Faf v The Queen
[2018] QChC 25
•3 May 2018
CHILDRENS COURT OF QUEENSLAND
CITATION:
FAF v The Queen [2018] QChC 25
PARTIES:
FAF
(applicant)
v
The Queen
(respondent)
FILE NO/S:
52/2018
DIVISION:
PROCEEDING:
Sentence review
ORIGINATING COURT:
Murgon Childrens Court
DELIVERED ON:
3 May 2018
DELIVERED AT:
Brisbane Childrens Court
HEARING DATE:
3 May 2018
JUDGE:
Dearden DCJ
ORDER:
1. Application for sentence review is granted.
2. Confirm the sentence imposed on 14 February 2018 at the Murgon Childrens Court, but order further that the period of four months’ detention be served by way of a conditional release order.
CATCHWORDS:
CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES - application for sentence review – where the applicant child was not prepared to comply with a conditional release order in respect of any detention order – where the learned magistrate imposed a detention order – where the applicant child is now willing to comply with a conditional release order – where there was no fault on part of the learned magistrate
COUNSEL:
D.J. Law for the applicant
C. Tan for the respondent
SOLICITORS:
Legal Aid Queensland for the applicant
Office of the Director of Public Prosecutions for the respondent
This is an application for sentence review by FAF. The applicant’s submissions neatly and appropriately outlined all of the relevant matters, and I’ll briefly read them into the record – at least in part – just to ensure my brief reasons encompass the outline that is helpfully set out by Mr Law in exhibit 4.
The applicant appeals for a sentence review in respect of the following offences:
1. 3x unlawful use of a motor vehicle;
2. 2x unlawful use of a motor vehicle with intent to commit an indictable offence;
3. 3x enter premises and commit an indictable offence.
The applicant was sentenced by the learned Childrens Court magistrate at Murgon on 14 February 2018 to four months’ detention. I note that the sentence of detention is not of itself the subject of this sentence review.
The applicant was granted bail in the Childrens Court of Queensland on 8 March 2018, and that bail is pending this review.
The brief background of the child is that the child was born on 14 April 2013, was 14 years old at the time of the offending and at the time of the sentence, and has significant and relevant criminal history (exhibit 6).
At the time of the offending, the child was subject to the following orders from the Childrens Court:
1. 50 hours community service, imposed 13 December 2017;
2. 12 month restorative justice order, imposed 6 September 2017;
3. 12 month restorative justice order imposed 1 March 2017.
The law – sentence reviews
A Childrens Court judge may review the sentence order of a Childrens Court magistrate pursuant to Youth Justice Act (YJA) s.118. The review is to be conducted as a rehearing on the merits (YJA s.122(1)). The review should be conducted expeditiously and with as little formality as possible.
In deciding the review, the court can have regard to the record of the Childrens Court proceeding and any further submissions and evidence by way of affidavit or otherwise.
This court in imposing sentence must take into account the sentencing principles contained within YJA s.150.
The issue in respect of this matter, for which I stress there was no fault whatsoever on the part of the learned magistrate, was the specific instructions from the applicant communicated through his legal representative to the learned Childrens Court Magistrate that he was not prepared to comply with a conditional release order in respect of any detention order.
The applicant, through his counsel on this sentence review application, concedes as much in paragraph 10 of exhibit 4. However, a sentence review is a review on the merits and the applicant has now instructed his lawyers that he’s willing to comply with a conditional release order which he has not previously been subject to and which will enable him, subject to compliance, to serve the balance of the sentence in the community.
As I’ve previously indicated, Mr Law who appears for the applicant, concedes that the detention imposed by the learned Childrens Court magistrate was the appropriate sentence, but had the applicant been willing at the stage of the original sentence (14 February 2018) to comply with a conditional release order, then that would have been the appropriate sentence at that stage.
I note that the applicant has indicated through his counsel that he regrets the previous decision he made to refuse to comply with community based orders (in this case a conditional release order) and has now given instructions that if this court is persuaded to review the sentence and to the extent of ordering that it be served by way of a conditional release order, then he would be prepared to comply.
For the record, I note that the Crown at paragraph 10 of exhibit 5 (outline of submissions on behalf of the respondent) appropriately and frankly concedes that the review ought to be allowed and the order imposed as submitted by the applicant.
In all of the circumstances, then, I make the following orders:
Application for sentence review is granted.1.
Confirm the sentence imposed on 14 February 2018 at the Murgon Childrens Court, but order further that the period of four months’ detention be served by way of a conditional release order.2.
I include in the text of the order in my decision, the requirements of the conditional release order for the applicant FAF are as follows:
1. FAF must not break the law;
2. FAF must attend all activities as outlined in the presentence report (exhibits 2 (presentence report dated 12 February 2018)) and agreed to by him;
3. FAF must comply with every reasonable request of his Youth Justice worker;
4. FAF must report and receive visits as directed by his Youth Justice caseworker;
5. FAF and his parent/carer must tell his Youth Justice worker if he changes address, school or place or employment and he must do so within two business days;
6. If FAF wishes to leave Queensland whilst on an order, he must first obtain the permission of his departmental worker.
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