R v Tay

[2019] QChC 22

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v TAY [2019] QChC 22

PARTIES:

R

v

TAY
(applicant)

FILE NO:

496/19

DIVISION:

Appellate

PROCEEDING:

Application for sentence review

ORIGINATING COURT:

Childrens Court at Cunnamulla

DELIVERED ON:

26 July 2019

DELIVERED AT:

Brisbane

HEARING DATE:

23 July 2019

JUDGE:

Richards P

ORDER:

Application allowed. Sentence of 100 hours community service and 12 months probation is set aside. The child is sentenced to a 6 month probation order on the usual conditions.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING OF JUVENILES – SENTENCE MANIFESTLY EXCESSIVE –  where the applicant child was aged 14 to 15 at the time of the offending – where the child was subject to a good behaviour order at the time of offending – where the child pleaded guilty and was sentenced to 12 months probation and 100 hours community service

COUNSEL:

Mr D Law for the applicant
Mr B Park for the respondent

SOLICITORS:

Legal Aid for the applicant
Office of the Director of Public Prosecutions for the respondent

1. The applicant was sentenced on 18 April 2019 in the Cunnamulla Childrens Court on six charges of failure to appear, unlawful use of a motor vehicle, wilful damage and stealing.  She was 15 years of age at the time of the offences (14 for the wilful damage).  She was subject to a good behaviour order at the time of the offences.  She was sentenced to 12 months probation and 100 hours community service. 

1. The offences involved her not turning up to court on six occasions.  The wilful damage involved her being ejected from a house with her mother and others and she used a chair to smash a window as a result. The stealing involved stealing a pair of sunglasses from a shop.  The sunglasses were recovered. The unlawful use of a motor vehicle involved her being in possession of keys and being in a car that was taken from Strathpine shopping centre.

1. The matter appears to have proceeded somewhat unusually with the magistrate hearing the matter by phone. This seems to have been at the request of the parties.  The magistrate initially expressed his displeasure that the child had wasted his and the court’s time by not appearing previously and the fact that she had been given bail after failing to appear.  He was short when accepting submissions from the defence and in fact did not receive any submissions in relation to her personal circumstances. 

1. The child is still young.  There were no submissions received on the quality or otherwise of her current circumstances, her upbringing, her education, or the circumstances in which she forgot or failed to remember court appointments.  Although she has since been given probation for offending post this sentence, at the time of the sentence she had a criminal history that involved some dishonesty but she had only ever been reprimanded, placed on a good behaviour bond or, on one occasion in 2017, given 20 hours community service. 

1. The offending itself, whilst no doubt inconvenient to the court, was not particularly serious. In a moment of heightened emotion she threw a chair at a window, she stole a pair of sunglasses that were recovered and she was a passenger in a motor vehicle. There was no effort made to explore the underlying reasons for her behaviour. The child had been remanded in custody overnight at the time of sentence.   In my view, the offences did not call for a sentence of 100 hours community service and 12 months probation. Such a sentence was excessive in the circumstances. 

1. I accept the submission made on behalf of the applicant that in all the circumstances a sentence of six months probation would have been appropriate.   

1. The application for review is granted, the sentence set aside and instead a sentence of six months probation is imposed on the usual conditions.