R v Foj
[2025] QChC 14
•12 June 2025
CHILDRENS COURT OF QUEENSLAND
CITATION:
R v FOJ [2025] QChC 14
PARTIES:
THE KING
(respondent)
v
FOJ
(applicant)
FILE NO:
132/25
DIVISION:
Criminal
PROCEEDING:
Review
ORIGINATING COURT:
Childrens Court, Maroochydore
DELIVERED ON:
12 June 2025
DELIVERED AT:
Brisbane
HEARING DATE:
12 June 2025
JUDGE:
Farr SC DCJ
ORDERS:
1. The extension of time sought is allowed.
2. The sentence imposed on 19 March 2025 is set aside.
3. The applicant is sentenced to a 10-month good behaviour order pursuant to section 175(1)(b) of the Youth Justice Act 1992 (Qld).
4. No conviction recorded.
5. This is not an appropriate matter for a restorative justice order.
CATCHWORDS:
CRIMINAL LAW – SENTENCING JUVENILES – SENTENCE REVIEW – where the applicant plead guilty to one count of affray – where the applicant was sentenced to a 12 month probation order and no conviction recorded – where the sentencing hearing and remarks were brief – where both the prosecution and the applicant’s legal representatives submitted for a 12 month probation order – whether the sentence imposed was excessive
LEGISLATION:
Youth Justice Act 1992 (Qld)
SOLICITORS: Legal Aid Office, Queensland for the applicant
Director of Public Prosecutions for the respondent
This is an application for a review of a sentence imposed by the Maroochydore Children’s Court on the 19th of March 2025. The applicant seeks an extension of time to allow the matter to be heard. It was filed about 22 days outside of the statuted 28-day period. The respondent has taken no issue with the extension of time application and has acknowledged that there is no prejudice to the respondent in that regard. The respondent has also submitted that the sentence that was imposed ought be varied, and for that reason, it is appropriate that the extension sought is granted and I so order.
The applicant pleaded guilty on the 19th of March 2025 to one count of affray. He was sentenced to a 12-month probation order and no conviction was recorded. The facts of the offending are brief. Some boys got themselves involved in some sort of fight in a public place, being a shopping centre. The applicant’s involvement was to run towards the two boys who were engaged in a fight, and shape up in a fighting stance towards one of them, but his behaviour did not extend beyond that. The boy that he had shaped up to, it would seem, must have been struck by someone, because he, as seen on CCTV footage, fell to the ground, apparently unconscious, and was then spat upon by another boy before the group dispersed.
A Children’s Court Judge may review a sentence order of a Children’s Court Magistrate pursuant to section 118 of the Youth Justice Act 1992 (Qld). A review is to be conducted as a rehearing on the merits pursuant to section 122(1), and should be conducted expeditiously and with as little formality as possible.
The ground of the review is that the order imposed was excessive in the circumstances. I note that the period of 12 months’ probation which was imposed was the maximum period of probation that could have been imposed under the legislation.
The applicant was 13 years of age at the time of the offence, and was 14 at the time of sentence. He had a relevant criminal history and had been the subject of probation in the past, but was not the subject of any order at the time of his involvement in this particular offence.
The sentence hearing was very brief. During the course of the hearing, the prosecutor made this submission, “It’s a degrading assault. I note that the maximum penalty is 12 months for the affray, but your Honour, in my submission, ought to give consideration to a detention order” – something indistinct – “penalty attached to an attack like that simply because the person is not willing to make a statement. The facts clearly speak for themselves where he has been knocked unconscious and spat on.” The reference to the person not being willing to make a statement appears to be a reference to the fact that the person who was struck and spat on declined to give a statement to police.
The applicant submits that the prosecutor’s submissions, which went unchallenged, unfortunately, by the applicant’s duty lawyer, were effectively inviting the court to sentence the applicant for an offence for which he was not charged, that being the offence of assault, perhaps occasioning bodily harm, whilst in company. There would seem to be considerable merit to that submission on behalf of the applicant.
The submissions on sentence from both the prosecution and the applicant’s legal representative were identical. They each asked the magistrate to impose a sentence of 12 months’ probation, and that is what the magistrate did. The sentencing remarks were almost non-existent, and the magistrate did not provide reasons for imposing the 12-month probation order, although one can, I think, reasonably infer it was due to the fact that that was the sentence both parties were seeking. It is most certainly not clear how the court, therefore, took into account the applicant’s age, the circumstances and nature of the affray and his role in that offence, and the fact that this matter was dealt with by way of an early plea of guilty.
Those were all matters which ought to have been addressed, and the failure to do so immediately enlivens the discretion of this court. The sentence itself also is of such a nature that this court’s discretion to intervene would be enlivened even without such an omission.
The applicant’s involvement in this offence was minimal, and the fact that he was 13 years of age and had entered an early plea of guilty ought to have resulted in a sentence which appropriately reflected each of those particular factual circumstances. The only dispute between the parties at this application today is the order that this court should impose. The applicant seeks an order that he be sentenced to a 12-month good behaviour order pursuant to section 175(1)(b) of the Act. The respondent submits that a shorter period of probation in the order of six months ought be the order imposed.
I note that the applicant did respond in a reasonably satisfactory way to that order for the period of two months before the order was stayed pending the outcome of this application.
It seems to me appropriate, in those circumstances, that a good behaviour order is the appropriate when taking into account all relevant considerations. As I have indicated, it has been submitted on his behalf that this court ought to impose a 12-month good behaviour order, but given that he satisfactorily completed two months of that probation order, in my view, a 10-month good behaviour order should be the outcome of today’s matter.
Orders
1. The extension of time which is sought is allowed.
2. The sentence imposed on 19 March 2025 is set aside.
3. The applicant is sentenced to a 10-month good behaviour order pursuant to section 175(1)(b) of the Youth Justice Act 1992 (Qld).
4. No conviction is recorded for the offence.
5. This is not an appropriate matter for a restorative justice order.
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