R v MSR - [2020] QChC 31

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v MSR [2020] QChC 31

PARTIES:

R

v

MSR

(Applicant)

FILE NO:

243/20

DIVISION:

Childrens Court of Queensland

PROCEEDING:

Appellate

ORIGINATING COURT:

Townsville Childrens Court

DELIVERED ON:

21 August 2020 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

21 August 2020

JUDGE:

Allen QC DCJ

ORDER:

1. Pursuant to s 123(1)(c) of the Youth Justice Act, discharge the order under review and set aside the order for detention with a conditional release order.

2. Substitute an order pursuant to section 193 of the Youth Justice Act that the child be subject to a probation order for a period of 12 months on the conditions specified in section 193(1) of the Act.

3. No convictions are recorded.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – application for sentence review – where the child was 15 years old at the time of offending and sentence – where the child was sentenced in relation to property offences – where the child was sentenced to 6 weeks detention with a 3 month conditional release order – where no convictions were recorded – whether the learned Magistrate erred in failing to give reasons why community based orders would not be appropriate rather than detention – whether the sentence imposed was excessive

LEGISLATION:

Criminal Code 1899 (Qld), s 421, s 433

Youth Justice Act 1992 (Qld), s 122, s 123, s 150, s 208, s 209

CASES:

R v MDD [2019] QCA 197

Veen v R (No 2) (1988) 164 CLR 465

COUNSEL:
Ms C Anderson-James for the applicant

Mr R Byrne for the respondent

SOLICITORS:
Legal Aid Queensland for the applicant

Office of the Director of Public Prosecutions for the respondent

The applicant child seeks review of a sentence imposed by a Childrens Court Magistrate in the Childrens Court of Townsville on 1 July 2020. The applicant child had earlier appeared before the Court and entered pleas of guilty to two counts of entering premises and committing an indictable offence by break (section 421(2) and (3) of the Criminal Code) and one count of receiving tainted property (section 433(1) of the Criminal Code). The Court had before it a pre-sentence report.
With respect to the charge of receiving tainted property, the child was reprimanded. With respect to the two counts of entering premises and commit an indictable offence by break the child was sentenced to a period of six weeks detention with release after 50 per cent of such term, but with the whole term being suspended by way of a three-month conditional release order. No convictions were recorded for any of the offences.
The applicant child filed an application for review of the sentence with respect to the two counts of entering premises and commit indictable offence by break on 9 July 2020.
The applicant child was 15 years of age at the time of the offences and sentence. He is an Indigenous child who has, throughout his lifetime, suffered a…

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 MSR

Details

AGLC: R v MSR [2020] QChC 31
Case: [2020] QChC 31
Decision Date: 21 August 2020 (ex tempore)

CaseChat Overview and Summary

In the matter of R v MSR, the applicant sought a review of the sentence imposed upon them by the Children’s Court. MSR, who was 15 years old at the time of the offending, was sentenced in relation to property offences. The court ordered that MSR be detained for 6 weeks with a conditional release order for a period of 3 months. The applicant argued that the sentence was excessive and that the Magistrate had failed to provide reasons for not imposing a community-based order instead of detention. The court was required to determine whether the sentence was appropriate and whether the Magistrate erred in not providing adequate reasons for the sentence imposed.

The court considered the principles of sentencing for juveniles under the Youth Justice Act. It noted that the primary objective in sentencing juveniles is to rehabilitate the offender and prevent reoffending. The court examined the nature and circumstances of the offending, the age and background of the offender, and the appropriateness of the sentence imposed. The court also considered whether the sentence was proportionate and whether the Magistrate had failed to provide adequate reasons for the sentence imposed. The court found that the Magistrate had not provided adequate reasons for imposing detention rather than a community-based order. The court also found that the sentence imposed was excessive and disproportionate to the offending.

Accordingly, the court discharged the order for detention and substituted a probation order for a period of 12 months. The court held that a probation order was more appropriate given the nature and circumstances of the offending, the age and background of the offender, and the objectives of juvenile sentencing. The court also noted that no convictions would be recorded. The court found that the sentence imposed was excessive and disproportionate to the offending and that the Magistrate had erred in not providing adequate reasons for the sentence imposed. The court held that the sentence imposed was not in the best interests of the offender or the community.

Orders

Orders of the court

1. Pursuant to s 123(1)(c) of the Youth Justice Act, discharge the order under review and set aside the order for detention with a conditional release order.

2. Substitute an order pursuant to section 193 of the Youth Justice Act that the child be subject to a probation order for a period of 12 months on the conditions specified in section 193(1) of the Act.

3. No convictions are recorded.

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 MSR [2020] QChC 31
PARTIES:	R v MSR (Applicant)
FILE NO:	243/20
DIVISION:	Childrens Court of Queensland
PROCEEDING:	Appellate
ORIGINATING COURT:	Townsville Childrens Court
DELIVERED ON:	21 August 2020 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	21 August 2020
JUDGE:	Allen QC DCJ
ORDER:	1. Pursuant to s 123(1)(c) of the **Youth Justice Act, discharge the order under review and set aside the order for detention with a conditional release order. 2. Substitute an order pursuant to section 193 of the Youth Justice Act that the child be subject to a probation order for a period of 12 months on the conditions specified in section 193(1) of the Act. 3. No convictions are recorded.**
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – application for sentence review – where the child was 15 years old at the time of offending and sentence – where the child was sentenced in relation to property offences – where the child was sentenced to 6 weeks detention with a 3 month conditional release order – where no convictions were recorded – whether the learned Magistrate erred in failing to give reasons why community based orders would not be appropriate rather than detention – whether the sentence imposed was excessive
LEGISLATION:	Criminal Code 1899 (Qld), s 421, s 433 Youth Justice Act 1992 (Qld), s 122, s 123, s 150, s 208, s 209
CASES:	R v MDD [2019] QCA 197 Veen v R (No 2) (1988) 164 CLR 465
COUNSEL:	Ms C Anderson-James for the applicant Mr R Byrne for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Office of the Director of Public Prosecutions for the respondent