R v GN

[2018] QChC 28

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v GN [2018] QChC 028

PARTIES:

THE QUEEN

v

GN

(Applicant)

FILE NO/S:

254 of 2018

DIVISION:

Criminal

PROCEEDING:

Sentence review

ORIGINATING COURT:

Childrens Court of Queensland

DELIVERED ON:

13 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2018

JUDGE:

Richards DCJ

ORDER:

Application allowed. The conditional release order is set aside. For the common assault charge it is ordered that three months’ probation run concurrently with the burglary sentence. No conviction is recorded.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GENERALLY – where the applicant was sentenced to six months detention to be served by way of conditional release order for a charge of common assault  – where the child spat on the bus driver – where detention should be imposed as a last resort – where reprimand is not appropriate.

SOLICITORS:

C Lovel of Legal Aid Queensland for the applicant

A Stannard of ODPP for the respondent

1. The applicant pleaded guilty on 25 July 2018 in the Childrens Court at Maroochydore before Magistrate Madsen. A presentence report was ordered.  He was sentenced to six months detention to be served by way of conditional release order for a charge of common assault; nine months’ probation for a charge of burglary and commit and indictable offence and reprimanded for one charge of commit public nuisance and evade fare.  He has appealed against the imposition of the conditional release order.

1. The applicant was 15 years old at the commission of the burglary offence, 17 at the commission of the rest of the offences and almost 18 years of age now.  He had a juvenile criminal history including a previous entry for enter premises and commit an indictable offence on 1 July 2016. That offending was committed after the burglary but before the balance of the subject offending and at the time he was sentenced to a restorative justice order.  He had otherwise been reprimanded.

1. The facts of the offences are as follows:

·    On 6 March 2016, the victim’s house at Buddina was broken into while he was on holidays between 28 February and 4 March.  There was damage to the window frame where entry was gained but the victim was unsure if any of his property had been taken. The applicant’s fingerprints were found on the window frame.

·    On 27 April 2018, the applicant was in a group of children who were on a bus.  They were swearing and causing a disturbance at the rear of the bus.  The driver stopped the bus at Cooroy and told them to get off the bus.  They then approached him and said “you’re a dog cunt mate”.  The applicant came up to him pushing is face into his saying “see how brave you are to hit a 17 year old” was yelled in his face.  The victim remained calm and just said “I don’t want to hit you” while waiting for the police to arrive.  As he was walking off he spat on the bus driver.  He was charged with public nuisance because he was aggressive when the police arrived.  He was intoxicated at the time.

1. The pre-sentence report indicated that the applicant had suffered a detrimental childhood.  He had been placed under a long term guardianship order in 2014 due to his mother and father’s chronic drug and alcohol abuse and related unsafe and unhygienic environment.  Since being in care he’d had numerous placements.  He had lived with his grandmother until he was 13, then he was placed with foster carers, eventually put into residential care group where his behaviour deteriorated and he became difficult to transition to any meaningful activities such as schooling.  He would intermittently self-place with his mother where there were concerns about boundaries, supervision and drug use.  It was assessed that his upbringing had been inadequate in terms of social and emotional support and as a result he had difficulty in managing his behaviour and emotions.  At the time of the offending he had just lost his employment as a newspaper roller and he had also had another placement breakdown such that he was unsupervised and unstructured.  He failed to attend an interview in relation to the report.  He was assessed as being unsuitable for a restorative justice order at the time. 

1. In making submissions for the applicant, the solicitor indicated that the child had said to him that he feels particularly bad about the assault and that he was heavily intoxicated in relation to the burglary and bus incident.  He had a history of homelessness for a while.  He wants to become a mechanic and potentially join the army.

1. Before passing sentence, the child indicated to the Magistrate that he was sorry for what he actually did and that he didn’t have a phone when the report was being prepared so it was hard to get in contact with him.  He acknowledged that his attitude was pretty bad but he had been working on it lately.

1. In sentencing the child, the Magistrate said [at p 2, l 40 of his decision]:

“You have lost the right to seek to excuse your behaviour by peer pressure and are troubled by it.  You’ve received support in your life to manage these problems.  I’m not naïve, yes, at times where people like yourself who are having their lives basically administered by a government department, it’s really hard.  But some people actually lead successful lives with that intervention.  And you, you’re just a coward.”

1. Further the Magistrate seems to have decided that the only appropriate punishment for the common assault was a custodial sentence [on p 4, l 40]:

“I’ve considered that you should be detained in actual custody as a last resort for the least time that is justified in the circumstances.  I’ve considered the detention order may only be made after all other sentences have been considered, and taking into account the desirability of not holding you in custody.  I am satisfied that no other sentence is appropriate in the circumstances of the case.  Can I say, in that respect, your apathy previously expressed; your inability to be contacted for whatever inept reasons or participate in interviews; the very reliable opinion statement; your lack of engagement; the difficulties enforcing consequences upon you; your lack of understanding about the possible impacts of your behaviour upon the victims, which you have now explained to me you have a little bit more insight, given the risk of illness and disease.”

1. In the course of submissions, the Magistrate referred to a case that he had seen the week before, where an adult charged with common assault had been spat upon a security guard and the person had received nine months, to serve three months for spitting.

1. Although the Magistrate appears to have paid some lip service to the fact that detention should be imposed under the Youth Justice Act only as a last resort, it is clear that he did not apply the principles of the Act upon which sentence must be based.  The Magistrate seemed overwhelmed by the fact that the child had not participated in the pre-sentence report to the extent that he considered appropriate and the fact that the child had a disrupted childhood seems to have been used as a factor against him. The sentencing principles under s150 of the Act seem to have been largely ignored, in particular, the special considerations under subsection (2), namely:

“(b)     A non-custodial order is better than detention in prevailing a child’s ability to re-integrate into the community; and

(c)      The rehabilitation of a child found guilty of an offence is greatly assisted by –

1.          The child’s family; and

2.          Opportunities to engage in educational programs and employment; and

(d)      A child who has no apparent family support or opportunities to engage in education programs and employment should not receive a more severe sentence because of the lack of support or opportunity.”

1. In this case, the child was 17 at the time of the offence, but he only had one previous conviction for which a restorative justice process was implemented.  In relation to the burglary offence, he had no previous convictions at all.  It was his first offence of violence.  He pleaded guilty.  The maximum penalty was 18 months imprisonment.  It was inaccurate to consider he had no remorse.  He in fact said he had remorse at the time of the sentence.  He acknowledged his guilt. It was conceded by the crown that the sentence was outside sound sentencing principles.

1. It is submitted on behalf of the child that he should be reprimanded on the common assault.  Whilst it is his first offence of violence, spitting is regarded as a serious example of assault and whilst the adult sentence was in no way relevant to the sentencing of the child, nonetheless spitting on someone who is engaged in public service such as a bus driver means, in my view, that a reprimand is not appropriate.

1. In my view, the appropriate order is one of three months’ probation to run concurrently with the burglary sentence. No conviction is recorded.