CHILDRENS COURT OF QUEENSLAND
CITATION:
R v DT [2023] QChC 8
PARTIES:
THE KING
v
DT
(child)
FILE NO: 270/23
DIVISION:
Childrens Court of Queensland
PROCEEDING:
Sentence
ORIGINATING COURT:
Toowoomba
DELIVERED ON:
12 July 2023
DELIVERED AT:
Brisbane
HEARING DATE:
4 July 2023
JUDGE:
Smith DCJA
ORDER:
1. The following orders are made.
2. With respect to Indictment 270/23:
On count 1, a conviction is recorded and I order the child be detained for 12 months.(a)
On count 2, a conviction is recorded and I order the child be detained for 2 years.(b)
On count 3, a conviction is recorded and I order the child be detained for 12 months.(c)
3. With respect to Indictment 269/23:
On count 1, a conviction is recorded and I order the child be detained for 12 months.(a)
On count 2, a conviction is recorded and I order the child be detained for 18 months.(b)
On count 3, a conviction is recorded and I order the child be detained for 12 months.(c)
4. I find the child has breached the conditional release order made on 25 August 2022. Pursuant to section 246A of the Youth Justice Act 1992 (Qld) I revoke the conditional release order and order the child serve detention of eight months and 27 days.
5. I discharge the 12-month restorative justice order made on 25 August 2022. I resentence the child to a reprimand.
6. I order that all sentences of detention be served concurrently with each other.
7. Pursuant to section 227(2) of the Youth Justice Act 1992 (Qld) I order the child be released after serving 60% of the period of detention.
8. I find the child has breached the probation order imposed on 25 August 2022. I take no action with respect to that breach.
9. Pursuant to section 150A of the Youth Justice Act 1992 (Qld) I declare the child is a serious repeat offender.
10. I give liberty to apply.
CATCHWORDS:
CRIMINAL LAW - SENTENCING OF JUVENILES - CUSTODIAL ORDERS - whether detention order should be made - whether there should be earlier release than 70 percent - whether convictions should be recorded - whether serious repeat offender declaration should be made - whether convictions should be recorded
STATUTES - whether s 150A of the Youth Justice Act 1992 (Qld) valid - whether it was capable of retrospective operation - whether procedural or substantive - whether breach of the Legislative Standards Act 1992 (Qld) invalidates the law
LEGISLATION:
Acts Interpretation Act 1954 (Qld) ss 14B, 20
Criminal Code 1899 (Qld) s 11
Legislative Standards Act 1992 (Qld) ss 4, 23, 24
Strengthening Community Safety Act 2023 (Qld) s 409
Youth Justice Act 1992 (Qld) ss 150, 150A, 150B, 183, 184, 208, 227, 241, 246A, sch 1CASES:
R v Carlton [2009] QCA 241; [2010] 2 Qd R 340, applied
R v HCO [2023] QCA 103, considered
R v Hutchinson [2018] QCA 29; [2018] 3 Qd R 505, considered
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- AGLC
- R v DT [2023] QChC 8
- Case
- [2023] QChC 8
- Decision Date
CaseChat Overview and Summary
The court considered the serious nature of the offences, the defendant's history of offending, and the breaches of court orders. The court also considered the mitigating factors, including the defendant's early guilty pleas and deprived upbringing. The court decided that a custodial sentence was necessary, given the seriousness of the offences and the risk of reoffending. The court ordered the defendant to serve 60% of a total sentence of two years in detention, reduced from the usual 70% due to the mitigating factors. The court also decided to record convictions on each count, considering the seriousness of the offences and the defendant's history. The court made a declaration that the defendant is a serious repeat offender under section 150A of the YJA, noting the defendant's previous detention order and the high probability of further offending.
The court ordered the defendant to serve sentences of detention concurrently and to be released after serving 60% of the detention period. The court also revoked a conditional release order and a restorative justice order, and took no action with respect to a breach of a probation order. The court made clear that all sentences of detention are to be served concurrently with each other and gave liberty to apply.
The court's reasoning and outcome reflect a balanced approach, taking into account the seriousness of the offences, the defendant's history, and the mitigating factors, while also considering the need to protect the community and deter future offending. The orders reflect the court's assessment of the appropriate balance between punishment, rehabilitation, and deterrence.
Orders
Orders of the court
1. The following orders are made.
2. With respect to Indictment 270/23:
On count 1, a conviction is recorded and I order the child be detained for 12 months.(a)
On count 2, a conviction is recorded and I order the child be detained for 2 years.(b)
On count 3, a conviction is recorded and I order the child be detained for 12 months.(c)
3. With respect to Indictment 269/23:
On count 1, a conviction is recorded and I order the child be detained for 12 months.(a)
On count 2, a conviction is recorded and I order the child be detained for 18 months.(b)
On count 3, a conviction is recorded and I order the child be detained for 12 months.(c)
4. I find the child has breached the conditional release order made on 25 August 2022. Pursuant to section 246A of the Youth Justice Act 1992 (Qld) I revoke the conditional release order and order the child serve detention of eight months and 27 days.
5. I discharge the 12-month restorative justice order made on 25 August 2022. I resentence the child to a reprimand.
6. I order that all sentences of detention be served concurrently with each other.
7. Pursuant to section 227(2) of the Youth Justice Act 1992 (Qld) I order the child be released after serving 60% of the period of detention.
8. I find the child has breached the probation order imposed on 25 August 2022. I take no action with respect to that breach.
9. Pursuant to section 150A of the Youth Justice Act 1992 (Qld) I declare the child is a serious repeat offender.
10. I give liberty to apply.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In light of the serious nature of the offences and noting that the pre-sentence report considers the child is not suitable for the restorative justice process, I do not order restorative justice. Serious repeat offender declaration Pursuant to section 150A of the YJA the Crown has applied for a “serious repeat offender” declaration. The defence has submitted that the legislation is not valid. Section 150A of the YJA provides:“150A Serious repeat offenders(1)This section applies if a court is sentencing a child for a prescribed indictable offence.(2)The court may, on application by the prosecution, declare the child to be a serious repeat offender if—(a) at least 1 detention order has previously been made against the child in relation to a prescribed indictable offence; and(b) the court has—(i)ordered the chief executive to prepare a pre-sentence report; and(ii)received and considered the report; and(c) the court has had regard to—(i) the child’s previous offending history and bail history; and(ii)any efforts of rehabilitation by the child, including rehabilitation carried out under a court order; and(iii)any other matter the court considers relevant; and(d) the court is satisfied that there is a high probability that the child would commit a further prescribed indictable offence.(3)If the court makes a declaration that the child is a serious repeat offender, the court in sentencing the child must have primary regard to—(a) the need to protect members of the community; and(b) the nature and extent of violence, if any, used in the commission of the offence; and(c) the extent of any disregard by the child in the commission of the offence for the interests of public safety; and(d) the impact of the offence on public safety; and(e) the child’s previous offending history and bail history.(4)If the court makes a declaration that the child is a serious repeat offender, the court must state in its sentencing remarks for the child reasons for making the declaration.(5)For the purposes of the Criminal Code, chapter 67, a declaration made under this section is taken to be a sentence imposed on conviction.(6)For the purposes of the Human Rights Act 2019, section 43(1), it is declared that this section has effect—(a) despite being incompatible with human rights; and(b) despite anything else in the Human Rights Act 2019.Note—Under the Human Rights Act 2019, section 45(2), this subsection expires 5 years after the commencement.” As may be seen, the section provides that where a court is sentencing a child for a prescribed indictable offence, if at least one detention order has been made against the child and a pre-sentence report has been ordered, received and considered, then the court has the power to make a declaration that the child is a serious repeat offender. Such an order lasts for 12 months after the child is released from detention (s 150B of the YJA). The effect of the order is that if another court sentences the child for a prescribed indictable offence, for an offence committed during the period of the order, then the primary sentencing considerations are in s 150(3)(a) to (d) of the YJA.Defence submissions as to validity