JMP v. The Queen

[2007] QDC 256

CHILDRENS COURT OF QUEENSLAND

CITATION:

JMP v Crown [2007] QDC 256

PARTIES:

JMP

(Applicant)

V

CROWN

(Respondent)

FILE NO/S:

36 of 2007

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

Childrens Court of Queensland at Beenleigh

DELIVERED ON:

6 August 2007

DELIVERED AT:

Beenleigh

HEARING DATE:

6 August 2007

JUDGE:

Dearden DCJ

ORDER:

Application for sentence review granted

CATCHWORDS:

APPLICATION FOR SENTENCE REVIEW – where the applicant was convicted of 1 count of public nuisance, 1 count of serious assault and 1 count of wilful damage – where the learned Children’s Court Magistrate recorded convictions in respect of each count – where the applicant had no prior or subsequent criminal history, was 16 years at the time of commission of the offences, entered pleas of guilty at an early stage, spent a night in custody, and the learned Childrens Court Magistrate failed to hear submissions on the issue of the recording of the convictions  – whether the sentencing discretion of the learned Childrens Court Magistrate had miscarried

Juvenile Justice Act 1992 (Qld) ss 118, 122(1), 122(2), 184

COUNSEL:

Mr D. Caughlin for the applicant

Mr P. McCarthy for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions for the respondent

HIS HONOUR:  This is an application for sentence review by the applicant JMP in respect of sentences imposed by the learned sentencing Childrens Court Magistrate in the Beenleigh Childrens Court on 3 April 2007 in respect of the following charges (for which the penalties noted were imposed):-

1. Serious assault - six months' probation;

1. Wilful damage - 50 hours' community service.

I note that convictions were recorded in both cases.

The Law

The power to review decisions of the Childrens Court (Magistrates level) is provided by the provisions of JJA s.118. Such a review is a re-hearing on the merits (JJA s.122(1)), based on the record of the proceedings, but with the power to consider further submissions and further evidence in this Court (JJA s.122(2)).

Facts

The relevant facts have been helpfully summarised by Mr Caughlin, who appears for the applicant, and I will acknowledge his contribution and read into the record the facts in respect of the three charges for which the applicant was dealt with on 3 April 2007 although only two of the charges are the subject of this application (the reading of the facts into the record of the first charge is necessary to place the facts in respect of the following charges in context).

Public Nuisance (18 January 2007)

At about 3.55 p.m. on 18 January 2007, police were called to attend Logan Hospital in relation to a disturbance.  They observed the applicant who was being aggressive and abusive towards security staff.  He was observed to kick and punch walls in the Emergency room.  He then began sobbing and saying that everyone hated him.  He began swearing at police and saying that he had done nothing.  Police approached the applicant and placed him under arrest for public nuisance.

Serious Assault (18 January 2007)

The applicant was then handcuffed and placed in the back of a police vehicle.  The applicant began to bang his head against the plastic cage of the police vehicle.  Police then held him in the back seat and placed him in a seat belt.
The applicant spat into the face of Constable Allan hitting him in the mouth, chin, cheek, and neck.  Constable Allan punched the applicant in the face with his right hand and then forced the applicant's head between the applicant's legs to stop the applicant spitting again.

Wilful Damage (5 March 2007)

On 5 March 2007 the applicant attended the premises, the Department of Child Safety at Beenleigh.  The applicant is in the care of the complainant Department.  Following a discussion with staff members, while leaving the building, the applicant kicked the glass sliding door at the entry way, causing damage to the sliding mechanism.  The applicant declined the opportunity to be interviewed in relation to this matter.

I note that the applicant had no previous criminal history at the date of sentencing nor does the applicant have any subsequent criminal history.

Merits

The charge of serious assault, involving as it did, spitting in a police officer's face, and landing on the police officer's mouth, chin, cheek, and neck, was and continues to be regarded throughout all of the Courts of Queensland as an extremely serious offence in that context.  Prison sentences are regularly imposed for adult offenders who commit such offences. 

However, given the defendant's lack of criminal history, his age at the time (16), the circumstances leading up to the offending, the early plea of guilty, the night spent by the applicant in custody, and the failure of the learned sentencing Childrens Court Magistrate to hear submissions on the issue of the recording of convictions, it is clear to me that the sentencing discretion has miscarried, at least in respect of the issue of the recording of convictions.

In my view, although the sentencing process appears to have miscarried (or at least not to have been appropriately taken to its conclusion with the obtaining of a formal consent from the applicant in the sentencing process in respect of the community based orders), it was not unreasonable, in my view, to impose sentences of probation and community service (respectively) in the circumstances.

As I outlined to Mr Caughlin during the course of submissions, although a different Court may have taken a different view about the utilisation of a youth justice conference in the circumstances, it does not, in my view, amount to the miscarrying of the sentencing discretion if the sentences imposed were those applicable rather than a referral to the youth justice conference.

I propose therefore, with the applicant's consent, which I will seek via an undertaking from Mr Caughlin, to re-impose the relevant sentences of probation and community service, which were sought to be imposed by the learned sentencing Magistrate.

MR CAUGHLIN:  I make that undertaking, your Honour.

HIS HONOUR: Thank you. I will accept a consent through you to those orders and also your undertaking to explain the contents of those orders under the terms of the Juvenile Justice Act.

In respect of the issue of the recording of a conviction, however, not only did the applicant's legal representative have the opportunity before the learned sentencing Childrens Court Magistrate to make submissions, but the Juvenile Justice Act at s.184 sets out the relevant considerations for the exercise of that discretion, and the material placed before the Court indicates that the learned sentencing Childrens Court Magistrate did not advert at all to those criteria nor did the learned sentencing Childrens Court Magistrate appear otherwise to have considered, in the exercise of discretion, the relevant issues or criteria in respect of the recording of convictions in relation to the charges of serious assault and wilful damage.

In my view, given the circumstances of the offending, it is clear that rehabilitation was of particular and paramount importance in this case and as much is very fairly conceded by the Prosecutor, Mr McCarthy in his submissions in respect of this application.

I grant the application in respect of the issue of (or more properly the aspect of the sentencing discretion) in respect of the recording of convictions in relation to each of the offences.

I set aside the orders in which convictions were recorded by the learned sentencing Childrens Court Magistrate and substitute orders in each case that no convictions be recorded.

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