R v Eric (a pseudonym); Ex parte Attorney-General (Qld)

The respondent had been sentenced to a period of detention of five months to be followed by a period of 12 months’ probation, with no conviction recorded, for the offence of doing grievous bodily harm. The respondent’s attack on the victim was pre-meditated, brutal and unprovoked. At 17 years old the respondent was on the “cusp of adulthood” at the time of the offending. The Court of Appeal (Sofronoff P and McMurdo JA and Boddice J) held that the sentence of five months’ detention was the result of an approach to sentencing forbidden by the High Court in Barbaro v the Queen (2014) 253 CLR 58 and resentenced the respondent to two years’ detention, with the respondent to serve 12 months of that period. A conviction was also recorded.

Sofronoff P and McMurdo JA and Boddice J

30 April 2021

On 1 December 2020, the respondent was sentenced to a period of detention of five months to be followed by a period of 12 months’ probation commencing after his release. No conviction was recorded. The Attorney-General appealed against that sentence on the ground that the sentence was so manifestly inadequate that it must be taken that the sentencing discretion miscarried. [1].

Background

The respondent, accompanied by a group of friends, attacked the complainant, Mr Ali, who was drinking beer and listening to music in a car park. The respondent had been told that a friend of the complainant, Mr Hennessy, had sexually assaulted a young woman.

Mr Ali was 21 years old. [3]. Mr Ali did not know any of the people in the respondent’s group of friends, nor did the respondent or his friends know Mr Ali. [2].

The respondent, who was holding a metal pole which he had brought with him, struck Mr Ali on the head. Mr Ali fell unconscious to the ground. [2].

Mr Ali suffered a fractured skull as well as external and internal bleeding. [3]. As a result of his injuries, Mr Ali must be assisted with cooking, cleaning, laundry, finances and managing his own health. His driving licence was suspended and he is now unemployed. He is also frightened of falling and is unwilling to leave the house because he is worried that he might be injured again. [4], [5]. President Sofronoff observed that “the respondent’s unprovoked bashing of Mr Ali has wrecked his life”. [6].

Sentencing Judge

In determining the sentence, the sentencing judge held that three years was the appropriate starting point. His Honour then reduced the sentence to two years because the respondent had obtained a restorative justice referral and by a further six months to “give effect to the principle that I have to sentence you to the least appropriate time”. [12].

Having arrived at a notional sentence of 18 months’ detention with a release after serving 50 per cent of that period, his Honour held that in the circumstances it was appropriate for the respondent to serve actual custody, but that this should be “the minimum time allowed under the Act”, being five months, followed by a lengthy period of probation. [12].

Decision of the Court of Appeal

The Court of Appeal held that the learned sentencing judge had engaged in the process of reasoning forbidden by the High Court of Australia in Barbaro v The Queen (2014) 253 CLR 58, [34], namely that the sentencing judge reached the appropriate sentence through an exercise of addition and subtraction. [13], [16].

President Sofronoff (with whom McMurdo JA and Boddice J agreed) held that the learned sentencing judge erred in finding that the respondent was of a “young age”. Rather, at aged 17 years and one month old, the respondent was “on the cusp of adulthood”. [20].

President Sofronoff noted that there were important mitigating factors in the respondent’s favour, including “his prompt return to the path of decency”, his insight into his offending and willingness to engage in the restorative justice process. [21].

With respect to sentencing under the Youth Justice Act 1992, Sofronoff P observed the following:

• the Act does not require the objective seriousness of an offence committed by a child to be minimised;
• the Act requires that the nature and seriousness of the offence and any impact of the offence upon the victim to be taken into account;
• the nature of the sentence should reflect the seriousness of the injury;
• the Act provides for a more lenient approach to the sentencing of children than for sentencing adults under the Penalties and Sentences Act 1992;
• in an appropriate case, a child may be required to serve a lengthy period of detention;
• the maintenance of public confidence in the system may require a child to serve a lengthy period of detention even where the need for personal deterrence is very low;
• in the worst kind of cases, a child may be sentenced to detention for life;
• it is an inevitable feature of the Act that in some circumstances, an offender will be transferred from detention to an adult prison during their sentence; and
• in appropriate circumstances, that the offender will be transferred to an adult prison may be taken into account as a mitigating factor in sentencing. [21], [23], [26].

Ultimately, Sofronoff P held that a sentence of five months’ detention was inadequate having regard to the nature of the offence, its objective circumstances and the effect upon the victim. [25]. Such a sentence did not give proper weight to the offence being a pre-meditated violent attack that was unprovoked and caused permanent and severe injuries. [24], [25].

His Honour held that the respondent should have been sentenced to a period of two years’ detention. Taking into his account his previous good character and the optimism for his future, he was required to serve 12 months before being released. [26].

A Hughes of Counsel