R v GB

Case [2024] QChC 18

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v GB [2024] QChC 18

PARTIES:

THE KING

V

GB

(defendant)

FILE NO/S:

52/24, 53/24 & 54/24              

DIVISION:

Criminal

PROCEEDING:

Ruling

ORIGINATING COURT:

Hervey Bay
DELIVERED ON:

5 December 2024 (Ruling and Sentence)

11 December 2024 (Reasons)

DELIVERED AT:

Maroochydore

HEARING DATE:

18 November 2024 (Hervey Bay)

JUDGE:

Long SC, DCJ

CATCHWORDS:

CRIMINAL LAW – CHILDREN – RESTORATIVE JUSTICE PROCESSES – distinguishment of restorative justice referrals pursuant to s 163 of the Youth Justice Act 1992 from a restorative justice order pursuant to s 175(1)(da) and (db) of the Youth Justice Act 1992 – examination of the engagement of s 162(1) in respect of a court diversion referral pursuant to s 164 of the Youth Justice Act 1992 – examination of the processes engageable upon a court diversion referral.

CRIMINAL LAW – CHILDREN – PROCEDURE – interaction of procedure under s 648 of the Criminal Code and the administration of the allocatus with the requirements of s 162 of the Youth Justice Act 1992.

CRIMINAL LAW – CHILDREN – SENTENCING – whether the circumstances relating to an order for a court diversion referral in respect of a child are to be regarded as part of that child’s criminal history in relation to the child pursuant to s 154 and/or the child’s previous offending history pursuant to s 150(1)(e) of the Youth Justice Act 1992.

STATUTORY INTERPRETATION – whether there is a discernible intention that failure of compliance with the requirements of s 36(2)(d) of the Youth Justice Act 1992 invalidates any agreement otherwise reached at a conference convened upon a court diversion referral – consideration of the meaning of the terms “finding of guilt against a child for an offence” and “restorative justice agreement was made as a consequence of a referral” in s 154(3) of the Youth Justice Act 1992.

LEGISLATION:

Youth Justice Act 1992 (Qld) ss 2, 8, 11, 15, 21, 22, 23, 24, 30, 31, 32, 35, 36, 38, 132, 148, 150, 151, 151A, 152, 153A, 154, 162, 163, 164, 175(1)(da), 183, 184, 192A, 192B, 192C, 192D, 289(a), 552, 552B, 552BA, Schedule 1, Schedule 4.

Evidence Act 1962 (Qld) s 10(2).

Penalties and Sentences Act 1992 (Qld) ss 4, 9, 11, 12, 29, 30, 31, 32.

Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) ss 3, 4, 5.

Criminal Practice Rules 1999 (Qld) r 51.

Criminal Code Act 1899 (Qld) ss 648, 649, 650.

Justices Act 1886 (Qld).

Juvenile Justice Act 1992 (Qld) ss 109(1)(e), 113(1).

Acts Interpretation Act 1954 (Qld) s 36.

CASES:

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355

R v Aston (No 2) [1991] 1 Qd R 375

R v Nerbas [2012] 1 Qd R 362.

R v Verrall [2013] 1 Qd R 587

R v Wade [2012] 2 Qd R 31; [2011] QCA 289

Veen v The Queen [No 2] (1988) 164 CLR 465

COUNSEL:

C Cook for the prosecution
E Whitton for the defendant
SOLICITORS:

Director of Public Prosecutions
Geldard Sherrington…

Continue reading R v GB

Sign in free to access the full text

Details
AGLC
R v GB [2024] QChC 18
Case
[2024] QChC 18
Decision Date

CaseChat Overview and Summary

In the case of R v GB, the High Court of Australia was tasked with interpreting various provisions of the Youth Justice Act 1992 (YJA) concerning restorative justice processes for children. The primary issue was the distinction between different types of referrals and orders under the Act, including the implications of a court diversion referral on a child's criminal history and the procedures involved in such referrals. The court also examined the interplay between the statutory provisions and the principles of statutory interpretation.

The central legal questions addressed by the court involved understanding the scope and effect of sections 162, 163, 164, and 154 of the YJA. Specifically, the court needed to determine whether a court diversion referral under section 163(1)(d)(i) of the YJA should be distinguished from a restorative justice agreement made under sections 175(1)(da) and (db). Another issue was whether the process outlined in section 162 of the YJA should apply to a court diversion referral under section 164 of the YJA. The court also considered whether the circumstances of a court diversion referral should be considered part of the child's criminal history or previous offending history under sections 154 and 150(1)(e) of the YJA. Additionally, the court scrutinized whether failure to comply with the requirements of section 36(2)(d) of the YJA invalidates any agreement reached at a conference convened upon a court diversion referral, and the meaning of the terms "finding of guilt against a child for an offence" and "restorative justice agreement was made as a consequence of a referral" in section 154(3) of the YJA.

The court's reasoning focused on the legislative intent behind the various provisions of the YJA. It found that section 154(3) of the YJA does not exclude findings of guilt from a child's criminal history when a restorative justice agreement is made as a consequence of a referral. The court emphasized that the legislative purpose of sections 154(1) and 154(3) was to ensure that a child's criminal history is reflective of the offences for which sentencing orders have been made, regardless of whether there was a recorded conviction. The court also determined that the requirements of section 36(2) serve to create a formal record of any agreement reached at a conference, facilitating any subsequent determinations by the Chief Executive or police officers. Furthermore, the court concluded that the failure to comply with the requirements of section 36(2)(d) does not invalidate an otherwise reached agreement at a conference.

The final orders of the court provided clarity on the interpretation of the statutory provisions, ensuring that the processes and implications of restorative justice referrals under the YJA were properly understood and applied in future cases involving children.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Returning to the YJA, it is first notable that by s 150(1)(a), there is requirement to have regard to, “subject to this Act, the general principles applying to the sentencing of all persons”. There is express reference to s 5(3)(b) of the Criminal Law (Rehabilitation of Offenders) Act 1986 in s 148, which relevantly provides as follows:“148 Evidence of childhood finding of guilt not admissible against adult(1) In a proceeding against an adult for an offence, there must not be admitted against the adult evidence that the adult was found guilty as a child of an offence if a conviction was not recorded.(2) Subsection (1) applies even though the evidence would otherwise be admissible under the Evidence Act 1977, section 15 and the Criminal Law (Rehabilitation of Offenders) Act 1986, section 5(3)(b).”And also in s 154, to that Act generally, as follows:“154 Finding of guilt as child may be disclosed while a child(1) A finding of guilt against a child by a court for an offence, whether or not a conviction has been recorded, is part of the criminal history of the child to which regard may be had by a court that subsequently sentences the child for any offence as a child.(2) Subsection (1) applies despite the Criminal Law (Rehabilitation of Offenders) Act 1986.(3) However, subsection (1) does not apply to a finding of guilt against a child by a court for an offence if—(a)the offence was referred to the chief executive for a restorative justice process under section 163(1)(d)(i); and(b)a restorative justice agreement was made as a consequence of the referral.” The concept of “finding of guilt against a child” is defined in Schedule 4 of the YJA as follows:“finding of guilt means a finding of guilt, or the acceptance of a plea of guilty, by a court, whether or not a conviction is recorded.” The effect of s 154(1) is therefore similar to that generally achieved pursuant to dealing with adults under the PSA and the Criminal Law (Rehabilitation of Offenders) Act 1986, in that a Childrens Court in sentencing a child, may have regard to the history of prior sentencing orders in respect of the child regardless as to whether or not there was a recorded conviction. However, the incorporation of the concept of “finding of guilt” into s 154(3) is somewhat curious. This is because of the expressly different bases upon which s 162 of the YJA is engaged so as to require a court to consider the exercise of the respective powers of referral provided in s 163(1). In relation to a referral “for a restorative justice process to help the Court make an appropriate sentence order” (a presentence referral pursuant to s 163(1)(d)(ii)), it is expressly pre-conditioned as to there being “a finding of guilt”, which logically and having regard to the definition of that concept in Schedule 4 is not to be restricted to a verdict after trial but to also include a court’s acceptance of a guilty plea. Whereas and in respect of the power to which s 154(3) is expressly directed, to make “a court diversion referral” pursuant to s 163(1)(d)(i), the necessity to consider referral “for a restorative justice process instead of sentencing a child” is engaged upon the pre-condition that “a child enters a plea of guilty for an offence in a proceeding before a court”. Moreover and if such referral is made, the stated effect pursuant to s 164(2) is that:“(2) The making of the referral brings the court proceeding for the offence to an end and the child is not liable to be further prosecuted for the offence unless—(a) the chief executive returns the referral under section 32(1); or(b)the chief executive advises the court’s proper officer that the child failed to comply with a restorative justice agreement made as a consequence of the referral.”

Decision

Reasons for decision

Here there is no such legislative purpose to be discerned and particularly so as to disengage the legislative intent of s 154(3), so as to undermine what is the intent of s 154(1) of the YJA as that is directed at a criminal history reflective of the offences for which sentencing orders have been made against a child:(a)The requirements of s 36(2), whilst obviously expected to be complied with, are most readily seen at creating a formal record of any agreement reached at a conference, as a means of providing the basis for any subsequent determination by the Chief Executive requiring advice to the referring court, pursuant to s 164(2)(b), due to failure of compliance by the child with the agreement, or the exercise of further power by a police officer for the same reason, pursuant to s 24(1)(b) of the YJA; (b)Whilst s 34 prescribes who may participate in a conference and victim participation is given some emphasis, including in noting that one of the bases upon which a referral may be returned to a referring authority, pursuant to s 32(1)(c), is that “the chief executive considers it necessary for a victim of the offence to participate and the victim does not want to participate or can not be located after reasonable enquiries”, the requirements of s 35(1) only extend to the participation of the convenor,[20] the child and “a degree of victim participation”, as follows:[20]Being the person appointed pursuant to s 39, by the chief executor, as such: see definition of “convenor” in Schedule 4 of the YJA.“(1) The conference may be convened only if—(a) the child and the convenor attend the conference; and(b)there is a degree of victim participation in the conference through—(i)the attendance of the victim or a representative of the victim; or(ii)the use of pre-recorded communication recorded by the victim for use in the conference; or(iii)a representative of an organisation that advocates on behalf of victims of crime.”;(c)There is the potential of pragmatic difficulties with the concept of “participation of a victim in a conference, having regard to the different degrees of participation permitted by s 35(1)(b); (d)It is otherwise clear that it is the convenor who exercises the powers under s 36 to determine any conference agreement, with the specific requirements of the agreement being that the child “admits committing the offence” and “undertakes to address the harm caused by the child committing the offence”; and(e)There is also the alternative of an alternative diversion program, for appropriate circumstances where a conference cannot be convened though no difficulty created by the referred child and where the referral is otherwise not to be returned because of consideration as to necessity for victim participation with the expressed purpose in s 38(2), that:“The program must be designed to—(a)help the child to understand the harm caused by his or her behaviour; and(b)allow the child an opportunity to take responsibility for the offence committed by the child.”Conclusions

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.