R v MA

[2013] QChC 30

IN THE CHILDRENS COURT OF QUEENSLAND

REGISTRY: Brisbane

Number: 237/13

SENTENCE REVIEW

1. The applicant child applies, under s 119 of the Youth Justice Act 1992, for the review of a sentence order made of 14 August 2013.

1. The applicant was born on 15 March 1997. He has some criminal history, which I will set out because it gives context to the sentence to be reviewed.  On 12 September 2012 in the Murgon Childrens Court, the applicant was placed on probation for six months and ordered to perform 30 hours of community service.  On 9 January 2013, he was again placed on probation – this time for 12 months – and community service – this time for 100 hours.  The offences that led to these orders included attempted unlawful use of motor vehicles, entering premises with intent to commit an indictable offence, burglary and wilful damage of police property. 

1. While subject to the second probation order, in May 2013, the applicant committed offences including burglary, unlawful use of motor vehicle, failing to stop a motor vehicle and assault or obstruct a police officer.  For these offences, on 10 July 2013 the Childrens Court Magistrate at Murgon ordered four months detention to be served by way of a conditional release order. 

1. On 14 and 20 July 2013, that is four and ten days after being placed on the conditional release order, the applicant committed the offences for which he was sentenced on 14 August 2013.  On that occasion the Murgon Childrens Court Magistrate ordered four months detention, cumulative to the period already being served, followed by 12 months probation. 

1. The facts of the recent offences were as follows.  On 14 July the applicant wrote his name and other signs and symbols on a paper towel dispenser and on a cubicle door in a public toilet in Cherbourg.  That gave rise to the charge of wilful damage by graffiti.  On 20 July the applicant and some other children entered the Cherbourg Ration Shed Museum and stole cordial, fruit and Milo.  That gave rise to the charge of entering premises and committing an indictable offence.  Also on 20 July 2013 the applicant and a large group of other children stole a bus from a hostel for the aged.  Several of the children, including the applicant, drove the bus around Cherbourg before it became bogged on the side of the road.  The group then damaged the vehicle by breaking windows, slashing seats, removing head rests and damaging the hydraulic lift so that it became inoperable.  Those events gave rise to the charges of entering premises and committing an indictable offence, wilful damage and unlawful use of a motor vehicle.

1. The applicant was investigated for the first charge, wilful damage by graffiti, on 15 July 2013.  He was interviewed and made full admissions.  He was arrested with respect to the later offences on 20 July 2013.  On this occasion he refused to be interviewed. 

1. Section 122 of the Youth Justice Act provides that a review of a sentence is to be by way of rehearing on the merits.  I may have regard to the record of the proceeding before the Childrens Court Magistrate and any further submissions and evidence presented.  I am only asked to regard the record of proceeding in this case.  This included a presentence report prepared for the court and dated 9 August 2013.  It revealed the applicant and his siblings witnessed serious domestic violence within the family home.  His parents separated seven years ago.  Moving between the two house-holds he was exposed to inconsistent rules and boundaries.  With his mother he went to Cairns in February 2013.  Unfortunately, things did not work out there for his mother and the applicant returned to Cherbourg to live with his father.  His father, according to the report, has been sober for seven years and living a very stable lifestyle.  Despite this better influence, the applicant regularly did not go to school.  It is considered by the reporter that boredom, opportunity and thrill seeking contributed to the commission of the offences.  With respect to the appropriateness of a detention order, the reporter advised:

“A period of detention would alienate [the applicant] from his family and community, and it may further increase the difficulty that he will have in reengaging into a local education program and other pro social activities.” 

1. At the time he came to be sentenced, the applicant had been in custody for 21 days serving the period of detention imposed on 10 July 2013. 

1. Before the learned Childrens Court Magistrate, the prosecutor submitted the sentence should be towards the higher end of a range of four to six months.  The prosecutor tendered photographs of the bus showing all the windows broken.  The photographs have not been transferred with the file.  I have not seen them.  The solicitor who appeared for the applicant seems to have accepted the inevitability of a sentence in the order of four to six months.  He told the learned Magistrate the applicant had completed 34½ of the 100 hours community service that had been ordered in January 2013. The applicant’s solicitor told the learned Magistrate that he had told the applicant that if he were to receive a detention order he would probably be in detention over Christmas and possibly over the New Year.  He had told the applicant he was probably likely to be sentenced to six months detention.

1. The learned Magistrate expressed that he reduced the penalty he would have imposed to take account of the plea of guilty. The learned Magistrate commented:

“It seems that there are repeated and cowardly attacks on the old people’s home out at Cherbourg and other community assets and I think the community is crying out for some real punishment to be meted out by this court in relation to these offences to stop this type of offending.  You seem to be one of the ring leaders.” 

1. The sentence of detention was intended as a deterrent to others as well as a protection of the community.  The learned Magistrate expressed the expectation that the applicant would be in custody over Christmas and the new year and might reflect on his position then as a result of his offending. 

1. When ordering that the applicant be detained for four months the learned Magistrate commented that the range put forward by the prosecution was four to six months and that the applicant’s own solicitor “said that he thought a sentence even in excess of six months might have been within range.”  It might be that the learned Magistrate was mistaken in the last respect.  As the solicitor is transcribed, he was not expressing an apprehension that the sentence could exceed six months.  In any case the learned Magistrate went on to refer to the principles of juvenile justice, specifically that a sentence of detention should be imposed only as a last resort and should only be for the shortest possible time.  The learned Magistrate took into account the fact that the applicant was already serving a period of imprisonment and, because it was intended to make the new sentence cumulative, the sentence was moderated resulting in the four month period.  To that the learned Magistrate added the period of 12 months probation.  

1. Section 180 of the Youth Justice Act provides that where a court makes a detention order and a probation order for a single offence, the detention order may be for a maximum period of six months and the probation order, which starts when the child is released from detention, may be for a maximum period ending one year after the release. As the learned Magistrate’s detention orders were cumulative to an earlier four month detention order the total period of detention the applicant currently serves is eight months. I am concerned that such an order combined with a one year probation period may be beyond the power provided for in s 180 of the Act.  It is not necessary to decide the issue because, upon a review of all the materials, I have concluded the orders should be varied. 

1. The applicant is a 16 year old aboriginal male from the Cherbourg community.  He has a significant history for one so young but it is to be seen against an unstable upbringing.  That included, as I have said, the witnessing of serious domestic violence.  The applicant is now living with his father who is a stable and positive role model.  According to the presentence report the applicant has indicated his willingness to engage at Murgon State High School and to work with local youth services in the community.  He has indicated he will live with his father upon his release.  Although the Magistrate was presented with the range of four to six months, and although that range might be thought to be reasonable taking into account the serious offending of the applicant, if the sentence is to be made cumulative I would conclude that the appropriate overall sentence would be two months detention.  Two months, cumulative on the four months, combined with one year probation upon release represents a very substantial imposition on a 16 year old child and, for that matter, amounts to the maximum periods of combined detention and probation available under the Act.  A longer period than six months of detention, keeping in mind the applicant must serve 70 percent of it before release, might give rise to the danger suggested in the presentence report of alienating the applicant from his family and community and increasing the difficulty he will have in re-engaging into the local education program and other “pro-social activities”. 

1. In a result, pursuant to s 123 of the Act, I vary the order of the Childrens Court Magistrate made on 14 August 2013 so that the period of detention is two months and not four months on each charge.  I confirm all other aspects of the order, namely that the period of two months detention is to take effect from the end of the period of detention the applicant is serving pursuant to the detention order made on 24 July 2013; that the child is to be released after serving 70 percent of the detention order; and that at the end of the term the child will be on probation for 12 months.