REC v Director of Public Prosecutions

[2021] QChC 25

CHILDRENS COURT OF QUEENSLAND

CITATION:

REC v Director of Public Prosecutions [2021] QChC 25

PARTIES:

REC
(Applicant)

v

DIRECTOR OF PUBLIC PROSECUTIONS
(Respondent)

FILE NO/S:

DIVISION:

Childrens Court of Queensland

PROCEEDING:

Sentence Review Application

ORIGINATING COURT:

Townsville Childrens Magistrates Court

DELIVERED ON:

27 May 2021 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

27 May 2021

JUDGE:

Dearden DCJ

ORDER:

1.   Application granted.

2.   Discharge the probation order (12 months) made on 25 March 2021 at Townsville Childrens Court.

3.   Substitute an order that the applicant be placed on probation for a period of six months, for the relevant offences.

4.   Discharge the restorative justice order made on 25 March 2021 at Townsville Childrens Court.

5. Substitute an order that the three offences dated 11 March 2021 (enter dwelling and stealing, stealing and unlawful use of a motor vehicle) be referred for a court diversion referral restorative justice process (YJA s.163(1)(b)(i) and YJA s.164).

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE –SENTENCING JUVENILES – where the child was sentenced to a restorative justice order and a 12-month probation order for various offences including stealing, unlawful use of motor vehicle, and common assault – where the child was 13 at the time of the offences and 14 at sentence – where the child had a very minor criminal history – where 28 offences were committed over a seven-week period – where the child had spent 23 days in pre-sentence custody, of which the learned magistrate was not advised  – where  actual detention would not have been open as a sentence of last resort in the circumstances – where 12 months probation was the maximum penalty available in the circumstances – where the child was attending school and undertaking counselling and other community activities – whether the sentence imposed was excessive in the circumstances – whether a restorative justice order or court diversion referral restorative justice process should have been made

Youth Justice Act 1992 (Qld) ss 118, 122, 163, 164

COUNSEL:

N Bennett for the applicant

M Andronicus for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Office of the Director of Public Prosecutions for the respondent

Introduction

1. This is an application for sentence review by the applicant, REC, in respect of sentences imposed at the Townsville Childrens Court on 25 March 2021.  An application for sentence review was filed in this court on 22 April 2021, and the substantive orders the subject of this application, namely, a restorative justice order and a 12-month probation order, were immediately stayed. 

The law – sentence reviews

1. The application for a sentence review, pursuant to Youth Justice Act 1992 (Qld) (‘YJA’) s.118, proceeds as a rehearing on the merits (YJA s.122(1)). The applicant is not required to demonstrate any error by a sentencing magistrate, but of course, error may well be apparent on the record. That review must be conducted expeditiously and with as little formality as possible (YJA s.122(3)). This court has or may have regard to the record of the proceeding for the Childrens Court magistrate, and any further submissions in evidence by way of affidavit or otherwise (YJA s.122(2)).

Background

1. The basis of the review, as expanded in the outline of submissions (exhibit 1), is that the learned magistrate erred by placing insufficient weight on the applicant’s pre-sentence custody and age;  and further, the learned magistrate erred by failing to consider referring the applicant to a court diversion referral restorative justice process.

1. The background to these proceedings is that the applicant pleaded guilty to a total of 28 charges on 25 March 2021.  Those charges, briefly, in terms of their outline are:

·charges 1 and 2 – common assault and fare evasion on 17/1/2021; 

·charges 3 and 4 – enter premises and stealing and fare evasion) on 18/1/2021; 

·charges 5 and 6 – unlawful use of a motor vehicle and stealing on 25/1/2021; 

·charge 7 – fare evasion on 27/1/2021;

·charge 8 – receiving tainted property on 30/1/2021; 

·charges 9-10 – enter dwelling and stealing, unlawful use of a motor vehicle and stealing on 31/1/2021; 

·charge 12 – unlawful use of a motor vehicle on 31/1 – 4/2/2021; 

·charge 13 – stealing on 2/2/2021; 

·charge 14 – possession of dangerous drug on 5/2/2021; 

·charges 15 and 16 – two charges of unlawful use of a motor vehicle on 22/2/2021

·charges 17-20 – unlawful use of a motor vehicle, drive without a licence never held, stealing and stealing on 26/2/2021; 

·charge 21 stealing on 26/2/2021; 

·charges 22-24 – unlawful use of a motor vehicle, stealing and stealing on 28/2/2021; 

·charge 25 – unlawful use of a motor vehicle on 28/2/2021; and finally,

·charges 26-28 – enter dwelling and stealing, stealing and unlawful use of a motor vehicle on 11 March 2021.

1. The detail of each of those offences is summarised in exhibit 1, paragraph 6, and as a spree of offending, have some particularly serious and concerning aspects, particularly (as the Crown respondent pointed out) the offences against the same complainant on two separate occasions, involving first his car, and then his hire car, which was a replacement for his car that was unlawfully used. 

1. At the sentencing process, the prosecutor made submissions, including that the applicant was 13 when the offending began, 14 at sentence; had a criminal history of one stealing offence from 2020; had committed 28 offences over a seven-week period, and had been the driver of stolen vehicles on at least seven occasions in that timeframe; had at the time of the final offence, had been on bail for earlier offending including a 24 hour curfew; had been remanded in custody since the final offending;  was an intelligent young person who was re-enrolled at school; was committing offences which were prevalent in the community when committed by juvenile offenders; and required deterrence and hence a 12-month probation order should be imposed.

1. The applicant’s lawyer provided only minimal detail of her circumstances, but in particular, advised that her father was in custody; they did not get along and he had lived a life in prison.  She had been associating with negative peers at the time of the offending; smoking cannabis; had unstructured time; was upset about her most recent offending; did not wish to return to detention; had been attending school while in detention, as well as undertaking substance misuse counselling; had been accepted into a particular boarding school which she was excited to attend; was engaging with the Proud Warrior Project; wanted to return to participating in running in athletics and take up other sports; and work in the future as a detention centre youth worker and be a role model (exhibit 1, paragraph 7-8).  A letter was also tendered from REC, expressing her desire to not be a criminal, have her family be proud of her.

Discussion

1. The key flaw in the process before the learned magistrate is that the magistrate was not advised that the applicant had spent 23 days in pre-sentence custody, and the 12-month probation order imposed was, in fact, the maximum period permissible for a child of this age committing these offences.  The magistrate also imposed a restorative justice order, which as the applicant points out, has a subtle but important difference between that order and a court diversion referral (i.e. a restorative justice process).

1. The orders imposed by the learned magistrate in respect of the offences, were for possession of a dangerous drug, three charges of fare evasion, and driving without a licence, each charge was dismissed and a caution administered; for the offences from 11 March 2021, a restorative justice order;  and for the balance of the offences, a 12-month probation order.

1. The submissions on the sentence review are that the learned sentencing magistrate failed to place sufficient weight on the child’s previous offending history (very minor); her age (13 at the time), i.e. very young in the juvenile criminal justice system; the capacity for rehabilitation assisted by educational opportunities; but most importantly, that the applicant was in custody at the time of the sentence, and the court was not informed either orally or by way of a remand in custody report, of the period of time the applicant had spent in custody, namely, 23 days (affidavit of Nicholas Bennett of whom 26 May 2021, para 6 and exhibit NAB-5).  In short, it submitted that REC had served almost 50 per cent of her six-week detention order, in circumstances where it is submitted, and I accept, that authority would indicate that actual detention would not have been open as a sentence of last resort for a child of this age for these offences with this criminal history.

1. In those circumstances, it is submitted, and I accept, that clearly insufficient weight has been given to the pre-sentence detention, given that the probation order was the maximum available, and it is also significant, in my view, that the applicant’s age appears to have been insufficiently considered in terms of the outcome imposed (in particular, the imposition of a restorative justice order, as opposed to utilising a court diversion referral restorative justice process).

1. Mr Andronicus, who appears for the respondent, acknowledges and accepts the error in respect of the failure to take into account the 23 days in pre-sentence detention; submits somewhat differently but not significantly, that the probation order should be reduced to nine months from 12 months, acknowledging the error; but does differ from the applicant in respect of the imposition of a restorative justice order or court diversion, arguing that the commission of offences on 11 March 2021, while on bail and curfew, justify those matters effectively being placed upon a history which is the effect of a restorative justice order, as opposed to a referral.

Conclusion

1. Although, I understand and acknowledge those matters properly raised by Mr Andronicus, in my view, the combination of the 23 days pre-sentence detention, not placed appropriately before the magistrate, and therefore, not given the opportunity to be considered and given sufficient weight in the sentencing process, along with the child’s age (13), and very minor criminal history, ultimately had the effect that, in my view, the submissions made to dispose of this matter on appeal are appropriate submissions, namely, that the probation order should, effectively, be replaced by a six-month probation order and the restorative justice order should be replaced by a referral for a court diversion referral restorative justice process.

Orders

1. Accordingly, I make the following orders:

(1)   Application granted.

(2)   Discharge the probation order (12 months) made on 25 March 2021 at Townsville Childrens Court.

(3)   Substitute an order that the applicant be placed on probation for a period of six months, for the relevant offences.

(4)   Discharge the restorative justice order made on 25 March 2021 at Townsville Childrens Court.

(5) Substitute an order that the three offences dated 11 March 2021 (enter dwelling and stealing, stealing and unlawful use of a motor vehicle) be referred for a court diversion referral restorative justice process (YJA s.163(1)(b)(i) and YJA s.164).