Commissioner of Police v Jane Dean (a pseudonym)

[2022] QChCM 3

MAGISTRATES  COURT OF QUEENSLAND

CITATION:Commissioner of Police v Jane Dean (a pseudonym) [2022] QChCM 3

PARTIES:  COMMISSIONER OF POLICE

v

JANE DEAN (a pseudonym)

FILE NO:Mount Isa CCM 767/21, 5/22 & 61/22          

PROCEEDING:                  Sentence

JURISDICTION:                Children’s Court

DELIVERED ON:               4 February 2022

DELIVERED AT:               Mount Isa

HEARING DATES:            11 & 24 January 2022

MAGISTRATE:                  E. Mac Giolla Ri 

APPEARANCES:               Sgt Cooper, QPS, Prosecution

E. Thorsen (11 January 2022) and N. Honnef (24 January 2022), ATSILS
Ms C. Douglas (11 January 2022) & Mr Lewis (24 January 2022), Youth Justice

Attendance by a guardian:

Jane’s Aunt attended court on 11 January 2022. Ms Moloney, CLO with Child Safety, attended court by phone on 11 January 2022 and Ms Arrow, CLO with Child Safety, appeared on 24 January 2022. Jane is currently in the custody of the Chief Executive of the Department of Child Safety.

Sentence

1. This matter is the sentence of a thirteen-year-old girl, Jane Dean, for the following offences committed in December 2021 and January 2022:

   Fail to Appear

   Wilful Damage x 3

   Serious Assault (Police)

   Stealing for the person

   Enter Dwelling and commit

   UUMV,

   Stealing x 2

   On 24 January 2022 I imposed 6 months’ probation on Jane, with her consent, but I did not give reasons at that time. I give my reasons now.

Material

1. I considered the following documents, which were in evidence:

   -     Juvenile criminal history, QPS

   -     Schedule of facts, QPS

   -     Photos, Wilful Damage offence only

   -     Statement of witness, Wilful Damage offence only

   -     Statement of pre-sentence custody

   -     Safety & Support Plan, 17 August 2021, Child Safety

   -     Report, 7 January 2022, Caitlin Moloney, Child Safety

Conduct of the case

1. Jane has been sentenced to probation on four previous occasions and was on probation at the time of committing these offences. When the matter first came on for sentence on 4 January 2022 there was a consensus that Jane should be sentenced to probation again. I adjourned the sentence part-heard to 11 January 2022 because sentencing her to probation again appeared entirely futile in circumstances where she was not complying with a current probation order, imposed on 2 December 2021. The Court’s expectation was that Jane would use the opportunity to re-engage with probation. On 11 January 2021 Jane failed to appear and a warrant issued to lie. On 18 January 2022 that warrant issued. The sentence proceeded on 24 January 2022 because police apprehended Jane on that warrant and on a fresh offence of Wilful Damage committed on 10 January 2021. It transpired that Jane had not reported on probation after 4 January 2021.

2. There being no submission that detention was an appropriate penalty (and I agreed with those submissions), no pre-sentence report was ordered.

Criminal History

1. Jane has a substantial criminal history for one so young. The first offence on her history is dated 27 April 2019 and her first court appearance was on 17 December 2019. Leaving the present sentence aside, she was last sentenced on 2 December 2021. In total, she has previously been sentenced on 7 occasions for the following offences over 40 offences.

2. As noted above, on each of her last four sentence appearances she was sentenced to probation. 6 months on 15/12/2020, 4 months on 13/4/2021, 3 months on 27/7/21 and 4 months on 2 December 2021. Although she had a run of 8 successful weekly reports from July to August 2021, since her last sentence on 4 December 2021 Jane has not reported at all. I was advised that the consistent compliance with probation in July/August was facilitated by a case worker at a community organisation. That assistance is not presently available because of a change of work practices at that organisation because of Covid-19.

3. Despite the number of offences, there are periods of time when Jane appears capable of living a law abiding life. She committed no offences from February to April 2021 and no offences from June to September.

Offences

1. Other than the Serious Assault, all the offences were committed with other children, some of whom have extensive child protection and youth justice histories. This is a recurring feature in youth offending in Mount Isa.

2. The stealing offences involved the theft of grocery items from a service station and socks and novelty items from a ‘cheap shop’. The UUMV offences were committed, as is often the case in Mount Isa, at night, for the apparent ‘entertainment’ of the young thieves and resulted in extensive damage to the car. The burglary was committed to obtain keys to facilitate one of the UUMV offences. The stealing from the person was a pickpocketing type offence and resulted in an elderly man losing several hundred dollars in cash.

3. One wilful damage involved getting into a vending machine. The second wilful damage charge involved Jane and other children throwing stones at an occupied car. The occupants, including a 5 year old child, were known to Jane and the reason the incident began was said to be an insult against a deceased member of Jane’s immediate family. The serious assault involved Jane spitting on the back of a police officer’s shirt. The fail to appear was, as noted above, after the sentence was initially adjourned part-heard. Jane said that she had no adult to bring her to court, though she did not surrender in the almost two weeks between the FTA and being picked up on the warrant.

Jane is in the care of the Department of Child Safety but is functionally homeless

1. Jane was the subject of child protection investigations and assessments from 2016 onwards and was ultimately take in to care in August 2020, aged 12.[1] She was initially placed with foster carers but left on her first night and did not return. Since that time the Department of Child Safety has offered her a variety of placements in Mount Isa and Townsville (as a result of a shortage of accommodation in Mount Isa). Jane has not settled at any of those placements. I understand that some of the placements being offered to Jane, including the accommodation on offer to her at the moment could be described as ‘shelter’ type accommodation rather than accommodation that provides a sense of ‘home’.

   [1] These details are drawn from the excellent letter/report prepared for the court by Ms Moloney, the Court Liaison Officer for Child Safety. The Court is indebted to Ms Moloney for her diligence.

2. Jane is now doing what the Department of Child Safety describes as ‘self-placing’, that is staying at unapproved addresses of her choice. In particular, she resides between the homes of an aunt (Aunt ‘A’), a friend and her grandmother. This arrangement is unsuitable for a child of 13 years. If proof is needed of its unsuitability, Jane is not presently attending school, not even, it seems, enrolled in a school and is committing a substantial number of criminal offences.

3. The implication in Department of Child Safety’s advice to the Court that Jane is self-placing is that Jane refuses to access any Departmental placements. I note that Jane advised Ms Thorsen, her lawyer, on the first day of sentence, that she would be happy to reside at a specific child safety placement. Child Safety advised that the placement was unavailable as it housed six children, two above its supposed capacity. As such, “self-placing”, as it applied to Jane, means that Jane refuses to access the Departmental placements that are being offered to her because, in Jane’s view, they are unsuitable.

4. In her discussions with Ms Thorsen, Jane indicated that she would, alternatively, be happy to reside with a particular aunt, (‘Aunt B’). Child Safety are not in a position to approve this Aunt at this time. Asked by the court why she would like to reside with this Aunt B, Jane said because Aunt B always has food. I note, with regard to this comment, that one of the stealing offences involved stealing groceries and a wilful damage was conducted to get into a vending machine.  I infer that one of the issues in Jane’s life must be hunger and that hunger was the motivation for at least some of her offending.

5. It seems that Jane has no relationship with the Department of Child Safety, which is unfortunate because the Chief Executive of that Department is her legal guardian. I note on 2 December 2021 officers of the Department tried but could not contact Jane. Between that date and 15 December 2021 officers made a further 6 unsuccessful attempts to locate her. When she was eventually located on 21 December 2021 she said she would stay with an Aunt A over Christmas and refused a placement.[2] On that date she was provided with food vouchers.[3]

   [2] I do not know the quality of the placement on offer.

   [3] I note that on the 7 attempts Child Safety made to location Jane food or food vouchers was only left for or given to Jane on two occasions.

6. Ms Arrow, for Child Safety, advised that the provision of food vouchers is not usually done in Mount Isa. The idea behind food vouchers is that children in care who do not have a suitable placement from Child Safety or are ‘self-placing’ can use these credit card type vouchers at Woolworths. I do not know why a voucher was given on 21 December 2021 but for a child who commits offences to get food, it seems like a very sensible idea.

Sentence

1. As far as I can determine Jane’s offending and failure to engage with probation is directly linked to the fact that she does not have somewhere suitable to live and has limited access to helpful adults who can help her develop the life skills she needs. It seems to me that when the Department of child safety says that Jane is ‘self-placing’ that is not the same as saying she is unreasonably refusing suitable accommodation. It is of note that the two placements Jane requested during the course of these proceedings were, essentially, unavailable to her: one due to legitimate Departmental processes and the other because of overcrowding at a suitable and desirable Child Safety placement.

2. When Jane does not have suitable accommodation, she goes hungry and steals food. When Jane does not have suitable accommodation, she must spend time in company of adults who behave in anti-social ways that expose her to profound risks. When Jane does not have suitable accommodation, she spends time on the street associating with other bored children and, together, they formulate and carry out plans to enter businesses and homes and to steal cars.

3. While aspects of Jane’s offending are serious and she has an unenviable history of offending, she is able to go for relatively long periods without offending. Conscious of the Youth Justice Principles and the purposes of sentencing I find that what Jane needs most is stable, suitable accommodation and the close support of enthusiastic adults she can trust.

4. Although Jane is not complying with her current probation order, I find that a further probation order of 6 months will give Youth Justice a reasonable prospect of engaging with her, particularly if Child Safety can work with Jane to achieve a suitable placement and Youth Justice link Jane to sensible, supportive adults she can trust.

5. I have considered whether I should impose a restorative justice order (either diversionary or as a sentence) but decline to do that because it will be of relatively little use while Jane’s other needs are not being met.

6. Prior to publication, a copy of this judgement was sent to all parties, including Child Safety for their comment as to whether it was adequately anonymised. No changes were requested.