SAW v. The Queen

[2007] QDC 255

CHILDRENS COURT OF QUEENSLAND

CITATION:

SAW v Crown [2007] QDC 255

PARTIES:

SAW

(Appellant)

V

CROWN

(Respondent)

FILE NO/S:

49 of 2007

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

Childrens Court of Queensland at Beenleigh

DELIVERED ON:

6 August 2007

DELIVERED AT:

Beenleigh

HEARING DATE:

6 August 2007

JUDGE:

Dearden DCJ

ORDER:

Application for sentence review granted

CATCHWORDS:

APPLICATION FOR SENTENCE REVIEW – where the applicant was convicted of charges of driving while unlicensed and driving while under the influence – where the applicant was sentenced to a fine of $200 in respect of the unlicensed driving charge, and to a fine of $200 and a disqualification in respect of the applicant’s driver’s licence in relation to the charge of driving under the influence – where convictions where recorded on both charges – where the applicant was 16 years old at the time of committing the offences and had no previous criminal nor traffic history – whether the sentence imposed was manifestly excessive

Juvenile Justice Act 1992 (Qld) ss 118, 122(1), 122(2), 175(1)(b), 183(2), 190

COUNSEL:

Ms J. Glover for the applicant

Mr P. McCarthy for the respondent

SOLICITORS:

Logan Youth Legal Service for the applicant

Director of Public Prosecutions for the respondent

HIS HONOUR: This is an application for sentence review by SAW pursuant to the provisions of the Juvenile Justice Act.

The background to the matter is that the applicant pleaded guilty before the learned Childrens Court Magistrate in the Beenleigh Magistrates Court on 24 April 2007 in respect of charges of driving while unlicensed and driving while under the influence.

The applicant was sentenced to a fine of $200 with three months to pay in respect of the unlicensed driving charge and to a fine of $200 with three months to pay, and a disqualification in respect of the applicant's driver's licence in relation to the charge of driving under the influence.

Importantly for the purposes of this application the learned sentencing Magistrate recorded convictions on both charges.

The applicant was 16 years old at the time of the offences which were committed on 25 March 2007 and 16 years at the time of sentence.  The applicant had no previous criminal nor traffic history.

The applicant was detected by police conducting random breath tests and was, as is clear, unlicensed and had a reading of .042 per cent.

The power of this Court to review a sentence of a Childrens Court Magistrate is set out by the provisions of Juvenile Justice Act s.118. Such a hearing is a re-hearing on the merits (JJA s.122(1)) on the original record together with any further submissions and further evidence that may be appropriate (JJA s.122(2)).

The respondent (represented today by Mr McCarthy, Principal Crown Prosecutor) submits that a good behaviour bond would have been the appropriate sentence to impose at first instance, particularly given the provisions of the Juvenile Justice Act in respect of the imposition of fines and the capacity of children to pay fines.

The respondent also very fairly concedes that a conviction ought not to have been recorded in each instance, and in fact were a good behaviour order to be imposed then the provisions of JJA s.183(2) specifically prohibits the recording of convictions as an outcome when a good behaviour order is imposed.

Given the lack of criminal history and traffic history of the applicant and taking into account the specific provisions of JJA s.190 in respect of a child's capacity to pay a fine to be considered by a sentencing Court prior to passing sentence, it is clear, in my view, that the sentence imposed by the learned sentencing Childrens Court Magistrate was manifestly excessive.

In the circumstances therefore I set aside the sentences imposed in respect of each of the two charges and substitute a sentence of nine months' good behaviour bond in respect of each charge (JJA s.175(1)(b)) and order that no conviction be recorded in respect of each charge (JJA s.183(2)).

The respondent submits, and I accept, that it is appropriate that the period of licence disqualification remain and that particular aspect of the learned sentencing Magistrate's original order is not set aside.

...

HIS HONOUR:  Can I have your undertaking Ms Glover to explain the consequences of a good behaviour bond to your client?

MS GLOVER:  Yes, your Honour.

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