R v BXY [2023] QSC 42

[3] Your behaviour in the middle of the night on 14 February 2022 was truly awful. You were wild, and thought nothing about other people's property or the rules of society that keep us safe. With your friend, BS, you stole a car and then drove very dangerously through the streets of Cairns, with other children in that stolen car. You had planned to steal that car earlier in the day. You were on drugs, and out of control. Your driving caused the car to crash so badly it was crushed. Nobody was wearing a seatbelt. BS was so badly injured, he died there by the scene of the crash. One of the girls, who was only 12, is alive, but so badly injured she cannot move her arms and legs. Her life is changed forever. Another two girls were also seriously injured. You have been in trouble with the law so many times, the community is frightened about what you will do next. I have to protect the community from the risk that you might do something bad like that again. I also have to think about you, as a young person who has had a difficult family life, without people to look after you and show you the right way to do things. Because you have a problem that affects the way that your brain works, there are things you find very difficult in life - including thinking about your actions and consequences - and you will need help with that. You are still young, but you will have to work hard if you want to have a better life in the future. I have thought about all the rules and laws that I have to apply. And I have decided that the punishment for you is:

(a) On count 4 - that is the unlawful killing of BS - detention for seven years.

(b) On count 3 - that is the dangerous driving, while you were on drugs, and speeding, causing such serious injuries to three people - detention for five years.

(c) On count 1 and count 2 - breaking into the people's house and stealing their car - 18 months.

(d) All of those sentences are served at the same time. So the total time is seven years. You have already been in detention for more than a year. That time counts towards the seven years.

(e) For driving without a licence, you are reprimanded.

(f) I am recording the convictions for the two worst offences, count 3 and count 4. You have not had a conviction recorded before, but those offences are so serious I think that is important.

(g) You will have to serve 70% of the sentence before you can be released, which is four years and about 11 months. After that, you will not be free. You will be supervised by corrections officers, and you will have to do the right thing, until the end of the seven years, otherwise you will go back to custody. I decided that I could not reduce that time before release, because of your bad criminal history and inability to follow court orders. Again, I am concerned about protecting the community.

[5] These are my reasons for making those orders. I am delivering my reasons orally in court today, which is the usual course in relation to a sentencing proceeding, and will also publish what I have said on the Supreme Court Library website immediately after I have finished, so that the written reasons are available to any person who may wish to read them in full, to understand the process that is involved. The published reasons are anonymised, because s 301 of the Youth Justice Act 1992 prohibits publishing identifying information about a child.

[6] This is an absolutely tragic case. Shortly after 1 o'clock in the morning on 14 February 2022 there were six young people in a stolen car - the oldest was 15, the youngest was 12 - none of them were wearing seat belts. One of the children, BS, who was then 14, died. Another three, TW (who had just turned 15), DM (also 15) and KD (who was only 12), were seriously injured, particularly KD. That they were in that car at all is a failing of our society, our community and, as will become apparent, at least in the case of BXY and BS, a consequence of their family circumstances.

[7] The car was being driven at high speeds around streets in Cairns by BXY, who was only 14 at the time. It was a rainy night and the road was wet. BXY was affected by multiple drugs - amphetamine, methylamphetamine (known as "ice") and tetrahydrocannabinol (THC). BXY drove at varying high speeds for about 30 minutes, at times being chased by the police, before completely losing control of the car as it crossed over to the opposite side of the road, onto the footpath, causing the car to rotate multiple times before finally the left rear passenger side of the car collided with a tree. No airbags deployed because the initial impact was at the rear passenger side. The impact was so severe it caused the roof and other parts of the car to collapse. One of the children in the car, BS, died as a result of the injuries he suffered. The three girls all suffered very serious injuries, 12 year old KD the worst of all. The defendant and another boy, RS, who were in the front of the car, were not seriously physically injured.

[8] We know only a little about the boy who died, BS. He was very much loved by his two older sisters, Jessica and Samantha, who are understandably devastated by the death of their brother. He lost his mother when he was only 10, and had a difficult time after that, being taken into the care of Child Safety from the age of 12. He was friends with the defendant; in fact BXY says he was like a brother to him. He loved to play with his Xbox and listen to music.

[9] Part of what occurred on this fateful night was planned. Earlier in the previous day, 13 February 2022, BXY was at a shopping centre with a group of young people, including two of the girls who were later injured in the car (TW and DM). He told them he was planning to steal a car that night, and would pick them up later.

[10] Sometime later that night, or early in the morning of 14 February 2022, BXY and BS broke into the home of some people who lived in Manunda. Other young people - including DM and KD and some other children, waited outside. BXY stole car keys, a handbag, wallets and an iPhone. This is count 1. With the keys, BXY stole the car - a small Toyota Yaris - and drove it out of the garage. This is count 2. BS was also in the car, ultimately sitting in the rear left passenger side. The two girls, DM and KD, and the other children, who were waiting outside, jumped into the back seat of the car. At some stage someone was dropped off, and later another child was picked up, RS. He sat in the front passenger seat.

[11] Police became aware of BXY driving the car in the early hours of 14 February 2022 - 12.43 am - because RS videoed BXY driving and livestreamed the video to BXY's Instagram account - which the police were monitoring. This video showed the defendant accelerating rapidly, from 0 to 82 km/hr. It was a rainy night and the road was wet.

[12] From then until the fateful crash, which occurred at about 1.13 am - so about 30 minutes - BXY was seen at various points on roads around Cairns driving at exceedingly high speeds. He was seen by police, caught on a mobile speed camera and captured on CCTV footage. At some point, he drove to TW's home and picked her up. The police had actually found her earlier in the night, and taken her home to her mother around midnight; but she regrettably left again with this group of children. She also got in the back seat of the car.

[13] On a couple of occasions when the police saw the car, they tried to catch up to it - travelling up to speeds of 120 km/h and 130 km/h at times - but they were not able to.

[14] Just prior to the collision, BXY approached an intersection. He travelled at speed against the red light at that intersection, turning left into the adjoining street. There was one car in front of him. He tried to overtake that car but, as he did so, lost control of the car. The car veered into the opposite lane, rotated, left the road and crossed over the footpath, eventually crashing into a tree. The roof and sides of the car were caved in. The footage and images of the car and the children in it, immediately after this collision, are horrific.

[15] Police approached the crashed car immediately. It is said that BXY slid out of the driver seat and onto the middle console (between the driver and passenger seats). He was coming in and out of consciousness. He tried to open the door and even attempted to start the car. Police were yelling at him to stop. He shouted and swore at them that he "wasn't driving!" as he was being handcuffed on the ground. Although this is relied upon by the Crown as demonstrating callousness; it appeared to me from the footage that he, like the others, was in a state of complete shock and panic.

[16] The young boy, BS, suffered shocking injuries as a result of the crash, and died at the scene a short time later from his injuries. As I have mentioned, he was 14 at the time, and would have turned 15 in April of 2022.

[17] TW suffered significant injuries, including multiple fractures, multiple abrasions, burns, bruises and concussion. The fracture to her ankle required surgery and, because it would have resulted in permanent instability without medical intervention, constitutes grievous bodily harm.

[18] DM suffered even more serious injuries, spending some 17 days in hospital and undergoing surgery for fractures to her pelvis. That injury in particular also constituted grievous bodily harm, given the likelihood of permanent impairment without medical intervention.

[19] Twelve year old KD was the most seriously injured of the three girls. She suffered multiple severe spinal, chest and abdominal injuries. Without life supportive therapies in intensive care, it is unlikely she would have survived. She spent six months in hospital. Even with surgery, her injuries are permanent and life changing, as she has permanent neurological deficits causing incomplete tetraplegia (also known as quadriplegia).

[20] As I said at the outset, this is an absolutely tragic case.

[21] The actions of the person who caused these devastating consequences were grossly negligent - criminally negligent - that is the basis of the charge of manslaughter against BXY. His conduct was deliberate, reckless and dangerous, leading also to the very serious injury of three other young people.

[22] The decision as to the appropriate punishment to be imposed on him for his criminal conduct is a complex and difficult task.

[23] It is important to emphasise, and explain, that sentencing is not an emotional exercise - the court cannot act on the basis of the emotions of the particular judge who constitutes the court, nor to attempt to satisfy the emotional needs or wishes of the family of those who were victims of the offences or the community more broadly. Sentencing involves the application of legal rules and principles. The rules and principles that apply when sentencing a boy of 14 are different from those which apply when sentencing an adult.[1]

[24] Those rules are set out in the Youth Justice Act 1992.

[25] I will begin with s 150(2), which identifies "special considerations" that apply when sentencing a child. These are that:

"(a) a child's age is a mitigating factor in determining whether or not to impose a penalty, and the nature of a penalty imposed; and

(b) a non-custodial order is better than detention in promoting a child's ability to reintegrate into the community; and

(c) the rehabilitation of a child found guilty of an offence is greatly assisted by -

(ii) opportunities to engage in educational programs and employment; and

(d) a child who has no apparent family support, or opportunities to engage in educational programs and employment, should not receive a more severe sentence because of the lack of support or opportunity; and

(e) a detention order should be imposed only as a last resort and for the shortest appropriate period." [emphasis added]

[26] That detention should be imposed only as a last resort is also stated in principle 18 of the charter of youth justice principles (schedule 1 to the Act). Reinforcing this, s 208 of the Act states that a court can only make an order for detention if, after considering all other available sentences and taking into account the desirability of not holding a child in detention, the court is satisfied that no other sentence is appropriate in the circumstances of the case. I am satisfied of this. Counsel for the defendant did not contend otherwise. The only appropriate sentence to mark the seriousness of the offending in this case is an order for detention. The question is for how long.

[27] Another matter that the court is required to consider is whether the offence(s) should be referred to the chief executive for a restorative justice process (s 162). Although it is noted in the Pre-Sentence Report that BXY is willing to participate in a restorative justice process, so that he can apologise to BS's family, it is acknowledged by everyone, including the authors of the Pre-Sentence Report, that this process would not be suitable here, and I am satisfied that is the case.

[28] Returning to s 150(1), in sentencing a child the court must have regard to the following:

"(a) subject to this Act, the general principles applying to the sentencing of all persons; and

(b) the youth justice principles; and

(c) the special considerations stated in subsection (2); and

(d) the nature and seriousness of the offence; and

(e) the child's previous offending history; and

(f) the presence of any aggravating or mitigating factor concerning the child; and

(g) without limiting paragraph (f), whether the child committed the offence -

(i) while released into the custody of a parent, or at large with or without bail, for another offence; or

(ii) after being committed for trial, or awaiting trial or sentencing, for another offence; and

(h) any information about the child, including a pre-sentence report, provided to assist the court in making a determination; and

(i) if the child is an Aboriginal or Torres Strait Islander person - any submissions made by a representative of the community justice group in the child's community that are relevant to sentencing the child, including, for example -

(i) the child's connection with the child's community, family or kin; or

(ii) any cultural considerations; or

(iii) any considerations relating to programs and services established for offenders in which the community justice group participates; and[2]

(j) any impact of the offence on a victim, including harm mentioned in information relating to the victim given to the court under the Penalties and Sentences Act 1992, section 179K; and

(k) a sentence imposed on the child that has not been completed; and

(l) a sentence that the child is liable to have imposed because of the revocation of any order under this Act for the breach of conditions by the child; and

(m) the fitting proportion between the sentence and the offence."

[29] Section 150(1)(a) states the general proposition that, subject to the Youth Justice Act, the general principles applying to sentencing of all persons apply. This means it is relevant to consider the purposes for which sentences may be imposed, namely: punishment in the way that is just in all the circumstances, personal and general deterrence, denunciation, rehabilitation and community protection.[3] But the "subject to" is important. In R v SCU [2017] QCA 198 at [151]- [153], McMurdo JA noted that there were at least two important differences between the rules for sentencing a child and those that apply to adults: one is the significance of a child's age as a mitigating factor; and another is the emphasis given to rehabilitation for children. In relation to age, McMurdo JA said that this "necessarily affects the weight to be given to the objects of punishment, denunciation and deterrence and thereby lessens their importance relative to the object of rehabilitation".

[30] All of the youth justice principles are to be considered, but the ones particularly emphasised by the Crown and by defence counsel are:

Principle 1 - that "the community should be protected from offences and, in particular, recidivist high-risk offenders" - which the Crown strongly emphasises in this case.

Principle 9 - that "a child who commits an offence should be -

(a) held accountable and encouraged to accept responsibility for the offending behaviour [emphasised by the Crown]; and

(b) dealt with in a way that will give the child the opportunity to develop in responsible, beneficial and socially acceptable ways [emphasised by the defence]; and

(c) dealt with in a way that strengthens the child's family; and

(d) dealt with in a way that recognises the child's need for guidance and assistance, because children tend to be dependent and immature" [emphasised by the defence].

Principle 17 - that "a child should be dealt with under this Act in a way that allows the child -

(a) to be reintegrated into the community; and

(b) to continue the child's education, training or employment without interruption or disturbance, if practicable; and

(c) to continue to reside in the child's home, if practicable."

Principle 18 - that "a child should be detained in custody for an offence, whether on arrest, remand or sentence, only as a last resort and for the least time that is justified in the circumstances" [the last part emphasised in particular by the defence].

[31] I have already outlined the factual circumstances of the offences. But I need to say a little more about the manslaughter offence in particular.

[32] BXY is charged with unlawfully killing BS, under a combination of sections 289, 300, 303 and 310 of the Criminal Code. A person who unlawfully kills another person, in circumstances which do not amount to murder - which in simple terms means there was no intention to kill them - is guilty of a crime called manslaughter. One of the elements of the offence of unlawful killing - or manslaughter - is that the offender caused the death of the other person, directly or indirectly. Relevantly here, the Crown relies on s 289, which imposes a duty on a person who has in their charge or under their control a thing - like a car - which could, if you are not careful in how you use it, endanger the life, safety or health of another person. The duty that is imposed on the person - for example, who is driving the car - is to use reasonable care and take reasonable precautions to avoid that danger. If you fail to do that, you are held to have caused any consequences which result. BXY should never have been driving any car - he was 14 and had no licence - but apart from that he drove the car so dangerously on this night, being drug affected, excessively speeding, running through red lights, on a dark, rainy night - that he could not be said to have taken any care at all. He was grossly negligent. So the effect of this section is that BXY is held to have caused the consequence that resulted from his failure to take care - that consequence being the death of BS.

[33] The maximum penalty for the offence of manslaughter - if committed by an adult - is life imprisonment. The same maximum penalty applies to burglary, which is count 1. The maximum penalty for the offence the subject of count 3 - dangerous operation of a vehicle, while intoxicated and speeding, causing grievous bodily harm - for an adult is 14 years. One of the issues the court has to determine in this case is what is the maximum penalty that applies in the case of a child such as BXY? Before I come to that, I will address the next important factor that the court must take into account - which is BXY's offending history, and his background generally - because those things are also relevant to determination of the maximum penalty.

[34] BXY has an appalling criminal history. It presently comprises 16 pages, which is substantial for anyone, let alone a boy of 14 (now 15).[4] The offending began when he was 11, with offences committed in December 2018. According to the prosecutor, BXY has 144 prior convictions, for offences including stealing, robbery, burglary, assaults - generally and on police and corrections officers, wilful damage, drug possession, unlawful use of vehicles and public nuisance.

[35] This is the 17th time he has been in a court to be sentenced for serious offences. He has no prior conviction for dangerous operation of a car. He has appeared in the Childrens Court constituted by Magistrates and District Court judges. He has had the benefit of every kind of order that can be made for a child offender, including reprimands, good behaviour bonds, probation orders, an intensive supervision order, a community service order and short detention orders, on their own, coupled with probation and conditional release orders. None of his convictions have been recorded.

[36] BXY's compliance with supervised orders has been completely unsatisfactory and he is said to have actively rejected any form of assistance previously provided by Youth Justice. He has regularly reoffended within a short space of time after being released from detention.

[37] Consistent with that pattern, at the time of the offences I am dealing with, BXY was on bail, subject of an earlier probation order - a matter which the court must take into account under s 150(1)(g) - and had only just been released from detention two weeks earlier, on 1 February 2022. Although the offending breached the probation order, the Crown accepts it is appropriate to take this into account as an aggravating factor and take no further action.

[38] BXY's appalling criminal history is an important factor to be taken into account in determining the appropriate sentence, and is appropriately considered an "aggravating" feature - that is, a feature calling for a more severe penalty than would be the case if he did not have such a bad criminal history. But one of the general rules of sentencing that applies - to all people, adults and children - is that it must not be given so much weight as to result in a disproportionately harsh sentence being imposed for the present offending.[5] This is also reflected in s 150(1)(m) of the Act.

[39] BXY has now been in detention since he was arrested for these offences, on 15 February 2022. Although that is in total 388 days, Youth Justice calculates that 374 of those days are eligible to be counted towards whatever sentence is imposed.[6] Section 218(1) provides that where a child is to be sentenced to a period of detention, any period of time for which the child was held in custody pending the proceeding for the offence must be counted as part of the period of detention. But s 218(2) provides that a period of time "for which the child is also held in custody on sentence for another offence" is not to be counted for that purpose. The obligation to do this "counting" is imposed on the chief executive of the Department, under ss 227 and 228 of the Act. The Crown raised an issue about the Department's calculations, arguing that the calculation by Youth Justice is incorrect, because it should also deduct a further 106 days which was taken into account by the sentence imposed by the Childrens Court on 1 June 2022. On that day, BXY was sentenced for armed robbery in company (stealing a scooter from a boy, with another child who pretended to be armed with a knife or screwdriver) committed on 15 September 2021. The judge recorded that he had been in detention for that offence for 133 days. He sentenced him to that period of time. I do not know what material was before the judge, therefore I cannot say how the 133 days was calculated. Counsel for the defendant argues that s 218(2) does not apply to the 106 days from 15 February 2022 to 1 June 2022 because, up until 1 June 2022, BXY was not "held in custody on sentence" - he was only held in custody on remand. The representatives from Youth Justice who appeared at the sentence maintained that the calculation in the Pre-Sentence Report was correct. On balance, I am persuaded to accept that the calculation undertaken by Youth Justice is correct, on the basis of the construction of s 218(2) submitted by defence counsel. Unlike the sentence imposed on an adult, where pre-sentence custody is formally declared by the court, the effect of the Youth Justice Act provisions does not appear to involve the "backdating" of the sentence.[7] Accordingly, it is reasonable to argue that, prior to 1 June 2022, BXY was not "held in custody on sentence". I do not propose to direct the Department to correct the "remand in custody report" which is annexed to the Pre-Sentence Report.

[40] BXY's prior criminal history is, as discussed, an aggravating factor. Other aggravating factors are that the driving was a very bad example of dangerous driving (by a young person, with no licence, adversely affected by drugs, in a stolen car, in the middle of the night, with rainy, wet conditions, travelling at excessive speeds over the course of about half an hour, continuing despite the presence of police) and the fact that there were four victims, one killed and three seriously injured, one of those with life-changing consequences.

[41] Everyone in the car was without a seatbelt. However, I do not think it is reasonable to say (as the Crown submits) that the defendant - a 14 year old child - "allowed" them to be unrestrained; or to regard this as an additionally egregious element of his conduct, such as it would be for an adult. Nor do I accept that his conduct at the scene - including denial that he was driving - should be regarded as an aggravating factor; as opposed to panic and shock at what had just happened.

[42] I turn then to the mitigating factors concerning BXY. Perhaps the most significant is his age - 14 years and just over 2 months at the time. This is expressly a special consideration under s 150(2)(a).

[43] His prejudicial background is also an important mitigating factor. The Crown prosecutor said early in his submissions that, when you look at BXY's history, it was inevitable that he would either end up killing himself or someone else - as he did on this terrible night. That history did not start in 2019, with his first criminal conviction at the age of 11. That history started before he was born and involves multiple factors completely beyond his control.

[44] As part of the Pre-Sentence Report process, an assessment of BXY was undertaken by Dr Meg Perkins, a psychologist with substantial experience in clinical and forensic psychology, and expertise in relation to fetal alcohol spectrum disorder (or FASD). BXY's grandmother reported that he was exposed to significant quantities of alcohol while his mother was pregnant with him. His mother has recently confirmed that she used alcohol heavily, particularly during the first four months of her pregnancy with BXY. Following her assessment, Dr Perkins found that BXY has severe deficits in the brain domains of attention, executive functioning (organisation and self-regulation), adaptive functioning (social and practical skills), academic achievement, motor skills, and affect (or emotional) regulation. Given the evidence of prenatal alcohol exposure, she says his condition meets the criteria for diagnosis of FASD, which is recognised as a congenital disorder by the NDIS.

[45] BXY has also been diagnosed with attention deficit hyperactivity disorder, combined type, with executive dysfunction; as well as a specific learning disability, generalised anxiety disorder, major depression, with a very high risk of suicide, and severe post-traumatic stress disorder - as a consequence of his actions which caused the death of his friend, BS.

[46] As Dr Perkins says, when FASD is undiagnosed, the person's presentation is extremely confusing - so much so that their behaviours are put down to carelessness and conduct disorder, rather than to pervasive brain dysfunction. That is what occurred here - prior to Dr Perkins' assessment, psychological assessments had diagnosed conduct disorder.[8] Dr Perkins says that FASD is a permanent and irreversible brain injury which in many cases, including BXY's, results in severe deficits in executive functioning - that is, the processes required for conscious control of thought, emotion and action that are central to the management of one's day to day life. And, she says, this is the key to understanding the difficulties that BXY has been having with his dysregulated behaviour.

[47] BXY identifies both as Torres Strait Islander, with family connections to Mabuiag and Thursday Island on his mother's side, and Aboriginal - his father was Aboriginal, although he has had no contact with his father since he was two, and his father is in prison.

[48] From his birth until he was about three, BXY lived with his mother in Cairns. He was then sent to Thursday Island to live with his godfather, and he stayed there until he was seven. He is said to have thrived during this time on Thursday Island. At age seven, he was sent back to Cairns to live with his mother and stepfather. He was moved around to live with various people, including a friend of his mother's in Townsville, with his grandmother and with friends. He reported to Dr Perkins being yelled at or sworn at by adults "all the time" and being hit by adults "all the time". He witnessed physical domestic violence involving his mother and her boyfriends on a regular basis. The authors of the Pre-Sentence Report record that BXY's family has had a significant contact and intervention history with Child Safety due to his mother's chronic substance use, issues of neglect, physical and emotional harm, and exposure to domestic violence in the home. He turned to alcohol and drugs at an early age - disclosing to Dr Perkins that he used alcohol or other drugs (including cannabis, MDMA, ice and "mushrooms") every day - and sought out the company of similarly disengaged and troubled children.

[49] In October 2019, when he was 11 years old, Child Safety intervened and he came under the custody of the Department - on the basis of a temporary order, in October 2019, and then an interim custody order on 22 April 2021, which expires in April this year (although is expected to be extended).

"[BXY] has a history of offending behaviour and has been admitted to the Cleveland Youth Detention Centre eight times since November 2019. In general, this behaviour can be seen as a result of a failure to learn by experience and an inability to foresee the consequences of one's actions. Severe deficits in executive functioning mean that the child has great difficulty seeing more than five minutes ahead of the present moment and also has a greatly reduced ability to inhibit impulsive behaviour - amongst many other difficulties in self-regulation and self-management.

Executive functioning is the part of the brain that makes decisions, sets goals, and inhibits any behaviour that will interfere with the achievement of these goals. Severe deficits in this brain function mean that the child struggles to learn from the past or plan for the future; they simply live in an eternal present. This is very much a typical characteristic of people living with the brain dysfunction caused by prenatal alcohol exposure - fetal alcohol spectrum disorder.

Very young children are always self-focused and live in the present, but as they mature their ability to learn from consequences and adapt their behaviour accordingly improves. Most children have the love, care and attention of adult family members to guide and supervise them while they develop their executive functioning, which fully matures at about the age of 25 years. Children who have been removed into care, experienced multiple failures in foster care placements, who live with aged or unwell relatives, or in residential care with young shift workers as carers, do not have this steady and reliable support. If they have been excluded from school as well as excluded from family life, they are very much alone with their similarly disadvantaged peers ... a dangerous situation. Children with brain dysfunction, such as severe ADHD and FASD, are particularly vulnerable when unsupervised by responsible adults as their executive functioning deficits are severe and permanent." [emphasis added]

[51] As Dr Perkins also says, "sadly, [BXY] was not diagnosed with FASD as a young child, and his severe level of pervasive brain dysfunction has been a major factor in his school failure, aggressive behaviours, disengagement from school, association with antisocial peers, and ongoing offending behaviour".

[52] The authors of the Pre-Sentence Report likewise emphasise BXY's disengagement from education, and seeking out of peers in the same position as him, committing offences and using substances like ice as a means of self-medication. In relation to what is described as his "entrenched criminal attitudes", the authors note that most of BXY's immediate and extended family members have extensive involvement with both Youth Justice and the adult criminal justice system, and it is the authors' assessment that BXY's childhood has been characterised by exposure to criminal activity, which has served to normalise his own participation in anti-social and criminal behaviour. He has not had a consistent, positive caregiver to show him the right path.

[53] BXY is noted to be genuinely remorseful for his actions leading to the death of a person he thought of as his brother and the serious injuries to the three young girls in the car; but he is also said to have a significantly reduced capacity to understand the impact of his offending on others, complicated by the diagnoses of FASD and PTSD.

[54] While he has been in detention - this time for just over a year - BXY's conduct and behaviour has been mixed. On the one hand, since 15 February 2022 he has been involved in multiple "incidents". There have been 93 incidents recorded in that time.[9] Most of them are described as "assaults and risk causing behaviour", and there are also incidents of self-harm. The material before the court does not elaborate on what the incidents involved, but the Pre-Sentence Report states that none resulted in any criminal charges. The Pre-Sentence Report also states that "[detention centre] staff reported that BXY uses good skills and behaviours most of the time with occasional issues, has a good understanding of his cultural identity and a good connection with his culture".

[55] He is said to have had contact with the Forensic Child and Youth Mental Health Service, but that "his engagement has been sporadic". He does not appear to be receiving any treatment. This should be addressed, following this sentencing proceeding, and having regard to the recommendations in Dr Perkins' report.

[56] He has done quite a few programs, including an anti-conflict workshop; anti-ice awareness workshops; an animal wellbeing course; a self-help program delivered by NRL players; a drug and alcohol program and a program about re-thinking your attitude to driving. He has been enrolled in some school subjects - art, English, maths, science and physical education - but is said to be "not future oriented towards further education", but "wishes to gain work experience". He has shown interest in trying barbering and bricklaying, and has also enjoyed making music. The behaviour records related to his schooling are mostly positive, with occasional incidents recorded. As recently as 1 March 2023, a teacher recorded that he "worked well in music today; he spoke respectfully to all staff; worked actively on individual projects and displayed safe and responsible behaviours".

[57] BXY is obviously a complex young person, with particularly challenging needs. But overall, on the basis of the material in the Pre-Sentence Report, and the additional material supplied by Youth Justice during the sentencing hearing, I consider the Crown's submission that he is not susceptible to rehabilitation to be too severe and unwarranted. As a society, we cannot give up on a 15 year old boy who is afflicted with severe impairments as a result of circumstances beyond his control. As a matter of law, the Youth Justice Act requires that we do not give up on rehabilitation in the case of child offenders. Dr Perkins outlines supports, treatments and therapy that would benefit BXY. As much as the sentence to be imposed must reflect the importance of protection of the community, the longer term protection of the community also depends upon those things being provided for him, whilst he is in detention and once released subject to supervision.

[58] As a matter of general principle, the fact of BXY's severe level of pervasive brain dysfunction means that in a real sense his moral blameworthiness is reduced. That is not to say he is not legally responsible - of course he is, which is why this sentencing proceeding is taking place. But he is less morally blameworthy than another child who would do what he did, without that impairment. This is a significant mitigating factor.[10] The prejudicial circumstances in which he has grown up - exposed to substance abuse and violence, as well as neglect - is also a mitigating factor, as recognised by the High Court in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571. But of course as also recognised in Bugmy, as well as in other cases, whilst factors such as these may reduce an offender's moral culpability, they may also increase the importance of community protection. There is no question that community protection is an important factor in this case.

[59] All of that brings me back to the issue of the maximum penalty that applies.

[60] For less serious offences - for example, the unlawful use offence (count 2) - the maximum penalty for a child is half what it would be for an adult.[11] The maximum for count 2 for an adult would be 7 years, so the maximum for a child is 3 and a half years.

[61] For more significant offences, s 176 of the Act applies. In the case of count 3 (dangerous operation of a vehicle, while adversely affected by drugs, and speeding, causing grievous bodily harm) the maximum penalty for an adult is 14 years. But by force of s 176(2), the maximum penalty for a child is 7 years detention. Count 4 - manslaughter - is a "life offence", meaning an offence for which a person sentenced as an adult would be liable to a maximum penalty of life imprisonment. Accordingly, s 176(3) applies. That sections says:

"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." [emphasis added]

[62] The Crown contends that this provision applies, so that the maximum penalty is life imprisonment. Counsel for the defendant argues that s 176(3)(b) does not apply to count 4 because, in the circumstances of this case, it is not an offence that involves "the commission of violence against a person" - it is an offence that involved an act of criminal negligence that resulted in harm.

[63] There are no cases which directly assist in relation to what the phrase "involves the commission of violence against a person" means, in the context that it appears in s 176(3)(b)(i). Although there are a number of Court of Appeal authorities which assist in the meaning of s 176(3)(b)(ii), in each of those cases (i) was not in issue, because the offence plainly involved the commission - or use[12] - of violence against a person.[13]

[64] In the one recent Court of Appeal authority which did involve sentencing of a young offender convicted of intentionally causing grievous bodily harm using a car - R v Patrick (a pseudonym) [2020] QCA 51 - no submission was made at first instance or on appeal that s 176(3)(b) applied.

[65] There is one recent single judge decision, involving the sentence of a 17 and a half year old boy for manslaughter on the basis of s 289 of the Criminal Code. He drove dangerously, while affected by drugs and alcohol and excessively speeding, and having a prior conviction for dangerous operation of a vehicle, and killed two pedestrians who were walking beside the road: R v YTZ (unreported, 8 June 2022). In that case, it was not submitted by either party that the manslaughter counts did not involve the commission of violence against a person, so the judge proceeded on the basis that the first condition was satisfied. His Honour was not required to consider the point. I do need to consider it.

[66] The construction of the phrase involves considering the ordinary meaning of the words, in the context in which they appear.

[67] The context is a provision which increases a child's potential liability to punishment from 10 years' incarceration to imprisonment for life. And engagement of the section also means that the provisions of the Act that prohibit publicity being given to the case of a child offender might not apply if the court considers that publication is justified having regard to certain defined factors (see s 234). As Sofronoff P observed in R v Williams at [24], these are exceptional significant penal consequences that Parliament has declared can only be justified if the offence involves the use of violence and is also, in the court's opinion, particularly heinous.

[68] His Honour's reference to the "use of violence" is apt. The ordinary meaning of "commission", in the context of the phrase "commission of violence" refers to doing something - the commission of violence, in its ordinary meaning, refers to the use of violence, or the infliction of violence, against a person.

[69] The legislative history of the provision confirms this construction. When first enacted the legislation was called the Juvenile Justice Act 1992 (Act No. 44 of 1992). Section 121 of that Act made provision for sentence orders for "serious offences", defined in s 8 to mean 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. Section 121(3) was in relevantly identical terms to s 176(3) (save that the maximum provided for was 14 years, not life[14]). But the words used in (i) and (ii) are identical to the words in (i) and (ii) of s 176(3)(b). In the explanatory memorandum to the Bill which became the Juvenile Justice Act, it was noted, in relation to this part of s 121 that:

"Where a child is found guilty of a life offence, and that offence involves the commission of personal violence, and the court considers the offence to be particularly heinous in nature - eg murder in which rape or torture of the victim was involved - a detention order for a period of 14 years" may be made." [emphasis added]

[70] By way of analogy, R v Barling [1999] QCA 16 was relied upon by defence counsel. In that case, de Jersey CJ said that he would not regard the offence of arson, a property offence, as one involving violence against a person for the purposes of what was then s 9(3) (and is now s 9(2A)) of the Penalties and Sentences Act 1992[15]). The argument that it did appears to have been on the basis that "violence" in this context could extend to emotional distress, or the possibility of it. That was found not to accord with the ordinary construction of the subsection and, as de Jersey CJ said, "there is no reason to depart from that natural construction and, especially because the provision potentially affects the level of punishment, there is particular reason not to adopt an unnecessarily broad construction" (at p 8). President McMurdo was of a similar view (at p 6).

[71] The case of R v Breeze [1999] QCA 303 (a robbery case) was also referred to by defence counsel, but is of limited assistance because it was concerned with whether violence in the context of (what is now) s 9(2A) of the Penalties and Sentences Act could include the threat of violence. Although again, because it concerned construction of a statutory provision that could potentially affect the level of punishment, an even broader construction was said to be inappropriate.[16]

[72] And more recently, in R v Oliver [2018] QCA 348 at [42], the Court of Appeal[17] held that s 9(2A) should not be construed so that an offender who commits an offence while making threats to use violence, in some unstated way and at some unstated time, is to be regarded as committing an offence "that involved the use of violence against another person". The ordinary and natural meaning of the words did not bear such a connotation.

[73] The Crown did not articulate why the offence the subject of count 4 - in the particular circumstances of this case - should be found to "involve the commission of violence against a person", beyond submitting that any unlawful killing involves the commission of violence against a person.

[74] Although the consequences of the offending are horrific, on the proper construction of the words used in s 176(3)(b)(i), in their context, I find that the offending in this case did not involve the commission of violence against a person. BXY is criminally responsible for causing the death of BS because of his substantial lack of care whilst in charge and control of the car he was driving; not because he used, or inflicted - committed - violence against BS. It follows from this conclusion that s 176(3) does not apply, and the maximum penalty to which BXY is liable is 10 years detention.

[75] Even if I had formed a different conclusion about that, I would not have found that s 176(3)(b)(ii) was satisfied, for the following reasons.

[76] I emphasise that nothing that I say in relation to this statutory provision diminishes the seriousness of the offence BXY committed which caused the death of BS, nor the awful consequences for his sisters who mourn his loss.

[77] Section 176(3)(b)(ii) contemplates a higher maximum penalty - the maximum that applies to an adult - where the offence involves the commission of violence against a person and where the court considers the offence to be a particularly heinous offence having regard to all the circumstances.

[78] As explained by Sofronoff P in R v William (a pseudonym) at [25] and [26], the word heinous means "hateful, odious; highly criminal or wicked; infamous, atrocious". But it is not enough that the offence be heinous - it must be particularly heinous for the provision to apply. And the heinous nature of the offence is not judged only by the objective facts involved in the commission of the offence. It has to be evaluated "having regard to all the circumstances", which includes subjective factors relating to the offence and the offender. As Sofronoff P also said in that case, at [26], in cases involving child offenders, the subjective circumstances of the offence necessarily loom large.

[79] The finding that is called for is for the purpose of determining whether the maximum period of detention that could be imposed on a child should be increased from 10 years to life. A "particularly heinous offence" therefore is an offence that may, having regard to all the circumstances, warrant an order that the child be detained for more than 10 years.[18] As Keane JA explained in R v Maygar; R v WT[19] at [73], the general provisions of s 176 apply even to an offence of murder, the intentional killing of a person - so s 176(3) necessarily contemplates that a case of murder is not "particularly heinous" simply because it is murder.

[80] I have already addressed the objective circumstances of the offence. They are deplorable. As is the defendant's criminal history. But the subjective circumstances in this case strongly support the conclusion that this was not a "particularly heinous offence", within the meaning of s 176(3)(b)(ii). Those subjective circumstances include the defendant's young age at the time, 14; that the offence involved criminal negligence, as opposed to intentional harm - and that the expected performance of a duty such as is imposed by s 289 must necessarily be viewed through the lens of the defendant's age and cognitive impairment; that his moral culpability is significantly reduced because of his severe brain dysfunction, affecting his executive functioning, resulting from FASD and because of the impact of his dysfunctional upbringing - both of which are the consequence of things outside of his control; and that no pedestrians or other road users were hurt or injured. In addition, I accept the submission that the serious features of the offence are reflected in the fact that the Crown proceeded on the charge of manslaughter, rather than dangerous driving causing death (for which the maximum penalty, for a child, would have been 7 years). Taking into account all the circumstances, both objective and subjective, there is no basis for finding that the appropriate maximum penalty for this child is life imprisonment.

[81] I add, bearing in mind the observation made by McMurdo JA in R v SDK [2020] QCA 269 at [40], that the offence the subject of count 4 is not one, having regard to all the circumstances of this case, which in my view would warrant an order that the defendant child be detained for more than 10 years.

[82] In saying that, I reject the Crown's submission that the appropriate penalty to be imposed on count 4, taking into account all the offending, is an order for detention of not less than 12 years, and up to 14 years. That submission of course depended upon the application of s 176(3) - which I have ruled against. But the Crown pressed that, even if I should find that s 176(3) does not apply, the court should consider imposing cumulative terms of detention, such as to arrive at an overall period of at least 12 years. In my respectful view, that would be too high, in the circumstances of this case. For the defendant, it was submitted the court would impose a sentence of between five and seven years' detention on count 4.

[83] Another of the general sentencing principles that applies - to adults and to children - is consistency.[20] This is why reference is made, in sentencing decisions, to what has been done in other cases. Of course no two cases are the same and, particularly in relation to the offence of manslaughter, the penalties imposed vary widely because of the enormous range of circumstances in which the offence may be committed.

[84] But in saying that, there are some decisions available which support the conclusion that a sentence exceeding 10 years in this case would be too high. The most recent is the single judge decision in the matter of R v YTZ. That offender was sentenced to 10 years' detention. I understand the decision is the subject of appeal - by the Attorney-General on the basis that it is inadequate, and by the defendant on the basis that it is excessive. I still regard it as a relevant comparison. YTZ was older than the defendant here - being17 years and 6 months at the time of the offence. He had an equally appalling criminal history (albeit 12 pages, as opposed to 16). But significantly, his history included a prior conviction for dangerous operation of a vehicle. His dangerous driving took place over a sustained period of 20 minutes and involved not only driving a stolen car at extreme speeds, but also colliding with another vehicle (without stopping), driving more than once on the wrong side of the road and weaving in and out of traffic, before travelling at speed through a busy intersection, against a red light, and colliding with a truck, causing the car to leave the road, roll through the air and strike two pedestrians who were crossing the road. They were killed instantly, and their unborn child was delivered stillborn during the woman's autopsy. The offender fled the scene and attempted to steal another car, before being apprehended. He was also intoxicated. That offender was said to have an upbringing marked by significant deprivation and neglect, was said to remain a highly vulnerable young man, and had been diagnosed with complex PTSD as a result of childhood trauma, as well as other mental health conditions. Whilst in detention awaiting sentence he had taken positive steps towards his rehabilitation. As already noted, the application of s 176(3)(b) was not in issue in that case - it was accepted by both parties that it did apply, and the judge proceeded on that basis - so the maximum penalty was life imprisonment. That offender was sentenced to 10 years detention. Even putting the maximum penalty to one side, in my view there are a number of factors that support a lower sentence in this case: BXY was considerably younger; he had a slightly less serious criminal history, in the relevant sense that he did not have a prior conviction for dangerous operation of a vehicle; the driving as described in YTZ was worse, and resulted in the death of two pedestrians and their unborn child; and there was not the evidence of brain impairment as a result of FASD in the case of YTZ (although he did suffer PTSD as a result of childhood trauma).

[85] Another case that, in my view, supports the conclusion that the Crown's contended 12 year sentence is too high is R v SBU [2011] QCA 203. That was the term imposed, following a successful appeal, on a 14 year old offender convicted of the violent murder of a stranger, in company with another person, who was an adult. Although that sentence proceeded on the basis that the higher maximum penalty of life imprisonment applied, the Court of Appeal[21] at [24] observed that the fact the offender was a child younger than 15 was a factor which required serious consideration.

[86] The decision in R v Patrick (a pseudonym) [2020] QCA 51 is a somewhat useful comparison. The offender in that case was aged 15 to 16 at the time of his offences, which included an offence of malicious act with intent - that is, intentionally doing grievous bodily harm to another person, who was a police officer. He had no criminal history; but also had a deprived upbringing with exposure to domestic violence. His offending involved deliberately driving a stolen car towards where police had deployed "stingers" across the road to stop him, accelerating to a significant speed before swerving and hitting the police officer, causing serious and permanent disabling injuries to him. He was sentenced to five years' detention. This is relevant as demonstrating that a similar penalty in the present case would be too low - given the defendant's criminal history, dangerous driving, and the devastating consequences for the victims, including the death of one of them.

[87] The same conclusion is reached in relation to the case of R v AS; ex parte A-G (Qld) [2004] QCA 259. In that case, the offender, who was just over 15 at the time of the offence, was sentenced, following a successful Attorney-General's appeal, to five years' detention for the manslaughter of a taxi driver. He was part of a group of youths who planned to evade the fare and, after they arrived at their destination, and the taxi driver challenged the offender for payment, he delivered a single punch to the taxi driver's face, causing him to fall backwards to the ground. He died later from his injuries. The offender was described as having only a limited criminal history. The protracted conduct involved in the present case, the consequences and the defendant's criminal history all support a higher penalty in this case than five years' detention.[22]

[88] Another matter for the Court to consider arises from s 227 of the Youth Justice Act. The default position under s 227(1) is that a child sentenced to detention must be released after serving 70% of the period of detention. However, s 227(2) confers a discretion on the court to order that the child be released after serving 50% or more, and less than 70% of the period of detention, if the court considers there are special circumstances. When released, the child is subject of a "supervised release order" made by the chief executive (s 228) until the end of the period of detention. Factors such as an early plea of guilty, youth and dysfunctional background have been held to amount to special circumstances, although it is emphasised that this must be considered in the context of all the circumstances of a particular case.[23]

[89] Ultimately, in determining the appropriate penalty to impose, I return to the principles that must be applied when sentencing a child:

(a) As expressed in youth justice principle 1, community protection is an important factor in this case, particularly given the defendant's criminal history. Although the medical explanation for this, as outlined in Dr Perkins' report, is a mitigating factor, that also reinforces the need for community protection, because unless well supported, the risk of the defendant reoffending is high.

(b) So too is youth justice principle 9, the need for the defendant to be held accountable and encouraged to accept responsibility for his behaviour. He has accepted responsibility by his pleas of guilty. He is being held accountable by the punishment to be imposed on him.

(c) But that punishment must be balanced, as required by youth justice principle 9, with the need to deal with the defendant in a way that will give him the opportunity to try to develop in responsible, beneficial and socially acceptable ways, and that recognises his need, as a child, for guidance and assistance - and, I would emphasise, support of the kind contemplated in Dr Perkins' report.

(d) Although he faces many challenges, the defendant should not be regarded, at his young age, as unsusceptible to rehabilitation. That remains an important consideration for a child of his age.

(e) Where, as here, the only appropriate order is for detention, the court must endeavour to impose the least time that is justified in the circumstances. But the sentence must be proportionate the offending, which cuts both ways in terms of balancing the effect of aggravating factors and mitigating factors.

(f) The defendant's young age, 14, is a significant mitigating factor - the importance of which cannot be overlooked, or overwhelmed by the aggravating factor of his criminal history and the seriousness of the offending.

(g) The defendant is less morally blameworthy for the offending, in light of his severe brain dysfunction as a result of FASD and the impact of his dysfunctional upbringing, than he would otherwise be.

(h) But all of these factors need to be weighed in the balance, to arrive at a proportionate and just punishment, taking into account all the circumstances.

[90] All of the relevant factors in this case lead me to conclude that the appropriate penalty, to be imposed on count 4, is an order for detention for seven years. This reflects the combination of all of the offences. Lesser concurrent terms will be imposed on the other count. The offending is unquestionably serious, resulting in the tragic loss of one young life, the destruction of another through permanent life-changing injury and serious injury of another two young people. In the end, I must come back to a dispassionate application of the rules that apply under the Youth Justice Act,[24] and the particular need in this case to take account of the fact that, as truly dreadful as this young person's conduct was, he was 14 at the time, and suffering severe brain impairment as a result of then undiagnosed FASD, which is a significant factor mitigating the sentence to be imposed. As it is, seven years is a substantial penalty to impose on a child of BXY's age. That is the shortest time that I consider is justified in the circumstances.

[91] Despite his young age and his pleas of guilty, I am not persuaded that there are special circumstances in this case, justifying the exercise of the discretion to reduce the time before release to less than 70%. Although his significant impairment mitigates the sentence to be imposed, and has been given considerable weight in arriving at the term of seven years, the defendant is at high risk of reoffending because of that. His criminal history, and demonstrated failure, or inability, to comply with orders weighs significantly against the exercise of the discretion. In light of the evidence of Dr Perkins, he may struggle to comply with a supervised release order in the future. Community protection again looms large in making this decision.[25]

[92] I must also consider whether to record a conviction. The court has a discretion in this regard (s 183(3)). Considerations that the court must have regard to are set out in s 184(1). Having regard to the nature and seriousness of the present offences, the defendant's criminal history, the importance of the defendant accepting responsibility for what he has done and the harm caused, and denunciation of it,[26] in my view it is appropriate that the convictions for counts 3 and 4 should be recorded. Against the background of the defendant's significant criminal history - 144 convictions, none of which have been recorded - those features outweigh the potential impact a recorded conviction may have on rehabilitation and future employment opportunities, for the period that such convictions are disclosable.[27]

[93] Finally, the court must consider whether to impose a disqualification from holding or obtaining a driver licence.[28] In some ways this is moot, because the defendant is not presently eligible to hold or obtain a driver licence and will be detained for some years. On balance, I decline to order such a disqualification. When the defendant is able to, he should have the opportunity to obtain a driver licence and drive lawfully. This will potentially assist him to obtain and retain employment. Given the significant penalty otherwise being imposed on him, I do not see a need to impose this additional penalty.

[94] For those reasons, the defendant is sentenced as follows:

(a) On count 1 - burglary and stealing - detention for 18 months.

(b) On count 2 - unlawfully using a motor vehicle - detention for 18 months.

(c) On count 3 - dangerous operation of a vehicle causing grievous bodily harm, while adversely affected by an intoxicating substance, while excessively speeding - detention for five years.

(d) On count 4 - manslaughter - detention for seven years.

(e) Each of the periods of detention are to be served concurrently.

(f) On the summary charge of driving without a licence - the defendant is reprimanded.

(g) The convictions on counts 3 and 4 are recorded. All other convictions are not recorded.

[1] See R v Patrick (a pseudonym); R v Patrick (a pseudonym); Ex parte Attorney-General (Qld) [2020] QCA 51 at [42]- [43] per Sofronoff P.

[2] Although the defendant child identifies as Torres Strait Islander and Aboriginal, there was no material of this kind available.

[3] See s 9(1) of the Penalties and Sentences Act 1992.

[4] In addition to the history, which is exhibit 2, the Crown has prepared an outline of his "notable criminal convictions" in exhibit 3.

[5] See R v Ponting [2022] QCA 83 at [65], referring to R v Aston (No 2) [1991] 1 Qd R 375 at 380-381 and Veen v The Queen (No 2) (1988) 164 CLR 465.

[6] This was the consequence of a sentence imposed on 13 May 2022, as a result of breach of an earlier conditional release order. The calculations record that the 14 days from 13 May 2022 to 27 May 2022 were serving a sentence, and therefore by operation of s 218(2) they have been deducted from the total.

[7] Compare Attorney-General v Kanaveilomani [2015] 2 Qd R 509; [2013] QCA 404 at [12] per McMurdo P, at [58], [61] and [67] per Morrison JA and at [163] per Philippides J.

[10] See R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at 272 to 275 and R v William (a pseudonym) [2020] QCA 174 at [31]. See also LCM v The State of Western Australia [2016] WASCA 164, (2016) 262 A Crim R 1, in relation to a young offender, subsequently diagnosed with FASD, sentenced for manslaughter.

[12] See R v William (a pseudonym) [2020] QCA 174 at [24] per Sofronoff P.

[13] See, for example, for example, R v William (a pseudonym) [2020] QCA 174; R v Maygar; ex parte A-G (Qld); R v WT; ex parte A-G (Qld) [2007] QCA 310; and R v SDK [2020] QCA 269.

[14] The change to provide for a maximum penalty of life imprisonment occurred in 1996: see s 45(4) of the Juvenile Justice Legislation Amendment Act 1996 (Act No. 22 of 1996).

[15] Relevantly, s 9(2)(a)(i) of the Penalties and Sentences Act 1992 provides - as one of the general sentencing principles - that the court must have regard to the principle that a sentence of imprisonment should only be imposed as a last resort. Section 9(2A) states that that principle does not apply when sentencing an offender for any offence (a) "that involved the use of, or counselling or procuring the use of, or attempting or conspiring to use, violence against another person" or (b) "that resulted in physical harm to another person". This provision is much broader than s 176(3)(b)(i) - because of the wording of (a), and because of the presence of the word "or".

[16] R v Breeze [1999] QCA 303 at [17] and [18]; R v Oliver [2018] QCA 348 at [32].

[17] Sofronoff P, with whom Fraser and Philippides JJA agreed.

[18] R v SDK [2020] QCA 269 at [40] per McMurdo JA (Fraser Philippides JJA agreeing).

[19] R v Maygar; Ex parte A-G (Qld); R v WT; Ex parte A-G (Qld) [2007] QCA 310.

[20] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 591; Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [53]- [54] and Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 at [41].

[21] Fraser JA, Muir JA and McMurdo J (as his Honour then was) agreeing.

[22] Defence counsel also referred to R v Bernard (a pseudonym) [2020] QCA 232, in which a penalty of 3 and a half years' imprisonment was imposed, but I do not regard this as at all comparable, having regard both to the objective circumstances of the offence and the offender.

[23] R v KAL [2013] QCA 317 at [32] and [36].

[24] R v Patrick (a pseudonym) [2020] QCA 51 at [42].

[25] See R v KAL [2013] QCA 317 at [33].

[26] R v Patrick (a pseudonym) [2020] QCA 51at [54].

[27] See again, R v Patrick (a pseudonym) [2020] QCA 51 at [59], referring to the Criminal Law (Rehabilitation of Offenders) Act 1986, ss 3 (definition of rehabilitation period) and 6.

[28] See s 254 of the Youth Justice Act and s 187 of the Penalties and Sentences Act 1992.