CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES –
RELEVANT FACTORS – where the defendant was a juvenile
at the time of the
offending – where the defendant pled guilty to murder and arson –
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES –RELEVANT FACTORS – where the defendant was a juvenileat the time of theoffending – where the defendant pled guilty to murder and arson –where the defendant faces a maximumof 10 years’ imprisonment unless themurder offence was “particularly heinous” – where a finding ofparticularheinousness increases the maximum penalty to life imprisonment– whether ten years is a benchmark in the absence of a findingof“particular heinousness” – whether the murder offencecommitted by the defendant was “particularly heinous”in all thecircumstances – what is the appropriate sentenceCriminal Code 1899(Qld), s 8Juvenile Justice Act 1992 (Qld), s 121Youth Justice Act 1992 (Qld), s 2, s 150, s 176, s 227, sch 4Hurt v The King (2024) 98 ALJR 485[2024] HCA 8,
followed
Markarian v The Queen (2005) 228 CLR 357
[2005] HCA 25,
followed
R v A2 (2019) 269 CLR 507
[2019] HCA 35, followed
R v
BZZ & AZY [2024] QSC 138, cited
R v Carroll [1995] QCA 399,
disapproved
R v D [2000] 2 Qd R 659
[1999] QCA 231, approved
R
v Gwilliams [1997] QCA 389, disapproved
R v HST (Unreported,
Supreme Court of Queensland, Sullivan J, 13 May 2024), cited
R v KU
ex
parte Attorney-General (No 2) [2011] 1 Qd R 439
[2008] QCA 154,
approved
R v LZY & Porter [2024] QSC 237, cited
R v Maygar
ex parte Attorney-General (Qld) [2007] QCA 310, considered
R v SBU
[2011] QCA 203, cited
R v William (a pseudonym) [2020] QCA 174,
approved
R v YTZ
ex parte Attorney-General
R v YTZ [2023] QCA 87,
considered
Veen v The Queen (No 2) (1988) 164 CLR 465
[1988] HCA 14,
followed
Judgment (60 paragraphs)
[1]
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - RELEVANT FACTORS - where the defendant was a juvenile at the time of the offending - where the defendant pled guilty to murder and arson - where the defendant faces a maximum of 10 years' imprisonment unless the murder offence was "particularly heinous" - where a finding of particular heinousness increases the maximum penalty to life imprisonment - whether ten years is a benchmark in the absence of a finding of "particular heinousness" - whether the murder offence committed by the defendant was "particularly heinous" in all the circumstances - what is the appropriate sentence
R v YTZ; ex parte Attorney-General; R v YTZ[2023] QCA 87, considered
[17]
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14, followed
[18]
S Aspinall for the Department of Youth Justice and Victim Support
[19]
Office of Director of Public Prosecutions (Qld) for the Crown
[20]
[1] PZW, you pleaded guilty before Callaghan J on 16 July 2024 to two counts appearing on an indictment which bore three counts. Those counts to which you pleaded guilty were counts 1 and 3. You were discharged in relation to count 2 upon the Crown's indication that it would proceed no further upon it.
[2] Count 1 was
[21]
"that on the twentieth day of June 2022 at Laidley in the State of Queensland you murdered JAMIE RICHARD BARLOW".
[22]
"that on the twentieth day of June 2022 at Laidley in the State of Queensland you wilfully and unlawfully set fire to a building."
[23]
[4] You were born on 20 July 2005, and you were, therefore, a month short of your 17th birthday at the time of the commission of the offences. You fall to be sentenced under the provisions of the Youth Justice Act 1992.
[5] The offending occurred when you and others travelled to a house being occupied by the deceased man, Jamie Richard Barlow, and his domestic partner, Stacey Renee Vale. Living with them were some pets, namely, two dogs, a cat, and a snake. Mr Barlow was stabbed to death, and the house was set on fire. Ms Vale escaped with the two dogs, but her other two pets perished in the blaze.
[6] There is a backstory to the offending which, in many respects, is quite bizarre. A central figure in all this is a Ms Healy. She was in a relationship with Gabriel Jones. Those two were part of a broader group who seemed to be motivated by Ms Healy's belief that Mr Barlow had put a "hit" on her because of a belief of Mr Barlow that she had told police that he, Mr Barlow, was selling cannabis from his home. The truth or otherwise of any of this is unknown. In any event, based on Ms Healy's views, you were then retained by Mr Jones as a bodyguard for Ms Healy in the week leading up to the killing. In that period, you introduced yourself to others, and Ms Healy introduced you to others, as Ms Healy's bodyguard.
[7] During a telephone call with another of these people, you told that person that Mr Jones wanted to send Mr Barlow a message and he "wanted his finger, tongue, or ear." This has the flavour of mafia-type behaviour. That might be explained by an earlier comment made by Jones that he was starting a "mafia group" or "family" where members would be subject to a set of rules, which he disseminated on Snapchat.
[8] On 18 June 2022, there was a gathering at Jones' house where you were present. On 20 June 2022, there was a Snapchat conversation between you, Jones, and another member of the group which certainly indicated that something was brewing.
[9] Between 5 and 6 pm on 20 June 2022, Jones collected two of the group in his car and then collected you and drove to the Laidley lookout. Three of the others in another car also travelled to the Laidley lookout. What evidence there is as to what occurred at the meeting at the Laidley lookout is not admissible against you, but it is obvious that something sinister was planned as masking tape was placed over the numberplates of the two cars.
[24]
(a) the offence involves the commission of violence against a person; and
(b) the Court considers the offence to be a particularly heinous offence having regard to all the circumstances.
[25]
[28] Interesting questions of law could arise as to whether the arson of a house in which people are present could be described as the commission of violence against a person. However, the Crown only seek a finding of particular heinousness in relation to the murder count, and that is consistent with the Crown having abandoned the count of attempted murder of Ms Vale. It is no longer asserted by the Crown that you intended to physically harm her.
[29] An issue arose during argument as to the proper construction of s 176 of the Youth Justice Act. It provides, relevantly:
[26]
"176 Sentence orders - life and other significant offences
[27]
(1) If a child is found guilty of a relevant offence before a court presided over by a judge (the court), the court, may -
[28]
(3) For a relevant offence that is a life offence, the court may order that the child be detained for -
[29]
(a) a period not more than 10 years; or
(b) a period up to and including the maximum of life, if -
(i) the offence involves the commission of violence against a person; and
(ii) the court considers the offence to be a particularly heinous offence having regard to all the circumstances."[1]
[30]
[30] Murder is a "life offence".[2] The offence of murder here obviously involved the commission of violence. If the offence is judged as "particularly heinous", then the Court may impose a sentence upon you exceeding 10 years' detention. The question which arises is to how s 176 affects the court's approach and assessment of the sentence.
[31] Where a section prescribes a maximum penalty, that maximum is reserved for "cases falling within the worst category of cases for which the penalty is prescribed."[3] The maximum prescribes a yardstick for a spectrum of sentences from the least serious to the worst category against which individual cases are judged.[4]
[32] Where a statute prescribes both a maximum and minimum, then, unless a proper construction of the statute leads to a different conclusion, both the maximum and minimum sentences are yardsticks and cases fall between them. The consequence is that the statutory minimum sentences are reserved for the least serious examples of the offending, and a spectrum is created from that point to the worst category of such cases, with the range of sentences being between the minimum and the maximum.[5]
[33] There are two possible constructions that can be placed on s 176. If the 10 years' detention - which can be imposed without a finding that the offence was "particularly heinous" - is a maximum sentence as that term is generally understood, then the benchmark for the most serious category of offences is 10 years and the spectrum is from nought to 10. If there is a finding that the offence is particularly heinous, then upon that finding being made, the spectrum is between nought and life detention. I will call that "Construction 1".
[34] In argument, Ms Kelso submitted that the 10 years prescribed by s 176 is not a "maximum", as such, but is the limit of the Court's power, no matter what the court otherwise assesses to be the appropriate sentence. In other words, the Court fixes a sentence, presumably, by reference to the maximum of life. If that sentence does not exceed 10 years, then questions of the offence being particularly heinous do not arise. If the sentence exceeds 10 years, then in the absence of a finding that the offence is particularly heinous, a sentence of 10 years' detention is imposed. If there is a finding that the offence is "particularly heinous", the Court has the power to impose the sentence calculated, which is one over 10 years. I will call that "Construction 2".
[31]
"Once it is accepted that the learned sentencing Judge was entitled to conclude, as he did, that the offence was a particularly heinous one, it seems to me to follow that he was justified in imposing the maximum term of detention, the offence being one of murder."
[32]
[44] In Carroll, the sentence of 14 years' detention was imposed without any consideration of whether the offence was in the worst category of such cases.
[45] R v YTZ; ex parte Attorney-General; R v YTZ[10] is a case decided consistently with Construction 1. There, the offender drove dangerously for an extended period of time before negligently killing a couple and their unborn child in Alexandra Hills. The Judge found each count of manslaughter to be a particularly heinous offence and then took a global approach and imposed a sentence of 10 years' detention. His Honour had the power to impose a sentence of 10 years without making a finding that the offences were particularly heinous. On appeal, there was no criticism of his Honour's approach, although the current point was not raised.
[46] Section 150 prescribes the sentencing principles for child offenders. It provides:
[33]
"(1) In sentencing a child for an offence, a court must have regard to-
[34]
(a) subject to this Act, the general principles applying to the sentencing of all persons."
[35]
[47] In some ways, this is inconsistent with s 2(b) of the Youth Justice Act which states it is an objective of the Youth Justice Act to create a code for dealing with children who have committed offences. Section 150, though, incorporates common law principles of sentencing.
[48] The general policy of the Youth Justice Act is clear enough. It is designed to ensure that children are dealt with fairly and in accordance with usual sentencing principles which are statutorily modified in a way appropriate to take into account the youth of the offender.
[49] A fundamental principle of sentencing is that of parity between offenders. It is founded in the equal justice principles. If Construction 2 is preferred, the effect is that all offenders whose offences are not particularly heinous but may but for the statutory limit of 10 years contained in s 176 have been sentenced beyond 10 years will be sentenced to the same sentence, namely, 10 years, regardless of their respective culpability. In my view, such a result does not promote the objects of the Act and Construction 1 should be preferred.
[50] Murder is generally regarded as the most serious of all criminal offences. That is reflected by the fact that, for an adult, it carries mandatory life imprisonment. In some ways, then, the notion of a particularly heinous murder is an oddity because it assumes that some offences of murder are not particularly heinous offences. This was recognised by the Court of Appeal in R v Maygar; ex parte Attorney-General (Qld), where a child who committed murder under the compulsion of a co-accused was held not to have committed a particularly heinous offence.
[36]
"To fall within the description of a "particularly heinous offence", the offence must be one that was particularly odious or reprehensible."[14]
[37]
[53] In R v William (a pseudonym), Sofronoff P adopted a 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." His Honour then observed that it was not enough for the offence to be heinous; the test requires the offence to be "particularly heinous". [15]
[54] It is well-established that when sentencing co-offenders, the sentencing court looks at their respective roles and conduct in the commission of the offence and their respective states of mind and other particular circumstances that pertain to different offenders differently. In this case, you did not inflict the violence upon Mr Barlow. Further, your liability for murder is consequent upon the fact, which is accepted by you, that an intentional killing was a probable consequence of the commission of the plan to attack Mr Barlow.
[55] One of the challenges in sentencing children is they often do not foresee or understand the consequences of their actions. Here, it is neither alleged nor accepted by you that you did actually foresee Mr Barlow's death, or you did actually appreciate that his death was a probable consequence of your actions when you were committing them. You have pleaded guilty on the purely objective basis that his death was a probable consequence of the commission of a plan.
[56] In assessing whether the offence is "particularly heinous", it is necessary, along with other factors, to assess your involvement in the commission of the offence and the seriousness that you must have appreciated.
[57] I draw the conclusion that you were not the main mover of the plan. That seems likely to have been Jones. Jones formed the idea of heading up a "mafia style" group. He also seems to have hatched the plan to injure Mr Barlow.
[58] However, as already observed, after Barlow was stabbed, you were one of four who entered the house with petrol, and it seems you were the one who actually set light to the house. Those actions are not in furtherance of the offence of murder and I should not directly take them into account in considering whether or not the offence of murder is particularly heinous.[16] However, the fact that you were so actively involved in the plan to burn the house allows me to draw the inference that you were no passive player in the plan which led to Mr Barlow's death.
[38]
(a) the plan was formed as retribution against Mr Barlow's perceived plan to have Ms Healy injured or killed and was, therefore, in the nature of vigilante action; you must have been aware of that;
(b) you were one of a group of at least five directly involved in the offending. By any standard, Mr Barlow was hopelessly outnumbered;
(c) part of the plan was the use of weapons. You have accepted that you knew that the plan involved the use of weapons;
(d) the offence occurred at night-time;
(e) while it is not clear as to the exact extent of the planning, it is obvious that it was substantial. All of the participants met at the lookout, and you were present;
(f) the numberplates of the cars were disguised, which demonstrated not only a degree of planning, but also evidenced some sinister purpose, and you must have seen that;
(g) you clearly foresaw intentional and significant violence to Mr Barlow, that is the basis of your plea; and
(h) the level of violence, albeit not inflicted by you and not actually foreseen by you, was, nonetheless, very significant.
[39]
[60] I will turn soon to your various personal circumstances and mitigating factors, including your remorse, to which I have already referred, and your participation in a restorative justice process. I have taken all of those things into account when determining whether count 1, murder, is, in all the circumstances, particularly heinous.
[61] Notwithstanding all the mitigating circumstances, I consider that the offence of murder in your case is particularly heinous. The offence arose from a planned night-time invasion of Mr Barlow's home with the specific intention to cause him serious harm with the use of weapons, and that resulted, whether you foresaw the specific details or not, in a vicious and sustained attack upon him where he suffered 44 knife injuries.
[62] To your credit, you participated in a restorative justice program. You participated in a conference on 30 October 2024 in relation to the count of murder and another on 6 November 2024 on the count of arson. Importantly, Ms Vale, Mr Barlow's mother Debra and sister Karen were present and through the convener, you conversed with them and expressed your remorse. Agreement was reached. Your participation in that process is much to your credit.
[63] A pre-sentence report was prepared, and there was also a report prepared by Dr Hatzipetrou, which I have already mentioned. Both reports go into some detail of your background, which I will now summarise. However, I note an important conclusion by Dr Hatzipetrou. Dr Hatzipetrou found that your family dynamics were dysfunctional, and that tended to lead to you attaching to delinquent peers such as Jones. For that reason, the mafia theme developed by Jones was appealing to you.
[64] Dr Hatzipetrou concluded:
[40]
"In light of the findings, [PZW]'s decision to engage in the offending behaviours was underpinned by impairments in his social and moral reasoning and emergent antisocial attitudes. Moreover, there have been firm evidence of impairments in self-regulation. While [PZW]'s was aware that his actions were wrong, his capacity to understand the serious nature of his conduct was likely to be affected by the confluence of those listed factors."[17]
[41]
[65] From the reports, I glean that you have issues with illicit drugs. You are seeking to address that and have undertaken courses while in custody. You had taken drugs on the day of the offending, but it is not suggested that you were seriously affected.
[66] You were born in Tasmania in 2005, and your father passed away in 2007. Your mother re-partnered in 2011 and the family moved to Queensland in 2017.
[67] You were subject to physical and emotional abuse at the hands of your mother's partner, which ultimately led her to end the relationship.
[68] Expert opinion is that your exposure to domestic and family violence influenced the normalisation of aggression and violent behaviours in your mind. You commenced demonstrating difficult behaviours within your middle childhood years, which then escalated. This led to damage to the relationships you held within your family and an inability to form sound social relationships.
[69] Understandably, you had difficulties at school both educationally and socially. You had difficulty forming and maintaining relationships, and those maladaptive behavioural responses were also experienced in secondary school. In particular, the normalisation of violence in your mind led to aggressive behaviour towards students and staff, and you were found in possession of weapons at school.
[70] Ultimately, you were excluded from school in March 2022. That led to further isolation, and you were ripe to be enlisted by pro-criminal peers such as Mr Jones. Perhaps inevitably, once you had found a place in such a group, you then adjusted your attitude to meet theirs, which were pro-criminal. I accept that in those circumstances, you being asked to protect Ms Healy must have been regarded by you as a sign of acceptance and value by the group.
[71] The pre-sentence report suggests that you may not initially have had significant insight into the impact of your offending. However, discussions with case workers after the restorative justice process suggests that you now have significant insight.
[72] While in custody, you have been engaging in treatment and training and doing what you can to rehabilitate.
[73] It is necessary to turn to ss 227(1) and (2) of the . That provides that if sentenced to a term of detention, you must serve 70% of the period of detention unless there are "special circumstances." And if there are "special circumstances", then a discretion arises to order that you be released after serving some period between 50% and 70% of the term of detention.
[10] The group of you then travelled to the house occupied by Mr Barlow and Ms Vale. In order to lure Mr Barlow out of the house, one of your group turned off the electricity. Mr Barlow emerged and walked down the stairs of the high-set house to the area which can be described as "under the house" where the power box was located. One or more of your group then assaulted Mr Barlow and cut and stabbed him.
[11] Examination later revealed that Mr Barlow had either been stabbed or cut with a knife 44 times to the face, scalp, torso, and upper extremities. There were 14 stab wounds to the face and 11 injuries to his forearms and hands, which were consistent with him defending himself by raising his arms to the assailant.
[12] It is not clear whether the stab wounds were inflicted by one or more of the assailants or whether there were one or more knives used. Importantly, it is not alleged by the Crown that you stabbed or cut or otherwise assaulted Mr Barlow. The Crown prosecutor submitted that you were liable as a party, pursuant to s 8 of the Code. You formed a common purpose with others to prosecute an unlawful purpose, namely, to attend the house and cause serious harm to Mr Barlow, including with weapons. It was a probable consequence of the execution of that common purpose that Mr Barlow would be killed by one of your group, who at that time of the killing intended to grievous bodily harm to him.
[13] During the sentencing hearing, your barrister specifically accepted those allegations as the basis of the plea to count 1, the offence of murder.
[14] After the attack upon Mr Barlow, you and three others of your group entered the upstairs area of the house. You were disguised to a point as you were wearing a bandana across your face. You were carrying a jerry can containing some fire accelerant and a knife. You splashed the contents of the jerry can around a room in the house and set the liquid alight. That constitutes Count 2, arson.
[15] You left the scene with the other members of your group.
[16] After the killing, other members of your group quickly came to the attention of police and were arrested. You made various comments to friends that you had been involved in the killing. You also telephoned the Crime Stoppers service and told the operator a story indicating the innocence of your co-offenders.
[17] On 22 June 2022, police executed a search warrant at your home. You told police that you were not involved in the offending and that you thought the others, who by this stage had been arrested, were not involved. You attempted to set up an alibi. During the conversation with police, you said that Mr Barlow "looks like a paedo," which is a slang term for a paedophile, and that he probably deserved what happened. You told police that you had been told that Mr Barlow had touched Ms Healy when she was younger and that "all paedophiles deserve it..." You were arrested at your home. You have been in custody ever since.
[18] After your arrest, you were charged with the murder of Mr Barlow, the attempted murder of Ms Vale, and arson. There was a full hand-up committal on 6 October 2023, and the charges were committed for trial. The indictment was presented on 9 November 2023. A submission was sent to the Crown and was accepted, so the matter resolved as a plea to the two counts to which you pleaded guilty on 16 July 2024.
[19] The statements made by you to the police might, on their face, indicate a lack of remorse. However, many of your actions, for instance, accepting a role as Ms Healy's bodyguard and apparently becoming involved in Mr Jones' mafia ambitions and, indeed, having same such ambitions yourself, it seems, shows substantial immaturity. This, I think, is exacerbated by the fact that you were the youngest of the group which otherwise ranged in years from 19 to 25.
[20] The pre-sentence report and the report of Dr Hatzipetrou confirm that there are various reasons why you would be likely to be influenced by peer pressure. It seems to me that it is likely that, through immaturity and inexperience, you have been caught up in the criminal behaviour of others.
[21] In those circumstances and given the mitigating circumstances to which I will later refer, I find that your pleas of guilty are a sign of true remorse and that you are truly sorry for your actions. I proceed on that basis.
[22] However, nothing I have just said detracts from the objective seriousness of the offences or the damage caused.
[23] Mr Barlow lost his life. The house was destroyed by fire. The Barlow family lost Mr Barlow who was a son, sibling, a father, an uncle, and a cousin. Ms Vale lost him as her partner. Victim impact statements were read by the prosecutor. These were authored by Ms Vale and by Mr Barlow's sister, Karen.
[24] In her statement, Mr Barlow's sister spoke of the hurt and trauma and sense of loss suffered by Mr Barlow's mother, his two remaining siblings, his four children, and nephews. Her expressions of loss and grief and suffering are, in my view, reasonable and measured. The family are all receiving counselling in order to deal with the grief.
[25] Ms Vale spoke of the horror of the offending and her grief at the loss of Mr Barlow, who she described as her "soulmate." She also lost two of her pets, the cat and the snake, and all her belongings in the fire. Her expressions of grief and loss are also, in my view, reasonable and measured. Additionally, and completely understandably, she has suffered emotional and mental damage and is presently on medication for anxiety and post-traumatic stress disorder symptoms.
[26] The two offences to which you have pleaded guilty would each carry life imprisonment if committed by an adult.
[27] By s 176 of the Youth Justice Act 1992 as it stood at the relevant time, the maximum penalty which can be imposed is limited to 10 years' detention unless two conditions are fulfilled, namely:
[35] The distinction has practical significance. Under Construction 2, 10 years' detention may be imposed for a sentence which is not "particularly heinous", even though the offence may not fall into the worst category of those offences which are not judged to be "particularly heinous". Sentences for offences which are not "particularly heinous" will generally be higher on Construction 2 than Construction 1 because the spectrum under Construction 2 is up to life detention. It is just that the court can only impose a sentence of 10 years' detention.
[36] By Construction 2, there will be no sentences which fall below 10 years where there has been a finding that the offence is particularly heinous. By Construction 1, sentences may fall below 10 years for offences which have been held to be "particularly heinous". That is because on Construction 1, the finding that an offence is particularly heinous sets the spectrum between nought and life imprisonment and the sentence after proper assessment may fall below 10 years. That will not be the case if Construction 2 is correct as the determination of a case being "particularly heinous" only arises if the sentence contemplated is more than 10 years.
[37] I could not find authority where this particular point has been considered.
[38] The approach to the construction of a statute has been authoritatively settled by the High Court in R v A2.[6] The object is to construe the words actually used to determine Parliament's will and to undertake that construction against relevant context and purpose. Context includes legislative history and relevant extrinsic materials.[7]
[39] The Youth Justice Act was originally enacted as the Juvenile Justice Act. Section 176 of the Youth Justice Act had its equivalent as s 121 of the Juvenile Justice Act. Although over the years there have been various amendments, s 121, like s 176, provided that a court could not impose more than 10 years' detention upon a child as a sentence for a "life offence" but could impose a higher sentence than 14 years if the offence involved violence and was "particularly heinous... having regard to all the circumstances". Nothing in either the Juvenile Justice Bill 1992, the explanatory note to the Bill, nor any of the speeches in Parliament which led to its enactment casts any light on the current issue.
[40] Section 176 is framed in terms of what "the court may order." Where there is no finding of particular heinousness, "the court may order the child be detained for... a period of not more than 10 years." And where there is a finding of particular heinousness, "... the court may order that the child be detained for... a period up to and including the maximum of life." This language can be contrasted with the language of the Code, which identifies maximum sentences in terms of the offender being "liable to imprisonment for a [specified number] of years". I take little from that distinction. A maximum sentence identifies the limits of the court's power. Whether the maximum is expressed in terms of ultimate liability of the offender or in terms of what the court may order casts no light on the present construction issue.
[41] In at least two cases, R v Gwilliams[8] and R v Carroll[9], the Court of Appeal has acted consistently with Construction 2. Both those cases were decided under a version of s 121 of the Juvenile Justice Act, which for life offences provided a maximum of 14 years if the offence involved personal violence and was a particularly heinous offence. In both cases, findings have been made that the offences were particularly heinous and, in both cases, the maximum of 14 years' detention was imposed. In neither case did the court consider where the case fell within a spectrum of up to 14 years. In neither case was there a finding that the offending was in the worst category of cases which were "particularly heinous."
[42] In Gwilliams, McPherson JA (with whom Davies and Pincus JJA agreed), confirmed the finding of the trial Judge that the offence was particularly heinous and then concluded that, "It [was] not possible to hold... that in all the circumstances, a sentence of 14 years detention was not within the limits of a proper sentencing discretion."
[43] In Carroll, Davies JA (with whom Macrossan CJ, and Ambrose J agreed) said:
[51] In R v William (a pseudonym)[12], Sofronoff P held that "all the circumstances" include all those factors which are required to be considered by the terms of the Youth Justice Act on sentence and include subjective factors such as rehabilitative prospects.
[52] In R v D[13], the Court of Appeal observed that:
[59] The factors which are particularly serious here are as follows:
[74] In my view, there are special circumstances which exist here to enliven the discretion.
[75] Firstly, you have no prior criminal history. An effect of that is that you have not previously been within the juvenile justice system and, therefore, you have not had the benefit of any orders for supervision made under the Youth Justice Act. While held in custody, you have, as I have already observed, responded well. You involved yourself in a restorative justice process, made amends to the extent that you can in the circumstances, and have shown optimistic signs for rehabilitation.
[76] In my view, the fact that you have responded well in a custodial sentence, which is your first experience with the juvenile justice system and that fact taken in the context of your compromised background constitutes special circumstances which enlivens the discretion in s 227(1) of the Youth Justice Act.
[77] I have turned my mind to s 150 of the Youth Justice Act and also the youth justice principles. I note the effect of recent amendments to s 150 and the youth justice principles which have removed the consideration that detention is a last resort and also removed the consideration that a child should be detained in custody for the least time that is justified in all the circumstances.
[78] I have taken into account the nature and seriousness of the offending, and I have already explained to you what I see as the serious factors.
[79] You have been exposed to significant domestic violence, which, as I have explained, has indirectly contributed to the offending, and I have taken that into account as I have the pre-sentence report and Dr Hatzipetrou's report.
[80] I have taken into account your rehabilitation efforts and your pleas of guilty and remorse. I have also taken into account the impact the offending has had on Mr Barlow's survivors.
[81] I have been referred to a number of comparative cases. Some are now quite old. I have had particular regard to the more recent decisions: R v SBU[18], R v YTZ[19], and R v HST,[20] together with my own decision in R v LZY & Porter[21]
[82] It is not my function to reconcile the various comparatives with each other or with your case. I have generally taken the comparatives into account as a yardstick against which to judge the sentences I am about to impose.
[83] I had previously told you that I had decided that the discretion to order you to be released from detention after serving less than 70% of the period of detention has arisen, and I intend to exercise that discretion especially given your lack of prior criminal history and your rehabilitative efforts.
[84] I intend to impose a sentence on count 1 which reflects the overall criminality and then impose a concurrent sentence on count 2. In so doing, I recognise and have taken into account the fact that because of the finding that count 1 was an offence which was particularly heinous, the maximum for count 1 is life, but the maximum for count 2 is only 10 years. And that means that the assessment of the sentence for count 2 must be done under what I have called Construction 1 of s 176.
[85] In relation to count 1 on the indictment, I sentence you to a term of detention of 12 years.
[86] In relation to count 2 on the indictment, I sentence you to a term of detention of seven years.
[87] I order that both terms be served concurrently. I order that you be released from detention after serving 60% of the period of detention I have imposed.
[88] A question arises to whether a conviction ought to be recorded. As was observed in R v KU; ex parte Attorney-General (No 2)[22], the seriousness of the offending may itself justify the recording of a conviction. Even though you have no prior convictions, in my view, this offending is, for the reasons I have explained, of such seriousness that convictions ought to be recorded, and I do so.
[89] A question also arises as to whether a publication order ought to be made. The question is whether it is in the interest of justice to do so. The Crown makes no submission in relation to the making of such an order and, in my view, a publication order ought not be made.