The Queen v BX
[2015] QChC 5
•15 July 2015
CHILDRENS COURT OF QUEENSLAND
CITATION: | The Queen v BX [2015] QChC 5 |
PARTIES: | THE QUEEN v BX |
FILE NO/S: | 615/15 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 15 July 2015, delivered ex-tempore |
DELIVERED AT: | Brisbane |
HEARING DATE: | 15 July 2015 |
JUDGE: | Farr SC DCJ |
ORDER: | 1. The appeal is allowed. 2. The sentence imposed on the 27th of January 2015 in the Maryborough Childrens Court is set aside. 3. In relation to the three offences of wilful damage the appellant is ordered to be the subject of probation pursuant to s193 of the Youth Justice Act1992 for a period of 12 months. 4. No convictions are recorded. |
CATCHWORDS: | APPEAL- s222 Justices Act 1886- whether the learned magistrate failed to adequately take into account the personal circumstances of the appellant as required by the Youth Justice Act1992. |
COUNSEL: | R Smith for the appellant |
SOLICITORS: | Legal Aid Queensland for the appellant Director of Public Prosecutions for the respondent |
This is an appeal pursuant to section 222 of the Justices Act1886 arising from a sentence imposed in the Maryborough Children’s Court on the 27th of January 2015 in relation to sentences imposed in respect of three charges of wilful damage. On that day the appellant was also sentenced in relation to a further charge of depositing injurious matter on roads, but the sentence imposed for that matter is not the subject of appeal. Relevantly, the appellant was sentenced to 30 days detention to be served by way of a conditional release order and it is that sentence that is the subject of this appeal.
The offences, the subject of the order, were committed on the 28th of December 2014 in relation to the first and the second and third offences were both on the 7th of January 2015. The appellant appeared before the Maryborough Children’s Court on the 6th of January 2015 and was granted bail in relation to the first of those charges and hence committed the remaining two charges the following day. In relation to the first of the wilful damage charges, the appellant and another attended a place called Port City Autos and damaged six motor vehicles and the damage – the value of the damage was estimated at $20,000.
On the 7th of January the appellant was a resident at a Child Safety approved placement. She was located drinking at the dwelling and was asked to hand over the alcohol. She refused and became aggressive and damaged three windows, a mailbox and some crockery. Later that same evening she used a black marker to write on the wall of her bedroom. At the time of the commission of all three offences the appellant was the subject of a 50 hour community service order and a nine month probation order, both of which had been imposed on the 21st of November 2014. Those orders were imposed as a consequence of her being convicted on a plea of guilty, I assume, to one count of wilful damage.
It should be noted pursuant to s220 of the Youth Justice Act 1992 that a conditional release order is a sentence of detention. Section 150 of the Youth Justice Act 1992 provides the sentencing principles which must be taken into account when imposing a sentence. I won’t detail the full particulars of that section, but relevantly subsection 1(d) requires that the nature and seriousness of the offence be taken into account. 1(e) provides that the child’s previous offending history be taken into account. 1(f) provides that any information about the child, including a presentence report provided to assist the court in making a determination be taken into account. Subsection (2) of section 150 also provides for some special considerations. Subsection 2(a) provides that a child’s age is a mitigating factor in determining whether or not to impose a penalty and the nature of a penalty imposed. And subsection 2(b) provides that a non-custodial order is better than detention in promoting a child’s ability to reintegrate into the community.
At the time of the commission of these offences the appellant was 13 years of age and was 13 years of age at sentence. A presentence report was made available to the Court before sentence and it explained some of the issues that may have contributed to her offending conduct. It is clear from that report that the appellant has been the unfortunate subject of a lengthy history of trauma and abuse. At the time of the offences, the appellant had been advised that her father would not be visiting her – that was just prior to the commission of the first of the offences – and that she was unable to have a visit with her brother, a person with whom she was close, some time not long prior to the commission of the second two offences. The author of the pre-sentence report said at one stage: “it is the author’s assessment that as a result of not living with her parents since she was a young child and the frequent changes in caregivers, BX’s emotional security and ability to deal with feelings of rejection and abandonment have been significantly impacted whereby BX exhibits a range of internalising and externalising problems. These problems result in BX acting out towards self (such as self-harming, substance abuse and withdrawal from others) as well as lashing outwards at others through aggression, violence and, at times, criminal behaviour.”
It has been submitted on behalf of the appellant that the learned magistrate did not adequately take into account these personal factors in sentencing – when sentencing the appellant and that he accordingly did not act as required by section 151F of the Youth Justice Act 1992. Other submissions have been placed before this Court has to errors that were allegedly made by the magistrate in the Court below. I don’t know that I need to go through them all.
The respondent has conceded that this is a matter in which the discretion of this Court should be enlivened due to error on the part of the Court below, and both the appellant and the respondent agree that the ultimate outcome of this appeal should be that the sentence below is set aside and that the appellant be ordered to be placed on probation for a period of 12 months.
Perhaps the one consideration about which both respondent and appellant agree where an error occurred, and I must say I also concur in that regard, was that it is quite apparent that the learned magistrate failed to take into account, or at least adequately take into account the age of the appellant at the time of the offending conduct. As I say, she was 13 years of age at the time. Her birth date was the 24th of August. When the submission was made that she was still only 13 years of age and that that was a relevant consideration, the learned magistrate, it seems to me, inferentially, rejected the submission by stating: “she’s 14 on the 24th of August. If you don’t know right from wrong at 14, there’s something wrong. She knows what she is doing is wrong. No one has convinced me otherwise.”
Of course, the 24th of August was a period of some seven months away from the date of sentence, and there is nowhere else where, upon reading of all the material, one can infer that the magistrate, in fact, did properly take into account the fact that the appellant was only 13 years old at the time of the commission of the offences. That error is, in and of itself, sufficient to enliven the discretion of this Court. There has been an error in the sentencing process and a material consideration has not been taken properly into account, and it is inevitable that this Court therefore should sentence afresh.
Other submissions have been made that I probably don’t need to go through, given my conclusion in relation to the matter that I just identified. It’s also been submitted that the magistrate failed to take into account the appellant’s remorse, as evidenced by the fact that she cleaned up the damage that she had caused to her carer’s facility in relation to the third of the three charges, and that the sentence imposed did not reflect either her cooperation with the administration of justice, given that she pleaded guilty within days of committing the offences, or the fact – no. I’ll leave it at that. Didn’t take into account the pleas of guilty and that she received no benefit as a consequence.
As I say, it appears to me to be unnecessary to determine those issues, given that I have concluded that this is an appropriate matter for this Court to sentence afresh. I take into account in sentencing afresh the fact that the appellant was only 13 years of age at the time of the commission of the offences, and also that at that time, she only had one prior conviction, albeit for a similar offence.
She had been the subject of, as I’ve indicated, a probation order and a community service order, although these order really hadn’t had very long to take effect, but she had nevertheless been compliant with both orders up to the time of her sentence, other than for the fact that she committed these further offences during the currency of those orders. She had completed by the time of that sentence in January of this year 10 of the 50 hours of community service that had been imposed.
I also take into account, of course, the fact that she pleaded guilty to these charges and did so at a very early stage, and I accept that there was evidence of remorse present, particularly by virtue of the fact that she cleaned up the mess that she made in relation to one of the offences, and by virtue of the fact that she entered these pleas of guilty at such an early state and fully cooperated with the administration of justice. It is also of significance that the appellant has had an extraordinarily difficult young life and has been exposed to many different carers in many different circumstances, and given her background, one can well understand the pre-sentence report author’s view that she has difficulty dealing with feelings of rejection and abandonment.
The pre-sentence report portrays a picture of a child that is in need of assistance and support and guidance. Taking all those matters into account, in my view, the submission of both the appellant and the respondent that a probation period of 12 months would be appropriate in all the circumstances – is the correct order to make in this matter. It would give due recognition to the mitigating circumstances whilst continuing to – whilst at the same time recognising the seriousness of the offending conduct. Most importantly, it is a sentence that identifies the child’s potential rehabilitation as the predominant sentencing consideration. For a child of 13 years of age with only one prior conviction, with her background, it is, in my view, essential that her rehabilitation be given such predominance.
Accordingly, the order of the Court will be as follows: the appeal is allowed. The sentence imposed in the Maryborough Childrens Court on the 27th of January 2015 in relation to these three charges of wilful damage are set aside. The appellant is resentenced as follows: the appellant is to be subject to an order of probation for a period of 12 months. The conditions applying to such an order are as follows: she must report in person to the chief executive in one business day after this order is made. During the probation order, she must abstain from violation of the law. She must satisfactorily attend programs as directed by the chief executive. She must comply with every reasonable direction of the chief executive. She must report and receive visits as directed by the chief executive. She or a parent or guardian must notify the chief executive within two business days of any change of address, employment or school, and she must not leave or stay out of Queensland during the probation period without the prior approval of the chief executive. In the circumstances, it should start from today. It seems to me that probably the greater period of supervision is in her and the community’s best interests in all the circumstances. I note that she has spent four days in pre-sentence detention in relation to this matter but it does seem to me to be a matter where an additional period of supervision would be consistent with trying to achieve her rehabilitation in the most appropriate way. So the order will date from today. No convictions are recorded.
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