LAJ v. The Queen

[2007] QDC 257

CHILDRENS COURT OF QUEENSLAND

CITATION:

LAJ v Crown [2007] QDC 257

PARTIES:

LAJ

(Applicant)

V

CROWN

(Respondent)

FILE NO/S:

35 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 a charge of unlicensed driving – where the applicant was fined $335 and ordered to pay $65.40 costs of Court and allowed 3 months to pay – where the applicant had no traffic history and was in receipt of welfare benefits at the relevant time – whether the sentence imposed was manifestly excessive

Juvenile Justice Act 1992 (Qld) ss 118, 122(1), 122(2), 175(1)(b), 183(2), 190

COUNSEL:

Ms F. Lane 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 LAJ in respect of a sentence imposed in the Beenleigh Childrens Court (Magistrates level) on 3 April 2007 in respect of a charge of unlicensed driving.

The learned sentencing Childrens Court Magistrate fined the applicant the sum of $335, ordered him to pay $65.40 costs of Court and allowed three months to pay.

Background

The applicant was apprehended driving unlicensed on 15 November 2006 at Eagleby.  He was issued with an Infringement Notice in the amount of $335.  When this was not paid within the time allowed he was summonsed to appear in Court.

The Law

A Childrens Court Judge, on application, may review a sentence order made by a Childrens Court Magistrate (JJA s.118). Such a review proceeds by way of a re-hearing on the merits (JJA s.122(1)), and this Court may have regard to the record of proceedings before the Childrens Court Magistrate, as well as further submissions and evidence before this Court (JJA s.122(2)).

Merits

The imposition of a fine (plus Court costs) on a juvenile with no traffic history and in receipt of welfare benefits at the relevant time, indicates, in my view, a failure by the learned Childrens Court Magistrate to take account of the child's capacity to pay a fine (JJA s.190) and the child's personal circumstances at the relevant time.

It is clear, in my view, that the sentencing discretion has miscarried and that the penalty imposed by the learned sentencing Childrens Court Magistrate was manifestly excessive.  The appeal, entirely appropriately, in my view, is not opposed by the Prosecutor, Mr McCarthy, who appears for the respondent.

Order

I order that the penalty imposed by the learned sentencing Childrens Court Magistrate be set aside, and I substitute an order that the applicant child be of good behaviour for a period of six months (JJA s.175(1)(b)).

No conviction is recorded (JJA s.183(2)).

Mrs Lane, I will accept an undertaking by you to explain the consequences of a good behaviour order given that your client is not present on this review.

MRS LANE:  Thank you, your Honour, I make that undertaking.

HIS HONOUR:  Thank you, Mrs Lane.

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