MEA v Director of Public Prosecutions

[2021] QChC 21

CHILDRENS COURT OF QUEENSLAND

CITATION:

MEA v Director of Public Prosecutions [2021] QChC 21

PARTIES:

MEA
(Applicant)

v

DIRECTOR OF PUBLIC PROSECUTIONS
(Respondent)

FILE NO/S:

124 of 2021

DIVISION:

Childrens Court of Queensland

PROCEEDING:

Sentence Review Application

ORIGINATING COURT:

Mossman Childrens Magistrate Court

DELIVERED ON:

25 May 2021 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

25 May 2021

JUDGE:

Dearden DCJ

ORDER:

1.   Application for sentence review granted.

2.   Discharge the orders imposed in the Mossman Childrens Court on 10 March 2021.

3.   Resentence the applicant to a period of four months probation.

4.   Order that no convictions be recorded.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE –SENTENCING JUVENILES – where the child was sentenced to 100 hours of unpaid community service and 12 months probation for several offences of wilful damage, stealing and common assault – where the child was 14 years old – where the child has no criminal history – where the child is indigenous, is disconnected from family and community, is in the care of the Department of Child Safety and has a history of substance misuse – where the child has been voluntarily engaging with a alcohol drug intervention outcomes service –– where the child has completed some 15 hours of the community service order – whether the sentence imposed was excessive in the circumstances

Youth Justice Act 1992 (Qld) ss 118, 122, 123, 150,

COUNSEL:

C Anderson-James for the applicant

I Derrington 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 filed 1 April 2021 seeking review of the sentence imposed by the learned magistrate at the Mossman Childrens Court on 10 March 2021 in respect of the following charges:-

6 x wilful damage

1 x stealing

3 x common assault

1. The sentence imposed was 100 hours of unpaid community service and 12 months probation for all offences, with no convictions recorded.

The law

1. The power of this court to review the sentence order of a Childrens Court magistrate arises under Youth Justice Act 1992 (Qld) (‘YJA’) s 118. That review is a rehearing on the merits (YJA s 122(1)) without the necessity to demonstrate error by a sentencing magistrate (although that of course may be present in any given case). The sentence review must be conducted expeditiously and with as little formality as possible and this court can have regard to the record of the Childrens Court proceeding and any further submissions in evidence by way of affidavit or otherwise. The powers on reviewing a sentence order are set out in YJA s 123(1).

1. The court is, of course, bound by the sentencing principles of YJA s 150.

Background

1. The circumstances of the offending are summarised helpfully at exhibit 1, paragraph 8. 

1. The wilful damage on 24 February 2021 occurred at the child’s placement (she was being supervised by Department of Child Safety youth workers at the time);  the common assault on 16/1/2021 was using a piece of a broken plastic plate to threaten a Youth Justice worker;  the stealing (14/1/2021) was eight deodorant cans from an IGA;  the wilful damage on 11/1/2021 was a cupboard in her placement;  the wilful damage on 28/11/2020 was the front glass door of a liquor store;  the wilful damage on 2/3/2021 was damage in a cabin at a caravan park where she was residing with youth workers;  the common assault was on 25/2/2021 was of a youth worker,  as was the common assault also on the same day in a different situation, in a motor vehicle;  and the wilful damages which also occur on 25/2/2021 were respectively the opening of a lemonade bottle and deliberately pouring it on the front passenger seat of a rental car, and kicking a bathroom door in the residence where she was under supervision subject to a care order.

1. The circumstances of the applicant are profoundly troubling.  She is an indigenous child; has been in the care of the Department of Child Safety since she was 18 months old (she is now 14); is disconnected from family and community, which is a clear source of distress; notably two of the wilful damage charges occurring at her  residential placement after she was told she couldn’t speak to her family; she has a history of substance misuse and chroming; and had been detoxing during the offending periods. 

1. The child has been voluntarily engaging with a member of the remote alcohol drug intervention outcomes service operated under the umbrella of the Mossman Elders Justice Group where she is “slowly but surely” addressing her identified needs, and it appears that in the circumstances of this background and these antecedents, that the learned sentencing magistrate has imposed a sentence (at the top end of both the applicable range for probation and for community service orders), which is completely disproportionate to the gravity of the offences, particularly in their context of a troubled child, subject to a placement with the Department of Child Safety who is struggling with anger, frustration, detoxing, has no criminal history and, conversely, is starting to engage with support, particularly a culturally appropriate mode of support through the community justice group. 

1. I note that the respondent accepts that the sentence imposed was excessive, but stresses that any resentence of the child should involve a community-based order, albeit at a significantly lower level than that imposed at first instance. 

Conclusion

1. In the circumstances of this child, I do not accept that a resentence to a good behaviour order is appropriate, but rather a significantly shorter period of probation which will enable supervision of the child and an overview of what seems to be quite good progress that’s been made recently, both leading up to the sentence and subsequently.  In particular, I am advised in oral submissions by the respondent that in the period in which the child was on probation, she reported as required on all occasions and completed some 15 hours of the community service order.

1. In those circumstances, I accept that a short period of probation is the appropriate mechanism in resentencing the child to manage dealing with the issue proportionality while at the same time providing what might bluntly be called an insurance policy to supervise the child over a relatively short period as she hopefully finds better ways of dealing with what are clear and obvious concerns arising from her circumstances. 

Orders

1. I make the following orders:-

(1)   Application for sentence review granted.

(2)   Discharge the orders imposed in the Mossman Childrens Court on 10 March 2021.

(3)   Resentence the applicant to a period of four months probation.

(4)   Order that no convictions be recorded.