R v DT

Case [2023] QChC 8

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 1

CASES:

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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Details
AGLC
R v DT [2023] QChC 8
Case
[2023] QChC 8
Decision Date

CaseChat Overview and Summary

The defendant, a juvenile, was before the court on charges stemming from multiple serious offences, including home invasions and robbery, committed in Toowoomba. The defendant had a history of offending, including previous charges of assault and burglary, and had breached several court orders, including a conditional release order and a probation order. The court was required to decide on the appropriate sentence, including whether to impose a custodial sentence, the length of the detention, the percentage of the sentence to be served, whether to record convictions, and whether to make a declaration that the defendant is a serious repeat offender under section 150A of the Youth Justice Act 1992 (Qld).

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

Exhibit 6 are the sentencing remarks of Judge Loury. That robbery involved the child and three others robbing a 14-year-old boy in Toowoomba City at 7.30 pm on the evening of 3 November 2021. The child was interviewed and admitted being present during the robbery. The child spent 103 days in detention prior to being dealt with by Judge Loury. Unfortunately, that period in detention did not deter the child from committing the offending here.Facts of present matters The facts are agreed (Exhibits 7 and 8). As to the first indictment,[3] the complainant was Ms Crampton. She was 36 years of age at the time of the offending. On 7 October 2022, she was at home with her two young children. She had parked her Mercedes in the driveway and had locked it. At 2.20 pm, she could hear a dog barking. She went outside to quieten the dog and she saw the child walking into her house through the back door (Count 1). The child was wearing a black hooded jacket. She began to follow the child into the house and told him to get out of the house. The child ran through the house and turned abruptly and faced her holding a knife with a blade about 10 to 15 centimetres long and walked towards the complainant with the knife raised. The complainant said, “Please don’t, just go, I have children here.” The child said, “Give me your keys motherfucker.” The child then grabbed keys from a dining room table and ran out the front door (Count 2).[3]No 270/23 is first in point of time. There was another person in the front yard. The police were called shortly after and she was able to provide police with a tracking application. This application provided live updates of the location of the stolen vehicle. Undercover police were deployed to follow the stolen car throughout Toowoomba. At one point, it was driving at a speed of 132 kilometres per hour in a 50 kilometre per hour speed zone (Count 3). The driver was a male teenager with dark hair. The car was sighted several more times that afternoon. Eventually, a police helicopter commenced surveillance. At 7.07 pm POLAIR observed three people exit the stolen vehicle on Smith Lane and leave on foot. One of these people was the child. The car continued on and minutes later was intercepted by police. The child fled. Two other juveniles were detained. The following day, a search warrant was executed at a townhouse for unrelated matters and police located a text message thread between CT and the child. The child sent an image of the steering wheel of the Mercedes. The child also told her he was in a “foot chase”. The child’s fingerprints were found on the car. He was picked up on a warrant in St George on 21 October 2022 and was detained and remanded. As to the next indictment,[4] the complainant was Ms Hunter. She lived in a house in Mt Lofty and owned a black VW Passat. In the afternoon of 16 October 2022, she was at her home. She had returned home at about 4.30 pm and parked her car on the nature strip. The door to her house was unlocked and open. Her handbag was on her couch. At 5.30 pm, she walked into her hallway and saw the child holding her handbag. She ran towards him saying, “Get the fuck out of my house.” (Count 1). He left the house through the veranda doors with the handbag and was chased. He went through a gate and closed it. The handbag was caught in a fence paling and the complainant grabbed the strap, ripping it from the bag. The child took keys from the handbag and ran to the complainant’s car getting into the driver’s seat. At this stage, a white Commodore drove up behind the complainant’s car. A female got out of the back seat and approached the complainant yelling, “I’m going to kill you cunt, let go of the fucking car.” There was another female on the back seat of the Commodore. The complainant stood holding the door to her car, and the female raised her arm and hit the complainant in the right side of the head with a small shiny object. The complainant let go of the door. The Commodore with the females drove off and the child drove away in the complainant’s car. The complainant called for help. Later, the child drove back down the street. The child accelerated off after he had accelerated towards one of the neighbours. Police and ambulance were called. The car was seen at 1.00 am on 17 October 2022. Police were called and the child’s fingerprint was located on a window (Count 3).[4]No 269/23.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

He submits that 21 months is appropriate, with 50 percent to serve, and no conviction should be recorded because of the importance of not impacting his employment prospects.Conclusion In conclusion, it is my view that these are very serious offences. They involve two home invasions. One involves the use of a weapon. It is true that no physical injuries were apparently caused (or serious ones), but they would have been quite frightening to the complainants. It is of concern that the child has a previous assault entry for assaulting a 74-year-old woman and a previous robbery charge. It is also of concern the present offending breaches a restorative justice order, a conditional release order and a probation order which is a significant aggravating feature. I have gone through the pre-sentence reports in some detail and despite Mr Edridge’s submissions, a lot of the matters stated by the child are of concern. I am very concerned there is a real and high risk of re-offending, particularly if the child associates with his peer group in Toowoomba which I think is likely. Considering the nature of the offences, the child’s history, the pre-sentence report, all of the sentencing options and noting that detention is a sentence of last resort and not desirable, I consider detention to be the only appropriate sentence in this matter.[8] [8]I note the defence did not contend that detention was not appropriate here. In my view, if the matter had gone to trial, bearing in mind the principle of totality and the breaches, the child would have received a sentence in the order of two and a half to three years’ imprisonment to serve 70 percent. In light of the mitigating factors, in particular the plea of guilty, I propose to reduce that to a total of two years’ detention to serve 60 percent. The particulars of the sentence are below. I consider there are special circumstances to reduce the detention period from 70 percent to 60 percent in light of the early pleas, the deprived upbringing and the separation periods. As regards the recording of a conviction, to my mind, the offence involving the use of the knife is particularly serious and would have been quite frightening. I consider the second robbery to be serious as well. He has numerous previous convictions, including for burglary and unlawful use. I note of course that one must have regard to the child’s future and that the starting point is that no conviction should be recorded. It is also not a simple task.[9] [9]R v SCU [2017] QCA 198 at [94]. I agree with the Crown that unfortunately there are low prospects of rehabilitation here bearing in mind the nature of the offence and the history of the child. Balancing that against the matters in s 183(1)(c) of the YJA, I exercise my discretion to record convictions on each count. With respect to the conditional release order imposed on 25 August 2022, I order the child serve detention of eight months and 27 days. I order this period be served concurrently with the detention orders I have imposed on the other indictments.

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