1. [11]
    The applicant’s antecedents, including a comprehensive history of previous grants of bail and time in custody, is helpfully summarised by the respondent as follows:-[11]
  1. “(7)
    The applicant was born on 8 June 2005.  He is 16 years of age.
  2. (8)
    He committed the offences when he was approximately 16 years and seven months old. 
  3. (9)
    He has nine entries in his juvenile Queensland criminal history for 85 offences dating back to 2019.  A copy of his criminal history is exhibited to the affidavit of Tania-Maree Richardson.
  4. (10)
    His history includes serious offences of violence, property offences, dishonesty offences and drugs.  He has not had any convictions recorded.  He has been subject to numerous probation orders since 2019, and repeatedly been in and out of custody for offences since 2020.  A detailed history of his previous grants of bail, and time in custody is summarised below:
  1. (a)
    The applicant was remanded in custody in May 2020 for numerous offences including attempted armed robbery with violence, armed robbery with violence, and serious assault.  On 2 July 2020 he was sentenced in the Brisbane Childrens Court of Queensland to two years probation.
  2. (b)
    The next day, on 3 July 2020, he was sentenced in the Cleveland Children’s Court for 13 offences including common assault and assault occasioning bodily harm.  He received 12 months probation, 40 hours of community service and a non-contact order was imposed prohibiting contact with the applicant’s mother.  The applicant was released from custody on the date of that sentence.
  3. (c)
    On the day of his release on 3 July 2020 the applicant contacted his mother in breach of the non-contact order imposed that day.  He was reprimanded for that breach on 13 July 2020 at Cleveland Childrens Court. 
  4. (d)
    Two days later, on 15 July 2020 the applicant further offended by stealing.  He proceeded to commit eight other offences, including burglary, wilful damage, obstruct police and enter premises with intent, before he was arrested on 10 September 2020.  He was released on bail for those offences on 28 January 2021.  Three days later, on 1 February 2021 he recommenced offending by stealing in breach of that bail.  He committed a total of five offences before he was arrested on 10 February 2021.
  5. (e)
    On 8 April 2021 the applicant was sentenced for 14 offences at the Brisbane Childrens Court to six months probation, and he was released from custody that day.
  6. (f)
    About one week later, on 21 April 2021 the applicant commenced reoffending and committed four further offences, including two entering premises with intent, and common assault, before he was arrested and remanded in custody on 29 April 2021.  He was sentenced on 8 June 2021 for those four offences to 12 months probation, and released from custody that day.
  7. (g)
    Five days later, on 13 June 2021 the applicant recommenced offending by possessing a knife in a public place.
  8. (h)
    The applicant was remanded in custody in late-June 2021 for indictable offences for which he was subsequently found not guilty on 13 December 2021, and he was released from custody on that date.
  1. (11)
    The present offences commenced on 22 December 2021, about nine days after his release from custody.
  2. (12)
    All of the present offences were also committed whilst the applicant was subject to the 12 month probation order imposed on 8 June 2021 at Wynnum Childrens Court.”
  1. [12]
    The respondent also conveniently provides a chronology, including previous grants of bail, as follows.[12] 

Chronology and previous grants of bail

  1. [13]
    A summary of the applicant’s previous grants of bail is summarised above.
  1. “(14)
    In respect to the present offences, the applicant was granted conditional bail on 23 December 2021 for the offences he committed he day prior on 22 December 2021 (numbered 1- 6 in the table at [5] above).
  2. (15)
    The applicant committed two further offences on 26 December 2021 and was issued a notice to appear in respect of those (numbered 7 and 8 in the table at [5] above).
  3. (16)
    The applicant committed 13 further offences on 12 January 2022 for which he was arrested on 14 January 2022 (numbered 9 to 21 in the table at [5] above).
  4. (17)
    On 21 January 2022, the applicant unsuccessfully applied for bail in the Cleveland Childrens Court for the offences committed on 26 December 2021 and 12 January 2022.  His bail was revoked for the balance of the offences (committed on 22 December 2021).  He is therefore in custody for all 21 offences.
  5. (18)
    The following charges are next listed for mention in the Brisbane Childrens Court on 6 May 2022:
  1. (a)
    trespass (22/12/21);
  2. (b)
    possess tainted property (22/12/21);
  3. (c)
    possessing dangerous drugs (x2)(22/12/21);
  4. (d)
    threats x2 (22/12/21);
  5. (e)
    common assault (26/12/21);
  6. (f)
    wilful damage (26/12/21).
  1. (19)
    The following offences proceeded by full hand-up committal on 7 April 2022 with the defendant entering no plea, and was committed for trial to the Brisbane Childrens Court of Queensland:
  1. (a)
    assault occasioning bodily harm (x10)(12/01/22);
  2. (b)
    torture (12/01/22);
  3. (c)
    deprivation of liberty (12/01/22);
  4. (d)
    common assault (12/01/22).”
  1. [14]
    The respondent has also provided a detailed and helpful summary of the relevant facts in respect of each of the offences as follows:-[13]
  1. “(21)
    A summary of the facts relevant to each offence is provided below:

Offences committed on 22 December 2021:

Threats – whilst at Capalaba Shopping Central, the applicant was with an older male.  The applicant began talking to two younger males at the shopping centre bus exchange.  The applicant began yelling at the younger males and made threats to stab them and bash them.  The applicant then chased the two younger males who retreated into a Big W store where they asked for help from staff.

Trespass – the applicant was banned from Capalaba Shopping Centre, pursuant to a banning notice issues on 17 May 2021.

Possessing dangerous drugs x 2 – police reviewed CCTV footage and identified the applicant as the offender.  Police located the applicant at the bus exchange at Capalaba Shopping Centre.  They searched the applicant and found two ml of liquid (later found to be MDMA) and a clip seal bag with 0.2 gm of white crystalline substance (later found to be methamphetamine).

Possessing tainted property – during the search of the applicant, police also found a letter addressed to UGH with a Commonwealth Bank credit card attached.  Police arrested the applicant.  The applicant did not participate in a formal interview, but stated that he had become upset by an appointment with his mother, so he took drugs to forget it all.  And he further stated he wanted to stop taking drugs and committing further offences and wanted to turn his life around.

Offences committed on 26 December 2021: 

Wilful damage – the applicant met with his mother and sister at a KFC for the purpose of exchanging Christmas gifts.  The applicant became abusive towards his mother and sister who then attempted to leave.  The applicant followed them and punched their car leaving a dent.

Common assault – the applicant’s sister attempted to call police using her mobile phone.  The applicant forcibly took her mobile phone and kicked her in the leg.  The defendant was issued a notice to appear by police for the two offences committed on 26 December 2021, which he scrunched up and put in a bit (sic) in front of police officers.

Offences committed on 12 January 2021:

The offending committed on this date concerned a 17 year old child complainant with significant intellectual impairments and psychological conditions including ADHD.  Police described him as “a trusting person who was easily manipulated” in the objection to the bail affidavit.  The applicant is liable as a principal offender for many of the offences, or otherwise as a party to offences committed by his co-accused, GRS, and COA, with whom he acted in concert.

The child complainant and his friend were befriended by the applicant randomly at a bus stop.  The applicant invited the child complainant and his friend back to his girlfriend’s unit.  After they had spent some time at the unit, the applicant invited them to meet with the applicant’s friends at a nearby bus stop, GRS (aged 14) and COA (aged 13). 

The applicant, GRS and COA then attempted to steal property from parked cars.  The child complainant refused to participate.  Despite being verbally threatened with violence, the child complainant’s friend left the group at about 9 pm, leaving the child complainant alone with the applicant, GRS and COA.  It is [in] that context that the offending arises.

Assault occasioning bodily harm, whilst armed – whilst seated in a carpark at the Cleveland IGA shopping centre, COA ignited a pocket lighter which has heated up the head of the lighter.  COA has then pushed the hot head of the lighter against the child complainant’s leg causing a burn mark.  Whilst COA did this, GRS and the applicant held the child complainant down so he could not move.

Assault occasioning bodily harm in company – the applicant invited the child complainant back to his girlfriend’s unit, accompanied by GRS and COA.  There, at about 10 pm, the child complainant seated himself in a lounge chair.  Without any provocation, the applicant pushed the child complainant off the chair.  The applicant, GRS and COA then proceeded to repeatedly kick the child complainant as he lay on the floor yelling for them to stop.  The complainant child suffered bruising and swelling.

Common assault – the child complainant then accompanied the applicant, GRS and COA to a nearby park at about 10 pm.  Again, the applicant, GRS and COA attempted to steal property from parked cars.  The child complainant refused to participate.  Consequently, GRS and COA repeatedly spat on the child complainant’s head, face and ear while yelling insults and abuse.

Assault occasioning bodily harm in company – the group have returned to the unit.  The child complainant has again seated himself in a chair.  Again, the applicant, GRS and COA have commenced kicking the child complainant, who curled himself into a ball to try and protect himself from further injury.

Assault occasioning bodily harm whilst armed in company – the co-accused GRS has told the child complainant he wanted to burn his arm hair and leg hair.  COA ignored the child complainant’s protests and has used a can of deodorant to spray the child complainant’s left leg.  COA then used a lighter to ignite the deodorant fuel on the child complainant, causing his skin to burn and blisters.  The co-accused GRS used his phone to film the offending.

Assault occasioning bodily harm whilst armed in company – COA has followed the child complainant into the lounge room and used the same deodorant to apply deodorant to the child complainant’s arm.  COA has then ignited the fluid with a lighter, causing burning and blistering to the child complainant’s skin.  COA did this twice to the child complainant.  This offending was again filmed by GRS, and the applicant watched from the lounge room.

Assault occasioning bodily harm whilst armed – the co-accused COA has retrieved a steak knife and used it to cut the complainant’s arm in two places.  The cuts were between five-10 cm in length.

Assault occasioning bodily harm in company – the child complainant has gone to the bathroom to treat his injuries.  The applicant has followed him and grabbed him by the throat and strangled him for about five seconds.  The child complainant pushed the applicant away.  The offence caused pain and bruising to the complainant child’s throat area.

Assault occasioning bodily harm whilst armed – the co-accused COA has retrieved a wooden spoon from the children and used it to strike the complainant child on the face and nose, causing the child complainant’s nose to bleed.  The applicant, COA and GRS have attempted to clean the blood from the floor using bleach.

Assault occasioning bodily harm whilst armed – the co-accused COA has obtained a solid metal pole from the bathroom and used it to strike the child complainant on the body and face about three times.

Assault occasioning bodily harm in company – as the child complainant lay on the floor, he felt one of the accused use a lighter to singe the top of his head and hair, causing burning and blistering.

Torture – the applicant is charged with this offence relating to the series of intentional acts of violence, particularised by separate AOBH offences, inflicted by the applicant and his co-accused over the course of several hours at the unit.

Depravation of liberty – the child complainant was threatened by the applicant, GRS and COA that if he left the group or left the unit, they would assault him further and kill his family.  Consequently, the complainant child spent the night at the unit.  The following day [sic] the child complainant walked to a bus stop with the applicant and the co-accused to await the arrival of an associate.  The child complainant jumped on a bus which stopped at the bus stop and left the group behind.

The child complainant travelled to Cleveland CBD and was located by police injured and confused.  The child complainant was taken to hospital for his injuries.

Photos of the injuries were taken by police, which are exhibited to the affidavit of BOR.”

  1. [15]
    The applicant’s counsel has provided a copy of the pre-sentence report (‘PSR’) for his sentence in the Childrens Court of Queensland on 23 March 2021,[14] when the applicant was 15 years, nine months old.  Under the heading Factors Contributing to Offending, the report writer provides a comprehensive background assessment which is, with respect, clearly relevant to the bail risk assessment I have to undertake and bears reading into the record (noting, of course, that it reflects the applicant’s circumstances 13 months ago:-[15]

“SKM is the oldest-born child of the union of SMM (herein referred to as SSM) and DVS.  SKM has a younger sister, currently aged 10 years.  SKM’s father passed away 11 January 2019 from cancer.

SSM described SKM as an extremely difficult child to raise, with SKM displaying signs and symptoms of being a frustrated child from his infancy.  SSM sought help from professionals for SKM’s entire life.  SSM’s main concerns were SKM’s long history of aggressive and violent behaviour, including tantrums and property damage.  At times when SKM was told “no”, he escalated at a furious speed.  Some of the steps SSM explored for assistance with SKM’s behaviour included child psychologists, paediatricians, psychiatrists and mental health professionals.  SKM was previously placed on medications that caused him adverse side effects with limited positive behavioural improvements.  Although SKM is presently responding positively to currently prescribed medications (Vyvanse) whilst remanded in custody, a challenge historically faced by SKM and his care team has been maintaining this medication once released in the community;  due to placement instability and SKM choose to self-place instead of approved Child Safety placements.

SKM’s experiences in the educational system have been characterised by extremely challenging behaviour exhibited by SKM, including aggressive and defiant behaviours towards both students and teachers.  SKM struggled academically throughout his education journey.  SKM repeated both prep and grade 1 and attended no less than five schools during his mainstream education.  SKM was at one stage tested for intellectual impairment, initially meeting the criteria; however, for reasons unclear to this author, that assessment was rescinded shortly before SKM was excluded from grade 5.  The last school SKM attended was Tugulawa Independent School, (TIS), a school equipped with teachers specifically trained in dealing with challenging behaviours.  The teachers have a strong trauma-informed practice framework and were able to articulate in their assessment of SKM that he had (in their view) experienced a lot of childhood trauma;  much of which related to how his father was treated by neighbours and other people in his community.  TIS were not willing to have SKM return to the school early in 2019 due to the specific challenges SKM posed and the tremendous drain on staff resources that was considered unsustainable.  SKM has not resumed any formal education within the community since TIS.

Between May and July 2019, during a time when SKM was remanded in custody, speech and language therapist TPE conducted a comprehensive speech and language assessment of SKM’s capabilities.  SKM ranked in the lowest percentile in nearly all categories.  TPE’s assessment recommended that SKM required specialist intensive support to make progress on the significant deficits he currently has with his speech and language literacy.  This assessment helps explain in some part the difficulties that SKM displayed in the education setting.

During interview, SSM was clear that SKM’s challenging behaviour and aggression was very apparent and present before his father passed away;  however, attested to the behaviours escalating after this time, evidenced with the offending behaviour that ensued and persisted in the time since.  At the time of asking, SKM was difficult to contact and was couch surfing and avoiding his home environment.  At that time, SKM was using illicit substances, including methamphetamine and cannabis.

Early in January 2019, the police were called to the family home in response to SKM assaulting SKM’s mother and sister.  These offences occurred just two days after SKM’s father passed away;  an extremely difficult time for the entire family.  Shortly after this, the department of Child Safety became involved, attempting to provide Tam SSM my with some respite and provided alternative residential care for SKM.  Initially, SKM refused to stay in residential care settings, preferencing couch surfing and making his own short-term arrangements for accommodation.  Eventually, SKM did transition into a residential care home;  however, did not settle well and continued to abscond frequently.  His illicit substance use continued, resulting in some of the more serious offences SKM committed in 2019 (now sentenced for), including an attempted unlawful use of a motor vehicle where SKM attempted to take a car from a residential staff member who had travelled to pick SKM up.  This incident resulted in an ongoing difficulty in finding residential care providers prepared to accept support referrals for SKM;  resulting at times, in commercial accommodation (eg, hotels) or shorter-term evening support (eg, Logan Cottage) being the only available alternatives.  Sourcing appropriate residential placement continues to be a significant challenge.

The offences before the court occurred when SKM had been released from custody less than once month prior, a pattern for SKM over the last two years whereby he has committed offences shortly after being released from custody.  SKM was couch surfing and refusing to stay at his Child Safety provided placement, Logan Cottage.  SKM recalls he had been under the effects of methamphetamine for several days at the time of the incident.  He indicated he did not wish to meet with the rest of his co-accused;  however, he was influenced by a stronger dominant peer.  SKM assaulted the victim and attempted to steal property and gain entry into the vehicle in an attempt to obtain money.  His recall of events is significantly limited due to substance abuse and limited sleep over multiple days.

SKM’s offending is assessed as being caused by his severely personal need to gain acceptance and belonging from his peers regardless of the impact to himself and members of the public.  SKM gravitates towards peers who will accept him or recruit him to their cause.  SKM is vulnerable, easily influenced and desperate to belong with his fellow peers.  He lacks consequential thinking, particularly amongst peers, as his desire to connect with them and gain respect trumps his decision making, as evidenced by his historical and current offending before the Court.  These connections are based around antisocial behaviour as SKM struggles to form alternative prosocial relationships;  a repetitious behavioural pattern.

SKM is a young boy with behavioural challenges.  He has complex difficulties with speech and language and struggles to follow directions or comply with societal norms.  SKM’s ability to manage frustration is very poor, resulting in antisocial and aggressive behaviour almost as a default.  These behavioural patterns combined with illicit substance abuse and unresolved guilt/grief and loss, antisocial connections and with no stable place to call home, has contributed to SKM engaging in the offences before the court.”

  1. [16]
    I accept that I have quoted at significant length from that pre-sentence report, and I have already noted that it was written sometime prior to this application, but, in my very clear view, past conduct being in this particular case the very best indicator of potential future conduct, I have extracted that quote at length to provide context for the court’s decision.
  1. [17]
    As litigated, the primary considerations of the applicant’s counsel were the risk that the applicant would serve too long on remand,[16] balanced against the amelioration of the risks of re-offending by way of a conditional bail program.
  1. [18]
    The respondent submits that the likely sentence, if the applicant is convicted, would be a detention order of two to three years, relying on the single judge decisions of Chowdhury DCJ in R v Hall, Beenleigh Childrens Court, 4 February 2020,[17] and R v E;  ex-parte Attorney-General [2002] QCA 417.
  1. [19]
    The applicant, in turn, relies on another decision of Chowdhury DCJ of R v Te Rangi, Beenleigh Children’s Court, 11 February 2022.[18]
  1. [20]
    Both applicant and respondent have made extensive searches and thankfully, comparative authority for non-sexual torture sentences in respect of juveniles appears to be scant, or even non-existent.
  1. [21]
    The offending in Te Rangi is, in my view, less serious than the alleged offending by the applicant, and of course, does not also, in an R v Nagy sense, wrap up a substantial number of sentences globally (Te Rangi pleaded guilty to offences of deprivation of liberty and torture).  The 18 months detention order in that matter, served by way of a three-month conditional release order, could then, in context, be considered at or below the benchmark for the bottom of the range in this matter.
  1. [22]
    Conversely, the offending in Hall is coupled with appalling and degrading sexual assault charges, and the nominal head sentence in that case of three years detention would, I consider, be too high and above the top of the range in this applicant’s context. In my view, the range for the applicant in the current matters, is somewhere between 21 months and two and a-half years. I should note that R v E; ex-parte Attorney-General [2002] QCA 417 is only of very limited assistance, given that the torture in that matter is also associated with serious sexual offending.
  1. [23]
    In that context, the applicant would be required to serve somewhere between 50-70 per cent of the head sentence,[19] so the actual custodial component of what I consider to the applicable range would be somewhere between 10 and a-half months (50 per cent of 21 months) and 21 months (70 per cent of two and a-half years).  The applicant had, as of the date of hearing, been in custody 98 days.[20]  Mr Munsie submits also that the applicant spent six months in custody in 2021, in respect of alleged offences, for which he was acquitted at trials in August and December 2021, which is custodial time that Mr Munsie submits should be taken into account on any sentence for the current matters.  Without reaching any conclusion on the precise effect that a sentencing judge may approach the precise effect of that (unrelated) period of custody in 2021, it is undoubtedly an issue at least to be considered by a sentencing judge in due course.
  1. [24]
    At this stage, then, I do not consider the applicant is at risk of serving too much time in custody. There are of course a number of delaying factors – an indictment has not yet been presented, there are lengthy Evidence Act 1977 (Qld) section 93A recordings that have not yet been transcribed, and conferencing cannot realistically be undertaken by the applicant’s defence team while the brief remains incomplete.  At the very least, it will be some months before a trial could occur, but if that timeframe is not achievable, then of course it would be open to the applicant to make a fresh application for bail, the circumstances having changed, if this current application is unsuccessful.
  1. [25]
    The other primary consideration, then, is the risk of further offending in the light of what I consider to be a strong Crown case on the torture and associated assault charges, as well as the deprivation of liberty.
  1. [26]
    The pre-sentence report, which I have quoted at length, paints a particularly concerning pattern of re-offending shortly after release from custody;[21] and the respondent points to a pattern of violent offending, the current charges representing an escalation in the seriousness of that offending in respect of a vulnerable complainant,[22] and occurring between nine days from his release from custody (the first of the offences occurring on 22 December 2021) through to four weeks from his release (the offences occurring on 12 January 2022).
  1. [27]
    In the context of the pattern of previous offending, comprehensively summarised,[23] and the proposed conditional bail program conditions, which would seek to support the applicant with residential, reporting, employment and therapeutic interventions, I consider that the risks of re-offending, based on previous patterns of behaviour, are very high, and are not able to be ameliorated by the proposed residential, curfew, no drink/drugs/weapons and conditional bail program conditions.
  1. [28]
    In summary – at this stage, I do not consider that the applicant is at risk of serving too much custody, and I consider that there is an unacceptable risk that the applicant, if released, will commit further offences, in particular, offences that endanger the safety of the community or the safety or welfare of another person, and it is not practicable to mitigate that risk with particular conditions on the bail.
  1. [29]
    It follows that I am not persuaded to grant the application for bail.

Order

  1. [30]
    I make the following order:
  1. (1)
    Application for bail refused.

Footnotes

[1] Exhibit 3 – Outline of submissions for the respondent [5].

[2] Exhibit 3 [2].

[3] Exhibit 3 [3]; Exhibit 1 – Outline of submissions for applicant [6]-[7].

[4] Exhibit 1 [18] – 19].

[5] Exhibit 3 [4], [46] – [48].

[6] Youth Justice Act 1992 (Qld) s 47 (‘YJA’).

[7] YJA sch 4 (c)(iv) (definition of “prescribed indictable offence”).

[8] YJA sch 4 (b) (definition “prescribed indictable offence”); Criminal Code 1899 (Qld) s 320A.

[9] YJA s 48AAA(1) – (3).

[10] Re JTL [2021] QSC 211 [5], [7].

[11] Exhibit 3 [7] – [12].

[12] Exhibit 3 [13] – [19].

[13] Exhibit 3 [21].

[14] Exhibit 2.

[15] Exhibit 2 pp 3-4.

[16] YJA s 48AA(3).

[17] Exhibit 4.

[18] Exhibit 6.

[19] YJA s 227.

[20] Exhibit 5.

[21] Exhibit 2 p 4.

[22] Exhibit 3 [31].

[23] Exhibit 3 [10].

Close

Editorial Notes

  • Published Case Name:

    SKM v Director of Public Prosecutions

  • Shortened Case Name:

    SKM v Director of Public Prosecutions

  • MNC:

    [2022] QCHC 14

  • Court:

    QChC

  • Judge(s):

    Dearden DCJ

  • Date:

    28 Apr 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
R v E; ex parte Attorney-General [2002] QCA 417
3 citations
Jump To
Cite 1 - [2002] QCA 417
Cite 2 - [2002] QCA 417
Cite 3 - [2002] QCA 417
Re JTL [2021] QSC 211
3 citations
Jump To
Cite 1 - [2021] QSC 211
Cite 2 - [2021] QSC 211
Cite 3 - [2021] QSC 211

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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