R v NW

[2011] QChC 6

CHILDREN’S COURT OF QUEENSLAND

CITATION:

R v NW  [2011] QChC 6

PARTIES:

R

V

NW

(Applicant)

FILE NO/S:

23/11

DIVISION:

Criminal

PROCEEDING:

Application for Sentence Review

ORIGINATING COURT:

Children’s Court, Bamaga

DELIVERED ON:

19 May 2011 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2011

JUDGE:

Irwin DCJ

ORDER:

1.   Application for Sentence Review Granted

2.   Order of Children’s Court discharged

3. Offence referred to the coordinator for a conference pursuant to s 161 (3)(a)(i) of the Youth Justice Act 1992 (Qld)

CATCHWORDS:

APPLICATION FOR SENTENCE REVIEW – where the applicant pleaded guilty to one count of entering a premises and committing an indictable offence – where she was sentenced to 200 hours community service with no conviction recorded – where she was 15 years at the time of the offence – where she was a lookout while her co-offenders entered the community service station and stole a safe containing approximately $10,000 – where she was given $2000 for her role of which $10 was eventually repaid to the complainant – where the offending had a significant effect with the community – where a significant amount remained unrecovered – where the applicant had no prior criminal history and pleaded guilty at the first opportunity – where she had been punished within her family – where she demonstrated shame and remorse – where she had been threatened by an older co-offender who was the prime mover – where a 16 year old co-offender who entered the premises was cautioned – where the respondent conceded the sentence was manifestly excessive – whether the appropriate exercise of the sentencing discretion referral to a Youth Justice Conference.

COUNSEL:

D. Law for the applicant

B. White for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

HIS HONOUR: This is an application for sentence review on behalf of NW, who was sentenced on the 12th of January 2011 when she was 16 years of age in the Bamaga Magistrates Court on her plea of guilty to a charge of entering a premises and committing an indictable offence on 13 December 2010 when she was 15 years of age, to perform the maximum number of hours of community service allowed under the Youth Justice Act of 200 hours.

By her plea of guilty, she accepted that on 13 December 2010 she acted as a lookout when three of her co-accused entered the local petrol station and stole a safe containing approximately $10,000.  She was given $2,000 for her role, $10 of which was eventually given back to the complainant.

She was apprehended after the grandmother of two of the other offenders returned approximately $2,400 to the complainant and notified the police of her grandchildren's involvement.  Those co-offenders told the police of the applicant's involvement and she subsequently made full admissions.  

The extent of the money recovered was the two sums that I have referred to.  She elected summary jurisdiction and pleaded guilty at the first opportunity.  She had no criminal history at the time. 

The Police Prosecutor submitted that a supervised order was within range.  In response the learned Magistrate stated that she thought a very long period of community service should be imposed so everybody could see her sweating in the sun and people would know, in fact, that this type of conduct is not on, in other words, her Honour had in mind a sentence of specific and general deterrence. 

Before I deal with the submissions, I note my agreement with Mr Law, who appears on behalf of the applicant, based also on my own personal experience of the difficulties that confront Magistrates in appropriately sentencing for matters such as this in Indigenous communities, such as Bamaga. 

It is submitted on behalf of the applicant that there were a number of errors in the sentencing process and, in any event, in my dealing with the matter as a re-hearing on its merits, under section 122(1) of the Youth Justice Act, I would set aside her Honour's decision and refer the matter to a youth justice conference by way of an indefinite referral.

The prosecution submit that such a sentence would be in range but also submits that a shorter period of community service would be a sentencing option within range in the circumstances of this case.  In other words, there is agreement that her Honour's sentence was manifestly excessive and another sentence should be imposed, although there is a slight area of contention about how I should exercise my discretion in place of the Magistrate. 

As Mr Law points out in his submission, Ms NW's lawyer effectively conceded that the sentence proposed by her Honour was appropriate, saying he would not submit anything different. There were no attempts made by that lawyer to submit a lower penalty. In particular, he did not refer her Honour to section 161(2) of the Youth Justice Act which requires the Court to consider referring the offence to a coordinator for a conference.

The appropriateness of a conference was not discussed despite the applicant's limited role in the offence, her early plea of guilty, and the absence of any criminal history.  In fact, the defence lawyer expressed some support from the applicant's family that the sentence proposed was appropriate.  There was no emphasis placed on her lack of criminal history or her plea of guilty.  Further, he did not take the opportunity to submit a lower number of hours of community service might be appropriate.

In imposing sentence, the learned Magistrate referred to the applicant's lack of history but no other matters unique to her in determining the sentence and the period of community service.  The circumstances of her involvement in the offence and her early plea were simply reflected in the decision not to record a conviction only.

It is also unclear as to the extent that the applicant consented to being placed on community service for a period of 200 hours.  When the Magistrate addressed the applicant as required to determine whether she was willing to undertake community service the response was simply, "Mmm."  That may or may not, of course, have been accompanied by some body language.  However, it is not, on the face of the transcript, an unequivocal assent to doing community service either at all or for a period of 200 hours.

As I have said, there were a number of matters unique to the applicant that do not appear to have been given appropriate consideration.  I have already referred to her early plea of guilty and her lack of criminal history.  In addition, no reference was made to what the applicant's legal representative refers to as her having been punished within her family.  This is expressed by a statement by lawyer before the Magistrate that, "Her family had growled at her." 

Further, no reference is made to her general shame and remorse or to the fact that, in committing this offence, there was information before the Magistrate that she had been threatened by the older offender involved, PN.  For example, a Ms B told the Court that if she didn't do what this person told her to do he would just hit her, and she had been trying to tell the applicant to keep away from him for a while.

The history of PN has been fairly placed before me by Mr White on behalf of the respondent and it demonstrates that he has a history for offences of violence and breaking and entering consistent with his being regarded as the prime mover of this offending and also threatening her as suggested.  Beyond that, as Mr White concedes, no issue of parity arises because of his significant criminal history. 

I understand from Mr Law's outline of submissions that Ms B is the applicant's sister.  What Ms B said was referred to in the sentencing decision on two occasions, but more in terms of the Magistrate advising the applicant to stay away from PN.  Other than that, this issue appears to have been given limited weight.  I should hasten to state that Mr Law was not the lawyer who appeared for the applicant before her Honour. 

Although, as I have said, this is a review of the sentence by way of re-hearing on its merits, and it is therefore not necessary for me to find any errors in the sentencing process, I consider for the reasons that I have stated that the sentencing process was attended by errors of principle in the present case. 

Further, in dealing with the matter on its merits, it is relevant that another offender, a 16 year old, who also entered the premises as part of this offence, was dealt with by way of a caution from the police.  This child played a more significant role in the offending than the present applicant.

As on the evidence she would appear to have been one of the persons from which the $2,400 was obtained and brought to the police, it can also be said that she received the greater benefit from the offending. 

In these circumstances, the respondents rightly concede that, having regard to the mitigating factors in the applicant's favour, that a youth justice conference is within range for the offending.  However, noting that the target of this offending was a service station within the community and the offending therefore had a significant effect within the community and a significant amount of funds were taken and remained unrecovered, it is submitted that it would also be within the exercise of my sentencing discretion to impose a shorter period of community service.

However, having regard to the circumstances of mitigation to which I have referred, and also having regard to parity with the other child who was dealt with by way of a caution, I consider that the appropriate sentencing option is that provided under section 161 of the Youth Justice Act, particularly having regard to the fact that the applicant has no previous convictions and has not previously been given the benefit of a youth justice conference.

A youth justice conference involving an indefinite referral will allow the child to participate in a conference with the complainant, her own family and other community representatives, where the effect of her actions can be discussed. 

There is scope, Mr Law assures me, for her to undertake some voluntary work of the same nature as community service as part of the agreement.  I am also advised, and it is not contested, that a convenor for a conference will be available in this case.

Accordingly, I discharge the order of the learned Magistrate made on 12 January 2011 and substitute another order, which is within the jurisdiction of a Childrens Court Magistrate to make, namely I order that this matter be referred to the coordinator for a conference under section 161(3), paragraph (a), clause (i) of the Youth Justice Act, which will allow the offence to be appropriately dealt with without the Court making a sentence order, also referred to as an indefinite referral.

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