R v LJM

[2013] QChC 3

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v LJM  [2013] QChC 3

PARTIES:

R

V

LJM

(Applicant)

FILE NO/S:

CCQ 36/13

DIVISION:

Criminal

PROCEEDING:

Application for Sentence Review

ORIGINATING COURT:

Childrens Court, Southport

DELIVERED ON:

25 March 2013 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

25 March 2013

JUDGE:

Irwin DCJ

ORDER:

1. Application for Sentence Review granted.
2. Order of Childrens Court discharged, with exception that no conviction be recorded.
3. The applicant is sentenced to a reprimand under s 175 (1) (a) of the Youth Justice Act 1992 (Qld).

CATCHWORDS:

APPLICATION FOR SENTENCE REVIEW - where the applicant pleaded guilty to one count of receiving tainted property - where the applicant was sentenced to perform 20 hours of unpaid community service - where no conviction was recorded - where he was 15 years of age at the time of offending, sentencing and review - where he had no criminal history before or after the commission of the offence - where he had never been cautioned by the police - where he had co-operated with the administrator of justice by voluntarily attending at a police station to admit his involvement in the offence - where there was an early plea of guilty - where the property the subject of the offence was recovered and returned to the victim - where his co-offender previously pleaded guilty to the same offence and was reprimanded without a conviction being recorded - where the co-offender was 16 years of age at the time of offending and sentence - whether the parity principle applied - where the applicant did not indicate willingness to comply with a community service order as required by s 195 (a) of the Youth Justice Act 1992 (Qld) - where the respondent conceded the order was invalid and should be discharged but submitted an order in similar terms be substituted - whether such an order was proportionate to the offending behaviour.

Youth Justice Act 1992 (Qld), s 118, s 122(1), s 123 (1) (c), s 150(1)(e), s 150 (1) (k), s 150 (2) (a), s 175 (1) (a), s 195 (a), s 195 (c).

Lowe v The Queen (1985) 154 CLR 606, applied.

Postiglione v The Queen (1997) 189 CLR 295, applied.

COUNSEL:

R. Smith for the applicant.

J. Craven 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 LJM who was sentenced on 20 February 2013 when he was 15 years of age in the Southport Childrens Court on his plea of guilty to one count of receiving tainted property to perform 20 hours of unpaid community service. No conviction was recorded. I note he is still 15 years of age.

Background:  The facts which were placed before the learned Magistrate by the Prosecutor consistent with the Queensland Police Service (QPS) Court Brief which forms part of the evidence before me is that on 23 November 2012 police were called to investigate the theft between 11 and 12 November 2012 of a BMX bike.  Later that day they attended the address of the applicant's co-offender, KRD.  A BMX bike and various bike parts were located there.  The victim identified some of the parts as belonging to his bike.

On 24 December 2012, the applicant attended a police station with his mother.   I note the Prosecutor incorrectly told the Magistrate the date was 24 November 2012, although except to mention this matter for completeness nothing turns on it.  The applicant admitted knowing the bike was stolen and he helped strip it down.  He used parts of the stolen bike along with his own bike parts to assemble another bike.

The applicant said he had been at his co-offender's house.  The co-offender left to get a new bike while the applicant remained there.  He stated he did not know where the co‑offender obtained the bike from.  They then proceeded to strip it down, paint the parts black and reassemble them with the different parts.  He admitted intending to keep the newly assembled bike for himself.  He also said the co-offender informed him later that day the bike was stolen.  The bike was seized by the police who returned the original parts to the victim.

Proceedings Before the Magistrate:  The Prosecutor told the Court the applicant had no criminal history.  No submissions were made on penalty by the Prosecutor.  The applicant's legal representative said he had no idea the co-accused was intending to steal the bike, having said there was no previous plan to steal it, she started to say, "He certainly realised..." before being cut off by a comment from the Magistrate. 

Having regard to the fact the applicant must have been taken to have accepted by his plea of guilty, "He had reason to believe the property was tainted property" I interpret what his lawyer commenced to say as an acceptance, he realised this.  The legal representative then addressed his personal circumstances.  She said there were consequences for him at home as a result of this offence.  Over a period of four weeks he did not receive pocket money and was grounded from going out. 

Subsequent to the offence he moved interstate with his mother.  However he advised his mother he didn't want to continue with school and returned to Queensland towards the end of January 2013 to look for a job.  He was living with his sister in Brisbane although his mother was present for the sentencing proceedings.  It was said he had been applying for jobs at McDonalds and discount stores at shopping centres.  However, it had also been agreed, with his mother, that if he failed to obtain employment by the end of the week he would return interstate and enrol in a correspondence course with Education Queensland. 

The Magistrate was told the applicant hoped to eventually attend a TAFE welding course with the intention of obtaining an apprenticeship.  It was submitted, having regard to the absence of criminal history, the fact he had never previously been before a Court and his guilty plea, the Magistrate could reprimand him.  His legal representative said he had never been cautioned by the police and had not reoffended in the period of about three months since committing the offence. 

However, his Honour responded he didn't consider a reprimand reflected the seriousness of the offending and made an observation about the need to impose a sentence reflecting specific deterrence.  His Honour clearly came to this view because from his remarks he considered the offence involved what he described as, "Some nature of sophistication" and "artful dishonesty".  He also described what occurred as "stripping it down and re-birthing it". 

As his Honour said in the course of submissions in support of a reprimand:  "There's the element of calculation in this.  The bike has been dismantled to make it impossible for it's easy detection, it's been repainted, and the idea was to reassemble it.  It's not - I would have thought that it's not a matter that can be dealt with as lightly as that.  The Court takes this sort of conduct very seriously.  And I would have thought, bearing in mind, the questions of his family, that some supervision of him, either community service hours or to illustrate to him that dishonesty of this kind has serious consequences, or perhaps some period of probation to give him some guidance."

He went on to say:  "I just don't think it's - think that a reprimanding or a caution, I just don't think it's - it doesn't reflect the seriousness of the offending; I struggle to see that.  If it was just taking the bike, perhaps, but this a - serious features of aggravation.  He has to understand that dishonesty has serious consequences.  I see no reason why he didn't do some community - albeit a small a number of hours - and a conviction not be recorded.  He has to - he has to learn that criminality brings with it consequences.  Or if you have some alternative submissions, I'll be pleased to hear from you."

The applicant's legal representative responded that while a child should be held responsible and accountable for the offending behaviour, there were things in place in his life.  As she went on to say, "That allowed him to ...".  She was cut off by the Magistrate who responded:  "Well I'm not sure that there are.  It's a very difficult situation.  He's not with his mother; his mother's caring for a very old relative.  He's away from school, and it just seems he's just up here and descending into criminality.  I think he needs to understand - today - the seriousness of the position in which he's put himself.  And if he wants to avoid being a recidivist offender, then he needs to amend his ways, I think."

It was in response to the statement about the applicant being in Queensland descending into criminality, the applicant's lawyer said he had never previously been cautioned by the police and had not reoffended and it was on this basis an unsupervised order would not be appropriate.  She mentioned he had been cooperative.  To this the learned Magistrate responded, the applicant hadn't been entirely honest in his explanations to the police.  His lawyer said she could perhaps take more instructions on this point.  His Honour replied he could not see any purpose in that and proceeded to sentence.

The Magistrate's sentencing remarks:  His Honour's sentencing remarks reflected his observations during the submissions.  These were as follows:  "If you want to get involved in dishonesty of that kind, you need to understand there are consequences.  This isn't just taking the bike from a friend down the road and just using it; this is dismantling the bike, changing the characteristics of the bike.  It's a calculated effort to avoid deception and to avoid detection.  You need to understand if that's what you're going to do, there are serious consequences for this kind of offending.  You're ordered to perform 20 hours of community service."  As I have said, no conviction was recorded.

Applicant's submissions: While the applicant correctly submits because under section 122(1) of the Act, this review is by way of rehearing on the merits, the applicant does not have to demonstrate any error on the part of the Magistrate, in this case his Honour fell into error by not complying with the requirements of section 195 of the Act in sentencing the applicant to perform community service. Section 195(a) only authorises a Court to make a community service order against a child if the child indicates willingness to comply with the order.

It is also submitted in effect, the sentence imposed on the applicant was excessive and should be discharged with a reprimand substituted. 

First, it is submitted the learned magistrate gave insufficient weight to the applicant's lack of criminal history, youth, cooperation with the police, early plea of guilty and the relatively minor nature of the offence. 

Second, it is submitted the learned Magistrate ought to have imposed the same sentence on the applicant as his juvenile
co-offender who had been sentenced on 12 December 2012 for the same offence to a reprimand with no conviction recorded. This was not referred to in the proceedings before his Honour. There is no suggestion his Honour was the sentencing Magistrate on the earlier occasion. Reliance is placed on Postiglione v. The Queen [1997] 189 CLR 295. In relation to this it is submitted there are no relevant differences to justify the different sentences imposed on the applicant and his co-offender. Neither the applicant nor the juvenile co‑offender had a criminal history prior to this offence. The applicant and the co-offender were similar ages at the time of the offence, with the applicant being a year younger than the co-offender. It is submitted there is no information to suggest the applicant's role in the offence was more serious than that of the co-offender. It is emphasized that while it was the intention of the applicant to gain the benefit of the use of the bicycle that was created with the parts from the complainant's bicycle, the co-offender when located by the police was in possession of other parts of the complainant's bike.

Respondent's submissions: It is conceded by the respondent that the order was not valid for the reason advanced by the applicant and therefore should be discharged. However, it is submitted I should sentence the applicant in the same way subject to satisfying section 195(a) of the Act.

The respondent does not accept the parity principle should be applied.  This is on the basis of the QPS Court brief for the co-offender which has been placed in evidence before me. 

Because, as I have observed, this is a review by way of rehearing on the merits, it is relevant I take this additional evidence into account despite it not being before the Magistrate. 

The Court brief alleges that when the 16 year old co-offender was interviewed by the police he:  "has named a suspect in this matter as the person that entered the victim's property... to steal the bike.  The defendant stated that he knew that the suspect was going to steal the bike, and he stated that he waited approximately 100 metres away from the victim's address while the suspect took the bike.  The suspect and the defendant have then taken the victim's bike to the defendant's house...  The defendant stated that he then helped the suspect take parts off the victim's bike and then also helped the suspect paint the bike black and reassemble it with different parts."

In context, I proceed on the basis the reference to the suspect is to the applicant. 

It is submitted in the absence of a transcript of the sentencing remarks concerning the co‑offender it can be presumed he was sentenced on the basis that he stood watch while the applicant stole the bike, he assisted the applicant to paint the bike and reconstruct it, the bicycle in the reconstructed state was located in his bedroom, he retained possession of some of the parts of the bike, and he

participated in an interview with police and admitted his involvement.  

It is submitted, taking this into consideration, it can be understood why the applicant's co-offender was sentenced to a reprimand.  It is argued the distinguishing feature is the applicant was ultimately going to gain the primary benefit of the joint enterprise and it is for this reason it is submitted he can be sentenced differently from his co-offender who also had no previous offending history.  It is submitted that a period of community service was not outside the sound sentencing discretion and the period of community service was appropriate in all the circumstances of the offending.

Discussion: I agree with the parties that the Magistrate was in error in sentencing the applicant to perform community service because of his failure to comply with section 195(a) of the Act. At no time did either the applicant or his lawyer on his behalf indicate a willingness to comply with this order. As indicated in response to the Magistrate's suggestion during submissions that either a community service order or a period of probation may be appropriate, the applicant's lawyer made it clear an unsupervised order was not appropriate for the reasons she articulated.

In addition, there is no indication of the Court being satisfied on consideration of a report by the Chief Executive that community service of a suitable nature could be provided to the child as required by section 195(c) of the Act.
For these reasons, as conceded by the respondent, pursuant to section 123(1)(c) I discharge the order with the exception of that part of the order that no conviction be recorded and substitute another order within the jurisdiction of the Childrens' Court Magistrate to make.

The applicant is not only a child, 15 years of age, at the time of offending, sentence and this review and whose age by virtue of section 150(2)(a) of the Act is a mitigating factor in determining whether or not to impose a penalty and the nature of the penalty to impose, but he was a first offender.  Further, he had not previously even been cautioned by the police and had not engaged in any reoffending in the approximate three month period which passed between the offending and when he was sentenced.

By virtue of section 150(1)(e), his previous offending history, in this case the history of non-offending, is a factor the Court must have regard to in sentencing him.  In these circumstances rehabilitation rather than specific deterrence or general deterrence was the dominant sentencing principle.  This is not a case where it can accurately be said, as the Magistrate did, that by committing his first offence the applicant was descending into criminality. 

Further, the child had taken responsibility for his offending through his cooperation with the administration of justice which included voluntarily attending at the police station to admit his involvement in the offence and his early plea of guilty which was also indicative of remorse.  It is also relevant, the original parts of the stolen bike were returned to the victim. 

These were all factors which the learned Magistrate did not specifically mention and at least can be said not to have been given sufficient weight by him.

Without underestimating the seriousness of the offence, and the need for a deterrent aspect to the sentence, the commission of a first offence by a child of 15 years cannot be regarded as possessing the degree of sophistication to make the requirement of performing community service of any length a proportionate response between the sentence and the offence as required by section 150(1)(k) of the Act, particularly where there was every indication the applicant had been deterred and was being rehabilitated through his own efforts.

In this regard, I am entitled to take into account, for the reasons previously given, the additional evidence placed before me today that for approximately the past month, the applicant has been working with his grandfather in the automotive industry in Brisbane.  He is enjoying this work and will be commencing an apprenticeship as an automotive mechanic with his grandfather in the near future.  In the circumstances, I am satisfied that he has excellent prospects of rehabilitation.

This was also not a case in which community service was required to repay the community for the offending behaviour.  As I have said, the parts were returned to the complainant. 

I consider a proportionate sentence to the objective seriousness of the offending within the exercise of a sound sentencing discretion, is to reprimand the child pursuant to section 175(1)(a) of the Act without a conviction being recorded. 

I agree with the applicant that this result also follows from the application of the parity principle as stated by Mason J in Lowe v. The Queen [1984] 154 CLR 606 at 610-611: "The parity principle ... is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them." As stated by Gibbs CJ in Lowe at 609, it is: "desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal and such matters as age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account." This was confirmed as being a correct statement of the law in Postilgione.

I have the advantage which was unavailable to the learned Magistrate of having available to me the factual basis on which it is reasonable to assume the co-offender was sentenced as well as information about his age and criminal history.   While it is true to say, as the respondent emphasises, the applicant was to gain the primary benefit of the commission of the offence, namely as he admitted to the police he intended to keep the newly assembled bike for himself, he was nonetheless sentenced on the basis it was his co-offender who actually stole it.  Notwithstanding, his co‑offender was sentenced on the basis it was the applicant who did so, like the co-offender the applicant was sentenced on the basis of receiving tainted property and not of theft.

Although the applicant was to obtain the benefit of the bike for himself, the co-offender had gained the benefit of retaining possession of some of the parts of the bike which remained at his residence at the time the police located him.  Further, while neither had a criminal history, the co‑offender (born on 19 May 1996) was about 14 months older than the applicant (born on 12 July 1997). 

When these factors are considered, the applicant and the
co-offender should be treated to equal justice such as to give rise to a justifiable sense of grievance on the part of the applicant when assessed by objective criteria I have mentioned if this was not the case:  per Gibbs CJ in Lowe at 610.  This confirms my view that the appropriate order, rather than a period of community service, is to reprimand the applicant pursuant to section 175(1)(a) of the Act. 

Conclusion and order:  Therefore, with the exception of that part of the order that no conviction be recorded, I discharge the order of the Childrens Court and substitute in it's place and order the applicant be reprimanded under section 175(1)(a) of the Act.

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