Police v C

[2013] QChCM 1

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v C [2013] QChCM 1

PARTIES:

POLICE

(prosecution)

v

C

(defendant)

FILE NO/S:

CCM4374/13(4); CCM5447/13(5); CCM6907/13(0); CCM7244/13(4); CCM7309/13(9); CCM8177/13(9); CCM9416/13(7); CCM10053/13(7); CCM10055/13(0)

DIVISION:

Childrens Court of Queensland (Magistrate)

PROCEEDING:

Charge - Sentence

ORIGINATING COURT:

Childrens Court of Queensland at Richlands

DELIVERED ON:

12 September 2013

DELIVERED AT:

Richlands

HEARING DATE:

11 September 2013

MAGISTRATE:

Hay PJ

ORDER:

No further pre-sentence report will be ordered.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentence – Factors to be taken into account – Presentence reports – Young offender

Youth Justice Act 1992, s 207

COUNSEL:

SOLICITORS:

1. The defendant child is before the court for sentencing on a range of offences. The offences include breaches of two separate probation orders, one having been made in the Children’s Court of Queensland and the other having been made in the Holland Park Children’s Court.

1. On 2 August 2013, a pre-sentence report was received by the sentencing court.

1. On 29 August 2013 I indicated my intention to:

1.          commit the breach of the Children’s Court of Queensland probation order to the Children’s Court of Queensland; and

2.          revoke the probation order made in the Holland Park Children’s Court and resentence the defendant child on the charges originally before that Court (the ‘Holland Park offences’).

1. It now submitted that, as a consequence of my intention to resentence the defendant child on the Holland Park offences, the effect of s 207 of the Youth Justice Act 1992 (the ‘Act’) necessitates the preparation of a further pre-sentence report in relation to the Holland Park offences because one had not been ordered when the defendant child was sentenced at first instance.  It was submitted that this is so, despite a presentence report already being before the sentencing court.  That report postdates the Holland Park offences. Although, I note that the pre-sentence report was made for the purpose of the offence of breaching the probation order that arose from the Holland Park offences. [1]

   [1] See page 2 of the pre-sentence report.

1. From a practical standpoint, it has been submitted that the only further material likely to be provided in a further pre-sentence report would be a Remand In Custody report as the one presently marked as exhibit A to the pre-sentence report before the sentencing court does not take into account periods of remand that were relevant to the Holland Park offences. It was conceded that but for s 207 of the Act, this could otherwise be cured by the chief executive providing the court with an additional Remand In Custody report.

1. Unlike the question before the Court of Appeal in R v S[2] the question before me is whether a detention order may be made in respect of the Holland Park offences being offences committed before the offences for which the pre-sentence report was made.

   [2] (2000) 2 Qd R 663 at line 50

The Law

1. Section 151 of the Act relevantly provides:

(1) A court, before it sentences a child found guilty of an offence, may order the chief executive to give to the court a pre-sentence report concerning the child.

(2) Subject to subsection (9), the report must be made for the purpose of the sentencing of the child for the offence.

…

(7) The chief executive must cause the pre-sentence report to be prepared in documentary form and given to the court promptly.

(9) For subsection (7), it is enough if the chief executive gives the court further material to be considered with another report prepared for another sentencing of the child that happens on the same day. [my emphasis]

1. The words of ss 151(2) and (9) suggest that when a pre-sentence report is ordered it must be made for the purpose of the offence upon which the child is to be sentenced and that if another sentence is to proceed on the same day, the chief executive can provide further material to be considered with the report i.e. a separate report is not required.

1. Section 207 of the Act provides:

A court may make a detention order against a child only if it has first—

(a) ordered the chief executive to prepare a pre-sentence report; and

(b) received and considered the report.

1. Despite the decision in R v S[3] being distinguishable on the basis that the question to be determined by the Court of Appeal was different to that before me, the decision remains a relevant statement of the principles applicable to s 207 of the Act.[4]

   [3] (2000) 2 Qd R 663 at line 50

   [4] The Court of Appeal considered the construction of s 164 of the Juvenile Justice Act 1994 which was in identical terms to that of s 207 of the Act.

1. As noted by Pincus J.A. in R v S [5]:

“The section does not expressly require that the order for preparation of a presentence report must follow upon, rather than precede, the occurrence of the offence.

[5] (2000) 2 Qd R 663 at 664; lines 1 and 16

…

…the justificatory effect of a presentence report can cover only a sentence imposed in the course of the sentencing process in which the order for the report was made.  But I see no reason to treat the sentencing process for this purpose as excluding sentencing for an offence being considered with those which prompted the making of the order for the report.”

1. And as further noted by Shepherdson J in R v S [6]:

“I would add that in my view the pre-sentence report referred to … must be in respect of at least one of the offences, if more than one, in respect of which the detention order is subsequently made by the sentencing court.”

[6] (2000) 2 Qd R 663 at 664; line 30

Conclusion

1. Accordingly, I conclude that a sentencing court can make a detention order in respect of offences committed before the offences for which the pre-sentence report was made, provided a detention order is also being made for at least one of the offences for which the pre-sentence report was made.

1. In the present matter, I find that the following are the relevant considerations:

1.          the pre-sentence report before the sentencing court:

(a)        is comprehensive; and

(b)        pertains to offences for which detention orders may be made.

2.          that the preparation of another pre-sentence report will to a large extent involve duplication of the information already addressed in the pre-sentence report before the sentencing court.

3.          the only information not already before the sentencing court is the Remand In Custody report relevant to the Holland Park offences and this can be readily cured without the need for a further pre-sentence report.

4.          the costs associated with preparing pre-sentence reports is borne by the public purse.

1. As such, I am not satisfied that it is necessary to order the preparation of the further pre-sentence report in this matter.