COM v Director of Public Prosecutions
[2022] QChC 16
•19 April 2022 (delivered ex tempore)
CHILDRENS COURT OF QUEENSLAND
CITATION:
COM v Director of Public Prosecutions [2022] QChC 16
PARTIES:
COM
(Applicant)v
DIRECTOR OF PUBLIC PROSECUTIONS
(Respondent)FILE NO/S:
CCJ 92/22
DIVISION:
Childrens Court of Queensland
PROCEEDING:
Sentence Review Application
ORIGINATING COURT:
Redcliffe Children’s Court
DELIVERED ON:
19 April 2022 (delivered ex tempore)
DELIVERED AT:
Brisbane
HEARING DATE:
19 April 2022
JUDGE:
Dearden DCJ
ORDER:
Application for sentence review granted; (1)
The order made on 25 February 2022 at the Redcliffe Childrens Court that the applicant child complete the remainder of the community service order, be set aside; (2)
The child be re-sentenced in respect to the original offences (2 x wilful damage); (3)
That in respect of each of the original offences, order the child be of good behaviour for a period of three months; and (4)
No convictions be recorded. (5)
CATCHWORDS:
CRIMINAL LAW – APPEAL AGAINST SENTENCE –SENTENCING JUVENILES – where applicant breached a community service order – where an order was made that the applicant complete the community service order – where the applicant expressed an unwillingness to comply with the community service order – where the applicant submits the learned magistrates order was unlawful
LEGISLATION
Youth Justice Act 1992 (Qld) ss 118, 122, 245
COUNSEL:
K Goyen for the applicant
E Bankowski for the respondent
SOLICITORS:
Legal Aid Queensland for the applicant
Office of the Director of Public Prosecutions for the respondent
Introduction
This is an application for sentence review by the applicant child, COM, in respect of contravention proceedings (a breach of community service order) heard on 25 February 2022 at the Redcliffe Childrens Court.
The history of the matter and the original offences are helpfully outlined in the applicant’s outline of submissions as follows:-[1]
[1]Exhibit 1 – Outline of submissions for the child [5] – [10].
“History
(5) On 18 December 2019, the child was sentenced to perform 50 hours of community service within 12 months in relation to the original offences.
(6) On 16 December 2020, the community service order was varied for the child to perform 45 hours community service to be completed within 24 months.
(7) On 31 January 2022, Youth Justice initiated breach proceedings in relation to the community service order.
(8) On 25 February 2022, the child accepted the breach before the Redcliffe Childrens Court. The learned magistrate found the breach was proven, took no further action and ordered that the child complete the community service order.
Original offences:
(9) 2 x wilful damage to property, which is part of a school/education centre/college/university or other educational institution on 7 December 2019.
(10) The facts of the offences are contained in the sentencing schedule. Briefly, the child has attended Talara Primary College at Currimundi. with two other offenders over the weekend of 7 December 2019 and 8 December 2019. Two bins within the school were burnt and a security camera was ripped from the wall.”
The applicant identifies that the child has a relevant criminal history and notes:-[2]
[2]Exhibit 1 – Outline of submissions for the child [13] – [14].
“(13) At the time of the original offences, the child was not subject to any supervised orders. He had previously received two reprimands, a drug diversion program and a court diversion referral for restorative justice.
(14) Since the original sentence, the child has been sentenced to a good behaviour order, probation orders and detention to be served by a conditional release order on two occasions.”
The law – sentence reviews
This court has the power to review the sentence order of a Childrens Court magistrate.[3] That review is a rehearing on the merits,[4] which should be conducted expeditiously and with as little formality as possible. This court is entitled to have regard to the record of the Childrens Court proceeding and any further submissions or evidence by way of affidavit for otherwise.
[3]Youth Justice Act 1992 (Qld) s 118 (‘YJA’).
[4]YJA s 122(1).
Grounds of review
It is submitted that the learned magistrate made an unlawful order in taking no further action and ordering the child to complete the community service order, because the child had expressed an unwillingness to comply with the community service order.[5]
[5]YJA s 245(1)(d)(iii).
The background to the matter is addressed by the applicant.[6] In brief summary, the child was originally sentenced to perform 50 hours of community service on 18 December 2019, which was varied to 45 hours of community service on 16 December 2020 but the child has completed 21.5 hours of the community service order and at the contravention hearing, the Youth Justice representative indicated that the departmental recommendation was to discharge the community service order and re-sentence the child to something he would be willing and able to do.
[6]Exhibit 1 – Outline of submissions for the child [26] – [35].
The submission made on behalf of the child is that he did not wish to complete the remainder of the order because of injuries sustained in a motor vehicle accident in April 2021, and those injuries were quite extensive, including hospitalisation for a period of two months, a period of one to two months in a wheelchair, 18 broken bones and very visible scarring. The child’s unwillingness to complete the community service order arose from his constant pain and discomfort. And the submission made at the breach proceedings was that the order be discharged and the child re-sentenced for the original offences. However, the learned magistrate, in his sentencing remarks, indicated that the court could not see any reason why the child could not continue and complete the balance of the community service. Crucially, the learned magistrate was not directed to the provisions of the Youth Justice Act 1992 (Qld) (‘YJA’) section 245(1)(d)(iii), which mean that the court was not able to act under YJA section 245(1)(d)(iii) and the only option available was to discharge the order and re-sentence pursuant to YJA section 245(1)(d)(ii).
The respondent, appropriately and pragmatically, concedes the learned magistrate fell into error in failing to consider the applicant’s lack of willingness to complete the community service order, and therefore the order imposed should have been a re-sentence in respect of the original offences. The applicant’s submission, primarily, was for a reprimand, whereas the respondent submits for a short period of probation or, alternatively, a good behaviour order.
The submissions made in respect of the re-sentence are as follows:-[7]
[7]Exhibit 1 – Outline of submissions for the child [36] – [51].
“(36) The child is now 18 years old. He was 17 years old at the time of the contravention hearing, and 15 years old at the time of the original offences.
(37) He had a relevant criminal history. He was not subject to any supervised orders at the time of the original offences.
(38) The child was subject to a long-term guardianship order with the Department of Child Safety. He experienced physical abuse in foster care.
(39) The child attended the Meridan State High School and last attended school in grade 8. He has worked in trawling and a fish and chip shop previously.
(40) The motorbike accident was a significant circuit breaker for the child. After the accident, he was motivated to stay out of trouble, as is reflected in his lack of further offending.
(41) His girlfriend is one month pregnant, and he is motivated to be a good role model to his future child.
(42) The child completed 21.5 hours of the community service order. He has also successfully completed his most recent probation order and two conditional release orders.
(43) The child was compliant with police in their investigations. He participated in a record of interview and made admissions to the offences. He entered pleas of guilty at an early stage.
(44) At the time of the contravention hearing, the child had not been before a court since 25 August 2021.
(45) In deciding what sentence order to make, the court must consider the principle of totality [Postiglione v R [1997] 189 CLR 295, McHugh J, 307 – 308].
(46) …
(47) On 16 December 2020, the child was sentenced to a 12-month probation order, and a six-month detention order to be served by way of a conditional release order.
(48) On 25 August 2021, the child was sentenced to a six-month detention order to be served by way of a conditional release order. The 12-month probation order was extended by three months.
(49) It is submitted that since the original sentence, the child has received a number of significant sentence orders. It is submitted that had the child been re-sentenced for the original offences on either 16 December 2020 or 25 August 2021, he would not have received a greater penalty for the offending.
(50) The original offences occur in 2019. Sentencing principles of deterrence and rehabilitation have taken effect on the child through subsequent sentence orders, and his personal experiences.
(51) The child is now 18 and there is little utility in imposing further orders to be supervised by Youth Justice. In the circumstances, a further supervised order would be manifestly excessive and therefore an unsupervised order is appropriate.”
As previously noted, the respondent does not oppose the application being granted, and an order made that the applicant be re-sentenced in respect of the original offences but submits, primarily, for a short further period of probation, or, alternatively, to a good behaviour order, whereas the applicant submits that the re-sentence should be a formal reprimand.
The original offences were two charges of wilful damage, and convictions were not recorded. The applicant has now undertaken substantial sentences and served out substantial penalties in respect of a range of other matters and, in any event, has served a little under one half of the original community service order. The proposed re-sentence of a formal reprimand would, in my view, not appropriately reflect a sentence that, although giving credit for the time he has already served, would mean that somewhere under half of that sentence would not be served. Conversely, however, I recognise the broad aspect of totality submitted for by the applicant in respect of other sentences imposed subsequently and the significant rehabilitation that the child has gone through up until the time of this application. In those circumstances, in my view, the appropriate order would be a short period of good behaviour.
Orders
Accordingly, I make the following orders:
(1) Application for sentence review granted;
(2) The order made on 25 February 2022 at the Redcliffe Childrens Court that the applicant child complete the remainder of the community service order, be set aside;
(3) The child be re-sentenced in respect to the original offences (2 x wilful damage);
(4) That in respect of each of the original offences, order the child be of good behaviour for a period of three months; and
(5) No convictions be recorded.
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