Gepi v The King

[2024] QChC 13

CHILDRENS COURT OF QUEENSLAND

CITATION:

GEPI v The King [2024] QChC 13

PARTIES:

GEPI

(applicant)

v

THE KING

(respondent)

FILE NO:

288/24

DIVISION:

Appellate

PROCEEDING:

Sentence review

ORIGINATING COURT:

Childrens Court of Queensland, Mount Isa

DELIVERED ON:

22 August 2024 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2024

JUDGE:

Farr SC DCJ

ORDER:

1.   The review is allowed. 

2.   The orders imposed below are set aside. 

3. In respect of each of the charges, except for the charge of wilful damage - domestic violence offence, the applicant is referred for a restorative justice process pursuant to section 163(1)(d)(i) of the Youth Justice Act.

4. In respect of the charge of wilful damage - domestic violence offence, I order that the sentence imposed for that matter be set aside and I order that the charge be dismissed pursuant to section 21 of the Youth Justice Act.

CATCHWORDS:

CRIMINAL LAW – SENTENCING JUVENILES – SENTENCE REVIEW – where the applicant plead guilty to one count of affray, two counts of wilful damage, five charges of breach of bail and one charge of wilful damage, domestic violence offence – where the applicant was sentenced to six months probation in respect of all counts but the breach of bail charges, and for each of the bail charges, the child was reprimanded – where convictions were not recorded – where the Magistrate was not provided adequate details of the applicant’s personal circumstances – where averment of domestic violence offence to charge of wilful damage not available under Youth Justice Act - whether the sentences imposed were excessive

LEGISLATION:

Penalties and Sentences Act 1992 (Qld)

Youth Justice Act 1992 (Qld)

ADVOCATES:

C Hollett for the applicant
B Hayes (legal officer) for the respondent

E Nagelkerke (legal officer) for the Department of Youth Justice

SOLICITORS:

Legal Aid Queensland for the applicant

Office of the Director of Public Prosecutions for the respondent

Introduction & background

1. This is an application to review a sentence.  The applicant appeared in the Mount Isa Children’s Court on 2 April 2024.  She pleaded guilty to one count of affray, two of wilful damage, five charges of breach of bail and one charge of wilful damage, a domestic violence offence.  It is submitted that the sentences imposed were excessive.  A review of this nature is to be conducted by way of rehearing.  The sentences which were imposed were six months probation in respect of all but the breach of bail charges, and for each of the bail charges, the child was reprimanded.  Convictions were not recorded. 

   Consideration

2. The application is effectively not opposed.  It has been submitted that the Magistrate was really given little assistance by the parties that appeared before him at the time in determining the appropriate sentence and was provided with inadequate details of the applicant’s personal circumstances, and it is quite apparent, that that is the case.  The applicant at the time, as I say, was 15 years old.  She had no prior convictions and had significant personal circumstances of relevance when determining what might be considered an appropriate sentence, including the fact that she was apparently in a relationship with a 22 year old at the time, which is troubling in the extreme. 

3. I will not repeat all the details of the applicant’s personal circumstances, but given there is no opposition to the order being sought, and given my ready conclusion that the Magistrate was given inadequate information, I am of the view that the order of six months probation in the circumstances of this matter and the reprimand for the other offences was excessive and that there was another option open to the court.

4. It should also be noted for the record that the applicant was convicted in respect of the charge of wilful damage domestic violence offence – that is, as it was charged.  But that is an error, because the averment that the charge constituted a domestic violence offence does not apply under the Youth Justice Act 1992 (Qld) (‘Youth Justice Act’). That is under the Penalties and Sentences Act 1992 (Qld) and should not have been before the court with that averment in the first place. In the circumstances, it is my view that the order which is sought by the applicant is the appropriate order. Of course, sentence reviews are to be conducted with as little formality as possible pursuant to the legislation. And this does seem to be a matter where restorative justice is a matter that might well result in this child not coming back before the criminal courts. I note, importantly, that the learned Magistrate, as I read the material, misunderstood a submission that was made before him from the Youth Justice representative believing that the submission was that restorative justice was not appropriate, whereas, in fact, that was not the submission at all.

5. So for those brief reasons I am of the view that the application is a good one.  There is an application for an extension of time, given that this matter was out of time.  And that application is granted, noting that there is no opposition to the granting of leave to extend the period of time within which to file the notice of review. 

   Orders

   1.   The review is allowed. 

   2.   The orders imposed below are set aside. 

   3. In respect of each of the charges, except for the charge of wilful damage domestic violence offence, the applicant is referred for a restorative justice process pursuant to section 163(1)(d)(i) of the Youth Justice Act. 

   4. In respect of the charge of wilful damage domestic violence offence, I order that the sentence imposed for that matter be set aside and I order that the charge be dismissed pursuant to section 21 of the Youth Justice Act.