SUPREME COURT OF QUEENSLAND

CITATION:	R v SDK [2020] QCA 269	
PARTIES:	R
v
SDK
(applicant)	
FILE NO/S:	CA No 70 of 2020
DC No 97 of 2019	
DIVISION:	Court of Appeal	
PROCEEDING:	Sentence Application	
ORIGINATING COURT:	Childrens Court at Beenleigh – Date of Sentence: 10 March 2020 (Chowdhury DCJ)	
DELIVERED ON:	4 December 2020	
DELIVERED AT:	Brisbane	
HEARING DATE:	31 July 2020	
JUDGES:	Fraser and Philippides and McMurdo JJA	
ORDERS:	1.	Grant leave to appeal.
2.	Allow the appeal.
3.	Set aside the order made by the sentencing judge, pursuant to s 234 of the Youth Justice Act 1992, that the publication of identifying information about the appellant be allowed.	
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – OTHER MATTERS – where the sentencing judge found that the offence was a “particularly heinous offence” under s 176(3) of the Youth Justice Act 1992 (Qld) (“the Act”) – where the sentencing judge made an order permitting the publication of identifying information about the applicant under s 234 of the Act – where a finding of a particularly heinous offence is made for the purpose of determining whether the period of detention of the child should be increased from a maximum of 10 years to life under s 176(3) of the Act – whether the sentencing judge erred in making that finding – whether the sentencing judge erred in making the order under s 234 of the Act
Youth Justice Act 1992 (Qld), s 176, s 234
R v Maygar; Ex parte Attorney-General (Qld); R v WT; Ex parte Attorney-General (Qld) [2007] QCA 310, applied
R v Rowlingson [2008] QCA 395, considered
R v SBU [2012] 1 Qd R 250; [2011] QCA 203, considered	
COUNSEL:	J Crawford for the applicant
N W Crane for the respondent	
SOLICITORS:	Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent	
[1]	FRASER JA:  I agree with the reasons for judgment of McMurdo JA and the orders proposed by his Honour.
[2]	PHILIPPIDES JA:  I agree with the orders proposed by McMurdo JA for the reasons given by his Honour.
[3]	McMURDO JA:  This is an application for leave to appeal against a sentence imposed in the Childrens Court, for an offence of intentionally doing grievous bodily harm.  The sentence imposed was four years’ detention, with release after 60 per cent of the term that had been served.  A period of 508 days was declared as pre-sentence custody, and a conviction was recorded.
[4]	There is no challenge to any of those orders.  What is challenged is a further order, made under s 234(2) of the Youth Justice Act 1992 (Qld) (“the Act”), permitting the publication of identifying information about the applicant.
[5]	The applicant was 17 years of age when he committed the offence.  The victim was a 12 year old school girl who was unknown to him.  By chance, she was walking past the applicant on her way to school when, without warning, he lunged at her and struck her several times to her face with a box cutter.  She suffered deep lacerations to her face and head, as well as defensive wounds to both hands.  She was taken to hospital, where she underwent extensive surgery lasting several hours, before being discharged the following day.  The surgery was successful but she will be left with significant scarring.
[6]	After this incident, the applicant returned to the house where he lived with his aunt, and spent most of the day in his bedroom.  He had left his mobile phone at the scene, and the applicant was identified when a friend called the phone and it was answered by police.  The friend contacted the applicant and the applicant told the friend what he had done.  Subsequently he told his aunt that he had stabbed someone.  He told her that he could not recall doing it, but that he had seen the event reported on television and had had flashbacks.  He insisted that she call the police, which she did.  Later that night, the applicant rang 000 from a payphone saying that his aunt had called police “about the girl” and that he had “stabbed that girl this morning”.  He then ended the call.  Soon afterwards, police located him walking along a street and he was taken to a police station where he declined to participate in an interview.
[7]	After his arrest, he was admitted to a hospital for a mental health assessment and treatment.  At the request of a nurse at the hospital, the applicant wrote down what he could remember about the incident.  He wrote: “I walked up and grabbed her and stabbed her in the face multiple times then she ran away screaming”.  On the following day, a psychiatrist asked the applicant about that note.  The applicant told her that he had been wandering around on the morning of the offence, having used ice the night before, when he saw the girl and attacked her.  When asked by the psychiatrist if he thought he would kill the girl, he replied with words and gestures to the effect of “I tried to get at her neck but she defended herself”.  When asked why he attacked the girl, the applicant said that his aim was to go to jail because he would be provided with regular food and it was safer there.
[8]	From the date of his arrest, continuing until the time of sentence, the applicant was subject to a treatment authority under the Mental Health Act 2016 (Qld).
[9]	In June 2019, the applicant was interviewed by a psychiatrist, Dr Beech, to report with specific reference to issues of soundness of mind and fitness for trial.  Dr Beech recorded that the applicant had been discharged from hospital, 12 days after he had been admitted following his arrest, and that the diagnosis at the time of his discharge was that he had undergone a brief substance-induced psychotic episode related to cannabis and methamphetamine use.  The hospital documentation also recorded that the psychotic symptoms had settled within days of his admission.  
[10]	Dr Beech expressed these opinions:
“In my opinion, at the [time] of the alleged offence it is most likely that [the applicant] was affected by cannabis and methamphetamine intoxication.  It is likely, I believe, that it heightened his general anxiety and paranoia, so that on the streets early in the morning, in an underpass, he was on edge and may have viewed people around him as threats.  He said that he was anxious about being attacked generally, and there is a vague allusion to someone specifically who might harm him.  It is possible, in an intoxicated state, that he acted on that worry when the girl approached him. … At the time of the alleged offence he had an unhappy, depressed mood that probably reflected his circumstances and possibly a major depressive disorder.  It would have been of moderate severity and he may have used drugs to manage it.  On its own, I do not think that this illness would have deprived him of any capacity that would have rendered him of unsound mind.  He certainly has a vulnerable at-risk mental state, and he remains at risk of developing a primary psychotic illness such as schizophrenia.  However, I do not think that this illness has yet emerged, and I do not think that at the time of the alleged offence he had it.
In my opinion, in the absence of intoxication, he would not have been deprived of any capacity that would have rendered him of unsound mind.  Indeed, very soon after, he appears to have made statements that he had done something bad or wrong.  Before the day had ended, he had attempted to hand himself in to police.  After that, he appears to have slowly recovered from the intoxication without ever showing convincing evidence of psychosis.
In my opinion [the applicant] is fit for trial.  He is generally reluctant to talk about the incident.  There may be several reasons for this: intoxication may have affected his recall; it is an upsetting incident of itself; he describes I believe some form of trauma-related symptoms.”
[11]	The applicant had no criminal history.  However he had had mental health issues for several years.  He had previously had thoughts of stabbing someone, and six years prior to this offence, a general practitioner had referred him to a Child and Youth Mental Health Service after the applicant had written “hate, fear, murder, suicide” on his wrist and had lit a fire at his school.  In 2017, he had been taken to a hospital by police and had said to nursing staff that he had an interest in serial killing.
The legislation
[12]	This was an offence under s 317(1) of the Criminal Code, which provides that a person who commits the offence is guilty of a crime and is liable to imprisonment for life.
[13]	However, that maximum sentence is modified by s 176 of the Act, which relevantly provides as follows:
“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—
(a)	order the child to be placed on probation for a period not longer than 3 years; or
(b)	make a detention order against the child under subsection (2) or (3).
(2)	For a relevant offence other than a life offence, the court may order the child to be detained for a period not more than 7 years.
(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.
(4)	A court may make an order for a child’s detention under subsection (2) or (3) with or without a conditional release order under section 220.
…
(10)	In this section—
“relevant offence” means a life offence, or an offence of a type that, if committed by an adult, would make the adult liable to imprisonment for 14 years or more, but does not include any of the following offences—
(a)	an offence of receiving if the value of the property, benefit or detriment is not more than $5,000;
(b)	an offence against the Criminal Code, section 419 or 421, if—
(i)	the offence involved stealing or an intent to steal, or an intent to destroy or damage property, or the damage or destruction of property; and
(ii)	the offender was not armed or pretending to be armed when the offence was committed; and
(iii)	the value of any property stolen, damaged or destroyed was not more than $1,000;
(c)	an offence that, if committed by an adult, may be dealt with summarily under the Drugs Misuse Act 1986, section 13.”
A “life offence” is defined to mean an offence for which a person sentenced as an adult would be liable to life imprisonment.
[14]	Consequently, this was a life offence, for which the maximum penalty was a period of 10 years’ detention, or a term of detention for life if the Court considered the offence to be a “particularly heinous offence having regard to all the circumstances.”
[15]	The judge considered this offence to be a particularly heinous offence.  However the period of detention which was imposed, being four years, was a sentence which could have been ordered without that finding.
[16]	Because the Court made an order under s 176, it was empowered to order that the conviction be recorded.  The considerations which were relevant to whether a conviction should be recorded are prescribed by s 184.  A court is to have regard to “all the circumstances of the case” which include the nature of the offence, the child’s age and any previous convictions and the impact the recording of a conviction will have on the child’s chances of rehabilitation generally or finding or retaining employment.  As I have noted, there is no challenge to the decision to record a conviction in this case.
[17]	The power which is in question in this case is conferred by s 234, which relevantly provides:
“234	Court may allow publication of identifying information about a child
(1)	This section applies if a court makes an order against a child under section 176(3)(b).
(2)	The court may order that identifying information about the child may be published if the court considers it would be in the interests of justice to allow the publication, having regard to—
(a)	the need to protect the community; and
(b)	the safety or wellbeing of a person other than the child; and
(c)	the impact of publication on the child’s rehabilitation; and
(d)	any other relevant matter.
(3)	The order does not authorise publication of identifying information before the end of any appeal period or, if the child gives notice of appeal or of application for leave to appeal, before any appeal proceeding has ended.”
[18]	It is common ground in the arguments that s 234 could apply, upon the basis that this was a case where the Court “[made] an order against a child under section 176(3)(b)”.  That premise is open to question.  If it was open to the judge to consider this to be a particularly heinous offence, the effect of s 176(3)(b) was to empower the Court to impose a penalty up to and including a term of detention for life.  However the order which was made, for a term of four years’ detention, was one which could have been made under the power conferred by s 176(3)(a), and it may be doubted that, in the terms of s 234(1), it was an order made under s 176(3)(b) simply because a finding, which was unnecessary for the order, was made.  Notably, s 234(1) makes the section applicable if an order is made under s 176(3)(b), rather than where, in fact, the offence involves the commission of violence and it is considered to be a particularly heinous offence.
[19]	It is evident that the power under s 234(2) is reserved for very serious cases.  Not only must there have been a life offence, which involved the commission of violence against a person and which was a particularly heinous offence in all the circumstances, but also the Court must be satisfied that notwithstanding the impact of publication on the child’s rehabilitation, there are countervailing considerations which warrant the order being made.
[20]	This power must be exercised according to the terms of s 234, and also in the context of the principles prescribed by s 150 of the Act, which place a particular sentencing importance on the rehabilitation of the offender which may not exist in the case of an adult offender.
The sentencing reasons
[21]	After an extensive discussion of the evidence, particularly the opinion of Dr Beech, his Honour turned to the questions under s 176 and s 234, saying:
“Under section 176 of the Youth Justice Act, for this offence [the maximum penalty] is 10 years’ imprisonment unless I consider the offence to be particularly heinous in which case the maximum penalty open is up to life imprisonment.
No one is seriously suggesting life imprisonment but there is a practical consequence if I make a finding that the offence was particularly heinous, then consideration needs to be made as to whether an exception should take place, that is, that your name be published.  The ordinary rule for sentencing children, to assist in their rehabilitation, is that identifying particulars are not published.  Certainly, the circumstances of the crime itself can be published.”
[22]	His Honour then discussed R v Maygar; Ex parte Attorney-General (Qld); R v WT; Ex parte Attorney-General (Qld), in which sentences imposed upon two offenders, one of whom was a child, were challenged by the Attorney-General.  His Honour quoted from the judgment of Keane JA, who said in that case:
“Section 176(3) of the Juvenile Justice Act is concerned with the extent of punishment to be imposed upon a child convicted of an offence. It is necessary to focus upon the nature of the offence of which the child has been found guilty for the purpose of determining whether the period of detention of the child should be increased from a maximum of 10 years to life. The provision expressly brings into focus all the circumstances of the offence, not merely those which serve to render the child responsible for the murder and liable to punishment. Attention must be paid to all the circumstances of the murder of which the child has been found guilty in order to determine whether the period of the child’s detention should be increased from a maximum of 10 years to life.”
(My emphasis.)
In that case, the juvenile offender, referred to as WT, was almost 17 years old at the time of the offences.  For the offence of murder, he was sentenced to 10 years’ detention with an order for release after serving five years.  The Court rejected the Attorney’s argument that the sentencing judge ought to have considered that the offence was particularly heinous, so as to increase the sentence to 12 years.
[23]	Returning to the present case, the sentencing judge discussed also this Court’s decision in R v D, before saying that he considered “that the particular circumstances of this case – an unprovoked sustained attack on a 12 year old girl simply going to school in a public place, causing the horrific injuries that it did – is particularly heinous in the circumstances …”.
[24]	His Honour then discussed what the appropriate penalty should be.  He noted the prosecutor’s submission that no less than five years’ detention should be ordered, and the submission by defence counsel that “the appropriate range” was three to four years’ imprisonment.
[25]	The judge observed that any sentence of detention had to be for the least appropriate time.  He discussed decisions of this Court which he considered to be comparable:  R v WAY; Ex parte Attorney-General (Qld), R v CAC, and a number of decisions of judges in the Childrens Court.
[26]	His Honour then returned to the circumstances of the applicant’s case.  He said that he was dealing with the applicant on the basis that the applicant had been suffering from some disorder of the mind as the result of his intake of cannabis and amphetamines, and possibly from the effects of a depressive disorder.  His Honour considered that there was some pre-meditation involved in the offence.  He observed that the consequences of the offending for the victim had to be kept in mind.
[27]	The judge considered that “overall and as an objective starting point”, a sentence of six years’ detention would have been appropriate.  However, he added, that to allow for the fact that the applicant was suffering from some impairment of his mind, as a result of the intoxication of the drugs and an underlying depressive disorder, that term would be reduced to five years’ imprisonment, before reducing the sentence to one of four years’ detention so as to impose the lowest appropriate sentence in the circumstances.  Having regard to a number of mitigating circumstances, namely the applicant’s early plea of guilty, lack of criminal history, dysfunctional upbringing, the extra-curial punishment which he had suffered in youth detention and his “substantial mental health issues”, the judge said that the applicant should be released after serving 60 per cent of his term.
[28]	His Honour then came to the question under s 234, which, he recorded, he had raised with counsel and upon which he had sought submissions.  He discussed two cases in this Court, R v Rowlingson and R v SBU, before giving these reasons for ordering that identifying information about the applicant might be published:
“My main concern in this area is the mental health history, in particular, of homicidal ideation and also the horrific nature of the attack being committed on a defenceless girl in public.
It is difficult to really predict the future. It is difficult for Supreme Court Judges who have to deal with dangerous prisoner applications. It is not something that was really the subject of Dr Beech’s report, given that he was considering, really, the question of unsoundness of mind and fitness for trial. But broadly, at page 17, paragraph 925, it was observed that [the applicant] has a vulnerable at risk mental state and remains at risk of developing a primary psychotic illness. And, of course, there is the concern concerning the use of drugs as well as the well-reported obsession with knives and guns and violence.
Really, the only issue I have to consider is whether there is a need to protect the community or the safety or wellbeing of a person other than the offender. It is a bit difficult for me to really make a firm conclusion on this. I cannot say that the rehabilitation of [the applicant] outweighs the other factors, and a major concern, of course, that I have expressed on a number of occasions is his complete lack of empathy or remorse for the horrific attack that was identified in the pre-sentence report and also referred to in Dr Beech’s report – and also the comments to the hospital staff following his admission.
I have also agitated over this. Ordinarily I would let the starting point remain that there be no publication of the identity of [the applicant] but I consider in the circumstances, given the factors I have indicated, that the need to protect the community outweighs the other considerations, in particular the impact of the child’s rehabilitation and any other relevant matter.
So I will make an order under subsection (2) of section 234 that identifying information about the offender can be published.”
[29]	His Honour then considered whether a conviction should be recorded, holding that “the nature of the offence outweighs all other considerations and a conviction will be recorded for this offence.”
The submissions in this Court
[30]	For the applicant, it is emphasised that the interests of the community are best served by young people being given every opportunity to be rehabilitated and treated, and to re-engage with society in productive and meaningful ways into adulthood without aspects of notoriety or stigma dogging their every step and potentially de-railing treatment and rehabilitation prospects.  It is submitted that it should not be concluded that the applicant’s prospects of rehabilitation are poor or that there is a high likelihood of his re-offending in a violent way.  It is further submitted that the sentencing judge wrongly equated protection of the community with the preventative detention or supervision under the regime in the Dangerous Prisoners (Sexual Offenders) Act 2003. And it is submitted that there was no evidence to suggest that if there was a high risk of future violent offending, a publication order would reduce it.
[31]	The respondent’s submissions emphasised a number of references, in reports of nurses and in Dr Beech’s report, to the effect that the applicant showed no sign of distress or remorse about his offence.  It is submitted that the protection of the community and the rehabilitation of the applicant were competing features for the exercise of the discretion under s 234, and that it was open to the sentencing judge to conclude that the applicant demonstrated “a continuing danger to the community”.  The lack of remorse, it is submitted, was a crucial finding.  And it is submitted that the applicant had not demonstrated that he was an offender who was conducive to accepting necessary treatment.
Consideration
[32]	In R v Rowlingson, the applicant pleaded guilty to murder, interfering with a corpse, stealing and unlawful use of a motor vehicle.  At the time of his offending, he was aged 16 years and 10 months, and he was 18 years old when sentenced.  He murdered his brother, who was 19 years old.  He was sentenced to life imprisonment for the offence of murder, and various terms, not exceeding 12 months, on the other offences.  A conviction was recorded and an order was made under s 234, permitting publication of the applicant’s name.  The Court dismissed his appeal in all respects.  As to s 234, Keane JA said:
“[47]	It is submitted that the order permitting the naming of the applicant is apt unnecessarily to bring shame upon his family. This concern was recognised by the learned sentencing judge as a factor relevant to the exercise of the discretion under s 234 of the Juvenile Justice Act. It may be open to question whether, in accepting that the interests of the applicant’s parents were relevant to the exercise of the discretion in s 234, her Honour was unduly generous to the applicant. It is arguable that the considerations relevant to the discretion concern the balance between the rehabilitation and proper punishment of the offender; on that view the interests of the offender’s family may be thought to be somewhat remote at least where the sentence imposed is such that the offender will not be spending any period of post-custody release with his family as a dependent child. On the other hand, it may be said that the “interests of justice” within s 234(1)(c)(ii) properly encompass the interests of the applicant’s parents as victims of his crime. In the event, it is not necessary for present purposes to resolve this question.
[48]	There can be no doubt that her Honour gave anxious consideration to the feelings of the applicant’s parents who have already suffered so much. The weight which could reasonably be accorded to this consideration was, however, diminished by the circumstance, noted by her Honour, that the community in which the applicant’s parents live were already familiar with the circumstances of the case and the identity of the applicant.
[49]	The applicant committed a particularly heinous crime: he is a dangerous man; there is a legitimate reason in terms of the protection of the community – including, bearing in mind Dr Harden’s opinion that “an institutional context … may provide opportunities for him to continue to exercise power and control …”, his fellow inmates in prison – why the facts in this regard should be made public.
[50]	In these circumstances, I do not consider that the learned sentencing judge’s discretion under s 234 of the Juvenile Justice Act to permit the publication of the applicant’s name miscarried.”
[33]	In R v SBU, the applicant was 14 years old when he committed the offence of murder.  His co-offender was an adult and received the mandatory term of life imprisonment.  The applicant was also sentenced to detention for life, and the judge made a further order allowing publication of his identifying information.  This Court allowed the appeal, set aside the sentence and substituted an order that he be detained for a period of 12 years.  Relevantly for present purposes, in re-sentencing that offender, this Court held that it had not been demonstrated that there was a good reason from departing from the general legislative prohibition upon the publication of the identifying details of child offenders.  After referring to R v Rowlingson, Fraser JA said:
“[T]here is a consideration, the applicant’s rehabilitation, which weighs against the order.  The seriousness of the applicant’s offence is a relevant consideration, but the community also has an interest in the applicant’s rehabilitation, which would likely be prejudiced by allowing the publication of his identifying information.”
[34]	The present case is markedly different from Rowlingson.  The offence in that case was murder.  The identity of the offender was already well known within the community in which his family lived.  And the psychiatric evaluation of that offender well proved that he was a dangerous man, providing a reason why the facts of his offending should be made public so that others, more particularly his fellow prisoners, might be alert to the risks of further offending.  In the present case, the applicant’s future behaviour is less predictable.  He has had mental health issues for many years, but there is not such a definite opinion about his likely risk to others.
[35]	Any order under s 234 is likely to prejudice an offender’s prospects of rehabilitation.  Clearly, that consideration has a more immediate importance to an offender who will be in custody for ten years, than to one who will be serving a life sentence.
[36]	The question of whether this was to be considered a “particularly heinous offence having regard to all the circumstances” involved a qualitative judgment which required that expression to be understood in the context of s 176.
[37]	In my respectful opinion, his Honour erred in finding that this was a particularly heinous offence having regard to all of the circumstances.  I wish to emphasise that I am not diminishing the seriousness of this offence, and its impact upon the victim.  Rather, it is because of what that expression means in the context of s 176.
[38]	As Keane JA said in Maygar, in the passage which I have set out above at [22], this is a finding which is made for the purpose of determining whether the period of detention of the child should be increased from a maximum of 10 years to life.  Yet in this case, there was no prospect that the head sentence in this case was to exceed 10 years, as the judge, at one point in his reasons, made clear when saying:
“Fortunately for you, you are to be dealt with under the Youth Justice Act 1992. You are very lucky, if you were 18 at the time of this offence it would be a whole different ball game and I would have thought we would be looking at a sentence well in excess of 10 years with a serious violent offence declaration.”
[39]	The judge was not constrained by the submissions of counsel, but at no point did his Honour express any misgivings about the prosecutor’s submission that the sentence should be “no less than five years’ detention”, or the defence submission that the sentence should be three to four years’ detention.  His Honour did not appear to consider the question of whether this was a particularly heinous offence for the purpose of exercising a discretion to sentence the applicant to a term exceeding 10 years.  In a case where there was no prospect, either on an objective analysis or in the judge’s mind, of the sentence exceeding 10 years, there was no occasion for the Court to consider whether this was a particularly heinous offence having regard to all the circumstances.
[40]	As was pointed out in the applicant’s submissions, the Act does not prescribe criteria for the characterisation of an offence as particularly heinous having regard to all of the circumstances.  However the statutory context indicates the essential character of an offence of this kind.  It is an offence which, having regard to all the circumstances, may warrant an order that the child be detained for more than 10 years.  The only relevance of this question, in the judge’s mind, was that if he found that the offence was particularly heinous, it would raise the discretionary power under s 234.
[41]	This was not a case where the nature of the offence was considered by the judge to warrant a sentence in excess of 10 years but where the ultimate order resulted from extraordinary mitigating factors. It was a case where the nature of the offence, having regard to all the circumstances, was not considered to be so severe as to warrant a sentence of more than six years.
[42]	In this case, in my conclusion, the finding under s 176(3)(b) was not made for a proper purpose, or it was a finding which was not reasonably open consistently with the appropriate sentence being in the range of four to five years.
[43]	This finding, under s 176(3)(b), was not an order.  Of itself, it could not be the subject of an appeal.  It is the order made under s 234 which is the subject of this appeal.  The relevance in the error in the finding under s 176 is that it infected the judge’s conclusion under s 234.  The judge erred in making the order under s 234.
Orders
[44]	I would order as follows:
1.	Grant leave to appeal.
2.	Allow the appeal.
3.	Set aside the order made by the sentencing judge, pursuant to s 234 of the Youth Justice Act 1992, that the publication of identifying information about the appellant be allowed.