R v LN

[2018] QChC 27

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v LN [2018] QChC 027

PARTIES:

THE QUEEN

v

LN

(Applicant)

FILE NO/S:

249 of 2018

DIVISION:

Appellate

PROCEEDING:

Sentence review

ORIGINATING COURT:

Childrens Court of Queensland

DELIVERED ON:

13 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2018

JUDGE:

Richards DCJ

ORDER:

Application allowed. Original sentence set aside. The child is referred under s164 of the Youth Justice Act 1992 to a restorative justice process

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GENERALLY – where the applicant was convicted of one charge of enter premises and commit an indictable offence – where a restorative justice order was appropriate – where the Magistrate did not consider the mandatory provisions in section 162 of the Youth Justice Act 1992.

SOLICITORS:

Mr D Law (Legal Aid) for the applicant

Mr G Wong (ODPP) for the respondent

1. The applicant child pleaded guilty on 1 August 2018 to one charge of enter premises and commit an indictable offence in the Woorabinda Childrens Court.  She was at the time of the offence 14 years of age and 15 at the time of sentence, and she had no criminal history.

1. On 27 May 2018 the applicant entered the grounds of Wadja Wadja, a community run school, and she, along with some other young people, smashed a hole in an external wall and attempted to enter the school through the hole.  She fled the scene.  She didn’t participate in an interview but it was accepted that she is a very shy, young girl who would not speak readily to strangers.  She lives with her grandmother and generally speaking she was otherwise a well-behaved child.  Her behaviour was put down to cricket being no longer offered at Woorabinda and boredom. 

1. It was submitted on behalf of all the parties that she was an appropriate candidate for a restorative justice order to help her understand that her behaviour had consequences.  The Magistrate in sentencing her indicated that a restorative justice order was appropriate.  It is conceded by the Crown in this appeal that a restorative justice order was appropriate.

1. Under the Youth Justice Act 1992 (“the Act”) there are a number of different types of orders that can be made in relation to the restorative justice process. Under s175 (1) (db) of the Act a person can be sentenced to participation in a restorative justice process. Under s164 of the Act a restorative justice referral can be made instead of sentencing and under s165 a pre-sentence restorative justice order can be made.

1. Section 162 of the Act provides:

“(1)       If a child enters a plea of guilty for an offence in a proceeding                before a court, the court must consider referring the offence             to the chief executive for a restorative justice process instead              of sentencing the child.

(2)        If a finding of guilt for an offence is made against a child   before a court, the court must consider referring the offence   to the chief executive for a restorative justice process to help   the court make an appropriate sentence order.”

1. In this case the Magistrate was not referred to s162 of the Act and did not therefore consider the mandatory provisions of that section. The Magistrate instead seems to have sentenced the child under s175, the general sentencing provisions of the Act. The consequence is that the child was sentenced formally rather than being diverted from the court system. It is one of the guidelines set out in Schedule 1 of the Act [a charter of youth justice principles]:

“5          If a child commits an offence, the child should be treated in a                way that diverts the child from the courts’ criminal justice   system, unless the nature of the offence and the child’s   criminal history indicate that a proceeding for the offence   should be started.”

1. It is appropriate that this 14 year old child, as a first offender, should have been diverted away from the criminal justice system by a restorative justice referral under s164. Although the magistrate did not refer to any specific section of the act in sentencing the child, it is assumed from the words used that the magistrate was making an order under s175 of the Act. It was conceded by the Crown that the Magistrate was required to consider s162 of the Act and if that had have been done an order under s164 would have been made.

1. Given the differing provisions by which restorative justice referrals can be made it is important when sentencing a child to make it clear that the provisions of s162 have been considered and under which section of the act the referral is being made.

1. The application is allowed. The sentence is set aside. Instead of sentencing, the child under s164 of the Youth Justice Act 1992 is referred to a restorative justice process.