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[2026] HCA 24
appellant. Appeal allowed. Orders 2 and 3 made by the Court of Appeal on 15 August 2025 were set aside, and an order dismissing HCZ's appeal to that Court was substituted [39].
The High Court held that appeal courts must show restraint when reviewing a sentencing judge's decision about whether a child should serve less than the default 70 per cent of a detention sentence before release. The sentencing judge considered HCZ's mitigating circumstances but concluded that they did not amount to special circumstances. Because that conclusion was one of the outcomes reasonably open on the facts, the Court of Appeal could not replace it with its own view. This is general legal information, not legal advice. Zoe can make mistakes, and a qualified Australian lawyer should check this information before anyone acts on it or relies on it.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,299 words · generated 03/10/2026
The case concerned the interaction between a child sentencing regime and appellate review of a sentencing discretion. HCZ was 17 years and eight months old when he committed the offences. On 26 December 2022, he and others entered the Lovell family home during a planned theft. In the confrontation that followed, HCZ stabbed Mrs Lovell in the chest, causing a fatal wound, and stabbed Mr Lovell in the back. He also kicked Mr Lovell in the face before leaving [4]-[9].
1 cited instrument linked from this judgment.
HCZ pleaded guilty to burglary by break at night while armed and in company, murder, unlawful wounding with intent to maim, disfigure or disable, and assault causing bodily harm in company [10]. The sentencing judge, Sullivan J, found that the murder was “a particularly heinous offence having regard to all the circumstances” within s 176(3)(b)(ii) of the Youth Justice Act 1992 (Qld) [18]. The judge imposed concurrent detention sentences: 18 months for burglary, 14 years for murder, three years for unlawful wounding, and one year for assault [18].
Section 227(1) provided that, unless an order was made under s 227(2), a child serving detention must be released after serving 70 per cent of the detention period. Section 227(2) permitted a court to order release after serving at least 50 per cent but less than 70 per cent if it considered that special circumstances existed [14]. The sentencing judge considered HCZ's circumstances, including the early guilty pleas, deprivation in his upbringing, remorse, and indications of rehabilitation, but concluded that the overall circumstances did not warrant a reduced period [19]-[20].
The Queensland Court of Appeal rejected HCZ's grounds challenging the finding that the murder was particularly heinous and the alleged failure to give adequate weight to his pleas and personal circumstances. It nevertheless allowed the appeal after concluding that special circumstances should have been found and reduced the period to be served to 60 per cent [21]-[25]. The High Court allowed the Crown's appeal. It set aside the relevant Court of Appeal orders and ordered that HCZ's appeal to that Court be dismissed [39].
The High Court treated the governing question as one about the limits of appellate review, not whether the High Court itself would have made the same sentencing assessment. The parties agreed that the applicable standard was judicial restraint, rather than a correctness standard. The Court therefore focused on whether the Court of Appeal could properly disturb the sentencing judge's conclusion under that standard [3], [27]-[28].
The judgment explains that the choice between correctness and judicial restraint depends on the legal criterion. If the criterion demands one unique outcome, correctness review applies. If it tolerates a range of outcomes, the House v The King standard applies [29]. Under that standard, intervention is confined to the recognised grounds: acting on a wrong principle, allowing irrelevant matters to affect the decision, mistaking the facts, failing to consider a material matter, or reaching a decision that is unreasonable or plainly unjust [30].
The Court concluded that s 227(2) calls for judicial restraint. The provision applies in the sentencing context and asks what the court “considers” to be special, having regard to all the circumstances. Those circumstances are open-ended, and the possible combination of circumstances will differ from case to case. The court must also connect its assessment of special circumstances to the period to be served, which may fall anywhere from 50 to less than 70 per cent of the sentence [32]-[34]. The assessment is therefore not a binary question with one legally compelled answer.
The Court then identified the only possible ground for disturbing the sentencing judge's conclusion. The separate appeal ground alleging inadequate weight to the guilty pleas and personal circumstances had been rejected by the Court of Appeal and was not pursued in the High Court. The remaining basis was that the conclusion was unreasonable or plainly unjust [35]. The Court found that it was not.
The sentencing judge had addressed the relevant mitigating circumstances. The early pleas were made in the context of an “overwhelmingly strong Crown case”. The evidence of rehabilitation showed prospects of rehabilitation over time, but was qualified by the judge's finding that HCZ had, to some extent, not confronted the consequences of his actions. Those circumstances had to be considered against the seriousness of the murder and HCZ's age [17], [37]. They did not compel a finding of special circumstances. Since the sentencing decision tolerated a range of outcomes, the Court of Appeal could not intervene merely because it preferred a different balance [37]-[38].
Before this decision, the Queensland provision already contained a statutory default and a discretion to depart from it. Under s 227(1), release after 70 per cent of the detention period was the default unless the court made an order under s 227(2). That subsection allowed release after a period between 50 and less than 70 per cent if special circumstances were considered to exist [14]. The statute gave “parity” as an example, rather than a definition or exhaustive list, of circumstances that might justify an order [14], [32].
The Court's explanation of the two linked questions under s 227(2) is important. The decision-maker first considers whether circumstances provide a special reason to reduce the default period. If they do, the court then determines the reduced period. The Court described these as integrated questions because they involve consideration and weighing of the same factors [15], [33]. It also noted that a factor such as a guilty plea or youth may be sufficient in one case but not another, as the Queensland Court of Appeal had said in R v KAL [15].
The decision clarifies the appellate standard for both questions. It is not enough for an appellate court to conclude that special circumstances existed, or that a different percentage would have been preferable. The appellate court must apply the House v The King grounds. That means the sentencing judge's decision remains undisturbed if it was open on the facts and was not affected by one of the recognised errors [30], [34]-[38].
The judgment also places the issue within a broader method of statutory interpretation. Where legislation does not specify the appellate standard, the standard is implied from all the circumstances of the legislation. Relevant considerations include whether the statutory language gives the decision-maker latitude, the breadth of the evaluative criteria, the subject matter, and the context in which the decision is made [31]. The Court applies that approach to conclude that s 227(2) attracts judicial restraint [32]-[34].
The extract does not describe a later change to s 227 or set out a subsequent legislative response. Its stated holding is confined to the appellate standard applicable to decisions under s 227(2) in the statutory context before the Court.
At [29], the Court adopts the distinction between a criterion that “demands a unique outcome” and one that “tolerates a range of outcomes”. In plain English, appellate review depends on whether the law leaves the primary judge room to make a reasonable evaluative choice. It does not depend simply on whether the issue is difficult or involves judgment.
At [30], the Court lists the House v The King grounds. In practical terms, an appeal court applying judicial restraint asks whether the sentencing judge made a recognised kind of error. Disagreement about the weight assigned to a factor is not, by itself, one of those grounds. The fifth ground includes a decision that is unreasonable or plainly unjust.
At [32], the Court says the standard implied by s 227(2) is judicial restraint. The explanation is tied to the text and context: the court must “consider” whether circumstances are special, and the relevant circumstances are open-ended. That is a decision entrusted to evaluative judgment, rather than a question with a single result dictated by the provision.
At [33], the Court explains why the existence of special circumstances cannot be detached from the release-period decision. The factors that may justify finding special circumstances also inform how long the child should serve within the statutory range. This linkage reinforces the conclusion that the decision is an integrated sentencing assessment.
At [37], the Court applies the standard to the particular circumstances. The guilty pleas and personal history were relevant, but they did not make the sentencing judge's conclusion unreasonable or plainly unjust. The Court also records the qualifications on the plea and rehabilitation evidence, and the sentencing judge's assessment of the offending's seriousness. The point is not that those mitigating factors were unimportant, but that their weight remained for the sentencing judge within the range of permissible outcomes.
At [38], the Court gives its direct conclusion: it was not open to the Court of Appeal, applying judicial restraint, to interfere with the finding that there were no special circumstances. That conclusion explains the substituted order dismissing HCZ's appeal [39].
The decision is directly relevant to appellate review of a sentencing decision under s 227(2) of the Queensland Youth Justice Act, where a court has considered whether special circumstances justify a child serving less than the default 70 per cent of a detention term before release. It addresses both the initial special-circumstances assessment and the related question of the reduced percentage, if an order is made [14], [32]-[34].
The precedent is especially pertinent where the proposed appeal grounds amount to disagreement about how the sentencing judge weighed matters such as a guilty plea, youth, personal history, rehabilitation prospects, or seriousness of the offending. The High Court held that these matters do not themselves establish appellate error. The question remains whether a House v The King ground is made out, including whether the conclusion was unreasonable or plainly unjust [30], [35]-[38].
The facts of HCZ's case show that a serious offence and substantial mitigating material may be assessed together without producing a result that is legally compelled in only one direction. HCZ's early pleas, difficult upbringing, remorse, and rehabilitation prospects were considered, but did not require a finding of special circumstances [17], [19], [37]. The judgment does not establish that any one factor will always be sufficient or insufficient. It expressly treats the result as dependent on the individual combination of circumstances [15], [32].
The reasoning concerns the statutory scheme as described in the judgment. Whether the same standard applies to a different statutory provision would depend on interpreting that provision and its context, rather than simply assuming that this holding governs every discretionary decision.
The supplied judgment does not report decisions by courts after The King v HCZ, which is dated 5 August 2026. No later-court treatment can therefore be established from the text provided.
The judgment does describe authorities that preceded it. It notes that Queensland Court of Appeal decisions had previously treated the standard for reviewing special-circumstances decisions as one involving judicial restraint, including R v KAL, R v SCR, R v RSG, R v BZZ, and R v MEO [28] n 23. It also notes R v SET as a subsequent Court of Appeal authority that had, by majority, correctly adopted that standard [28] n 24. The High Court says that it should be assumed the majority in HCZ's Court of Appeal proceeded on that basis, and considers that there was little value in closely parsing Boddice JA's reasons because the dispositive issue was application of the restraint standard [28].
The judgment also uses earlier High Court authorities to explain the general review framework. Steven Moore (a pseudonym) v The King supplies the distinction between correctness review and the House v The King standard [29]. Norbis v Norbis is cited for the idea that a criterion may leave room for reasonable differences of opinion [29]. House v The King supplies the five grounds for intervention [30]. The judgment relies on these authorities as part of its reasoning, but the provided extract does not establish how any court later applied The King v HCZ itself.
The judgment resolves the standard of review for s 227(2) in the context of the Youth Justice Act provisions before the Court. It does not decide what particular facts will amount to special circumstances in future cases. Its account of s 227(2) instead emphasises that the circumstances are open-ended and that the combination of relevant factors will differ between cases [15], [32].
The Court does not set a minimum evidential threshold for establishing a factor such as remorse or rehabilitation prospects, nor does it specify how much weight any category of mitigating circumstance must receive. It confirms that those assessments are generally for the sentencing judge and that a factor may justify an order in one case but not another [15], [36]-[37].
The decision also does not provide a formula for selecting a particular release percentage once special circumstances are found. It describes the threshold and period-selection questions as integrated, but the appeal concerned the sentencing judge's finding that there were no special circumstances [15], [33]-[34]. The judgment therefore does not determine how a court should distinguish, for example, between a 60 per cent and a 50 per cent release point in a case where special circumstances are established.
Finally, the judgment's account of appellate restraint leaves the ordinary House v The King grounds available. It does not immunise a decision under s 227(2) from review if a recognised error is established. It holds only that, on HCZ's facts and the grounds pursued, the sentencing judge's conclusion remained within the range of outcomes and could not be displaced [30], [35]-[39].
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GAGELER CJ,
EDELMAN, GLEESON, JAGOT AND BEECH‑JONES JJ
THE KING APPELLANT
AND
HCZ RESPONDENT
The King v HCZ
[2026] HCA 24
Date of Hearing: 10 April 2026
Date of Judgment: 5 August 2026
B44/2025
ORDER
Appeal allowed.
Set aside orders 2 and 3 made by the Court of Appeal of the Supreme Court of Queensland on 15 August 2025 and in their place order that the appeal to the Court of Appeal be dismissed.
On appeal from the Supreme Court of Queensland
Representation
G J D del Villar KC, Solicitor-General of the State of Queensland, with A C Freeman KC, F J Nagorcka and J-A B Reeves for the appellant (instructed by Crown Law (Qld))
A M Hoare KC with M W C Harrison and S A Lynch for the respondent (instructed by Hannay Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
The King v HCZ
Criminal law – Sentence – Child offender – Where offender committed offences including murder – Where murder "a particularly heinous offence" under s 176(3)(b)(ii) of Youth Justice Act 1992 (Qld) – Where offender sentenced to term of detention – Where s 227 of Youth Justice Act prevented release until offender had served 70 per cent of that term unless sentencing judge considered that "special circumstances" exist – Where sentencing judge concluded that "special circumstances" did not exist – Where appellate court held that sentencing judge allowed seriousness of offending to overwhelm mitigating factors – Whether open to appellate court to interfere with sentencing judge's conclusion that "special circumstances" did not exist.
Words and phrases – "ability to rehabilitate", "appellate review", "correctness standard", "deprived upbringing", "discretion", "judicial restraint", "manifestly excessive", "mitigating factors", "murder", "open-ended evaluative criteria", "particularly heinous offence", "period of detention", "personal circumstances", "pleas of guilty", "range of outcomes", "sentencing", "seriousness of the offending", "special circumstances", "standard of appellate review", "statutory default", "statutory interpretation", "unreasonable or plainly unjust".
Youth Justice Act 1992 (Qld), Pt 7, Sch 4.
GAGELER CJ, EDELMAN, GLEESON, JAGOT AND BEECH-JONES JJ.
On 26 December 2022, the respondent, HCZ, aged 17 years and eight months, committed offences including the offence of murder. The murder was found by the sentencing judge in the Supreme Court of Queensland to fall within s 176(3)(b)(ii) of the Youth Justice Act 1992 (Qld) as "a particularly heinous offence having regard to all the circumstances". HCZ was sentenced to a term of detention of 14 years. Section 227(1) of the Youth Justice Act provided a default rule preventing HCZ from being released from detention until he had served 70 per cent of that period of detention. The sentencing judge considered all the relevant circumstances but concluded that "special circumstances" under s 227(2) did not exist to enable up to a 20 per cent reduction of the default period of detention to be served before release.
The issue in this Court arises from the decision of a majority of the Court of Appeal of the Supreme Court of Queensland. In the context of considering whether the sentence was manifestly excessive, the majority held that in determining whether "special circumstances" existed under s 227(2) the sentencing judge had allowed the seriousness of the offending to overwhelm HCZ's early pleas of guilty, his deprivation in upbringing, and the positive signs of his ability to rehabilitate. The issue concerns the application of the applicable standard of appellate review to a decision under s 227(2).
It was properly common ground in this Court that the applicable standard of appellate review of a decision under s 227(2) of the Youth Justice Act is the standard involving judicial restraint, which restricts intervention by the appellate court to the five grounds set out in House v The King.1 Although there was dispute between the Crown and HCZ as to whether the majority of the Court of Appeal applied that standard or a correctness standard, the only dispositive question is whether departure from the conclusion of the sentencing judge could be justified on a standard involving judicial restraint. For the reasons below, it was not open to the Court of Appeal to depart from the conclusion of the sentencing judge that special circumstances within s 227(2) did not exist. The appeal must be allowed.
On 26 December 2022, shortly before midnight and in the company of three others, HCZ decided to commit theft. HCZ had been drinking alcohol heavily for the previous three days. HCZ chose a house in North Lakes, Queensland. HCZ walked to the front door. The family that lived there, the Lovells, had not locked their door that night. Another member of the group entered the Lovells' house, followed by HCZ. HCZ was armed with a knife, the blade of which was approximately 11.5 centimetres long.
After HCZ and his companion entered the house, the Lovells' dogs started barking. The persistent barking woke Mr and Mrs Lovell. Mr Lovell opened the bedroom door and was confronted by HCZ in the hallway. The Lovells, yelling, pushed HCZ and his companion out of the front door.
Much of what happened was captured on CCTV footage. A physical struggle occurred outside the front door between, on the one hand, HCZ and his companion, and, on the other hand, Mr and Mrs Lovell. During the struggle, HCZ struck out in a full arm-length strike with his knife towards Mr and Mrs Lovell. He missed. HCZ then struck out a second time towards Mr Lovell, who was struggling with HCZ's companion. He missed again. HCZ continued to struggle with Mrs Lovell and, after HCZ's companion ran away to the road, HCZ began to struggle with both Mr and Mrs Lovell on their front lawn. While Mrs Lovell attempted to pry HCZ from Mr Lovell, she pulled a crossbody bag from HCZ which he had been wearing.
During the struggle, HCZ stabbed Mrs Lovell in the chest with his knife and stabbed Mr Lovell in the back. Mrs Lovell suffered a 13 centimetre knife wound which penetrated her heart. HCZ's companion returned and attempted to remove HCZ from the struggle. But before HCZ left, he forced Mr Lovell to the ground and kicked him several times in the face. Police and paramedics arrived soon afterwards but they were unable to resuscitate Mrs Lovell. Mrs Lovell was taken to hospital but, despite further attempts to resuscitate her, she died from her injuries. Mr Lovell was also hospitalised but discharged himself to care for his children, who had been present as their mother lay dying on the front lawn.
The police found on the front lawn of the Lovells' house the crossbody bag that Mrs Lovell had pulled from HCZ. Inside the bag was a phone which was registered to one of HCZ's three original companions. In the early hours of the next morning, 27 December 2022, police and a dog squad arrived at the house where HCZ was staying. HCZ lied to the police, saying that he had been asleep from 9:00 pm the previous evening. HCZ's shorts had blood splatter on them. HCZ lied to the police, saying that he had fallen over earlier, although he could not point to any injuries that could explain the blood. HCZ's t-shirt had a cut to the left of his chest. HCZ was detained by the police and began laughing while he was outside the house.
The handle of the knife that HCZ used to kill Mrs Lovell was found in a lounge chair in the house where HCZ was staying. The blade, broken from the knife, was found on the front lawn of the Lovells' house. Mr and Mrs Lovell's DNA was found on HCZ's shoes, under his fingernails, and on the tip of the knife blade. HCZ's and Mrs Lovell's DNA were found on the base of the knife blade. HCZ's fingerprints and DNA were found on the doorway to the Lovells' house, and his fingerprints were found on Mr and Mrs Lovell's bedroom door.
Part 7 of the Youth Justice Act sets out sentencing rules and principles for a court sentencing a child. The sentencing principles include mandatory considerations of, "subject to [the Youth Justice Act], the general principles applying to the sentencing of all persons";6 "the youth justice principles";7 "the nature and seriousness of the offence";8 "the presence of any aggravating or mitigating factor concerning the child";9 and, "if the child is an Aboriginal or Torres Strait Islander person—any cultural considerations, including the effect of systemic disadvantage and intergenerational trauma on the child".10 A special consideration to which the court must have regard11 is that a detention order "should be imposed only as a last resort and for the shortest appropriate period".12
Part 7, Div 4 of the Youth Justice Act is entitled "Orders on children found guilty of offences". Section 175 provides for a range of sentencing options when a child is found guilty of an offence before a court. The last resort option in s 175 is an "order that the child be detained" for a period of one year if the court is not constituted by a judge13 or, by s 175(1)(g)(ii), if the court is constituted by a judge and s 176 does not apply, the shorter of "half the maximum term of imprisonment that an adult convicted of the offence could be ordered to serve" and five years.
The exception to s 175(1)(g)(ii) is s 176 of the Youth Justice Act, which is concerned with sentences for particular significant offences, including a category of "life offence" which is defined in Sch 4 as "an offence for which a person sentenced as an adult would be liable to life imprisonment". Section 176(3) of the Youth Justice Act provides that:
"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."
"A court may order a child to be released from detention after serving 50% or more, and less than 70%, of a period of detention if it 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."
After setting out the circumstances of HCZ's offences, the sentencing judge (Sullivan J) turned to undertake a comprehensive examination of HCZ's personal circumstances. His Honour described HCZ's deprived upbringing with periods of parental neglect, violence in the context of excessive consumption of alcohol by adults, cannabis use by adults, and the death of the most positive and important person in his life (his grandmother) when HCZ was 14. By the time that HCZ left school in grade eight he had commenced consuming alcohol, inhaling glue, and using illicit drugs and had established an extensive network of persons engaged in antisocial behaviour. The sentencing judge also described how, less than a year before HCZ's offending, HCZ discovered that a step-brother who was close in age and relationship to him had committed suicide. His Honour referred to HCZ's feelings of guilt and pain from the suicide, and HCZ's subsequent increased use of drugs and alcohol.
The sentencing judge noted that HCZ is Indigenous and was a child at the time of offending, albeit aged 17 years and eight months. His Honour described HCZ's prospects of rehabilitation and his remorse for the consequences of his offending, although noting that his remorse primarily reflected his sense of self and the shame experienced by his family. His Honour noted that HCZ's plea of guilty to murder was on the basis of felony murder rather than an intention to kill and that HCZ had engaged with substance abuse, cultural, and educational processes. His Honour described HCZ's extensive criminal record but observed that none of HCZ's past offences had involved violence and that HCZ had never been given a detention order. The sentencing judge also acknowledged, and took into account, the utilitarian benefits of HCZ's early pleas of guilty but rightly observed that the pleas were made against the background of an "overwhelmingly strong Crown case".
After a careful consideration of all factors, the sentencing judge held that the offence of murder was a "particularly heinous offence having regard to all the circumstances" within s 176(3)(b)(ii) of the Youth Justice Act. The maximum penalty for that offence was therefore detention for life. After setting out all mitigating factors, including HCZ's early pleas of guilty, his deprived upbringing and the loss of his grandmother and step-brother, his intoxication at the time of the murder and his expressions of remorse, HCZ was sentenced for each charge as follows:
Burglary by break at night whilst armed and in company: 18 months' detention.
Murder: 14 years' detention.
Unlawful wounding with intent to maim, disfigure, or disable: three years' detention.
Unlawful assault causing bodily harm in company: one year's detention.
All sentences were ordered to be served concurrently.
"Despite the evidence of your childhood deprivation, your early plea of guilty, your expressions of remorse and signs that you have the potential to be rehabilitated, I must weigh that up against the seriousness of the offending."
HCZ appealed to the Court of Appeal on three grounds. The first ground was that the sentencing judge erred in finding that the offending in relation to the count of murder was "particularly heinous" within s 176(3) of the Youth Justice Act. The second ground was that the sentencing judge "failed to give any or any adequate weight to [HCZ's] plea[s] of guilty and personal circumstances". The third ground was that the sentence in all the circumstances was manifestly excessive.
The Court of Appeal rejected the first two grounds but allowed the appeal on the third ground. In relation to the third ground, the Court of Appeal rejected HCZ's submission that a sentence of 14 years' detention was manifestly excessive. However, during the oral hearing before the Court of Appeal, apparently as part of this third ground, HCZ also argued that the sentencing judge erred by failing to find that special circumstances existed under s 227(2) and therefore by failing to reduce the period of detention that must be served before release from 70 per cent of the 14 years' detention.
A majority of the Court of Appeal (Boddice JA, Freeburn J agreeing) allowed the appeal on this ground. Boddice JA held that, notwithstanding HCZ's mitigating circumstances, his offence of murder required condign punishment. Nevertheless, his Honour said that "the requirement that [HCZ] serve 70 per cent of what was condign punishment, did render the sentence for murder manifestly excessive".16 His Honour could not have meant that the statutory default period in s 227(1), which was required to be imposed unless special circumstances were found, was manifestly excessive. Rather, what his Honour must have meant, as he later explained, was that "[t]he failure of the sentencing judge to find there were special circumstances, was an error requiring the sentencing discretion to be re-exercised".17
Boddice JA did not refer to any standard for appellate review of the finding by the sentencing judge that there were no special circumstances. His Honour merely identified the error of the sentencing judge as being to allow "the seriousness of the offending to overwhelm" the factors of "the early plea[s] of guilty, [HCZ's] deprivation in upbringing and the positive signs and ability to rehabilitate".18 His Honour held that a finding of special circumstances "ought to have been made" and that the period of detention that HCZ must serve before release should be reduced from 70 per cent of the sentence to 60 per cent.19
The Crown appeals on two grounds. First, that "[t]he Court of Appeal erred by applying the wrong standard of review to the issue of whether the learned sentencing judge had erroneously reached a state of satisfaction that there were [no] special circumstances within the meaning of s 227(2) of the Youth Justice Act". Secondly, that "[t]he Court of Appeal ought to have held that it was open to the sentencing judge to have reached a state of satisfaction that there were no special circumstances within the meaning of s 227(2) of the Youth Justice Act".
Given HCZ's agreement with the Crown that the standard of appellate review of the sentencing judge's decision about whether special circumstances existed under s 227(2) is not whether the sentencing judge's decision was correct but whether, applying judicial restraint, error was established, the first ground of appeal reduced to a question of interpretation of the reasons of Boddice JA (Freeburn J agreeing) in the Court of Appeal.
The ambiguity of the reasons of Boddice JA on this question is unsurprising in circumstances where little or no argument in the Court of Appeal appears to have been directed to the question, and even the issue of whether special circumstances existed was only raised in the Court of Appeal in oral argument. The Court of Appeal had previously,22 and has (by majority) subsequently,23 correctly held that the standard of appellate review for determining whether special circumstances exist is one involving judicial restraint. Other than to explain why this view is correct, it should therefore be assumed that the majority of the Court of Appeal proceeded on that basis. There is little to be achieved by a minute examination of the reasons of Boddice JA in the Court of Appeal where the only issue in dispute on this appeal concerns the issue raised by the second ground, namely the application of the standard involving judicial restraint by the majority of the Court of Appeal.
"A determination of which standard of review is applicable does not depend on whether the reasoning to be applied is evaluative or in respect of which reasonable minds may differ. Instead, the determination turns on whether the legal criterion to be applied 'demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies."
In the latter instance, where the legal criterion to be applied "tolerates a range of outcomes", or in other words leaves "room for reasonable differences of opinion",26 the standard involving judicial restraint restricts intervention by the appellate court to the five grounds set out in House v The King,27 where the primary judge: (i) acted upon a wrong principle; (ii) allowed extraneous or irrelevant matters to affect the decision; (iii) mistook the facts; (iv) failed to take into account some material consideration; or (v) made a decision that was unreasonable or plainly unjust. A contention that a sentence is manifestly excessive is within the fifth ground of error in House v The King.
Where the legal criterion to be applied is statutory, a determination of whether the standard of appellate review is one of correctness or judicial restraint is always a question of statutory interpretation. Where, as is usually the case, the legislation makes no express provision for the standard of appellate review, the issue is one of implication. In assessing the implied standard of appellate review, all circumstances of the legislation are relevant; no single circumstance will necessarily be determinative. Whether the legal criterion is expressed in terms of the "satisfaction" or "consideration" of the decision-maker, such as to indicate that "the decision-maker is allowed some latitude as to the choice of the decision to be made", is an important factor, as is the breadth of evaluative considerations involved in the decision.28 The binary nature of a decision can be an important factor indicating that the correctness standard is applicable, although it is not determinative. Other important factors are the subject matter of the decision and the context in which it is made; for instance, sentencing decisions29 and matters of practice and procedure30 have commonly been treated as decisions to which the standard involving judicial restraint applies. House v The King was a sentencing decision.
The standard of appellate review implied by s 227(2) in the context of the provisions of the Youth Justice Act is the standard involving judicial restraint. The power conferred by s 227(2) arises only in the context of sentencing. Like many sentencing decisions to which the standard involving judicial restraint has historically been applied, the questions to be addressed under s 227(2) are concerned with open-ended evaluative criteria of what the court "considers" special having regard to all the circumstances. The wide range of possible circumstances means that "each individual case" will have a "unique combination of circumstances". The example of "parity" in s 227(2) does not limit those criteria but instead illustrates that the criteria are not limited even to the circumstances of the child being sentenced.
"a finding of special circumstances is so intimately connected to the [decision as to the percentage of the period to be served], and so dependent upon the court's consideration and weighing of the same factors, that it is properly to be considered as part of the [decision as to the percentage of the period to be served]."
On this appeal, HCZ correctly accepted that in the Court of Appeal the only specific misapplication of sentencing principles that was alleged to have occurred by the sentencing judge was the failure to take into account HCZ's pleas of guilty and personal circumstances. That was the second ground of the appeal in the Court of Appeal. That ground was rejected and was not the subject of any notice of contention in this Court. The only basis, therefore, upon which the Court of Appeal could have departed from the finding by the sentencing judge that there were no special circumstances within s 227(2) of the Youth Justice Act was if that finding was unreasonable or plainly unjust within the fifth ground of House v The King.33
The only basis upon which Boddice JA could be taken to have concluded that the finding of an absence of special circumstances was unreasonable or plainly unjust was his conclusion that the sentencing judge had allowed the seriousness of the offending to "overwhelm" the mitigating factors of HCZ's early pleas of guilty, his deprived upbringing, and the positive signs of his ability to rehabilitate.34 But, as Boddice JA recognised in relation to the second ground of the appeal (concerning a failure to give adequate weight to HCZ's pleas of guilty and personal circumstances), the assessment of the weight of those mitigating factors and whether they amounted to special circumstances within s 227(2) of the Youth Justice Act was generally "a matter for the sentencing judge".35
There was nothing about the factors of HCZ's early pleas of guilty, his deprived upbringing, and the positive signs of his ability to rehabilitate that means that it was unreasonable or plainly unjust for the sentencing judge not to reach a conclusion of special circumstances, particularly in light of the seriousness of the offence of murder and the age of HCZ. Indeed, as the sentencing judge observed, the early pleas of guilty by HCZ were made against the background of an "overwhelmingly strong Crown case". And the positive signs of HCZ's ability to rehabilitate were found to show only "prospects of being able to be rehabilitated over time" in circumstances where HCZ was found to have, "at least to a certain extent", a lack of "willingness to confront the consequences of [his] own actions". The decision in respect of special circumstances tolerated a range of outcomes on the facts.
It was not open, in the application of a standard of judicial restraint, for an appellate court to interfere with the sentencing judge's decision that no special circumstances existed under s 227(2).
(1936) 55 CLR 499 at 505. ↩
Criminal Code (Qld), ss 419(1), 419(2), 419(3)(a), 419(3)(b)(ii), 419(3)(b)(iii). ↩
Criminal Code, ss 300, 305. ↩
Criminal Code, ss 317(1)(a), 317(1)(e). ↩
Criminal Code, ss 339(1), 339(3). ↩
Youth Justice Act, s 150(1)(a). ↩
Youth Justice Act, s 150(1)(b). ↩
Youth Justice Act, s 150(1)(d). ↩
Youth Justice Act, s 150(1)(f). ↩
Youth Justice Act, s 150(1)(ha). ↩
Youth Justice Act, s 150(1)(c). ↩
Youth Justice Act, s 150(2)(e). ↩
Youth Justice Act, s 175(1)(g)(i). ↩
The King
HCZ
[2025] QCA 232
[2025] QCA 89
(1936) 55 CLR 499
(2001) 53 NSWLR 704
(2024) 282 CLR 460
(2018) 264 CLR 541
(2023) 280 CLR 442
(1986) 161 CLR 513
(2000) 203 CLR 194
(2002) 211 CLR 238
(2001) 207 CLR 121
(1983) 154 CLR 539
Appeal allowed. Orders 2 and 3 made by the Court of Appeal on 15 August 2025 were set aside, and an order dismissing HCZ's appeal to that Court was substituted [39].
HCZ was charged with four offences. First, the offence of burglary by break at night whilst armed and in company.2 Second, the murder of Mrs Lovell.3 Third, unlawful wounding with intent to maim, disfigure, or disable, by the stabbing of Mr Lovell.4 Fourth, unlawful assault causing bodily harm in company, by kicking Mr Lovell in the face.5 HCZ pleaded guilty to all four charges.
Bond JA dissented. His Honour would have refused the application for leave to appeal. He held that the standard of appellate review was one involving judicial restraint—"the House v The King deferential standard".20 The issue, as Bond JA explained it, was whether the failure of the sentencing judge to find that special circumstances existed was "so unjust or plainly unreasonable that this Court should infer error". His Honour concluded that in this case no such error could be inferred in the application of a legal standard of special circumstances which "tolerates a range of outcomes", particularly if the conclusion were that the period of detention before release of nine years and 10 months (70 per cent of the period of detention) be reduced to eight years and five months (60 per cent of the period of detention).21 As will be seen, Bond JA was correct.
Further, the application of the open-ended evaluative criteria to the wide range of possible circumstances under s 227(2) is integrated with a consideration of a broad range of periods expressed as a percentage of the relevant period of detention imposed. As Crowley J has put the point, it could be said that:32
See R v Simpson (2001) 53 NSWLR 704 at 718 [62]. ↩
[2013] QCA 317 at [37]. See also R v SET [2025] QCA 232 at [79]. ↩
R v HCZ [2025] QCA 147 at [58]. ↩
R v HCZ [2025] QCA 147 at [62]. ↩
R v HCZ [2025] QCA 147 at [60]. ↩
R v HCZ [2025] QCA 147 at [61]-[63]. ↩
R v HCZ [2025] QCA 147 at [7]. ↩
R v HCZ [2025] QCA 147 at [7]-[10]. ↩
R v KAL [2013] QCA 317 at [32]; R v SCR [2017] QCA 60 at [36]; R v RSG [2023] QCA 70 at [10]; R v BZZ; Ex parte Attorney-General (Qld) [2025] QCA 89 at [84]; R v MEO [2025] QCA 103 at [25]. ↩
R v SET [2025] QCA 232 at [73], [80]. ↩
(2024) 282 CLR 460 at 467 [14]. See also Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 563 [49]; GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442 at 455-456 [16]. ↩
(2024) 282 CLR 460 at 467-468 [15] (footnote omitted). ↩
Norbis v Norbis (1986) 161 CLR 513 at 518. ↩
(1936) 55 CLR 499 at 505. ↩
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 204-205 [19]-[21]; U v U (2002) 211 CLR 238 at 262 [90]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 561 [44], 592 [152]. ↩
McGarry v The Queen (2001) 207 CLR 121 at 145-147 [72]-[76]. ↩
State Government Insurance Office (Q) v Biemann (1983) 154 CLR 539 at 549. ↩
R v KAL [2013] QCA 317 at [32]. ↩
R v SET [2025] QCA 232 at [80]. ↩
(1936) 55 CLR 499. ↩
R v HCZ [2025] QCA 147 at [60]. ↩
R v HCZ [2025] QCA 147 at [52]. ↩