R v SEG

This is the first occasion on which the Court of Appeal has considered the effect of the regime for serious repeat offenders by way of amendments to the Youth Justice Act 1992. The applicant, aged 17 at sentencing, was declared to be a Serious Repeat Offender following his plea of guilty to numerous offences, and was sentenced to eighteen months detention, with convictions being recorded for three of the most serious offences. He unsuccessfully sought leave to appeal. The Court did not accept that the formation of the s 150A(2)(d) evaluative judgment miscarried; that the sentencing judge had failed to explain the sentence, or more specifically, the making of the Serious Repeat Offender declaration; or that any error whatsoever had been demonstrated in the sentencing process.

Morrison and Bond JJA and Brown J

28 May 2024

The applicant contended that three specific errors had been made by the sentencing judge, namely:

(a)making a Serious Repeat Offender declaration (“SRO”) pursuant to s 150A Youth Justice Act 1992 (“the YJA”);

(b)failing to explain the sentence to him pursuant to s 158 of the YJA, specifically the effect of the making of the SRO; and

(c)finding that the applicant lacked an appreciation of the wrongness of his offending. [2].

He also argued that the term was manifestly excessive. [3].

Did the sentencing judge’s formation of the evaluative judgment referred to in s 150A(2)(d) of the YJA miscarry?

The Court observed that s 150A(2)(d) requires that a high threshold is met before the court could determine that it should make the SRO. [34]. The task for the sentencing judge under s 150A(2)(d) is not to determine whether an objective fact presently exists, but rather to gauge the likelihood of something occurring in the future. Correctly characterised the precondition is an exercise of power to determine the existence of what has been described as a subjective jurisdictional fact. It follows that in order to challenge the existence of that subjective jurisdictional fact, the party which argues that an error has occurred needs to demonstrate that the required state of mind did not exist because it was not reached by the primary judge in a manner which was contemplated by the legislature: see S.H.A. Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd [2020] QSC 307, [32]. The use of a subjective jurisdictional fact means that the review of the decision-maker’s state of mind is necessarily limited, having regard to the number of valid pathways that may be used to reach the required state of mind and the various opinions that may be available. [37].

The applicant sought to argue that the sentencing judge had failed to consider the requirement in s 150A(2)(d) to the requisite level, [32], and had failed to provide sufficient reasons for making the finding that there was a “high probability” that he would commit a further prescribed indictable offence. [31]. The term “high probability” is not defined in the Act.

The Court did not agree that these aspects of the sentencing judge’s decision were tainted by error. It clarified as follows:

1.Before making a declaration, the Court must be satisfied of the preconditions contained in s 150A(2) of the Act. It is apparent upon reading the section as a whole that the matters in ss 150A(2)(b) and 150A(2)(c) are of particular relevance in informing the court as to whether it can be satisfied that there is a high probability the child would commit a further prescribed indictable offence as per s 150A(2)(d). [45]–[46].

2.With respect to the wording of the subsection it would appear to follow that “satisfied” should be read conjunctively with the requirement that there is a high probability of the event occurring. [47].

3.The fact that “higher probability” aligns with the degree of satisfaction is bolstered by the phrase “satisfied that there is a high probability” which connects the level of satisfaction with “a high probability”, notwithstanding the court is called to be satisfied as to a child’s prospective behaviour. [48].

4.When using the phrase “high probability”, it is presumed that the legislature had reference to the background of the civil and criminal standard. The higher level of satisfaction accords with the fact that the provisions only apply to repeat offenders and that the consequence of the making of a declaration is a potentially heavier sentence, given the realignment of considerations, than would otherwise be imposed. [48].

In the present matter it was apparent that:

1.the preconditions in ss 150A(1), 150A(2)(a) and 150A(2)(b)(i) had been satisfied;

2.the statutory criteria before the court could exercise its discretion as to whether a declaration should be made had been met;

3.the applicant’s efforts at rehabilitation, whilst meagre, had been taken into account by the sentencing judge. [51].

In addition and critically, it was clear that his Honour had due regard to a comprehensive range of considerations when evaluating s 150A(2)(d) in the terms identified by the applicant, including but not limited to his limited remorse for his offending; the “cycle of dysfunction and upheaval that gives rise to the difficulties” he experiences; and his unenviable criminal history. [52].

In the Court’s view:

“In making the declaration, it is clear that his Honour was well aware of the effect of the declaration and its consequences, accurately summarising the matters to which the court had to have primary regard in sentencing upon the making of the declaration”. [53]–[54].

Had the sentencing judge erred in not identifying the prescribed indictable offence?

The applicant submitted that the sentencing judge had erred because he had not identified any specific prescribed indictable offence “for which he was satisfied that there was a ‘high probability’ of occurring in the future”. [20], [32]. The Court did not agree, and it clarified that all that is required is that the court be satisfied that there is a high probability that the child would commit “a” further prescribed indictable offence. [60].

Had the fact that the sentencing judge failed to explain to the offender the effect of the serious repeat offender declaration in the context of any subsequent offending and any sentence that would be imposed in relation to subsequent offending invalidated the sentence?

Notwithstanding that the sentencing judge had explained the consequence of making the SRO in terms of its effect on the sentence to be imposed upon the applicant, the applicant contended that the sentencing judge had failed to comply with s 158 of the YJA as his Honour had not explained the effect of the SRO under s 150B of the YJA in relation to any subsequent offending and any sentence that would be imposed in relation to subsequent offending. [61].

The Court did not accept that that omission rendered the sentence invalid, specifically noting:

“In any event, the making of the declaration would not appear to be part of the sentencing to which s 158 applies. That is supported by the fact that there is a separate provision in s 150A(4) of the YJA providing for the explanation of the reasons for making the declaration. That was complied with by his Honour in the reasons provided at the time of sentencing”. [68].

Was the sentence manifestly excessive?

The Court held that whilst the sentence imposed was at the most serious end of sentencing for a youth offender, it was open on the facts and was not unjust. The sentencing judge had thoroughly considered all relevant matters, options and mitigating factors prior to imposing the sentence. [86].

In dispensing with the matter the Court stressed that despite the recent amendments contained in ss 150A and 150B of the YJA, it still remains the paramount principle that detention should only be imposed as a last resort. [87].

Disposition

The application for leave to appeal was dismissed.

A Jarro