Lan v Commissioner of Police

[2023] QChC 29

CHILDRENS COURT OF QUEENSLAND

CITATION:

LAN v Commissioner of Police [2023] QChC 29

PARTIES:

LAN

(applicant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO:

436/23

DIVISION:

Childrens Court of Queensland

PROCEEDING:

Sentence review

ORIGINATING COURT:

Beenleigh Childrens Court

DELIVERED ON:

21 November 2023

DELIVERED AT:

Brisbane

HEARING DATE:

1 November 2023

JUDGE:

Richards P

ORDER:

The application is granted. The conditional release order imposed is set aside and in relation to charges 43 to 47 of the sentencing schedule, the child is sentenced to six-months’ probation on the standard conditions pursuant to s 193 of the Youth Justice Act 1992.  No convictions are recorded.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – APPEAL AGAINST SENTENCE – where the child applicant pleaded guilty to enter premises to commit indictable offence, possessing dangerous drugs, 2 counts of wilful damage and attempted unlawful use of motor vehicle – where the child applicant was sentenced to six months’ detention suspended immediately and served by way of conditional release order for six months – where the child applicant was fourteen to fifteen years at the time of the offending with limited criminal history at the time – where the child applicant reported early exposure to extensive and compounding trauma and extensive child protection history – whether a detention order to be served by way of conditional release order was appropriate in all the circumstances – whether the sentence was manifestly excessive

LEGISLATION:

Youth Justice Act 1992

COUNSEL:

B Taylor for the applicant

S Poplawski for the respondent

SOLICITORS:

Tempest Legal for the applicant

Office of the Director of Public Prosecutions for the respondent

Introduction

1. The applicant was sentenced on 1 September 2023 in relation to a large number of offences.  For the majority of those offences, he was formally reprimanded but in relation to five of the charges he was sentenced to six months’ detention, suspended immediately subject to a conditional release order for six months.[1]  [The verdict and judgment record states that the conditional release order is in relation to two charges only, however, the transcript of the sentence makes it clear that this record is incorrect]. The applicant has applied for a review of the conditional release order.

   [1] Sentence remarks of the Magistrate dated 1 September 2023, 1-4.

2. The applicant child first appeared before the Childrens Court on 1 August 2023. On that day, 35 charges that had been the subject of a restorative justice order were returned to the Court for re-sentencing. Additionally, there were 13 new charges which occurred between 22 October 2022 and 25 May 2023.  

3. The child was sentenced to four months’ probation on 21 November 2022 and seven of the fresh offences pre-dated that sentence. The prosecutor submitted that, in relation to the 35 returned charges and the seven new charges that pre-dated the probation order, the child should be reprimanded and he should be sentenced to three months’ probation in relation to the four remaining offences.  The applicant’s representative supported that submission. 

4. The Magistrate was concerned about the extent of the offending and the value of the goods stolen and so ordered a pre-sentence report and adjourned the sentence to 1 September 2023.  By the time the matter returned for sentencing the applicant had been charged with two further breaches of bail and possession of 1.3 grams of cannabis.

Facts

1. He was 16 at the time of sentencing and was 14 and 15 at the time of the majority of the offending.  He had spent eight days remanded in the watchhouse.  Most of the offending before the court occurred before he had accumulated a criminal history and before he was placed on probation for four months. 

2. The pre-sentence report detailed his background.  It was noted that he had early exposure to extensive and compounding trauma, marred by high risk domestic and family violence within the family unit.  The Department had long standing contact with his family and there was an extensive child protection history dating back to 2008.  The concerns were exposure to chronic domestic violence, parental drug use in the home, lack of supervision and basic care needs being provided, lack of appropriate medical intervention and experiences of physical abuse.[2] 

   [2] Pre-sentence Report dated 30 August 2023, 2.

3. The child indicated that his first memory of financial hardship was in 2018.  His mother said that they had spent the years following in survival mode.  There were members of the child’s immediate and extended family who had had contact with both Youth Justice and Corrective Services including episodes of incarceration which, it was suggested, had desensitised him to criminality and engagements with the justice system.  As a result of these incarcerations he, from time to time, took on the role of the oldest male within the home environment.[3] 

   [3] Pre-sentence Report dated 30 August 2023, 2-3.

4. The report noted that for Aboriginal people, gender and hierarchical position is intertwined with culture and is the foundation of Aboriginal identity. His household strongly endorsed these traditional gender roles.[4]  Therefore, as the eldest male in the family he felt he had to step into his father’s shoes.  That role involved intervening in domestic and family violence episodes and providing the family with access to crucial basic needs. 

   [4] Ibid, 3.

5. Although viewed with some scepticism by the learned Magistrate, the applicant maintained that his prime motivation for engaging in the offences was a need to meet his and his family’s concrete basic needs namely regular access to food, maintaining household expenses and clothing himself and siblings.[5]  Because of the family’s previous involvement with the Department of Child Safety, the applicant possessed a view that he could not rely on the Department for practical support without repercussions.  His young age coupled with an immature problem-solving framework it was said, prevented him from accessing prosocial ways to meet his needs.[6]

   [5] Ibid.

   [6] Ibid.

6. Perversely, despite his reluctance to access help through prosocial channels, he saw his offending as a contributing factor to the level of child safety intervention the family was currently experiencing and he felt some responsibility for that position.

7. The applicant is subject to an interim custody order with the Department of Child Safety but self-places with his mother. He and his family are now the subject of multi-agency collaborative panels.  It was submitted at sentence that he was eager to go back to school and he was engaging with indigenous service support officers.[7]

   [7] Ibid, 5.

   The Magistrate’s Decision

8. The Magistrate found that taking into account the child’s criminal history, the value and quantity of the goods taken and his age that he could not agree that a probation order was appropriate for the new offences.  He concluded that the fact that the applicant had breached probation and restorative justice led him to a finding that a period of detention was the only appropriate sentence.  He indicated that he had come very close to ordering a period of actual detention but at the end of the day he decided, in relation to charges 43 to 47, that he would instead order a six-month conditional release order.  He was reprimanded on the remaining charges. 

9. The Magistrate did not consider restorative justice in relation to the new charges.  However, given that the child did not participate in the earlier restorative justice order, the fact that he did not mention it is not particularly indicative of a lack of consideration of restorative justice. Clearly a such an order was not appropriate in this case.

10. The record in relation to the sentence is clearly incorrect.

11. The Magistrate sentenced the child to a conditional release order on charges 43 to 47.  They facts of those offences are:

    (a)On 23 November 2022 the child and others went into Terry White Chemists and removed some perfumes without paying (Enter Premises and commit indictable offence).

    (b)On 24 November 2022 he was found in possession of one gram of cannabis (Possession of dangerous drug).

    (c)On 20 December 2022 he was with three others when he went to a property at Regents Park and pulled some palings off a fence (Wilful Damage).

    (d)On 13 March 2023 the complainant was attempting to deliver papers around 4.00 am.  She pulled up, parked her vehicle left the engine running and went to drop off some papers.  Two youths went to the car and put it in drive when a good Samaritan raced to the front passenger seat and switched the vehicle off (Attempted unlawful use of motor vehicle).

    (e)On 27 April 2023 the child used a pair of scissors to cut open a hobby knife set in plastic packaging valued at $20.  He then used that knife to stab the packaging of numerous clocks and chair cover seats valued at $25 before cutting and stabbing into two bed linen sets valued at $30.  He then exited the store (Wilful Damage).

    Discussion

12. These offences were committed whilst the child was subject to a probation order for attempted stealing, obstruct police, three charges of stealing and two charges for unlawful use of a motor vehicle.

13. It is accepted that the charges were serious.  However, the child was under 16 years of age at the time of offending.  The Magistrate in sentencing the child seems to have taken into account the overall criminality of all of the offences before attaching the conditional release orders to the offences detailed above.

14. It was submitted by the applicant and accepted by the Crown that detention was not the only appropriate or available sentence order in this particular case.  It was placed on the record at the time of the sentence that the child had improved his behaviour and started to comply with his orders. His personal circumstances clearly made compliance with orders difficult. The programs available under the conditional release order were also available under a probation order and the family were now subject to intensive case management.

15. The applicant has completed 28 days of the conditional release order.  He spent eight days in the watchhouse and although he offended between the pre-sentence report being ordered and the sentence, the offending was minor.  That offending shows a de-escalation in his behaviour. 

16. In the circumstances, taking into account his compliance with the conditional release order, the eight days in the watchhouse, the nature of the offending, his early plea and the matters contained in the pre-sentence report, the appropriate sentence instead of a conditional release order is one of six months’ probation.  I understand the child is willing to comply with such an order.

ORDER

1. The application is granted. The conditional release order imposed is set aside and in relation to charges 43 to 47 of the sentencing schedule, the child is sentenced to six-months' probation on the standard conditions pursuant to s 193 of the Youth Justice Act 1992.  No convictions are recorded.