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[2020] QCA 174
General information, not legal advice.
Court of Appeal (Qld)
2020-08-21
Sofronoff P and Morrison and Mullins JJA
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v William (a pseudonym) [2020] QCA 174
PARTIES: R / v / WILLIAM (a pseudonym) / (applicant)
FILE NO/S: CA No 68 of 2020 / SC No 113 of 2019
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: Supreme Court at Rockhampton – Date of Sentence: 3 March 2020 (Crow J)
DELIVERED ON: Date of Orders: 27 July 2020 / Date of Publication of Reasons: 21 August 2020
DELIVERED AT: Brisbane
HEARING DATE: 27 July 2020
JUDGES: Sofronoff P and Morrison and Mullins JJA
ORDERS: Date of Orders: 27 July 2020
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant attempted to kill his mother – where the applicant was suffering from Substance-Induced Psychotic Disorder – where the applicant’s mother had been supplying the applicant with cannabis and methylamphetamine from the ages of 12 and 14 respectively – where the applicant was a few days short of turning 18 at the time of the offending and the proceeding commenced by the presentation of the indictment was commenced more than a year after the applicant had turned 18 – where the learned sentencing judge sentenced him to be imprisoned for seven years and six months – where the learned sentencing judge regarded the offence as “heinous” within the meaning of s 176(3)(b) of the Youth Justice Act 1992 (Qld), which had the effect of giving the court the power to order that the child be detained for life – where the applicant submitted that the learned sentencing judge erred in finding the offence to be “heinous” – where the applicant submits that the relevant circumstances included the fact that the applicant was a child at the time of the offending, he had no relevant prior convictions, his upbringing was “horrendous”, that his good character was overborne by the vices inflicted upon him by the victim, and that there is the prospect that he will be cured of his diagnosed mental disorder – whether the offence was a particularly heinous offence having regard to all the circumstances – whether the sentencing discretion miscarried / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant attempted to kill his mother – where the applicant was suffering from Substance-Induced Psychotic Disorder – where the applicant’s mother had been supplying the applicant with cannabis and methylamphetamine from the ages of 12 and 14 respectively – where the applicant was a few days short of turning 18 at the time of the offending and the proceeding commenced by the presentation of the indictment was commenced more than a year after the applicant had turned 18 – where the learned sentencing judge sentenced him to be imprisoned for seven years and six months – where the learned sentencing judge regarded the offence as “heinous” within the meaning of s 176(3)(b) of the Youth Justice Act 1992 (Qld), which had the effect of giving the court the power to order that the child be detained for life – where the applicant submitted that the sentence was manifestly excessive – whether the sentence imposed by the learned sentencing judge was manifestly excessive / Youth Justice Act 1992 (Qld), s 140, s 144, s 176 / R v Maygar; Ex parte Attorney-General (Qld); R v WT; Ex parte Attorney-General (Qld) [2007] QCA 310, considered
COUNSEL: D A Holliday and G J Webber for the applicant / T A Fuller QC for the respondent
SOLICITORS: Legal Aid Queensland for the applicant / Director of Public Prosecutions (Queensland) for the respondent
SOFRONOFF P: On 14 August 2018, when the applicant, whom I will call “William”, was a few days short of turning 18, he attempted to kill his mother. He pleaded guilty and Crow J sentenced him to be imprisoned for seven years and six months. His Honour fixed a parole eligibility date at 15 February 2021. The applicant now seeks leave to appeal against his sentence on the ground that the sentence was manifestly excessive and on the ground that his Honour was wrong to regard the offence as “heinous” within the meaning of s 176(3)(b) of the Youth Justice Act 1992 (Qld).
As might be expected, William had a troubled upbringing.
His mother was involved in prostitution, possibly having been coerced to do so by drug suppliers to whom she was indebted. She is a drug addict and William says that his mother has been selling drugs for as long as he can recall. His father left when William was three years old. He died in 2016. William believes that his mother might have had an involvement in causing his father’s death. William’s childhood memories are of a house in which he and his siblings would see people constantly coming and going to meet with his mother in her bedroom. She was often absent, sometimes leaving her children for two weeks at a time without any means of support. She was subjected to violence in the sight of her children, including William.
William was put into foster care when he was 10 years old. At the date of the offence William’s younger siblings remained in foster care. He recounted that conditions in foster care were “pretty good” however, irrationally but understandably, he pined to return to his mother. William went to six different schools between grades one and 10. He was suspended a few times for misbehaviour. He left home when he was 16 years old and stayed with friends and then gained support from a charity for homeless youths.
William was not much of a drinker. However, his mother was a habitual marijuana smoker and, from the age of 12, he started to steal her synthetic cannabis and smoke it with a friend. His mother found out what he was doing. She did not think to try to prevent him from continuing to use cannabis. Her solution was to give him “real weed” in order to “protect” him against the possibility that a batch of synthetic weed might be toxic. Thereafter, William was able to smoke cannabis “every second day”. His mother became this 12 year old boy’s pusher. His use escalated. He became addicted. His mother, he says, “wanted me to ease off it, but I would always ask her to get me more weed.” He “liked the high”.
He did better while living at the homeless shelter where drug use was prohibited. He stopped using the drug for six months. He said that it made him feel good to stop using cannabis: “It made me feel better about myself. I had more of a social life.” When he began living independently he began using the drug once again and his usage escalated.
“140 When offender must be treated as an adult
(1)If 1 year has passed after an offender has become an adult –
(a)a proceeding afterwards started against the offender for a child offence must be taken as if the offender were an adult at the time of the commission of the child offence; and
(b)if found guilty in the proceeding – the offender must be sentenced as an adult.”
“144 Sentencing offender as adult
(1)Subject to subsections (2) and (3), a court sentencing an offender as an adult under section 140, 141 or 143 has jurisdiction to sentence the offender in any way that an adult may be sentenced.
(2)The court must have regard to –
(a)the fact that the offender was a child when the child offence was committed; and
(b)the sentence that might have been imposed on the offender if sentenced as a child.
(3)The court can not order the offender –
(a)to serve a term of imprisonment longer than the period of detention that the court could have imposed on the offender if sentenced as a child; or
(b)to pay an amount by way of fine, restitution or compensation greater than that which the court could have ordered the offender to pay if sentenced as a child.
(4)Subsection (3) applies even though an adult would otherwise be liable to a heavier penalty which by operation of law could not be reduced.”
The effect of s 144 is that William was to be sentenced “in any way” in which an adult might be sentenced. This means that, whereas a child may not be sentenced to imprisonment but only to detention under the Youth Justice Act 1992 (Qld), William was liable to be sentenced to a term of imprisonment under the Penalties and Sentences Act 1992 (Qld).
However, s 144(2) provides that the offender’s status as a child when the offence was committed cannot be ignored; it must be taken into account. Further, the limitations upon the period of detention to which a child might be liable to be sentenced apply mutatis mutandis in the case of an adult in William’s position.
It is convenient to consider this limitation in the first place. Section 176(10) defines the term “relevant offence” to mean, inter alia, a “life offence”. That expression is defined in Schedule 4 to the Act to mean an offence for which a person sentenced as an adult would be liable to life imprisonment. Section 176(3) provides that in such a case the court may order that the child be detained for no longer than 10 years unless s 176(3)(b) applies. That provision states that a child might be ordered to be detained for life if two conditions are satisfied. The first condition is that the offence involves the commission of violence against a person. The second condition is that:
“the court considers the offence to be a particularly heinous offence having regard to all the circumstances”.
This is a provision which increases a child’s potential liability to punishment from 10 years’ incarceration to imprisonment for life. Engagement of the section also means that the provisions of the Act that prohibit publicity being given to the case of a child offender might not apply if the court considers that publication is justified having regard to certain defined factors.1 These are exceptional significant penal consequences that Parliament has declared can only be justified if the offence involves the use of violence and is also, in the court’s opinion, “particularly heinous”.
The word “heinous” is defined in the Oxford English Dictionary (2nd ed.) to mean, “Hateful, odious; highly criminal or wicked; infamous, atrocious: chiefly characterising offences, crimes, sins, and those who commit them”. One might think that any act of attempted murder would be a heinous offence. That is why the word “heinous” is qualified by two things. First, it is not enough for the offence to be heinous. It must be, in the court’s opinion, particularly heinous. Second, the heinousness of the offence is not to be judged by the objective facts involved in the commission of the offence only. It is to be evaluated “having regard to all the circumstances”.
All the circumstances include subjective factors. In cases involving child offenders the subjective circumstances of the offence necessarily loom large. The Charter of Youth Justice Principles set out in Schedule 1 of the Act include the requirement that a child who commits an offence should be “held accountable and encouraged to accept responsibility for the offending behaviour” and should be “dealt with in a way that will give the child the opportunity to develop in responsible, beneficial and socially acceptable ways”.2 These requirements cannot possibly be satisfied if the relevant subjective factors affecting the child are ignored. Thus, for example, if William were to have been sentenced as a child, his prospects for development in a responsible, beneficial and socially acceptable way would require consideration to be given to the fact that his mental disability is one that was induced by his mother’s reckless cruelty in feeding him poisons from a young age and to the fact that, as his history before and after the offence shows, he has a huge capacity for normalising his own behaviour if afforded a sane and safe environment.
Why is an offender who commits an offence that is a “particularly heinous having regard to all the circumstances” to be treated more severely than another offender committing the same offence but in circumstances that do not warrant that characterisation? It is because the community rightly expects that offenders who commit crimes that are revolting and offensive beyond the norm must suffer a punishment that is proportional to the insult that they have inflicted upon the community’s sensibility. That is why it was relevant for Keane JA in , to refer, as relevant to the question whether an offence was particularly heinous, that it did not “inspire a sense of outrage”.
“I do accept your counsel’s submissions correctly pointing out to me that all of the circumstances of the offences need to be taken into account. However, the factual circumstances in the present case are very significantly different from the case of WT. You were not press-ganged into what you were doing. You did not seek to save any other person. Your own health and safety was not put at risk. You were suffering from a psychotic state, as you have for some years. It was substance induced. And although you were a child at the time, you continued to use those substances, it would seem, with the consent or support of your mother, particularly in the giving of those substances to you while she knew that you had problems with your psychosis.”
His Honour then observed that, as was the fact, William had struck his mother many times, inflicting serious injuries, and that his Honour “therefore consider[ed] that the proper classification of your actions at that time were that they were reprehensible, they were odious, and they were particularly heinous.” His Honour referred to William’s upbringing and the positive assessments of his character by those in charge of him in detention, but then concluded that attempted murder was “the most serious example of an offence known to us other than murder itself” against his own mother and referred again to the use of a knife and the terrible injuries that William inflicted.
There was no consideration given to the actual effect of William’s psychosis upon his moral culpability nor to the revelation of William’s true character through his conduct when free of his mother’s baleful presence. In short, while weight was correctly given to the horror of the commission of the offence as an objective matter, no weight was given to the subjective circumstances that explained the very commission of the offence, namely the victim’s own actions that led to the offender’s condition of mind that rendered him capable and prone to commit the offence and the offender’s mental disability. Quite apart from the requirements of the Youth Justice Act 1992, at common law an offender’s mental abnormality, short of a defence, is usually a significant mitigating factor.6
In my respectful opinion, those subjective circumstances, as I have set them out, preclude one reaching the conclusion that this is a particularly heinous offence. It follows that the sentencing discretion miscarried.
The starting point for a reconsideration of the appropriate sentence is that the maximum penalty in this case is not life imprisonment. It is imprisonment for 10 years. The offence was violent and undoubtedly will have caused permanent effects upon the victim. However, as Ms Holliday, who appeared for the applicant, submitted, William was a child when he committed the offence, he had no relevant prior convictions, his upbringing was not only horrendous but William’s mother’s gross failures as a parent constituted one of the most powerful factors that led to William’s commission of this crime. That his real good character was always overborne by the vices inflicted upon him by his victim has been revealed by his behaviour when free of those afflictions. His propensity to commit this offence was due, in large part, to his diagnosed mental disorder, of which there is a real prospect he will be cured.
Ms Holliday submitted that the appropriate sentence is one of six years imprisonment with eligibility for parole after serving one third of that sentence. In my view that submission should be accepted. For these reasons, I joined the following orders made on 27 July 2020:Grant leave to appeal.Appeal is allowed.Sentence of imprisonment and order fixing date of eligibility for parole imposed and made 3 March 2020 be set aside.Appellant is sentenced to imprisonment for 6 years.Appellant be eligible for parole on 15 August 2020.Pre-sentence custody certificate is confirmed.
R
William
When he was 14 years old William’s mother gave him some methylamphetamine to try and he then began using it every day. His mother was his supplier.
These maternal practices had an effect.
An adolescent psychiatrist, Dr Jillian Spencer, has furnished a report. His mother’s behaviour affected William’s emotional development and he has “anxiously sought proximity to his damaged and dysfunctional mother”. He became “entwined in his mother’s lifestyle of heavy drug use” so that “[d]rug use became a form of connection between them”. William became increasingly both dependent upon and hostile to his mother. He suffers Cannabis Use Disorder. In relation to methylamphetamine, he suffers Stimulant Use Disorder. In lay terms, his mother addicted him to both of these drugs. Latterly, his days became consumed with how to get methylamphetamine. Now he was also obtaining his drugs from a friend.
By the time William turned 16, his dangerous drug consumption had induced in William a Substance-Induced Psychotic Disorder. Dr Spencer says that it is possible that he is suffering also from schizophrenia but it is more likely that his mental state is wholly due to the damage inflicted by the drugs that his mother has been giving him. According to Dr Spencer, Substance-Induced Psychotic Disorder can be considered “a disease of the mind because the psychotic symptoms develop and persist beyond the effects of substance intoxication.”
This diagnosis is, without doubt, accurate; indeed, not only is it unchallenged but it is supported by William’s documented history. On 7 March 2016 William was assessed by a psychiatry registrar at Rockhampton Hospital. His mother had taken him to the hospital because he had been ranting that he wanted to kill his mother and his whole family. The mother said that six weeks previously he had behaved in a similar way. She said that William had also engaged in self-harming behaviour. For himself, William said that he was fine and that he just wanted to go home and sleep. He denied feeling aggressive. William was kept overnight and medicated. On the next day another psychiatric registrar assessed him. William’s mother told this psychiatrist that William had been “off” for the last couple of months after being supplied with methylamphetamine by a “friend”. He had reported seeing dragons in the sky, thinking that one of his friends had killed another of his friends with snakes and feeling that people had taken over his body. His mother said that William had attacked his brother on the previous day and that this was “out of character” for him. William said that his brother had been looking at him with “evil eyes” and that his deceased father had talked to him through his Bible. William reacted badly to the medication that had been given to him and had to be treated for this. He reported being possessed by a friend called Wylie. He said that Wylie was controlling his mind and telling him to harm himself. William was prescribed an anti-psychotic medicine which helped him to some extent. William continued to be seen by doctors at Rockhampton Hospital but, later in the same year, he stopped keeping appointments.
On the day before the offence William consumed a significant amount of cannabis. At 7 am he went to see his mother to get some more. He knew that she would be awake because she was “on ice”. There were people with his mother. William’s mother agreed to get him some more cannabis. Meanwhile, she left him some of the drug to use. His mother came back with some other people and they closed themselves in her bedroom to use methylamphetamine. William sat in the lounge room and smoked his cannabis. He and his mother then drove to her supplier’s house and she gave William some methylamphetamine. He said that he “ended up having a pretty good toke”.
After he and his mother, and a drug supplier acquaintance of hers, made a quick trip to play some poker machines (William lied and said that he was 18 years old), they returned to her home and he and his mother smoked some methylamphetamine. He stayed the night at his mother’s house. A few days previously, William’s mother had told him that “since it is your birthday, I’m going to be spoiling you”. This meant that she would get him some more methylamphetamine. When William awoke on the day of the offence he found that his mother had left some cannabis, a pipe and a lighter beside his bed. He said that he never ate breakfast and he regarded these things on his bedside table as his mother “basically … leaving breakfast for me”. She had melted some methylamphetamine into the pipe so that he could smoke it straight away and he did. Later that day his mother took him to “a party” at which he was given methylamphetamine to smoke. His mother dropped him off near her home, being in a hurry herself to play the poker machines, and he walked the rest of the way and settled down to smoke the remainder of the methylamphetamine that his mother had given him. After his mother came home, he smoked some cannabis and then went to sleep.
When William awoke at 8 pm he found his mother in the company of a man named Jo. William smoked some more cannabis. He then began to think that his mother and Jo were trying to “get rid of” him. He tried to overhear what they were saying. After Jo left, William said to his mother, “Why are you doing this to me?” He believed that his mother was a mass murderer and that she had killed her ex-boyfriend, Shane. He asked her, “Where is Shane? I haven’t seen him for ages. Why are you trying to destroy this family?” He went and got a knife.
He then smoked some more methylamphetamine. He began to think, “I had to kill her. But I didn’t want to. I thought I just had to hurt her.” He thought that the “Asian population” was going to attack Australia and that his mum “was in it and stuff”. He thought that she was planning to kill him.
William entered his mother’s bedroom and sat on the bed next to her. He then began to stab her. She suffered multiple wounds, including a stab wound that led to a collapsed lung. She was slashed on the head, face, neck and other parts of her body. William fractured a bone in her head. When police arrived William was covered in blood and brandishing a knife. Police told him to lie down and he obeyed immediately. He said, “I got a little bit psychotic and I was reading my mum’s mind and I kinda lost control because of [it]”. He said, “Yeah, there’s plenty of people involved, there’s at least seven thousand coming”.
William’s mental state, to which he was led by his mother’s raising of him, has been described. His progress since he has been removed from his mother’s influence was the subject of evidence below. William’s woodwork and construction instructor in detention has said that he has “shown a high level of enthusiasm and is a particularly hard worker” who “learns quickly”. His hospitality teacher says that he has a “strong work ethic and belief in working hard”. A clinical nurse at the detention centre says that William has been treated for a psychotic disorder and has “responded well to this” so much so that it has been possible to eliminate his anti-psychotic medication entirely. She is of the view that William “has leadership qualities”. The person in charge of William’s “Aggression Replacement Training” says that his “engagement levels throughout the program were to a very high standard”. William’s references from those who have supervised him during his detention have been universally highly positive.
These facts are some of the circumstances to which s 176 of the Youth Justice Act 1992 (Qld) would have obliged the Court to have regard if William were sentenced as a child. They bear upon his true character and are, therefore, relevant to a consideration of the heinousness of his offence.
William committed this offence on 14 August 2018, which was five days before his eighteenth birthday. The indictment against him was presented on 22 November 2019. Consequently, the proceeding commenced by the presentation of the indictment was commenced more than a year after William had turned 18. Section 140(1) of the Youth Justice Act provides:
The frenzied stabbing by a boy of his mother might rightly be described as heinous. But, when one has regard to the conditions which drove this offender to commit the offence, that is to say, when one has regard to all the circumstances, the character of the offence may be regarded differently and very far from an offence that is particularly heinous.
In this case the prosecution and the defence put before the learned sentencing judge the matters set out above. After referring to some of these matters, his Honour referred to R v Maygar,5 a case involving a murder, not an attempted murder, and involving entirely different circumstances. It was a case which was helpful in that Keane JA emphasised that the section made it necessary to have regard to “all the circumstances”. Otherwise, the case is of no assistance at all in the determination of the appropriate sentence in this matter. However, the learned sentencing judge referred to it in order to distinguish that case, in which the Court held that the offence was not particularly heinous, with this case. In that respect, his Honour said:
MORRISON JA: I have had the advantage of reading the draft reasons of the President. Those reasons reflect my own for joining in the orders made on 27 July 2020.
MULLINS JA: I agree with the President’s reasons.