R v HS

[2013] QChC 12

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v HS [2013] QChC  12

PARTIES:

R

(respondent)

v

HS

(applicant)

FILE NO/S:

No 87 of 2013

PROCEEDING:

Application for Sentence Review

ORIGINATING COURT:

Childrens Court, Brisbane

DELIVERED ON:

13 May 2013 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

13 May 2013

JUDGE:

Rafter SC DCJ

ORDERS:

1.    Extend the time for filing the application for review to 8 April 2013.

2.    Vary the order made by the Childrens Court at Maryborough on 5 March 2013 by substituting a probation period of 6 months.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING JUVENILES – SENTENCE REVIEW – where the limitation period for filing an application for review had expired – where the applicant sought leave for sentence review to be heard out of time – where the delay was short– whether there was merit in the sentence review

CRIMINAL LAW – SENTENCE – SENTENCING JUVENILES – SENTENCE REVIEW – where the applicant pleaded guilty to on offence of wilful damage – where  the sentence review application challenges the order of 12 months probation – where the applicant was 16 years old when sentenced – where the applicant has a criminal history including offences of burglary and unlawful use of a motor vehicle – where the applicant has previously been placed on probation for 12 months – whether a shorter period of probation would have been appropriate.

Youth Justice Act 1992 (Qld), ss 119(2)(b), 122 and 123(1)

SOLICITORS:

D. J. Law of Legal Aid Queensland for the applicant.

B. Jackson of the Director of Public Prosecutions (Queensland) for the respondent.

1. HIS HONOUR:   This is an application for review of a sentence imposed in the Childrens Court at Maryborough on 5 March 2013.  The application was filed on 8 April 2013.  The application is out of time, but the short delay is satisfactorily explained, so I would extend the time for filing the application to 8 April 2013. 

1. On 5 March 2013 in the Maryborough Childrens Court, the applicant pleaded guilty to wilful damage.  The offence occurred on 13 November 2012.  The Childrens Court magistrate placed the applicant on probation for 12 months and did not record a conviction.  The applicant was 16 years old.  He is still 16.  He had a prior history. 

1. He was dealt with in the Dalby Childrens Court on 30 May 2011 for burglary, unlawful use of a motor vehicle and entering a dwelling with intent.  He was placed on probation for 12 months and ordered to perform 40 hours community service.  On 19 December 2011, he was reprimanded for entering a vehicle for the purpose of committing an indictable offence and entering premises and committing an indictable offence by breaking.  On 1 March 2013, he was dealt with for traffic matters and placed on a good behaviour order for 12 months. 

1. The applicant is under the care of the Department of Child Safety.  At the time of the offence, he was residing at a care house.

1. A caseworker employed by the Department was parked in a departmental vehicle at the residence where the applicant resided.  She was waiting there to pick up another child who was to be moved to another placement.  The applicant became angry because he was friendly with the other child.  The child care worker was seated in her vehicle and speaking on a mobile telephone.  The applicant tried to open the door to the car.  The caseworker ignored him and told him to go away.  The applicant went around to the back of the car and climbed on the roof and then jumped down on the bonnet.  He jumped off the bonnet and landed in front of the car.

1. The damage caused to the vehicle was $821.60.  The caseworker intended to leave the premises.  The applicant attempted to open the door again and abused the caseworker in the most foul terms. 

1. Against that background, it is submitted by Mr Law for the applicant that, “There should be some tolerance that an abused child in the care of Child Safety will sometimes act out in ways that damage property owned by the Department or one of its providers.  The applicant’s offence was not an act against a member of the general public.”  It is true, as Mr Law submitted, that the applicant has endured many difficulties in his life.  He has been abused and neglected.  He is profoundly deaf. He is transsexual and now identifies as a girl, which had led to bullying by others.

1. It is also true, as Mr Law submitted, that the applicant has good support in the community and is making real progress.  Nevertheless, I would not accept that Department officers should tolerate damage to property or verbal abuse. 

1. I note that a probation order was the sentence contended for by the solicitor who represented the applicant before the Childrens Court magistrate.  However, the period of 12 months probation is the maximum available period for the offence of wilful damage.  In my view, in all of the circumstances, a shorter period of probation would have been more appropriate.  It is not necessary for the applicant to demonstrate error in order to succeed in this application for review.  I consider that six months probation would be adequate in the circumstances.  I will therefore make the following orders:

   1)   Extend the time for filing the application for review to 8 April 2013; and

   2)   Vary the order made by the Childrens Court at Maryborough on 5 March 2013 by substituting a probation period of six months.