R v An

[2018] QChC 29

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v AN [2018] QChC 029

PARTIES:

THE QUEEN

v

AN
(applicant)

FILE NO:

250/18

DIVISION:

Criminal

PROCEEDING:

Sentence review

ORIGINATING COURT:

Childrens Court of Queensland

DELIVERED ON:

13 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2018

JUDGE:

Richards DCJ

ORDER:

Application allowed. The sentence is reduced to 6 months’ probation.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GENERALLY – where the applicant was sentenced to 12 months’ probation – whether the Magistrate erred by not considering section 162 of the Youth Justice Act 1992 – whether a court diversion referral is appropriate.

SOLICITORS:

Mr D Law of Legal Aid Queensland for the applicant

N Hopper of the ODPP for the respondent  

1. The applicant pleaded guilty in the Aurukun Children’s Court on 18 July 2018 to assault occasioning bodily harm on 8 March 2018, receiving tainted property on 2 May 2018, enter a dwelling and commit an indictable offence on 3 June 2018 and attempt to enter a premises on 31 May 2018.  The applicant was 15 years at the time of the offending and he was sentenced to 12 months’ probation. No conviction was recorded.

1. The circumstances of the offences are as follows:

·     The applicant was one of a number of boys who were using sling shots to fire stones at a group of students.  Some of the students received bruises. (Assault occasioning bodily harm whilst armed) 

·    On 2 May he was found in possession of an Xbox that had been stolen from the PSYC earlier that day. 

·    On 3 June 2018 he entered the garage attached to a dwelling and stole two bikes.  The bikes were recovered and were valued at $2,500 each.  He made full admissions. 

·    On 31 May 2018 there was a number of youths who entered the grounds of the Aurukun State School.  They were trying to open some locked doors before being observed climbing on the roof of one of the buildings.  They were escorted off the premises. 

1. The applicant had one previous criminal entry for entering premises and committing an indictable offence on 24 July 2017. He was reprimanded and no conviction was recorded. It is conceded by the Crown that the Magistrate does not seem to have taken into account s162 of the Youth Justice Act 1992 dealing with the restorative justice process and requiring the court to consider whether a court diversion referral or a presentence referral should be made instead of or before sentencing.

1. At the time of the sentence the applicant was attending grade 10 at the local school, living with his mother and father and he indicated he was remorseful. It was submitted on his behalf that a period of community service might be appropriate but the Magistrate felt that probation might be better suited to the applicant. 

1. It is submitted on behalf of the applicant that a court diversion referral should have been made given his early plea of guilty, his lack of previous convictions and his knowledge and understanding of his wrongdoing. It is submitted on behalf of the applicant that had the Magistrate considered the provisions of s162 and the immature nature of the offending that he would have ordered a diversion. This is particularly so because the most serious offence, the assault occasioning bodily harm whilst armed, was already subject to a mediation process within the school.

1. It is accepted that the sentencing process was in error because the court did not give consideration to whether the applicant ought to be referred to a restorative justice process. However, I cannot agree that had the court been referred to s162 of the Youth Justice Act 1992, that a diversionary order would have been made.

1. The applicant had had a previous encounter with the law involving entering premises.  The offences were all committed on separate occasions so the offending was not isolated to one day but showed a pattern of emerging disregard for the law.  There was four separate offences one of which involved a theft of expensive property (bikes worth $2,500 each). The theft of the bikes was brazen because the children rode the bikes to the police station to use the vending machines.

1. In my view a period of probation was well open on the evidence and seems to be an appropriate order to provide some structure to the child’s day.  However, given his lack of previous convictions in my view 12 months’ probation is too long. There is no point ordering a restorative justice referral in relation to any of the offences given that the violent offence was already the subject of mediation.  So in relation to the offending the probation  order should be reduced to six months’ probation.