R v HMM[2018] QDC 206

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 30 August 2018 the defendant was convicted, by jury verdict, of the offence of unlawfully doing grievous bodily harm. That conviction was in respect of an indictment presented in this court on 26 February 2018.

2. [2]
   The trial which culminated in the jury verdict commenced on 27 August 2018. And the necessity for this ruling arises from the query raised in the course of that trial and when it became apparent that the defendant was aged 17 years at the time of the commission of his offence, on 21 January 2017. His date of birth is 27 December 1999 and therefore he turned 18 on 27 December 2017.

3. [3]
   The issue that arises is as to whether the indictment presented on 26 February 2018 in the District Court was correctly presented in that Court, consequently upon the commencement of the Youth Justice and Other Legislation (Inclusion of 17-year-old persons) Amendment Act 2016 (“2016 Amendment Act”) on 12 February 2018 and therefore, whether the defendant is to be dealt with as an adult offender.

4. [4]
   The effect of the 2016 Amendment Act was to prima facie make 17-year-old offenders subject to the application of the Youth Justice Act 1992 (“YJA”). That was done by omitting from the dictionary in schedule 4 to that Act the following definitions of child:

“Adult means a person who is not a child.

…

Child means –

1. (a)
   a person who has not turned 17 years; or

2. (b)
   after a day fixed under section 6 – a person who has not turned 18 years.”

And by also omitting s 6 of that Act. Accordingly and having regard to ss 4 and 36 of the Acts Interpretation Act 1954, the respective definitions of adult and child in schedule 1 to that Act then operate to effect a position where a child is “an individual who is under 18” and an adult “an individual who is 18 or more”.

5. [5]
   Apart from consequential amendments to other Acts, it is also to be noted that pursuant to the 2016 Amendment Act, a new Division 15 was added to Part 11 of the YJA, with the heading “Transitional Provisions for Youth Justice and Other Legislation (Inclusion of 17-year-old-persons) Amendment Act 2016” (“transitional provisions”). That division is constituted by ss 387-391 as follows:

“387  Offences by 17-year-olds before commencement if offence proceedings not started

3. (1)
   This section applies to a person who, as a 17-year-old, committed an offence before the commencement if a proceeding against the person for the offence had not been started before the commencement.

3. (2)
   For this Act or another Act, the person is taken to have committed the offence as a child.

 388  Transitional regulation-making power

1. (1)
   The Governor in Council may make a regulation (a transitional regulation) under this division.

2. (2)
   A transitional regulation must declare it is a transitional regulation.

3. (3)
   This section, sections 389 to 391 and any transitional regulation expire 2 years after the commencement.

389  Uncompleted sentences for offences by 17-year-olds

3. (1)
   This section applies if—

1. (a)
   a person, as a 17-year-old, committed an offence before the commencement; and

2. (b)
   the person is still 17 years old on the commencement; and

3. (c)
   a sentence for the offence was imposed but not completed before the commencement.

3. (2)
   A transitional regulation may provide for the application of this Act or another Act to the person as if the sentence or a subsequent order about the sentence were a corresponding child sentence or order.

3. (3)
   The matters for which the transitional regulation may provide include the following—

1. (a)
   the continued application of a provision of an Act to the sentence or subsequent order for particular purposes even though another provision of the same Act or another Act applies as if the sentence or subsequent order were a corresponding child sentence or order;

2. (b)
   if the sentence includes a term of imprisonment—applying a provision of this Act about supervised release orders to the term of imprisonment as if it were a period of detention;

3. (c)
   if the person is serving a term of imprisonment in a corrective services facility on the commencement—

1. (i)
   providing for the transfer of the person to a detention centre for detention as if the term of imprisonment were a period of detention; or or

2. (ii)
   applying a provision of this Act to the person as if the person were serving a period of detention in a detention centre.

3. (4)
   A court may, on application by the person or the chief executive or on its own initiative—

1. (a)
   make an order or give directions it considers necessary to facilitate the application of this Act or another Act to the person under the transitional regulation; or

2. (b)
   if the court considers it would be in the interests of justice to do so, having regard to the application of this Act or another Act to the person under the transitional regulation—

1. (i)
   vary the sentence or subsequent order; or

2. (ii)
   discharge the sentence or subsequent order and substitute it with a corresponding child sentence or order.

3. (5)
   An application may not be made under subsection (4)(b) on the ground that the penalty imposed by the person’s sentence would have been lower if the person had been sentenced as a child.

3. (6)
   For this section, a sentence or order under this Act mentioned  in column 2 is a corresponding child sentence or order for the sentence or order mentioned in column 1—

390  Current proceedings for offences by 17-year-olds

3. (1)
   This section applies in relation to an offence committed, or alleged to have been committed, by a person when the person was 17 years old if there is a current proceeding for the offence.

3. (2)
   A transitional regulation may provide for the person to be treated as a child in relation to the offence and, for that purpose, provide for the application of this Act or another Act to the person.

3. (3)
   The matters for which the transitional regulation may provide include the following—

1. (a)
   removing the current proceeding to the Childrens Court for hearing and determining under this Act;

2. (b)
   if the current proceeding is not removed to the Childrens Court for hearing and determining under this Act—applying a provision of this Act to the proceeding;

3. (c)
   applying a provision about bail under Part 5 to the person;

4. (d)
   if the person is being held on remand, or otherwise being held in custody, in a corrective services facility on the commencement—

1. (i)
   providing for the transfer of the person to a detention centre; or

2. (ii)
   applying a provision of this Act to the person as if the person were being held on remand in the chief executive’s custody, or otherwise held in custody in a detention centre;

5. (e)
   applying a provision of this Act to any sentencing for the offence.

3. (4)
   A court may, on application by the person, the prosecution or the chief executive or on its own initiative, make an order or give directions it considers necessary to facilitate the application of this Act or another Act to the person under the transitional regulation.

3. (5)
   In this section— current proceeding—

1. (a)
   means a proceeding started but not finally dealt with before the commencement; and

2. (b)
   includes a proceeding in which a person has been convicted, within the meaning of the Penalties and Sentences Act 1992, but not sentenced before the commencement.

391  Administrative arrangements

3. (1)
   A transitional regulation may provide for administrative arrangements to facilitate the operation of the regulation.

3. (2)
   The matters for which the transitional regulation may provide include the following—

1. (a)
   the staged transfer to a detention centre of persons to whom the regulation applies who, at the commencement, are being held on remand, serving a term of imprisonment, or otherwise being held in custody, in a corrective services facility;

2. (b)
   the chief executive (corrective services) giving to the chief executive information about a person to whom the regulation applies.

3. (3)
   A transitional regulation providing for a matter mentioned in subsection (2)(a) applies to a person despite any provision of this Act providing that the person must be detained in a detention centre.

3. (4)
   A transitional regulation providing for a matter mentioned in subsection (2)(b) applies to information about a person despite any provision of an Act preventing the chief executive (corrective services) giving the information to the chief executive.”

6. [6]
   Although the 2016 Amendment Act was assented to on 11 November 2016, s 2 of that Act provided that the Act was to commence on a date to be fixed by proclamation. However, that commencement date was ultimately determined pursuant to the Youth Justice and Other Legislation (Inclusion of 17-year-old persons) Amendment (Postponement) Regulation 2017, as 12 February 2018. That postponement regulation was made on 14 September 2017 and pursuant to s 15DA(3) of the Acts Interpretation Act 1954, so as to extend the period before the automatic commencement of the 2016 Amendment Act pursuant to s 15DA(2).

7. [7]
   Accordingly the reference in the transitional provisions to “the commencement” is to be taken as a reference to 12 February 2018. Further and as provided in s 2 of the Youth Justice (Transitional) Regulation 2018 (“2018 Transitional Regulation”), that regulation, as made pursuant to s 388 of the YJA, commenced immediately after the commencement of the 2016 Amendment Act.

The Issues

8. [8]
   In this instance, the justification for the presentation of the indictment in the District Court was contended on the basis that s 390, rather than s 387 of the YJA, was applicable and that although Part 2 of the 2018 Transitional Regulation purported to deal with “current proceedings”, as contemplated by s 390, the application of this part of the regulation is expressed to be limited in accordance with s 5, which provides:

“5  Application of part

3. (1)
   This part applies in relation to an offence committed, or alleged to have been committed, by a person when the person was 17 years old if—

1. (a)
   there is a current proceeding for the offence; and

2. (b)
   the person is 17 years old on the commencement.

3. (2)
   However, this part does not apply to—

1. (a)
   a proceeding for a reference under the Mental Health Act 2016 for the offence; or

2. (b)
   a proceeding under the Penalties and Sentences Act 1992, section 122 for the offence.”

Accordingly, the contended effect is to exclude this defendant from the benefits afforded to other 17 year old offenders of being dealt with in accordance with the YJA.

9. [9]
   Accordingly, it is contended that s 5 of the 2018 Transitional Regulation has effect to exclude the operation of s 10 of that regulation, which provides:

“10  Current proceeding if committed for trial or sentence and indictment not presented

3. (1)
   This section applies if—

1. (a)
   the person had been committed for trial or sentence for the offence before the commencement; and

2. (b)
   immediately before the commencement, an indictment for the offence had not been presented to the Supreme Court or the District Court.

3. (2)
   On the commencement, the person must be treated as a child in relation to the offence and, for that purpose, the Act and other Acts apply to the person.

3. (3)
   This section does not apply if an application has been made under section 11 or 12 to reopen the committal proceeding.”

10. [10]
    Two things may be immediately observed as to s 5(1) of the 2018 Transitional Regulation. First, there is the curious introduction of a qualification as to the application of the regulations in Part 2, by excluding application to any person who had turned 18 prior to 12 February 2018. That is to say it introduces such a qualification which only appears in the transitional provisions in s 389(1)(b) and therefore only in respect of dealing with uncompleted sentences that had been imposed upon 17 year old offenders and as adults, prior to the commencement and which had not been completed before 12 February 2018. Not only might that be seen to be directed at quite different circumstances, but and secondly, it may be observed that this is the purported effect notwithstanding the illogicality that no such limitation is applicable to the starting of proceedings against any 17 year old offender after the commencement. That is because s 387 applies to the starting, after the commencement, of a proceeding against “a person who, as a 17 year old, committed an offence before the commencement” and pursuant to s 387(2) “the person is taken to have committed the offence as a child”. That appears to be such an illogical result as to warrant close examination as to:

1. (a)
   the true effect of the transitional provisions in the 2016 Amendment Act; and

2. (b)
   whether or not s 5 of the 2018 Transitional Regulation may be regarded as consistent with the legislative provisions which enable the making of the subordinate legislation.

Some Contextual Considerations

11. [11]
    It is also necessary to put these issues into some context both in respect of the course of this matter and the potential application of the YJA to it. The general rule is that delegated or subordinate legislation should not be taken into account for the purposes of interpretation of the act itself. For example, in Webster v McIntosh, it was observed:^[1]

“the intention of Parliament in enacting an act is not to be ascertained by reference to the terms in which a delegated power to legislate has been exercised.”

12. [12]
    First and as has been noted, these issues arose in the course of the hearing of the defendant’s trial before the District Court, sitting with a jury and which had commenced on 27 August 2018 and was concluded, with his conviction by jury verdict, on 30 August 2018. At that point, the further proceeding was adjourned to enable submissions and determination of these issues and particularly prior to any sentencing proceedings.

13. [13]
    Despite the uncertainty that had been raised as to the propriety of the presentation of the indictment to the District Court and therefore providing the basis for the proceedings that were being conducted before it, it was the common contention of the parties and accepted by the court, that the trial should be continued and concluded. That was particularly identified as being both efficacious and appropriate having regard to the following:

14. [14]
    It is also desirable to note the further context provided by Division 11 of Part 6 of the YJA and which provides for dealing with child offenders who become adults. Importantly, it should be noted that in respect of offenders who have or are alleged to have committed an offence (“child offence”) as a child (“child offenders”)^[6]but who have since become an adult, which since 12 February 2018, means turning 18, the effect of the division is that such defendants are to be treated as a child, for the purposes of the YJA, subject to the specific provisions of the division.^[7]However, s 140 provides:

“140  When offender must be treated as an adult

3. (1)
   If 1 year has passed after an offender has become an adult—

1. (a)
   a proceeding afterwards started against the offender for a child offence must be taken as if the offender were an adult at the time of the commission of the child offence; and

2. (b)
   if found guilty in the proceeding—the offender must be sentenced as an adult.

3. (2)
   If—

1. (a)
   a proceeding has started against an offender for a child offence in the way provided in this Act for a child; but

2. (b)
   the proceeding has not been completed to a finding of guilty or not guilty by the time 1 year has passed after the offender becomes an adult; then—

3. (c)
   the proceeding must be finished in the way provided in this Act for a child; but

4. (d)
   if found guilty—the offender must be sentenced as an adult.

3. (3)
   If, after a finding of guilt in a proceeding started against an offender as a child—

1. (a)
   the court has been unable to sentence the offender because the offender has—

1. (i)
   escaped from detention; or

2. (ii)
   failed, without reasonable excuse, to appear as required under the conditions of bail; or

3. (iii)
   failed, without reasonable excuse, to return to the detention centre at the end of a period of leave granted under section 269; and (b) 1 year has passed after the offender has become an adult; the offender must be sentenced as an adult.

3. (4)
   An offender must not be treated as an adult under this section if the court is satisfied that there was undue delay on the part of the prosecution in starting or completing the proceeding.”

And, s 141 provides:

“141  When offender may be treated as an adult

3. (1)
   This section applies if—

1. (a)
   a proceeding has started against an offender for a child offence in the way provided in this Act for a child (the childhood proceeding); and

2. (b)
   by the time 1 year has passed after the offender becomes an adult—

1. (i)
   the childhood proceeding has not been completed to a finding of guilty or not guilty; and

2. (ii)
   the offender, for another offence—

1. (A)
   is proceeded against as an adult; or

2. (B)
   has been sentenced as an adult.

3. (2)
   The court hearing the childhood proceeding may decide to continue the proceeding as if the offender were an adult when the child offence was committed.

3. (3)
   For subsection (2), the Childrens Court may continue the proceeding in its concurrent jurisdiction.

3. (4)
   If the offender is found guilty, the offender must be sentenced as an adult.

3. (5)
   This section applies despite section 140(2).”

15. [15]
    Otherwise, there are provisions that deal with the continuing effect of orders made under the YJA, even if an offender ceases to be a child before the effect of the order has ceased.^[8]And also for circumstances in which a “childhood sentencing order” may be converted to a “corresponding adult order.”^[9]

16. [16]
    Further and in any event, it is of particular importance, as was recently exemplified by R v LAL,^[10]to note the effect of s 144, in requiring a court sentencing an adult for an offence committed as a child to have regard to:

“(a) the fact that the offender was a child when the child offence was committed; and

2. (b)
   the sentence that might have been imposed on the offender if sentenced as a child.”^[11]

And, in limiting the extent of penalty that may be imposed by way of imprisonment, fine, restitution or compensation.^[12]

Discussion

17. [17]
    As identified in the prosecution submissions the critical question is whether or not the defendant’s offence is to be treated as a “child offence” within the meaning of s 132 YJA. As is also correctly pointed out, whether or not it is to be treated as a child offence, notwithstanding that when it was committed, the defendant was regarded as an adult and has since turned 18 and is therefore now an adult as defined in the Acts Interpretation Act, depends upon the application of the transitional provisions and particularly s 387 and s 390. It may be observed that the effect of those two transitional provisions is to deal with the transitional aspects of the legislative changes as far as proceedings for offences committed or allegedly committed by 17 year olds are concerned.

18. [18]
    The position taken by the prosecution is that despite the fact that no indictment had been presented before 12 February 2018, there was a “current proceeding” for the offence within the meaning of that term in s 390. That is because of the following chronology. The defendant was born on 27 December 1999, arrested on the charge of unlawfully doing grievous bodily harm on 4 February 2017 and granted bail to appear in the Magistrates Court on 27 February 2017. He was then dealt with pursuant to the Justices Act 1886 and on 25 October 2017 and when he was still aged 17, he was committed for trial to the District Court, in respect of that charge and by registry committal procedure.

19. [19]
    This was contended to be so because the prosecution of an offence, when s 560(1) of the Code is engaged, as was the case in respect of the indictment presented against this defendant in the District Court, is a single proceeding commenced by bringing a defendant before a Magistrates Court upon a charge and which is then continued upon the presentation of an indictment.

20. [20]
    Whilst it may be accepted that such circumstances involve the process of a single prosecution, it is another thing altogether to accept that there is and can only be a conclusion as to there being a single proceeding involved. In fact, the prosecution submission immediately identifies a difficulty, in the concession that the position is different when there is the presentation of an ex officio indictment, pursuant to s 561 of the Code. And this difficulty is only further exemplified when it is understood that that description is apt to any circumstance where an indictment is presented containing any charge upon which the defendant has not been committed to a court of competent jurisdiction, which may be referable in certain circumstances to only some of a number of offences included in a particular indictment.^[13] Further and notwithstanding that there may be consequences of a committal order, in terms of remand in custody or obligations under a bail undertaking,^[14] it is the presentation of the indictment, if and when it occurs, which invokes the jurisdiction of the superior court and starts the proceeding before that Court.^[15] Whilst it may be a rare event, in practice, it should not be overlooked that it is not necessarily the case that a committal order will result in the presentation of an indictment. Accordingly, it may be noted that in R v Scott,^[16] Cooper J observed that apart from the consequence of discharge from the operation or effects of the committal order:

“Termination of the prosecution by the Attorney-General or the Director of Public Prosecutions has two consequences. The first is that there is never a criminal judicial proceeding because no indictment is presented to enliven the jurisdiction of the court”.

His Honour proceeded to cite a number of authorities for the proposition, including two Queensland decisions: R v His Honour Judge Noud; Ex parte MacNamara^[17]where McPherson J (after reference to the jurisdiction conferred by s 58 of the District Court of Queensland Act 1967) observed:

“It is, I think, plain that the jurisdiction conferred by s. 58 does not become exercisable at least until a District Court is informed in the proper way that an alleged offender is to be brought to trial. Until then, the jurisdiction conferred by s. 58 exists but it has nothing on which to operate. The way in which the court is informed that an alleged offender is to be tried is by the presentation of an indictment under ss 526 or 527 of the Code by a Crown Law Officer or of an information presented by leave by some other person under s. 686. In strictness, an indictment at common law was a bill found by a grand jury to be a “true” bill. What is now used in Queensland is more accurately termed an information, which at common law was a form of process for initiating civil as well as criminal proceedings by the Crown. The Code, however, describes it as an indictment, meaning “a written charge preferred against an accused person in order to his trial before some court other than justices exercising summary jurisdiction.” Whatever its designation, it is the document by which criminal proceedings are initiated “in order to…the trial before some court”.”

The second was R v McLoughlin and Cooney,^[18] which includes the following discussion of s 592 of the Code:

“I would state at once my view that when the matter came before Judge McLoughlin it had not been dealt with by the court. It had been listed for hearing. No application for adjournment had been made to or dealt with by the court. Pursuant to s. 590 of The Criminal Code a person committed for trial may, where an indictment has not been presented against him, apply to be brought to trial. Although s. 592 empowers the court to which a person has been committed for trial to adjourn the trial, I cannot think of any circumstances in which this would be done at the behest of either Crown or accused until an indictment has been presented. Certainly the trial may not proceed without the accused’s presence before the court except in circumstances which are not relevant here. It seems that the provision giving power of adjournment to the court to which an accused has been committed is not one as to when in the course of events after committal an application may be made but it is merely indicative of the court which may exercise the power. Thus a trial seemingly may not be adjourned until an indictment is before the court.”

21. [21]
    It should also be noted that each of the noted Queensland decisions pre-dated the addition of s 590AA to the Code, so as to allow for and validate pre-trial hearings and rulings, but which includes the pre-condition: “If the Crown has presented an indictment before a court against a person”.

22. [22]
    Further, a lack of conjunction between proceedings conducted as committal proceedings and those conducted on indictment may be understood in noting that although it is usually the case that an indictment will be presented in accordance with s 560(1), this need not necessarily occur. And apart from those situations where there is a no true bill and further, when it is understood that the presentation of an ex officio indictment pursuant to s 561 of the Code, occurs when the presentation relates to any indictable offence for which the defendant has not been committed for trial or sentence,^[19] the recognition in the prosecution submissions that these provisions apply differently to an ex officio indictment is of some particular significance.

23. [23]
    Moreover, it is also necessary to note the particular lack of unification or conjunction inherent in an understanding that even when defendants are committed for sentence, they are required to be arraigned upon the indictment,^[20] and may be permitted to change their plea to not guilty.^[21] And in this context it is particularly significant to note that s 106 of the YJA allows any child who is committed for sentence to enter a not guilty plea when called upon, as of right and without the fact of the prior plea being admissible in evidence.

24. [24]
    Otherwise, the effect of s 101 of the YJA, subject to any exceptions or modifications within Division 7 of Part 6 of the YJA, is the adoption of the provisions of “the Criminal Code or any other Act relating to the hearing and deciding on indictment of an indictable offence …. to a proceeding for an indictable offence before a Childrens Court judge…”.

The meaning of “a proceeding” in s 387?

25. [25]
    The essential question is as to discerning the meaning intended in s 387 by the use of the words “if a proceeding against the person for the offence had not been started before the commencement”. Section 14A(1) of the Acts Interpretation Act 1954, provides that “the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.”

Further and as was explained in Project Blue Sky Inc & Ors v Australian Broadcasting Authority:^[22]

“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole.” In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning that the logic with which it is constructed”. Thus the process of construction must always begin by examining the context of the provision that is being construed.”^[23]; and

“…the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, the meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”

26. [26]
    The immediate legislative context is the provisions in Division 14 introduced by the 2016 Amendment Act, as the transitional provisions. As was appropriately accepted by the prosecution, sections 387 and 390 are intended to operate in a complementary sense. That is in the sense that s 390 is obviously intended to capture and deal with those proceedings which are not the subject of s 387, but otherwise relating to  offences committed or alleged to have been committed by a 17 year old offender and which are yet to be finally dealt with by a court. That is because the definition of current proceeding provided in s 390(5) is:

“Current proceeding –

1. (a)
   means a proceeding started but not finally dealt with before the commencement; and

2. (b)
   includes a proceeding in which a person has been convicted, within the meaning of the Penalties and Sentences Act 1992 but not sentenced before the commencement.”

27. [27]
    Accordingly it may be seen that this definition is capable of connoting the concept urged by the prosecution, on the basis that as at the commencement on 12 February 2018 and as far as the exercise of the jurisdiction of a Childrens Court judge is concerned, there may be two types of “current proceeding”. The first may be where there is an existing indictment before the District Court which charges an offence committed by a 17 year old offender. The second may be those circumstances like the present, where there was an existing order that such an offender was committed to a District Court, but where the indictment was yet to be presented. In that sense, the application of s 387 would be in respect of circumstances arising after 12 February 2018 whereby a charge or charges were made against an offender for offences committed prior to the commencement and when that offender was aged 17.

28. [28]
    However, it is necessary to note that the reference in both sections is to “a proceeding” rather than, for instance, “the charging” of such a defendant.^[24] Such a reference is apt to refer to a process that occurs before a court, usually something that requires the invocation of the jurisdiction of that court by the commencement or starting of that proceeding. And in the present instance, the immediate attention must be directed to the particular proceeding which is presently before the District Court and being conducted upon Indictment 72 of 2018. There is no issue that there is such a proceeding before this court, but the contention is that, notwithstanding that the invocation of the jurisdiction of the District Court was by the presentation of the indictment on 26 February 2018, it is not one which “had not been started before 12 February 2018.

29. [29]
    The concept of “a proceeding” is a notoriously difficult one. For example, and even approached on the basis that it is capable of being a reference to the entire process involved in the exercise of the jurisdiction of this court upon the indictment before it, it is also possible to describe separate or discrete proceedings that may occur in the course of the exercise of that jurisdiction; such as proceedings on a pre-trial application pursuant to s 590AA or trial proceedings or sentencing proceedings. However, the second aspect of the definition of “current proceeding” in s 390 is an indication that the legislation is concerned with a broader ambit than such a discrete hearing as might be described as a sentencing proceeding. Also, that definition does serve to indicate what might be regarded as the conclusion of any such proceeding as is contemplated.

30. [30]
    If s 387 is applicable to a proceeding before a District Court to be commenced after 12 February 2018, that section is capable of application to all indictments presented against 17 year old offenders for offences committed before the commencement, but which are presented after that date, as well as charges brought before a Childrens Court Magistrate after 12 February 2018. And s 390 would then be applicable in the more limited circumstances of such indictments already presented in the District Court or matters before the Magistrates Court, as at that commencement date. And there are some indications in the YJA that may support such a view: for example:

31. [31]
    The difficulty and lack of clear indication in these provisions is to be found in understanding that the Childrens Court Act 1992 establishes a single “Childrens Court of Queensland”,^[25]albeit that the Act proceeds to separately recognise the exercise of the jurisdiction of the court by a Childrens or District Court Judge, as opposed to a Childrens Court or any Magistrate.^[26]Particularly in part 4 there is to be discerned a sense of separate reference to proceedings that are conducted respectively before a magistrate, as opposed to those conducted before a judge.^[27]It may also be observed that a similar approach is reflected in s 66 of the YJA.

32. [32]
    Accordingly, the difficulty in attempting to discern some definitive indication from the legislation is in understanding that it seeks to cater for the exercise of relevant jurisdiction at both levels and that accordingly there are provisions which are more expressed as to generality of application and also those expressed as to more specific application to the particular nature of the different stages at which the jurisdiction may be exercised.

33. [33]
    It is therefore necessary to consider the most critical context for the transitional provisions, which are those provisions which are to be found in Part 6, Division 11 of the YJA and in respect of “child offenders who become adults”. That is because the transitional provisions are clearly concerned with the position of offenders who were aged 17, when they offended or are alleged to have offended before the commencement date, and therefore when any criminal liability was “acquired, accrued or incurred” as an adult offender.^[28] Accordingly, the transitional provisions serve to displace the operation of s 20(2)(c) of the Acts Interpretation Act 1954, by contrary intention.^[29]Further it is by reference to these provisions that it may be understood what rights are then to be given to such offenders, by having any such offence dealt with as a “child offence”, without further transitional provision.

34. [34]
    In this regard, it is clear that the transitional provisions are calculated to deal with the position of such offenders as from the date of the commencement and therefore and subject to any provision of the YJA which might apply to the contrary, the concern is not with what has happened retrospectively but rather as to how the offender is to be dealt with from the commencement. Accordingly and whilst in s 387, the reference to “if a proceeding against the person for the offence had not been started before the commencement”, might literally be capable of reference to any past such proceeding that had been started and even completed before the commencement, not only was this not a contention raised by the prosecution in this matter, but the prospective intended ambit of the provisions is also an indication against such a literal reading.

35. [35]
    As to the rights intended to be afforded to such offenders as from the commencement, any 17 year old charged on or after 12 February 2018, would necessarily be afforded all of the rights of a child dealt with pursuant to the YJA. As to any such offender who has since turned 18 and is then an adult at law, the definition of “child offence” in s 132 is engaged and s 134 applies so that “subject to this division, the offender must be treated as a child for the purposes of this Act”. Reference has already been made to the provisions of Sub-Division 4 and which set out “circumstances affecting whether [an] offender is treated as an adult or child”,^[30]including some particular limitations as to the general effect of s 134, and which require notation:

36. [36]
    Whilst it is clear that the limitations and exceptions are largely predicated upon the defendant turning 19,^[31]it is particularly by s 140(2) that the application of the Youth Justice Act is preserved in the case of any child offender, after their 18^th birthday. Otherwise and subject to the application of s 140(4), s 140(1) requires that a proceeding started against a person who has turned 19 “must be taken as if the offender were an adult at the time of the commission of the child offence”. And even where s 140(2) does apply, it is only when there has been no finding as to guilt before the offender turns 19 and if necessary to do so, that person is to be sentenced as an adult.^[32]

37. [37]
    Accordingly it may be seen that s 140(1) and s 140(2) beg the same essential question, in the sense that a proceeding started on indictment may be just as much caught by s 140(1), with s 140(2) then capable of application to indictment presented in the Childrens Court against child offenders, before they turn 19.

38. [38]
    Once again some conflicting indicia may be observed in the immediate context to these provisions. For instance, s 143 is applicable to “a proceeding arising out of” a childhood sentence order or a sentence order made against a person as a child. Not only is there an apparent reference to a separate proceeding, notwithstanding the connection to the earlier order, but also the discretion to then deal with the offender as an adult is engaged once such an offender turns 19 and notwithstanding the general effect of s 142. There are also references in s 142(2) to “other proceedings and orders arising out of the order”. Such proceedings are ones which are necessarily connected to any earlier proceedings in which the relevant order is made. However, there may be more difficulty in approaching s 140(4) upon the basis of applicability to delay in presentation of an indictment. Leaving aside the presentation of an exofficio indictment, an indictment presented in accordance with s 560(1) of the Criminal Code, must be presented within six months of the date of committal.^[33]

39. [39]
    Accordingly, and on the basis that the more likely intended application of s 140(4) is in respect of delay in the starting of a prosecution by the charging of an offender and this would tend to support an interpretation of s 140(2) upon the same basis. And it may be noted that notwithstanding some criticism of the utility of the antecedent equivalent provision and without explicit reference to the issue, the determination in R v Knight^[34]proceeded upon that assumption.

40. [40]
    Notwithstanding the apparent difficulties that have been noted in not recognising the presentation of an indictment as starting a separate proceeding, it may be that this is a sufficient indication of a legislative intention in the YJA to adopt a different approach. Such a conclusion may also be seen as consistent with the objectives of the YJA, as set out in s 2 and s 3 in adoption of the charter of youth justice principles in Schedule 1.^[35]And to be the preferable one when it is understood that because of the application of s 140(2) to a proceeding that has started against a child offender “in the way provided in this Act for a child”, adopting a contrary view of s 387 as being applicable to the current circumstances, would not engage that provision. And whilst this is a matter that might be amenable to the transitional regulation anticipated pursuant to s 388, it is to be noted that in contrast to s 387, it is s 390 which specifically contemplates such a transitional regulation:

“To provide for the person to be treated as a child in relation to the offence and for that purpose provide for the application of this Act or another Act to the person.”

41. [41]
    Therefore, the preferable view in these circumstances is that the legislative intention is that s 387 of the YJA does not apply in the current circumstances and that the defendant’s position is caught by s 390, as a “current proceeding”.

The effect of the 2018 Transitional Regulation

42. [42]
    That conclusion brings sharply into focus the effect of the 2018 Transitional Regulation. And irrespectively of the view formed as to the application of s 387 and at least in respect of “current matters”, where an indictment was presented prior to 12 February 2018 and the 17 year old offender has turned 18 before that date, there remains a question as to the purported effect of s 5 of the 2018 Transitional Regulation, to exclude such an offender from the beneficial effect of the change of the upper age limit for child offending, in respect of a matter that is yet to be finally dealt with by a court.

43. [43]
    In this regard, it is necessary to understand that this is despite the clear legislative intent in s 387 to give such benefits to any 17 year old offender, in respect of such an offence committed prior to 12 February 2018 and who may turn 18 after that date. Even after such a person turns 19, there remains the benefit of application of s 144. The obvious question that arises is as to why such a necessarily older 17 year old offender should have these and any other benefits under the YJA, and not those caught by s 390.

44. [44]
    As a starting point, it may be observed that, on any view, the effect of s 387 is a powerful indication of a legislative intention that the change as to the upper age limit for child offending was to apply to all 17 year old offenders not yet sentenced. And despite the fact that s 390 does not include an analogue of s 387(2), it is clear that there is nothing in s 390 that suggests otherwise. Whilst it is true, as was contended by the prosecution, that s 390(2) provides that “[a] transitional regulation may provide for the person to be treated as a child for the offence,” this appears to be expressed in a permissive sense and in the context of an expectation of the transitional regulation, permitted by s 388. Further, “the person” referred to in s 390(2) is “the person” referred to in s 390(1); being the person who has or is alleged to have been committed an offence when the person was 17 years old.

It may immediately be further noted that s 390(1) stands in stark contrast to s 389(1) and as not including the express limitation or exclusion that “the person is still 17 years old on the commencement”.^[36]Yet, that is the very exclusion or limitation which appears in s 5 of the 2018 Transitional Regulation and as applicable to all “current proceedings”. Also and inexplicably, having regard to the purport of s 5 to restrict the application of all of Part 2 of the 2008 Transitional Regulation, the same limitation is repeated in s 11(3)(b) and s 12(3)(b) of the 2018 Transitional Regulation.

45. [45]
    The limitation or exclusion expressed in s 389(1)(b) is entirely understandable. That is because that provision is directed at dealing with offenders who have been dealt with and sentenced prior to 12 February 2018. In that regard, there is a clear and understandable legislative policy and intention not to extend the transitional provision which might otherwise allow the movement of 17 year old offenders out of the correctional system applicable to adults, but to restrict the application of such a benefit, from application to any such 17 year old offender who has turned 18 prior to the commencement and therefore who would at that point in time be still regarded as an adult under the law as it was changed.

46. [46]
    Accordingly, the effective submission made for the defendant should be accepted. That is, that s 390(2) is directed at permitting regulation as to how, rather than whether, the 17 year old offender is to be treated as a child in relation to the offence. The difference in wording in s 390(2) “to be treated as a child” rather than “is taken to have committed the offence as a child” is reflective of s 390 being applicable to a “current proceeding”, rather than a proceeding to be started after the commencement date. It may be noted that the provisions of s 390(3) are entirely consistent with such an approach. And it may be noted that the words which have been noted above in s 390(2), and upon which the prosecution place emphasis, are immediately qualified by the words that follow:

“… and for that purpose, provide for the application of this Act or another Act to the person;”

47. [47]
    In addition, that sense of providing for the application of the YJA to all “current proceedings” in respect of 17 year old offenders, is also confirmed by s 390(4), which provides a court which is seized of a “current proceeding” with power to:

“make an order or give directions it considers necessary to facilitate the application of this Act or another Act to the person under the transitional regulation.”

Once again, it is expressly provided that such an application may be made by “the person”, being the reference in s 390(1) to the 17 year old who has or is alleged to have committed an offence “if there is a current proceeding for the offence”.

48. [48]
    However, it is unnecessary to determine whether or not s 390(4) itself provides a power to override the effect of the regulation. That is because it is well recognised that delegated legislation which is found to be inconsistent with the enabling legislation may be found to be invalid.^[37]The generality of the expression of the regulation making power is not a reason for an inability to so conclude. And in Edwards v Olsen,^[38]it was observed:

“It is trite to say that, if a regulation is to be valid it must fall within the regulation – making power conferred by the specific statute and it must be reasonably proportionate to the end to be achieved, as envisaged by that power (South Australia v Tanner (1989) 166 CLR 161; see also other authorities adverted to in Lowrie v Minister for Primary Industries (1995) 180 LSJS 327).”

49. [49]
    In this instance and as has already been noted, despite the permission granted in s 390(2) of the YJA for regulation to “provide for the person to be treated as a child”, the express limitation “for that purpose”, is to “provide for the application of this Act or another Act to the person”.

50. [50]
    Whether the resort is justifiable upon the basis of ambiguity, or to avoid a manifestly absurd or unreasonable result, or in order to confirm what has been discerned in these reasons as to the legislative intent,^[39]reference to the explanatory notes for the Bill, which became the 2016 Amendment Act,^[40]is supportive of an understanding that there is a legislative intention, or purpose, of application to all 17 year old offenders. In that regard, it may be noted that:

51. [51]
    The more specific notations as to the introduction of s 387 and s 390, respectively, include:

52. [52]
    Despite any explicit reference, in the explanatory notes, to the restriction of application expressed in s 389(1)(b), this remains as an express legislative measure and a stark contrast to the provisions of s 390(1). Accordingly, it should be concluded that the Youth Justice (Transitional) Regulation 2018 is invalid to the extent that it purports to exclude some 17 year old offenders from the application of s 390 of the YJA to their “current proceedings”. In particular, it is concluded that s 5 and s 11(3)(b) and s 12(3)(b) of that regulation are invalid.

53. [53]
    Further and in the light of the discussion, above, of the provisions of Part 6, Division 11 of the YJA, it might be observed that any revision of this Regulation might usefully occur by considering the extent to which regulations are required in order to engage those provisions and also to appropriately engage with s 129 and s 130 of the YJA.

Conclusion

54. [54]
    Consequently and subject to further hearing the parties, it will be necessary to make orders and give directions, as to the further conduct of this matter pursuant to the YJA.