Court of Appeal (Qld)|2008-04-04|Before: McMurdo P, Holmes JA and Mackenzie AJA, Separate, reasons for judgment of each member of the Court, each concurring as to the, orders made
McMurdo P, Holmes JA and Mackenzie AJA, Separate, reasons for judgment of each member of the Court, each concurring as to the
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– GROUNDS FOR
INTERFERENCE – DISPARITY – CO-OFFENDERS – where applicant and
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– GROUNDS FORINTERFERENCE – DISPARITY – CO-OFFENDERS – where applicant andher boyfriend (who was herco-offender) planned to murderher parents – where plan was thwarted only when applicant's fatherstruggledwith and overpowered co-offender – where applicant andco-offender both pleaded guilty to attempted murder and conspiracy tomurder– where applicant was sentenced to detention for four years for attemptedmurder and two years for conspiracy to murder,with an order that she bereleased after two years – where co-offender was sentenced to nine yearsimprisonment for attemptedmurder, five years imprisonment for conspiracy tomurder and one year cumulative imprisonment for armed robbery – whereco-offenderwas an adult at the time of the offences and so was sentenced under
the Penalties and Sentences Act while applicant was a juvenile and was
sentenced under the Juvenile Justice Act – where sentencing judge
said the co-offender 'could justifiably feel aggrieved were the effect of his
punishment to be inappropriately
grossly disproportionate' to the applicant's
– whether parity is an appropriate consideration when co-offenders fall to
be
sentenced under different statutory regimes – whether trial judge erred
by giving too much weight to issues of parity
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– APPEAL BY
CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – where
applicant was sentenced to detention for
four years for attempted murder and two
years for conspiracy to murder, with an order that she be released after two
years –
where attempt to murder parents did not result in major injury to
either parent – where applicant was 15 years old, mentally
unwell and
irrational at the time of the offences – where applicant suffered
psychological trauma after being raped at the
age of 13 – where applicant
subsequently felt remorse and guilt – where detention would be
particularly challenging for
applicant – where applicant had good
prospects of rehabilitation – whether sentence imposed was for the least
time justified
in the circumstances
Criminal Code Act 1899 (Qld), s 306, s 309, s
411(2)
Juvenile Justice Act 1992 (Qld), s 3, s 8, s 150(1)(d),
s 150(1)(e), s 150(1)(h), s 150(1)(k), s 150(2), s 151, s 158,
s 176(1), s 176(2), s 176(3)(a),
s 176(3)(b), s 183, s 208,
s 227(2), s 228, Sch 1 "Charter of Juvenile Justice Principles" 1, 8, 9,
10, 12, 14, 16, 17
Penalties and Sentences Act 1992 (Qld), s 9(2)(a),
s 9(3), s 9(4)
R v Crossley (1999) 106 A Crim R 80
[1999] QCA
223, cited
R v Maygar
ex parte A-G (Qld)
R v WT
ex
parte A-G (Qld) [2007] QCA
310
CA No 65 and 92 of 2007, 28 September 2007, considered
R v
Slattery [2001] QCA
108
CA No 354 of 2001, distinguished
R v Tuki [2004] QCA
482
CA No 326 of 2004, 17 December 2004, cited
The Queen v
Harris (No 2) (1971) 2 SASR 255, cited
The Queen v Homer
(1976) 13 SASR 377, cited
Judgment (101 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - DISPARITY - CO-OFFENDERS - where applicant and her boyfriend (who was her co-offender) planned to murder her parents - where plan was thwarted only when applicant's father struggled with and overpowered co-offender - where applicant and co-offender both pleaded guilty to attempted murder and conspiracy to murder - where applicant was sentenced to detention for four years for attempted murder and two years for conspiracy to murder, with an order that she be released after two years - where co-offender was sentenced to nine years imprisonment for attempted murder, five years imprisonment for conspiracy to murder and one year cumulative imprisonment for armed robbery - where co-offender was an adult at the time of the offences and so was sentenced under the Penalties and Sentences Act while applicant was a juvenile and was sentenced under the Juvenile Justice Act - where sentencing judge said the co-offender 'could justifiably feel aggrieved were the effect of his punishment to be inappropriately grossly disproportionate' to the applicant's - whether parity is an appropriate consideration when co-offenders fall to be sentenced under different statutory regimes - whether trial judge erred by giving too much weight to issues of parity
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - where applicant was sentenced to detention for four years for attempted murder and two years for conspiracy to murder, with an order that she be released after two years - where attempt to murder parents did not result in major injury to either parent - where applicant was 15 years old, mentally unwell and irrational at the time of the offences - where applicant suffered psychological trauma after being raped at the age of 13 - where applicant subsequently felt remorse and guilt - where detention would be particularly challenging for applicant - where applicant had good prospects of rehabilitation - whether sentence imposed was for the least time justified in the circumstances
[3]
Criminal Code Act 1899 (Qld), s 306, s 309, s 411(2)
[4]
Juvenile Justice Act 1992 (Qld), s 3, s 8, s 150(1)(d), s 150(1)(e), s 150(1)(h), s 150(1)(k), s 150(2), s 151, s 158, s 176(1), s 176(2), s 176(3)(a), s 176(3)(b), s 183, s 208, s 227(2), s 228, Sch 1 "Charter of Juvenile Justice Principles" 1, 8, 9, 10, 12, 14, 16, 17
Director of Public Prosecutions (Queensland) for the respondent
[13]
[1] McMURDO P: The applicant, LY, a juvenile, pleaded guilty in the trial division of this Court on 29 May 2007 to one count of attempted murder and one count of conspiring to murder. Her co-accused, Joshua Andrew Hockey, an adult, pleaded guilty on 11 July 2007 to those counts and to a further count of armed robbery. On 20 July 2007, Hockey was sentenced to nine years imprisonment for attempted murder, five years imprisonment for conspiring to murder and one year cumulative imprisonment for armed robbery. The applicant was also sentenced that day. She was ordered under the Juvenile Justice Act 1992 (Qld) to be detained for four years for attempted murder and for two years for conspiring to murder, with an order that she be released after serving two years.
[14]
[2] She applies for leave to appeal against that sentence, contending that it was manifestly excessive and that the sentencing judge erred in giving consideration and weight to the issue of proportionality between the sentence imposed on the adult Hockey and that imposed on her as a juvenile.
[15]
[3] Counsel for both the applicant, Mr Glynn SC, and the respondent, Ms Bain, agree that the learned sentencing judge comprehensively summarised the complex circumstances surrounding the offending. They are as follows.
[16]
[4] The complainants in each of the applicant's offences were her natural mother and her stepfather. Hockey is her co-offender in each offence. She is the only child of both her mother and stepfather. From before she was five years old he played an active role in her life as a father figure so that I will refer to him as her father. Her mother and father considered that theirs was a close and loving family. They each worked as professionals in tertiary education. LY grew up in comfortable circumstances in a protected household. She seemed to have a happy, relaxed childhood. Problems in her relationship with her peers and parents emerged as she reached adolescence. She had counselling at her private school over her relationship with her parents. She may have resented her mother's efforts to protect her at a time when she was wanting to become more independent.
[17]
[5] In early 2004, LY developed a friendly relationship with a male youth. They kept in personal contact through internet and text messaging. One day when she was still 13 they were at her home alone and he raped her. A contemporaneous hospital report recorded that she was "virginal at the time and that there was traumatic tearing of the vaginal entrance indicating aggressive/rough physical penetration". She made a complaint of rape to police but it was later withdrawn. Unsurprisingly, this assault had significant detrimental effects on her. She soon after hurt herself by cutting her arms. She considered the offence generated "a great deal of tension in the household". She felt her mother did not believe her version of the incident. She claimed that about a month after it her father called her a slut. She then took an overdose of multiple medications and was treated in a private psychiatric hospital.
[18]
[6] A psychologist who knew the family noted a marked change in her behaviour after the rape. She became more withdrawn and had less confidence and self-esteem. She began working through the incident with her school counsellor who found her at times to be "very troubled" and "emotionally immature". She later told her psychiatrist, Dr Bell, that she felt estranged from her parents after the rape and felt a "numbness" towards them. She withdrew from some social activity. The school counsellor considered she was easily led by others. At home, family friction and communication problems persisted. LY found her mother's protective controlling approach claustrophobic and family tensions flared as LY looked for more independence whilst still suffering the emotional strain of the rape.
[19]
[7] The tendered material about LY's adolescent problems was patchy. Some information emerged in reports from psychiatrists, Dr Bell and Dr Curtis, and in the pre-sentence report prepared by Ms Melody Arnold, manager of the Youth Justice Service Centre, Department of Communities. LY's parents, although victims of these offences, had supplied statements to the court asking for a sentence for LY other than detention. But they did not discuss in these statements any of the events relevant to the offences. They had forgiven LY, were entirely supportive of her, and asked that she be given a non-custodial sentence without conviction.
[20]
[8] Although LY appeared to settle into her grade 10 year in 2005 she in fact had undiagnosed sequelae from the rape. She developed a major depressive disorder which complicated her post-trauma syndrome following the rape. She had tried alcohol and experimented with illicit drugs in a limited way but there were no incidents of serious misbehaviour at home or school.
[21]
[9] In September 2005, she met her co-offender Hockey through the internet. He was almost two and a half years older. He had a troubled past. His mother, who was 16 when he was born, abused alcohol and cannabis. After a custody dispute he was placed in his maternal grandmother's custody. He did not know his biological father. He had little contact with his mother as a child. At the age of six he was treated for emotional aggressive outbursts and hyperactivity, difficulty in concentration, impulsivity and a tendency for tantrums. As a young child he was disruptive at school. He was prescribed Ritalin from at least the age of six until the age of 12. He was then placed on Dexamphetamine until he was 17. He demonstrated behavioural problems throughout his primary and high school years. He used illicit drugs commencing with cannabis when he was 14. At 15 his best friend was killed in a motor vehicle accident. He became depressed and tried to kill himself by stabbing a knife into his wrist. He was hospitalised for two weeks. He began drinking alcohol at 17 and became a binge drinker. He completed year 12 but did not attain an OP score. He worked at a restaurant and also used and dealt in drugs. Dr Beech, a psychiatrist, said his history of impulsivity and destructibility was consistent with attention deficit hyperactivity disorder (ADHD). He considered that Hockey was of average intelligence but his ADHD was severe, and that he was anti-social in nature.
[22]
[10] LY and Hockey met in person in mid-January 2006. He told her tall tales, for example, that he had been in the air force and that he was a "hit man". In an effort to impress her he showed her his handgun. It was a replica but he led her to believe it was a working firearm. LY became attracted to Hockey. She began to see him at least every second day. She would sneak into the city to be with him or he would visit her house late at night and she would let him in. Their relationship developed into an intense sexual one. She felt loved by him and saw her time with him as an exciting break from an otherwise dull and structured life.
[23]
[11] LY gave the following account to police of the events in the fortnight preceding the commission of the offences. On Friday 10 February she ran away from home to be with Hockey. She had taken $1,000 from her mother's account and had $500 of her own. She gave Hockey $450. Her parents were unaware of the relationship with Hockey but tracked her down to a friend's place and took her home. A few hours later they met Hockey for the first time. They were concerned about her relationship with him and questioned his suitability. They confiscated her mobile phone and grounded her. LY was bitterly resentful. She and Hockey were keen to maintain their relationship. They decided the way to do this was to murder her parents. She initially suggested that they might knock them out. He suggested doing something else. She enquired whether they should do "something like killing or like getting rid of them". She at first did not want to be part of such a plan. Later she decided that if she did not help him in the plan she and Hockey could not be together.
[24]
[12] On Tuesday 14 February 2006 she phoned Hockey from school asking him if he had any money to give to her parents (inferentially, the $1000 earlier taken from her mother's account). He had no money but said that he had been looking at stores to rob. She encouraged him to find "a store with enough money". She later told police she did not care how he got the money as long as he got it "before the due date". They arranged to, and did meet, after school the next day. He lied to her about being under house arrest and that plain-clothed detectives were in the store he had contemplated robbing. He then identified another store he might rob. Either that day or the next day they decided to kill her parents. Hockey said he did not want to use his gun because it did not have a silencer. He proposed cutting their throats with a knife. She agreed as long as she did not have to use the knife.
[25]
[13] On Thursday 16 February, he told her of his plans to hold up a liquor store that night. She told him to be careful. At 8.55 pm Hockey entered a liquor store and threatened a sales assistant with his handgun. Hockey demanded the money in the till, adding that he was sorry. The sales assistant said he was calling security and went to pick up the phone. Hockey pressed the muzzle of the gun against the sales assistant's ribs saying, "[d]on't you dare" whilst he grabbed for the money. The sales assistant pulled the money from Hockey's grip as Hockey fled the shop. The magazine and bullets fell from the weapon as he ran away with $20.
[26]
[14] LY and Hockey met again on Friday morning before she went to school. She had proposed that the killings take place the next morning. She reasoned that her parents would have been out the night before and were likely to be affected by alcohol when they arrived home, making it easier to carry out the plan. They decided that Hockey would come to her home at about 5.30 or 6.00 am and she would let him in. After the killings, they planned to stay indefinitely at the house of a friend of Hockey. LY anticipated funding their life together with money she would take from her parents' bank account. She knew their PINs and thought she could take $10,000 or $20,000. They settled on the final details of their murderous plan over the following 24 hours. Hockey suggested that the killings take place in her bedroom. LY regarded the bathroom as preferable because her parents got out of bed every few hours to visit it. LY suggested that Hockey should wait behind the bathroom door, put his hand over the mouth of whichever parent entered first, and then slash the throat with the knife he had brought to the house with him.
[27]
[15] Early on Saturday 18 February she unlocked the back door and allowed Hockey to enter. She gave him a black shirt and a black balaclava to disguise him. He went into the bathroom armed with his knife and waited. A few minutes later, her father passed LY on the way to the bathroom and said good morning. As he entered the bathroom Hockey tried to cut his throat. The mother apparently heard the scuffle, got up and asked LY if she had anyone in the house. The mother called out to her husband and told him she was calling the police. The girl's father and Hockey then emerged from the bathroom and all four protagonists gathered in the lounge room where they waited until the police arrived.
[28]
[16] Hockey's account to police differed from LY's. On his version, she was more influential in their decision to murder her parents. The judge concluded that the differences between their accounts were essentially immaterial but because of Hockey's proven propensity to falsehood and fantasy, absent compelling corroboration, he would approach Hockey's version sceptically. Hockey gave police the following account. He was waiting in the bathroom to kill LY's parents with his thoughts focused on LY and conscious that he was doing it for her. He intended to attack his victims from behind and to slit their throats with the knife. When the father entered the bathroom, Hockey approached him and put his hand over his mouth. The father nonetheless yelled out. A struggle ensued during which Hockey tried more than once to push the knife toward the father so as to kill him. Hockey tried to "slice his throat" and to kill him, but slipped on a mat on the floor. The father was then able to deflect the knife which struck Hockey in the leg. Hockey said "I can't do this". He either dropped the knife or the father removed it from his grasp. The father removed the balaclava and manhandled Hockey into the lounge room where they were joined by LY and her mother. Hockey told police he did not care about the consequences. He thought he and LY would be able to be together for at least a month or so before they were caught.
[29]
[17] When the police asked LY what she thought would be the consequences of trying to kill her parents, she responded:
[30]
"Gaol or something, Yeah, I don't know, I didn't really think about it. Yeah, [Hockey] just kept on saying we wouldn't get caught, so I was like, 'Oh, Okay'."
[31]
[18] The police asked her whether she had issues at home with her parents. She mentioned dissatisfaction with not being able to go to friends' places more often and feeling pressured by her mother to go horse riding. The police asked her if she felt forced by Hockey to kill her parents. She responded, "[n]ot completely but a little bit."
[32]
[19] The judge then referred to the significant mitigating factors in the case. Both offenders amply co-operated in the police investigation, participating in recorded interviews on the day of the attack and providing written statements. They showed some remorse in those interviews. The guilty pleas were timely and evidenced a willingness to facilitate the course of justice. Both were young offenders. LY was almost 15 and a half and Hockey two months short of 19. Neither had prior convictions. Community protection is enhanced by rehabilitation of young offenders. Both had references attesting to their otherwise good character.
[33]
[20] Of significance to Mr Glynn's present contentions, the learned sentencing judge noted the following:
[34]
"Totality considerations intrude. They have been an influence in my decision to fix concurrent sentences for the attempted and conspiracy to murder offences, and in imposing a light sentence in respect of the armed robbery.
[35]
One other matter concerning the comparability of the sentences should be mentioned. The different sentencing regimes for adults and juveniles matter to parity considerations. Nonetheless, [Hockey] could justifiably feel aggrieved were the effect of his punishment to be inappropriately grossly disproportionate to [LY's] [cf R v Slattery[2001] QCA 108].
[36]
There are important differences in the considerations that affect the sentences in the two cases.
[37]
First, as a juvenile, [LY] falls to be punished under a different legislative regime.
[38]
The available maximum penalties differ. [Hockey's] attempted murder conviction exposes him to life imprisonment; for the conspiracy to murder, to a maximum penalty of 14 years. Under s 176 of the Juvenile Justice Act 1992, however, [LY] may not be detained for more than 10 years for the attempted murder; nor more than 7 for the conspiracy.
[39]
Moreover, the principles the Parliament has enacted for juvenile sentencing include these special considerations. (see s 150(2) of the Juvenile Justice Act 1992):
[40]
A non-custodial order is better than detention in promoting a child's ability to reintegrate into the community.
The rehabilitation of a child found guilty of an offence is greatly assisted by -
[41]
(ii) opportunities to engage in educational programs and employment.
[42]
a detention order should be imposed only as a last resort and for the shortest appropriate period.
[43]
Or, as the Schedule 1 Charter of Juvenile Justice Principles puts it, a child should be detained in custody for an offence, whether on arrest or sentence, only as a last resort and for the least time that is justified in the circumstances.
[44]
a child who commits an offence should be ... dealt with in a way that will give a child the opportunity to develop into a responsible, beneficial and socially acceptable way; and dealt with in a way that strengthens the child's family.
a child should be dealt with under this Act in a way that allows the child to be reintegrated into the community.
[45]
A Court may make a detention order against a child only if the Court, after -
[46]
(b) taking into account the desirability of not holding a child in detention;
[47]
is satisfied that no other sentence is appropriate in the circumstances of the case.' "
[48]
[21] The judge next referred to the following matters. Hockey had committed an additional serious offence of armed robbery. LY's parents had suffered considerably and for them her incarceration would be devastating. LY's mental illness had contributed to her severely impaired judgment that led her to decide to kill her parents. Her parents have forgiven her. Since the offence she has been residing with them, attending a local high school where she is in her final year and is achieving academically. There is no suggestion of significant behavioural problems either at home or school. She has returned to previously shared family interests like equestrian competition.
[49]
"[w]here a sentence would aggravate a victim's distress, it may be moderated to some degree [R v Perks[2000] Crim LR 606]. But a concern for the impact on a victim of a sentence cannot be allowed to overwhelm the sentencing process [Cf R v M, CA 137 of 1996, 2 August 1996]. 'A serious crime is a wrong committed against the community at large and the community itself is entitled to retribution' [R v Palu[2002] NSWCCA 381; (2002) 134 A Crim R 174 at [37]]".
[50]
[23] The judge referred to the following aspects of the pre-sentence report prepared for the court and to psychiatric reports tendered on LY's behalf, noting the following. LY would find incarceration particularly challenging because of her life experiences and personal history. Her recent psychiatric treatment had resulted in substantial improvement in her mental wellbeing. She needs on-going professional support for at least two years to maintain her progress. According to her treating psychiatrist, Dr Bell, detention would put her effective therapeutic relationship with him in serious jeopardy and would have deleterious consequences for her mental health and her long term rehabilitation. Dr Curtis also considered that she had made exceptional progress with rehabilitation but remained at risk and highly vulnerable with potential detrimental consequences arising from separation from her family. Dr Curtis considered she was at great risk of sexual, emotional and physical abuse in an institutional setting. Dr Curtis said that adolescents, particularly children under 16, have an incompletely developed pre-frontal cortex so that even those who are not mentally ill often suffer impaired judgment and a lack of controlled behaviour. Dr Curtis noted that the pre-frontal cortex is a primary area of the brain affected by psychological trauma.
[51]
[24] The judge accepted the medical evidence indicating that LY's impaired mental state adversely affected her capacity for judgment and found the following. Her decision making was impaired in forming an attachment to Hockey and in maintaining that relationship against parental opposition. Mental illness reduces moral culpability of offenders where it plays a part in the offences.[1] The extent to which a sentence is to be moderated because of mental illness depends on considerations such as the extent to which the offender appreciated the gravity of the conduct and the degree to which the illness materially contributed to the commission of the offences. The present crimes were grave. It was sheer good fortune that the father was not badly injured and that the cuts to his hands and neck were relatively superficial. The criminal behaviour was premeditated and the mode of execution carefully planned.
[52]
[25] After imposing sentence on Hockey, his Honour turned to LY's case and stated the following. The many previously mentioned factors favouring leniency in LY's case constituted special circumstances under s 227(2) Juvenile Justice Act 1992 (Qld). Whilst those mitigating factors were also reflected in the head sentence he would impose, they warranted a release order after serving 50 per cent of her detention rather than the usual release after 70 per cent.
[53]
[26] Mr Glynn first contends that the primary judge erred in the way he dealt with parity considerations between the sentences imposed on Hockey and LY. He made the following submissions. The primary judge's observations on parity[2] bear similarities to the remarks of the sentencing judge set out in R v Maygar; ex parte A-G (Qld); R v WT; ex parte A-G (Qld).[3] Keane JA, with whom the other members of the court agreed on this point, there stated:
[54]
"There could be no justifiable sense of grievance on Maygar's [an adult] part if he were obliged to serve a longer period in custody than Woodman [a juvenile]. That he must serve a longer period of imprisonment is simply the consequence of the application of different sentencing regimes to him and to Woodman: Maygar falls to be sentenced under the law relating to adults and Woodman falls to be dealt with under the laws relating to children. In the sentencing of child offenders, the considerations of leniency and child protection which inform the regime established by the Juvenile Justice Act must be observed by a sentencing judge. It may be thought that the drawing of a line in this regard between Maygar and Woodman by reason of the small difference in their ages is arbitrary; but a line has to be drawn somewhere for these purposes. More importantly, the drawing of this line is not a matter of judicial discretion: the line has been drawn by the legislature whose function it is to determine when a person should be dealt with as an adult by the criminal justice system. Maygar can have no legitimate grievance about that."[4]
[55]
Keane JA supported that statement of principle by reference to Mackenzie J's observations in R v Tuki,[5] to this Court's observations in R v Crossley[6] and to the approach taken by the Full Court of the Supreme Court of South Australia in The Queen v Harris (No 2)[7] and The Queen v Homer.[8]
[56]
[27] Mr Glynn further contends that, in attempting to avoid a justifiable grievance on Hockey's part about the necessarily more severe punishment imposed on him, the sentencing judge, in determining LY's sentence, gave insufficient weight to the many mitigating factors pertaining to her. Mr Glynn made the following submissions. She had significant mental illness at the time of the offences. Detention would damage her excellent prospects of rehabilitation and social re-integration. As a result, the sentence was manifestly excessive. Whilst detention in the range of 18 months to two years for the offence of attempted murder was open, an order should have been made for LY's release after serving nine to 12 months of that detention.
[57]
[28] Ms Bain contends that a close reading of the primary judge's relevant sentencing remarks[9] demonstrates that his Honour's comments did not amount to a wrong view or application of relevant parity principles. The judge was merely commenting that Hockey would receive a significantly heavier sentence than LY; that might cause him to feel a sense of grievance; it was not a justifiable grievance because of the different sentencing regimes applicable to each of them.
[58]
[29] In contending that the sentence was not manifestly excessive, Ms Bain emphasised the following matters. A maximum penalty of 10 years in detention was open. LY actively pursued her involvement with Hockey in the execution of these coldly planned offences. She maintained an integral role in them. It was fortunate that the first potential victim was LY's father rather than her mother. The father was able to resist the attack and put an end to the offences. The sentencing judge correctly balanced the various competing considerations and structured a sentence which will have LY released back into the community and her supportive family within two years of detention.
[59]
[30] The observations of the learned sentencing judge on the question of parity between the applicant and her co-offender Hockey are set out earlier.[10] His Honour rightly observed that Hockey, an adult, had to be sentenced under the Penalties and Sentences Act 1992 (Qld), whereas LY, a child, had to be sentenced under the Juvenile Justice Act 1992 (Qld). It followed that different considerations applied in sentencing each offender. His Honour noted that Hockey "could justifiably feel aggrieved were the effect of his punishment to be inappropriately grossly disproportionate" to LY's. His Honour then explained the various statutory and factual considerations affecting the sentences to be imposed on each co-offender so that Hockey would not have a justifiable sense of grievance about the inevitable disparity in their sentences.
[60]
[31] The differing legislative schemes applicable in Queensland mean that, where some co-offenders are adults and others are juveniles, there will often be a considerable disparity between the sentences imposed on adults and those on juveniles, especially where the offences are serious. That disparity will only lead to a successful appeal against sentence if it results in a co-offender having a justifiable sense of grievance. A grievance will not be justifiable where the disparity arises solely or primarily because adult co-offenders and juvenile co-offenders are sentenced under different legislative schemes.[11] That is not to say that, in sentencing an adult offender, parity with a juvenile co-offender is necessarily irrelevant. The parity principle may persuade the judge to sentence an adult offender at the lower end of the appropriate range. In some cases, however, parity will not be relevant at all, for example, where an adult offender has master-minded criminal activity and persuaded much younger children to become involved in it.
[61]
[32] The different legislative requirements applicable to Hockey and to LY were the primary reason for the disparity in the sentences imposed on them. The Juvenile Justice Act 1992 (Qld) applied to LY. It requires a sentencing court to make a detention order against a child only where no other sentence is appropriate[12] and "only as a last resort and for the least time that is justified in the circumstances".[13] The Juvenile Justice Act 1992 (Qld) also focuses on rehabilitation and allowing the child to be re-integrated into the community.[14] By contrast, in Hockey's case s 9(2)(a) Penalties and Sentences Act 1992 (Qld) (the comparable sentencing principle that imprisonment should only be imposed as a last resort and a sentence that allows an offender to stay in the community is preferable) was specifically excluded by s 9(3). The sentencing court was instead required to regard primarily the matters set out in s 9(4) of that Act. Further, the maximum penalties for LY's offences under the Juvenile Justice Act 1992 (Qld) s 8 and s 176 were 10 years detention for the attempted murder and seven years detention for the conspiracy to murder.[15] For Hockey, the maximum sentence for those offences was respectively life[16] and 14 years[17] imprisonment and for the armed robbery, life imprisonment.[18] In addition to the differing sentencing statutes, there were other matters which supported a more lenient sentence in LY's case. The sentencing judge referred to those matters which mitigated LY's culpability and also that Hockey had committed the additional offence of armed robbery.
[62]
[33] It would have been an error of law for the judge to have sentenced LY to a period of detention that was not for the least time justified in the circumstances so as to minimise the inevitable disparity with Hockey's sentence. I am not persuaded that his Honour made such an error. As the judge recognised, the different sentencing statutes applicable to LY and Hockey meant that it was inevitable there would be a significant disparity between the sentences imposed on them. His Honour's sentencing remarks emphasised by Mr Glynn were but an explanation why that disparity could not give Hockey a justifiable sense of grievance and why the disparity was not, in his Honour's words, "inappropriately grossly disproportionate". The sentencing remarks do not show that the judge imposed a period of detention on LY that was not the least time justified in the circumstances so as to minimise the inevitable disparity between her sentence and Hockey's.
[63]
(b) The least period of detention justified in the circumstances
[64]
[34] Mr Glynn's alternative contention requires a consideration of whether LY's sentence of four years detention with release after 50 per cent was, as the Juvenile Justice Act 1992 (Qld) required, the least period of detention which could be justified in the circumstances. [19]
[65]
[35] In determining that issue, it must first be noted that the maximum penalty for the offences was 10 years detention for attempted murder,[20] and seven years detention for conspiracy to murder.[21] The bizarre facts surrounding these offences make it unsurprising that neither Mr Glynn nor Ms Bain have been able to refer the Court to any comparable cases. I agree with the sentencing judge that the gravity of the offences made the recording of convictions necessary.[22] The offences had very serious aspects to them. LY formed an intention to murder her mother and father, who had lovingly nurtured and provided for her, planned the murder with her slightly older lover and co-offender and assisted him to begin to carry out their murderous plan. Despite the mitigating factors to which I shall refer shortly, her evil conduct meant that a detention order was the only appropriate sentence: see Juvenile Justice Act 1992 (Qld), s 150(1)(d) and (k) and Sch 1 "Charter of Juvenile Justice Principles", 1. Mr Glynn does not now contend otherwise.
[66]
[36] Despite the grave aspects of the offences, there was also an astonishing number of mitigating factors in LY's favour. First, it is of significance that her mother was uninjured and her father suffered only minor injuries.[23] Second, LY was 15 years old, mentally unwell and irrational when she offended. The sentencing judge accepted psychiatrist Dr Curtis' evidence that in adolescents, particularly those under 16, the pre-frontal cortex that is important in moderating impulses and behaviour is incompletely developed. This means that even in adolescents who are not mentally ill, judgment is often astray and behaviour less controlled. The sentencing judge also appeared to accept Dr Curtis' view that the pre-frontal cortex is one of the primary areas of the brain affected by psychological trauma. LY experienced significant and well-documented psychological trauma when she was sexually assaulted at the age of 13. As a result, she developed significant mental health issues which, the judge accepted, impaired her capacity for judgment in forming her attachment to Hockey, in maintaining it in spite of parental opposition, and in taking part in these offences.
[67]
[37] Third, her rehabilitation prospects were most promising. The psychiatric evidence showed that she had made substantial improvement in her mental well-being although she needed ongoing professional support for at least two years to maintain her progress. The promising nature of her rehabilitation was supported by the following: her plea of guilty and cooperation with the police; her insight into the seriousness of her actions and her considerable guilt and regret about them; statements from her parents; tendered references; her excellent progress at school and her prior good history. Her rehabilitative prospects were a most relevant factor: see, for example, s 150(1)(e), s 150(2)(a,) (b) and (c) and Sch 1 "Charter of Juvenile Justice Principles", 8, 12, 14 and 16. Fourth, all the expert reports, including the independent pre-sentence report ordered by the court under s 151(1) Juvenile Justice Act 1992 (Qld), confirmed that because of her life experiences and personal history, detention in a custodial environment "would be particularly challenging" and not conducive to her rehabilitation.
[68]
[38] Fifth, her parents, the victims of her crime, have forgiven her and are keen to do all they can to support her rehabilitation. They did not wish her to be incarcerated at all. Whilst the wishes of her victim-parents cannot dictate the sentence the court must impose, they must be considered by the sentencing court: see Juvenile Justice Act 1992 (Qld), s 150(1)(h), s 150(2)(c)(i) and Sch 1 "Charter of Juvenile Justice Principles", 8(c), 9 and 10.
[69]
[39] This unique combination of mitigating circumstances means that the appropriate sentence is towards the lower end of the range for these undoubtedly grave offences. I am persuaded that the sentence imposed of four years detention with release after 50 per cent was not "for the least time that is justified in the circumstances" (Juvenile Justice Act 1992 (Qld), Sch 1 "Charter of Juvenile Justice Principles", 17) or "for the shortest appropriate period" (Juvenile Justice Act 1992 (Qld), s 150(2)(e)). The tendered psychiatric reports indicated that LY would benefit from a lengthy period of supervision in the community after her release from detention to assist in her rehabilitation which, at the time of sentence, was already well underway. Her rehabilitation would be jeopardised by a lengthy period of incarceration. A two and a half year period of detention is the shortest period of detention appropriate to reflect society's disapprobation for her sinister behaviour. It would also ensure her close supervision by the authorities for six months longer than the minimum two year period recommended in the tendered psychiatric reports. I would order that she be released from detention after serving 50 per cent of the period of detention because of the special circumstances pertaining in this case. That would result in her strict supervision in the community for a 15 month period after her release, if necessary with appropriate special conditions imposed by the chief executive officer.[24] Such a sentence would greatly assist in her re-integration into the community[25] and would satisfy the statutory requirement that she be detained for the shortest appropriate period in all the circumstances.
[70]
[40] I would grant the application for leave to appeal against sentence, allow the appeal and vary the sentence imposed on count 1 by ordering that the applicant be detained for two and a half years instead of four years and by ordering that pursuant to s 227(2) Juvenile Justice Act 1992 (Qld) she be released after serving 15 months of that detention instead of two years. I would otherwise confirm the sentence imposed at first instance.
[71]
[41] I would also direct that the applicant's legal representatives explain the effect of these orders to her in accordance with s 158 Juvenile Justice Act 1992 (Qld).
[72]
[42] HOLMES JA: I agree with the reasons of McMurdo P and the orders she proposes.
[73]
[43] MACKENZIE AJA: I have had the opportunity to read the reasons of McMurdo P. I agree with those reasons and wish to add only the following additional comment with regard to one argument addressed by Mr Glynn SC on the applicant's behalf.
[74]
[44] I do not accept Mr Glynn's submission that the learned sentencing judge's remarks suggested that he imposed a period of detention on LY that was more than the least time that was justified in the circumstances, or more than the least period than would be justified in the circumstances, to avoid creating a justifiable sense of grievance on the part of Hockey over disparity between his sentence and hers. That proposition does not adequately reflect the reference to "inappropriately" grossly disproportionate sentencing when the learned sentencing judge was discussing the issue of a co-offender justifiably feeling aggrieved.
[75]
[45] In R v Slattery [2001] QCA 108, to which he referred, the applicant had played a less direct and less serious role in the offence. It is a case where the point under consideration was not so much mere disparity because of different sentencing regimes, as to which R v Maygar; ex parte A-G (Qld); R v WT; ex parte A-G (Qld) [2007] QCA 310 is authority, but rather a case concerned with whether the respective sentences imposed suggested that the outcome, in Slattery's case, had not properly reflected the disparity between the respective degrees of culpability upon which the offenders were sentenced, which rendered the outcome capable of engendering a legitimate sense of grievance on his part. Slattery is not a case which, properly understood, detracts from the general principle that there can be no justifiable sense of grievance merely because one offender has to serve a longer period in custody than another because they are subject to different sentencing regimes. It is, in my view, quite plain from what the learned sentencing judge said in the sentencing reasons immediately after the passage complained of, that he did not commit the error attributed to him.
[76]
[46] With regard to the issue of what was the least period of detention justified in the circumstances of the case, the President's reasons set out the unusual combination of factors, rarely found in these kinds of cases, operating in the applicant's favour. I agree with the reasons she has given in this regard and with the orders proposed by her.
[12]Juvenile Justice Act 1992 (Qld), s 150(2)(b) and (e) and s 208.
[89]
[13]Juvenile Justice Act 1992 (Qld), Sch 1 "Charter of Juvenile Justice Principles", 17 (applicable by way of s 3 of that Act).
[90]
[14]Juvenile Justice Act, s 150(2) and Sch 1 "Charter of Juvenile Justice Principles", 16.
[91]
[15] The trial judge noted that the maximum penalty was 10 years detention and made no finding that either offence was "particularly heinous" under s 176(3)(b)(ii).