JCR v Commissioner of Police

[2023] QChC 20

CHILDRENS COURT OF QUEENSLAND

CITATION:

JCR v Commissioner of Police [2023] QChC 20

PARTIES:

JCR (Appellant) v

COMMISSIONER OF POLICE
(Respondent)

FILENO/S:

2395 of 2023

DIVISION:

Childrens Court of Queensland

PROCEEDING:

s222 Appeal

ORIGINATING COURT:

Pine Rivers Childrens Court

DELIVEREDON:

15 September 2023

DELIVEREDAT:

Brisbane

HEARINGDATE:

22 August 2023

JUDGES:

Richards P

ORDER:

The extension of time within which to appeal is allowed. The restorative justice order is set aside. The orders disqualifying the appellant from holding or obtaining a driver’s licence is set aside. The charges are referred to the Chief Executive for restorative justice process to occur pursuant to s163 of the Youth Justice Act 1992.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – APPEAL AGAINST

SENTENCE – where the child applicant pleaded guilty to five driving related offences and sentenced to restorative justice order and disqualified from holding driver’s licence – where the child applicant was 14 years with no criminal history and no prior contact with police – where the child applicant provided an early plea of guilty – whether the sentencing magistrate adequately considered a restorative justice diversionary referral

LIMITATION OF ACTIONS – EXTENSION OF TIME –

where the application for an appeal was lodged out of time – whether an extension of time should be granted

LEGISLATION:

Youth Justice Act 1992 (Qld) s192A, s 192B, s163

Justices Act 1886 (Qld) s222

COUNSEL:

D Law for the appellant

H Malcolmson for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

The Office of Director of Public Prosecutions for the respondent

Introduction

1. On 14 June 2023, the appellant pleaded guilty to five driving related offences including dangerous operation of a motor vehicle and unlawful use of a motor vehicle. The offences were closely related in nature and time. He was sentenced to a restorative justice order and no convictions were recorded. He was disqualified from holding or obtaining a driver’s licence for a total period of nine months. He appeals those orders.

Facts

1. The appellant was 14 years of age at the time of the offences and at the time of sentence. He had no previous criminal history and no previous contact with police.

1. On 13 June at 11.43am police were called to Brackenridge Road where they noticed a blue 4WD had crashed through a fence into a community centre causing structural damage. Three males and one female decamped from the vehicle. Police, upon arriving at the scene, realised that the vehicle was one reported as stolen that morning. They searched the area and came across the female offender and then shortly after the three males.

1. JCR was taken back to the police station and interviewed. He told police he was driving the motor vehicle at the time of the crash and that he had been a passenger prior to that. He said that he tried to turn around a bend in the road and lost control of the motor vehicle, failed to brake in time and ended up crashing into the community centre. He pleaded guilty at the first mention of the matter. There was only evidence that he was driving the vehicle at the time of the collision was his admissions to police. Fortunately, although the community centre was occupied at the time of the collision, no one was injured.

The Hearing

1. It was submitted that the child had never been in trouble before and therefore the offending can be seen to be out of character. He was denied bail and spent overnight in the watchhouse. He was currently enrolled in Distance Education having been excluded from mainstream school due to bad behaviour.

1. It was submitted by the Youth Justice that there was no utility in him being placed on probation because he had already accepted referrals to the child mental health service, education services and Family and Child Connect. He was working part time at KFC at [redacted] three hours a week. The Court sought submissions in relation to a community service order however it was submitted that, given all the pending referrals, community service would be unrealistic.

1. In sentencing the child, the Magistrate took into account that this was a serious example of dangerous operation of a motor vehicle. However, the driving was over a very short period, no one was hurt, and he made full admissions. It was a very early plea of guilty with the offences having only occurred the day before. The Magistrate took into account that this behaviour that was out of character and that he had spent one difficult night in the watchhouse.

1. The Magistrate decided a restorative justice order was appropriate under s192A and 192B of the Youth Justice Act 1992 as a sentence order rather than a diversionary order.

1. The Magistrate also decided to disqualify the child from holding or obtaining a driver’s licence for six months on the charge of dangerous operation of a motor vehicle and three months on the charge of unlicenced driving. She did not give any reason for those orders.

Discussion

1. It was submitted by the appellant and conceded by the Crown that the Magistrate did not properly consider the mandatory requirement to divert the child to restorative justice. The Magistrate, it was submitted, did not properly evaluate the appropriateness of that referral instead deciding to order restorative justice as a sentence indicating that it was a stricter order.

1. The child had not been given any prior opportunities to be diverted from the criminal justice system. He pleaded guilty at the very first opportunity, he made full admissions to police and was eligible for police diversion however the police charged him due to the seriousness of offence. He was supported by his parents in court. He had support in the community. He was in part-time employment. The Magistrate was urged by Youth Justice to divert the child rather than proceed to sentence and the

family had already committed to participating in programs to assist the family with parenting strategies and other programs, as well as referral to Child and Youth Mental Health Service.

1. Given the very young age of the child, the fact that it was out of character and that he had not been in trouble before, it is accepted a diversionary referral was more appropriate. The Magistrate gave no reason for choosing to proceed by way of sentence rather than diversion, commenting that it was stricter. The primary requirement of both restorative justice processes are identical. It is fair to say that the order under s192A and 192B of the Youth Justice Act 1992 is a more formal process. However, failure to complete either process results in the matter being returned to court for a resentence.

1. In relation to the disqualification, there were no submissions made by the solicitor and no reasons given by the Magistrate as to the appropriateness of a disqualification order. There is no practical effect to the orders on the applicant as the child was too young to obtain a driver’s licence or a learner’s licence however it would be a matter that would remain on his traffic history after he reaches the age of 17. Again, given the young age of the child it is appropriate that the disqualifications, which were not mandatory, be set aside.

Extension of time

1. The appeal is filed out of time chiefly because it was initially filed as a sentence review under the Youth Justice Act 1992. The orders disqualifying the applicant from holding or obtaining a licence are not sentence orders and cannot be reviewed under the Youth Justice Act. Therefore, an appeal was filed out of time under s222 of the Justices Act 1886. There is no prejudice to the Crown in the late filing of that appeal as an appeal was already on foot. The delay is only five weeks and it is not attributable to any fault of the applicant. It is appropriate to grant the extension of time.

ORDER

1. The extension of time within which to appeal is allowed. The restorative justice order is set aside. The orders disqualifying the appellant from holding or obtaining a driver’s licence is set aside. The charges are referred to the Chief

Executive for restorative justice process to occur pursuant to s163 of the Youth Justice Act 1992.