The Queen v JJ

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Refshauge J
• Judgment Date: 31 July 2014
• Date: 31 July 2014
• Docket Number: File Number(s): SCC 23 of 2012

[2014] ACTSC 311

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Refshauge J

File Number(s): SCC 23 of 2012

The Queen

(Crown)

and

JJ

(Offender)

Representation:

Counsel:

Ms S McMurray (Crown)

Mr J Maher (Offender)

Cases Cited:

Marshall v Smith (1907) 4 CLR 1617

The Queen v JJ [2014] ACTCA 23

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT), s 133V, 133W, Ch 8, Dictionary

Crimes (Sentence Administration) Act 2005 (ACT)

CRIMINAL LAW — Judgment and Punishment — Re-sentencing following Court of Appeal decision — Probation condition to a good behaviour order

Decision:

1. JJ be sentenced to seventeen years' imprisonment, to commence on 6 April 2011 and to end on 5 August 2028.

2. The sentence be suspended from 5 February 2022.

3. JJ be required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for six years and six months from 6 February 2022 until 5 August 2028, with a probation condition that, for that period, he be on probation subject to the supervision of the Director-General or her delegate and obey all reasonable directions of the person delegated to supervise him.

Refshauge J

1 On 4 August 2011, JJ and Taylor Schmidt murdered Liang Zhao. They both ultimately pleaded guilty to that offence and were sentenced, but sentenced separately and by me on both occasions.

2 On 8 October 2013, I sentenced JJ. The course of sentencing was not smooth. It was described by the Court of Appeal, in The Queen v JJ [2014] ACTCA 23 at [2]–[3] as follows:

• 2. When the respondent came to be sentenced on 8 October 2013, Refshauge J initially sentenced him to 17 years' imprisonment and purported to set a nonparole period of 10 years and 6 months. When it was pointed out to his Honour that the legislative scheme makes no provision for the setting of a nonparole period for a sentence of imprisonment imposed on a young offender, his Honour amended the sentence to suspend the sentence after 10 years 6 months, upon the respondent entering into a good behaviour order for 6 and a half years, with a probation condition that the respondent obey all reasonable directions of the director-general.

• 3. On the Court reconvening on 14 October 2013 at the request of the Crown, it was pointed out to his Honour that a supervision condition could not exceed 3 years, and his Honour then re-sentenced the respondent by amending the condition in the good behaviour order. The sentence thus became one of 17 years' imprisonment, to be released after 10 years 6 months on a good behaviour order of 6 years 6 months with a probation condition that the respondent be subject to the supervision of the Director-General or her delegate for 3 years or such lesser period as considered appropriate.

3 The Crown appealed against the sentence I had imposed and the Court of Appeal dismissed the appeal, delivering its reasons for decision, The Queen v JJ, from which the extract above is taken.

4 The Court of Appeal, however, considered that I had now power to amend the original sentence, as the original sentence had not been infected by the error claimed by the Crown. See The Queen v JJ at [33]–[51].

5 In summary, I made a probation condition to the good behaviour order, but the Crown later submitted that such a condition could only be made for three years. This was based on s 133W of the Crimes (Sentencing) Act 2005 (ACT), which provides that a supervision condition to a good behaviour order can only be made for three years.

6 A supervision condition is a condition that is available under Ch 8A of the Sentencing Act, the Chapter that regulates sentencing of young offenders. Such a condition is described in s 133V as follows

133V Supervision conditions—when required

• (1) A court must include a supervision condition in a good behaviour order for a young offender if the court has made, or proposes to make, a good behaviour order that includes—

  • (a) a community service condition; or

  • (b) a rehabilitation program condition; or

  • (c) an education and training condition.

• (2) Subsection (1) does not limit the circumstances in which the court may include a supervision condition in a good behaviour order.

7 A probation condition is defined...