R v BZZ & AZY; Ex parte Attorney-General (Qld)

In these Attorney-General’s appeals against sentence, the Attorney-General contended that the sentencing judge had erred in his interpretation of s 176(3)(b) Youth Justice Act 1992 by failing to determine that several counts were particularly heinous offences; and further that the sentences imposed were manifestly inadequate because, inter alia, convictions were not recorded. In the court’s view, the Attorney-General had failed to establish any error which would require it to consider whether the residual discretion as to whether any different sentence should be imposed ought be exercised.

Flanagan JA, Burns J, Cooper J

3 June 2025

The respondents had both pleaded guilty to 7 counts, comprising burglary and stealing whilst armed, unlawfully using a motor vehicle and malicious acts with intent. The second respondent pleaded to two additional counts. [1]. They were aged 15 years and 10 months of age and 15 years and 8 months of age respectively at the time of the offending. [4]. The offending had a devastating impact upon numerous individuals. [13].

Pursuant to s 669A Criminal Code 1899, the Attorney-General appealed against the sentences imposed on the respondents only in relation to Counts 4, 5, 6 and 7, all of which were malicious acts with intent. [7]. One of the grounds of appeal was that the sentencing judge’s failure to determine that Count 4 (in relation to one respondent), and Counts 6 and 7 (in relation to both respondents), were particularly heinous offences within the meaning of s 176(3)(b) Youth Justice Act 1992 was in error. The Attorney-General contended that the sentencing judge should have taken the commission of each of the other offences of which the respondents had been convicted into account. [43]. It was submitted that “[t]o properly understand the gravity of the offending, and the moral culpability of the respondents, it was necessary that regard be had to the conduct that [preceded], and followed, each offence as they had a material bearing on both considerations.” [43].

In addition, the Attorney-General submitted that convictions should have been recorded for Counts 4 to 7, and she challenged the “well established [principle] that the prima facie position under provisions such as ss 183 and 184 of the [Youth Justice Act] is that a conviction is not to be recorded against a child”. [93].

In dismissing the appeals and finding that the Attorney-General had failed to establish any error, the court held:

1.The notion that reasonable minds might differ in determining the appropriate sentence does not justify appellate intervention: see R v Lewis; Ex parte Attorney-General [2022] QCA 14. [35].

2.That the sentencing judge had not erred in construing s 176(3)(b) Youth Justice Act 1992. Pursuant to that provision, it is “the offence” which is considered: the act or omission which renders an offender liable to criminal sanction. The court is to undertake a consideration of whether a particular offence is particularly heinous having regard to all the circumstances. In the current matter the sentencing judge correctly gave separate consideration to each of Counts 4 to 7 for the purposes of applying s 176(3)(b)(ii). [45].

3.A scenario in which one were to consider the acts constituting the offending for the other offences in determining whether one offence was particularly heinous would result in the particulars of the other offences directly informing and affecting the determination of the maximum penalty for a separate offence. The determination of what maximum penalty applies to the commission of any particular offence has a direct effect on the exercise of the sentencing discretion. In the event the acts or omissions constituting other offending were able to be taken into consideration in determining the maximum penalty for another offence, the principle identified in R v De Simoni (1981) 147 CLR 383, 389 would potentially be offended. Albeit taking the acts or omissions of the other offences into account for the purposes of s 176(3)(b)(ii) would not result in the respondents being punished for an offence for which they were not convicted, it could result in the maximum sentence for a particular offence being increased. [46]–[49].

4.Accepting the Attorney-General’s submission would enable a court to have regard to a range of individual offences which were not commonly considered to be of a particularly heinous character, and by so doing, deem one offence particularly heinous or the group of offences particularly heinous offending. The Attorney-General’s approach would have the consequence of increasing the maximum penalty for one offence as a result of the commission of other offences, which would be incompatible with the plain language of s 176(3). [50].

5.Section 176(3)(b) requires consideration of “all of the circumstances” of an offence in determining whether it was particularly heinous. “All of the circumstances” comprises the nature and seriousness of the offence itself, and personal factors specific to the defendant. This will ordinarily also include the fact that a particular offence occurred within a group of other offences. [51].

6.While context is relevant, and the offending must not be considered in a vacuum, as noted by the sentencing judge, there is no requirement to assess heinousness “by reference to all the conduct globally”. [64].

7.It is a longstanding sentencing principle that a conviction is not to be recorded against a child who is found guilty of an offence, unless the sentencing judge is positively satisfied that a conviction should be recorded. This proposition is supported by an established line of existing Court of Appeal authority. It is not the case that obiter observations of Bond JA in R v DCD; Ex parte Attorney-General [2024] QCA 91, [93], which were relied upon by the Attorney-General, demonstrate that this line of authorities is plainly wrong. [105]–[106].

Disposition

The appeals were dismissed.

A Jarro