R v NMQ - [2019] QChC 6

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v NMQ [2019] QChC 6

PARTIES:

R

v

NMQ
(applicant)

FILE NO/S:

09/2019

DIVISION:

Appellate

PROCEEDING:

Sentence Review

ORIGINATING COURT:

Childrens Court of Queensland

DELIVERED ON:

5 April 2019

DELIVERED AT:

Brisbane

HEARING DATE:

7 March 2019

JUDGE:

President Richards DCJ

ORDER:

Application for sentence review granted. Sentence of 12 months detention imposed at Mareeba Childrens Court on 21 December 2018 set aside. Sentence relating to breach of probation/community service order is set aside. The child is sentenced to:

1.   9 months detention for the offences of entering dwelling and committing indictable offence (4 charges)

2.   6 months detention for the offence of entering premises with intent

3.   3 months detention for the offences of trespass (2 charges), possessing dangerous drugs and possessing utensils or pipes that had been used

4.   Breach proved for breach of probation/community service. Order set aside. Resentenced to 3 months detention on all charges

5.   Order that the child be released from detention after serving 50 percent of the time in detention.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – SPECIAL CIRCUMSTANCES FOR RELEASE FROM DETENTION – SENTENCE MANIFESTLY EXCESSIVE – where the applicant child plead guilty – where a 12 month detention order was imposed with release after serving 70 percent with no conviction recorded – where the offences were committed whilst the applicant child was subject to a probation/ community service order and a detention order served by way of conditional release order – where the child demonstrated repeated non-compliance with community based orders – where the Youth Justice Act stipulates that detention should only be imposed as a last resort and for the shortest appropriate time – whether special circumstances existed warranting a reduction of time served in detention

COUNSEL:

R. Gill for the applicant child

T. L. Little for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Office of the Director of Public Prosecutions for the respondent

The applicant child was charged with nine offences: four of entering a dwelling and committing an indictable offence, one of entering a premises with intent, two trespass, one possession of dangerous drugs, one possession of utensils or pipes that had been used. All offences occurred on 25 October 2018. At the time of the offending he was on a combined probation/ community service order for offences of enter premises of commit an indictable offence by break, five offences of fraud and one of stealing which occurred on 7 June and 14 June 2018. He was also subject to a conditional release order.

He pleaded guilty on 21 December 2018 and was sentenced to 12 months detention with release after serving 70 per cent on the substantive offences, the combined probation/ community service order was revoked and he was resentenced to 12 months detention order with release after serving 70 per cent, and the conditional release order was revoked and he was ordered to serve the nine month detention order. All periods of detention were to…

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 NMQ

Details

AGLC: R v NMQ [2019] QChC 6
Case: [2019] QChC 6
Decision Date: 5 April 2019

CaseChat Overview and Summary

In the matter of R v NMQ, the applicant, a juvenile, pled guilty to several offences including entering a dwelling and committing an indictable offence, entering premises with intent, trespassing, and possessing dangerous drugs and drug-related paraphernalia. The case was before the court to review the sentence imposed, specifically a 12-month detention order with release after serving 70 per cent, and a breach of probation/community service order. The applicant was subject to a probation/community service order and a conditional release order at the time of the commission of the offences. The primary legal issue before the court was whether special circumstances existed warranting a reduction of the time the applicant was to serve in detention, given the repeated non-compliance with community-based orders and the statutory directive that detention should only be imposed as a last resort and for the shortest appropriate time.

The court considered the principles set out in the Youth Justice Act, which emphasises rehabilitation and reintegration of the juvenile into society. The court noted that the statutory framework requires that detention should only be imposed as a last resort and for the shortest appropriate time. The court found that the original sentence was manifestly excessive given the circumstances and the repeated non-compliance with community-based orders. The court acknowledged the importance of the statutory directive and the need to ensure that detention is not used as a default option. The court concluded that special circumstances did exist warranting a reduction in the time the applicant was to serve in detention.

The court set aside the original sentence and resentenced the applicant. The applicant was sentenced to nine months detention for the offences of entering a dwelling and committing an indictable offence, six months detention for entering premises with intent, and three months detention for the offences of trespass, possessing dangerous drugs and possessing drug-related paraphernalia. The court also set aside the order relating to the breach of probation/community service and resentenced the applicant to three months detention. The court ordered that the applicant be released from detention after serving 50 per cent of the time in detention.

Orders

Orders of the court

Application for sentence review granted. Sentence of 12 months detention imposed at Mareeba Childrens Court on 21 December 2018 set aside. Sentence relating to breach of probation/community service order is set aside. The child is sentenced to:

1. 9 months detention for the offences of entering dwelling and committing indictable offence (4 charges)

2. 6 months detention for the offence of entering premises with intent

3. 3 months detention for the offences of trespass (2 charges), possessing dangerous drugs and possessing utensils or pipes that had been used

4. Breach proved for breach of probation/community service. Order set aside. Resentenced to 3 months detention on all charges

5. Order that the child be released from detention after serving 50 percent of the time in detention.

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 NMQ [2019] QChC 6
PARTIES:	R v *NMQ* (applicant)
FILE NO/S:	09/2019
DIVISION:	Appellate
PROCEEDING:	Sentence Review
ORIGINATING COURT:	Childrens Court of Queensland
DELIVERED ON:	5 April 2019
DELIVERED AT:	Brisbane
HEARING DATE:	7 March 2019
JUDGE:	President Richards DCJ
ORDER:	Application for sentence review granted. Sentence of 12 months detention imposed at Mareeba Childrens Court on 21 December 2018 set aside. Sentence relating to breach of probation/community service order is set aside. The child is sentenced to: 1. 9 months detention for the offences of entering dwelling and committing indictable offence (4 charges) 2. 6 months detention for the offence of entering premises with intent 3. 3 months detention for the offences of trespass (2 charges), possessing dangerous drugs and possessing utensils or pipes that had been used 4. Breach proved for breach of probation/community service. Order set aside. Resentenced to 3 months detention on all charges 5. Order that the child be released from detention after serving 50 percent of the time in detention.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – SPECIAL CIRCUMSTANCES FOR RELEASE FROM DETENTION – SENTENCE MANIFESTLY EXCESSIVE – where the applicant child plead guilty – where a 12 month detention order was imposed with release after serving 70 percent with no conviction recorded – where the offences were committed whilst the applicant child was subject to a probation/ community service order and a detention order served by way of conditional release order – where the child demonstrated repeated non-compliance with community based orders – where the Youth Justice Act stipulates that detention should only be imposed as a last resort and for the shortest appropriate time – whether special circumstances existed warranting a reduction of time served in detention
COUNSEL:	R. Gill for the applicant child T. L. Little for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Office of the Director of Public Prosecutions for the respondent