R v TJB

[2014] QDC 185

DISTRICT COURT OF QUEENSLAND

CITATION:

R v TJB [2014] QDC 185

PARTIES:

THE QUEEN

v

TJB

FILE NO/S:

CCQ

DIVISION:

Criminal

PROCEEDING:

Sentence

ORIGINATING COURT:

Children’s Court of Queensland

DELIVERED ON:

3 September 2014

DELIVERED AT:

Brisbane

HEARING DATE:

29 August 2014

JUDGE:

Reid DCJ

ORDER:

That publication of identifying information about the defendant child be prohibited.

CATCHWORDS:

Non-publication order for child offender – where no conviction is recorded – prospects of rehabilitation – protection of the community

Youth Justices Act 1992 (Qld) s. 299A

R v Cunningham [2014] QCA 88 considered

COUNSEL:

S. Neaves for the applicant

SOLICITORS:

Director of Public Prosecutions for the respondent

Walker Pender Solicitors for the applicant

1. In this matter, the applicant defendant has applied for an order pursuant to s. 299A of the Youth Justices Act 1992 (Qld) (‘YJA’) prohibiting the publication of identifying information about him. He was born 11 March 1998 so is a child under that Act.

Criminal History

1. The applicant was 15 years old when he committed the subject offence, and has a juvenile criminal history.

1. On 25 January 2013, he was dealt with in the Children’s Court of Queensland for three offences of stealing, one offence of burglary and commit an indictable offence, one offence of unauthorised dealing with shop goods and one offence of failure to appear in accordance with an undertaking. The offences had been committed over a three-month period from 6 November 2012 to 11 January 2013. No conviction was recorded and he was placed on a good behaviour bond for six months.

1. He committed a further two offences of failing to appear in accordance with an undertaking. He was dealt with in the Children’s Court of Queensland on 18 March 2013. He was again placed on a good behaviour bond, for three months, and on 22 March 2013 he was reprimanded. No convictions were recorded on either occasion.

1. On 23 August 2013 the applicant was dealt with in the Children’s Court of Queensland for numerous offences, the most serious being one of armed robbery in company with personal violence. He was sentenced to two years probation with no conviction recorded. This order was breached by the subject offence.

1. Following the subject offending the applicant has also subsequently offended. He was dealt with the Children’s Court of Queensland at Caboolture on 13 September 2013 for two charges of stealing, one charge of trespass, one charge of failure to appear and one charge of contravene direction or requirement. The applicant was sentenced to 60 hours of community service and no conviction was recorded.

Circumstances of the offence

1. The subject offending conduct occurred on 7 September 2013 on River Drive at Bellmere. At about 2pm the complainant, who was then a 14 year old child, was riding his bicycle near to the end of the bridge on River Drive when the defendant emerged from some nearby bushes and stood in the path of the bicycle.

1. The complainant child stopped his bicycle and dismounted. The defendant said ‘if you don’t hand over your bike I’m gonna fucken punch you in the throat till you bleed’.

1. Two other males then emerged from the bushes and approached the complainant. The defendant punched the complainant on his left cheek with a closed fist. This knocked the complainant child off his feet, causing him to fall onto his knees.

1. One of the other males then grabbed the bicycle and all three ran towards the river. The complainant walked home and reported the offence to his older sister. Together they drove around the area in an attempt to locate the offenders and the complainant’s bicycle. Unsuccessful, they drove to the Caboolture police station and made a complaint.

1. The 3 October 2013 the defendant child voluntarily attended the Caboolture police station and participated in a record of interview. He gave a version of events that was ultimately not advanced on the sentence evidenced by the defendant’s plea of guilty to the agreed facts placed before me.

STATUTORY PROVISIONS

1. Section  299A of the YJA provides:

“299A   Prohibition of publication of identifying information about a child who is not a first-time offender

(1) This section applies in a proceeding before a court for a child who—

(a)       has been charged with an offence; and

(b)       is not a first-time offender.

(2) The court may, at any time during a proceeding, make an order it considers is in the interests of justice prohibiting the publication of identifying information about the child (a publication prohibition order).

(3)       The court may make a publication prohibition order—

(a)       on its own initiative; or

(b)       on application by a relevant party.

(4) In considering whether it would be in the interests of justice to make a publication prohibition order, the court must have regard to the following—

(a)       the number of the child’s previous findings of guilt;

(b)       the seriousness of the offence;

(c) the period between the proceeding and any previous offence committed by the child;

(d)      the need to protect the community;

(e)       the effect of publication on—

(i)        the safety of the child; or

(ii)       the rehabilitation of the child; or

(iii) the safety or wellbeing of a person other than the child;

(f)       any other relevant matter.

(5) A person must not publish identifying information about the child if the court has made a publication prohibition order in relation to the child.

Maximum penalty (subject to part 7)—

(a) for an individual—100 penalty units or 2 years imprisonment; or

(b)       for a corporation—1000 penalty units.

(6)       In this section—

relevant party means—

(a)       the child; or

(b)       a parent or other member of the child’s family; or

(c)       a party or person representing a party to the proceeding,

including, for example, a police officer or another person in charge of a case against the child in relation to the offence the subject of the proceeding; or

(d)      the chief executive; or

(e)       the chief executive (child safety); or

(f)       if the child is an Aboriginal or Torres Strait Islander

person—

(i) a representative of an organisation whose principal purpose is the provision of welfare services to Aboriginal and Torres Strait Islander children and families; or

(ii) a representative of the community justice group in

the child’s community who is to make submissions that are relevant to sentencing the child.”

1. It is clear from R v Cunningham [2014] QCA 88 that the list of considerations in s. 299A of the YJA is not an exclusive list of the considerations relevant to the question of whether to grant the defendant’s application.

1. The defendants history shows he is not a first-time offender. His offending dates from 6 November 2012, when he was 14. He has been given bonds, probation and community service in the past. Indeed, his subject offending on 7 September 2013 was in breach of a two-year probation order made on 23 August 2013. I note however that he has committed no offence since 11 September 2013, a period of almost 12 months.

1. He has served 163 days in pre-sentence detention over that period but has been living at his mother’s home since his release on 22 April 2014 without offending.

1. He has not previously had a conviction recorded and, despite opposing the order under s. 229A, the Crown did not oppose an order that no conviction be recorded in this case.

1. In all his criminal history shows he has been found guiltily of 24 separate matters committed on 17 different days. All were committed between 6 November 2013 and 11 September 2013, a period of only ten months.

1. The most serious prior offence was the offence of armed robbery with actual personal violence and in company. The Crown Prosecutor told me his role was restricted to giving verbal encouragement to others who assaulted a youth worker involved in their care. Apart from the subject offence, the details of which have been earlier set out and that offence, he does not have offences of violence.

1. The most important consideration, and one which strongly supports the defendant’s application, emerges from the contents of the pre-sentence report prepared by Youth Justice Services of 27 August 2014.

1. The caseworker who prepared that report opines that the defendant’s exposure to domestic violence when he was very young, and his early disconnection from mainstream education significantly affected his capacity to live a law-abiding life. That is, given his history, no surprising and is of course not unusual.

1. His response since his release from detention gives significant hope for the future. Whilst in custody his father, from whom he was estranged, died. The realisation he would not again see his father and could not attend his funeral is said in the report to have had a significant impact on the applicant.

1. His mother reports he has shown marked improvement in his behaviour since his release from detention. The case worker reports ‘vast improvements in his willingness to engage in interventions to address factors associated with his offending behaviour.’

1. He has re-engaged with education through the Y-JET alternative education program. His counsel told me he hopes, eventually, to attend TAFE and to undertake a mechanical apprenticeship.

1. There is, it can be seen, some cause for optimism. These changes are reflected in his lack of criminal conduct since September 2013.

1. In my view, publication of identifying information about the defendant is unlikely to protect the community in any meaningful way. It may, especially as he lives in a relatively small rural community outside Brisbane, adversely effect his rehabilitation and in that way in fact increase the risk to the community.

1. In my view, consideration of these issues and the factors set out in s. 229A(4) of the YJA strongly support the making of a publication prohibition order. I can see no benefit whatsoever in allowing publication of identifying information about the defendant.

1. I order that publication of identifying information about the defendant child be prohibited.