MLN v The Queen - [2018] QChC 32

CHILDRENS COURT OF QUEENSLAND

CITATION:

MLN v The Queen [2018] QChC 32

PARTIES:

MLN

(applicant)

v

The Queen

(respondent)

FILE NO/S:

230/2018

DIVISION:

PROCEEDING:

Sentence review

ORIGINATING COURT:

Rockhampton Childrens Court

DELIVERED ON:

13 September 2018 (delivered ex tempore)

DELIVERED AT:

Brisbane Childrens Court

HEARING DATE:

13 September 2018

JUDGE:

Dearden DCJ

ORDER:

1.   Application for sentence review granted;

2.   Set aside the sentence imposed by the learned Childrens Court magistrate on 3 July 2018;

3.   Pursuant to section 162(1) that without making a sentence order, the applicant be referred to a restorative justice process in respect of the charges the subject of the application for sentence review.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES - application for sentence review – where the applicant’s counsel submitted for a combination of a restorative justice order and a probation order – where the learned Childrens Court magistrate was not prepared to consider restorative justice generally – where the learned magistrate unreasonably constrained the exercise of the learned magistrate’s sentencing discretion

COUNSEL:

D Law for the applicant

S Sherry for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Office of the Director of Public Prosecutions for the respondent

This is an application for sentence review by the applicant, MLN, in respect of the following charges:

1. enter premises and commit indictable offence by break (16/12/17);

2. trespass (22/2/18);

3. trespass (1/3/18);

4. wilful damage (6/3/18);

5. trespass (9/3/18);

6. trespass (9/3/18);

7. obstruct police officer in performance of duties (10/3/18);

8. unregulated, high-risk activities (19/3/18);

9. common assault (1/5/18);

10. unlawful use of a motor vehicle (1/5/18); and

11. wilful damage (1/7/18).

The applicant was sentenced at the Rockhampton Childrens Court on 3 July 2018, before the learned Childrens Court magistrate to a six-month probation order, combined with 30 hours of community service, and no convictions were recorded. At the time of sentence, the applicant had a single matter on his criminal history: two matters but one appearance; a stealing and a wilful damage which occurred, respectively, on the 31^st of December 2017 and the 4^th of December 2017, for which he was dealt with in the Yeppoon Childrens Court on the 15 February 2018, with no conviction recorded and a reprimand. The application for review was filed on 30 July 2018.

The circumstances of the offending are briefly summarised by the applicant’s counsel, Mr Gill, at paragraph 7 of the applicant’s outline (exhibit 2), and, for convenience, I’ll read those into the record:

· (1) enter premises and commit indictable offence by break (16/12/17), the complainant was a business. The child and two accomplices forced entry by smashing a glass panel and a door stop. Once inside, they ransacked the premises and stole bags of lollies. The child made full admissions to police in an electronic record of interview;

· (2) trespass (22/2/18) – the child was issued with a banning notice from [indistinct] the Yeppoon Shopping Centre, which was enforceable until 12/2/19. It was reported…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MLN v The Queen

Details

AGLC: MLN v The Queen [2018] QChC 32
Case: [2018] QChC 32
Decision Date: 13 September 2018 (delivered ex tempore)

CaseChat Overview and Summary

The matter before the court was an application for sentence review by the applicant, MLN, against a sentence imposed by the Children’s Court magistrate. The dispute centred around the nature and appropriateness of the sentence given to the applicant by the magistrate, specifically whether the magistrate unreasonably constrained their discretion when declining to consider a restorative justice order in conjunction with a probation order. The applicant’s counsel argued that a combination of these orders would have been more suitable and beneficial. The court was tasked with determining whether the magistrate had acted within their discretion and whether the sentence was appropriate.

The primary legal issues before the court were whether the Children’s Court magistrate had unreasonably constrained their discretion by refusing to consider a restorative justice order and whether the sentence imposed was just and appropriate under the relevant legislative framework. The court examined the magistrate's approach to sentencing and whether it aligned with the principles set out in the Children, Young Persons and Their Families Act 1997. The court also had to consider if the magistrate’s refusal to entertain a restorative justice order was justified.

In determining the application, the court held that the magistrate had unreasonably constrained their discretion by refusing to consider a restorative justice order generally. The court found that the magistrate’s approach was not in line with the statutory objectives of the Children, Young Persons and Their Families Act 1997, which emphasise rehabilitation and reintegration into society. Consequently, the application for sentence review was granted. The court set aside the sentence imposed by the magistrate and, in lieu of a new sentence, referred the applicant to a restorative justice process regarding the charges. This decision ensured that the applicant would have an opportunity to engage in a process that aligned with the rehabilitative aims of juvenile sentencing.

Orders

Orders of the court

1. Application for sentence review granted;

2. Set aside the sentence imposed by the learned Childrens Court magistrate on 3 July 2018;

3. Pursuant to section 162(1) that without making a sentence order, the applicant be referred to a restorative justice process in respect of the charges the subject of the application for sentence review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	MLN v The Queen [2018] QChC 32
PARTIES:	MLN (applicant) v The Queen (respondent)
FILE NO/S:	230/2018
DIVISION:
PROCEEDING:	Sentence review
ORIGINATING COURT:	Rockhampton Childrens Court
DELIVERED ON:	13 September 2018 (delivered ex tempore)
DELIVERED AT:	Brisbane Childrens Court
HEARING DATE:	13 September 2018
JUDGE:	Dearden DCJ
ORDER:	1. Application for sentence review granted; 2. Set aside the sentence imposed by the learned Childrens Court magistrate on 3 July 2018; 3. Pursuant to section 162(1) that without making a sentence order, the applicant be referred to a restorative justice process in respect of the charges the subject of the application for sentence review.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES - application for sentence review – where the applicant’s counsel submitted for a combination of a restorative justice order and a probation order – where the learned Childrens Court magistrate was not prepared to consider restorative justice generally – where the learned magistrate unreasonably constrained the exercise of the learned magistrate’s sentencing discretion
COUNSEL:	D Law for the applicant S Sherry for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Office of the Director of Public Prosecutions for the respondent