R v JLM

[2011] QChC 5

CHILDREN’S COURT OF QUEENSLAND

CITATION:

R v JLM  [2011] QChC 5

PARTIES:

R

V

JLM

(Applicant)

FILE NO/S:

33/11

DIVISION:

Criminal

PROCEEDING:

Application for Sentence Review

ORIGINATING COURT:

Children’s Court, Redcliffe

DELIVERED ON:

19 May 2011 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2011

JUDGE:

Irwin DCJ

ORDER:

1.   Application for Sentence Review Granted

2.   Order of Children’s Court discharged

3. Offence referred to the coordinator for a conference pursuant to s 161 (3)(a)(i) of the Youth Justice Act 1992 (Qld)

CATCHWORDS:

APPLICATION FOR SENTENCE REVIEW – where the applicant pleaded guilty to one count of wilful damage – where he was sentenced to nine months probation with no conviction recorded – where he was 16 years at the time of the offence – where he punched a cash register causing the LCD to crack – where compensation of $280 was sought – where respondent accepted that the offence was at the lower end of the range – where the applicant had been convicted in a 14 month period of two counts of unauthorised dealing in shop goods, one count of stealing and one count of contravening a direction or requirement – where no conviction had been recorded for these offences – where with the exception of the last of these offences he had been reprimanded – where he was placed on a good behaviour bond for the last of these offences – where the wilful damage was committed in breach of this order – where he made full admissions with the police and pleaded guilty on the first return date – where subsequent to the sentence he was taking steps towards his own rehabilitation and had some future prospects – where he had never previously been referred to a Youth Justice conference – whether the appropriate exercise of the sentencing discretion was a referral to a Youth Justice conference

Youth Justice Act 1992 (Qld), s 118, s 122(1), s 123(1)(c), s 161(2), s 161(3)(a)(i).

COUNSEL:

CA Nelson for the applicant

S. An for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

HIS HONOUR: This is an application under section 118 of the Youth Justice Act for a sentence review in relation to a sentence imposed on the applicant by the Redcliffe Magistrates Court sitting as the Childrens Court on the 1st of February 2011. The applicant who was and is 16 years of age, and therefore a child, was sentenced to nine months probation, with no conviction recorded, following his plea of guilty to one count of wilful damage committed on 24 January 2011.

The offence occurred in a McDonald's store where the applicant became angry and frustrated about the quality of his food.  He argued with a staff member about it and punched the cash register as an outlet for his frustration.  This caused the LCD display to crack and become unstable.  Compensation of $280 was sought but, as the applicant is a child, and not in receipt of income, he was unable to offer restitution and none was ordered. 

The applicant left the store on foot.  He was intercepted by police and made full admissions to the offence.  This is not diminished as a mitigatory factor on sentence by his subsequent exercise of his right not to participate in a formal record of interview.  This was the applicant's fourth appearance before the Redcliffe Childrens Court in a 14 month period.  However, his previous three appearances, when he was 14 and 15 years of age, were not for like offences.  The previous appearances were for two counts of unauthorised dealing with shop goods, for which $10.50 restitution was ordered; one count of stealing; and one count of contravening a direction or requirement.  No convictions had been recorded on these occasions.  With the exception of the charge of unauthorised dealing with shop goods, he was reprimanded.  For the charges of unauthorised dealing with shop goods, he appeared before the Court on the 7th of December 2010, about seven weeks earlier.  He was placed on a six month good behaviour bond.  Therefore, he breached this bond by committing these offences. 

His experienced solicitor referred to the fact that these offences were obviously not of a similar nature to the offence of wilful damage.  She said that he became quite upset because of the service which was given to him in the store, and became frustrated, as I have mentioned.  However, he now accepted that his behaviour was inappropriate.  She noted that the good behaviour bond continued to hang over his head and submitted that the appropriate penalty was either a reprimand or another good behaviour bond. 

The learned Magistrate responded that it was time that he thought about probation, because these types of penalties were not working.  The applicant's lawyer responded that he would be willing to comply with a probation order.  His Honour appeared to consider that the applicant's lack of capacity to pay restitution was another reason to support this sentencing option. 

In placing the applicant on probation, the Magistrate observed that he had been before the Court on three previous occasions, and the last occasion, in December, was, "too close" to the last offence to just put him on a bond or give him a reprimand.  His Honour said it was about time the applicant took responsibility for his actions, and noting he was 16, told him that if he continued to carry on like an idiot, in less than 12 months he would quickly be going through the door of the Court to the watch-house.  In other words, he reminded the applicant that he would be soon facing a different sentencing regime than the Youth Justice regime. 

Therefore, as Ms An, on behalf of the respondent, submits, the Magistrate took into account the applicant's age, his juvenile criminal history, that the commission of the offence was in breach of a good behaviour bond, and his continued offending over the 14 month period.  His Honour was entitled to take this into account.  His Honour was also entitled to take into account that the offence was committed in a public place, within public view. 

It is submitted on behalf of the applicant that this sentence was excessive.  I note that before the sentence was stayed, upon this application being made, the applicant complied with his reporting requirements on three occasions under the probation order.  It is submitted, on his behalf, that a Youth Justice conference. with an indefinite referral or a good behaviour bond, would be more appropriate to reflect the gravity of his criminal conduct or, alternatively, that his probation order be reduced to three months; although, before me, Ms Nelson, on behalf of the applicant, argues that her primary submission is that he be referred to a Youth Justice conference. 

The respondent concedes, appropriately, that if probation is to be imposed, a shorter period than nine months should have been the subject of the order.  It is submitted that a four-month probation order would be appropriate.  However, while it is conceded that a Youth Justice conference would be a sentencing option to be considered, it submitted that is not appropriate in this case.  The argument put forward by Ms An in support of this position is that the applicant was reprimanded for minor offences on two earlier occasions.  When he appeared in the Redcliffe Childrens Court in December 2010, for the dishonesty offences, he was ordered to be of good behaviour for six months.  It is submitted that an aggravating feature is that he committed this offence whilst on a good behaviour bond only six weeks after the order. 

Another feature to be noted, it is submitted, is that the offence, subject to the sentence which I am considering today, is more serious than the previous offences from December 2010 in terms of the restitution amount for the damage caused by the applicant when he acted in a violent manner.  It is therefore submitted that a probation order of a duration to which I have referred is appropriate. 

As under 122(1) of the Youth Justice Act, this review of the Magistrate's sentence is by way of rehearing on the merits, it is relevant that I also take into account some additional submissions that were placed before me by Ms Nelson, which were not before the Magistrate. They cannot have been before the Magistrate because these circumstances had not yet arisen. Ms Nelson advises me that JLM has commenced engaging in a course through the Deception Bay Community Youth Program, which will assist him to gain an apprenticeship in the building industry. It is a five-day a week course for two months.

As a consequence, she submits that he has some future prospects and has taken his own steps towards rehabilitation.  She submits that, on those circumstances, he seems to be on the right track, without the need for a probation order.  She again emphasises the spontaneity of the commission of this offence and recognises that there is no information before the Court of the circumstances of the earlier offences.  She submits that the penalty imposed by the Magistrate and that sought in the review proceedings before me is disproportionate to the gravity of the offending. 

While an aggravating feature of the applicant's conduct is that it was committed in breach of a good behaviour bond, of which he had been given the benefit a short time previously, substantial features in his favour were his cooperation with the administration of justice, as reflected by his full admissions to the police, and his early plea of guilty on the first return date. 

Although the Magistrate did not refer to this, he is an experienced Magistrate and there is no reason to consider that his Honour did not take these factors into account.  There is also no reason to conclude that his Honour did not take into account that it was not an offence of a similar nature to his previous offending, or that it was spontaneous offending and was an offence towards the bottom end of the range for offences of this nature. 

He would also have recognised the youth of the applicant in imposing sentence.  However, whether his Honour, in the context of the aggravating circumstances I have mentioned, gave these matters sufficient weight, is another matter; and, as indicated, his Honour did not have access to the additional information before me. 

Where I consider that his Honour erred was in not having express regard to section 161(2) of the Youth Justices Act which provides that when, as here, a finding of guilt is made against a child before a Court, the Court must consider referring the offence to a coordinator for a Youth Justice conference. Although reference was made to reprimands, a good behaviour bond and probation, there was no reference to this. In any event, as I have observed, this sentence review is by way of rehearing on the merits. This does not require me to find that the Magistrate made a specific error in the exercise of his sentencing discretion.

In this case, having regard to the child's age, the nature and seriousness of the offence, which the respondent accepts is at the lower end of the range of seriousness of offences of this type, the need for proportionality between the sentence and the offence, the applicant's cooperation with the administration of justice, his early plea of guilty, the fact his offence was dissimilar to previous offences in his criminal history, none of which have involved violence to property, and the fact a Youth Justice conference has not previously been ordered for his offending, and also, the additional facts placed before this Court on sentence, which suggests that he has taken his own steps towards rehabilitation and has some future prospects, as well as his reporting as required on three occasions pursuant to his probation order, notwithstanding the fact that this offence was committed in breach of a good behaviour bond, I consider that the appropriate exercise of the sentencing discretion is an indefinite referral to such a conference.

As the applicant's legal representative submits, this would allow him the opportunity to hear the victim's perspective and gain further insight into the impact of his offending.  The process would allow him to take full responsibility in the presence of a representative of the complainant, making him directly accountable for his actions.  It would also give him an opportunity to gain insight into his offending behaviour and its effect on others, and to encourage him to develop more socially responsible and appropriate behaviours. 

Any personal issues that arise for the applicant, such as anger management issues, can properly be addressed in a Youth Justice conference and an agreement to attend counselling for this type of behaviour can be part of an agreement.  So too can an agreement to perform voluntary work by way of some form of reparation to the community in the absence of the ability to make compensation.  There is no suggestion that there are not appropriate referrals available to this young person in the jurisdiction in which he currently resides. 

In those circumstances, with the exception of that part of his Honour's order, that no conviction be recorded, I discharge the order and substitute in its place, pursuant to section 123(1) paragraph (c) of the Youth Justice Act, another order within the jurisdiction of the Childrens Court Magistrates.

That order will be that I refer the offence to the coordinator for a conference, without the Court making a sentencing order. In other words, an indefinite referral, pursuant to section 161(3) paragraph (a), clause (1) of the Youth Justice Act 1992. Unless there are any further matters, that is the order of the Court and I thank both counsel for their assistance today.

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