R v SDK

The issue arising for the court on this application for leave to appeal against sentence was whether, in making an order permitting the publication of identifying information about the child applicant under s 234 of the Youth Justice Act 1992, the sentencing judge had erred.

Fraser and Philippides and McMurdo JJA

4 December 2020

The background, whilst unsettling, was relevant to the findings made by the sentencing judge. The applicant was aged 17 when the offence was committed. He attacked a 12 year old school girl, striking her several times on her face with a box cutter, resulting in significant scarring. [5]. From the date of his arrest until the time of sentence, he was subject to a treatment authority under the Mental Health Act 2016. [8]. In view of the circumstances, the learned trial judge deemed the offence a “particularly heinous offence” under s 176(3) of the Act. [15]. That provision enabled the court to impose a penalty of up to and including a term of detention for life however his Honour imposed a term of four years’ detention, ordering that the appellant serve 60 per cent prior to his release. [3].

The only aspect of sentencing in issue was whether his Honour had erred in deciding to allow publication of identifying information about the appellant pursuant to s 234 of the Act on the basis that it would be in the interests of justice. Section 234(2) permits a court to allow “publication, having regard to—

(a)   the need to protect the community; and

(b)   the safety or wellbeing of a person other than the child; and

(c)   the impact of publication on the child’s rehabilitation; and

(d)   any other relevant matter.”

In addressing the application of s 234, the Court had difficulty accepting the premise that the provision could apply since this was a case where the Court “[made] an order against a child under section 176(3)(b)”. That was because technically s 234(1) is only applicable if an order is made under s 176(3)(b), “rather than where, in fact, the offence involves the commission of violence and it is considered to be a particularly heinous offence”. [18]. The court observed that the power under s 234(2) is only to exercised in very serious cases -– those involving a life offence characterised by the commission of violence against a person which was particularly heinous in all the circumstances. In addition, the court needs to be satisfied that notwithstanding the impact of publication on the child’s rehabilitation, countervailing considerations exist which justify the order being made. [19].

In the Court’s view, the sentencing judge erred in finding that the offence was a particularly heinous offence when he did not intend to sentence to more than 10 years detention and thus had no power under s 234 to make the publication order. As McMurdo JA explained, “[i]n a case where there was no prospect, either on an objective analysis or in the judge’s mind, of the sentence exceeding 10 years, there was no occasion for the Court to consider whether this was a particularly heinous offence having regard to all the circumstances”. [39]. In that regard, the Court noted that during the sentencing hearing there was no indication that his Honour had any reservations about counsel’s submissions that the sentence ought be either “no less than five years’ detention”, or alternatively of three to four years’ duration. Further, he did not appear to address whether the relevant offence was a particularly heinous offence for the purpose of exercising a discretion to sentence the applicant to a term exceeding 10 years. [39]. Finally, the order imposed by his Honour was a product of “extraordinary mitigating factors” and the nature of the offence was plainly not regarded as of such a severity so as to warrant a sentence of more than six years. [41].

In any event, in the Court’s view this was simply not a particularly heinous offence. Such a classification necessitates a qualitative judgment having regard to the context of s 176. [36]. The reality was at no juncture did his Honour contemplate that the head sentence in this case ought to exceed 10 years. [38]. Accordingly, the Court held that the finding under s 176(3)(b) had not been made for a proper purpose, and was not reasonably open, consistently with the appropriate sentence being in the range of four to five years. [42]. 

The outcome was that the appeal was allowed and the order set aside.

A de Jersey