Joh v Director of Public Prosecutions

[2021] QChC 20

CHILDRENS COURT OF QUEENSLAND

CITATION:

JOH v Director of Public Prosecutions [2021] QChC 20

PARTIES:

JOH
(Applicant)

v

DIRECTOR OF PUBLIC PROSECUTIONS
(Respondent)

FILE NO/S:

346 of 2020

DIVISION:

Childrens Court of Queensland

PROCEEDING:

Sentence Review Application

ORIGINATING COURT:

Mareeba Childrens Magistrates Court

DELIVERED ON:

2 February 2021 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

2 February 2021

JUDGE:

Dearden DCJ

ORDER:

(1)   Application granted; 

(2)   Set aside the sentence of 12 months probation and 90 hours community service imposed at the Mareeba Childrens Court on 25 September 2020; 

(3)   Substitute an order for six months probation on the same conditions;

(4)   No order made in respect of the graffiti removal order made 25 September 2020 Mareeba Childrens Court.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE –SENTENCING JUVENILES – where the child was sentenced to a 10-hour graffiti removal order, 12-month probation order and 90-hour community service order for various vehicle and property related offences – where the child was aged between 12 and 13 at the time of the offending and 13 at sentence – where the child had no prior criminal history – where child had a prejudicial background – where the child had spent 60 days in custody for the relevant offences – whether the sentence imposed was excessive in the circumstances

Youth Justice Act 1992 (Qld) ss 118, 122, 150

COUNSEL:

CR Alcorn for the applicant

BW Scarrabelotti 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 by JOH in respect of some 44 counts, which can be summarised as follows (based on the numbering protocol outlined in annexure A to exhibit 1 (outline of submissions on behalf of the child):

(a)   charges 1, 2, 14, 15, 17, 30, 32, 42, 43, 44 – breaking an entering premises and committing indictable offence (11 charges);

(b)   charge 3 – entering premises and committing indictable offence (one charge); 

(c)   charges 4, 5, 8 and 13 – entering premises with intent to commit indictable offence (four charges); 

(d)   charges 6,7 and 9 – attempt at entering premises with intent to commit indictable offence (three charges); 

(e)   charges 10, 11, 20, 23, 24, 28, 33, 37 – wilful damage or destruction (eight charges);

(f)    charges 12 and 36 – unlawful entering a motor – a vehicle with intent to commit indictable offence (two charges); 

(g)   charges 16, 21, 26 and 29 – trespass – entering or remaining in yard or business (four charges); 

(h)   charge 18 receiving (Criminal Code Act Cth) 132.1(1) (one charge); 

(i)     charge 19 – wilful damage by graffiti (one charge); 

(j)     charges 22 and 25 – stealing (2 charges); 

(k)   charge 27 – public nuisance (one charge); 

(l)     charge 31 – attempt to enter premises and commit indictable offence by break (one charge); 

(m) charge 35 – burglary and commit indictable offence (one charge); 

(n)   charge 36 – unlawfully entering a vehicle with intent to committed indictable offence (one charge); 

(o)   charge 38 – unlawful use of a motor vehicle; 

(p)   charge 39 drive without a licence – never held (one charge).  After the unlawful use of the motor vehicle there should be (one charge); and, finally, 

(q)   charge 40 – unlawful possession of suspected stolen property (one charge).

1. The matter was heard in the Mareeba Childrens Court on 25 September 2020 and the applicant child was sentenced to a 10-hour graffiti removal order and a combination 12-month probation order and 90-hour community service order.  The 10-hour graffiti removal order is not in a position to be altered.  It is the 12-month probation order and 90-hour community service order which is the subject of this application for review. 

1. Briefly, and with the assistance of the outline of submissions on behalf of the child, I note that the child was born 2 March 2007, aged between 12 and 13 at the time of the offending and 13 at sentence with no prior criminal history and, critically for the purpose of this application, had spent 60 days in custody for the relevant offences.

1. A pre-sentence report was provided (although it is a little unclear why it was ordered given the complete lack of criminal history for the applicant). In any event, as the applicant’s counsel has noted in submission, this pre-sentence report outlined a deeply troubling upbringing which included trauma, abandonment and domestic violence; involvement with child safety; exposure to both domestic violence and substance misuse by parents; a fractured family background with the child bouncing between parents, a great grandfather and grandmother; a lack of supervision; a loss by death of the great grandfather; and various behaviours including absconding from home school; refusal and disregarding of supervision and a failure to improve after returning to live with the applicant’s mother. Despite attending to some four different schools in the Kuranda, Cairns and Normanton areas, the child disengaged from education since June 2019.

The law

1. The application for sentence review proceeds pursuant to Youth Justice Act 1992 (Qld) (‘YJA’) s. 118, is a rehearing on the merits (YJA s.122(1)), should be conducted expeditiously and with as little formality as possible, and this court’s entitled to have regard to the record of the Children’s Court and any other further submission and evidence by way of affidavit or otherwise.

1. The court, in sentencing children, must take into account the provisions of YJA s.150.

Discussion

1. The application submits that the combination 12-month probation order/90-hour community service order was excessive given a failure to place sufficient weight on the principles of Youth Justice Act, and in particular a failure to give consideration to the 60 days spent in pre-sentence custody.

1. Without traversing all of the details of the appearance at which the learned magistrate ordered the sentence, it appears that the child was not well served by his legal representative who failed to approach the proceedings as a plea in mitigation, and, in fact, appears to have highlighted aspects of the pre-sentence report which were not in the child’s favour, failed to identify mitigating aspects of the pre-sentence report, and made some submissions that appear to have no sensible basis for a defence lawyer making a plea in mitigation.

1. The magistrate, in his sentencing remarks, highlighted the child’s lack of remorse, lack of understanding of the effect of his behaviour and the impact of the offending on the community, but appears to have placed little or no weight on the child’s lack of criminal history and, importantly, the fact that the offences occurred at the age of 12 through 13, for a child from a hugely disadvantaged background with clear, obvious difficulties and, of course, who had just spent 60 days in pre-sentence custody.  The learned magistrate’s sentencing remarks also appear to rely, in part, from – on the “extremely poor parenting”, as the magistrate described it, which, with respect, seems to be blaming the child for matters that are and were completely out of his control.

1. In short, there appeared to be a substantial lack of understanding by both the defence solicitor and the learned magistrate about the significance of the matters raised in the pre-sentence report for a child of an indigenous background who, admittedly, was a serial offender in respect of these 44 offences, and who undoubtably had caused significant difficulties for the complainants in respect of the matters in relation to those offences.  It is, however, critical that in making submissions on a sentence, in terms of the role of the defence solicitor, and in giving consideration to the context of a pre-sentence report, that the legal actors concerned take careful note of the circumstances of each individual offender, and in context, of course, decide on an appropriate or make submissions towards and then decide on an appropriate penalty in the case of a judicial officer, taking careful note of all of those matters.

1. The Crown on this application, represented by Mr Scarrabelotti, has relied on an affidavit which identifies that there has been subsequent offending behaviour, but an excellent response (finally) on the conditional bail program in which the child is currently engaged.  Given that the application for a sentence review stayed the original order, it seems that the supervision provided by conditional bail program (albeit with respect to subsequent offending) has been a welcome circuit breaker and appears to have provided some significant benefit to the applicant.  It does, however, demonstrate that there is a need, despite the fact that the child has already done 60 days of pre-sentence custody, for some ongoing supervision. 

1. Mr Alcorn, who appears on behalf of the applicant, although his written submission originally submitted for a three month probation order to be substituted for the sentence originally imposed, pragmatically (and, in my view, entirely appropriately) concedes that a six month order in these particular circumstances will be appropriate and would provide the necessary supervision.

Orders

1. In all of the circumstances, then I make the following orders:-

(1)   Application granted; 

(2)   Set aside the sentence of 12 months probation and 90 hours community service imposed at the Mareeba Childrens Court on 25 September 2020; 

(3)   Substitute an order for six months probation on the same conditions;

(4)   No order made in respect of the graffiti removal order made 25 September 2020 Mareeba Childrens Court.