MIA v Director of Public Prosecutions

[2021] QChC 18

CHILDRENS COURT OF QUEENSLAND

CITATION:

MIA v Director of Public Prosecutions [2021] QChC 18

PARTIES:

MIA
(Applicant)

v

DIRECTOR OF PUBLIC PROSECUTIONS
(Respondent)

FILE NO/S:

148 of 2021

DIVISION:

Childrens Court of Queensland

PROCEEDING:

Sentence Review Application

ORIGINATING COURT:

Innisfail Childrens Magistrates Court

DELIVERED ON:

24 May 2021 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

24 May 2021

JUDGE:

Dearden DCJ

ORDER:

1.   For the first series of offences committed between 4 August 2018 and 1 October 2018, the child should be reprimanded. 

2.   In respect of all other offences, the child be placed on a combined six-month probation order and 50 hours community service order. 

3.   There should be no convictions recorded in respect of any of the offences.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE –SENTENCING JUVENILES – where the child was sentenced to 12 months’ probation following a failed court-diversion referral to restorative justice; 12 months’ probation following non-compliance with a restorative justice order; and 6 months’ detention in respect of various burglary, motor vehicle and property related offences – where the child was aged between 10 and 13 at the time of the offending – where the child had a nine-page juvenile criminal history of similar offending – where the child had a prejudicial background – where the child had spent 131 days in detention at the time of sentence – where the applicant applies for an extension of time – where the respondent concedes that the sentence imposed was excessive – whether the learned magistrate imposed a sentence of detention without considering other appropriate orders – whether the sentence imposed was excessive in the circumstances

Youth Justice Act 1992 (Qld) ss 2, 119, 118, 150

R v MDD [2019] QCA 197

COUNSEL:

A Beard for the applicant

T Guazzo 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 in respect of the sentence imposed on the applicant, MIA at the Children’s Court, Innisfail on 5 January 2021. 

1. The application submits that the sentence imposed was excessive as:-

(1) The learned sentencing magistrate failed to comply with section 208 of the Youth Justice Act in articulating why a detention order, being an order of last resort, was the only appropriate order; and

(2)   The learned sentencing magistrate erred in failing to appropriately take in into account the age of the child and the declarable presentence custody that the child was subject to (exhibit 1, para 1).

Sentences imposed

1. The sentences imposed have been helpfully summarised by the Crown in their submissions at paragraph 1 (outline of submissions of the respondent) as follows:-

“Sentences were imposed with three separate bundles of offences:

19 offences committed throughout 2018, when the child was 10 and 11 years old (“2018 offences”).  These offences were returned to the Children’s Court following a failed Court diversion referral to restorative justice.  The applicant did not wish to participate in the restorative justice process.  A sentence of 12 months’ probation with no conviction recorded was imposed.

Three offences committed in April 2020 when the applicant was 12 years old, were also returned to the Children’s Court due to noncompliance with a Court ordered restorative justice order imposed on 23 June 2020 in the Innisfail Children’s Court (the “April 2020” offences).  A sentence of 12 months’ probation with no conviction recorded was also imposed for these offences after the discharge of the original order.

Thirteen offences committed from July to October 2020, when the applicant was 12 and 13 years older (the “late 2020” offences).  A sentence of 6 months’ detention was imposed.  One hundred and thirty-one days in presentence detention were deemed to be time already served under the sentence.”

Application for extension of time

1. I note that the application for review was filed on 14 April 2021, therefore outside the 28-day applicable period for filing an application for sentence review.  The Crown does not oppose an application for an extension of time for making the review and accordingly the time was extended to the time on which the application was filed (14 April 2021) pursuant to Youth Justice Act 1992 (Qld) (‘YJA’) s.119(2).

1. I note from the outset that the respondent the Crown, entirely appropriately in my view, accepts that this application for sentence review should be granted and the only difference between the parties is the order which should be substituted for the sentence of six months’ detention imposed for the late 2020 offences which it is submitted should be discharged.

The law – sentence reviews

1. The relevant law in respect of reviews of sentence orders made by Children’s Court magistrates can be found at YJA s.118. The review is to be conducted as a rehearing on the merits (YJA s.122(1)) and should be conducted expeditiously and with as little formality as possible (YJA s.122(3)). This Court is required to have regard to the record of the proceeding before the Children’s Court magistrate and any further submissions and evidence by way of affidavit or otherwise in this Court (YJA s.122(2)). The court is governed by the objectives and general principles of the YJA (s.2) and the sentencing principles in YJA s.150.

Background

1. The 2018 offences have been summarised in detail, as well as the other offences which have been relevantly described as April 2020 and late 2020 offences in the applicant’s submissions at page 2, paras 2-7.

1. The sentences for which six months’ detention was imposed is a series of sentences commencing on 5 July 2020 (unlawful possession of suspected stolen property), 11 July 2020 (commit public nuisance), 11 July 2020 (attempted wilful damage), 11 July 2020 (wilful damage), 17 July 2020 (burglary and commit indictable offence), 18 July 2020 (burglary and commit indictable offence), 18 July 2020 (unlawful use of a motor vehicle), 18 July (burglary and commit indictable offence), 18 July (unlawful use of a motor vehicle), 20 July 2020 (wilful damage of police property), 20 July 2020 (wilful damage of police property), 15 October 2020 (burglary and commit indictable offence) and October 2020 (unlawful possession of suspected stolen property).

1. The background to this application is helpfully set out in both submissions but for the purpose of this exercise I will briefly adopt the submissions set out by the respondent at paragraphs 12-17 which are as follow:-

“12. The applicant was born on 5 August 2007.  He was 10 and 11 years old at the time of the commission of the 2018 offences and 12 and 13 years old at the time of the commission of the 2020 offences.

13. The applicant’s personal circumstances are helpfully summarised at pages 4 through 7 of the presentence report prepared for the applicant’s sentence at first instance [affidavit of Katie Anne Grother at AAG-5].

14.  By the time of his sentence, the applicant had spent 131 days in detention.  Submissions at the first instance indicated that while incarcerated the applicant engaged in schooling and had received positive reports from his teachers.  The applicant himself said that he had been trying hard at school and that English was his favourite subject.

15. The applicant has a nine-page juvenile criminal history commencing in December 2017.  That history reveals a pattern of similar offending committed consistently by the applicant from the time of his 10th birthday.

16. The applicant has been reprimanded, sentenced to an intensive supervision order, and has then been sentenced to increasing periods of probation.  In June 2020 the applicant was also sentenced to a restorative justice order which returned to Court and was discharged on 5 January 2021.

17. The applicant consistently committed further similar offences throughout his periods of probation and while on bail.  On 3 April 2020, the applicant was sentenced to a period of nine months’ probation.  All of the 2020 offences were committed during that period of probation.  As well as reoffending the applicant failed to comply consistently with the conditions of his probation orders.  Youth Justice advised the sentencing magistrate at the first instance that as of November 2020 the applicant had “reported as directed a total of 19 out of 41 times.  Stephen attended programs a total of one out of nine occasions.””

1. It is clear that the applicant’s personal circumstances are unfortunate and difficult.  As the respondent readily concedes, the applicant has been “exposed to childhood trauma, parental domestic violence and familial substance and alcohol abuse that has significantly impacted his emotional regulation and diminished his ability for consequential thinking.  At the time of the offences, the applicant was not engaged with schooling and was consuming alcohol and smoking cannabis.  The applicant stated that he committed the offences the subject of the presentence report ‘for financial gain in order to obtain more cannabis and alcohol for himself and his peer group [presentence report at page 7].  It was opine that the applicant presented with “pro-criminal attitudes” and the he “does not express adequate remorse and has stated that he is not sorry for the consequence to his victims as a result of his offending behaviour” [presentence report at page 8].

“21. The applicant has previously been sentenced to community-based orders.  His response to this supervision has been poor – the applicant consistently reoffended and failed to comply with his obligations under those orders.  It was submitted that this continued non-compliance made a further period of probation “an inappropriate sentence at first instance.”

Discussion

1. The gravamen of this appeal is that effectively the magistrate has, despite the benefit of a detailed presentence report, taken the view that the child was not willing to participate in a restorative justice order and therefore that would not be ordered, has considered all other available sentences (without reviewing those in detail) and concluded the only appropriate order was an order for detention.

1. Although it is understandable that the learned magistrate was unimpressed, to say the least, with the child’s performance on probation and of course was faced with a child who was not prepared to engage in restorative justice, with a court diversion or otherwise, but the step from that situation to concluding that there was no sentence other than detention that was appropriate or available is non-compliant with YJA s.208 and fails to take account of the observation of Justice Davis in R v MDD [2019] QCA 197, [57] that “it by no means follows that the appropriate order is one of detention simply because a child has been subject to non-custodial orders previously and has reoffended.”

1. As the applicant submits and the respondent accepts, in this particular case the child was very young, relevantly aged 12-13 at the time of the offending the subject of this review, had spent a considerable period in custody (131 days) and despite previous poor performance, and without in my view having appropriately given “credit” for the custodial sentence already served as at that stage, the opportunity of providing a further community-based order (in this matter, it is proposed that that be a combined probation and community service order) was not appropriately considered.

Orders

1. Accordingly, the review should be allowed and the following orders made on re-sentence:-

(1)   For the first series of offences committed between 4 August 2018 and 1 October 2018, the child should be reprimanded. 

(2)   In respect of all other offences, the child be placed on a combined six-month probation order and 50 hours community service order. 

(3)   There should be no convictions recorded in respect of any of the offences.