HZK v Director of Public Prosecutions

[2025] QChC 11

CHILDRENS COURT OF QUEENSLAND

CITATION:

HZK v Director of Public Prosecutions [2025] QChC 11

PARTIES:

HZK

(applicant)

v
DIRECTOR OF PUBLIC PROSECUTIONS

(respondent)

FILE NO/S:

CCJ 174/25

DIVISION:

Childrens Court, Queensland

PROCEEDING:

Sentence review application

ORIGINATING COURT:

Redcliffe Childrens Court

DELIVERED ON:

19 September 2025

DELIVERED AT:

Brisbane

HEARING DATE:

10 September 2025

JUDGES:

Dearden DCJ

ORDER:

1.        Application granted.

2.        Set aside the sentence of three years probation, with no conviction recorded, imposed on 20 June 2025 at the Redcliffe Childrens Court for the offence of attempted to enter dwelling with intent at night, in company, damages property, and substitute an order that the applicant be sentenced to a period of 12 months probation, with no conviction recorded.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING JUVENILES – OTHER MATTERS – where the applicant was sentenced to three years probation at the Childrens Court at Redcliffe for the charge of attempted to enter dwelling with intent, at night, in company, damages property – where the applicant submitted that the sentence was unlawful – whether the sentencing magistrate fell into error by concluding that an attempted offence, other than those enumerated in s 175A(1), was a significant offence under s 175A of the Youth Justice Act 1992 (Qld)

LEGISLATION:

Criminal Code 1899 (Qld), s 419, s 535

Youth Justice Act 1992 (Qld), s 118, s 122, s 150, s 175A

CASES:

Beckwith v The Queen [1976] 135 CLR 569

CAK v DPP [2022] QChC 31

ERG v Director of Public Prosecutions [2023] QChC 38

R v CDV [2025] QCA 163

R v PPD [2019] QCA 59

R v Webb [1995] 1 Qd R 680

COUNSEL:

R Gill (sol) for the applicant
M Metcalfe (sol) for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Office of the Director of Public Prosecutions for the respondent

Introduction

1. This is an application for sentence review filed on 16 July 2025 in respect of a sentence of three years probation imposed at the Childrens Court of Redcliffe on 20 June 2025, in respect of the following charge:

Date of Offence	Place of Offence	Offence
6/2/2025	Margate	Attempted to enter dwelling with intent at night in company, damages property (Criminal Code (Qld) s 419(1) & (2) and s 535).

Grounds of review

1. The applicant was granted leave to file an amended application for sentence review on 10 September 2025, with the following grounds:

   1.   The sentence was unlawful; and/or

   2.   In all circumstances of the matter the sentence was excessive.

   The law

2. In ERG v Director of Public Prosecutions [2023] QChC 38, [2]-[7], I set out an overview of the law in respect of sentence reviews in the following terms:

   “[2]     A Childrens Court judge may review a sentence order made by a Childrens Court magistrate.[1]

   [3]The review is a re-hearing on the merits,[2] and the Childrens Court judge may have regard to the proceedings before the Childrens Court magistrate and further submissions and evidence by way of affidavit or otherwise.[3] The review must be conducted expeditiously and with as little formality as possible.[4]

   [4]The Childrens Court judge, on reviewing a sentence order, may confirm, vary or discharge the order and substitute another order within the jurisdiction of the Childrens Court magistrate to make,[5] and can make any other order a Childrens Court magistrate could have made with the sentence order as confirmed, varied or substituted.[6]

   [5]A court imposing a sentence on a juvenile must take into account the sentencing principles contained in YJA s 150, as well as general sentencing principles and youth justice principles.[7]

   [6]The sentence review process is a re-hearing on the merits, and it is not necessary to demonstrate error (see, for example, R v JM [2013] QChC 11, [9]; R v MKH [2014] QChC 3, p.2; KLP v R [2017] QChC 5, [3]; MOJ v R [2019] QChC 45, [7]; RSS v R [2022] QChC 29, [26]).

   [7]The court has the power to refer an offence to the chief executive for a court diversion restorative justice process,[8] and the court must consider such a referral when a child enters a plea of guilty to an offence.[9] A failure to consider such a referral is an error of law.[10]”    

   [1]Youth Justice Act 1992 (Qld) s 118 (“YJA”).

   [2]YJA s 122(1).

   [3]YJA s 122(2).

   [4]YJA s 122(3).

   [5]YJA s 123(1).

   [6]YJA s 123(2).

   [7]YJA s 150(1)(B); YJA s 150(2); YJA sch 1.

   [8]YJA ss 163 & 164.

   [9]YJA s 162.

   [10]R v PPD [2019] QCA 59, [29] – [32]; CAK v DPP [2022] QChC 31, [13].

3. In R v CDV [2025] QCA 163, Muir J (with whom Bond and Boddice JJA agreed), in a detailed and comprehensive decision, concluded that the Court of Appeal does not have jurisdiction to hear an appeal from a decision of a Childrens Court judge following a sentence review under s 118 of the Youth Justice Act 1992 (Qld) (“YJA”).[11] During the course of that decision, Her Honour helpfully and comprehensively outlined the nature of a sentence review before this court, in terms which confirm the summary contained in ERG v Director of Public Prosecutions [2023] QChC 38, [2]-[7]. It is useful to reproduce Her Honour’s observations in full, as follows:-[12]

   “[42]    The express legislative purpose for the introduction (and reintroduction) of the sentence review scheme into the Youth Justice Act was to enable an informal, fair, just and prompt resolution of challenges to Childrens Court magistrates’ sentence orders. This purpose is expressly reflected in the text of s 122(3), which provides that “the review of a sentence order must be conducted expeditiously and with as little formality as possible”

   [43]This legislative context and purpose, which includes that a sentence review and a s 222 appeal are alternate options, gives shape to the requirement that a sentence review be conducted “by way of rehearing on the merits”.[13] As already foreshadowed, the nature of a sentence review forms part of the legislative framework by which any right of appeal to this court from such a review is to be considered. For the following reasons, I am satisfied that the nature of a review by way of rehearing on the merits does not require any error in the sentencing discretion below to be demonstrated. Rather, it requires a Childrens Court judge to exercise the sentencing discretion afresh by way of a rehearing de novo.

   [44]First, whilst it is reasonable to infer that as a matter of practice, the sentence review is conducted with regard to the record of the proceeding below, the word “may” in s 122(2) contemplates that a review might be conducted without such recourse. This flexibility is consistent with the overarching objectives of the Youth Justice Act and Parliament’s expressed intention for an efficient and informal resolution, as opposed to the formal s 222 Justices Act appeal process.

   [45]Second, by s 122(2)(b), the Childrens Court judge may have regard to “any further submissions and evidence by way of affidavit or otherwise”. This differs from the orthodox constraint imposed in an “ordinary” sentence appeal, which requires leave to adduce further evidence.[14] Relevantly, the discretion to consider further evidence under s 122(2)(b) is wide and includes oral evidence.[15] The power of the review court to review additional or substituted evidence or information was considered to be a decisive one (together with the power to make any order it considered appropriate) in Director of Public Prosecutions v Filippa [2005] 1 Qd R 587. In that case, Douglas J determined that a review by a Supreme Court judge of a magistrate’s decision under s 19B of the Bail Act 1980 (Qld) was a rehearing de novo.[16]

   [46]Third, the wide powers of the Childrens Court in a sentence review under s 123 are consistent with the Childrens Court judge not being constrained by the need to identify error. For example, the judge is obliged to give a decision on the current evidence,[17] the judge must decide the matter in the same way as the Childrens Court magistrate might have done by exercising the sentencing discretion afresh,[18] and the judge’s powers are wide, constrained only by what orders would be permitted in the jurisdiction of the magistrate.[19]

   [47]Lastly, the s 222(2)(c) Justices Act appeal avenue requires an error to be shown for there to be intervention. It is therefore unlikely that Parliament intended sentence reviews to also require the identification of an error before a Childrens Court judge could intervene.”

   [11]R v CDV [2025] QCA 163, [95].

   [12]R v CDV [2025] QCA 163, [42] – [47].

   [13]See YJA s122(1).

   [14]See, eg, Justices Act 1886 (Qld) s 223.

   [15]See also Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 204 [17] (Gleeson CJ, Gaudron and Hayne JJ); Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267 at 272 (Deane, Gaudron and McHugh JJ).

   [16]Director of Public Prosecutions v Filippa [2005] 1 Qd R 587 at 590 [15] (Douglas J).

   [17]See also Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 204 [17] (Gleeson CJ, Gaudron and Hayne JJ); Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267 at 272 (Deane, Gaudron and McHugh JJ).

   [18]See also Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 631 (Murphy J).

   [19]See YJA s 123(2).

   Facts of the offence

4. The applicant has helpfully summarised the offending as follows:-

   “[On 6 February 2025], the applicant with a group of five, was drinking at a Margate unit complex when confronted by the complainant about noise. The group verbally abused him and followed him downstairs. Objects including bottles were thrown, causing lacerations. The applicant admitted punching the victim to the face and later arming himself with a metal chair.

   After the complainant retreated inside, the applicant followed and kicked in the flyscreen and front door, damaging the lock mechanism. CCTV captured the incident. The applicant admitted intending to assault the victim further but withdrew upon seeing the victim armed with a knife.”[20]

   [20]Exhibit 3 – Outline of submissions on behalf of the applicant, [4].

   Antecedents and personal circumstances of applicant

5. The applicant has summarised the antecedents and personal circumstances of the applicant as follows:-

   “5.1The applicant was 18 years old at the time of sentence.

   5.2 He is the middle child of three. His childhood was marked by exposure to domestic violence, parental substance abuse and instability. His parents separated when he was about five, and he has little contact with his father since.

   5.3He was diagnosed with Oppositional Defiance Disorder in primary school and experienced academic difficulties. He was expelled from [redacted] State High School in Year 8 following a physical altercation, after which he disengaged from education.

   5.4Following this engagement, he associated with anti-social peers in his neighbourhood, normalising offending, and substance abuse.

   5.5He commenced alcohol use at around 11-12 years of age. His mother confirmed significant misuse. He reported intoxication at the time of the current offences and acknowledged alcohol affects his consequential thinking and emotional regulation.

   5.6He had casual employment as a tree lopper prior to remand, which he identified as a positive step. That employment ceased because of his time in custody.

   5.7He had been linked with [redacted] employment services for support with ID, drivers licence, and employment.

   5.8He has engaged with Forensic Child and Youth Mental Health Service, attending three sessions and commencing assessment for intervention.

   5.9He has spent 133 days in custody on remand for these matters, which he described as the most significant consequence he has experienced, noting the stress of possible transfer to adult custody.

   5.10He has expressed aspirations for stability, including secure housing and a “normal life” with family.

   5.11He has indicated a willingness to comply with community-based orders and to continue offence-focused programs including CHART and ERIC.”[21]

   [21]Exhibit 3 – Outline of submissions on behalf of the applicant [5.1] – [5.11].

   Criminal history

6. The applicant summarised the applicant’s criminal history as follows:-

   “6.1The applicant has previously been subject to a range of supervised orders, including four probation orders, one community service order, one conditional release order and three detention orders.

   6.2The applicant has a lengthy history of both property and violent offending.

   6.3It is conceded that his history places him in a position where rehabilitative considerations are not paramount.”[22]

   [22]Exhibit 3 – Outline of submissions on behalf of the applicant [6.1] – [6.3].

   The sentencing proceeding

7. The applicant summarised the sentencing procedure as follows:

   “7.1A serious repeat offender declaration was sought by the prosecutor. This was opposed by the applicant’s lawyer but ultimately the declaration was made by the learned acting magistrate.

   7.2The prosecutor submitted that a 12 month detention order was within range, whilst the applicant’s lawyer submitted that a combination of orders was appropriate where a lengthy (up to three years) probation order could be imposed for the attempted enter dwelling offence and detention order for the remaining offences.

   7.3The submission sought the applicant’s immediate release, with punishment and supervision achieved through a lengthy probation order rather than further detention and a supervised released order.

   7.4It appears that all parties were of the view that the attempted enter dwelling offence was a significant offence pursuant to s 175A of the YJA. If enlivened, this section allows a Childrens Court magistrate to sentence a child to a probation or detention order for up to three years.”[23]

   [23]Exhibit 3 – Outline of submissions on behalf of the applicant [7.1] – [7.4].

8. The respondent identifies further that:-

   “The learned magistrate and the applicant child’s representative had a discussion that given the “adult crime, adult time” component, being the attempted enter dwelling offence, a lengthy probation order should be attached to that offence.”[24]

   [24]Exhibit 4 – Outline of submissions on behalf of respondent [14].

9. The respondent noted that the learned magistrate “agreed with [the] submission made by the applicant child’s representatives that a lengthy period of probation which would see the applicant child released into the community was an appropriate sentence”, and that the learned magistrate “also took into account the defendant’s traumatic upbringing and moderated the penalty would otherwise have imposed whilst also having regard to the serious repeat offender declaration made”.[25]

   Was the offence a significant offence?

   [25]Exhibit 4 – Outline of submissions on behalf of respondent [15] – [16].

10. The respondent submits the sentence imposed “was lawful and justified”,[26] and argues that the inclusion of Criminal Code s 419 as a significant offence in YJA s 175A includes an attempt to commit that offence, pursuant to Criminal Code s 535.

    [26]Exhibit 4 – Outline of submissions on behalf of respondent [17].

11. The respondent’s argument is as follows:

    “22.Section 175A(1) of [the Youth Justice Act] applies as the applicant child was sentenced for an offence of burglary (s  419 under the Criminal Code 1899). Importantly, the only “attempted” offences are those which are codified such as attempted murder (s 306), attempt to commit rape (s 350) and attempted robbery (s 412). There is no mention of “attempted offences” which have been charged under s 535 being applicable pursuant to s 175A.

    23.The applicant child was convicted under s 419(1), (2), (3)(a)(b)(iii)(iv), s 535 and given this is not a codified “attempted offence” the applicant is liable for “adult crime, adult time”. This is the position that all parties adopted throughout the sentencing proceeding.

    24.The purpose of s 535 and perhaps more importantly, the punishment of attempts to commit indictable offences is discussed in s 536 of the Criminal Code. The maximum penalty is for an offence under s 419 committed by a child is now 14 years imprisonment meaning that the applicant child was liable for a maximum penalty of seven years detention [Criminal Code 1899 s 536(2)].

    25.The explanatory notes of the Making Queensland Safer Bill (“the Bill”) states (sic) that the aim is to ensure penalties that fit with the community expectations are imposed on young offenders. The Bill also clearly states that an offence of burglary (s 419) is one of those offences of which an adult penalty can be imposed on children. Once again, there is no reference to “attempted offences [except] those… which are codified”.[27]

    [27]Exhibit 4 – Outline of submissions on behalf of the respondent [22] – [25].

12. The applicant identifies that in respect of attempted to enter dwelling (Criminal Code s.419 and s.535), the learned acting magistrate sentenced the applicant pursuant to s.175A, which among other penalty provisions, exposes a child to a period of up to three years probation when sentenced by a magistrate, rather than the maximum 12-month probation applicable to offences not subject to the s.175A provisions.

13. As the applicant identifies, s.175A(1) sets out an exhaustive list of significant offences, which includes (among other offences) burglary (Criminal Code s.419) armed robbery (Criminal Code s.411), as well as the offences of attempted murder (Criminal Code s.306) and attempted robbery (Criminal Code s.412) but (it is submitted) does not explicitly include either attempted burglary or attempted enter a dwelling.

14. The applicant’s submission is that the conviction was not simply an offence against Criminal Code s.419, but rather an offence against Criminal Code s 535 (the attempt provision) with Criminal Code s.419 supplying the underlying offence.

15. In my view, there is significant force to that submission, given the text of Criminal Code s.535, which relevantly provides at s 535(1) “If a person attempts to commit a crime, the person commits a crime”. In R v Webb [1995] 1 Qd R 680, the Court of Appeal noted (obiter in this context) “…that s.535 is the section which creates the relevant offence…”.[28]

    [28]R v Webb [1995] 1 Qd R 680, 686.

16. I note further that there is no specific reference in the explanatory notes to the Making Queensland Safer (Adult Crime, Adult Time) Bill 2024 to “attempts”, or in the subsequent Making Queensland Safer (Adult Crime, Adult Time) Amendment Bill 2025, which inserted substantive offences of attempted murder (Criminal Code s.306) and attempt to commit robbery (Criminal Code s.412) as significant offences in s.175A(1). In those circumstances, it is clear, in my view, that Parliament did not intend that attempts to commit significant offences contained in s 175A(1) were to be covered by that provision. It would have been open to Parliament to specifically articulate that attempts to commit any of the identified offences in s.175A(1)(a)-(zf) was also a significant offence, but Parliament chose not to do so.  In Beckwith v The Queen [1976] 135 CLR 569, 576 Gibbs J identified that:-

    “In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences.” (Citations deleted).

1. The Queensland Court of Appeal in Turner v Director of Public Prosecutions (2017) 265 A Crim R 388, [47] relevantly identified that if there was ambiguity in construing a particular provision of the Bail Act, that doubt should be resolved in favour of the appellant. To the extent that there is any ambiguity in construing YJA s.175A and what constitutes a significant offence, that ambiguity should be resolved in favour of the defendant. In short, unless specifically identified, attempts to commit any of the offences specified in s.175A(1) are not covered by that provision.

   Conclusion

2. I conclude therefore that the learned acting magistrate (with the concurrence, it should be noted, of both the prosecutor and the applicant’s legal representative) was in error in dealing with the applicant in respect of this offence as if it was subject to the provisions of YJA s.175A(1), and accordingly, the relevant provision of YJA s.175A(2), which empowered a Childrens Court magistrate to impose a period of probation for a period not longer than three years, did not apply to the applicant in this case, in respect of the offence of attempted to enter dwelling with intent, at night, in company, damages property.

3. It follows that the learned acting magistrate fell into error, and the sentence should be reviewed. The learned acting magistrate could only sentence the applicant to a maximum period of 12 months probation for the attempt offence. In the context of the applicant’s serious offending, as the applicant’s counsel readily concedes, a 12-month probation order would adequately reflect the offending, whilst still providing a lengthy period of supervision.

4. Accordingly, I conclude that the order for three years probation should be set aside and the applicant should be resentenced to a period of 12 months probation.

   Orders

5. I order as follows:

   1.   Application granted.

   2.   Set aside the sentence of three years probation, with no conviction recorded, imposed on 20 June 2025 at the Redcliffe Childrens Court for the offence of attempted to enter dwelling with intent at night, in company, damages property, and substitute an order that the applicant be sentenced to a period of 12 months probation, with no conviction recorded.