JBZ v Office of the Director of Public Prosecutions

[2020] QChC 23

CHILDRENS COURT OF QUEENSLAND

CITATION:

JBZ  v Office of the Director of Public Prosecutions [2020] QChC 23

PARTIES:

JBZ
(applicant)

v

OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS

(respondent)

FILE NO/S:

203/20

DIVISION:

Childrens Court

PROCEEDING:

Sentence Review

ORIGINATING COURT:

Townsville Childrens Court

DELIVERED ON:

13 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

27 July 2020

JUDGES:

Richards P

ORDER:

1.   Application is allowed.

2.   The sentence is set aside.

3.   Pursuant to s 175(1)(db) of the Youth Justice Act 1992 (Qld) the child is ordered to participate in a restorative justice process as directed by the chief executive.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the child was sentenced for one charge of the unlawful use of a motor vehicle – where the child was 15 at the time of offending and sentence – where the child was sentenced to three months detention to be served by way of a conditional release order – where a conviction was not recorded – where the child had spent 20 days in pre-sentence custody – where the child committed the offence within 24 hours of being released from custody - where the learned Magistrate did not identify sufficient reasons for finding that a  detention order was the only available sentencing option

SOLICITORS:

Mr D Law from Legal Aid for the applicant

Mr T O’Brien from the Office of Director of Public Prosecutions for the respondent

1. The applicant child was sentenced on 30 April 2020 in relation to one charge of unlawful use of a motor vehicle on 10 April 2020.  He was 15 at the time of the offence and at sentence.  He was subject at the time of the offence to a two-year probation order, a 12-month probation order, a six-month probation order and 30 hours community service all of which were imposed on 9 April 2020.  He was sentenced to three months detention to be served by way of a conditional release order and a conviction was not recorded.  It is against this sentence that he applies for a review.

2. On 10 April 2020 the applicant was located in the driver’s seat of a stolen vehicle by police.  The car had been stolen from an address in Bohle.  

3. At the time of sentence he had spent 20 days in pre-sentence custody. 

4. His appearance before the court on 9 April 2020 was the first time he had been before the courts, although he was dealt with for a large amount of charges.  A pre-sentence report indicated that he was becoming more entrenched in a criminal lifestyle and he lacked the motivation and skills necessary to make positive choices to change his behaviour.  At the time of sentence on 9 April 2020, he had been in detention for 77 days. He was out of custody for one day before returning to custody as a result of this offending. 

5. He had been referred to Lives Lived Well for intervention around substance use in the community and was enrolled in a flexible learning centre.

6. He comes from a loving home.  His parents split but his mother was supportive and until he was 12 he had responded positively to her boundaries and discipline.  From 12 years of age he began to abscond from home, although his mother made significant attempts to try and find him when he absconded. He began mixing with other young people who were known to the criminal justice system and police.  He stopped attending school in 2019. 

7. The applicant is aware that the group that he mixes with has an effect on his behaviour in a negative way.  He was found to be impulsive and risk-taking.  He also began to take marijuana and methamphetamines and was motivated to engage in offending to sustain that use.  It was said that he displayed the appropriate amount of empathy for his victims.

8. It is conceded by the respondent that the application should be allowed.  The Crown submits that whilst the circumstances of the offending have serious features, notably the fact that he had been in the community for less than 24 hours following his release, it is conceded that the magistrate did not identify sufficient reasons for finding that a  detention order was the only available sentencing option. 

9. He had been not yet engaged in the community-based orders imposed on him on 9 April.  Given that there was a single count of unlawful use where there was no damage and no injury to the public, other than the car being taken, in those circumstances it was not an offence that would normally call for detention.

10. The only conclusion that can be drawn from the sentence imposed is that the court was overwhelmed by the fact that the child had committed the offence within 24 hours of being released from custody and within 24 hours of being sentenced.  Whilst recognizing that this is extremely poor behaviour, nonetheless the child had spent an additional 20 days in custody waiting for the sentence.  He is currently on a total of two years’ probation until April 2020 and so will be under the supervision of the Department for a lengthy period of time.  In those circumstances I agree with the joint submission of the parties that a restorative justice order is appropriate in this case to enable the child to gain further insight into his offending.

11. The application is granted. The sentence is set aside. Pursuant to s 175(1)(db) of the Youth Justice Act 1992 (Qld) the child is ordered to participate in a restorative justice process as directed by the chief executive.