RQK v Commissioner of Police

[2017] QChC 3

CHILDREN’S COURT OF QUEENSLAND

CITATION:

RQK v Commissioner of Police [2017] QChC 3

PARTIES:

RQK
(Applicant)

v

COMMISSIONER OF POLICE
(Respondent)

FILE NO/S:

2/17

DIVISION:

Childrens Court

PROCEEDING:

Sentence Review

ORIGINATING COURT:

Childrens Court

DELIVERED ON:

18 April 2017 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

18 April 2017

JUDGE:

Dearden DCJ

CATCHWORDS:

LEGISLATION:

CASES:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – application for a sentence review under s. 119 of the Youth Justice Act 1992 – whether the sentence imposed by the learned sentencing magistrate is excessive

Youth Justice Act 1992, ss 119, 121, 150, 175, 193

Veen (No. 2) v R (1988) 164 CLR 465

COUNSEL:

D Law for the applicant
J K Rodriguez for the respondent

SOLICITORS:

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

1. HIS HONOUR:   This is an application for a sentence review by RQK, in respect of a sentence of 12 months’ probation and 100 hours’ community service imposed by the learned Childrens Court magistrate at Ayr on 23 November 2016.  An application for review of the sentence was filed on 20 December 2016.

1. I am grateful for the outline of matters contained in the appellant’s outline of submissions from which I will quote for the purpose of these reasons.  The applicant was born on 11 July 2001 and was 15 years old at the time of both his offences and at the time of sentence.  The applicant did have a criminal history, although quite minor at the time of sentence.  That history included other entries which resulted in reprimands and/or court diversion or referral, but importantly on 15 June 2016, a six-month probation order for three offences of enter premises with intent and one unlawful use.  That probation order was current during the commission of the offences the subject of this appeal.

1. The circumstances of the offences are briefly set out at paragraph 7.1 of the outline and they are in these terms:

–    Stealing (18/9/2016) – the applicant and a co-offender rummaged through some garbage bags left on the footpath next to the Saint Vincent de Paul clothing bins and took a pair of football boots.  He made full admissions.

–    Trespass (27/10/2016) – the applicant was found in the Big 4 Caravan Park in Ayr around midnight.  He had no reason to be in the park.

–    Enter dwelling and commit an indictable offence (26/10/2016) – the application and some co-offenders entered a residence in Ayr and stole a jar of change and a mobile telephone.  The owner of the residence was asleep at the time.

–    Enter dwelling and commit an indictable offence (31/10/2016) – the applicant and some co-offender trespassed onto the property of NK and removed some lighters which were located on the back patio which was under the dwelling’s roofline.

1. The application for a sentence review proceeds under s. 119 of the Youth Justice Act 1992, and the review is to be conducted as a rehearing on the merits (Youth Justice Act 1992 s.121(1)), expeditiously and with as little formality as possible, and my discretion is unfettered.

1. The record before the Childrens Court has been made available to me in an affidavit from the applicant’s solicitor Mr Law (exhibit 2).  I have also had the benefit of being provided with copies of the probation order, QP9 and the applicant’s criminal history.

1. Sentencing of children proceeds in accordance with the principles set out in s. 150 of the Youth Justice Act 1992.

1. The submission on sentence is that it was excessive in the circumstances.  In that respect, Mr Law concedes that both probation and community service, which were the two aspects of the sentence (12 months’ probation and 100 hours’ community service with no convictions recorded) are both within range, but it is the length of the probation, the number of hours of community service and the specific inclusion of a curfew condition that, in context, Mr Law submits makes the sentence disproportionate, relying on the decision in Veen (No. 2) v R (1988) 164 CLR 465, 477.

1. Ms Rodriguez, who appears for the respondent, submits that the sentence imposed was not excessive, although she concedes that the probation imposed was the maximum applicable to that defendant in those circumstances under s.175(1)(d)(i) of the Youth Justice Act 1992.  The community service, on the other hand, was half of the applicable maximum, which was relevantly 200 hours (s.175(1)(e)(ii) Youth Justice Act 1992).

1. The concerns that Ms Rodriguez raises, quite legitimately in my view, are as follows:

(1) The offences were committed over a six-week period and were not an isolated incident.

(2) These offences breached a probation order imposed in the Childrens Court in Ayr on 15 June 2016 (three months earlier)

(3) The applicant continued to offend while on probation, committing offences of a similar nature.

(4) The most serious offence was the enter dwelling and commit an indictable offence on 26 October 2016, which involved entry of a house with another person and the stealing of cash (albeit a small quantity) and a mobile phone.  Ms Rodriguez highlighted the comments of the learned Childrens Court magistrate describing the offences of burglary as “disgusting” and “something that must be… met with a very strong response by this court.”

(5) Community service was imposed to assist with structuring the applicant’s time to keep him preoccupied so that he doesn’t continue to offend, while teaching him useful skills for when he enters the workforce.

1. The issue then is whether in context the period of probation, the number of hours of community service and the imposition of a curfew were excessive.

1. Taking into account the child’s age at the time of both offending and sentence (15), the relatively minor criminal history (albeit that the child was on an active probation order at the time of the offending), the personal circumstances (his parents were separated and the applicant was apparently in an unsettled living situation, moving between his mother and father;  although, ultimately, it seems, intending to reside with his father), and given the particular and peculiar imposition of a curfew in this context, with its risk of leading to breaches of the probation order, arguably (in Mr Law’s submission, setting the child up to fail and causing hardship with repeated police presence at the family home), I am persuaded that the learned sentencing magistrate has fallen into error by imposing a sentence that is excessive in the circumstances.  I reach this conclusion, although noting that my sentencing discretion on a sentence review is an open discretion and does not of itself require me to find error on the part of the learned sentencing magistrate.

1. In this context, having concluded that there was error, I consider that the application should be granted and the applicant resentenced.

1. The applicant is resentenced to nine months’ probation, 50 hours’ community service, and I note specifically that the probation order is not to include a condition in respect of a curfew.  The probation order will otherwise be the standard order in accordance with the Youth Justice Act1992.

1. I note by way of comment that my perusal of the learned Childrens Court Magistrate’s sentencing remarks indicate that the magistrate has not explained, in appropriate language, each of the specific conditions of probation (s.193(1)), explaining each of the conditions and ensuring that the child has indicated his willingness to comply with the order.

1. I make this comment. noting that there was an exchange between the learned magistrate and the child, but as a matter of appropriate caution and court craft, in my view the judicial officer in these circumstances should always read out both the formal wording (and if necessary an appropriate paraphrase) of each of the conditions of section 193(1)(b) in respect of probation, and the mirror provisions in respect of community service, and then follow some equivalent of asking the following three questions:

(1) Do you understand the conditions?

(2) Do you wish to ask me any questions in respect of any of the conditions? and

(3) Do you consent to a probation/community service order on those conditions?

1. Clearly appropriate, informed and responsive consent is a clear obligation for judicial officer’s to obtain from defendants in these circumstances and is more likely to ensure compliance in the long-term.

1. No doubt Mr Law will ensure that those representing the applicant will have the conditions of the altered community service order and probation order explained to the applicant on receipt of these reasons.