R v PZW

In this decision, Davis J considered whether the murder offence committed by the defendant, who was a juvenile at the time of the offending, was “particularly heinous” according to the correct construction of s 176 Youth Justice Act 1992. His Honour also made general observations about the principles applicable to sentencing child offenders for very serious offending.

Davis J

28 February 2025

The defendant pleaded guilty to one count of murder and one count of arson. [1]. Since the offences had been committed when he was 16 years old, [4], he faced a maximum of 10 years’ imprisonment unless the murder offence was considered “particularly heinous” having regard to all the circumstances. A declaration that the offence was “particularly heinous” would increase the maximum penalty to life imprisonment under the provisions of the Youth Justice Act 1992. [27].

Whether a finding of “particular heinousness” in relation to the murder count was appropriate depended upon the proper construction of s 176 Youth Justice Act 1992.

The legislation

By s 176 as it stood at the relevant time, the maximum penalty was limited to 10 years unless the two conditions in s 176(3) were fulfilled. Section 176 provided, relevantly:

“176 Sentence orders—life and other significant offences

(1)If a child is found guilty of a relevant offence before a court presided over by a judge (the court), the court, may—

…

(3)For a relevant offence that is a life offence, the court may order that the child be detained for—

(a)a period not more than 10 years; or

(b)a period up to and including the maximum of life, if—

(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 … ”

What was the appropriate sentence having regard to how s 176 affects the court’s approach and assessment of the sentence?

His Honour noted that s 176 had two possible constructions. [33].

First, the 10 years’ detention which can be imposed in the absence of a finding that the offence was “particularly heinous” could be read as being a maximum sentence as that term is generally understood. It would follow that the benchmark for the most serious category of offences is 10 years, with the range being from nought to 10.  In the event a finding is made that the offence is particularly heinous, that range increases to between nought and life detention. [33].

Alternatively, the second possible construction is that the 10 years prescribed by s 176 is not a “maximum” per se but rather represents the limit of the court’s power, regardless of what the court otherwise determines is the appropriate sentence. That is, the court determines a sentence (bearing in mind the maximum of life imprisonment). If the sentence is less than 10 years, then questions of the offence being particularly heinous will not occur.  If a sentence of more than 10 years is imposed without a finding that the offence is particularly heinous, the sentence remains of 10 years’ duration.  If there is such a finding, then the court has the power to impose the sentence calculated, which is one over 10 years. [34].

Applying the approach to construction adopted in R v A2 (2019) 269 CLR 507, his Honour preferred the first construction, noting that the distinction between both possible constructions has practical significance.  If the second construction were preferred, “10 years’ detention may be imposed for a sentence which is not ‘particularly heinous’, even though the offence may not fall into the worst category of those offences which are not judged to be ‘particularly heinous’.  Sentences for offences which are not ‘particularly heinous’ will generally be higher on Construction 2 than Construction 1 …”. [35]. He noted that whilst in R v Gwilliams [1997] QCA 389 and R v Carroll [1995] QCA 399, the Court of Appeal acted consistently with the second possible construction, in the more recent matter of R v YTZ; Ex parte Attorney-General [2023] QCA 87, the Court adopted the first construction. [41], [45].

Ultimately, his Honour’s concluded construction 1 ought be adopted, noting the undesirable result which would arise if construction 2 was preferred, namely that all offenders whose offences were not particularly heinous but may but for the statutory limit of 10 years contained in s 176 have been sentenced beyond 10 years would be sentenced to the same sentence of 10 years, regardless of their individual culpability. [49].

Disposition

In assessing whether a finding of particular heinousness in relation to the murder count was appropriate it was necessary for his Honour to assess the defendant’s degree of involvement in the commission of the offence together with its seriousness. [56]. He sentenced the defendant as follows:

(1)Count 1, murder: 12 years’ detention.

(2)Count 2, wilfully and unlawfully set fire to a building: 7 years’ detention.

Both periods of detention were ordered to be served concurrently. The court ordered that the defendant be released after serving 60 per cent of the sentences imposed and that convictions be recorded on both counts.

A Jarro