MAS v Director of Public Prosecutions

[2021] QChC 19

CHILDRENS COURT OF QUEENSLAND

CITATION:

MAS v Director of Public Prosecutions [2021] QChC 19

PARTIES:

MAS
(Applicant)

v

DIRECTOR OF PUBLIC PROSECUTIONS
(Respondent)

FILE NO/S:

92 of 2021

DIVISION:

Childrens Court of Queensland

PROCEEDING:

Sentence Review Application

ORIGINATING COURT:

Townsville Childrens Magistrates Court

DELIVERED ON:

26 May 2021 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2021

JUDGE:

Dearden DCJ

ORDER:

1.   Application granted;

2.   Discharge the sentence order of restorative justice referral made on 12 February 2021; 

3.   Substitute and order that the child be of good behaviour for a period of six months

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE –SENTENCING JUVENILES – where the child was sentenced to a restorative justice order was made with no conviction recorded for a single offence of unlawful use of a motor vehicle – where the child was 13 at the time of the offence – where the child had a minor criminal history – where the child had spent 6 days in custody – whether the sentence imposed was excessive in the circumstances

Youth Justice Act 1992 (Qld)

COUNSEL:

K Hales for the applicant

MJ Grundy for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Office of the Director of Public Prosecutions for the respondent

Introduction

1. This is an application for sentence review by the child, MAS, matter in respect of a single offence of unlawful use of a motor vehicle occurring on 7 February 2021.  The child was dealt with at the Townsville Children’s Court on 12 February 2021, a restorative justice order was made with no conviction recorded.  The application for review was filed on 10 March 2021, and the basis of it is that it is submitted that, “In all the circumstances of the matter, the sentence was excessive.” (application for sentence review filed 10 March 2021).

Background of the matter

1. The background to the matter is quite simple.  At about 1 am on the 7th of February police received information from a witness that there was a stolen vehicle driving in her street.  The occupants of the stolen vehicle were contacting the witness’s children.  The witness was familiar with the occupants of the vehicle.  The defendant child was a passenger in the car (exhibit 1 – outline of submissions on behalf of the child, paragraph 6.)

1. The antecedents of the child were placed very briefly before the learned sentencing magistrate.  She was born on 30 May 2007 (and was therefore 13 at the time), is Aboriginal, and critically for the purposes of this application, had spent six days in custody from 7-12 February 2021, and had two minor matters on her criminal history, a trespass for which she had received a court diversion referral and a reprimand for charges of burglary and unlawful use.

1. The submission made before the learned magistrate by the applicant’s legal representative was, given the time she had served in pre-sentence custody, that she should be placed on a “good behaviour bond”  (more properly, a good behaviour order).

1. The magistrate, understandably, was concerned about the applicant’s involvement as the passenger in a stolen vehicle and the consequences both for the child and of course the owner of the vehicle.

1. The magistrate was also concerned about the effect of the child’s offending in a small country town, and in placing weight on the benefits of a restorative justice order, in the applicant’s submission, failed to place sufficient weigh on the requirement for proportionality.  The child was a passenger in a vehicle which was not at the time being driven dangerously nor was there any evidence of damage, in particular the six days spent in pre-sentence custody, and the other relevant matters including the young age, minimal criminal history and early plea of guilty.

Discussion

1. Although it is acknowledged that there are benefits from a restorative justice process taking place, those benefits of course being stressed not only by the magistrate but by the respondent in these proceedings, in context (although ordinarily it might be considered an appropriate order), the submission is made that the restorative justice order is excessive in the light of the pre-sentence custody.

1. Ultimately, although this is a finely balanced matter, and I acknowledge the issues raised by the respondent about the desirability for a restorative justice process, the effect of that (which requires supervision for potentially some significant period until the conference takes place), is in the context of the pre-sentence custody in particular, excessive.  Accordingly, it is appropriate to grant the application.

Orders

1. I make the following orders:

(1)   Application granted;

(2)   Discharge the sentence order of restorative justice referral made on 12 February 2021; 

(3)   Substitute an order that the child be of good behaviour for a period of six months (YJA s.175(1)(b)).