MA v Director of Public Prosecutions

[2025] QChC 4

CHILDRENS COURT OF QUEENSLAND

CITATION:

MA v Director of Public Prosecutions [2025] QChC 4

PARTIES:

MA

(applicant)

v
DIRECTOR OF PUBLIC PROSECUTIONS

(respondent)

FILE NO/S:

48/25

DIVISION:

Childrens Court

PROCEEDING:

Sentence review

ORIGINATING COURT:

Childrens Court of Queensland

DELIVERED ON:

30 May 2025

DELIVERED AT:

Brisbane

HEARING DATE:

21 May 2025

JUDGE:

Richards DCJ

ORDER:

1. That the orders made on 13 February 2025 be set aside;

2. That in respect of the offences of possessing anything for use in the commission of a crime defined in Part 2; fail to take reasonable care and precautions in respect of syringe or needle; offence to buy or possess Schedule 4 or Schedule 8 medicines or hazardous poisons; driving of motor vehicle without a licence (never held licence); breach of bail condition; obstruct police officer; failure to appear in accordance with an undertaking; and unlawful possession of suspected stolen property, the applicant be reprimanded;

3. That in respect of the remaining offences, the applicant be admitted to probation for a period of 12 months, with the special conditions that she undergo drug and alcohol counselling and/or rehabilitation as directed, and abstain from using drugs during the period of the order;

4. That the applicant be disqualified from holding or obtaining a driver’s license for a period of three months.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – SENTENCE REVIEW – where the applicant was sentenced for 24 offences to 15 months probation, 100 hours community service and a three-month license disqualification – where no convictions were recorded – where one offence was punishable by fine only – where the applicant spent 34 days in pre-sentence custody, including 14 days in watchhouses – where the offending occurred while on probation and bail – where the applicant entered early pleas of guilty – whether the magistrate failed to give sufficient weight to pre-sentence custody and mitigating factors – whether the sentence imposed was manifestly excessive – whether the combination of probation and community service appropriately reflected the totality of the offending and time already served – whether orders should be set aside and substituted with an alternative order

COUNSEL:

SOLICITORS:

T Finter of Legal Aid Queensland for the applicant
B Hayes of the Office of the Director of Public Prosecutions for the respondent
Ms Aspinall for Youth Justice

Introduction

1. The applicant was sentenced on 13 February 2025 in the Gympie Childrens Court in relation to 24 separate offences. For the offence of enter a dwelling and commit an indictable offence committed on 21 December 2024, she was sentenced to 15 months probation, with a special condition that she undertake drug counselling as directed and abstain from using drugs for the duration of the order. For the remaining offences, she was sentenced to 100 hours community service. In relation to two offences of driving a motor vehicle without a driver licence (never held licence), she was disqualified from holding or obtaining a drivers license for three months. No convictions were recorded.

2. She had one previous entry in her criminal history where she was sentenced to 4 months probation for a number of property, drug and breach offences.

   The offences

3. The new offences primarily consisted of drug and property offences. The facts of those offences are as follows:

   (a)On 9 January 2024, the complainant was a passenger in a stolen car that her boyfriend was driving.

   (b)On 3 June 2024, she was found in possession of a child’s motorbike that had been previously stolen.

   (c)On 17 June 2024, she threatened her carer at her residential care home with a knife.

   (d)On 9 July 2024, she was in possession of 0.9g of “cut” used to cut drugs.

   (e)On 28 July 2024, she was in possession of four syringes.

   (f)On 8 August 2024, she failed to appear in court.

   (g)On 2 December 2024, she was a passenger in a stolen car.

   (h)On 14 December 2024, she was found in possession of 0.8g of methamphetamine, 1.2g of cannabis in clip sealed bags and a glass pipe used in connection with the drug, 3 tablets of mirtazapine and syringes that had not been disposed of properly.

   (i)On 21 December 2024, she was again found in possession of used syringes. She had broken into a house and stolen car keys. She then stole the car connected to that house. In the back of that car, there were tools and a scooter and they were never recovered. She was also charged with possession of tainted property and two charges of unlicensed driving.

   (j)On 8 January 2025, she refused to give the police access to her phone despite a court order and she was in possession of cannabis.

   (k)Between 13 January and 16 January, she breached her bail undertaking.

   (l)On 16 January, she again breached her bail undertaking.

   (m)On 17 January, she obstructed police by refusing to go into a watchhouse cell.

4. She entered early pleas of guilty. She was in the care of the Department of Child Safety (the Department) and had been since she was a very young child. She had a substance abuse problem: she started smoking marijuana at the age of 16 and had progressed to injecting methamphetamine in the last few months. She was homeless for four months over the period of the offending, and partially living with her boyfriend who had committed offences with her. Despite being in the care of the Department, she had been ejected from her residence because of her substance abuse problem.

5. At the time of sentence, the applicant had spent 34 days in pre-sentence custody, and 14 days of that time had been spent in watchhouses. It was her first time in detention, and she found it particularly difficult. She was determined not to end up in the same situation as her parents who had spent repeated periods of time in custody. It is accepted that the applicant’s time on remand in watchhouses would have been more onerous on the applicant than if she had been remanded in a Youth Detention Centre, and therefore that time in custody should have been given significant weight.

6. The magistrate, in giving her reasons, indicated that one of the offences was committed whilst on probation (the offence for which she was a passenger in a stolen car), and other offences were committed whilst on bail. Her Honour noted that she had been a child in care of the Department since she was a baby and her parents had been in and out of custody during that time, and that her time in custody had been a wake-up call which had encouraged a desire to improve her life. Her Honour also noted that the offence of enter a dwelling with intent was committed after the increase in maximum penalties. She characterised the offence as serious but reduced the period of probation to 15 months and ordered 100 hours of unpaid community service.

7. One of the offences the magistrate included in the 100 hour community service order was an offence of buying or possessing Schedule 4 (S4) or Schedule 8 (S8) medicines or hazardous poisons, which was a fine only offence. Section 175(2) of the Youth Justice Act 1992 (Qld) provides that probation and community service orders can only be made in relation to offences for which an adult would be liable to imprisonment. It is accepted by the Crown that the sentence in relation to that offence must be overturned.

8. It is submitted on behalf of the applicant that the magistrate did not give sufficient weight to the 34 days spent in custody (including the 14 days spent in the watchhouse), together with the plea of guilty and cooperation with the administration of justice. The applicant was a young offender who had only ever been subject to one previous court order and she had spent almost five weeks in pre-sentence custody. She had a disadvantaged upbringing; she was homeless for much of the offending at a time when she was in the care of the state. The majority of her offending was drug related and, while the offending in December was serious, it was an isolated offence.

9. The Crown submits that the sentence was appropriate given the offending was over a number of months and that it showed an escalation in seriousness. It was submitted that the reduction in the period of probation from 18 to 15 months justified the additional order of community service.

10. I accept the submission that the combination of probation and community service orders does not sufficiently recognise the pre-sentence custody served by the applicant. The time spent in custody, particularly the time spent in the unsuitable confines of the watchhouse, meant that the sentence should have been significantly ameliorated. Accordingly, it is appropriate to set aside the orders made on 13 February 2025 and substitute the following:  in relation to the offences of possessing anything for use in the commission of a crime defined in Part 2; fail to take reasonable care and precautions in respect of syringe or needle; offence to buy or possess S4 or S8 medicines or hazardous poisons; driving of motor vehicle without a licence (never held licence); breach of bail condition; obstruct police officer; failure to appear in accordance with an undertaking; an unlawful possession of suspected stolen property, the applicant is formally reprimanded. In relation to the remaining offences, the applicant is admitted to probation for a period of 12 months, with the special conditions that she undergo drug and alcohol counselling and/or rehabilitation as directed, and that she abstain from drug use throughout the duration of the order. The applicant is disqualified from holding or obtaining a license for a period of three months.