R v LCM
[2012] QChC 15
•17 May 2012 (ex tempore)
CHILDRENS COURT OF QUEENSLAND
CITATION:
R v LCM [2012] QChC 015
PARTIES:
R
V
LCM
(Applicant)
FILE NO/S:
74/12
DIVISION:
Criminal
PROCEEDING:
Application for Sentence Review
ORIGINATING COURT:
Childrens Court, Cunnamulla
DELIVERED ON:
17 May 2012 (ex tempore)
DELIVERED AT:
Brisbane
HEARING DATE:
17 May 2012
JUDGE:
Irwin DCJ
ORDER:
- Application for Sentence Review granted.
- Order of Childrens Court discharged, with exception that no conviction be recorded.
- The applicant is sentenced for all offences to be placed on probation for 6 months subject to the requirements of s 193(1) of the Youth Justice Act 1992 (Qld).
CATCHWORDS:
APPLICATION FOR SENTENCE REVIEW - where the applicant pleaded to four counts of burglary and commit an indictable offence, two counts of unlawful use of a motor vehicle and one count each of attempted unlawful use of a motor vehicle and wilful damage - where the applicant was sentenced to 12 months probation for these offences - where the applicant also pleaded guilty to one count of enter premised and commit an indictable offence by break - where he was sentenced to perform 100 hours of community service for this offence -where no convictions were recorded - where the applicant was 13 years at the time of the offences - where he had no criminal history prior to the commission of these offences - where the offences were committed on six separate occasions over a period of about six and a half months and caused at least $6330 in damage - where the last offence was committed while on bail for the other offences - where with the exception of one of the offences he committed the offences in company of other persons - where the magistrate proceeded on the basis that he was not the ringleader - where the offences were committed during an unstable period of his life when school attendance was not enforced - where at the time of sentence his aunty had been responsible for him for about a month - where the aunty was the only stable figure in his life - where it was the aunty’s intention to take him to live with her in Broken Hill with the intention of him returning to school there- where the magistrate emphasised the necessity of specific and general deterrence - where at the time of the sentence review he had been attending school in Broken Hill and had not got into further trouble - where the community service order was unable to be transferred interstate for enforcement - where there was no bar to a probation order being served in another jurisdiction - where the applicant displayed remorse - where he had fully co-operated with the police in respect of the last offence - where the respondent sought to uphold the 12 month probation order but submitted the sentence be varied by discharging the community service order and instead sentencing the applicant to 12 months probation - whether imposition of the maximum periods of probation and community service which could be ordered was disproportionate to the offending behaviour - whether sufficient weight was given to the sentencing consideration that rehabilitation of a child is greatly assisted by the child’s family and the opportunity to engage in educational programs.
Youth Justice Act 1992 (Qld), s 118, s 121(3), s122(1), s 123(1)(c), s 150(1)(k), s 150(2)(c), s 193(1).
R v BW [2011] QChC 12, distinguished.
R v NW [2011] QChC 6, distinguished.
COUNSEL:
D.Law for the applicant.
M. Le Grand 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 1992 (Qld) on behalf of LCM, who was sentenced on 6 March 2012 when he was 13 years of age in the Cunnamulla Childrens Court on his plea of guilty to four counts of burglary and commit an indictable offence, two counts of unlawful use of a motor vehicle, and one count each of attempted unlawful use of a motor vehicle, and wilful damage to be placed on 12 months probation, and to perform unpaid community service for a period of 100 hours, on his plea of guilty to one count of enter premises and commit an indictable offence by break. I note that the applicant is now 14 years of age.
These nine property offences were committed on six separate occasions over a period of about six and a half months between 15 August 2011 and 26 February 2012, and given the restitution sought, caused at least $6,330 in damage and loss. The first and last offences were committed at Cunnamulla. The other offences were committed at Toowoomba. The final offence was committed while he was on bail for the earlier offences. The applicant was 13 years of age throughout this period.
The first offence was committed between 15 and 18 August 2011 and involved the applicant and two other juveniles pushing a parked car onto the road. After an unsuccessful attempt to start the vehicle, it was abandoned 80 metres away from where it was taken. The applicant was implicated in the offence by admissions from his co-offenders.
On 17 October 2011 entry was gained to a house by breaking a locked window and climbing inside where a television, a Nintendo, jewellery and motocross boots were taken. The applicant's fingerprints were located at the point of entry. It was not stated by the prosecutor whether others were involved. Restitution of $2,200 was sought.
On 18 October 2011 the applicant and at least one other person gained entry to a house by smashing a window and stealing a television. Although the prosecutor referred to other electrical items being taken, the charge only specified the television so far as the applicant was concerned. A vehicle was also taken. A co-offender implicated the defendant as driving the vehicle. No restitution was sought.
Between 5 and 9 February 2012 the applicant damaged a letterbox by attempting to open it with a screwdriver or a similar item. His fingerprints were located on the letterbox. Restitution of $80 was sought.
On 12 January 2012 the applicant and others gained entry to a house by smashing a window. A key was taken and placed in the ignition of a car in the garage. It appeared that the car had not been taken because the offenders, having turned the power off to the house before entry, were unable to open the electronic roller door. The offenders left with stolen property. They returned some time later. A television, three computers, watches and alcohol were stolen. They returned some time later and re-entered the dwelling and stole more property, which included the items which I have just mentioned. The applicant was implicated by a co-offender. No restitution was sought.
The applicant was apprehended on this date. He exercised his right not to be interviewed. He was subsequently charged with these offences. According to the observations of the learned sentencing Magistrate, he was admitted to bail.
On 26 February 2012 the applicant and others broke into a premises from which an electrical business operated by throwing a cement masonry block through a window. The applicant, who made full admissions to being involved in the commission of the offence, told police that he smashed the window. Mobile phones and digital cameras were taken. Restitution of $4,050 was sought.
The applicant had no criminal history prior to the commission of these offences. Although an official transcript of the sentencing proceedings is unavailable, a transcript prepared by the Legal Aid office was accepted as accurate for the purposes of this review.
The applicant's legal representative submitted to the Magistrate that his client had fallen into bad company after being left with little adult supervision. He highlighted the fact that the applicant was only 13 years old, had no prior criminal history and was to move to Broken Hill in New South Wales the following day to live in a more supportive environment with his auntie.
The applicant's legal representative also said that the applicant's mother had taken him with her from Cunnamulla, firstly to Brisbane and then to Toowoomba, due to a serious family dispute, before again returning to Cunnamulla. An unidentified speaker, whom is accepted to be the area coordinator for the Department of Communities, told the Magistrate during the hearing that the mother had come into his life for short periods before leaving again.
The applicant's lawyer told his Honour that although the applicant had been attending school in Cunnamulla, he was not booked into a new school in Brisbane. He had not been back to school since. After living with his mother in emergency accommodation in Brisbane for about three months, he moved with her to Toowoomba. As indicated, he was living in Cunnamulla again at the time of committing the last offence.
His auntie had instructed that the applicant had no adult standing by him during this period. It was said that he had been left to his own devices to a great extent and had been led on by the bad company he had fallen into while in Toowoomba. As it was put: "He has no previous convictions and he seems to have had this period ... of being out of control and being influenced by others."
The Magistrate was told that the applicant's auntie had responsibility for him at least for the next month. The applicant had expressed a desire not to live with his mother again. As indicated, it was his auntie's intention to take him to live with her in Broken Hill.
The officer from the Department of Communities said that the auntie was the only stable figure that had offered a roof over his head and looked after him. It was understood to be intended for the applicant to return to school in Broken Hill.
The Department of Communities' representative also advised the Magistrate that while there was no bar to a probation order being served in another jurisdiction, a community service order could not be transferred interstate. His Honour responded that despite the intention of the auntie to leave with the applicant on the bus for Broken Hill the next day, the Court had to impose the appropriate penalty in the circumstances.
The representative from the Department of Communities also emphasised that the applicant had displayed remorse when interviewed by her. She also said the applicant had accepted full responsibility and had a promising football career.
Although his Honour specifically recognised the applicant was being sentenced as a young first offender, he clearly imposed the penalties the subject of the review because of his view as to the seriousness of the offences, particularly the last offence being committed whilst on bail for the other offences and involving a substantial loss for which restitution was sought.
His Honour described the applicant as having entered the deep end of the pool and having stepped a few rungs up the ladder fairly quickly. He also described the offences as "major stuff". He considered the last offence to be more serious because it was committed when the applicant knew he shouldn't do it because he was on bail. He described the applicant's conduct as showing contempt for the Courts and the rights of other people. His Honour said that if the applicant had prior criminal history, he would sentence him to actual detention, or as he expressed it, "I'd be putting him inside."
His Honour clearly recognised the necessity to impose a sentence of specific and general deterrence. He observed in this regard: "My desire is that people in his position know that they are going to be punished." He also said: "I have to punish you for this and so you know and all your mates know that if you do this you are going to be punished."
His Honour seemed to accept that the applicant was not the ringleader in the offending conduct. He referred not only to the seriousness of the offending, but also its repetition. It is submitted on behalf of the applicant that the learned Magistrate did not give sufficient weight to the matters in the applicant's favour, including his young age, the absence of prior criminal history, the circumstances of the offending and his personal antecedents.
It is further submitted that his Honour did not give sufficient weight to the positive rehabilitation to be achieved from the support of his auntie and relocation to New South Wales.
In the affidavit of Ms Smith of Legal Aid Queensland filed in support of the application, she deposes on the basis of what she has been told by the applicant's auntie that since the sentence he has been residing with her in Broken Hill. She further advised that he is attending school and has not been in any further trouble. She intends to continue to care for him for the foreseeable future.
The applicant was able to leave with her for Broken Hill, because as the orders under review are community based orders, their effect has been stayed until the end of the review under section 121(3) of the Youth Justice Act.
Because under section 122(1) of the Act, this review is by way of rehearing on the merits. It is relevant that I also take this additional evidence into account, despite the fact it was not before the Magistrate.
It is also submitted on behalf of the applicant with reference to section 150(1)(k) of the Act that to impose the maximum period of probation and community service that could have been ordered, results in the sentence imposed being disproportionate to the offending behaviour, contrary to the sentencing principle under this provision.
Reference is also made to my earlier decision in R v. NW [2011] QChC 6, and the decision of Shanahan DCJ in R v.
BW [2011] QChC 12 as being comparable decisions. In each case community service orders were set aside. However, I agree with Mr Le Grand that these case are distinguishable. In NW, despite the significant loss of $1,000 involved in the offence, the applicant had acted as a lookout for one offence of entering a premises and committing an indictable offence. In this case not only did the applicant have no criminal history, but she had been threatened by the prime mover and had been punished within her family. There were also parity issues with a co-offender who entered the premises having been cautioned.
The respondent also conceded the appeal. In BW the applicant with no previous history had pleaded guilty to four counts of receiving tainted property and three minor drug offences. There was no suggestion that he was involved in the theft of the property. The items were found in a common area which the applicant shared with another person. He pleaded guilty on the basis of joint possession of that material.
It is submitted on behalf of the applicant that a good behaviour bond is the appropriate sentence to be imposed, with reference to the sentencing principles under the Youth Justice Act with their emphasis on rehabilitation in circumstances where the applicant was a 13 year old first offender, and is now still only 14 years of age.
Although the respondent seeks to uphold the 12 month probation order, it is conceded that I vary the sentence by removing the community service order and instead sentence the applicant to 12 months probation on the last offence, together with the probation order for the other eight offences. This submission is made while accepting that the decision to impose an additional penalty for this offence had a sound foundation. However, it is noted in the written submissions on behalf of the respondent, that the bail order the applicant was subject to when he committed the ninth offence was not structured as a conditional bail programme.
The concession is also made because at the time the applicant was sentenced to perform 100 hours community service, the applicant was particularly young, had no criminal history and had not yet had the benefit of any supervised order. I accept this submission, not only for this reason, but because of the additional evidence to which I have referred.
The offences were committed during an unstable period in the applicant's life where his school attendance was not enforced. Since moving to Broken Hill he has been attending school and not getting into any trouble. The community service order is unable to be transferred interstate for enforcement. In these circumstances, despite the fact such an order would provide the applicant with a tangible consequence of his actions, and would provide him with the opportunity to make reparation to the community, I consider it would be counterproductive to make such an order which could only be enforced if he were to return to Queensland.
Having regard to the special sentencing consideration to which a Court must have regard in section 150(2)(c) of the Juvenile Justice Act, that rehabilitation of a child found guilty of an offence is greatly assisted by the child's family and the opportunity to engage in educational programmes I agree that the community service order should be discharged and another order substituted.
The respondent's acceptance that this order be discharged because at the time of sentence the applicant was particularly young, had no criminal history and had not yet had the benefit of a supervised order, also confirms my view that in imposing sentence for the other offences by placing the applicant on 12 months probation, his Honour did not give sufficient weight to these circumstances.
In particular, while the first and last offences were committed in Cunnamulla and not during the period he was in Toowoomba after being removed from Cunnamulla by his mother, the Magistrate made no references to the circumstances of instability in which the offences committed in Toowoomba occurred. His Honour also made no reference to the fact the applicant was living with his mother, who contributed to that instability at the time of the last offence.
This is particularly relevant when it is appreciated that these nine offences were committed in the only period of offending in which the applicant has engaged. There was also no specific reference by the Magistrate to the applicant's plea of guilty, his display of remorse and his acceptance of full responsibility for his offending, nor was there any specific reference to his full cooperation with the police in respect of the last offence. Nor did his Honour give sufficient weight to the fact that except for the wilful damage offence and also possibly the offending committed on 17 October 2011, that he was involved with co-offenders, and as the Magistrate had assumed, he was not the ringleader. In this regard his lawyers' submission that during the period of the offending, the applicant was out of control and being influenced by others was not challenged.
I also consider that just as in relation to the last offence, his Honour did not give sufficient weight to the special sentencing consideration under section 150(2)(c) of the Act in light of the information he had before him, that by the time of sentence the unstable influence of the applicant's mother had been removed from his life, and he was now being looked after by the stable influence of another family member, his auntie, which would ensure he received the rehabilitative opportunity of education.
In these circumstances, while appreciating the difficulties confronting Magistrates with knowledge of issues affecting local communities in which the offending occurs, and without the luxury of being able to reflect on the weight to be given to the competing issues which require to be balanced on sentence with the benefit of written submissions, I consider that these errors did affect the exercise of the sentencing discretion.
In any event, in my dealing with the matter as a re-hearing on the merits, having regard to those factors and the additional evidence available, I would also discharge his Honour's orders in relation to placing the applicant on probation for 12 months in relation to the first eight offences while not disturbing his order that no conviction be recorded. This is also the position in relation to the last offence.
I proceed to substitute another order in place of his Honour's orders, pursuant to section 123(1)(c) of the Act, which was within the jurisdiction of the Childrens Court Magistrate.
I accept Mr Le Grand's submission that the sentence must reflect the persistence and the significant amount of damage and loss involved in the offending, and to provide a clear consequence to the applicant and the opportunity to understand the impact of the offending.
I consider that for these reasons, and also for the purpose of rehabilitation, a probation order in relation to all offences is the appropriate order rather than a good behaviour bond. I also accept that the probation order must be of sufficient length to achieve the purpose of rehabilitation.
I have come to the conclusion that in conjunction with the rehabilitation provided by living with his auntie and undertaking education in Broken Hill, a probation order of six months for all offences is proportionate to the offending for a 13 year old first offender, having regard to the other mitigatory circumstances to which I have referred.
Therefore, with the exception of that part of the orders of the Childrens Court that no conviction be recorded, I discharge the orders of that Court and substitute in their place an order that for all offences the applicant be placed on probation for six months subject to the requirements of section 193(1) of the Youth Justice Act 1992 (Qld).
In doing so I note that the terms of a 12 month probation order and the consequences of breaching it were explained by the sentencing Magistrate to the applicant, and it is accepted by Mr Law on his behalf that he consented to an order on those terms and for that period, and that such consent has not been withdrawn. It therefore follows that I can proceed on the basis that he has indicated his willingness to comply with the order I have made.
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