Jey v Director of Public Prosecutions

[2021] QChC 26

CHILDRENS COURT OF QUEENSLAND

CITATION:

JEY v Director of Public Prosecutions [2021] QChC 26

PARTIES:

JEY
(Applicant)

v

DIRECTOR OF PUBLIC PROSECUTIONS
(Respondent)

FILE NO/S:

126 of 2021

DIVISION:

Childrens Court of Queensland

PROCEEDING:

Sentence Review Application

ORIGINATING COURT:

Richlands Childrens Court

DELIVERED ON:

27 May 2021 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

27 May 2021

JUDGE:

Dearden DCJ

ORDER:

1.   Application granted.

2.   Discharge the community service order imposed at Richlands Childrens Court on 4 March 2021 of 20 hours.

3.   Order that the applicant be reprimanded.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE –

SENTENCING JUVENILES – where the child was sentenced to 20 hours of unpaid community service for a single charge of fare evasion – where the child was 15 years old at the time of the offence and sentence – where the child was not legally represented at sentence – where the child has one previous reprimand for a similar offence – where an adult is not liable to imprisonment for the same offence – where the respondent concedes that the sentence imposed was unlawful – where the applicant has already completed 2 hours of community service order – where the respondent submits the that the appropriate penalty is referral for a restorative justice process, or in the alternative, the imposition of a good behaviour order

Youth Justice Act 1992 (Qld) ss 118, 123(1), 175(2)(d)

Transport Operations (Passenger Transport) Regulation 2018 (Qld) r 218C

COUNSEL:

C Anderson-James for the applicant

A Jayachandran 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 pursuant to the Youth Justice Act 1992 (Qld) (‘YJA’) s 118. The background to this matter is that the applicant child seeks review of a sentence imposed by the learned magistrate at Richlands Childrens Court on 4 March 2021 in respect of a plea of guilty entered to a single charge of fare evasion under the Transport Operations (Passenger Transport) Regulation 2018 (Qld) r 218C.

1. The child was not legally represented at sentence and was sentenced to 20 hours of unpaid community service with no conviction recorded. It is common ground that the penalty imposed was unlawful. Pursuant to YJA s 175(2)(d), a community service order may only be made against a child found guilty of an offence of a type that if committed by an adult would make the adult liable to imprisonment, and the maximum penalty for the offence of fare evasion is 40 penalty units (Transport Operations (Passenger Transport) Regulation 2018 (Qld) s 218C(1)).

The law – sentence reviews

1. The law in respect of sentence reviews, as I have identified, enables this court to review the sentence order of a magistrate pursuant to YJA s 118; is a rehearing on the merits; should be conducted expeditiously and with as little formality as possible; and this court can have regard to the record of the Childrens Court proceeding and any further submissions in evidence by way of affidavit or otherwise. This court has the powers set out in YJA s 123(1) to confirm, vary or discharge and substitute another order for the original order.

Discussion

1. The issue in this particular application is a very narrow one.  The Crown respondent concedes that the order made was unlawful but submits that there is a value in a referral for a restorative justice process, or on the alternative, the imposition of a good behaviour order.

1. The further affidavit of Ms Charlotte Anderson-James affirmed 26 May 2021 and filed by leave this morning, identifies that the applicant has already completed two hours of the 20 hour community service order; in other words, has completed two hours of “punishment” which was unlawfully imposed in the first case.  Although there is, as this court has frequently observed, substantial value in a restorative justice process for children such as the applicant, conversely, there is an obligation to ensure that any sentence imposed is proportionate to the offence (which in this case carries a monetary fine only for an adult), and takes into account the punishment that has already been served (in this case, two hours or 10 per cent of the order originally imposed (unlawful, as identified)). The child was 15 years old at the time of the offence and sentence and has one previous reprimand for a similar offence. 

Conclusion

1. In all of the circumstances, given the partial completion of the community service order, I consider that it is appropriate to accept the submission made on behalf of the applicant. 

Orders

1. I make the following orders:

(1)   Application granted.

(2)   Discharge the community service order imposed at Richlands Childrens Court on 4 March 2021 of 20 hours.

(3)   Order that the applicant be reprimanded.