KPC v Queensland Police Service

[2017] QChC 12

CHILDREN’S COURT OF QUEENSLAND

CITATION:

KPC v Queensland Police Service [2017] QChC 12

PARTIES:

KPC
(applicant)

v

QUEENSLAND POLICE SERVICE
(respondent)

FILE NO/S:

52 of 2017

DIVISION:

Appellate

PROCEEDING:

Application for Sentence Review

ORIGINATING COURT:

Children’s Court

DELIVERED ON:

12/09/2017

DELIVERED AT:

Brisbane

HEARING DATE:

04/08/2017

JUDGE:

Richards DCJ

ORDER:

Sentence set aside. Applicant is reprimanded on both charges.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – OTHER MATTERS – whether s 108B of the Penalties and Sentences Act 1992 applies to a child

Bail Act 1980, s 47

Justices Act 1886, ss 10, 42

Mental Health Act 2016, s 170

Penalties and Sentences Act 1992, ss 3, 4, 6, 108B

Police Powers and Responsibilities Act 2000, s 790(1)(2A)

Youth Justice Act 1992, ss 2, 149, 155

COUNSEL:

Mr B White – counsel for ODPP

SOLICITORS:

Mr R Gill – instructed by Legal Aid for O’Brien

1. The applicant was sentenced in the Pine Rivers Children’s Court on 24 March 2017 in relation to two offences of assault / obstruct a police officer in a public place whilst adversely affected by an intoxicating substance.  At the time of the sentence she was 16 years of age and 15 years of age at the time of the offence. She had no criminal history and was therefore not subject to any supervised or unsupervised court orders at the time of the offences.

1. In sentencing the applicant to 20 hours community service in respect of both offences the magistrate noted that pursuant to s 790(1)(2A) of the Police Powers and Responsibilities Act 2000 the applicant had been charged with a circumstance of aggravation which triggered a mandatory sentence of community service pursuant to s 108B of the Penalties and Sentences Act 1992.

1. Section 108B of the Penalties and Sentences Act 1992 states:

“108B    When community service order must be made

(1)It is a circumstance of aggravation for a prescribed offence that the offender committed the offence in a public place while the offender was adversely affected by an intoxicating substance.

(2)If a court convicts an offender of a prescribed offence with the circumstance of aggravation mentioned in subsection (1), the court must make a community service order for the offender whether or not the court also makes another order under this or another Act.”

Section 790 of the Police Powers and Responsibilities Act 2000 is a prescribed offence for the purposes of s 108B of the Penalties and Sentences Act 1992.

1. The question for determination on this appeal is whether s 108B of the Penalties and Sentences Act 1992 applies to a child. The Crown submits that it does because s 155 of the Youth Justice Act 1992, which excludes mandatory sentencing for prison and fines does not mention community service and thus, by way of omission, s 108B therefore applies to a child.

1. The Penalties and Sentences Act 1992 was enacted for the purpose of “collecting into a single act to general powers of courts to sentence offenders” (s 3). Offenders are defined as “a person who is convicted of an offence, whether or not a conviction is recorded” (s 4 of that Act).

However, s 6 of the Act states:

“6Application to children and certain courts          

This Act does not apply to—

(a)a child within the meaning of the Youth Justice Act 1992; or

(b)a Childrens Court;

except to the extent allowed by the Youth Justice Act 1992.”

1. The Youth Justice Act 1992 provides a code for dealing with children who have or are alleged to have committed offences (see s 2 of the Act). Part 7 of the Act deals with the sentencing of children. Section 149 provides:

“149 Jurisdiction to sentence child exclusive

(1)A court that sentences a child for an offence must sentence the child under this part.

(2)Subsection (1) applies despite any other Act or law.”

1. It is clear that the Youth Justice Act 1992 is designed to provide a comprehensive code for sentencing and dealing with children. The Act is littered with examples where the Act specifically endorses the application of other Acts to children. For example the Bail Act 1980 is said to apply (s 47), Justices Act 1886 is said to apply in part (s10, s 42) and those parts are specified, the Mental Health Act 2016 is said to apply; (s 170). The sentencing principles at s 150 of the Act states the factors to which the court must have regard. This includes the general principles applying to sentencing of all persons but then goes on to list special considerations relating to children. It would seem that those factors alone would speak against mandatory sentencing being appropriate in this Court unless specifically stated. Where mandatory sentencing is applicable to a child it is stated specifically in the Act. This can be seen in the graffiti removal orders (Part 7) which mirror provisions in the Penalties and Sentences Act 1992 (Part 5A). This leads to an inference that there is a positive requirement in the Act to state when other acts or other provisions apply. Therefore if the mandatory provisions in relation to violence whilst intoxicated in public places were designed to apply to the Youth Justice Act 1992 they would also have been mirrored in the Youth Justice Act 1992 in a way similar to the graffiti removal provisions.

1. Section 155 of the Youth Justice Act 1992 states:

“A court that sentences the child for an offence—

(a)must disregard a requirement under any other Act that an amount of money or term of imprisonment must be the minimum penalty for the offence; and

(b)must take a requirement under any other Act that an amount of money or term of imprisonment must be the only penalty for the offence as providing instead that the amount or term is the maximum penalty for the offence.”

It is true, as suggested by the Crown, that this does not include community service but it does not mean that because it does not include it that the mandatory provisions apply.  In my view unless specifically stated, the Youth Justice Act 1992 is the code for sentencing children in this State and accordingly it cannot be suggested that the mandatory provisions under the Penalties and Sentences Act 1992 apply in this case.

1. Accordingly the sentence imposed in relation to obstruct assault police is set aside and instead the applicant is reprimanded on both charges.