R v Caz and Da

[2015] QChC 6

CHILDREN’S COURT OF QUEENSLAND

CITATION:

R v CAZ and DA [2015] QChC 6

PARTIES:

THE QUEEN
v
CAZ and DA

FILE NO/S:

5/15 & 24/15

DIVISION:

Children’s Court of Queensland

PROCEEDING:

Application

ORIGINATING COURT:

Maroochydore Children’s Court

DELIVERED ON:

21.10.15

DELIVERED AT:

Maroochydore

HEARING DATE:

19.10.15

JUDGE:

His Honour Judge Robertson

ORDER:

Application to exclude evidence is refused

CATCHWORDS:

LEGLISLATION:

CASES CITED
IN JUDGMENT:

ADMISSIBILITY OF EVIDENCE; where each defendant had pleaded guilty to one count of enter premises with intent and one count of arson; whether victim impact statements were admissible; where the statements attest to the grief and loss as a result of the offence; whether the Youth Justice Act 1992 provides that the court must have regard to harm mentioned in the Victims of Crime Assistance Act 2009; where the victim must be of a prescribed offence; where it is conceded on behalf of the Director that the offences are not “prescribed” offences; where the Youth Justice Act 1992 and Penalties and Sentencing Act 1992 do not confine the court to considering only harm referred to in s 15 of the Victims of Crime Assistance Act 2009; where the victim impact statements are admissible.

Penalties and Sentences Act 1992
Youth Justice Act 1992
Victims of Crime Assistance Act 2009

R v Silasack [2009] QCA 88

COUNSEL:

Cummings, G. Counsel for the Director of Public Prosecutions
Cuthbert, C. Counsel for the defendant DA
Taylor, J. Counsel for the defendant CAZ

SOLICITORS:

Hishon, T. Solicitor for the defendants instructed by ATSILS

1. On previous occasions each defendant pleaded guilty to one count of enter premises with intent and one count of arson. At the commencement of the sentence proceedings this afternoon, counsel for each defendant sought a ruling that victim impact statements that the Director wished to tender were not admissible. I heard submissions and ruled that the statements were admissible, and I indicated I would give reasons within a short time given the lateness of the hour. Neither counsel had taken their clients through the statements so the sentence hearing was adjourned.

The offences

1. The offences were committed by both offenders sometime between 8:05pm and 9:30pm on the 15.8.14. CAZ purchased petrol which he pumped into a fuel can at a service station at Bli Bli at about 8:05pm, and an off duty police officer noticed M Block of the Bli Bli State Primary School well alight at around 9:30pm. Each of the defendants admitted their involvement in the commission of both offences, although each blamed the other as the primary motivator. M Block was a (2) storey building containing classrooms and storerooms on both levels. The building and contents including school resources, teachers’ resources and children’s work were effectively destroyed. The building is presently being rebuilt. The replacement cost for the building was $1,656,537.30, and to replace resources involves a further $111,684.01. Another $4,600 was expended on supply teachers in the first week after the fire.

The victim impact statements  

1. These are from the Principal Mr Quinn and a number of the Grade 1 and 2 and Prep teachers whose classrooms were destroyed or severely damaged. There is also a statement from the then President of the Parents and Citizens Associate, herself a mother of children who had either been pupils in the past or were pupils at the time. Not surprisingly, the statements attest to the enormous sense of grief and loss in the wake of the fire. A number of the teachers have been in the profession for decades and have lost teaching resources built up over that time. One teacher speaks of the loss of photos of past students and letters of appreciation from parents over the years. The statements are a powerful testament to the enormity of loss that follows such a crime; not only the loss of property and resources and the work of the children, but also the emotional distress and adverse psychological and health effects that have followed for dedicated hard working teachers. 

The argument

1. Ms Cuthbert for DA made the argument on behalf of both parties. The argument is that the Youth Justice Act 1992 is “a code for dealing with children who have … committed offences.” : s 2(b).

1. Section 150(1)(h) provides: “In sentencing a child for an offence, a court must have regard to –

(h) any impact of the offence on a victim, including harm mentioned in information relating to the victim given to the court under the Victims of Crime Assistance Act, section 15; …”

Section 15(1) of the Victims of Crime Assistance Act 2009 provides:

“(1) A victim of a prescribed offence is to be permitted to give the prosecutor for the offence details of the harm caused to the victim of the offence, for the purpose of the prosecutor informing the relevant sentencing court.”

1. It is conceded on behalf of the Director by Mr Cummings that the offences here are not “prescribed” offences, as defined by s 25(8) of the Victim of Crime Assistance Act 2009.

1. The argument is therefore that as these are not prescribed offences, and as the Youth Justice Act 1992 is a “code”, therefore the only basis on which a victim impact statement can be given to a court is if it comes within s 15 of the Victims of Crime Assistance Act 2009.

1. The fallacy in that argument is obvious. Section 150(1)(h) is inclusive and not exclusive in its terms.

1. Section 9(2)(b)(i) of the Penalties and Sentencing Act 1992 is in similar terms. It provides:

“(2) In sentencing an offender, a court must have regard to

……

(b) the nature of the offence and how serious the offence was, including –

(i) any physical, mental or emotional harm done to a victim, including harm mentioned in information relating to the victim to the court under the Victims of Crime Assistance Act 2009, section 15;”.

1. Although not argued, it is apparent that the Court of Appeal in R v Silasack [2009] QCA 88, did not regard itself as being constrained by the wording of s 9(2)(b)(i) of the Penalties and Sentences Act to ignore victim impact statements tendered below in relation to an attempted arson offence which involved the firebombing of an occupied house. Certainly on appeal, the very experienced leading counsel for the applicant did not contend that the Judge below had erred in receiving and having regard to the victim impact statements.

1. There is no definition of “victim” in the Youth Justice Act. The definition of “victim” in the Victim of Crime Assistance Act is for the purposes of that Act. It is clear that the legislature, both in s 150(1)(h) of the Youth Justice Act and s 9(2)(b)(1) of the Penalties and Sentences Act did not intend to confine the sentencing court to considering only harm referred to in s 15 of the Victims of Crime Assistance Act. “Victim” is to be given its ordinary meaning i.e. “sufferer from any destructive, injurious, or adverse action…”: Macquarie Dictionary. If there was any doubt, which there is not, the material the prosecutor proposes to tender would also be covered by s 150(3):

“(3) In sentencing a child for an offence, a court may receive any information it considers appropriate to enable it to impose the proper sentence …”.

1. It would be a surprising result indeed if those most affected by the destruction of a school building by an act of arson, could not express their sense of loss and grief to the court with the duty to sentence the arsonist.

1. The application to exclude the evidence is refused.