CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES –
RELEVANT FACTORS – where two juveniles burgled a home
– where they
stole a car – where they burgled a second home – where one was armed
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES –RELEVANT FACTORS – where two juveniles burgled a home– where theystole a car – where they burgled a second home – where one was armedwith a sickle and one was armedwith a knife – where occupants confrontedthe juveniles – where the juveniles did grievous bodily harm to two of theoccupants – where the juveniles wounded two other occupants –wherethe juveniles faced four charges which carried lifeimprisonment – wherethe life offences only carried a maximum of 10 years unless they were“particularly heinous”– whether each offence was particularlyheinous – what is the appropriate sentenceCriminal Code, s 2, s7, s 31, s 205A, s 317, s 339, s 408A, s 419Youth Justice Act 1992, s 150, s 175, s 176, s 227, Sch1Barbaro v The Queen (2014) 253 CLR 58[2014] HCA 2,
cited
Hurt v The King (2024) 98 ALJR 485
[2024] HCA 8,
cited
Markarian v The Queen (2005) 228 CLR 357
[2005] HCA 25,
cited
R v Amery [2011] QCA 383, considered
R v Barlow (1997) 188 CLR 1
[1997] HCA 19, cited
R v BDY
[2023] QCA 40, cited
R v Beck [1990] 1 Qd R 30, cited
R v D
[1995] QCA 329
[1996] 1 Qd R 363, cited
R v D [2000] 2 Qd R 659
[1999] QCA 231,
considered
R v De Simoni (1981) 147 CLR 383
[1981] HCA 31,
cited
R v Fisher (2023) 13 QR 619
[2023] QSC 48, cited
R v
Galeano [2013] 2 Qd R 464
[2013] QCA 51, cited
R v Gwilliams
[1997] QCA 389, cited
R v Kilic (2016) 259 CLR 256
[2016] HCA 48,
cited
R v KU
Ex parte Attorney-General (Qld) [No 2] [2011] 1 Qd R
439
[2008] QCA 154, cited
R v Latemore [2016] QCA 110, considered
R v Maygar
Ex parte Attorney-General (Qld)
R v WT
Ex parte
Attorney-General (Qld) [2007] QCA 310, followed
R v Nagy
[2004] 1 Qd R 63
[2003] QCA 175, cited
R v Noble and Verheyden
[1996] Qd R 329
[1994] QCA 283, cited
R v Patrick (a
pseudonym)
Ex parte Attorney-General (Qld) (2020) 3 QR 578
[2020] QCA 51,
followed
R v SDK (2020) 6 QR 568
[2020] QCA 269, cited
R v W
Ex parte Attorney-General (Qld) [2000] 1 Qd R 460
[1998] QCA 281, cited
R v Warne [2015] QCA 9, considered
R v WAY
Ex parte
Attorney-General (Qld) (2013) 238 A Crim R 477
[2013] QCA 398,
cited
R v Whittaker [2011] QCA 237, considered
R v William
(a pseudonym) [2020] QCA 174, followed
R v YTZ
[2023] QCA 87, considered
Re JTL
[2021] QSC 211, cited
Judgment (108 paragraphs)
[1]
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - RELEVANT FACTORS - where two juveniles burgled a home - where they stole a car - where they burgled a second home - where one was armed with a sickle and one was armed with a knife - where occupants confronted the juveniles - where the juveniles did grievous bodily harm to two of the occupants - where the juveniles wounded two other occupants -where the juveniles faced four charges which carried life imprisonment - where the life offences only carried a maximum of 10 years unless they were "particularly heinous" - whether each offence was particularly heinous - what is the appropriate sentence
[2]
Criminal Code, s 2, s 7, s 31, s 205A, s 317, s 339, s 408A, s 419
T A'Burrow for the Chief Executive of the Department of Children, Youth Justice and Multicultural Affairs
[33]
Director of Public Prosecutions (Queensland) for the Crown
[34]
[1]BZZ, you pleaded guilty before me on 9 February 2024 to one count of burglary and stealing,[1] one count of unlawfully using a motor vehicle to facilitate the commission of an indictable offence,[2] one count of burglary by breaking, in the night, while armed in company,[3] and four counts of malicious acts with intent.[4]
[2] The four counts of malicious acts with intent are counts 4, 5, 6 and 7 on the indictment. Counts 4 and 5 each charge that grievous bodily harm was done. Each of counts 6 and 7 charge that wounding was done.
[3] AZY, you pleaded guilty before me on 9 February 2024 to those offences to which BZZ pleaded guilty, you being his co-accused. In addition to those offences, you also on that day pleaded guilty to one count of assault occasioning bodily harm whilst armed[5] and one count of contravening, without reasonable excuse, an order made about device information from a digital device.[6]
[4] It is of some significance that you were both charged with four counts of attempted murder. They were counts 4, 5, 6 and 7. The charges of malicious acts with intent to which you both pleaded guilty were alternatives to those counts. The Crown, upon your arraignment, accepted the guilty pleas to the counts of malicious acts with intent, in discharge of the attempted murder counts.
[5] BZZ, you were born on 6 October 2005 and were therefore 15 years and 10 months of age at the time of the commission of the offences on 16 August 2021. AZY, you were born on 7 December 2005 and were therefore 15 years and 8 months at the time of the commission of the offences.
[6] Both of you therefore fall to be sentenced under the provisions of the Youth Justice Act 1992.
[35]
[7] The offending represented by the charges on the indictment falls into two distinct episodes, although the second episode occurred within only hours of the first.
[8] The first episode occurred in Forest Lake. That episode resulted in count 1 on the indictment: burglary and stealing; and count 2: unlawfully using a motor vehicle to facilitate the commission of an indictable offence.
[9] The pair of you, together with two associates, decided to steal a car which you planned to take to the Gold Coast to race.
[10] Unlike in times gone by, cars can no longer be hotwired and stolen. This is obviously a good thing, but a consequence is that persons minded like you to steal cars now need to gain possession of the keys. That often involves breaking into a house to search for and steal the keys to the target car. This case is a stark example of the potential for danger and injury when intruders enter occupied dwellings.[7]
[11] At about 1:00 am on 16 August 2021 you, together with your two accomplices, saw a Mercedes car and a Hyundai car parked outside a house in Forest Lake. The pair of you broke into the house looking for the keys to the Mercedes. Your two accomplices waited outside.
[12] Once in the house, you stole a handbag, a bottle of whisky and a mobile telephone. The keys to the Mercedes were not in the handbag but the keys to the Hyundai were. The entering of the dwelling in Forest Lake and the theft of the handbag and contents constituted count 1 on the indictment.
[13] The owner of the Hyundai, Ms Michelle Waters, awoke to find you two and your two associates in the Hyundai about to reverse down her driveway. Ms Waters ran alongside the car but lost her footing and fell. You all sped off in Ms Waters' car. The handbag was discovered on the driveway, but her purse which contained credit cards and personal identification had been taken. Your unlawful use of the car constituted count 2 on the indictment and your later use of it in the commission of count 3 established the circumstance of aggravation charged in count 2.[8]
[14] Fortunately, Ms Waters was not seriously injured, although she did suffer bruising and scratches, and was treated in hospital. She still has some residual damage to her right foot and leg.
[36]
[51] Each of you face five offences which by law, would carry life imprisonment if committed by an adult.
[52] They are the count of aggravated burglary, which is count 3, and the four counts of malicious acts with intent, which are counts 4, 5, 6 and 7.
[53] By ss 176(3)(b)(i) and (ii) of the Youth Justice Act, the maximum sentence for each life offence is in your case 10 years' imprisonment unless two conditions are fulfilled:
[37]
(a) the offence involves the commission of violence against a person;[10] and
(b) the Court considers the offence to be a particularly heinous offence having regard to all the circumstances.[11]
[38]
[54] Where there is a series of offences, as here, each offence carries a maximum and the Court may impose cumulative sentences, or pick an offence to which a head sentence reflecting the totality of the offending should be attached.[12] If necessary, justice can be achieved by making one or more sentences cumulative in order to reflect the totality of the offending. The making of cumulative sentences is not prohibited by s 214(1) of the Youth Justice Act as the sentences here are to be imposed by the force of s 176 not s 175.
[55] Therefore, if the elements of s 176(3)(b) are not fulfilled in relation to any of the five offences, the total available maximum is 50 years.
[56] It is obviously not submitted by the Crown that you be sentenced either to life imprisonment or a fixed term anywhere near 50 years. However, the identification of the maximum sentence is important as it serves various purposes. Firstly, it marks the legislative assessment of the appropriate maximum. Secondly, it sets the spectrum from the least serious examples of the offending to the most serious examples of the offending into which the sentence under consideration should be placed. Thirdly, the maximum provides a yardstick upon which to assess the sentence.[13]
[57] What is in consideration, by s 176(3)(b)(i), is "the offence". "The offence" is the act or omission which renders an offender liable to criminal sanction.[14] If the Crown seeks to have you sentenced on any particular count on the basis that offence is "particularly heinous" and involves the commission of violence against a person, then those two elements must be proved in relation to that particular offence.
[39]
"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."
[40]
[68] In R v William(a pseudonym)[23], Sofronoff P, with whom Morrison JA and Mullins JA (as her Honour then was) agreed, analysed s 176 in the context of determining the extent to which circumstances peculiar to the offending child, but separate from the objective features of the act or omission constituting the offence, could be relevant considerations for the determination of whether an offence is "particularly heinous". His Honour considered and followed Maygar and then turned to the Youth Justice Principles and identified those which were relevant to the sentencing. After referring to a number of features relevant to the assessment of sentence, his Honour said:
[41]
"These facts are some of the circumstances to which section 176 of the Youth Justice Act1992 (Qld) would have obliged the Court to have regard if William were sentenced as a child. They bear upon his true character and are, therefore, relevant to a consideration of the heinousness of his offence."[24]
[42]
[69] His Honour then held that "all the circumstances" include subjective factors such as rehabilitative prospects.[25]
[70] Those comments do not answer the direct question posed here. However, what they establish is that the determination of whether an offence is or is not "particularly heinous" requires an assessment of the offending by reference to the relevant sentencing principles and considerations.
[71] The statutory task in relation to each of the five offences which the Crown seeks to have declared as "particularly heinous" requires the identification of the circumstances upon which the sentence is to be assessed.
[72] Circumstances legitimately taken into account on sentence for a particular offence may be ones which show the commission of separate identifiable offences. However, there are limitations. These principles were considered in R v D[26] but, as observed by the Court of Appeal in that case, they are often difficult to apply.
[73] It is not necessary to delve into the various issues identified in R v D[27] which may arise in determining what circumstances beyond the act or omission constituting the offence may be legitimately taken into account on sentence.
[74] It is sufficient to say that circumstances which are relevant to the particular offence may be taken into account but, just as the commission of a separate offence cannot be taken into account so as to increase the sentence for the offence in question, neither can those circumstances be taken into account to elevate an offence to the status of "particularly heinous".
[75] There is nothing in s 150 of the Youth Justice Act (which prescribes the principles for sentencing a child) or, the Youth Justice Principles or s 9 of the Penalties and (which is incorporated into the sentencing process by of the ) to suggest that particular heinousness is assessed by reference to all the conduct globally. The appropriate approach is to separately determine whether each of the five offences are "particularly heinous" by reference to factors ("all the circumstances") which are relevant as determined by the usual principles on the question of sentence. Those considerations include circumstances which explain the gravity of the offending, including that a particular offence is not an isolated one, but without taking into account the circumstances of the commission of the other offences which individually attract criminal sanction.
[43]
(a) there were a group of four offenders;
(b) you two entered a dwelling at nighttime;
(c) it was foreseen that:
(i) the house may be occupied at the time of entry; and
(ii) resistance may be offered by the occupants.
(d) weapons were taken into the house to overcome any resistance if necessary; and
(e) violence to innocent persons lawfully occupying the house was therefore contemplated.
[44]
[77] I now turn to consideration of whether each of the five offences were relevantly "particularly heinous".
[78] The legislative introduction of the notion of a life offence being "particularly heinous" is a rather artificial legal device. The exercise of requiring a determination of whether an offence is "particularly heinous" is only necessary where the offence is one that carries a maximum of life imprisonment. As the harshest penalty that can be imposed under the criminal law of Queensland is life imprisonment, offences which carry such a sentence will, as a matter of policy, be those of the most serious nature and surely "heinous" by definition.
[79] However, s 176 draws a distinction between life offences which are "particularly heinous" and life offences which are not. As Keane JA observed in Maygar[28]:
[45]
"[Section] 176(3) necessarily contemplates that cases of murder will not be "particularly heinous" simply because the offence involved is murder."
[46]
[80] Therefore, what is in consideration are circumstances which elevate the offending to a higher level of culpability than normally attaches to such offending. In R v D[29], the Court of Appeal observed:
[47]
"To fall within the description of "a particularly heinous offence" the offence must be one that was particularly odious or reprehensible."[30]
[48]
[81] In R v William (a pseudonym)[31], Sofronoff P adopted the dictionary definition of the term "heinous" being "hateful, odious; highly criminal or wicked; infamous, atrocious: chiefly characterising offences, crimes, sins and those who commit them"[32]. His Honour then observed that it is not enough for the offence to be heinous. The test requires the offence to be "particularly heinous".
[82] The "offence" committed in each of the counts by each of you are the acts, with any relevant state of mind or other circumstances, of each of you.[33] It is well established that when sentencing co-offenders, a sentencing court looks at the respective roles and conduct in the commission of the count and that often leads to different offenders receiving different sentences.
[83] The Crown approached the question of whether the offences were "particularly heinous" in a broad, global way. They looked at the series of offences as something which was committed by you jointly and made no attempt to address the question posed by s 176 by reference to what each of you did in order to render yourself criminally liable.
[84] In my view, the approach of the Crown is misconceived. The appropriate approach is to regard each count separately and consider what each of you did "in all the circumstances", to determine whether, in relation to each count, the offence which you each committed was "particularly heinous".
[85] Count 3 is the first of the life offences. It is the count of burglary of the Kefus' home. As earlier observed, circumstances of aggravation are alleged, being that you were armed and in company. A circumstance of aggravation which could have been alleged but was not, was that there was threatened or actual violence.[34]
[86] The structure of the indictment was to charge burglary with varying circumstances of aggravation but not charge the circumstance of aggravation that there was threatened or actual violence. Charged separately, were each act of violence which occurred within the house, during the burglary. They are counts 4, 5, 6 and 7.[35]
[49]
(a) you were not in possession of the sickle;
(b) you did not make the decision to strike Mrs Kefu with the sickle; and
(c) you did not therefore directly cause Mrs Kefu's horrific injuries.
[50]
[94] I find that as regards you the offence reflected by count 4 is not particularly heinous.
[95] Count 5 concerns the injury to Mr Kefu.
[96] As already explained, it is accepted by you AZY, that you actually stabbed Mr Kefu and thereby committed count 5 as the primary actor. In my view, despite that fact, there is no significant distinction between the criminality of each of you as regards count 5.
[97] In addition to the five factors which are common to all five offences:
[51]
(a) when Mr Kefu ran at you both with the stool he was obviously acting in defence of himself, his home and, by that stage, his critically injured wife;
(b) you both stood your ground and attacked him with the sickle and knife. You could have retreated;
(c) although Mr Kefu is a mature man and you were both only 15 years of age at the time of the offending, the fact remains that you outnumbered him;
(d) you were both armed with bladed weapons while Mr Kefu was only armed with a stool;
(e) each of you were attempting to stab or slash Mr Kefu with your weapons; and
(f) Mr Kefu was very badly injured.
[52]
[98] The fact is that it was you, AZY, who actually stabbed Mr Kefu, but you, BZZ, were trying to cut him with the sickle during the same episode in which he was stabbed.
[99] In all the circumstances, including your personal and mitigating circumstances to which I will later refer and which I have taken into account, I find that with respect to each of you, count 5 is a particularly heinous offence.
[100] Count 6 is constituted by you, BZZ, stabbing Joshua Kefu with the sickle. As with count 4 you, AZY, are guilty of count 6 as an aider and encourager of BZZ.
[101] Count 6 is different to counts 4 and 5. What is charged in each of counts 4 and 5 is that grievous bodily harm was caused, respectively to Mrs Kefu and Mr Kefu. Count 6, and indeed count 7, allege wounding.
[102] The maximum sentence for malicious acts with intent is life imprisonment whether the injury sustained is grievous bodily harm or a wound. However, the seriousness of an injury, be it grievous bodily harm or a wound, is a consideration when determining the criminality of an offence.[38]
[103] Joshua Kefu suffered various injuries. He sustained cuts to his back and left side. They were suffered as a result of your use of the sickle BZZ. There was a cut on his right forearm. That, according to the agreed statement of facts, was sustained in these circumstances: "Joshua grabbed hold of the handle of the sickle and was cut on his right forearm".
[104] Therefore, the injury to Joshua Kefu's forearm was not a result of a direct blow by you, BZZ, with the sickle.
[105] As earlier observed, Joshua Kefu suffered another injury. That was the dislocation of his shoulder when you, BZZ, and he slipped and fell to the floor. The dislocated shoulder is not a "wound" and therefore is not a charged injury.
[106] The offence committed against Joshua Kefu is a very serious one. The question though is whether it is "particularly heinous" in "all the circumstances". The wounds suffered by Joshua were not as serious as those suffered by each of his parents. The wound to his forearm occurred in the struggle rather than from a deliberate blow.
[107] Even taking into account the five features which I have identified as being common to each of counts 3, 4, 5, 6 and 7, I do not find that count 6 as committed by you, BZZ, was "particularly heinous" as that term is understood to be meant in of the .
[53]
(a) count 1: burglary and stealing at Forrest Lake, 10 years' detention[39];
(b) count 2: unlawfully using a motor vehicle to facilitate the commission of an indictable offence being Ms Waters' Hyundai motor car, 5 years' detention[40];
(c) count 8: assault occasioning bodily harm upon Mr Cannon, 5 years' detention[41]; and
(d) count 9: contravening order about device information from digital device, 2 years, 6 months' detention[42].
[54]
[116] Counts 8 and 9 only concern you, AZY. Neither are life sentences. I have earlier described the circumstances of count 8, the assault upon Mr Cannon.
[117] As to count 9, you were detained at the scene. You contravened an order that you provide the access code to your mobile telephone which was seized from you on 19 August 2021.[43]
[55]
[118] Turning to your personal circumstances BZZ. As earlier observed, you were born on 6 October 2005. You were born in Melbourne and moved to Queensland at the end of 2018 with your family.
[119] You commenced school and although you were bullied, you made friends, particularly with a boy called Jermayne. At the start of grade 4 your family relocated and you went to a new school. There, you began to display symptoms of Tourette's Syndrome. This manifests itself in involuntary jerks or tics and involuntary vocalisation.
[120] In your first three years of school you had been the subject of bullying and racial taunts. Your mother is Filipino. The bullying increased due to the manifestation of the symptoms of Tourette's Syndrome.
[121] In grade 4 you learnt of the death of Jermayne and this had a profound impact upon you. The bullying continued and at the end of grade 5 you were moved by your parents back to your original school.
[122] You graduated from primary school in 2016 and commenced your secondary school education in 2017. This was a better time and you excelled at sport, particularly tennis. However, in 2018 you had to retire from playing competitive tennis due to a persistent wrist injury. This was a great disappointment to you and had an effect upon you.
[123] At the end of 2018 your family moved to Queensland for work and for business opportunities. You did not wish to move. Your family settled in Springfield in the greater Ipswich area.
[124] When you started high school in 2019 you were again bullied. The topics of the bullying included the effects of your Tourette's Syndrome and your race. You did not settle into high school. By grade 10, in 2021, you had begun associating with older students and you then began to engage in substance use including cannabis, tobacco and alcohol. You were under the influence of substances when you committed the present offences.
[125] Midway through grade 10 the school administration suggested that you enrol at a vocational school and that occurred.
[126] It seems that around this time there was a decline in your mental wellbeing and you expressed suicidal ideations. Your father assisted you to contact Lifeline for crisis support and he made arrangements for psychological treatment for you. This was difficult because of the demands on the health system at the time of the COVID-19 pandemic. You began to move away socially from your family and towards anti-social peers.
[56]
[149] Before proceeding to the sentence itself, it is appropriate to turn to s 227(1) of the Youth Justice Act. That provides that if sentenced to a term of detention you must each serve 70 per cent of the period of detention unless there are "special circumstances". If there are "special circumstances" then a discretion arises to order that you be released after serving some period being between 50 per cent and 70 per cent of the term of detention.
[150] Special circumstances exist here to enliven the discretion.
[151] As already observed you, BZZ, had not been convicted of any offence before the current offences were committed. You had committed offences some weeks before the current offences and had been charged. However, you had not been dealt with and were not dealt with for about another year. You, AZY, have suffered no convictions other than the current ones.
[152] It is unusual for offenders, be they adult or juvenile who commit offences of this gravity to have no prior criminal history. The fact that neither of you had a prior criminal history means that neither of you have previously been within the system and therefore neither of you have had the benefit of any orders for supervision made under the Youth Justice Act. Your response to supervision while in detention bodes extremely well for your rehabilitation. Given that the prospect of rehabilitation fundamentally underpins the approach to juvenile justice prescribed by the Youth Justice Act,[44] the fact that you have responded well to your first intervention constitutes special circumstances for the purposes of s 227.
[57]
[153] I have turned my mind to s 150 of the Youth Justice Act and also the Youth Justice Principles.
[154] I have taken into account the nature and seriousness of the offending. You both invaded a house being peaceably occupied by a family and you injured four of the occupants, inflicting grievous bodily harm on two of them.[45]
[155] The offending is aggravated in particular by the fact that you were both armed and had expressed a willingness to use the weapons if confronted. There are mitigating circumstances. Both of you permeated towards undesirable peer groups through family circumstances. You both pleaded guilty. You both have shown remorse and insight through participation in restorative justice programs and otherwise. You have both made significant steps toward rehabilitation. You both have made plans for the future.[46]
[156] You, AZY, have been exposed to significant domestic violence and that contributed to you associating with an undesirable peer group and, in turn, contributed to the commission of the offending.[47]
[157] I have taken into account the pre-sentence reports.[48] I have directed myself to general sentencing principles including the need for public denunciation and deterrence in relation to these types of offences.
[158] I have directed myself to principle 18 of the Youth Justice Principles which prescribes that detention is the last resort and a child should be detained for the least time that is justified in the circumstances.
[159] There are questions of parity as between the pair of you. I consider, BZZ, that despite the fact you are not party to counts 8 and 9, you are more culpable than AZY. You have committed two offences that I have found to be particularly heinous. They are the offences which led to the injury to Mrs Kefu and Mr Kefu. You, AZY, have only been found to have committed one particularly heinous offence and that was the offending against Mr Kefu.
[58]
(a) count 1: 2 years' detention;
(b) count 2: 12 months' detention;
(c) count 3: 3 years' detention;
(d) count 5: 7 years' detention;
(e) count 6: 4 years' detention; and
(f) count 7: 3 years' detention.
[59]
[177] In relation to count 4 I sentence you, BZZ, to 8 years' detention and you, AZY, to 7 years' detention.
[178] You, AZY, I sentence to 6 months' detention in relation to count 8, and 3 months' detention in relation to count 9.
[179] All periods of detention will be served concurrently with each other.
[180] You have both been in custody for almost three years. That time is calculated administratively to be time served on the periods of detention and there is no need for me to make a declaration as is usually made for adult offenders sentenced under the Penalties and Sentences Act.
[181] The offending here is very serious. The seriousness of offending may itself justify the recording of a conviction.[63] However, as I have earlier explained, neither of you had prior convictions before the current offending and neither of you have had the benefit of supervision pursuant to orders under the Youth Justice Act. Both of you have taken the opportunities that have been presented to you whilst in detention. In those circumstances, notwithstanding the seriousness of the offending, no convictions ought to be recorded.
[182] I have already concluded that special circumstances are present here to enliven the discretion to order your release from detention after you have served between 50 per cent and 70 per cent of the periods of detention I have just ordered.
[183] In all the circumstances, but especially the lack of prior criminal history and your rehabilitative efforts, I order that you both be released from detention after serving 50 per cent of the periods of detention I have imposed.
[184] The upshot is that you, BZZ, are sentenced to 8 years' detention to serve 4 years before release with no convictions recorded. You, AZY, are sentenced to 7 years' detention to serve 3 years, 6 months before release with no convictions recorded.
[15] The remaining counts on the indictment, being counts 3 to 8, result from the truly horrific events that unfolded when the pair of you broke and entered the home of Mr Toutai Kefu, his wife, Mrs Rachel Kefu, and their five children then aged between 13 and 21 years.
[16] The four of you drove in the Hyundai to Coorparoo looking for another car to steal. You found yourselves in Buena Vista Avenue, Coorparoo and you noticed a Volkswagen car parked outside the Kefu's house. You resolved to enter the house and steal the keys to the target car; the Volkswagen.
[17] Mr Kefu had a long career as an international rugby player and therefore enjoys some fame. It is not suggested that you targeted his family's house for that reason. You did not know who owned the house. You were attracted only by the prospect of stealing the Volkswagen.
[18] As I will explain, when you entered the house, you, BZZ, were armed with a sickle and you, AZY, were armed with a red handled knife. You may have had in your possession other knives, but the two instruments that appear to have done the damage to the Kefu family are the sickle and the red handled knife.
[19] By the time you invaded the sanctity of the Kefus' house it was about 3:00 am. Buena Vista Avenue is very clearly a suburban residential area. You could have not but realised that by entering a house on Buena Vista Avenue, Coorparoo in the early of hours of the morning when there was a car parked outside, that there was likely to be a family asleep inside the house.
[20] The evidence is that you were in fact well aware of the possibility that during your invasion of the house you may encounter the occupants. I take this from the agreed statement of facts, where it is recorded that there was a conversation in the Hyundai between you and your two accomplices where it was said in effect that "if someone wakes up you just stab them".
[21] Several inferences should be drawn. Firstly, you realised the possibility of confronting an occupant of the house. Secondly, you were prepared to enter the house to steal the car keys regardless of the possibility that you may encounter an occupant. Thirdly, your plan was, that if you did encounter an occupant, not to abandon your plan to steal the car keys, but to overcome resistance. Fourthly, you intended to overcome any resistance by use of force. Fifthly, the force contemplated by you to overcome any resistance included the use of bladed weapons, namely the sickle and the red handled knife.
[22] The Kefus' house is situated on the northern side of Buena Vista Avenue. The land slopes downwards from south to north. You entered the property from the front and ascended stairs at the back of the house onto a deck. You entered the house through a window adjacent to the deck.
[23] Mrs Kefu was awoken by car doors closing. She looked out a window and saw what she now knows to be the Hyundai. Mistakenly assuming the car was being driven by an Uber driver, she went back to bed. She then heard noises from downstairs and went to investigate. She discovered you two in her house. You demanded the keys to the car, being the Volkswagen and Mrs Kefu screamed. You told her to shut up or you would kill her. Mr Kefu, alerted to the emergency by his wife's screams, ran to her aid.
[24] You, AZY, grabbed Mrs Kefu by the arm and held the knife to her. Mr Kefu implored you to leave Mrs Kefu alone and you demanded the keys to the car under threat of hurting her. During this time, you both were waving your weapons and demanding the car keys.
[25] Although what occurred next is dealt with in the agreed statement of facts which was tendered, there is some disagreement as to the conclusions which I should draw.
[26] While you were demanding the keys, Mr and Mrs Kefu pointed to a bowl on the kitchen bench and indicated the presence of the keys. The fact that you were being offered the keys did not seem to register with you. Mrs Kefu took two kitchen knives from the knife block and handed one to her husband, but both then put those knives down. Mr Kefu instead armed himself with a metal bar stool. By this stage, you had been told to leave the house. There was nothing stopping you from leaving.
[27] Then you, BZZ, struck Mrs Kefu a blow with the sickle.
[28] The Crown submits that the delivery of the blow with the sickle to Mrs Kefu was a deliberate, gratuitous act of violence in circumstances where you had been offered the keys to the car and invited to leave. However, I accept submissions made on your behalf that the circumstances are not as clear as the Crown submitted.
[29] There is other evidence that Mrs Kefu may have reached towards the kitchen bench before she was struck. That is where the knives had been placed. The pair of you may not have appreciated that you were being offered the keys. To say that this was a dynamic and quickly escalating series of events is an understatement and there is a possibility, which I should accept, that you were confused and struck Mrs Kefu in panic. The assault upon Mrs Kefu constitutes count 4.
[30] In my view, these findings hardly reduce your culpability in any significant way. As already observed, you entered the house having already determined that if resistance was offered by any occupants, you would overcome that resistance by use of the bladed weapons with which you had armed yourselves and which you took into the house. As I have already found, you had every intention to use the weapons if necessary. Whether you, BZZ panicked or not, you did use the sickle to injure Mrs Kefu, and the objective circumstances were such that you were not under threat and you could have simply left the house once you had been confronted.
[31] The sickle is self-evidently a wicked weapon. The handle is relatively long, as is the blade. Given the injury to Mrs Kefu, you, BZZ, must have wielded the sickle with some force. By your plea of guilty to count 4, which represents your act in injuring Mrs Kefu, you accept that you manifested an intention to do her grievous bodily harm and you certainly did.
[32] Mrs Kefu suffered a 10 centimetre cut to her left mid forearm. The cut covered an arc of approximately 50 per cent of the circumference of her arm. This resulted in muscles, tendons, nerves and a major vein in her forearm being severed. The blade penetrated the cortex, being the outer part of the bone of her arm. Mrs Kefu has undergone surgeries and even now, almost three years after your attack upon her, she has significant residual disabilities in her arm.
[33] Upon his wife being attacked, Mr Kefu turned the metal stool sideways and charged towards the pair of you. Neither of you fled. You both stood your ground and responded by attacking Mr Kefu with your weapons. In the course of that fight, Mr Kefu was stabbed. That is the act which constitutes count 5 on the indictment.
[34] Mr Kefu's major injury was a stab wound to his lower right chest. The blade entered his ribcage, severed an artery and penetrated his liver. This was an injury which would have been fatal had medical attention not been obtained. He underwent surgery which, amongst other things, stopped the bleeding from the artery. Mr Kefu also suffered other injuries, including various cuts and fractures to his right foot.
[35] It is accepted by your barrister, AZY, that the stab wound, being the most significant injury suffered by Mr Kefu, was inflicted by you with the red handled knife.
[36] You, BZZ, received a stab wound to your upper back in the altercation with Mr Kefu.
[37] Although the violence continued, it is well to pause at this stage in the hope that you appreciate the nightmare that you had orchestrated. Mr and Mrs Kefu, on any version of events, had done absolutely nothing wrong. They were peacefully occupying their house with their five children. You entered the sanctity of that dwelling with weapons and with an intent to use them in order to achieve your purpose of stealing their car. Any actions of violence by Mr Kefu to you were completely and totally justified. Because of your actions, he was in a position where he had to defend his family against life-threatening violence being inflicted by you two invaders. Within a short time of you entering the house, both Mr and Mrs Kefu were very severely injured, with Mr Kefu's injuries threatening his life. But more damage to the Kefu family was to come.
[38] Mrs Kefu screamed for the assistance of her and Mr Kefu's adult son, Joshua. He came from his upstairs bedroom downstairs and tackled you, BZZ, who were still armed with the sickle. You, BZZ, attacked him with the sickle, slashing his back and left side. This left a gaping wound. Joshua Kefu struggled with you but you both slipped in blood on the floor. The fall dislocated Joshua Kefu's left shoulder.
[39] Joshua Kefu's injuries were a 20 centimetre vertical laceration to the left shoulder blade. The wound was about 10 centimetres deep[9]. There was a further 10 centimetre vertical laceration to his upper back and a 5 centimetre laceration to his right forearm. This penetrated the muscle. There was a relatively minor laceration to his chest.As discussed, Joshua Kefu's left shoulder was also dislocated. The attack upon Joshua Kefu is reflected by count 6.
[40] During Joshua Kefu's struggle with you, BZZ, Madison and Olivia Kefu tried to leave the house. Mrs Kefu had slipped in blood and Madison was attempting to help her to her feet when you, BZZ, attacked her with the sickle. She put her arm out to protect herself and was cut across her hand. The injury was a deep 4 centimetre laceration to her right hand, which extended through muscles, and damaged cartilage and bone at her wrist joint. The blade of the sickle chipped a small fragment of bone in her wrist joint. Fortunately, neither the ulnar nerve, nor the artery were damaged. That constitutes count 7 on the indictment.
[41] Eventually, you, BZZ, left via the window through which you had entered the house. As previously observed, you were injured. You had a 2 centimetre stab wound to your back which had punctured your lung. You managed to get to the Hyundai and your accomplices took you to hospital.
[42] You, AZY, ran for the now open front door of the house. This was left open by Madison, who by this stage had managed to exit the house and was heading for a neighbour's house to obtain help.
[43] Mr Benjamin Cannon, the Kefus' next door neighbour, hearing the commotion, had come to investigate. You, AZY, effectively ran into him as you exited the house. You assaulted Mr Cannon and that is count 8. Mr Canon suffered a 1.5 centimetre cut to his left ring finger, grazes to his left shin and a small graze near his left thumb. He apprehended you and in due course police arrived.
[44] The cause of the injury to you, BZZ, is somewhat of a mystery. None of Mr and Mrs Kefu, Joshua or Madison Kefu used in self-defence, a bladed instrument during their ordeal. Your injury may have been caused accidentally by the sickle or perhaps you have been unintentionally injured by AZY and his red handled knife. In any event, if the injury was inflicted by any of the Kefus, it was lawfully inflicted in the defence of the family members and the home. Any injury you sustained was a direct consequence of your criminal actions and the danger that you created. The injury is though relevant to sentence as I will later explain.
[45] In due course, police took photographs of the scene and some of these were tendered. I hope you have seen them. They show blood splashed and smeared in substantial quantities on the floor and on walls. It frankly looks like a warzone, but we know that it is in fact the result of your violent invasion and attack upon the occupants of a family home in a quiet Brisbane suburban street.
[46] Victim impact statements were received from Ms Waters, Mrs Kefu and Mr Cannon.
[47] Ms Waters explains in her statement that she suffered some physical injuries, especially to her right foot and leg, which still trouble her. Her Hyundai was damaged and written off, necessitating the purchase of a replacement vehicle which put Ms Waters into debt. She suffers ongoing anxiety and distress as a result of her home being illegally entered by strangers.
[48] Mrs Kefu read her statement in Court. She explained that there have been financial impacts of your offending against her family, including interruption to her conduct of her businesses whilst she was recovering from her injuries.
[49] Understandably, the offending has impacted upon her mental health and overall wellbeing. She not only suffered severe physical injuries herself, but also witnessed life threatening injuries inflicted upon her husband and serious injuries inflicted on two of her children.
[50] Mr Cannon read his statement in Court. He was not severely injured physically, and he did not witness your attack upon the Kefu family. He did witness the aftermath of your offending against his neighbours and this has had a profound and damaging effect upon him.
[58] The two of you are criminally liable under each of counts 4, 5, 6 and 7 on different bases. You, BZZ, did the acts which constituted each of counts 4, 6 and 7, which were the acts which injured Mrs Kefu, Joshua Kefu and Madison Kefu respectively. AZY, you did the act which constituted count 5, which was the stabs or cutting which injured Mr Kefu.
[59] It is likely that the injury to Mr Kefu was inflicted by the red handled knife. You, AZY, were in possession of the red handled knife. Your barrister, Ms Reece, sensibly accepts that the most significant injury to Mr Kefu, being the stab to his torso, was inflicted by you. I find that you were the offender who inflicted the injury to Mr Kefu.[15]
[60] As to each of counts 4, 6 and 7, you AZY are liable for BZZ's actions as you aided him in the commission of those offences by your presence[16] and your actions within the house.[17]
[61] You, BZZ, are liable for AZY's actions in committing count 5 as you aided him in the commission of that offence by your presence and your actions within the house.
[62] Section 176(3)(b)(ii) of the Youth Justice Act provides that in determining whether an offence is "particularly heinous", the Court has regard to "all the circumstances". The Crown submits that "all the circumstances" in relation to each of the five offences includes circumstances of the commission of each of the other offences and the particulars of the other offences.
[63] It would be surprising if the Crown's submission is correct. The section on its face does not refer to a series of offences. It does not contemplate consideration of the offending generally. The statutory intent of the section is to determine whether "the offence" is "particularly heinous".
[64] There are cases where s 176 has been applied and the term "all the circumstances" have included subjective mitigating circumstances.[18] No authority could be found as to the proposition that "all the circumstances" would include the commission of other offences in the determination of whether a particular offence was "particularly heinous".
[65] In R v D[19], the child offender murdered a female Japanese tourist and then interfered with her corpse. The murder attracted consideration of s 121(3) of the Juvenile Justice Act 1992, the legislative predecessor to s 176 of the Youth Justice Act. It was held that in determining whether the murder was "particularly heinous", the sentencing court could not have regard to the offender's subsequent conduct in interfering with the corpse. The Court of Appeal held that what was relevant to whether the murder was "particularly heinous" were "the circumstances of the killing itself and not the offender's subsequent conduct in dealing with the body".[20]
[66] As observed, there are cases where subjective considerations beyond the direct circumstances of the commission of the offence were considered as circumstances militating against a finding of particular heinousness.
[67] In R v Maygar; Ex parte Attorney-General (Qld); R v WT; Ex parte Attorney-General (Qld)[21] (Maygar), the Court of Appeal considered an offence of murder committed by a child who acted under compulsion. Compulsion is not a defence to murder[22] but where life imprisonment was not a mandatory sentence, the fact of the offender acting under compulsion was a mitigating circumstance. The question in Magyar was whether that factor could also be taken into account in determining whether the offence was "particularly heinous". Keane JA (as his Honour then was) observed:
[76] The circumstances which are common to all five offences under consideration are:
[87] The way the case has been charged is that the allegation of violence attaches to counts 4, 5, 6, and 7 and not count 3. It would in my view be wrong to take into account in sentencing in relation to count 3, facts which could have been charged as a circumstance of aggravation but were not.[36]
[88] Therefore, the maximum for count 3 is 10 years.
[89] Count 4 is constituted by you, BZZ, striking Mrs Kefu with the sickle. In addition to the features that are common to all five offences, there are circumstances which lead me to the conclusion that count 4, as committed by you, BZZ, is particularly heinous. You struck Mrs Kefu a forceful blow with the sickle, which could only be described as a quite wicked instrument. That was a completely unnecessary act. Even accepting, as I do, that you may have been confused, you obviously decided to hurt her. The act was premeditated in that, as I have previously explained, you had determined, before you entered the house, to meet any resistance with force. That involved attacking the occupants of the house with bladed weapons including the sickle.
[90] And hurt her you did. Mrs Kefu suffered a deep ten centimetre cut to her left forearm. The blow cut muscle, tendons and a major vein. It penetrated the outer layers of the bone in her arm. Only two episodes of surgery have prevented the complete loss of function of her hand and wrist. As it is, even after surgery, she is partially disabled.
[91] I have made the finding that the offence is particularly heinous notwithstanding your personal and other mitigating circumstances, which I later identify and which I have taken into account.
[92] You, AZY, also pleaded guilty to count 4. As earlier observed you, AZY, were an aider or encourager of BZZ in the commission of count 4.
[93] The five circumstances I identified earlier[37] are all relevant to you. You also must have known when you entered the house with BZZ that he was in possession of the sickle. It could hardly be hidden by him. However:
[108] AZY, you were not the principal actor in the commission of count 6. As I have found that count 6, as committed by the principal actor is not a particularly heinous offence, that count as committed by you is not a "particularly heinous" offence.
[109] Count 7 concerns the injury inflicted upon Madison Kefu. Again, count 7 like count 6, alleges wounding not the doing of grievous bodily harm. Madison arrived fairly late on the scene. She and her sister, Olivia, decided to leave the house. Olivia Kefu ran through the laundry, into the garage and ultimately into a neighbour's yard over a fence. Madison ran towards the front door. She saw her brother Joshua on the ground with you, BZZ, on top of him and she also saw her mother down on the floor. Madison attempted to help her mother to her feet and at that point you, BZZ, swung the sickle towards Madison. She put her arm out to protect herself and was cut across the hand.
[110] In relation to count 7 you, BZZ, were the actor who physically cut Madison Kefu with the sickle. You, AZY were, similarly to counts 4 and 6, an aider or encourager to BZZ.
[111] Again, I have taken into account the five features that I have identified as common to all of counts 3, 4, 5, 6 and 7.
[112] The four centimetre laceration to Madison Kefu's right hand did not cause any permanent damage. There was no prolonged attack upon her. The injury was sustained from one blow with the sickle. While the offence against Madison Kefu was a serious one, it was not "particularly heinous" as that term is understood in s 176 of the Youth Justice Act. As you, AZY, were not the actor, namely the one who delivered the blow with the sickle to Madison Kefu's arm, count 7 is not as regards you a "particularly heinous" offence.
[113] For the reasons I have explained, as regards you BZZ, the maximum sentence for count 3 is 10 years' detention, for each of counts 4 and 5 detention for life, and for each of count 6 and 7, 10 years' detention.
[114] For you, AZY, the maximum sentence for each of counts 3, 4, 6 and 7 is 10 years' detention and for count 5 it is detention for life.
[115] The maximum sentences for the other offences, having regard to s 176 of the Youth Justice Act are:
[127] Between 7 July 2021 and 13 July 2021, roughly a month before the commission of the current offences, you committed a number of offences of dishonesty, most of which concern the unlawful use of motor vehicles. On 11 July 2022, almost a year after the present offending, and while you were in detention, you were convicted of those offences. No conviction was recorded and you were reprimanded.
[128] You have been in detention since August 2021 and while in detention you came under the care of a psychologist. She has diagnosed you as suffering from severe depression, extremely severe anxiety and moderate stress. Over the period of about two years that she has treated you, she has noticed that you have matured psychologically and emotionally. She notes that you are now close to your family and have a deep religious faith. You are remorseful, she opines, and have insight into your offending. She notes that you have been prescribed medication to manage ADHD and that you are struggling with the side effects of that medication.
[129] During your time in detention you have enrolled and engaged in a wide variety of education programs including general education, fitness, life skills, therapeutic and wellbeing programs, self-improvement programs and drug and alcohol programs. They are many and varied and are listed in the pre-sentence report which has been prepared concerning you.
[130] On 24 April 2024, you, BZZ, participated in a restorative justice conference in relation to the present offending. The victims did not participate, as is their right. You showed remorse and insight into the offending as well as shame and regret. It was agreed that you would like the family to know that you are not proud of what you did and that you are sorry although you understand that the impacts cannot be reversed. You agreed to work with your father doing fascia guttering and you plan to relocate to Melbourne and start an apprenticeship in barbering. You plan to own a barber shop. You wish to re-engage with sporting activities.
[131] I accept that you understand that you have deeply injured and affected the Kefu family, although I suspect that the true measure of damage to the Kefu family unit could only be truly appreciated through adult eyes. I accept that you have significant remorse and regret about the incident.
[132] It is planned that upon your release your family will return to Victoria.
[133] You have an impressive reference from Mr Luke Montgomery, the Project Manager of an organisation called "Our Neighbourhood", which has been working with you in the detention centre. He speaks highly of you and opines that you hold a desire to reform and become a positive influence on society.
[134] You made an early indication to plead guilty to all counts on the indictment except those charging attempted murder. You agreed to plead to the alternatives to counts 4, 5, 6 and 7 on the indictment. That is the position that was ultimately accepted by the Crown and frankly it should have been accepted earlier. In order to make out an attempt to kill, the Crown would have to prove beyond reasonable doubt that you subjectively meant to kill each of the Kefus. On what I have seen, that was not a realistic possibility. You did not enter the house with an intent to kill. Your intention was to steal a car. While you were armed and prepared to violently overcome resistance, stealing was always your central aim. The injuries you inflicted upon the Kefus were incidental to the achievement of your aims either to steal the keys or to escape. There was no independent course of conduct to intentionally injure the Kefus.
[135] Turning to you AZY. You were born on 7 December 2005 in Burundi, Africa. You have no prior convictions. You, AZY, are one of eight children. The family experienced community violence and obtained a humanitarian visa as a consequence of which you migrated to Australia in 2007.
[136] Your upbringing has been marked with significant and continuous domestic violence perpetrated by your father upon your mother. Your older siblings dealt with this by absconding from the family home. You also fled the home from time-to-time to avoid the violence.
[137] Your parents separated and remained living apart until they rekindled their relationship in 2020. However, the domestic violence continued. As a result of the trauma at home, you gravitated towards peer groups who were involved in anti-social activities including illicit substance abuse. The current offences were committed while you were under the influence of substances. As your relationship with these peers increased, your parents' ability to control you decreased.
[138] You gravitated towards older culturally relatable peers who had a significant influence upon you. You were exposed to normalised anti-social behaviours and pro-criminal attitudes. Leading up to the offending, you were involved with younger peers in relation to whom you took a leadership role. You resorted to an increased use of alcohol and cannabis and attribute, in part, the offending to that substance abuse. Despite all this you had no convictions prior to the current offending.
[139] It has been opined that you show remorse for your actions and insight into the damage you have caused to the Kefus. I accept that but, as I observed in relation to BZZ, the full extent and depth of the impact to the Kefu family is unlikely to be fully appreciated by someone of your age.
[140] It has been noticed that you have attempted to justify at least some of the aspects of the offending. You have said that carrying weapons was a normalised behaviour within your peer group and that it was necessary for protection. In part, you excuse the use of violence against Mr Kefu because of his intimidating stature.
[141] You have made significant attempts at rehabilitation while in detention. You engaged voluntarily in various therapeutic services including the mental health service and speech pathology. You had extensive engagement with a speech pathologist due to a suspected developmental language disorder. This disorder, it was thought, might negatively impact your social communication skills and your ability to rationalise and problem solve. You too have impressed Mr Montgomery who has written encouragingly about you.
[142] You have engaged with the Queensland African Community Council and did so prior to the offending. This organisation will assist you to reintegrate with your family, the African community and the wider community in general upon release.
[143] You have completed a business course. You are currently completing general education and other business courses and courses designed to improve your life skills.
[144] AZY you also engaged in a restorative justice process. Again, the victims did not participate. Again, that is entirely their right.
[145] The result of the restorative justice process was an agreement whereby the victim representative, a member of the Queensland Police Service, acknowledged your growth over the period of detention and you agreed to continue to engage in the certificate of business (which you have commenced) upon your release. You agreed to prepare an apology letter to the family. That was to be done by the end of May 2024. At the time of the hearing of sentence submissions on 14 May, that had not been done. However, you gave an apology to the family through your counsel.
[146] It is obvious that you have support, not only from your extended family, but also the African community. There were many members of the African community in Court to support you when sentencing submissions were being made.
[147] It is planned that upon release you will not return to the home of your mother and father and all its dysfunction but will live with your older brother who has undertaken to support you upon your release.
[148] You, like BZZ, made an early indication to plead guilty to all but the counts alleging attempted murder.
[160] It is one thing to arm one's self with a knife. It is quite another to arm one's self with a weapon as imposing and as potentially dangerous as a sickle.
[161] Of the four members of the Kefu family who were injured, it was you, BZZ, who injured three of them. Whatever circumstances conspired to spark the violence, it was most definitely you who started it by a savage blow with the sickle to Mrs Kefu's forearm. While AZY was the one of you who stabbed Mr Kefu, you were, at the same time slashing at Mr Kefu with the sickle.
[162] Questions of parity potentially arise in relation to your accomplices who remained in the Hyundai. They were each sentenced to 2 years, 6 months' detention to serve 50 per cent. They were sentenced on the basis that their liability for what are now counts 4, 5, 6 and 7 was via s 8 of the Code. They did not counsel or encourage the commission of these offences but accept that your commission of them was a probable consequence of the plan to invade the house to steal the car keys.[49]
[163] AZY was not injured in the episode but you, BZZ, were injured quite badly. I have taken into account the fact that you have, in that way, already suffered from your offending.[50]
[164] I have been referred to various comparatives. It is not my function to reconcile the comparatives either with each other or with the current offending. The comparatives have been used by me as a yardstick or benchmark against which to consider the sentences to be imposed here.[51]
[165] Your counsel, BZZ, relied heavily on R v WAY; Ex parte Attorney-General (Qld)[52]. There a 16-year-old boy pleaded guilty to attempted murder. He attacked a female student by stabbing her on numerous occasions. He was suffering no mental illness but the complainant was described as being "a hapless victim of [the offender's] irrational morbid adolescent fantasies"[53]. From the age of about eight or nine he began having violent thoughts about those who teased him. By the age of 13 or 14 he was researching violence and beginning to have suicidal thoughts. He began fantasising about hurting people. He was suffering from anxiety. Although a psychiatrist failed to find any mental illness, it is obvious that he was disturbed.
[166] The sentencing judge did not find that the offence was "particularly heinous". The complainant recovered completely and quickly from her physical wounds and Muir JA, with whom Gotterson JA agreed, described the sentence as "very lenient". The case is of little use as a comparative to the current offending.
[167] Ms Reece of Counsel, who appeared for you AZY, referred to a number of cases where sentences have been imposed upon adult offenders. That approach was said to be justified because Mullins P took such an approach in YTZ.[54] In my view, such an exercise will, in the vast majority of cases, be of limited value. In YTZ, it was undertaken on the assumption that as Youth Justice Act should deliver sentences for children less than for adults, if a pattern of sentencing for adults can be established which is equivalent to or lower than that imposed on a child in a particular case, no complaint of manifest inadequacy could be made. Here it was submitted that the Crown submission of 10 years' detention is not justified even by comparative sentences imposed upon adults.
[168] Ms Reece cited R v Whittaker[55], R v Amery[56], R v Warne[57], and R v Latemore[58].
[169] Whittaker was a 21-year-old who failed in his attempt to challenge a sentence of 8 years' imprisonment with a serious violence offence declaration for grievous bodily harm inflicted upon a security officer by stabbing him twice in the back. He was 21 years of age when he committed the offence.
[170] Amery won an appeal to the extent of having his sentence reduced from 8 years to 7 years, 7 months' imprisonment. He was 47 years of age when he intentionally caused his domestic partner grievous bodily harm when he struck her with a sledge hammer as she lay in bed.
[171] Warne and three accomplices entered the house of the complainant. One of the accomplices had a gun and when the complainant appeared with a knife, ready to fight back, Warne directed his accomplice to shoot the complainant. One shot was discharged and the bullet lodged in the complainant's forearm. Warne unsuccessfully appealed a sentence of 7 years' imprisonment for doing grievous bodily harm with intent.
[172] Latemore struck his victim twice in the head with a metal pole. He was sentenced to 9 years' imprisonment upon a plea of guilty. He was successful on appeal to the extent of shortening his parole eligibility date. The victim, with whom he had argued earlier in the day, suffered severe head injuries including a fracture of the skull which was life-threatening.
[173] Those cases demonstrate a range of between 7 and 9 years for a serious offence of doing grievous bodily harm or wounding with intent. Each of the four cases concerned one individual victim. Here there were four, two of whom suffered grievous bodily harm and one of those would have died but for surgical intervention. Those comparatives are of little if any assistance.
[174] The Crown also referred me to a number of comparatives, R v BDY,[59]R v SDK,[60]R v Patrick (a pseudonym); Ex parte Attorney-General (Qld)[61] and R v W; Ex parte Attorney-General (Qld).[62] The circumstances of the offending in the various cases and the results of the sentencing all vary. Noticeably though all concern cases where there is only one victim. Not only are there here four victims but in your case, BZZ, there are two offences which have been determined to be particularly heinous and in your case, AZY, there is one.
[175] In relation to you, BZZ, I intend to fix the head sentence to count 4 which will reflect the total criminality and make all other sentences concurrent. In your case, AZY, I intend to fix the head sentence upon count 5 and make all other sentences concurrent.
[176] In relation to counts 1, 2, 3, 5, 6 and 7, I sentence each of you as follows: