R v W; ex parte Attorney-General of Queensland [1998] QCA 281

When discussing the matter with the police the respondent claimed to have acted in selfdefence. The argument on behalf of the Attorney stresses the importance of deterrence in sentencing serious offences of violence and that the respondent had manifested an aggressive attitude towards the deceased well prior to the fatal attack. Counsel argued that the case was not one where a knife was obtained as an urgent matter, to avoid an impending assault.

1. It is desirable to make some reference to the course of events during sentencing. The learned primary judge initially sentenced the respondent to a period of 6 years, not 5 years. His Honour added a recommendation that -

"... you be eligible for parole after a period of two years and six months, that being fixed at a little under half the term of detention ordered".

After discussion with counsel, it was pointed out that the recommendation for parole was inappropriate and that it was necessary to make an order for release from detention after serving a defined period, under s. 188 of the Juvenile Justice Act 1992. The effect of that section is that the applicant was entitled to be released from detention after serving 70% of the period of detention unless the court ordered that he be released after serving a lesser period; s. 188(2) gives a discretion to fix that lesser period as between 50% and 70% of the period of detention. However, the power to order release after serving a period less than 70% may be exercised only if the court -

"... considers that there are special circumstances, for example to ensure parity of sentence with that imposed on a person involved in the same or related offence".

The requirements of s. 188 being drawn to the Court's attention, the initial sentence pronounced, of 6 years, was reduced to 5 years and his Honour ordered that the respondent be released from detention after serving 50% of that period, finding that there were special circumstances within the meaning of s. 188(2). Those circumstances were not specifically identified.

1. Of course a recommendation for parole has an effect different from that of an order for release at a specific time, made under s. 188 of the Juvenile Justice Act. Under an order of the former kind the Court does not require the release of the offender and whether he should be released early and if so when is a matter for the parole authorities; under an order of the latter kind the offender is absolutely entitled to release at the specified time, no administrative discretion being involved.
2. This is not to say that the respondent could never, under the order appealed against, be required to serve the full term of 5 years. Although he would have an absolute entitlement to release after 2 years and 6 months, there is an administrative discretion to specify conditions then and an administrative discretion to return him to custody for breach of such conditions: see ss. 189, 191 of the Juvenile Justice Act. What such conditions might be, in the respondent's case, is a matter on which we have no information. All one can say is that the practical effect of the order the judge made is that the respondent must serve 2 years and 6 months only, subject to the possibility that because of a breach of requirements imposed extra-judicially he might after release be returned to custody.
3. Another legal aspect of the matter which was raised at the hearing and requires discussion is this: are the principles of sentencing of juvenile offenders partly contained in the Penalties and Sentences Act 1992? Sections 4 and 109 of the Juvenile Justice Act which set out principles of sentencing under that Act, as was argued before us, appear to emphasise the interests of the offender rather than those of the victim. In contrast, at least in respect of offences of violence, s. 9 of the Penalties and Sentences Act lays stress upon community safety, not the interests of the offender: see s. 9(3) and (4) of the Penalties and Sentences Act which deal with offences (to put it simply) of a violent kind.
4. The present case plainly falls within the description in s. 9(3) of the Penalties and Sentences Act; the attack on the victim resulted in "physical harm"; the victim was killed. Under s. 6(2) of the Penalties and Sentences Act, the Act does not apply to a "child" within the meaning of the Juvenile Justice Act - a description which fits this offender - except to the extent allowed by the Juvenile Justice Act. Section 109(1)(a) of the Juvenile Justice Act, previously referred to, requires a court sentencing a child for an offence to have regard among other things to "subject to this Act, the general principles applying to the sentencing of all persons". The word "general" is the problem; it may be thought to refer to such principles as had been applied to sentencing, before the Penalties and Sentences Act codified them in 1992. Another suggestion made during argument was that the statutory principles of sentencing in s. 9 (and perhaps in other sections of part 2 of the Penalties and Sentences Act) are just those which had been established under the general law. But that seems to us a dubious proposition, which has become more so since the changes made in 1997 by the Penalties and Sentences (Serious Violent Offences) Amendment Act of that year, intended to create a sharp distinction between the approach of the court to sentencing for violent offences and sentencing in other cases.
5. Our conclusion, which has some importance for the present case, is that in conformity with the tendency of the law to resolve difficulties of construction in favour of the offender, the "general principles applying to the sentencing of all persons" mentioned in s. 109(1)(a) of the Juvenile Justice Act should be taken to refer merely to such principles as had, prior to the Penalties and Sentences Act, been worked out by the judges, and not to any principles stated in the latter Act. An additional reason for our conclusion is that, although both Acts were passed in the same year, the Juvenile Justice Act was enacted before the other statute.
6. It follows that, in our opinion, the Court is not bound, in considering the respondent's case, specifically to apply subs. (3) and (4) of s. 9 of the Penalties and Sentences Act. Although most of the principles there set out may be thought to represent the general law, it is no part of the policy of that law to apply to violent offences principles markedly at variance with those applicable to other offences.
7. We have been referred to what were suggested to be comparable cases, but it does not appear to us that any past decision can be applied directly, because the law relating to the offence committed is in an important respect quite new. It was changed on 18 November 1996, two months before the offence, by s. 45 of Juvenile Justice Legislation Amendment Act 1996. Prior to that amendment, the maximum penalty for murder committed by a child was 14 years, but the amendment raised that to life. After the amendment, s. 121(3)(b) of the Juvenile Justice Act continued to require the Court to distinguish between offences considered to be "particularly heinous" and those not so considered; the limit of detention, as to the latter category, remained 10 years. The point made by counsel for the Attorney, that if the offence had been committed a few days later (when the respondent turned 17) the sentence would have been one of life imprisonment should, in our view, be of no weight in determining this appeal.
8. In the present case, the judge identified matters "of particular importance" and one may infer that it was these which induced the judge to think that a 5 year period of detention, with an order to serve 2 years and 6 months only, was an appropriate penalty. Of the matters to which his Honour referred, those which seem to us of most significance are, in brief, that the respondent had some justification for thinking that the knife might have been a protection from violence which the respondent apprehended, that his conduct was affected by alcohol, that if the deceased had not rushed at the respondent no assault would have occurred, that the striking with the knife was not premeditated, a favourable presentence report and remorse. Further, the respondent had only a minor criminal history.
9. Giving the fullest weight to these considerations, the sentence seems to us one which should not be allowed to stand. It is our respectful view that his Honour attached too little importance to two matters which have been regarded as of great significance: the harm to the victim (in this case, maximal) and general deterrence. Some might think it an unrealistic view, that requiring a boy convicted of murdering another with a knife to serve as little as 2 years and 6 months detention will encourage, or at least fail to discourage, other youths inclined to think that stabbing with a knife is an acceptable way of fighting. But the first of the general principles set out in the Juvenile Justice Act (s. 4(a)) requires the Court to pay attention to protection of the community from offences; that function would, in our opinion, not be adequately carried out if a murder by stabbing were so lightly punished. It is desirable to indicate to youths who might be inclined to use a knife to stab others that that course involves not only danger to those others, but a risk of substantial retribution, in the courts.
10. It should be added that, in our opinion, the judge was in error in taking into account as a mitigating factor the possibility that the alcohol which the respondent had ingested was partly responsible for his behaviour. Of course many of the violent offences with which we have to deal are related to drinking alcohol, but Rosenberger [1994] QCA 488; [1995] 1 Qd.R. 677, is clear authority that ordinarily that does not mitigate penalty.
11. It seems difficult to support the view that there are special circumstances justifying an order that the respondent serve only 50% of the term of detention fixed, but we do not, on the whole, think alteration of that order to be justified, having regard to the advantage which the primary judge had, of having conducted the trial of the respondent; we therefore do not vary the order the judge made, that the respondent be released from detention after serving 50% of the period of detention. We, however, allow the Attorney's appeal, replacing the order for detention for a period of 5 years by one that the respondent be sentenced to serve a period of detention of 9 years.