R v MBD - [2019] QChC 43

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v MBD [2019] QChC 43

PARTIES:

R

v

MBD

(Applicant)

FILE NO/S:

422/2019

DIVISION:

Childrens Court

PROCEEDING:

Sentence review

ORIGINATING COURT:

Cairns Childrens Court

DELIVERED ON:

14 November 2019 (delivered ex tempore)

DELIVERED AT:

Brisbane Childrens Court

HEARING DATE:

14 November 2019

JUDGE:

Dearden DCJ

ORDER:

1.   Application for sentence review granted.

2.   In respect of the following charges, order that the sentence of detention imposed on 16 August 2019 not cover these three offences, namely:

(1) enter dwelling and commit indictable offence (23/9/2018);

(2) enter premises and commit indictable offence by break (17/2/2019); and

(3) receiving tainted property (2/3/2019).

In substitution, the applicant is reprimanded in respect of each of those three offences.

3.   In respect of the balance of offences, namely:

(4) enter premises and commit indictable offence (21/3/2019);

(5) enter dwelling and commit indictable offence (30/3/2019);

(6) unlawful use of a motor vehicle (30/3/2019);

(7) enter dwelling and commit indictable offence (1/4/2019);

(8) unlawful use of a motor vehicle (1/4/2019);

(9) enter dwelling and commit indictable offence (31/5/2019); and

(10) attempted enter dwelling and commit indictable offence (31/5/2019).

Order that the detention order of six months imposed in respect of those matters be set aside and a detention order of three months substituted.

4.   Order further that the three months detention be satisfied by way of a conditional release order served for the number of days calculated between 12 September 2019 and 14 November 2019.

5.   The court considers that the conditional release order, as varied, has been satisfied by the period served on conditional release order from 12 September 2019 to 14 November 2019.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – application for sentence review – where the applicant was sentenced to six months detention to be served by way of a conditional release order for three months for various property offences – where the applicant was subject to several court orders at the time of offending – where the applicant had had a dysfunctional childhood with difficult personal circumstances – where the applicant had spent 133 days in pre-sentence custody – whether the sentence was manifestly excessive

LEGISLATION:

Youth Justice Act 1992 (Qld) s 118, s 122, s 150

CASES:

R v PBD [2019] QCA 59

COUNSEL:

R Gill (sol) for the applicant

P Patty (sol) for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Office of the Director of Public Prosecutions for the respondent

HIS HONOUR: This is an application for sentence review by MBD in respect of the sentence imposed at the Cairns Childrens Court on 16 August 2019 (pleas were entered on 12 July 2019) of six months detention to be served by way of a conditional release order for three months in respect of the following offences:

(1) enter dwelling and commit indictable offence (23/9/2018);
(2) enter premises and commit indictable offence by break (17/2/2019);
(3) receiving tainted property (2/3/2019);
(4) enter premises and commit indictable offence (21/3/2019);
(5) enter…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v MBD

Details

AGLC: R v MBD [2019] QChC 43
Case: [2019] QChC 43
Decision Date: 14 November 2019 (delivered ex tempore)

CaseChat Overview and Summary

In the matter of R v MBD, the applicant sought a review of their sentence for various property offences. The applicant had been sentenced to six months detention, with three months to be served by way of a conditional release order, after being found guilty of multiple offences, including entering dwellings and premises and committing indictable offences, receiving tainted property, and unlawful use of a motor vehicle. The applicant had spent 133 days in pre-sentence custody and was subject to several court orders at the time of offending. The applicant's childhood was dysfunctional, and they had difficult personal circumstances.

The legal issues before the court were whether the sentence was manifestly excessive and whether the applicant's personal circumstances and pre-sentence custody should have been taken into account in determining the sentence. The court considered the principles of sentencing of juveniles, the nature and circumstances of the offences, and the need for the sentence to be proportionate to the offending. The court also considered the applicant's personal circumstances, including their childhood and pre-sentence custody.

The court found that the sentence was manifestly excessive in respect of three of the offences, and therefore, ordered that the detention order not cover those three offences. Instead, the applicant was reprimanded in respect of each of those offences. The court found that the sentence was appropriate in respect of the balance of offences, but that the detention order should be reduced to three months. The court further ordered that the three months detention be satisfied by way of a conditional release order served for the number of days calculated between 12 September 2019 and 14 November 2019. The court considered that the conditional release order, as varied, had been satisfied by the period served on conditional release order from 12 September 2019 to 14 November 2019.

Orders

Orders of the court

1. Application for sentence review granted.

2. In respect of the following charges, order that the sentence of detention imposed on 16 August 2019 not cover these three offences, namely:

(1) enter dwelling and commit indictable offence (23/9/2018);

(2) enter premises and commit indictable offence by break (17/2/2019); and

(3) receiving tainted property (2/3/2019).

In substitution, the applicant is reprimanded in respect of each of those three offences.

3. In respect of the balance of offences, namely:

(4) enter premises and commit indictable offence (21/3/2019);

(5) enter dwelling and commit indictable offence (30/3/2019);

(6) unlawful use of a motor vehicle (30/3/2019);

(7) enter dwelling and commit indictable offence (1/4/2019);

(8) unlawful use of a motor vehicle (1/4/2019);

(9) enter dwelling and commit indictable offence (31/5/2019); and

(10) attempted enter dwelling and commit indictable offence (31/5/2019).

Order that the detention order of six months imposed in respect of those matters be set aside and a detention order of three months substituted.

4. Order further that the three months detention be satisfied by way of a conditional release order served for the number of days calculated between 12 September 2019 and 14 November 2019.

5. The court considers that the conditional release order, as varied, has been satisfied by the period served on conditional release order from 12 September 2019 to 14 November 2019.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v MBD [2019] QChC 43
PARTIES:	R v MBD (Applicant)
FILE NO/S:	422/2019
DIVISION:	Childrens Court
PROCEEDING:	Sentence review
ORIGINATING COURT:	Cairns Childrens Court
DELIVERED ON:	14 November 2019 (delivered ex tempore)
DELIVERED AT:	Brisbane Childrens Court
HEARING DATE:	14 November 2019
JUDGE:	Dearden DCJ
ORDER:	1. Application for sentence review granted. 2. In respect of the following charges, order that the sentence of detention imposed on 16 August 2019 not cover these three offences, namely: (1) enter dwelling and commit indictable offence (23/9/2018); (2) enter premises and commit indictable offence by break (17/2/2019); and (3) receiving tainted property (2/3/2019). In substitution, the applicant is reprimanded in respect of each of those three offences. 3. In respect of the balance of offences, namely: (4) enter premises and commit indictable offence (21/3/2019); (5) enter dwelling and commit indictable offence (30/3/2019); (6) unlawful use of a motor vehicle (30/3/2019); (7) enter dwelling and commit indictable offence (1/4/2019); (8) unlawful use of a motor vehicle (1/4/2019); (9) enter dwelling and commit indictable offence (31/5/2019); and (10) attempted enter dwelling and commit indictable offence (31/5/2019). Order that the detention order of six months imposed in respect of those matters be set aside and a detention order of three months substituted. 4. Order further that the three months detention be satisfied by way of a conditional release order served for the number of days calculated between 12 September 2019 and 14 November 2019. 5. The court considers that the conditional release order, as varied, has been satisfied by the period served on conditional release order from 12 September 2019 to 14 November 2019.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – application for sentence review – where the applicant was sentenced to six months detention to be served by way of a conditional release order for three months for various property offences – where the applicant was subject to several court orders at the time of offending – where the applicant had had a dysfunctional childhood with difficult personal circumstances – where the applicant had spent 133 days in pre-sentence custody – whether the sentence was manifestly excessive
LEGISLATION:	Youth Justice Act 1992 (Qld) s 118, s 122, s 150
CASES:	R v PBD [2019] QCA 59
COUNSEL:	R Gill (sol) for the applicant P Patty (sol) for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Office of the Director of Public Prosecutions for the respondent