R v TC

Case [2025] QChC 8

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v TC [2025] QChC 8

PARTIES:

THE KING

v

TC

(applicant)
FILE NO:

BD76/25

DIVISION:

Childrens Court of Queensland

PROCEEDING:

Application for sentence review

ORIGINATING COURT:

Brisbane

DELIVERED ON:

22 July 2025

DELIVERED AT:

Brisbane

HEARING DATE:

14 April 2025

JUDGE:

Richards DCJ

ORDER:

Sentence set aside.

The child admitted to probation on all the charges the subject of review. 

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was aged 14 and 15 at the time of the offences – where the offences were committed both before and after amendments to the Youth Justice Act 1992 (Qld) – where the applicant was sentenced to 18 months detention to serve four months for post-amendment offences and probation for the remaining offences – where no pre-sentence report was obtained and no plea entered for one post-amendment unlawful use of a motor vehicle charge – where the applicant had already served 112 days in detention and had a minor prior criminal history – where the Crown conceded the detention sentence was excessive – whether the Magistrate erred by taking into account s 13 of the Penalties and Sentences Act 1992 (Qld) – whether the detention sentence was manifestly excessive.

LEGISLATION:

Youth Justice Act 1992 (Qld)
Making Queensland Safer Act 2024 (Qld)
Penalties and Sentences Act 1992 (Qld)

CASES:

R v Ottewell (1970) AC 642
R v De Simoni (1981) 147 CLR 383
Veen v The Queen (No 2) (1988) 164 CLR 465
R v D [1995] QCA 329
R v Ross [2000] QCA 49
R v Cummins [2004] QCA 350
R v Howie [2009] QCA 50
R v Dance [2009] QCA 371
CDL v Commissioner of Police [2024] QCA 245
COUNSEL:

E Conran for the respondent

J Dudley for the applicant
SOLICITORS:

Office of the Director of Public Prosecutions Qld
Legal Aid Queensland for the applicant

Introduction

  1. The applicant was sentenced in the Childrens Court at Kingaroy on 24 February 2025. The offences were a combination which occurred before and after the amendments to the Youth Justice Act 1992 (Qld) (the Act) implemented through the MakingQueensland Safer Act 2024 (Qld) (MQSA).

  2. The review of this sentence was heard on 14 April 2025. The sentence was set aside and a 12 month probation order imposed. I indicated that I would publish my reasons at a later date.

    Facts

  3. The applicant sought review of the sentence imposed in relation to a large number of offences spanning from 17 January 2024 to 28 December 2024. The offending was mostly property related, although there were other offences of breach of bail, possession of a knife, and assault police.

  4. In relation to a charge of possession of a knife in a public place and a breach of bail, the child was formally reprimanded. In relation to the offences postdating the MQSA, the child was sentenced to 18 months detention to be released after…

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Details
AGLC
R v TC [2025] QChC 8
Case
[2025] QChC 8
Decision Date

CaseChat Overview and Summary

This case involves an appeal against a sentence imposed on a young person who was aged between 14 and 15 years at the time of the offences. The offences spanned from January 17, 2024, to December 28, 2024, and were largely property-related, although there were other charges such as breach of bail, possession of a knife, and assaulting police. The applicant sought a review of the sentence, which was set aside and a 12-month probation order was imposed. The appeal was based on the grounds that the Magistrate erred in various aspects of the sentencing process, including applying adult cases, the Penalties and Sentences Act 1992 (Qld), rejecting uncontradicted evidence, and failing to give adequate weight to mitigating features.

The court considered whether the Magistrate erred by taking into account section 13 of the Penalties and Sentences Act 1992 (Qld), which pertains to the general sentencing principles for all people. The court noted that the Magistrate had to consider the impact on the victims, the general sentencing principles, and the youth justice principles. The court was critical of the Magistrate's reliance on the child's inability to identify the connection between his offending and his trauma, despite the pre-sentence report outlining the effect of intergenerational offending on his behaviour and how it related to the offending. The court concluded that the Magistrate should have placed more weight on the child's traumatic background as a mitigating factor.

The court found that the sentence of detention was manifestly excessive, and set it aside. The child was admitted to probation on all charges subject to review. The court's decision highlighted the importance of considering the unique circumstances of young offenders, particularly those with a background of intergenerational trauma, when imposing sentences.

Orders

Orders of the court

Sentence set aside.

The child admitted to probation on all the charges the subject of review.

Background

Background to the litigation

The review of this sentence was heard on 14 April 2025. The sentence was set aside and a 12 month probation order imposed. I indicated that I would publish my reasons at a later date.Facts The applicant sought review of the sentence imposed in relation to a large number of offences spanning from 17 January 2024 to 28 December 2024. The offending was mostly property related, although there were other offences of breach of bail, possession of a knife, and assault police. In relation to a charge of possession of a knife in a public place and a breach of bail, the child was formally reprimanded. In relation to the offences postdating the MQSA, the child was sentenced to 18 months detention to be released after serving four months. In relation to the remainder of the offences, he was sentenced to 12 months probation. The Crown has conceded that the sentence of detention was excessive, had proceeded on a wrong basis of law, and should therefore be set aside.The Appeal Grounds The sentencing process was visited with a number of significant errors. It was submitted on behalf of the applicant that the Magistrate erred by:(a)Applying adult cases;(b)Applying the Penalties and Sentences Act 1992 (Qld);(c)Rejecting uncontradicted evidence;(d)Failing to give adequate weight to mitigating features;(e)Acting on a mistaken view of the facts;(f)Placing excessive weight on aggravating factors;(g)Having regard to inadmissible evidence; and(h)Imposing detention for an offence without a pre-sentence report (PSR). In relation to one of the offences which postdated the MQSA, (an unlawful use of a motor vehicle committed on 26 December 2024), the child was never called on and did not enter a plea. No PSR was ordered. It is accepted that the sentence of detention for that charge must be set aside. At the hearing of this review, the child was charged, pleaded guilty and was sentenced for this offence.The Sentence The applicant was 14 at the time of most of the offences. He turned 15 on 14 December 2024. The PSR and his criminal history showed he had a minor history; he was reprimanded for enter premises and commit an indictable offence and fail to appear in March 2022. He was again reprimanded for fail to appear in October 2023. At the beginning of 2024, he received 20 hours community service for three charges of stealing and unlawful use of a motor vehicle. At the time of this sentence, he had completed that community service. The facts of the December 2024 offending are:(a)on 26 December 2024, the applicant was a passenger in a stolen vehicle and uploaded a video, filmed from inside the car, to Instagram.(b)on 28 December 2024, he was a passenger in a vehicle which had earlier been stolen. He was with a group who searched two vehicles and stole a phone. He then was a passenger in a silver Mazda 6 and a party to the unlawful use of another vehicle. The pre-sentence report A PSR was prepared by a Mr P Smith who had a Bachelor of Science and Psychology with Honours, a Graduate Diploma of Psychology and a long history as a Child Safety Officer and a report writer for Youth Justice. He noted that the applicant and his half-sister had been subject to domestic violence, physical and emotional abuse, exposure to substance misuse, and physical and emotional neglect over the past 17 years. At the time of writing the report, both parents had served time in custody for domestic violence. His father was in custody when the child was sentenced. He had witnessed domestic violence from birth, involving not only violence between his parents but also violence with other family members. These incidents included the use of weapons, threats and violence, some of which were at times directed toward the applicant. He had also witnessed concerning substance abuse by his mother and other adults in the family home. Mr Smith noted: “[TC] said that he often left the house to get away from the stress of his mum drinking and getting angry and using drugs and then that was one of the reasons he is outside on the street and gets into trouble. This is an important contributing factor, as research has shown that children who experience trauma in the home tend to avoid being at home and spend more time with peers in environments with lower supervision.” [1][1]Pre-sentence report 6 (‘PSR’).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In terms of his time in detention, he was engaging well with staff and other young people. He had been in detention for 112 days.The decision In sentencing the applicant, the Magistrate noted that he had just turned 16. In fact, he was 15, but it seems as though the Magistrate was led into that error by the child’s solicitor. A number of victim impact statements were tendered. Ms Bagnall explained that the children lost their Christmas presents because they were in the car when it was stolen. She said that both cars were stolen, they feel unsafe in their home and they have been deprived of their means of earning a living. Ms Clews was traumatised by the people who broke into her house, as were Ms Sayer and Ms Lenton. However, the applicant was not charged with those break-ins; he was charged as a passenger in the stolen vehicles. The Magistrate rightly noted that he must have primary regard to the impact on the victims,[4] although there was little information before him regarding the impact of the cars thefts on them. The Magistrate also noted that he was required to have regard to the general sentencing principles applying to all people, that he needed to consider s 9 of the Penalties and Sentences Act 1992 (Qld) as well as the youth justice principles.[5][4]Youth Justice Act 1992 (Qld) s 150(2).[5]Ibid sch 1. The Magistrate noted:“I’m specifically required to take into account whether you have been exposed to domestic violence and I note that you have been. I’ve considered a pre-sentence report. As an indigenous person I am required to take into account intergenerational trauma. Again whilst that’s a general consideration, it’s difficult to relate that intergenerational trauma to any particular aspect of your offending. You, yourself, don’t directly make the link in the pre-sentence report, nor is it immediately apparent to me, other than in the general sense in the same way that other people from disadvantaged groups find themselves marginalised and ‘as Mr Oliver said, the haves and have nots.’” [6][6]Transcript of Proceedings, R v TC (Magistrates Court, Magistrate Sinclair, 24 February 2025) 1-5, 25 (‘Transcript of Proceedings’). The PSR did outline the effect of intergenerational offending on his behaviour and how it related to the offending. It is difficult to understand why the Magistrate rejected that opinion and instead placed weight on the child’s inability to identify the connection between his offending and his trauma generally. His Honour noted he had to have regard to the child’s age, but that he had to be held accountable in the way that recognises the impact of his offending on any victim of the offending. His Honour then referred to s 9 of the Penalties and Sentences Act. He rightly noted that there was no real loss that could be attributed to him. He noted that the pleas were timely, and he noted that he had spent time in custody. The Magistrate went on to say that being part of groups that wander around the streets is not a lifestyle to which he should aspire:“You demonstrated that you worshipped the culture of crime. You all worship the culture of crime. You choose to belong to it and by belonging to it you enable the others and perpetuate that culture into younger people. You are actively destroying the lives of young children in Cherbourg claiming to be the subject of peer pressure is simply telling this Court and your family that you think more of the values of the criminal group than you do of the other family that other cultures and family group. There are countless generations of elders over 10’s of 1,000’s years who would hang their heads in shame at what their proud people have become.” [7][7]Ibid 1-8, 35.

Ratio Decidendi

Legal Principle Established

It was further noted that the child’s family unit has been significantly impacted by past government practices, including a long history of multi-generational government intervention and child safety involvement. The report writer noted that information available to him indicates that it is likely that intergenerational trauma has played a significant part in forming his antisocial behaviours and attitudes. The applicant identified boredom as a reason for committing offences. He stated that he also steals money to give to his family to help at home. In terms of his time in detention, he was engaging well with staff and other young people. He had been in detention for 112 days.The decision In sentencing the applicant, the Magistrate noted that he had just turned 16. In fact, he was 15, but it seems as though the Magistrate was led into that error by the child’s solicitor. A number of victim impact statements were tendered. Ms Bagnall explained that the children lost their Christmas presents because they were in the car when it was stolen. She said that both cars were stolen, they feel unsafe in their home and they have been deprived of their means of earning a living. Ms Clews was traumatised by the people who broke into her house, as were Ms Sayer and Ms Lenton. However, the applicant was not charged with those break-ins; he was charged as a passenger in the stolen vehicles. The Magistrate rightly noted that he must have primary regard to the impact on the victims,[4] although there was little information before him regarding the impact of the cars thefts on them. The Magistrate also noted that he was required to have regard to the general sentencing principles applying to all people, that he needed to consider s 9 of the Penalties and Sentences Act 1992 (Qld) as well as the youth justice principles.[5][4]Youth Justice Act 1992 (Qld) s 150(2).[5]Ibid sch 1. The Magistrate noted:“I’m specifically required to take into account whether you have been exposed to domestic violence and I note that you have been. I’ve considered a pre-sentence report. As an indigenous person I am required to take into account intergenerational trauma. Again whilst that’s a general consideration, it’s difficult to relate that intergenerational trauma to any particular aspect of your offending. You, yourself, don’t directly make the link in the pre-sentence report, nor is it immediately apparent to me, other than in the general sense in the same way that other people from disadvantaged groups find themselves marginalised and ‘as Mr Oliver said, the haves and have nots.’” [6][6]Transcript of Proceedings, R v TC (Magistrates Court, Magistrate Sinclair, 24 February 2025) 1-5, 25 (‘Transcript of Proceedings’). The PSR did outline the effect of intergenerational offending on his behaviour and how it related to the offending. It is difficult to understand why the Magistrate rejected that opinion and instead placed weight on the child’s inability to identify the connection between his offending and his trauma generally.