P v The Queen
[2014] QChC 1
•24 January 2014
CHILDRENS COURT OF QUEENSLAND
CITATION:
P v R [2014] QChC 1
PARTIES:
P
(applicant)
v
THE QUEEN
(respondent)
FILE NO/S:
347 of 2013
PROCEEDING:
Application for sentence review
ORIGINATING COURT:
Childrens Court at Emerald
DELIVERED ON:
24 January 2014
DELIVERED AT:
Brisbane
HEARING DATE:
24 January 2014
JUDGE:
Rafter SC DCJ
ORDERS:
- Set aside the orders made by the Childrens Court at Emerald on 3 December 2013.
- In respect of each charge of assault occasioning bodily harm order pursuant to s 220 Youth Justice Act 1992 that the child be detained for 3 months. Further order that the period of detention be suspended immediately and the child be released immediately from detention. Pursuant to s 221 of the Youth Justice Act 1992 the child must participate in a program as directed by the Chief Executive for the next 3 months. Convictions not recorded.
- In respect of the offences dealt with in the Childrens Court at Rockhampton on 15 January 2013 the child is re-sentenced to a Probation Order
pursuant to s 193 Youth Justice Act 1992.
The child is to be released under the supervision of the Chief Executive for a period of 12 months commencing 24 January 2014, and that the child must comply with the requirements set out in s193 of the Youth Justice Act 1992, and report within 1 business day to the Chief Executive. Convictions not recorded.
CATCHWORDS:
CRIMINAL LAW – SENTENCE – SENTENCING JUVENILES – SENTENCE REVIEW – where the applicant child pleaded guilty to 3 charges of assault occasioning bodily harm in the Childrens Court at Emerald - where the respondent concedes the sentence of 6 months detention with an order that the child be released after serving 70 per cent of the period of detention is excessive - applicant resentenced to 3 months detention suspended immediately and required to comply with conditional release order for 3 months in respect of each of the charges of assault occasioning bodily harm
CRIMINAL LAW – SENTENCE – SENTENCING JUVENILES – SENTENCE REVIEW – the applicant also pleaded guilty to entering premises and committing indictable offences, unlawful use of a motor vehicle, possession of tainted property, possession of utensils and possession of a thing in the Childrens Court at Rockhampton - where the applicant was resentenced for these offences to a further period of 12 months probation by the Childrens Court at Emerald - where the Childrens Court at Emerald ordered that the period of probation commence upon the applicant’s release from detention - where there was an error in the structure of probation order - applicant child resentenced to a 12 month probation order commencing 24 January 2014
Youth Justice Act 1992 (Qld), ss 118, 193, 221, 227(1) and 227(2)
COUNSEL:
C Smith for the applicants
A McGee for the respondent
SOLICITORS:
Legal Aid Queensland for the applicant
Director of Public Prosecutions for the respondent
HIS HONOUR: The applicant child was sentenced in the Childrens Court at Emerald on 3 December 2013 in respect of three charges of assault occasioning bodily harm. The applicant child has made application for review of the sentence imposed pursuant to section 118 Youth Justice Act 1992. The sentence imposed by the Childrens Court Magistrate was six months detention with an order that the child be released after serving 70 per cent of the period of detention. Convictions were not recorded. The order expressed by the Childrens Court Magistrate according to the transcript is as follows: “I make one order in respect of the three charges of assault occasioning bodily harm. You’re convicted. Convictions won’t be recorded, for what that’s worth. I order that you be detained for a period of six months and that you be released from detention after serving 70 per cent of the total period of the detention.”
The applicant child was resentenced for a number of offences that had been dealt with in the Childrens Court at Rockhampton on 15 January 2013. Those offences consisted of entering premises and committing indictable offences, unlawful use of a motor vehicle, possession of tainted property, possession of utensils and possession of a thing. The applicant child was placed on probation for those offences when dealt with in the Rockhampton Childrens Court. The Childrens Court Magistrate at Emerald resentenced the applicant for those offences to a further period of 12 months probation. However, the Childrens Court Magistrate at Emerald ordered that the period of probation commence upon the applicant’s release from detention.
The verdict and judgment record states that in respect of the sentence of detention, as there were special circumstances in the child’s case, it was ordered that the child be released from custody after serving 70 per cent of the detention order. There is clearly an error in the verdict and judgment record, because s 227(1) provides that unless a court makes an order under subsection (2) a child sentenced to serve a period of detention must be released from detention after serving 70 per cent. However, by virtue of s 227(2) a court may order that a child be released from detention after serving 50 per cent or more, and less than 70 per cent of the period of detention, if the court considers that there are special circumstances.
The child was not represented by a legal practitioner before the Childrens Court Magistrate, and no submissions were made as to whether there were special circumstances that justified an order for release after serving less than 70 per cent of the period of detention. Clearly there is an error in the verdict and judgment record, because if it had been found that there were special circumstances in the applicant’s case then an order may have been made whereby the child could have been released after serving 50 per cent or more of the period of detention, provided that it was not more than 70 per cent.
I doubt that it is appropriate to make a single order for detention. Certainly, an adult offender cannot be sentenced to a single term of imprisonment in respect of multiple offences. However, no submissions were made on that issue before me, so I do not express a concluded view on it.
In respect of the offences for which the applicant child was resentenced, as I have said, the Childrens Court Magistrate ordered that the 12 month probation order commence on the applicant’s release from detention. It is certainly open by virtue of section 180 of the Act for a court to make a detention order and a probation order for a single offence. However, the Magistrate did not purport to act under that provision. The Magistrate sentenced the applicant to a term of detention for the offences of assault occasioning bodily harm, and resentenced the applicant for the offences originally dealt with in the Rockhampton Childrens Court on 15 January 2013.
The applicant submits, and the respondent accepts, that the period of detention could not be deferred until after completion of the period of detention. Therefore, there is an error in the way in which the probation order was structured.
The offences to which the applicant pleaded guilty involved assaults upon her mother. The Childrens Court Magistrate correctly described the applicant’s behaviour as appalling. The applicant’s conduct involved three separate offences committed on 6 April 2013, 10 June 2013 and 16 June 2013. In respect of the first offence on 6 April 2013 the applicant bit her mother on the right thigh and the left side of her torso, causing pain and bruising. On the second occasion on 10 June 2013 the applicant repeatedly struck her mother and pulled her hair and punched her in the head. She also spat at her mother. The applicant’s mother suffered bruising and a cut behind her left ear. On the third occasion on 16 June 2013 the applicant once again struck her mother to the head. The applicant’s mother fell to the ground and the applicant continued to punch her to the face and the back of the head. The applicant’s mother suffered bruising and she also sustained cuts from her glasses.
The Childrens Court Magistrate correctly regarded the offences as very serious. Moreover, the Childrens Court Magistrate had regard to the fact that the applicant’s compliance with orders in the past had been totally unsatisfactory.
Notwithstanding all of that, the Director of Public Prosecutions who appears for the respondent, concedes that the sentences are excessive and submits that the applicant should be resentenced to three months detention with a conditional release order in respect of each of the charges of assault occasioning bodily harm. In view of that concession there is really no alternative other than to act upon it and resentence the applicant accordingly. I will therefore make an order that in respect of each of the offences of assault occasioning bodily harm the applicant be sentenced to three months detention, which will be immediately suspended. The applicant will be required to participate in the conditional release program which has been placed before the court and marked Exhibit 1.
The other alteration to the sentence that was imposed in the Childrens Court at Emerald on 3 December 2013 is that the probation order should be order to commence from today’s date. Accordingly, I’ll make the following orders:
1. Set aside the orders made by the Childrens Court at Emerald on 3 December 2013.
2. In respect of each charge of assault occasioning bodily harm order that a conviction not be recorded and that the child be detained for three months. I further order that the period of detention be suspended immediately, and that the child be released immediately from detention. Pursuant to section 221 of the Youth Justice Act the child must participate in a program as directed by the Chief Executive for the next three months.
3. In respect of the offences dealt with in the Childrens Court at Rockhampton on 15 January 2013 the child is resentenced. Convictions are not recorded and I order that the child be released under the supervision of the Chief Executive for a period of 12 months. And she must comply with the requirements set out in section 193 of the Youth Justice Act and report within one business day to the Chief Executive. That probation order is to commence today. Convictions are not recorded.
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