R v BZZ & AZY

This case considered how to determine what is “a particular heinous offence in all the circumstances” within the meaning of s 176(3)(b) Youth Justice Act 1992. Two youths were sentenced for their part in burglaries, during which the occupants were violently injured. Davis J rejected the Crown’s submission that “all the circumstances” included the occurrence of other offences committed in the episode of conduct and the particulars of those offences. Davis J held that the wording of the provision and case authorities support the conclusion that “all the circumstances” refers to the factual circumstances for each offence which are ordinarily taken into account under the sentencing principles, including any mitigating circumstances. His Honour found it would be inappropriate to consider matters which could be, but were not, charged as aggravating features of the offending in determining whether the offending was “particularly heinous”.

Davis J

27 June 2024 (Ex tempore)

Summary of offences

The two juvenile defendants pleaded guilty to offences relating to burglaries they committed together, which included violent assaults on the occupants of the houses. The defendants were each aged almost 16-years-old at the time of the offences. [5].

The offending occurred over two episodes on the same night. The first (counts 1 and 2) involved breaking into a house and stealing car keys, which were used to make off with a vehicle. [9]–[13]. The owner of the car suffered some bruising and scratches, having run along beside the car as it was driven away. [13]–[14].

In the second episode (remaining counts), the juveniles broke into a house at Coorparoo around 3:00 am, occupied by two parents, Mr and Mrs Kefu, and their five children aged 13 to 21 years. [15], [19]. The purpose was to steal another car. [17]. BZZ was armed with a sickle and AZY was armed with a knife. [18]. Davis J described this offending as “truly horrific events”. [15]. His Honour found, in sentencing the defendants, that they realized the possibility of confronting occupants in the house and had planned to overcome resistance by using weapons. [20]–[21], [30].

During the second episode, BZZ struck Mrs Kefu with a sickle, penetrating to the outer part of the bone in her arm and leaving her with residual disabilities (count 4). [32]. Mr Kefu was also stabbed by BZZ and AZY in the chest and back (count 5). [33]–[36]. One of the couple’s sons was also attacked, with a 10cm deep and 20cm long laceration to his shoulder, and other wounds to his upper back and right arm (count 6). [39]. One of the children who was trying to leave was cut across the hand, damaging muscles, cartilage and bone (count 7). [40]. A neighbour was also assaulted. [43].

BZZ pleaded guilty to seven counts: (1) burglary and stealing, (2) unlawful use of a motor vehicle to facilitate the commission of an indictable offence, (3) burglary by breaking in the night while armed and in company, and (4-7) four counts of malicious acts with intent. [1].

AZY, a co-accused, pleaded guilty to the same seven counts as BZZ, in addition to one count of assault occasioning bodily harm whilst armed and one count of contravening an order made about device information from a digital device. [3].

Notably, the malicious acts with intent (namely wounding and grievous bodily harm) had been charged as attempted murder. [4]. However, the Crown accepted the pleas of guilty to the alternative charge of malicious acts with intent in discharge of the original charge. [4].

Nature of offending – meaning of “particularly heinous”

Sections 176(3)(b)(i) and (ii) of the Youth Justice Act 1992 allow, in prescribed circumstances, a maximum sentence of 10 years imprisonment to be increased to life imprisonment. [51]–[53]. The sections require two conditions to be met:

(i)“the offence involves the commission of violence against a person”; and

(ii)“the Court considers the offence to be a particularly heinous offence having regard to all the circumstances”. [53].

The Crown submitted that “having regard to all the circumstances” for an offence, under ss 176(3)(b)(ii), encompassed having regard to the commission of each of the other offences and the particulars of those offences. [62].

Davis J rejected that submission. [63], [84]. The wording of s 176(3)(b) does not contemplate consideration of a series of offences or offending generally. [63]. Nor is there anything in s 150 Youth Justice Act 1992, regarding principles of sentencing children, to suggest that ‘particularly heinous’ is to be assessed by reference to “all the conduct globally”. [75]. His Honour also cited R v D [2000] 2 Qd R 659, the Court held in sentencing a child for murder, regard could not be had to the child’s subsequent interference with the deceased’s corpse. [65].

The only authorities available on the meaning of “all the circumstances” in s 176 considered subjective mitigating circumstances. [64]. The authorities “established … that the determination of whether an offence is or is not ‘particularly heinous’ requires an assessment of the offending by reference to the relevant sentencing principles and considerations”. [70]. Like the ordinary principle preventing the increase of the sentence for an offence merely due to the commission of separate offences, the circumstance of other offences cannot be taken into account “to elevate an offence to the status of ‘particularly heinous’”. [74].

His Honour concluded, on this issue, that:

“The appropriate approach is to separately determine whether each of the five offences are ‘particularly heinous’ by reference to factors (“all the circumstances”) which are relevant as determined by the usual principles on the question of sentence. Those considerations include circumstances which explain the gravity of the offending, including that a particular offence is not an isolated one, but without taking into account the circumstances of the commission of the other offences which individually attract criminal sanction”. [75].

The circumstances must elevate the offending to a higher level of culpability than would ordinarily be attached to the offences. [80]. The conduct cannot simply be heinous, but must be “particularly heinous”. [80]–[81]. The specific conduct of each offender must be considered. [83].

In the present case, the circumstances common to all offences in the second episode of offending were:

(a)the offenders were in a group of four;

(b)they entered a dwelling at night;

(c)it was foreseen that the house may be occupied and resistance may be offered by the occupants;

(d)weapons were taken into the house to overcome resistance if necessary; and

(e)violence against innocent occupants was contemplated. [76].

His Honour noted that count 3, the burglary in the Kefus’ home, could have been charged with a circumstance of aggravation that there was actual or threatened violence, but was not. [85]. Rather, the violence that occurred was charged separately in counts 4-7. [86]. Davis J held it would be wrong to take into account, in sentencing on count 3, facts which could have been charged as a circumstance of aggravation but were not. [87].

In relation to counts 4 and 5, BZZ’s offending were found to be particularly heinous given the severity and lasting impact of injuries inflicted on Mrs Kefu, and the fact Mr Kefu was acting in self-defence against the two defendants. [90]–[91], [99]. That finding was not made in relation to AZY, who was a party to that offence, but not the one in possession of or use of the weapon.

Counts 6 and 7 was found not to be “particularly heinous” given the injury was less serious than those suffered by the parents, were not prolonged, and occurred during struggles rather than being a deliberate blow. [105]–[108], [112].

H Edwards of Counsel