MAL v The Queen

[2013] QChC 16

CHILDRENS COURT OF QUEENSLAND

CITATION:

MAL  v The Queen [2013] QChC 16

PARTIES:

MAL

(Applicant)

v

The Queen

(Respondent)

FILE NO/S:

CCJ 84/13

DIVISION:

Criminal

PROCEEDING:

Sentence Reviews

ORIGINATING COURT:

Magistrates Court of Stanthorpe

DELIVERED ON:

19 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

19 April 2013

JUDGE:

Farr SC DCJ

ORDER:

The application is allowed.

The order of the Magistrates Court imposed on 18 March 2013 is discharged. 

Order that the applicant be sentenced to detention for six months for all offences other than the unlicensed driving offence and the receiving offence.

Order that the applicant be sentenced to two months detention for the unlicensed driving offence.

All periods of detention are to be suspended and the applicant is released from detention in accordance with the conditional release order that has been prepared.  The conditional release period will be a period of three months.

In respect of the charge of receiving, the plea of guilty entered on 18 March 2013 is set aside and the charge is dismissed.

The order that convictions be recorded shall remain.

CATCHWORDS:

APPLICATION FOR SENTENCE REVIEW – Childrens Court of Queensland – Youth Justice Act 1992 (Qld) – section 119 – section 121 – where applicant sentenced to period of detention – where offences committed during the currency of a probation order and a community service order – where offences also committed in breach of a second community service order – where second community service order was discharged by Magistrate at first instance – where applicant resentenced at hearing of these matters – where resentencing forms part of application for review – where detention was appropriate in all the circumstances – where an appropriate matter to order conditional release – where Magistrate was prevented from making the conditional release order by applicant’s refusal to consent – where reliance on juvenile’s views inconsistent with goals of Youth Justice Act – where no error on part of Magistrate – where still appropriate to intervene and vary the sentence of the court below

SOLICITORS:

D Law for the applicant

M P LeGrand for the respondent

HIS HONOUR: This is an application for sentence review pursuant to sections 119 and 121 of the Youth Justice Act of 1992.

The applicant seeks a review of a sentence order made by the Stanthorpe Children’s Court Magistrate on 18 March this year. 

On that date, he was sentenced in relation to one count of common assault, one count of commit public nuisance, one count of using a carriage service to menace, one count of bringing stolen goods into Queensland, one count of receiving and six counts of fraud.  He was also convicted of one count of riding a bicycle without a helmet, but that does not form part of this application. 

For those offences he was sentenced to six months detention.  Those offences were committed during the currency of an 18 month probation order and an 80 hour community service order which had been imposed on 12 November last year.

They were also committed in breach of a 50 hour community service order that had been imposed on 16 July 2012 in the same Court.  It was originally imposed for one offence of unlicensed driving and one offence of committing a public nuisance.

The order of community service was discharged by the Magistrate at the hearing that these matters arise from, and he re-sentenced the applicant in relation to the committing a public nuisance offence to six months detention, and two months detention for the unlicensed driving, and they form part of the review application before me.

To properly understand the context of his offending behaviour, I need to briefly place the facts relevant to most of the offences on the record. 

In relation to the common assault, the complainant was in a vehicle that was driving around the central business district of Stanthorpe and, as the car drove past the applicant, the applicant yelled abuse at the vehicle.  After the car made another

circuit, the applicant squirted detergent through the window which landed on the complainant. 

When police were called as a consequence of that incident, the applicant was abusive and swore, and that behaviour constitutes the public nuisance offence.

The complainant in that matter subsequently received an abusive and threatening message on Facebook from the applicant, and that behaviour constitutes the use of the carriage service to menace offence.

Insofar as the charge of bringing stolen goods into Queensland, evidence revealed that a Visa card had been stolen from a vehicle parked near Tenterfield in New South Wales, and the applicant was given that card shortly after that theft and brought it into Queensland. 

The receiving charge relates to that same factual circumstance.  That card was then used to purchase some foodstuffs, some chocolate milk at a supermarket, $76 worth of goods on another occasion at the supermarket, and then some petrol on three separate occasions at a service station and, finally, some food at a McDonald’s store.

In assessing the facts that have been placed before the Magistrate, I have noted that the receiving charge relating to the stolen Visa card appears to me to be an offence that was not committed in the State of Queensland.  The facts that were placed before the Magistrate clearly identified the offence as having taken place in New South Wales and, as I’ve indicated, in fact, the applicant was charged and convicted of bringing that stolen Visa card into Queensland.  Hence, there is no dispute that he received it in New South Wales. 

Notwithstanding his entry of a plea of guilty to that charge, quite clearly it is a charge that was not committed in this - an offence that was not committed in this State, and that plea of guilty should not have been accepted in the circumstances.

The applicant was 16 years of age at the time that he committed those offences, and at that time would ordinarily be resident with his mother. 

He has a criminal history, although I note in looking at his history that the nature of his offending behaviour doesn’t seem to be escalating in seriousness.  In fact, perhaps the most serious of the charges that he has committed were those which occurred back in 2009 when he was much younger. 

At that time, he was convicted of assaulting police, attempting to break and enter into dwellings, break and enter with intent to commit indictable offences, obstructing police officers, and wilful damage and destruction charges. 

Since that time, he’s been convicted of trespassing and public nuisance offences, although I note that in June 2011 he was convicted of entering a dwelling and committing an indictable offence and entering a dwelling with intent, and then, in November of 2012, entering a dwelling and committing an indictable offence. 

He has been the subject of numerous community service and/or probation orders during the course of his offending history.  He’s been the recipient of no conviction being recorded throughout that criminal history. 

Upon reading the transcript from the Court below, it is immediately obvious that the Magistrate was of the view that a six month term of detention was appropriate in all the circumstances, give his criminal history, but that this would have been an appropriate matter in which to order conditional release.

The Magistrate was prevented from making such an order, however, as a consequence of the applicant himself refusing to comply and refusing to consent to such an order.  He was given a number of opportunities to indicate that he would comply with the requirements of a conditional release order, but demonstrated an immature, foolish attitude and gave the impression of being someone who considered himself to be quite tough and thought that he would be able to handle detention without a problem. 

It’s been submitted that, in fact, he was the recipient of some advice from either friends and/or family that he would have no difficulty with detention. 

The Magistrate’s hands were subsequently tied as further community based orders were inappropriate and he would not consent to them in any event, leaving the Magistrate with no option other than to impose a period of actual detention. 

The applicant has now spent 32 days in detention since that order was made, and his experience of detention does not seem to have matched his anticipation of that, which he might have considered to be an adventure. 

He has now indicated that he wishes to be released from detention as early as he possibly can, that his experience was not what he anticipated, that he has not enjoyed his term in detention at all, and that he has realised the foolishness of the attitude that he demonstrated to the Magistrate at the sentence proceedings.

As I indicated to counsel, the Court should be, I think, very careful in not accepting the position that this young child was given his opportunity and that he did not take it, and therefore, he should be made to serve the sentence that was imposed. 

To do so would place a reliance upon a juvenile’s own skewed views, and as I have already indicated, and was obvious to the prosecutor, defence counsel and the Magistrate in the Court below, it was not necessarily the most appropriate order in all the circumstances. 

To now rely upon that skewed view would also, in my view, be somewhat inconsistent with the goals of the Youth Justice Act which has, of course, as its primary goal the rehabilitation of juvenile offenders.

Given that he has served 32 days in detention, in my view this is a matter that warrants review and intervention by this Court.  I am quick to indicate that there was no error on the part of the Magistrate in the Court below.  His Honour imposed a

sentence that was the only sentence in reality that was open to him, due solely to the attitude of the applicant himself. 

Given that change in attitude, given the fact that he has spent 32 days in detention, given the relatively minor nature of the offending behaviour, there is some hope that he will learn from this experience and try and make something of his life. 

I note that he will also still be the subject of probation and community service orders upon his release from detention, so he’s going to have considerable supervision for a period of time.

Now, as I’ve indicated, there is no error on the part of the Magistrate, but in a review application under this legislation, the applicant does not need to demonstrate any error before this Court might consider it appropriate to intervene. 

A review hearing is a re-hearing on the merits which must be conducted expeditiously and with as little formality as possible. 

I should indicate as well that I’ve been advised that the applicant now understands the importance of complying with his orders and has been given very strong advice that he will be returned to custody if he fails to follow through on his newfound resolve to comply with orders and to cooperate with Youth Justice. He should make no mistake in that regard.  The advice that he’s been given is quite correct. 

For all those reasons, however, it is my view that this is an appropriate matter to intervene and to vary the sentence of the Court below. 

So I discharge the order of the learned Magistrate that was imposed on 18 March 2013, and I order that the applicant be sentenced to detention for six months on each of those charges that I referred to, including the offence of unlicensed driving.  I should say six months detention for all offences, other than for the unlicensed driving offence. 

For the unlicensed driving offence, he should be sentenced to two months detention, but all periods of detention are to be suspended and that he be released from detention in accordance with the conditional release order that has been prepared.

The conditional release order shall contain the requirements that he participate as directed by the Chief Executive in the conditional release program that has been prepared for him, and that during the period of that order he must abstain from violation of the law, comply with every reasonable direction of the Chief Executive, report and receive visits as directed by the Chief Executive, notify the Chief Executive within two business days of any change of address, employment or school, and not leave or stay out of Queensland without the prior approval of the Chief Executive. 

The conditional release here will be the maximum allowable; that is, a period of three months.

Submissions have also been received to the effect that no convictions should have been recorded and that the Magistrate was in error in the recording of convictions for these offences.  Given his criminal history and the many opportunities that he’s been given in the past, however, in my view, there was no error on the part of the Magistrate in the Court below, and that this was a most appropriate matter in which that convictions should have been recorded against him.  So–the recording of those convictions will remain.

...

Insofar as the charge of receiving is concerned, the plea of guilty that was entered is set aside and that charge is dismissed.