R v WAY; Ex parte Attorney-General [2013] QCA 398

SUPREME COURT OF QUEENSLAND

CITATION: R v WAY; Ex parte Attorney-General (Qld) [2013] QCA 398

PARTIES: R v WAY (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)

FILE NO/S: CA No 200 of 2013 / SC No 595 of 2012

DIVISION: Court of Appeal

PROCEEDING: Sentence Appeal by Attorney-General (Qld)

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 20 December 2013

DELIVERED AT: Brisbane

HEARING DATE: 3 December 2013

JUDGES: Margaret McMurdo P and Muir and Gotterson JJA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: 1. Application for leave to amend the grounds of appeal refused. / 2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the 16 year old respondent attempted to murder a 14 year old schoolgirl, stabbing her about 12 times with a knife in her neck, head, shoulders, upper back and, when she was trying to protect herself, her arms and hands – where the respondent and complainant were not known to each other prior to the attack but did attend the same school – where the respondent chose the complainant because she was female and his physical inferior and the attack took place in the girls' toilets – where the respondent had fantasised about harming others and then killing himself – where the respondent had no diagnosable mental illness – where the respondent surrendered to the police after the attack and subsequently pleaded guilty to attempted murder 13 months after arrest – where the respondent was sentenced under the Youth Justice Act 1992 (Qld) ("YJ Act") to four years detention to be released after serving 50 per cent – where the appellant contends that the sentence was manifestly inadequate – where the appellant also seeks leave to amend the notice of appeal to add the ground that the sentencing judge erred in failing to determine that the offence was a "particularly heinous offence" within the meaning of s 176(3)(b)(ii) of the YJ Act, the effect of which would be to increase the maximum penalty from 10 years detention to life – where the appellant contends that, merely because the prosecutor did not submit that the respondent should have been sentenced under s 176(3)(b)(ii) at first instance does not absolve the sentencing judge from the responsibility of imposing a proper sentence – where the respondent contends that the matter in s 176(3)(b)(ii) is a "circumstance of aggravation" within the meaning of s 1 Criminal Code 1899 (Qld) and, as the prosecutor did not plead the circumstance of aggravation in the indictment, the appellant is precluded from now relying on it – whether the sentencing judge erred in failing to determine that the offence was a "particularly heinous offence" within the meaning of s 176(3)(b)(ii) – whether the matter in s 176(3)(b)(ii) is a "circumstance of aggravation" within the meaning of s 1 Criminal Code – whether the sentence was manifestly inadequate / Criminal Code 1899 (Qld), s 1, s 564(2), s 630 / Penalties and Sentences Act 1992 (Qld), s 161B(3) / Youth Justice Act 1992 (Qld), s 3, s 140, s 150(1)(b), s 176(3) / Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited / Malvaso v The Queen (1989) 168 CLR 227; [1989] HCA 58, cited / R v AS; ex parte A-G (Qld) [2004] QCA 259, cited / R v E; ex parte A-G (Qld) (2002) 134 A Crim R 486; [2002] QCA 417, cited / R v Ellis [2002] QCA 402, cited / R v Henderson; Ex parte Attorney-General (Qld) [2013] QCA 63, cited / R v JAJ [2003] QCA 554, cited / R v KU, ex parte Attorney-General (No 2) [2011] 1 Qd R 439; [2008] QCA 154, cited / R v Lepp [1998] QCA 411, cited / R v LY [2008] QCA 76, considered / R v N; ex parte A-G (Qld) [2003] 149 A Crim R 497; [2003] QCA 391, cited / R v RJ**I, unreported, Supreme Court of Queensland, Indictment Nos 31 and 32 of 2013, North J, 18 October 2013, considered / R v W; ex parte Attorney-General (Qld) [2000] 1 Qd R 460; [1998] QCA 281, cited / R v Wilde; ex parte A-G (Qld) (2002) 135 A Crim R 538; [2002] QCA 501, cited / R v Wilton (1981) 28 SASR 362; (1981) 4 A Crim R 5, cited / R v ZTJ, unreported, Supreme Court of Queensland, Indictment No 1583 of 2009, Boddice J, 24 March 2011, considered / The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31, discussed

COUNSEL: W Sofronoff QC SG, with J Robson, for the appellant / D C Shepherd, with J P Benjamin, for the respondent

SOLICITORS: Director of Public Prosecutions (Queensland) for the appellant / Legal Aid Queensland for the respondent

1. MARGARET McMURDO P: The respondent, a 16 year old youth at the time of the offending, pleaded guilty in April this year to the attempted murder of a 14 year old female student on 9 May 2012. They attended the same high school. A pre-sentence report was ordered under the Youth Justice Act 1992 (Qld) (YJ Act). He was sentenced under the YJ Act on 22 July 2013,¹ by which time he had turned 17, to four years detention with an order that he be released after serving 50 per cent. A period of 439 days pre-sentence custody was declared to be imprisonment already served under the sentence. The appellant, the Attorney-General of Queensland, has appealed against that sentence contending that it is manifestly inadequate. He has applied for leave to amend his notice of appeal to add an additional ground of appeal that the learned sentencing judge erred in failing to determine that the offence was a "particularly heinous offence" within the meaning of s 176(3)(b)(ii) of the YJ Act.

2. Before stating my reasons for refusing the application for leave to amend the notice of appeal and for dismissing the appeal, I will set out the tragic circumstances of the offending; summarise the pre-sentence and psychiatric reports; discuss the sentencing proceeding; and set out the appellant's contentions.

The circumstances of the offending

3. A sensible starting point in the resolution of this appeal is to set out the circumstances of this dreadful offence which has devastated the victim and the families of both the victim and the respondent.

4. The complainant was in grade 9 and the respondent, who was in grade 11, did not know each other prior to 9 May 2012. The complainant arrived at school at about 7.00 am for cross-country training. She saw some students, including the respondent, walking around the school. She put her bag at her locker and went to the girls' toilets. The respondent, who was wearing dark glasses, walked back and forth in front of the toilets. As the complainant was putting on makeup she heard a noise, turned and saw the respondent. She told him this was not the boys' bathroom. He did not respond as he walked up to her, faced her and stabbed her on the neck and upper back. She suffered stab wounds to her hands as she tried to protect herself as he continued his attack despite her screams. She escaped from the toilets but fell to the ground and he tried to drag her back in by her feet. She kicked out at him, managed to get to her feet and tried to run. He grabbed her jumper but she was able to pull free. Two male students saw the attack outside the toilets and staff and students went to her assistance and called an ambulance. The respondent fled.

5. The complainant was treated at Royal Brisbane Hospital. She had approximately 12 stab wounds to the head, face, neck, shoulders, arms and hands. Miraculously, they were not life-threatening. The right wrist wound was closed with two sutures; the right thumb wound was closed with four sutures and the right forehead wound was closed with five sutures. The remaining wounds were dressed. The deepest wound was a neck wound running adjacent to the C2 vertebrae. The injuries would have caused moderate pain and discomfort.² Photographs of her injuries taken two days later were tendered.³

6. Later that day, police recovered the knife which the respondent left at the scene. Photographs were tendered.⁴ Two more knives and a hammer were found in the respondent's locker.

7. At about 9.20 am the respondent handed himself into the Caboolture Police Station. He had cut himself with the knife during the attack. The photographs of his injury depicted the respondent as lightly built and as appearing younger than his age.⁵ Acting on legal advice, he declined to be formally interviewed.

8. The police investigation revealed that the respondent had written a short story for an English assignment in early 2012 in which the main character attended his high school and massacred his peers in a violent rampage before committing suicide. The assignment was tendered. Police also found a notebook in his bedroom which contained a list of the advantages and disadvantages of committing suicide.

The psychiatric report

10. Psychiatrist, Dr Scott Harden, prepared a report on 12 June 2013 to assist the author of the pre-sentence report.

11. He was originally asked by the respondent's lawyers to provide a psychiatric report in the respondent's case in July 2012. Before providing the present report, the respondent's lawyers gave him written permission to utilise material from the first report.

12. When the respondent was in grade 3 or 4, he began to have violent thoughts about those who had teased or victimised him. By the time he was in grade 8 and 9, he was researching violence to the point of watching "snuff" films, which involve the actual killing of other human beings, and he began to have suicidal thoughts. By the time he was in grade 10, he was pre-occupied with this material and with the idea that he should do something like this. He was shocked and appalled but also fascinated and excited by the snuff films. He thought that if he hurt someone, he could feel empowered and it would probably be thrilling. Police found a document at his house entitled "pros and cons" which was about him hurting someone and then killing himself because he was feeling pressured with school work. Towards the end of 2011 he thought he might actually carry out these plans. He decided he would first hurt an animal and went out with a knife and a large bag to find a dog. He was unable to find one, became scared, returned home and discarded this plan as "animals were too innocent".⁷ On one occasion, he took a knife to the movies for self-defence. If the opportunity arose, he thought he could see if he enjoyed hurting people.

13. He hid knives in his room a month or two before the offence with a view to implementing his plan. He had thought about stabbing someone in the school toilets for some time. He decided the previous evening to commit the offence as he was feeling stressed about debating preparation and about not having completed his three pieces of school work. He was angry with himself for watching pornography. He thought if he attempted to kill someone, this would relieve his stress. He might then kill more people. He wanted to know whether he would feel guilty or gain stress relief and to prove that he was not a "wimp".⁸ If he could inflict pain on someone else then he could inflict pain on himself and succeed in killing himself. If he went through with this plan, he thought he would be shot or overwhelmed by police because he would not "want to go on".⁹ He did not prepare an escape plan and hoped he would be killed.

14. The night before the attack he packed three knives and a hammer into his bag. He had not realised that cross-country training meant that there would be more people than usual at school at 7.00 am. He took the smallest knife from his bag and put it in his back pocket. He followed a girl whom he did not know into the girls' toilet block, thinking it would be easier to overpower a female. He came at her with the knife and, as he stabbed her, his hand slipped and he cut himself. He repeatedly attacked her on the back of the neck thinking, "I'm finally doing this." He was scared but it was too late to stop. She managed to get to the door and he tried to drag her back but she got away again. He tripped over and ran, dropping the knife outside the toilet. His fantasy was shattered. He was disappointed that he had failed to stop himself when he could have. His hand was bleeding. He ran to the railway station and thought about jumping in front of a train but none came. He did not want to be found before he killed himself. In the end, he was unable to kill himself and decided to turn himself in. He realised that attacking the girl was "such a massive mistake". He felt "really bad and foolish", extremely guilty and wanted to die. He thought about the victim and about writing a letter of apology to her and her family but was unsure how to go about it. He wanted to express that what he did "wasn't fair".

The pre-sentence report

19. The author of the pre-sentence report relied on personal interviews with the respondent on 30 April and 11 and 18 June 2013; interviews with the respondent's parents on 13 June 2013; Dr Harden's psychiatric report; an interview with Counsellor Tom Strong on 12 June 2013; information provided by a case worker from the Brisbane Youth Detention Centre; youth justice records and personnel; and information provided by the Director of Public Prosecutions.

20. The author stated that disrupted self concept and fascination with violence and horror contributed to the respondent's offending and his:

"engagement in grandiose fantasies of power and control represented a maladaptive coping strategy to alleviate feelings of depression, insignificance and powerlessness. Increased stress associated with threats to his self-concept exacerbated [the respondent's] perceptive and thought disturbances, resulting in an escalation of his violent fantasies and the commission of his offence."¹⁴

21. He did not fully appreciate the severity of his offence. His capacity to empathise with the complainant was restricted by his own experience of consequences and impacts. He felt regret for his involvement in the offence, but exhibited limited insight and appreciation for the harm caused to the complainant, her family and the broader community. He would be assisted by education regarding the impact and trauma caused to others by his offending. He had developed insight into the factors associated with his offending and had progressed in his willingness to engage with supports and services to address these issues.

22. He had the support of his parents who have provided a stable, supportive pro-social family life. He has a supportive relationship with his counsellor and it is planned to continue this therapeutic engagement upon his release into the community. The Department would assist his engagement in long term psychological intervention to support his reintegration into the community and minimise his risk of future violent recidivism.

23. He had articulated pro-social future goals and was incorporating support needs and knowledge of risk areas into his transition planning. If sentenced to a period of detention he would be required to participate in vocational, educational, recreational, therapeutic and offence focussed intervention programs. Upon his release after serving the custodial component of the order, he would be subject to the conditions of a supervised release order which would include not only statutory conditions and regular reporting, but also participation in therapeutic intervention with a mental health practitioner familiar with issues of identity, sexuality and violence in young people. Should he fail to comply, the Department would make an application to the Childrens' Court for cancellation of the supervised release order.

The sentence proceeding

24. The prosecutor submitted that the maximum penalty for the offence of attempted murder was 10 years under s 176(3)(a) of the YJ Act. It is highly significant to this appeal that the prosecutor did not submit that the Court should consider "the offence to be a particularly heinous offence having regard to all the circumstances" so that the maximum imprisonment was life under s 176(3)(b) of the YJ Act.

25. The prosecutor submitted that the offending was extremely serious and disturbing. It was planned and calculated as the psychiatric report demonstrated. The respondent had been pre-occupied with actually killing a person since grade 10. He waited until the complainant was alone and vulnerable and deliberately chose a younger female who was physically his inferior. He was persistent in his sustained attack on her. There was no motive. It was an aggravating feature that the offence was committed in a school where the complainant would have felt safe.

26. He tendered the complainant's victim impact statement which described her terrifying experience and its subsequent detrimental impact on both her and her family. A report from her general practitioner stated that she was suffering from PTSD.¹⁵ She believed he was going to kill her. Statements from the complainant's mother and younger brother also addressed the detrimental impact of this dreadful offence on the complainant and on them.

27. The prosecutor submitted this was a more serious example of offending than that contained in both R v LY,¹⁶ where a detention order of two and a half years was imposed with release after serving 50 per cent, and R v ZTJ¹⁷ where a sentence of three and a half years detention was imposed with release after serving 55 per cent. In this case, a sentence of four to five years detention was required. The mere fact that the respondent pleaded guilty did not require an order for release after 50 per cent and there should be no departure in this case from the statutory requirement that the respondent serve 70 per cent of the period of detention.

28. Defence counsel accepted the accuracy of the psychiatric and pre-sentence reports. LY, he submitted, supported a sentence of three to four years detention with release after about 50 per cent. The respondent came from a good family and was largely a straight As student. Although he had no diagnosable mental disorder, he developed feelings of anxiety and spiralled downward relatively quickly. Counsel tendered references from the respondent's parents, his 2012 Mathematics B and Mathematics C teacher, relatives and friends, including a Justice of the Peace. They all spoke well of the respondent, his previous good character and talent and how shocked they were to learn of this offending.

The appellant's contentions

31. The appellant's principle contention is that the application for leave to amend the grounds of appeal should be granted and that the sentencing judge erred in failing to determine the offence was a particularly heinous offence under s 176(3)(b)(ii) of the YJ Act. The prosecutor did not raise this matter for consideration but the offence fell into that category. It was premeditated. The respondent planned to indiscriminately kill a school child. He chose a younger female whom he could overpower. He may have gone on to kill others. He took a number of knives to school and targeted the younger, smaller complainant while she was alone, vulnerable and concealed from others in the girls' toilet. He stabbed her in areas calculated to do grave damage. The attack was horrific and bloody. His murderous intent was frustrated only by the complainant's resistance and the fortuitous intervention of others. It was a sustained attempt to kill, making this a serious example of attempted murder: R v Lepp.¹⁸ The offence occurred at a public high school. It has had a serious detrimental impact on the complainant, her mother and younger brother. The respondent was not disadvantaged or acting under the influence of mental illness. He still did not fully appreciate the severity of his offence and had limited insight. For all these reasons, the judge should have considered this to be a particularly heinous offence so that the maximum penalty was not 10 years detention but life.

32. The application of the sentencing principles under s 150 of the YJ Act and the Schedule 1 Charter of Youth Justice Principles did not diminish the importance of community protection: R v JAJ¹⁹ and R v E; ex parte A-G (Qld).²⁰ This was especially so where the offending involved the use of weapons: R v W; ex parte Attorney-General (Qld).²¹ R v LY²² was a much less serious case than this and turned on its own unique facts. ZTJ²³ was also readily distinguishable. This case required a much longer period of detention than both LY and ZTJ.

33. The prosecutor's omission to ask for a proper sentence did not shift the responsibility of imposing a proper sentence from the sentencing judge: . This was an exceptional case where this Court should intervene to impose the proper sentence where the sentencing judge failed to appreciate the seriousness of the offending. This was necessary to maintain public confidence in the administration of justice: *; Ex parte A-G (Qld)*. This Court was not constrained from now imposing a sentence of the appropriate severity as the prosecutor's contention as to the level of appropriate penalty was manifestly too low: and .

The application for leave to amend the grounds of appeal

37. The YJ Act s 176 relevantly provides:

"176 Sentence orders – life and other significant offences

(1)If a child is found guilty of a relevant offence before a court presided over by a judge (the court), the court may—

…

(b)make a detention order against the child under subsection (2) or (3).

…

(3)For a relevant offence that is a life offence, the court may order that the child be detained for—

(a)a period not more than 10 years; or

(b)a period up to and including the maximum of life, if—

(i)the offence involves the commission of violence against a person; and

(ii)the court considers the offence to be a particularly heinous offence having regard to all the circumstances.

…

(10)In this section—

relevant offence means a life offence … ."

38. The sentence proceeding took place on 22 July 2013. It is common ground that attempted murder was a relevant offence for the purposes of s 176. The sentence was conducted on the basis that the respondent was to be dealt with under s 176(3)(b)(i) so that the maximum period of detention was 10 years. The prosecutor specifically adverted to s 176(3)(b)(i) and stated in terms that the maximum period of detention to which the respondent could be sentenced was 10 years. Defence counsel and the sentencing judge proceeded on that basis. The first time there was any attempt to depart from that approach was when the appellant filed his outline of submissions in this appeal on 31 October 2013, more than three months after the respondent was sentenced. The prosecutor at sentence was highly experienced and respected. There can be no doubt that he made an informed and deliberate decision that this was not an appropriate case in which to submit that the maximum penalty was life under s 176(3)(b)(ii). It is also clear that the judge accepted prosecutor's approach as appropriate.

39. The community interest in the finality of litigation means that courts discourage parties from departing on appeal from the way they have elected to conduct litigation at first instance. This is especially so in criminal matters, particularly those involving children. Schedule 1 of the YJ Act contains the Charter of Youth Justice Principles to which a sentencing court must have regard: see s 3 and s 150(1)(b) of the YJ Act. Principle 7 states:

"If a proceeding is started against a child for an offence –

(a)the proceeding should be conducted in a fair, just and timely way".

40. To allow the appellant to amend his grounds of appeal at this point and to make submissions on appeal which were not put by the prosecutor at sentence, would be inconsistent with principle 7 and would effectively place the respondent child in a position of double jeopardy. An appellate court will allow an appellant to put contentions on appeal against sentence which were not put to the sentencing judge, only where exceptional circumstances justify such a course: R v Wilton,³⁰ cited with approval in Malvaso v The Queen,³¹ Everett v The Queen³² and R v KU, ex parte Attorney-General (Qld) (No 2).³³ The appellant has not demonstrated extraordinary circumstances warranting this dramatic and late change in the way he now seeks to conduct the case against the respondent child. The application to amend the grounds of appeal should be refused.

Is s 176(3)(b)(ii) of the YJ Act a circumstance of aggravation under s 1 Criminal Code?

41. Although I would refuse leave to amend the grounds of appeal, the respondent's contention that reliance on s 176(3)(b)(ii) is a circumstance of aggravation under s 1 Criminal Code which must be pleaded in the indictment if it is to be relied upon, raises a point of law which may be of considerable future importance. It is not necessary to determine it for the purposes of the disposition of this appeal but it is a question which the Court should resolve.

42. The answer to the question is by no means straight forward but for the following reasons I am ultimately persuaded that reliance on s 176(3)(b)(ii) is not a circumstance of aggravation under s 1 Criminal Code.

43. The respondent contended that the application of s 176(3)(b)(ii) depends on a finding by the Court, having regard to all the circumstances, that the offence falls into a particular category, namely, that it is particular heinous. That categorisation is a circumstance of aggravation within the meaning of s 1 and s 564(2) Criminal Code which was required to be pleaded in the indictment if the prosecution intended to rely on it. This differed from the serious violent offence provisions in Pt 9A Penalties and Sentences Act which concerned only the period of time an offender would spend in custody before being released on parole.

44. The respondent's contention stems from The Queen v De Simoni³⁴ where the plurality³⁵ held that, if an indictment does not refer to particular circumstances of aggravation, a sentencing judge may have regard to those circumstances only if they would not render the accused liable to a greater punishment. De Simoni pleaded guilty to robbery which is punishable by a maximum penalty of imprisonment for 14 years. The maximum penalty was increased to life imprisonment where the offender was armed with any dangerous or offensive weapon or instrument or wounded or used any other personal violence. De Simoni wounded the victim in the course of the robbery but that circumstance was not charged. It was a circumstance of aggravation which should have been charged if it was to be relied upon to impose a heavier sentence. De Simoni is patently distinguishable from the present case. There is no direct or close analogy between the situation in De Simoni and the provisions of s 176(3)(b)(ii) with which this case is concerned.

45. There are difficulties with the respondent's contention. The first is that s 176(3)(b)(ii) allows the court to make a judgment as to whether the offence is a particularly heinous offence, having regard to all the circumstances. This does not seem analogous to requiring proof of a circumstance of aggravation. The second is that, unlike a circumstance of aggravation which must be pleaded in the indictment which the prosecution presents to the court, the terms of s 176(3) make plain that it is for the court to determine the penalty for those offences to which s 176(3) applies. The court must determine whether the child offender is to be sentenced under s 176(3)(a) and detained for a period of not more than 10 years or under s 176(3)(b) for a period up to and including the maximum of life where the court considers the offence to be a particularly heinous one having regard to all the circumstances. This is inconsistent with the prosecutor pleading the matter as a circumstance of aggravation in the indictment.

Is the sentence manifestly inadequate?

49. The final issue for resolution is whether the sentence was manifestly inadequate. Determination of this issue is not a consideration of whether this Court may have imposed a heavier penalty if sentencing at first instance but whether it was not open to the judge to impose the penalty he did. A useful starting point is to consider the circumstances of those cases involving youth offenders who have pleaded guilty to attempted murder which were relied upon at first instance and in this appeal as having some comparability.

R v LY

50. In R v LY,³⁸ the applicant, who was 15 at the time of the offending, pleaded guilty to attempted murder and conspiring to murder and was sentenced to an effective term of four years detention with release after two years. She contended the sentence was manifestly excessive. This Court varied the sentence by ordering that she be detained for two and a half years and that she be released after 15 months.

51. Her co-accused, Hockey, a young adult, pleaded guilty to these counts and to armed robbery and was sentenced to an effective term of imprisonment of 10 years.

52. LY came from a caring, affluent family. Prior to her offending, she had counselling at her private school over her relationship with her parents. When she was 13, she developed a friendship with a male youth who raped her. She made a complaint to police but later withdrew it. She was greatly detrimentally affected by this incident, as was her relationship with her parents. She developed a major depressive disorder and a post-trauma syndrome. She took alcohol and experimented with illicit drugs.

53. She met Hockey through the internet. He was two and a half years older, had a troubled past and demonstrated behavioural problems throughout his schooling. He used illicit drugs from the age of 14. At 15 his best friend was killed in a motor vehicle accident and he tried to commit suicide. He developed an alcohol problem and became a binge drinker. He worked at a restaurant and used and dealt in illicit drugs. He was diagnosed with attention deficit hyperactivity disorder. A psychiatrist considered him of average intelligence and with an anti-social nature. He falsely told LY that he had been in the air force and was a hit man. In order to impress her he showed her his handgun which was in fact a replica, but which she believed was a working firearm. They began to see each other every second day without the knowledge of her parents. Their relationship developed into an intense sexual one. She ran away from home to be with him, stealing $1,000 from her mother's account.

54. Her parents became aware of her relationship with Hockey when they tracked her down to a friend's place and took her home. They argued about her relationship with him, confiscated her mobile phone and grounded her. She was bitterly resentful and she and Hockey decided to murder her parents. He said he did not want to use his gun because it did not have a silencer and suggested cutting their throats with a knife. She agreed as long as she did not have to use the knife. She proposed they kill her parents one morning after a night out when they were likely to be affected by alcohol. She arranged for him to come to her home at about 5.30 am. She anticipated funding their life together with money from her parents' bank account. She suggested that he wait behind the bathroom door, put his hand over the mouth of whichever parent entered the bathroom first and then slash their throat with the knife he had brought with him. Hockey tried to implement the plan which was ultimately unsuccessful. The mother heard the scuffle and called the police. All four protagonists waited together for the police to arrive.

R v ZTJ

56. The remaining comparable sentences discussed in this appeal were decisions of sentencing judges in the Trial Division. In R v ZTJ,³⁹ the 15 year old ZTJ pleaded guilty to attempted murder. He was 17 at sentence. He threw a blanket over the head of the female complainant and tried to strangle her. She awoke during the attack but initially was unaware of what had happened. She later found a knife in her bed and reported this to her parents. When she later found out what had happened she was traumatised. But for ZJT reporting what he had done to his youth worker, this the matter would not have come to the attention of police to whom he made admissions. ZJT had a previous offence with sexual connotations involving a knife for which he was on probation at the time. He had demonstrated persistent disturbing behaviour concerning young females. It was to his credit that he desisted of his own motion. He was drunk at the time. The prosecution submitted the appropriate penalty was detention for four years with release after serving 50 per cent but as he had spent two years in custody, consideration should be given to immediate release on a supervised release order. After taking into account pre-sentence and psychiatric reports, the victim impact statement and the mitigating features and after referring to LY, the judge determined that the appropriate sentence was three and a half years detention with release after serving 55 per cent, that is, effective from the date of the sentence. It was appropriate to record a conviction. For the breach of the previous probation order, the judge re-sentenced him to three years probation with additional conditions, namely, that he receive treatment, that he refrain from both carrying a knife and using illicit substances and alcohol, and that he submit to drug and alcohol testing and treatment as directed.

R v RJI

57. In R v RJI,⁴⁰ RJI, who was 16 years old, telephoned the complainant, a 15 year old young woman, and they arranged to meet. They were sitting on her front steps chatting for about an hour. She was tired and asked him to leave. He wanted her to go home with him but she had school the next day and did not want to. He punched her hard in the right cheek with a closed fist, ordering her to "go and get a jumper now". The punch caused swelling to her jaw (count 1, assault occasioning bodily harm). She screamed that she did not want to go with him. He told her to "shut the fuck up" and took her mobile phone so that she could not text her mother. He ordered her to get on his bicycle. She eventually complied to avoid being hit again (count 2, deprivation of liberty).

58. He drove her to a bridge where he went through her Facebook page messages and found a message from a young man, S. He punched her in the back of the head, kicked her in the ribs, winding her, and punched her in the right eye. She screamed, fell to the ground and could not see out of her eye for about 10 minutes. She told him to ring an ambulance. He said, "You're just putting on a big act" (count 3, assault occasioning bodily harm). He continued to yell at her about S and said if she did not change schools he would come after her. He told her to get back on his bicycle and she complied.

59. He took her to his home where they arrived at about 5.00 am. He told her to wait outside so that no-one saw her. She asked him to leave his mobile phone as she wanted to play games on it while she waited. He had a shower and made breakfast. She used his phone to call her mother to come and get her. Her mother arrived and beeped the car horn. He tried to make the complainant run away with him. He jumped the fence and she feigned an injury. He returned and pushed her towards a garden shed (count 4, common assault). He grabbed her by the hair and dragged her into the shed (count 5, common assault). He pushed her against the wall to hide her from her mother and held his hand over her mouth so she could not speak (count 6, deprivation of liberty). She made noises to attract her mother's attention. He picked up a 25 cm long knife with a serrated blade from the table and held it so that the tip of the blade was touching her stomach, saying, "if you move, I'm going to kill you, I'm going to stab you" (count 7, common assault). The complainant was frightened, grabbed some scissors from a nearby table, stabbed him in the leg, ran to her mother's car and they drove home.

60. About a week later, she went to her brother-in-law's house at the request of her sister, T. RJI was there. She was angry with T for setting her up and phoned her mother who picked her up and they drove to the complainant's grandmother's house for a family barbeque. RJI arrived to apologise but was not allowed inside. He began to fight another youth. The complainant's mother and grandmother told him to leave. He abused the mother and punched her in the face. She retaliated by punching him. The complainant hid behind a vehicle until the police arrived. When RJI saw the complainant he rushed towards her but the police took him away without charging him.

Conclusion on this ground of appeal

67. To intentionally try to kill another human being is to commit one of the most serious offences under Queensland's Criminal Code, attempted murder. Even those sentenced for this offence under the YJ Act must expect stern punishment to reflect the gravely anti-social nature of such behaviour. Whilst LY, ZTJ and RJI are not closely comparable on their facts, like this case they were serious examples of the offence. None of them suggest that the sentence of four years detention to serve 50 per cent imposed here was manifestly inadequate. The sentencing judge rightly concluded that in this case detention was the only sentencing option and a conviction must be recorded. In determining the period of detention to be imposed, the YJ Act requires that the period of detention imposed be for the shortest possible period.⁴¹

68. There were extremely serious aspects to this offending. It was premeditated and senseless. The respondent was not suffering from any mental illness and understood the wickedness of his actions. The completely blameless young complainant was a hapless victim of the respondent's irrational, morbid, adolescent fantasies. Miraculously, despite the vicious and sustained nature of the respondent's attack on her, she was not seriously physically hurt although she has suffered PTSD and will no doubt remember this terrifying incident for the rest of her life. It has also had a significant detrimental impact on her parents and younger brother. The offence occurred at the victim's school in the female toilet where she was entitled to feel secure.

69. On the other hand, the youthful respondent had no prior contact with the criminal justice system. His teachers and parents were unaware of his long history of dark thoughts which progressively became even darker, culminating in this offence. It is frightening that "snuff" films can be so readily accessed on the internet. This case is a stark example of their potentially dreadful effect on troubled teenage minds. The appellant may wish to consider whether legislative changes or increased police resources are needed to assist in the apprehension of those who distribute such evil material.

70. The respondent was a clever, talented student and a high achiever who had the support of caring parents. He had a low self-image and did not seek assistance for his adolescent turmoils which worsened as he internalised them. It is significant that he voluntarily surrendered to police and since his placement in custody has accepted treatment. He volunteered the shocking and concerning details of his reasons for offending to Dr Harden, knowing they would be placed before the court. He is now progressing well with counselling which he will continue when released into the community under supervision. Dr Harden, the experienced and respected youth psychiatrist who prepared a court report, considers that he is generally of low risk of re-offending, although noting that he will be especially vulnerable at times of emotional crisis.

ORDERS:

1.Application for leave to amend the grounds of appeal refused.

2.Appeal dismissed.

72. MUIR JA: I am grateful for McMurdo P's careful recitation of the facts and discussion of principle with which I respectfully agree. I also agree with the orders she proposes. I wish, however, to make some additional observations. In my view, the sentence imposed on the appellant was very lenient even allowing for: the early plea of guilty; the fact that the complainant recovered completely and quickly from her wounds (at least physically); and the absence of "a particularly heinous offence" finding.

73. The offending was planned, the appellant was armed with a knife and his victim was defenceless. The attack was viciously and remorselessly pursued. The complainant escaped death or serious permanent physical injury only by sheer good fortune. The facts of R v ZTJ are thus not remotely comparable. The Court in R v LY referred to the presence of a great many mitigating factors. That is not the case here.

74. The offending in R v RJI was at least as grave as the appellant's offending, but, in my view, that offender was also treated with particular leniency.

75. GOTTERSON JA: I agree with the orders proposed by Margaret McMurdo P and with the reasons given by her Honour. I agree also with the observations of Muir JA.

Footnotes

1. The Act, s 140. ↩

2. Report by Dr George Allen, ex 3. ↩

3. Ex 2. ↩

4. Photographs of the knife are ex 4. ↩

5. Photographs of his injury are ex 8. ↩

6. The essay was tendered as ex 9. ↩

7. Ex 1 (AB 57). ↩

8. Ex 1 (AB 58). ↩

9. Ex 1 (AB 58). ↩

10. Ex 1 (AB 59). ↩

11. Ex 1 (AB 59). ↩

12. Ex 1 (AB 59). ↩

13. Ex 1 (AB 60). ↩

14. Ex 1 (AB 51). ↩

15. Ex 11. ↩