Nicholls v Commissioner of Police
[2014] QChC 5
•22 August 2014
CHILDRENS COURT OF QUEENSLAND
CITATION:
Nicholls v Commissioner of Police [2014] QChC 5
PARTIES:
MARK ANTHONY NICHOLLS
(appellant)v
COMMISSIONER OF POLICE
(respondent)FILE NO/S:
No 29 of 2014
PROCEEDING:
Appeal
ORIGINATING COURT:
Childrens Court, Toowoomba
DELIVERED ON:
22 August 2014
DELIVERED AT:
Ipswich
HEARING DATE:
15 August 2014
JUDGE:
Bradley CCJ
ORDER:
Appeal allowed. Sentence order (except reprimands) made on 24 July 2014 set aside. For each of the offences committed in May 2014, detention orders of 77 days substituted. 77 days of presentence detention declared to have been already served. For the resentence of each of the offences for which the appellant was originally placed on probation, a probation order for 12 months is made. The appellant is to report by 4 pm on 15 August 2014 to the chief executive. No conviction recorded for any offence.
CATCHWORDS:
CRIMINAL LAW – SENTENCE – SENTENCING JUVENILES – SENTENCE APPEAL – where the appellant child pleaded guilty to multiple offences in the Toowoomba Childrens Court – where the appellant was on probation at the time of the offending - where the appellant was sentenced to six months detention and 12 months probation, to serve 70%. – whether sentence was manifestly excessive
Justices Act 1886 (Qld) ss 222, 223
Youth Justice Act 1992 (Qld) s 117
R v Price [1978] Qd R 68
R v Taylor & Napatali [1999] QCA 323
COUNSEL:
S Thackeray, solicitor, for the applicant.
N Needham, counsel, for the respondent.
SOLICITORS:
Aboriginal and Torres Strait Islander Legal Service for the applicant.
Office of the Director of Public Prosecutions Toowoomba for the respondent.
This is an appeal pursuant to s 117 of the Youth Justice Act 1992 (“the Act”) and s 222 of the Justices Act1886 against sentences imposed on the appellant for multiple offences in the Toowoomba Childrens Court on 24 July 2014. Pursuant to s 223 of the Justices Act1886 this appeal is by way of rehearing on the evidence given in the proceedings in the Childrens Court.
On 15 August 2014 in the Childrens Court of Queensland held in Toowoomba, I allowed the appeal and indicated that I would give my reasons for that decision this week.
The appellant child is presently just 13 years of age, having been born on 7 August 2001. He is an Aboriginal youth.
On 27 June 2014 the appellant appeared before the Childrens Court at Toowoomba and pleaded guilty to the following offences:
Date of charge Charge 4/5/14 – 10/5/14 Unlawful use of a motor vehicle 5/5/14 Enter premises with intent to commit an indictable offence 17/5/14 Enter premises and commit indictable offence 17/5/14 Unlawful use of a motor vehicle 17/5/14 Drive without a license 28/5/14 Stealing 28/5/14 Break and enter premises and steal 28/5/14 Enter premises and steal 29/5/14 Burglary and commit indictable offence 29/5/14 Attempt to enter dwelling with intent to commit an indictable offence 29/5/14 Enter dwelling with intent to commit an indictable offence 30/5/14 Wilful damage 30/5/14 Unlawful use of a motor vehicle 30/5/14 Dangerous operation of a vehicle 30/5/14 Unlicensed driving 30/5/14 Use an unregistered vehicle 30/5/14 Drive uninsured vehicle 30/5/14 Fail to wear motorbike helmet
On 17 April 2014 the appellant had been placed on probation for four months and no convictions recorded for the following offences:
Date of charge Charge 23/12/13 Possession of property suspected of being stolen 9/1/14 Wilful damage 9/1/14 Wilful damage 16/1/14 Wilful damage 4/2/14 Break and enter and commit indictable offence 28/2/14 Wilful damage 10/3/14 Trespass 17/3/14 Burglary with intent to commit an indictable offence 17/3/14 Burglary and commit indictable offence 17/3/14 Burglary and commit indictable offence 17/3/14 Burglary and commit indictable offence
When the appellant pleaded guilty to the new offences on 27 June 2014 the probation order was revoked, and when the appellant was sentenced for the new offences on 24 July 2014 he was resentenced for the offences for which he was originally placed on probation in April. On 27 June 2014 a presentence report was ordered, and when the appellant was sentenced on 24 July 2014 a presentence report dated 21 July 2014 was before the Childrens Court Magistrate.
The Childrens Court Magistrate reprimanded the appellant for the offences of driving without a license, using an unregistered motor vehicle, driving in an uninsured vehicle and failing to wear a motorbike helmet. For all of the other offences, including the offences for which the appellant was originally placed on probation, the Childrens Court Magistrate ordered that the appellant be detained for six months and placed on probation for 12 months. It seems apparent this was a combined detention order and probation order. No convictions were recorded. The appellant had already served 55 days in presentence detention. The Childrens Court Magistrate noted that the appellant would serve 70 per cent of the six months detention, which he noted would be a further 70 days.
The appeal is on the ground that the penalty imposed by the Childrens Court Magistrate was excessive.
Facts
The following facts were placed before the Childrens Court Magistrate regarding the offending which took place in May 2014. Between 2:00 pm and 3:00 pm on 5 May 2014 offenders entered the rear yard of an address in O’Quinn Street, Toowoomba. They approached a garden shed, removed four window louvers from the rear of the shed, and climbed through to gain entry. The offenders removed a red Odyssey Pee Wee 70cc quad bike valued at $800 from the shed and took it from the address. On 9 May, as a result of information received, police located the quad bike at a Clark Street, Toowoomba address. An informant told police that the appellant, who was known to her, had come back and forth to her address on numerous occasions with the bike.
On 17 May a group of Aboriginal youths was seen to leave a backyard, pushing two small motorbikes which were kick-started and ridden around a nearby park. Shortly afterwards the appellant was found to be in possession of one of the bikes, which he admitted to stealing. He stated that he and two other youths had used bolt cutters which he had on his person, to release chains from around the bikes before taking them.
On 28 May 2014 a bicycle was taken from a bike rack near the Toowoomba Base Hospital. The appellant during an interview with police on 30 May, told police that he was in the hospital grounds with a friend when they saw the bike. They broke the lock and rode the bike to a Perth Street address where they left it in the front yard.
On 28 May the appellant and another offender broke into a vacant house by opening sash windows. They found three compound bows and approximately 20 arrows which they took with them. At the rear of the property they went into a shed where they located a go-kart. They pushed the go-kart to the front yard but, when they saw it was beyond repair, left it in the yard. The appellant told police that the bow and arrows were left near the railway line near the Toowoomba Hospital. The value of the bows and arrows was $400.
On 29 May 2014, the appellant and another juvenile walked through a property, taking a shortcut. When they looked inside the garage on the property, they saw five high quality mountain bicycles, each valued at between $1,500 and $3,000. The offenders were able to lift the garage roller door high enough for the appellant’s co-offender to get inside. They were also able to access the residence where they located a laptop computer. The two offenders took the five bicycles and the computer. None of the bicycles and the computer were recovered. The value of the bicycles was $11,500 and the computer, $300.
On 29 May, the appellant entered a duplex by smashing a toilet window with a small rock and entering through the window. He opened the freezer door of the fridge in the kitchen and ransacked the lounge room, the main bedroom and the spare bedroom. No property was taken. The appellant also made an attempt to enter the other unit of the duplex.
On 30 May 2014, at about 11:25 am, the appellant entered the rear yard of unit 18, 280 James Street, Toowoomba by kicking in a Colorbond-style fence gate. A BSM ATV 110 quad bike was chained to the underside of the unit. The appellant snapped the brush guard on the quad bike to free it then pushed it out of the yard. The appellant rode the quad bike out into the street. Police were alerted and recognised the appellant as the rider. He was not wearing a helmet. A police officer attempted to intercept the appellant by moving into the path of the quad bike and shouting loudly, “Stop, police”. The appellant accelerated and swerved towards the police officer, causing the police officer to take evasive action to avoid being hit. The appellant was observed by police to drive into the path of oncoming traffic on James Street, temporarily lose control of the bike before regaining control and proceeding west along James Street at an excessive speed. Police observed several vehicles taking evasive action to avoid hitting the bike. The appellant turned in a northerly direction into Mirle Street, and shortly thereafter police lost sight of him. Police followed the appellant’s direction of travel with assistance from members of the public, who pointed out where he was heading. In fact, a member of the public followed the appellant in his own vehicle, such was his concern for the appellant’s behaviour. The appellant was ultimately located at the intersection of Erin and Router Streets, Wilsonton, where he was observed to abandon the quad bike after taking a corner too fast, which resulted in a rear tyre separating from the rim. The appellant ran into local yards and was ultimately arrested in a nearby yard. The appellant took part that day in a record of interview and made full admissions to all of the offences.
Appellant’s antecedents
The appellant was 12 years of age both at the time of the offending and at the time of sentence. In addition to the convictions on 17 April 2014 for which the appellant was placed on four months’ probation, the appellant was also convicted in the Dalby Childrens Court on 2 July 2012 for one offence of stealing, one offence of enter premises and commit indictable offence, and one offence of failing to appear in accordance with his bail undertaking. He received a reprimand on all charges on that date.
The presentence report
The presentence report assessed two factors as contributing to the appellant’s offending:
1. lack of respect for adult supervision and disengagement from structured routine, and;
2. association with a negative peer group.
In relation to the appellant’s background, the presentence report noted:
“Mark’s parents separated when he was approximately seven years of age and Ms Williams [mother] moved from Moree, NSW to Dirranbandi with Mark and her other children. Mark has had minimal contact with his father since this time. The last contact Mark had was when he was approximately eight years of age, he spent two months with his father in Coonamble, NSW but was returned home due to Mark’s difficult behaviours. While with his father Mark started to associate with negative peer groups which led to smoking cigarettes and other antisocial behaviour.
Since moving away from Mr Nicholls Snr, Ms Williams and her children have spent time in Dalby, Toowoomba and St George over the past four years as Ms Williams sought help from extended family with her children.
In relation to Mark’s formative years, information provided to the Toowoomba Youth Justice Service Centre by the Child Safety Service Centre indicates that there were significant Child Protection concerns relating to domestic violence between the parents. During interviews Ms Williams denied Mark being witness to abuse within the family home. However it is the author’s assessment that it is these formative years that have shaped Mark’s moral development and peer relationships.”
The report writer was told by the appellant’s mother that with respect to the earlier offending for which the appellant was placed on probation, “Mark demonstrated little or no respect for her rules at home, with Mark continuing to associate with negative peer groups, leaving the house without permission and not advising her of his whereabouts”.
The appellant was left in the care of his mother’s brother in approximately April 2014 to complete his probation order while she and the appellant’s younger siblings returned to Dirranbandi. The report notes that:
“During this time Mark has continued to evade boundaries and was disengaged from structured routine. It is the author’s assessment that it is this event coupled with feelings of rejection from his mother that has escalated Mark’s offending. While in Toowoomba Mark was supervised by numerous extended family members including his uncle and cousins, however it is noted that this inconsistency in parenting and being transitional from one family member to another has exacerbated his feelings of rejection resulting in increased offending.”
The appellant had been disengaged from school since January 2014 and prior to that his schooling was limited due to “suspensions following incidents of bullying other students, disrespect and swearing”.
After moving to Toowoomba, the appellant formed friendships with peers who were older than him and who were well-known offenders. Most of the new offending occurred whilst the appellant was in the company of such peers.
During interviews for the presentence report the appellant “demonstrated a very limited ability to identify how victims may be personally affected by his offending”.
After his arrest on 30 May 2014 the appellant was refused bail and was remanded in custody at the Brisbane Youth Detention Centre. The presentence report noted the appellant’s level of distress at his isolation from his mother and the community whilst in detention and that his loss of freedom had been a significant imposition. Because the appellant was remanded in custody as a result of there being no parent or family member willing to care for him due to his antisocial behaviour, being in detention added to the appellant’s feelings of rejection. In detention however, the appellant participated in literacy-based schoolwork and the report writer noted that:
“The detention centre activities have allowed Mark to experience a brief period of order in his life which he has not had for an extended period of time and this may have given him some motivation to reflect on his life in the community in terms of being more likely to follow through with accepting support and guidance on release from custody.”
It was noted in the presentence report that during his time on probation between 17 April and 30 May 2014 the appellant had reported as directed on five occasions, had been excused from reporting on one occasion and had failed to report on one occasion.
It was also noted that the appellant was willing to comply with any community based orders and would be residing with his mother and siblings in St George if released. The appellant had agreed to attend St George State High School and meet with the community elders, and residing in St George would prevent his contact with the negative peer group associations which he had in Toowoomba.
The presentence report outlined the sentencing options available to the Childrens Court Magistrate including probation, an intensive supervision order and a conditional release order. The appellant had indicated his willingness to comply with such orders and appropriate program proposals were attached to the report.
Submissions below
It was pointed out to the Childrens Court Magistrate by the appellant’s legal representative that the appellant was “extremely young”, as was the lack of stability and disadvantage in his family circumstances and the lack of a positive male role model. When engaged with the community, as he was when the family was living in Dirranbandi, the appellant kept out of trouble.
The appellant’s mother has six children to look after and the appellant “takes somewhat of a lead role”. He found himself in Toowoomba because his Nan was ill and linked up with older children and started to offend. Alcohol, drugs and sniffing were not issues.
The appellant loved sport, particularly football and wanted to go back to school in St George. The time in detention had “not been an easy ride” for the appellant and he had instructed that “I wont be coming back here again. It feels gross”. It was submitted that the appellant’s time in custody should not be extended and that a sentence of four months detention with an immediate supervised release order would be appropriate.
The representative from the Youth Justice Service noted that the appellant’s “social, familial and educational circumstances have all been compromised probably quite significantly and that he is now at an age where it seems he is not going to be particularly beholden certainly to any guidance that might be made [sic] down by family members, for example.” The Childrens Court Magistrate was informed that the appellant’s mother had attended court and that the Youth Justice Service would make arrangements after the appellant’s release to ensure he join her in St George as quickly as possible, “so that he doesn’t linger in Toowoomba”.
Sentencing remarks
In his sentencing remarks the Childrens Court Magistrate noted that he was sentencing the appellant for a number of property offences committed between December 2013 and May 2014. He noted the seriousness of the offences, the resultant loss of valuable property, the serious nature of the dangerous operation of the quad bike, and drew the conclusion that the possession and carrying of bolt cutters suggested a “significant level of planning involved” and a determination to steal the bikes. In an exchange with the appellant’s lawyer, the Childrens Court Magistrate said: “ … some of this was serious, premeditated, calculated, planned offending.”
The Childrens Court Magistrate noted that the appellant comes from a very “dysfunctional family” and that he hadn’t had a “role model for a father”. He noted the non-acceptance by the appellant of his mother’s authority at home and his disengagement from school. He noted that older individuals led the appellant in relation to some of the offending. The fact that the appellant engaged in serious offending whilst on probation was noted.
Relevant provisions of the Act
The Act no longer provides that detention is a sentence of last resort, however s 150 of that Act outlines the sentencing principles to which a court must have regard. Relevant to this appeal, special considerations to which a court must have regard include:
(a) a child’s age is a mitigating factor in determining whether or not to impose a penalty, and the nature of a penalty imposed; and
(b) a non custodial order is better than detention in promoting a child’s ability to reintegrate into the community; and
(c) the rehabilitation of the child found guilty of an offence is greatly assisted by –
(i) the child’s family; and
(ii) opportunities to engage in educational programs and employment.
The general principles underlying the operation of the Act are set out in schedule 1 to the Act – “Charter of Youth Justice Principles”. Of particular relevance in this appeal are:
· 12 – “A person making a decision relating to a child under this Act should consider the child’s age, maturity and, where appropriate, cultural and religious beliefs and practices.”;
· 13 – “If practicable, a child of Aboriginal or Torres Straight Islander background should be dealt with in a way that involves the child’s community.”, and;
· 16 – “A child should be dealt with under this Act in a way that allows the child to be reintegrated into the community.”
The sentence order made by the Childrens Court Magistrate is provided for by s 180 of the Act, which relevantly reads as follows:
Combination of detention order and probation order
(1) This section applies if a court makes a detention order and a probation order for a single offence.
(2) The court may make the detention order only for a maximum period of 6 months …
(3) The probation order may only start when the child is released from detention under the detention order and be for a maximum period ending 1 year after the release.
Arguments
It is argued on behalf of the appellant that the Childrens Court Magistrate failed to consider the sentencing options before him which did not include further actual detention and which were far more appropriate given the appellant’s age and personal circumstances.
On the other hand, the respondent argues that the offences (as conceded on behalf of the appellant) were very serious and were committed whilst the appellant was on probation. The Childrens Court Magistrate clearly took into account all matters in the appellant’s favour and no error in the sentence imposed can be demonstrated.
Consideration
Although detention is no longer a penalty of last resort, it was still incumbent on the Childrens Court Magistrate to carefully consider all other appropriate sentencing options. There is much authority for the proposition that courts should only incarcerate a young person for the first time if such a penalty is the only appropriate penalty.[1]
[1]R v Price [1978] Qd R 68; R v Taylor & Napatali [1999] QCA 323.
One issue that arises from the transcript of the proceedings below is that it is not clear that the facts of the offences for which the appellant was on probation and for which he was to be resentenced, were before the Childrens Court Magistrate. It is evident from the court file that the Childrens Court Magistrate was not the same Magistrate who sentenced the appellant on 17 April. I was advised during the appeal hearing by the Youth Justice representative that it is her Service’s practice to hand up the police briefs (“QP9s”) to the court whenever probation orders are revoked. The following brief reference was made in the sentencing remarks,
You and others threw rocks at the Wilsonton Sate School windows in January of this year, 16th of January, and smashed 16 windows. You and others smashed other peoples’ windows to other property – cars or property. They are the – and those offences were the subject of the probation order made in [sic] 17th of April.
Otherwise there is nothing in the transcript of the proceedings below to suggest the facts of the original offending were before the court. Certainly, no submissions regarding those offences were made by either the prosecution or the defence. This, in itself may amount to an error in sentencing.
The Act requires that a combination detention order and probation order be made for “a single offence”. It is not apparent that the Childrens Court Magistrate imposed separate sentence orders for each offence as he was required to do. Errors do therefore appear to have been made during the sentencing process.
The Childrens Court Magistrate failed to give proper and adequate weight to the following factors:
·the appellant’s very young age;
·the fact that the appellant was on most occasions not acting alone, but was apparently with older co-offenders (it is of note that no details of the co-ffenders were before the court);
·the appellant’s compliance with the probation order;
·the appellant’s participation in a recorded interview in which he made full admissions to the offending;
·the appellant’s please of guilty;
·the fact that the appellant had spent 55 days in pre-sentence detention and his response to detention;
·the important factor of rehabilitation (preferably within the community);
·the appellant’s disadvantaged background and family circumstances; and
·the need to reintegrate the appellant into the community.
The sentences imposed were manifestly excessive. As at the date of the hearing of this appeal, the appellant had spent a total of 77 days in detention. Such a period of time is most significant for such a young person. No further time in detention can be justified in the circumstances. Ongoing supervision however, is certainly called for.
The appeal is allowed. The sentence order (except the reprimands) made on 24 July 2014 are set aside. For each of the offences committed in May 2014, a detention order of 77 days is substituted. 77 days of presentence detention is declared to have been already served. For the resentence of each of the offences for which the appellant was originally placed on probation, a probation order for 12 months is made. The appellant is to report by 4 pm on 15 august 2014 to the chief executive. No conviction is recorded for any offence.
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