The Queen v ALD

[2012] QChC 19

[2012] QChC 19

THE CHILDRENS COURT OF QUEENSLAND

JUDGE EVERSON

Indictment No 29 of 2011;

CCJ-00000316/11(3)                 

THE QUEEN

v.

ALD

CAIRNS

..DATE 20/05/2011

JUDGMENT

HIS HONOUR:  This is a sentence review pursuant to section 118
of the Youth Justices Act 1992.  The applicant was sentenced
in the Mareeba Childrens Court (“the Magistrates Court”) for a number of offences on 11 April 2011.  The application for review only concerns the sentences imposed in respect of the offence of entering premises and committing an indictable offence by a break on 24 February 2011 and the concurrent penalty imposed for breaching a 12 month probation order by committing this offence.

In respect of the offence of entering premises and committing
an indictable offence by a break, the applicant was sentenced
to detention for nine months and a conviction was recorded.
He was also sentenced to detention for six months concurrently
for breaching the probation order which had previously been
imposed.  The applicant also received reprimands, without
convictions being recorded, for committing a public nuisance,
possessing suspected stolen property and failing to wear a
bicycle helmet.  As I indicated earlier, these other sentences
are not controversial and are not the subject of the
application before me.

Pursuant to section 122 of the Youth Justices Act I conduct
this hearing by way of a rehearing on the merits and can,
pursuant to section 123, vary the order in the event I
consider it is appropriate to do so.

The sentencing of the applicant in the Magistrates Court was
complicated by the fact that he stated that he would not
comply with any community-based order in circumstances where a
community-based order would in all likelihood have represented
an appropriate penalty for the offending, the subject of this
application.  I have before me as Exhibit 2 a presentence
report dated 8 April 2011, which details the applicant's
dysfunctional life, with poor family support, lack of parental
supervision and neglect, disengagement from school and
negative peer influences.

In respect of the offence of entering premises and committing
an indictable offence by a break, the author made the
assessment that the applicant's

"pro-criminal attitude is particularly evident in his
     belief of an entitlement to take what he wants (the
     alcohol) and justifies his actions due to the large
     amount of alcohol in the club."

The context of this remark is that the offence referred to
above occurred in circumstances where the applicant and his
accomplices smashed a plate glass door and entered the Mareeba
Leagues Club and stole a quantity of alcohol.  Regrettably,
the applicant has an extensive criminal history for someone
who was born on the 21st of March 1996 and is therefore only
15 years of age at present.

There are numerous entries for breaking and entering premises,
and there is recorded in the presentence report a noncompliant
attitude to previous community-based orders imposed upon the
applicant for his offending.  It is significant that the 12
month probation order imposed on the applicant in the Magistrates Court on 20 June 2010 was imposed, in part, for
breaking and entering the same premises as for the offence for
which he was sentenced on 11 April 2011, which is the subject
of this application.

Having regard to the applicant's criminal history and
recidivism, coupled with his noncompliance with previous
community-based orders and his express desire not to be
subject to any more, it is regrettably a situation where,
despite the statement in Schedule 1 of the Youth Justices Act
that a child should be detained in custody only as a last
resort and for the least possible time that is justified in
the circumstances, where there is no reasonable alternative to
a term of detention. The only dispute between the parties
before me today is as to the length of the period of
detention.

On behalf of the applicant, Mr Sheridan submits that a period
of four months detention should be imposed in respect of the
offence of enter premises and commit an indictable offence by
a break and also in respect of the breach of probation.  On
behalf of the respondent, Miss Price submits that a penalty of
six months detention is appropriate in each instance when the
applicant's youth and criminal history are weighed against the
other relevant considerations, which include his appalling
attitude to community-based orders, including the probation
order imposed for almost identical offending.

Having regard to the matters before me, I am of the view that
it is appropriate to vary the sentences imposed on the
applicant in the following ways:

In respect of the sentence for enter premises and commit
     an indictable offence by a break for which the applicant
     was sentenced to detention for nine months and a
     conviction was recorded, I substitute an order that the
     applicant be convicted and sentenced to detention for six
     months and that no conviction be recorded.

In all other respects, I confirm the order made in the
    Magistrates Court on 11 April 2011.

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