R v Tje

[2012] QChC 11

[2012] QChC 11

CHILDRENS COURT OF QUEENSLAND

JUDGE SAMIOS

Indictment No 30 of 2012

THE QUEEN

v.

TJE

BRISBANE

..DATE 21/03/2012

ORDER

This is an application to review the sentence imposed by the Childrens Court at Cleveland on the 24th of January 2012. 

The sentence imposed by the learned Magistrate who comprised the Childrens Court at Cleveland was one of nine months probation.

The applicant was born on the 7th of August 1995.  He was 16 years of age at the time the sentence was imposed.  No conviction was recorded.  The offending by the applicant for which the learned Magistrate imposed the nine months probation comprised 15 offences to which the applicant pleaded guilty.  I pause here to say the learned Magistrate failed to expressly declare that he was taking into account the applicant's pleas of guilty.  Magistrates should expressly declare if they are taking into account the pleas of guilty and the cooperation with the administration of justice.  Nevertheless, that is not a reason for why I would set aside the order made by the learned Magistrate on this occasion.

The offences committed by the applicant were 15 in total; six of those were trespass offences; one was evading a fare; one was stealing; three were public nuisance; one was obstruct police; one was assault police; one was common assault and one was wilful damage.  Ms Villanova who appears on behalf of the respondent has in her submissions conveniently set out these offences and the facts of those offences in her written submissions.  There are 10 occasions on which the applicant had offended.

Basically the six trespass offences are occasions of the applicant going to shopping centres where he was banned.  The stealing offence on the 28th of September 2011 was an occasion when he stole personalised number plates from the front of the complainant's vehicle.  When the police went to his address he participated in a formal interview, he made full admissions to committing the offence and he was issued a notice to appear.

Then comes the 3rd of November 2011, he attended the shopping centre where he was banned, the police approached him, he told the police he was not aware that he was banned and he was issued with a notice to appear.  Then on the 8th of November 2011 he was observed to light some paper on a fire on a platform at the train station.  That was an occasion of public nuisance.  He made full admissions to the police, he said he was drunk at the time, again he was issued with a notice to appear. 

Then on the 19th of November 2011 he committed a public nuisance and an obstruct police.  On that occasion the police were called to the train station due to a report from a station officer that he was being verbally abused and threatened of being stabbed by a male person.  This person was later identified as the applicant.  Two railway guards with a canine challenged the applicant about possessing a knife, causing the applicant to run away to a nearby street.  Police attended the scene and made attempts to intercept the applicant and told him to stop and he did not comply.  Police tackled him and handcuffed him.  He was searched but there was no weapon found on him.  He was arrested and released on bail.

Then on the 25th of November 2011 he committed two trespass offences, one assault police officer and one commit public nuisance.  At around 12.45 p.m. the police spoke to three youths at the Capalaba Shopping Centre, one of these youths was the applicant who had been banned from the shopping centre but police were not aware of this.  At around 3.45 p.m. police saw the applicant again at the shopping centre, this time knowing that he was banned from the centre.  The applicant told the police he knew he was banned from the centre.  The police were in the process of issuing the applicant with a notice to appear when he became agitated.  Police placed the applicant under arrest and the applicant resisted and started yelling abuse at the police.  He was placed in a police vehicle and continued to yell out telling the police that he was going to assault them.  He was charged in relation to these matters and released on bail.

Then on the 27th of November 2011 he committed a common assault and a wilful damage offence.  On that day at about 12.45 p.m. the complainant and his friends attended Birkdale Shopping Centre.  The applicant and his friends approached the complainant and a fight ensued.  The applicant accused the complainant of spreading rumours about his sister, the applicant's sister.  The applicant punched the complainant in the face numerous times before leaving the scene.  On this day the applicant had also damaged a bicycle parked at the shopping centre. 

The next day the police were patrolling along Redland Bay Road when they observed the applicant walking along the road.  The police spoke to him and conveyed him to the watch-house.  An interview did not occur as a support person could not be found for the applicant.  The applicant was charged and bail was refused. 

Then on the 6th of December 2011 he committed a trespass; this was again attending the Capalaba Shopping Centre knowing he was banned from attending there.  The police were informed which resulted in him being arrested and he was charged with the offence and bail was refused.

Then on the 20th of December 2011 he committed a trespass, again he attended the Carindale Shopping Centre from where he had been banned.  The police saw him and issued him with a notice to appear. 

Then on the 16th of January 2012 he evaded a fare.  The police spoke to him on the train and noticed he did not have a valid ticket for boarding the train.  He was charged and issued with a notice to appear. 

Then on the 23rd of January 2012 he committed a trespass; this again was attending the Carindale Shopping Centre knowing he was banned from attending there.  He was issued with a notice to appear. 

It is to be noted that the applicant spent seven days in custody; that would appear to have been served after committing the offences of common assault and wilful damage on 27 November 2011.  He was then released on a conditional bail program; he apparently has performed very well on that program.

Mr Law who appears on behalf of the applicant has also in his submission pointed out that the learned Magistrate did not gain the express consent of the applicant to being placed on probation, and nor did he explain the purpose and effect of the order and the consequences that may follow if the applicant failed to comply with the order.  However, it does appear that the person representing the applicant before the learned Magistrate accepted that there should be supervision and responded in the affirmative when the learned Magistrate said, "I'm thinking about nine months probation".

Nevertheless, there was not a explanation of the purpose and effect of the order and the consequences that may follow if the applicant failed to comply with the order.  There was a rough way of telling him though that if he did not behave himself - there was an explanation that there would be something over the head of the applicant so the learned Magistrate could have "…another chop at you".  The learned Magistrate pointed out that gaol was a prospect if the applicant did not comply with his probation.  The learned Magistrate pointed out that he had to go through "…all these bloody hoops.  I've got to jump through them all before I can gaol you". 

While other language could have been used by the learned Magistrate, I do think he was making the point to the applicant that the applicant had to behave himself.  It was obvious by the imposition of probation from the applicant's representative that supervision was the end goal.

On the hearing today Mr Law, on behalf of the applicant, has submitted that the appropriate sentence in all the circumstances was a referral to a indefinite youth justice conference.  It appears the applicant may be a person with an intellectual impairment. 

In all the circumstances despite the failings of the learned Magistrate that I have pointed out earlier in these reasons, I have come to the view that notwithstanding the applicant's plea of guilty and cooperation with the administration of justice, he had been persistent in his offending and that supervision was appropriate in all the circumstances.  I consider that is the appropriate outcome.  I do not agree that he should have been referred to an indefinite youth justice conference.  He was in need of supervision and if it turns out that he has an intellectual impairment, well that may enlighten everyone more than we are at the present time.  If he does have an intellectual impairment, I still consider supervision appropriate to help him. 

Therefore, I confirm the order the learned Magistrate made on the 24th of January 2012 and I direct the applicant's legal representatives to explain to the applicant the purpose and effect of the order and the consequences that may follow if the applicant fails to comply with the order.

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