R v A, D, B & C

[2007] QDC 323

DISTRICT COURT OF QUEENSLAND

CITATION:	The Queen v. A, D, B and C [2007] QDC 323
PARTIES:	The Queen
V
A, D, B and C
FILE NO/S:	2340 of 2007
DIVISION:	Criminal
PROCEEDING:	Sentence
ORIGINATING
COURT:	Brisbane
DELIVERED ON:	30 November 2007
DELIVERED AT:	Brisbane
HEARING DATE:	30 November 2007
JUDGE:	M. Griffin S.C. DCJ
ORDER:	Sentences Imposed:

1. Juvenile Justice Act 1992 (Qld); Penalties and Sentences Act 1992 (Qld); Probation; Probation and community service

2. Child Protection Act 1999 (Qld); Non- publication orders

CATCHWORDS:	Juvenile Justice Act 1992 (Qld) – Limitations on sentencing discretion – Non-detention orders
Juvenile Justice Act 1992 (Qld) – s 183, s 184 – Limitation to recording of conviction for juvenile offenders

HIS HONOUR: Stand up, A. In relation to indictment 2340 of '07, you are discharged in respect of count one on the indictment.

Stand up, C and B. The prosecution, having indicated that it will not proceed further upon counts three and four on the indictment 2340 of '07, you are discharged in respect of those counts on that indictment.

...

HIS HONOUR: Stand up, please. A, D, C and B, you have all been convicted today on your own pleas of guilty.

They involve offences of violence and assault, each describing your different roles and responsibilities for a single and sustained attack on an intellectually disabled youth who was 15 years of age.

He suffered from muscular dystrophy and he was intellectually impaired. He was very much a victim to the various combinations of your behaviour which involved assaults against him.

C and B, it is clear enough that you took the lesser roles in the entire enterprise and you, A, joined the enterprise after the first assault was committed. The victim, fortunately, did not suffer lasting physical injuries and the injuries themselves seem to be, overall, at the lower end of the scale.

The injuries really must be largely the result of counts 3 and 4 on the indictment but the mere fact that there were physical injuries at the lower end of the scale and that it is most probable that there were no physical injuries from counts 1 and 2 does not, I think, absolve you, C or B, of serious responsibility in all these circumstances.

You were present for and to use a neutral word, in the circumstances, encouraged, which really means made the defendant eat his own faeces which is part of the count of assault which is the first count to which you have pleaded guilty.

You both, in relation to count 2, were, at the very least, present for the continuing threats, intimidation and humiliation of your unhappy victim, and you, A and D, took a much practical role in intimidation and humiliation.

On that occasion, there were various items presented to the victim and although it is unclear who precisely did what, I have come to the conclusion that all four of you were responsible for threatening behaviour to him.

I will sentence you on that basis. From that point, although you, C and B were present, neither of you are said to have committed any further criminal offence and I take that, of course, into account in dealing with you for the whole enterprise and ensure that in the way in which I deal with you, you will not be regarded as being involved in the next steps.

You, A and D then carried out physical assaults on your victim, having been softened up by the humiliation of behaviour that three and then four of you, from Counts 1 and Count 2 perpetrated upon him.

He was physically assaulted and was obviously in a physically weak position. This behaviour of all four of you is disgraceful and it is cowardice in the extreme. Even allowing for the youth of the two female offenders who were 12 at the time, it does not explain this appalling conduct.

For the two female offenders, both of whom are still children, the operation of the Juvenile Justice Act, and for that matter, its operation in relation to A, must circumscribe the way in which I can deal with you.

For the two female offenders, it seems to me that both, as well as the other two male offenders, have cooperated but especially for the female offenders, there seems to have been assistance to the police in terms of their actual roles, and that without that assistance would not have perhaps led to any charges being made.

I must take that into account. It is traditional and appropriate and it is a means by which the ultimate sentence will be reduced.

You, D and you, A, are both regarded as being intellectually impaired. In your cases, that may, to some extent, explain this appalling behaviour, but it does not excuse it.

A, you were younger that D, who was 17 at the time and you were 15. You are substantially older than the two female offenders. There is no doubt, however, on the picture presented, both by the prosecution and uncontroverted by any of the statements made by the defence, that this was a sort of gang mentality that developed and as I have said, there were comings and goings of the various offenders in the entirety of the enterprise.

You are all youthful offenders and only one of you, A, has had previous convictions. Rehabilitation, I accept, is important, but there must also be punishment for your behaviour.

As I have said, the injuries were at the lower end of the scale of seriousness. Cooperation and the fact that you pleaded guilty particularly in a case where it would have been unthinkably difficult for the victim to have to give evidence is something that I take into account, although I recognise also that the offender was unable to identify separately the activities of all four of you.

All four came under police notice and two of you were asked to give statements, at that stage the police not recognising the responsibilities and involvements of the two female offenders.

A custodial sentence, for want of a better phrase, is one which is a matter of last resort, according to the Juvenile Justice Act and that applies, as I have said to A, you, C and you, B.

I think it is right for the prosecutor to say that had it not been for your ages, the circumstances of the particular violence, (not physically so violent overall, but because of the humiliation of it to the particular type of victim who was presented to you) are, I regard serious offences and would have lead to custodial sentences.

It is therefore, in my view, entirely inappropriate and I regard it as manifestly inadequate to merely administer cautions to you two female offenders. Nor do I think, in the circumstances, because of your behaviour and because of the circumstances in which you have found yourselves, that is, the two female offenders, appropriate to impose a bond.

I think it is necessary because of the way in which you both became involved in these offences to give some form of supervisory order which it is hoped will protect society in the future from your behaviour should that be necessary.

You, D, are in a different position to the other three children. You were an adult and you are an adult now, but having read very carefully the report of Dr Keane, I accept that, in your case, (and then perhaps one can see how the others became involved) that this is an incident of situational violence, that is, an incident which occurred because of the coming together of various factors at the time.

That, I think, is reinforced the fact that D, you C and B do not have any previous convictions or, in fact, have come before the Courts at any other time.

The sentence will be ameliorated for those reasons. I do not depart, however, from the view that I have formed that these are extraordinarily serious circumstances of behaviour and as I have said and I repeat, much of it is because of the way in which the victim was treated and also the victim's own circumstances.

It was cowardice in the extreme in the way you behaved and I make that as a general comment, recognising, should it be necessary for this to be referred to in another place, that all four of you have different factual circumstances attending the offences which you have admitted here today.

In your case, C, and B, I see ultimately no reason to distinguish between you. In the case of each one of you, I propose that a probation order should be made for 12 months.

You have had probation explained to you, C? No, you have not? I will explain it. Listen carefully, because if you breach the probation order, you will come back before the Court and I can assure you, you will come back before me and it will not be probation the second time.

You must abstain from the violation of the law. That means, you must not commit any other offences during the probation period. You must satisfactorily attend programs as directed by the chief executive. You must comply with every reasonable direction of the chief executive.

You must report and receive visits as directed by the chief executive. You or a parent must notify the chief executive within two business days of any change of address or employment or school.

You must not leave or stay out of Queensland without the prior approval of the chief executive during the probation period. You must report to the chief executive by 4 p.m. on Monday the 3rd of December 2007. Do you understand those terms and conditions?

CHILD C: Yes, your Honour.

HIS HONOUR: You will have to speak up, I'm sorry?

CHILD C: Yes, your Honour.

HIS HONOUR: B, do you?

CHILD B: Yes, your Honour.

HIS HONOUR: I make an order in the terms I described. In your case, A, have you heard what I have said about a probation order?

CHILD A: Yes, your Honour. also be required to perform community service. You know what that means?

HIS HONOUR: I will make a probation order in your case for a period of two years.
CHILD A: Yes, your Honour.

HIS HONOUR: If you fail to perform the community service or breach the probation, the terms of which order I have just read out, you will be brought back before the Court and dealt with again. Do you understand that?

CHILD A: Yes, your Honour.

HIS HONOUR: These are the requirements of a Community Service Order. As with the probation order, you must report to the chief executive. That will be by 4 p.m. on the 3rd of December 2007.

You must perform in a satisfactory way the hours of community service that I direct. That will be 120 hours' community service. You must comply with every reasonable direction of the chief executive during the period of the performance of the community service.

You must inform the chief executive of every change of your place of residence within two business days of that change. You must abstain from violation of the law. That means, you must not break the law during the period of the order, that is, both probation and community service.

You must not leave or stay out of Queensland without the permission or approval of
the chief executive. Do you understand that?
CHILD A: Yes, your Honour.

HIS HONOUR: Are you prepared to abide by those terms and conditions?

CHILD A: Yes, your Honour.

HIS HONOUR: I make that order in those terms. You, in Counts 3 and 4 as well as Counts 1 and 2 on the indictment.

With A, you visited violence upon the victim. He was kicked and punched. Whether you did one or both of those things and how many times you did it seems, to me, to be of little relevance.

The fact is that, with that victim, in that condition, you did something of that nature or at least encouraged it by your partner in crime, A. You were also involved in Count 1. It is unnecessary for me to rehearse the facts of that.

You were 17 years of age. The law requires consideration to be given to youthful offenders and I also, as I have said, have taken into account what is said about your intellectual capacity and lack thereof, the fact that you are regarded as autistic and intellectually impaired.

I take into account the fact that you are 17. In much the same way as the other offenders, rehabilitation for a youthful offender is an important feature and I propose to place you on probation too for two years and require you to perform community service.

The terms and conditions of probation are these. You must not commit another offence during the period of the order. You must report to an authorised Corrective Services officer. Where should he report, Mr Sloane?

MR SLOANE: At Brisbane Central.

HIS HONOUR: At Brisbane.

MR SLOANE: Brisbane.

HIS HONOUR: By 4 p.m. on the 3rd of December 2007. You must report to and receive visits from an authorised Corrective Services officer. You must take part in counselling and satisfactorily attend other programs as directed by the authorised Corrective Services officer.

You must notify an authorised Corrective Services officer of every change of your place of residence or employment within two business days after the change happens. You must not leave or stay out of Queensland without the permission of an authorised Corrective Services officer.

You must comply with every reasonable direction of an authorised Corrective

Services officer. Do you understand those terms and conditions?

PRISONER D: Yes, your Honour.

HIS HONOUR: The community service order has many of the same terms and conditions, but you must, with a community service order, also perform in a satisfactory way community service which will be for 120 hours and of course, with the community service order, you must not commit any offences as well.

The terms and conditions of both are almost precisely the same. Do you agree to the imposition of those two orders?

PRISONER D: Yes, your Honour.

HIS HONOUR: I make orders in those terms for probation for two years and 120 hours' community service. Reporting will also be required at the same time for community service at Brisbane by 4 p.m. on the 3rd of December 2007.

There have been submissions made about convictions. Lest it be misunderstood, in dealing with children, so the legislation requires, that effectively, pursuant to section 183 and section 184 of the Juvenile Justice Act, a conviction must be recorded only as a last resort, in ultimate and severe circumstances.

I have taken into account the age of the three children, particularly in respect of the two females. Neither had any convictions before Court nor had come to the adverse notice of the police whereby they had been brought before the Court.

I have considered, in all the circumstances, independently the position of each and every one of you in relation to the recording of convictions. I have decided, on the balance, that convictions should not be recorded, having regard to the legislation and in your case, D, for the other reasons that I have enunciated in the sentencing process.

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