AV

[2011] QChC 7

CHILDRENS COURT OF QUEENSLAND

CITATION:

AV [2011] QChC 7

PARTIES:

AV
(Applicant)

FILE NO/S:

DIVISION:

Appellate

PROCEEDING:

Application for Sentence Review

ORIGINATING COURT:

Childrens Court of Queensland

DELIVERED ON:

10 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

8 June 2011

JUDGE:

Richards DCJ

ORDER:

Appeal allowed. The sentence is set aside. No conviction is recorded. The applicant is ordered to keep the peace and be of good behaviour for a period of three months.

CATCHWORDS:

Sentence – proper explanation of sentence – principles of Youth Justice Charter

LEGAL REPRESENTATIVES:

Mr D Law of Legal Aid Queensland for the applicant

Ms Price of the Office of the Director of Public Prosecutions for the Crown

Mr Thompson for the Department of Communities

1. The applicant appeared before the Brisbane Childrens Court on 17 March 2011 in relation to the following eight offences:

(a)        Three charges of unauthorised dealing with shop goods (15 July 2010, 30 December 2010 and 26 December 2010);

(b)        Possession of a knife on 15 July 2010;

(c)        Trespassing on 14 September 2010, 6 October 2010 and 3 October 2010; and

(d)        Receiving tainted property on 14 July 2010

1. She was sentenced to three months probation in relation to the offences of receiving tainted property, trespass and possession of a knife and in relation to unauthorised dealing with shop goods she was sentenced to a three month good behaviour bond.  The applicant was born on 11 March 1995 so that at the time of the offending she was 15 years of age. 

1. The offences themselves were fairly minor.  She was found in possession of a purse which had previously been stolen on 15 July 2010.  On that same day she was observed stealing confectionery from Woolworths and whilst searching her bag the police located a knife.  The charges were sent to an indefinite youth justice conference however they were returned to the Court by the convenor and no explanation for that was given.  The three trespass offences relate to her being at the [G] Shopping Centre when she was subject to an Exclusion Notice.  On two occasions in December she stole from a shop - on one occasion a handbag from Myers and one occasion hair dye and tampons from Coles supermarket. 

1. At the time of sentencing, her only history was for the offences of 14 and 15 July 2010 relating to the purse from the library and stealing confectionery and they were subsequently returned to the Court.

1. The applicant was born in [Z] and grew up with her extended family.  She moved to Australia with her grand mother just before her 10^th birthday and after she was attacked by her uncle when she was aged nine.  As a result of that attack she now has very limited contact with her father, who was the brother of the uncle.  She dropped out from high school halfway through year ten and she has since been formally diagnosed with post traumatic stress disorder and depression after suffering a miscarriage. 

1. At the time of sentencing she was engaged with Youth and Family Services support staff and receiving counselling at the Mater Hospital.  She was experiencing homelessness at the beginning of the year but at the time of sentencing was residing with her grandmother.  She had been unable to reside with her grandmother previously because she has a difficult relationship with her mother and her mother and grandmother were residing together at the time, her grand mother just having moved down from [T]. 

1. The ban from [G] Shopping Centre had been lifted at the time of sentence and she has been out of trouble since offending.  At the time of sentencing it was suggested that a good behaviour bond would be appropriate but the Court rejected that.  The Court also rejected a pre sentence youth justice conference with these words[1]:

“No, it didn’t work.  She’s tried to have three conferences before and none of them have worked.  Why on earth would I think any one would work again.  It’s a waste of time…I gave her that opportunity myself and that didn’t work out.  Another Magistrate gave her that opportunity after I gave her the first one.  Then she came back before me and I gave her a lecture about being there again and still she’s here now with more charges.” 

[There was evidence before the Court that on one occasion the conference couldn’t take place because of a reluctance or an inability to contact the mother.]

[1]T1-7

1. In this case the Magistrate took the unusual step of offering the child three options for sentence.  She said[2]:

   [2] decision T 1-2

“One, I adjourn the case for three months until 17 June.  She can write a paper for me saying my life is affected by the choices I make and how I intend to make better choices in the future and bring it back and I’ll read it.  She can bring with her a report for me about the changes she had made to her life to mean that she is unlikely to re-offend.  That means staying away from the friends who have knives and are dishonest, finding herself stable accommodation, getting help for her mental issues.  That’s one choice. 

The second choice doesn’t involve coming back to Court at all.  I’ll just put her on probation for three months and she can work with the Department of Communities during the three months which is not a long period.  They can link her into appropriate services to help her with her mental health problems and her peer group and her contact with knives and everything else that’s happened and she’ll have to report to them.  She won’t have to do anything that she does that like write a paper or do anything, she’ll just have to report to the Department of Communities.

Or three, if she doesn’t wish to do that I would give her 30 hours of community service to do.  So she has three choices.”

1. Upon making these remarks her solicitor asked if the matter could be stood down to take instructions, however, the Magistrate refused to do so.  The child chose probation.  Although the magistrate commented on some of her expectations of probation in the passage I have quoted above, this did not amount to an adequate explanation of her obligations under a probation order upon which the child could make an informed decision to agree to the sentence. The magistrate did not explain community service to her at all and did not explain what would happen if she chose “sentence option one.”

1. Schedule 1 of the Charter of Youth Justice Principles in the Youth Justice Act 1992 dictates how the court should deal with children appearing before the court:

“6         A child being dealt with under this Act should have procedures and other matters explained to the child in a way the child understands.

7          If a proceeding is started against a child for an offence—
(a) the proceeding should be conducted in a fair, just and timely way; and
(b) the child should be given the opportunity to participate in and understand the proceeding.”

Section 194 of the Act says a Court may make a probation order against a child only if the child indicates willingness to comply with the order.  A willingness to comply with an order implies that the child understands the order that is proposed to be made and the requirements under the order so that an informed choice can be made. 

1. In this case, the requirements of the probation order were not fully explained to the child before she indicated she was willing to comply with it, and despite a request to do so, the solicitor appearing was not given an opportunity to fully discuss the options with the child.  That amounted to an error of sentencing principle in my view.

1. Furthermore, the Magistrate took the unusual step of giving the child a choice of sentences.  In my view this was also inappropriate, particularly given the fact that the child has mental health issues, she has previously been homeless and her education was terminated before the end of grade 10.  In those circumstances, and indeed in most circumstances, it is inappropriate for the child to be given an opportunity to chose which sentence she wanted particularly without being given time to examine the options given. 

1. Finally there seems to be some suggestion in this matter that the Court would not have been able to get the information as to why previous conferences were not convened.  The suggestion at the hearing of this matter was that there is a general reluctance to advise why conferences do not take place.  In my view, there is nothing in the Act to suggest that the conference convenors are not able to disclose why a conference did not take place. 

1. Certainly the conduct of the conferences are to be treated confidentially but the reasons a conference might fail before being convened are not subject to any confidentiality provisions and as such, it would have been appropriate if those reasons were disclosed to the Court.  As it was, the Court seemed to assume that it was the child’s instability of accommodation that contributed to the failure to convene a conference and there was certainly no evidence one way or the other as to whether that was true.  In the absence of any evidence it would be inappropriate for a judicial officer to assume that the child was in some way at fault in relation to conferencing procedure and to decline to order a further conference as a result. 

1. In my view therefore, the sentencing discretion should be exercised afresh. Taking into account the fact that the child at the time of sentence was seeking counselling for her mental health issues, was back in stable accommodation, that she has not committed any further offences, the offences themselves were reasonably minor and she did not have a significant criminal history, the appeal should be allowed. The sentence of three months probation should be set aside and replaced with a good behaviour bond for a period of three months.

Order

Appeal allowed. The sentence is set aside. No conviction is recorded. The applicant is ordered to keep the peace and be of good behaviour for a period of three months.