R v GBD

(2018) 275 A Crim R 551; [2018] QCA 340

Queensland Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentence
3. › Sentencing of juveniles
4. › Sentencing as adult or child
5. › Transitional provisions extending youth justice system to 17-year-olds
6. › Whether transitional regulation limiting benefits to persons still aged 17 at commencement was valid
7. › Whether regulation exceeded delegated legislative authority
8. › Youth Justice Act 1992 (Qld), s 387, s 388, s 390
9. › Youth Justice (Transitional) Regulation 2018 (Qld), s 5(1)(b)
10. › Statutory Instruments Act 1992 (Qld), ss 22, 24, 25
1. Criminal Law
2. › Sentence
3. › Factors to be taken into account
4. › Deportation and immigration detention
5. › Lawful non-citizen sentenced to imprisonment for sexual offence against child
6. › Mandatory visa cancellation under Migration Act
7. › Whether sentencing judge erred by failing to consider effect of immigration detention on rehabilitative component of sentence
8. › Migration Act 1958 (Cth), ss 501(3A), 501(6)(e), 501CA(4)
1. Criminal Law
2. › Sentence
3. › Sexual offences against children
4. › Rape of four-year-old by 17-year-old offender with intellectual disability
5. › Whether exceptional circumstances existed to avoid actual imprisonment
6. › Penalties and Sentences Act 1992 (Qld), s 9(4)(b), s 9(6)
1. Subordinate Legislation
2. › Validity
3. › Delegated legislative power
4. › Whether regulation may apply to a class of persons rather than all persons within scope of enabling provision
5. › Statutory Instruments Act 1992 (Qld), ss 22, 24, 25

Quick Take

Section 5(1)(b) of the Youth Justice (Transitional) Regulation 2018 (Qld) is valid, so that the transitional provisions extending the youth justice system to 17-year-olds do not apply to persons who turned 18 before the commencement of the amending legislation, even where proceedings were on foot at commencement. A sentencing judge must separately consider the likely effect of immigration detention on the rehabilitative component of a sentence, and it is not sufficient merely to consider the prospect of deportation and resulting hardship; failure to do so constitutes a miscarriage of the sentencing discretion requiring resentencing.