Sarah (a pseudonym) v Office of the Director of Public Prosecutions

[2021] QChC 27

CHILDRENS COURT OF QUEENSLAND

CITATION:

Sarah (a pseudonym) v Office of the Director of Public Prosecutions [2021] QChC 27

PARTIES:

SARAH (a pseudonym)
(Applicant)
v
OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS

(Respondent)

FILE NO:

201/21

DIVISION:

Appellate

PROCEEDING:

Sentence Review

ORIGINATING COURT:

Childrens Court at Townsville

DELIVERED ON:

27 July 2021

DELIVERED AT:

Childrens Court at Brisbane

HEARING DATE:

21 July 2021

JUDGE:

Richards P

ORDER:

1.   The application is granted. 

2. The sentence is set aside and in its place a diversionary restorative justice process is ordered pursuant to s 164 of the Youth Justice Act.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – where the child was sentenced to 40 hours of community service with no convictions recorded for offences of unlawful use of a motor vehicle and stealing – where the child suffered from mental health issues – where the child’s participation in the offending was as a passenger – where the child had disengaged with education but had been employed the day before the offending – where a restorative justice order was not mentioned by parties or considered at sentence – where the Crown conceded the Magistrate erred –  whether the sentence imposed was excessive in the circumstances

LEGISLATION:

Youth Justice Act 1992 (Qld) s 164

COUNSEL:

Ms L Fabian for the Applicant
Ms K M McFarlane for the Respondent

Ms A Brazel for Youth Justice

SOLICITORS:

Legal Aid Queensland for the Applicant
Office of the Director of Public Prosecutions for the Respondent

Introduction

1. The applicant was sentenced on 28 April 2021 in the Townsville Childrens Court having pleaded guilty to charges of unlawful use of a motor vehicle and stealing.  He was sentenced to 40 hours community service and convictions were not recorded. He has appealed against this sentence.

2. The respondent concedes the application and accepts that the Magistrate erred in failing to consider referring the applicant to the Chief Executive for a diversionary restorative justice process.

3. The circumstances of the offences relate to the child being approached by people in a stolen vehicle.  He called out to those people thinking he knew them.  The vehicle stopped and he got in.  The vehicle then drove to a fuel station where he put fuel into the vehicle without paying. He knew that the vehicle was stolen.

4. He was 15 at the time of the commission of the offence and at sentence.  He had a single page criminal history with offences comprising public nuisance, trespass, obstruct police on 10 February 2021 for which he was reprimanded, trespass, unauthorised stealing of shop goods and possession of a knife offences on 22 and 25 February 2021 for which he was sentenced to a good behaviour bond and then on 1 March 2021 an offence of trespass for which he was reprimanded.

5. At sentence the prosecution submitted that probation or community service would be appropriate.  The defence outlined his background, namely that he was living with friends.  He was disengaged from education, however had been employed the day before treelopping and was seeking to maintain some further employment in that area.  He has been diagnosed with ADHD, Autism level 2 and a Conduct Disorder, however, did not take treatment or medication.  It was submitted that a community based order would be appropriate.

6. This is yet another example of the Magistrate being led into error by a failure of the defence, the prosecutor and Youth Justice to assist the Magistrate by directing him to the requirements of the Act. 

7. Section 162 of the Youth Justice Act requires that a restorative justice order must be considered when sentencing a child.  There was no mention of this requirement during the sentencing process.

8. This was a child with mental health issues.  His participation in the offending was as a passenger.  He was not involved in, or present at, the theft of the vehicle.  The Magistrate erred by not considering restorative justice and given his age and lack of serious criminal history an order that he participate in the diversionary restorative justice process would have been appropriate and should have been imposed. 

9. The Crown is right to concede that the Magistrate erred.  The restorative justice order will give him some supervision and assist him to understand the impact of his offending.

   Order

10. The application is granted. The sentence is set aside and, in its place, I order the diversionary restorative justice process take place pursuant to s 164 of the Youth Justice Act.