R v GWD - [2019] QChC 23

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v GWD [2019] QChC 23

PARTIES:

R

v

GWD

(Applicant)

FILE NO/S:

165/2019

DIVISION:

Appellate

PROCEEDING:

Sentence review

ORIGINATING COURT:

Proserpine Children’s Court

DELIVERED ON:

27 May 2019 (delivered ex tempore)

DELIVERED AT:

Brisbane Childrens Court

HEARING DATE:

27 May 2019

JUDGE:

Dearden DCJ

ORDER:

(1)   Application for sentence review granted.

(2)   Set aside the sentence imposed by the learned acting Children’s Court magistrate at Proserpine Children’s Court on 25 March 2019 in respect of the following charges:

a.   Dangerous operation of a motor vehicle (21/1/2019);

b.   Unlawful use of a motor vehicle (21/1/2019); and

c.   Stealing (25/1/2019).

(3)   Pursuant to Youth Justice Act 1992 (Qld) s 162(1), s 163(1), and s 164, without making a sentence order, order that the applicant be referred to a restorative justice process in respect of the charges the subject of the application for sentence review.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES - application for sentence review – where the applicant had previously been sentenced to six months’ probation with no conviction recorded for three offences – where the learned sentencing magistrate failed to give any consideration to a restorative justice referral – where circumstances of aggravation were raised in sentence to which the applicant did not plead – whether six months’ probation was excessive in the circumstances

LEGISLATION:

Criminal Code Act 1899 (Qld) Sch 1, s 328A(1), s 398, s 408A(1)(a)

Youth Justice Act 1992 (Qld) s 118, s 122(1), s 150, s 162(1), s 163, s 164

CASES:

MLN v The Queen [2018] QChC 32

R v De Simoni (1981) 147 CLR 383

R v PBD [2019] QCA 59

COUNSEL:

D Law (sol) for the applicant

S Sherrie (sol) for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Office of the Director of Public Prosecutions for the respondent

HIS HONOUR: This is an application for sentence review by GWD, in respect of the following offences:

(1)   dangerous operation of a motor vehicle;[1]
(2)   unlawful use of a motor vehicle;[2] and
(3)   stealing.[3]

[1] Criminal Code Act 1899 (Qld) Sch 1, s 328A(1).

[2] Criminal Code Act 1899 (Qld) Sch 1, s 408A(1)(a).

[3] Criminal Code Act 1899 (Qld) Sch 1, s 398; Application for Sentence Review dated 3 April 2019.

At the same time, the applicant was also dealt with for the following charges:

(1) failure to comply with conditions of a class-C license; and
(2) fail to display L-plates.[4]

[4] Exhibit 1 - Outline of Submissions on behalf of the Child, filed 24 May 2019, [1], [6].

The sentence took place at the Proserpine Childrens Court before an acting learned magistrate on 25 March 2019, and the child was sentenced to six months’ probation with no conviction recorded.[5] The application for sentence review was filed on 8 April 2019.[6]
[5] Exhibit 1 - Outline of Submissions on behalf of the Child, filed 24 May 2019, [3.1]; Application for Sentence Review dated 3 April 2019; Exhibit 3 – Outline of Submissions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v GWD

Details

AGLC: R v GWD [2019] QChC 23
Case: [2019] QChC 23
Decision Date: 27 May 2019 (delivered ex tempore)

CaseChat Overview and Summary

The case of R v GWD involved an application for sentence review by the defendant, who had previously been sentenced to six months' probation for three offences without a conviction being recorded. The offences included dangerous operation of a motor vehicle, unlawful use of a motor vehicle, and stealing. The original sentencing took place at the Proserpine Children's Court on 25 March 2019. The key issue before the court was whether the sentence of six months' probation was excessive, especially given that the sentencing magistrate did not consider a restorative justice referral and the circumstances of aggravation were raised without the defendant pleading to them.

The court considered the principles of sentencing for juveniles and the importance of restorative justice in such cases. It was noted that the magistrate had not given any consideration to the possibility of a restorative justice referral, which is a significant aspect of juvenile justice under the Youth Justice Act 1992 (Qld). The court found that the sentence imposed was excessive in the circumstances, particularly as it did not align with the objectives of the youth justice system which includes rehabilitation and reintegration of the offender into society.

The court granted the application for sentence review and set aside the original sentence. It ordered that the defendant be referred to a restorative justice process in accordance with sections 162(1), 163(1), and 164 of the Youth Justice Act 1992 (Qld). This decision underscores the importance of considering restorative justice options and the need for a balanced approach in sentencing juvenile offenders.

Orders

Orders of the court

(1) Application for sentence review granted.

(2) Set aside the sentence imposed by the learned acting Children’s Court magistrate at Proserpine Children’s Court on 25 March 2019 in respect of the following charges:

a. Dangerous operation of a motor vehicle (21/1/2019);

b. Unlawful use of a motor vehicle (21/1/2019); and

c. Stealing (25/1/2019).

(3) Pursuant to Youth Justice Act 1992 (Qld) s 162(1), s 163(1), and s 164, without making a sentence order, order that the applicant be referred to a restorative justice process in respect of the charges the subject of the application for sentence review.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v GWD [2019] QChC 23
PARTIES:	R v GWD (Applicant)
FILE NO/S:	165/2019
DIVISION:	Appellate
PROCEEDING:	Sentence review
ORIGINATING COURT:	Proserpine Children’s Court
DELIVERED ON:	27 May 2019 (delivered ex tempore)
DELIVERED AT:	Brisbane Childrens Court
HEARING DATE:	27 May 2019
JUDGE:	Dearden DCJ
ORDER:	(1) Application for sentence review granted. (2) Set aside the sentence imposed by the learned acting Children’s Court magistrate at Proserpine Children’s Court on 25 March 2019 in respect of the following charges: a. Dangerous operation of a motor vehicle (21/1/2019); b. Unlawful use of a motor vehicle (21/1/2019); and c. Stealing (25/1/2019). (3) *Pursuant to Youth Justice Act* 1992 (Qld) s** 162(1), s 163(1), and s 164, without making a sentence order, order that the applicant be referred to a restorative justice process in respect of the charges the subject of the application for sentence review.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES - application for sentence review – where the applicant had previously been sentenced to six months’ probation with no conviction recorded for three offences – where the learned sentencing magistrate failed to give any consideration to a restorative justice referral – where circumstances of aggravation were raised in sentence to which the applicant did not plead – whether six months’ probation was excessive in the circumstances
LEGISLATION:	Criminal Code Act 1899 (Qld) Sch 1, s 328A(1), s 398, s 408A(1)(a) Youth Justice Act 1992 (Qld) s 118, s 122(1), s 150, s 162(1), s 163, s 164
CASES:	MLN v The Queen [2018] QChC 32 R v De Simoni (1981) 147 CLR 383 R v PBD [2019] QCA 59
COUNSEL:	D Law (sol) for the applicant S Sherrie (sol) for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Office of the Director of Public Prosecutions for the respondent