R v RLP

[2019] QChC 11

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v RLP [2019] QChC 11

PARTIES:

R

v

RLP  

(Applicant)

FILE NO/S:

47/2019

DIVISION:

Appellate

PROCEEDING:

Sentence review

ORIGINATING COURT:

Brisbane Childrens Court

DELIVERED ON:

1 April 2019 (delivered ex tempore)

DELIVERED AT:

Brisbane Childrens Court

HEARING DATE:

1 April 2019

JUDGE:

Dearden DCJ

ORDER:

1.   Application granted;

2.   Vacate the sentence imposed at the Mackay Childrens Court on 18 January 2019 of three months probation with no conviction recorded;

3.   Order that the child be reprimanded pursuant to Youth Justice Act 1992 (Qld) s 175(1)(a) (and no conviction be recorded).

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES - application for sentence review – where the applicant had previously been sentenced to three months probation for wilful damage – where the applicant child did not consent to the probation order – where three months probation order was excessive in the circumstances   

LEGISLATION:

Youth Justice Act 1992 (Qld) s 118, s 122(1), s 150, s 150(1)(k), s 162(1), s175(1)(a), s 193, s 194

CASES:

COUNSEL:

Law, D (sol) for the applicant

Hislop, E (sol) for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Office of the Director of Public Prosecutions for the respondent

______________________

1. HIS HONOUR:   This is an application for a sentence review by the applicant RLP, who was sentenced at the Mackay Childrens Court on 18 January 2019 in respect of a charge of wilful damage which occurred on 14 October 2018.  The applicant was sentenced to three months’ probation and a conviction was not recorded. 

1. The circumstances of the offence are briefly noted in the submissions by the applicant as follows: –

The applicant child’s ex-boyfriend drove his friend’s car to an address in Blacks Beach to return property belonging to the applicant.  The applicant and her ex-boyfriend began having an argument.  As her ex-boyfriend got into the car to drive away, the applicant threw a glass bottle at the rear windscreen of the car causing it to smash.  The windscreen cost $440 to repair. 

The law – sentence reviews 

1. This court has the power to review a sentence order of a Childrens Court magistrate (Youth Justice Act (YJA) 1992 s 118), which is a re-hearing on the merits (YJA s 122(1)) which should be conducted expeditiously and with as little formality as possible, having regard to the record of the Childrens Court proceeding and any further submissions and evidence by way of affidavit or otherwise.

The law – sentencing children. 

1. This Court is obliged to take into account the sentencing principles contained within YJA s 150. In that respect, I particularly note YJA s 150(1)(k).

Grounds of review

1. It is submitted on behalf of the applicant that the sentence order imposed was excessive in the circumstances. In conceding that issue, the respondent Director of Public Prosecutions not only accepts that submission, but notes the error to comply with YJA s 194 (to be addressed shortly), and also the failure to comply with YJA s 162(1) which mandates a court considering a plea of guilty to consider referring the offence to the restorative justice process. That is also submitted to constitute an error in the sentencing process.

Discussion 

1. The applicant was charged on 3 December 2018, aged 17, and had no criminal history.  The proceedings before the learned Childrens Court magistrate appear to have proceeded apace such that the applicant’s lawyer was not given an opportunity to submit on the appropriate sentence on behalf of the applicant.  After inquiring whether the child had capacity (presumably to pay restitution), and being informed of the negative, the magistrate said: –

I might just give three months [indistinct]  I think it does not seem – is that your first boyfriend? 

1. The submission is made that it is “unclear whether the applicant child consented to being placed on probation”.  On my view of the record it is entirely clear – the child was not asked for her consent, which is clearly in breach of the relevant provisions of legislation. 

1. The child had no history of offending, and quite clearly had no need for a supervised order. There was, as I have indicated previously, no attempt whatsoever to comply with YJA s 162(1) (a consideration, at least, of a referral to the restorative justice process). There may well have been some benefit in that referral depending on the information provided by the prosecutor and/or the applicant’s lawyer.

1. The Crown properly concedes that there is no need for supervision in the context of this offence, which appears to have occurred impulsively in the context of an argument and it is common ground between the applicant and the respondent Crown that the three month probation order was excessive in the circumstances. 

1. It is useful to note at this stage that the requirements of a probation order set out in YJA s 193, and YJA s 194 titled “Child must be willing to comply” states:-

A Court may make a probation order against a child only if the child indicates willingness to comply with the order.

1. Although not specifically mandated by the legislation, it is my very clear view that any court considering the imposition of a community based order which requires the consent of the defendant (whether in the Childrens Court or an adult court), should ask the following three questions:

(1)Does the defendant understand the conditions read out (reflecting the words of the legislation and, where appropriate, a simpler formulation of those words).

(2)Does the defendant wish to ask any questions in respect of any of the conditions?

(3)Does the defendant consent to the community based order on the conditions that have been read out?

1. The approach of a sentencing court on that basis, ensures not only that the child has indicated a “willingness to comply,” but of course ensures that the child understands the conditions of the proposed order and has had the opportunity to inquire in respect of any or all of those conditions.  Research has indicated that informed consent is the best inoculation against failure to comply in the future. 

1. In all of the circumstances, it is clear that the application for sentence review should be granted and it is again common ground between the applicant and the respondent that the bottom of the range would be a reprimand pursuant to YJA s 175(1)(a), although Ms Hislop for the respondent submits that a referral to restorative justice is also within range.

1. In all of the circumstances, and particularly being cognisant of YJA s 150(1)(k), I am of the view that the appropriate order in these circumstances, given the unusual one-off nature of the offending, the clear lack of need for further supervision, and the age of the child, is an order for a reprimand.

Orders

1. Accordingly, I make the following orders:

(1)           Application granted;

(2)Vacate the sentence imposed at the Mackay Childrens Court on 18 January 2019 of three months probation with no conviction recorded;

(3)           Order that the child be reprimanded pursuant to Youth Justice Act 1992 (Qld) s 175(1)(a) (and no conviction be recorded).