The Queen v CJB

[2012] QChC 28

[2012] QChC 28

THE CHILDRENS COURT OF QUEENSLAND

Judge Farr

Indictment No 160 of 2012

THE QUEEN

v.

CJB

BRISBANE

..DATE 29/08/2012

SENTENCE

PROCEEDINGS IN CAMERA

HIS HONOUR:  This is an application for sentence review pursuant to sections 119 and 121 of the Youth Justices Act of 1992.  The applicant was sentenced on the 1st of June 2012 and was ordered to perform 50 hours of community service for one offence of entering a premises and committing an indictable offence by a break and one offence of stealing.  No convictions were recorded. 

The offences occurred on the 3rd of July 2011 and the 22nd of August 2011 respectively.  In relation to the first of those offences the applicant entered a Hervey Bay McDonald's store by rattling a door which caused the latch to unlock.  He was with three co‑offenders.  They located a scrubbing and polishing unit and wheeled it out into a car park.  The co‑offender picked up two aluminium chairs and threw them across the patio area.  They were disturbed by a staff member and ran away.  The cleaning machine was located only 2 to 3 metres from the entrance.  The applicant and his co‑offenders were located by police a short time later and they were identified as well by CCTV footage.  When interviewed he acknowledged that he was with his co‑offenders, but did not admit going to McDonald's. 

For the second of the offences he stole a blue pay phone which had been bolted to a desk in the foyer area of the library.  Again he was identified through CCTV footage. 

He was 15 years of age at the time of sentence.  He was born on the 15th of February 1996 and is 16 years of age now. 

He submits that the sentence that was imposed was manifestly excessive in the circumstances.  The particular circumstances that he relies upon in that regard are those that surround the sentences that were imposed for other offences that he has subsequently been convicted of.  He appeared in the Hervey Bay Children's Court on the 9th of December 2011 facing one count of attempt to enter a premises with intent to commit an indictable offence and was placed on probation for a period of six months and no conviction was recorded.  That offence occurred on the 16th of November 2011. 

On the 13th of January 2012 he again appeared in the Harvey Bay Children's Court and was ordered to perform 80 hours of community service.  Again no convictions were recorded and the offences on that day were three counts of entering a premise and committing an indictable offence by a break and two counts of fraud.  Those offences occurred between September and December of 2011. 

Finally he appeared at the Hervey Bay Children's Court on the 16th of May 2012.  He was ordered to serve three months detention by way of a conditional release order and again no conviction was recorded.  The offences on that occasion were three offences of entering a premise and committing an indictable offence by a break, one of wilful damage, one of public nuisance, two of assault or obstruct police and one of contravene a direction or requirement.  And it appears that those offences occurred between February and May of 2012. 

At the time of one of the offences that I am dealing with, that is, the first of them which occurred on the 3rd of July 2011, I note that he had only two days earlier appeared in the Hervey Bay Children's Court, once again on charges of wilful damage and trespass for which he was ordered to perform 40 hours of community service. 

About a week before that he was placed on a six month good behaviour bond again from that same Court for wilful damage and stealing. 

An application for review is dealt with by way of rehearing, and it is not necessarily the case that error has to be found on the part of the Court below before a sentence could be varied or interfered with.  There was a lengthy delay in the matters that I am concerned with being bought before the Court and no explanation has been given to the Court below or to this Court for that delay, but I infer that there is no fault on the part of the applicant in the cause of that delay. 

The effect of the delay is that these matters could have been dealt with well before the date they were dealt with, and certainly could have been dealt with at the time of any of those other matters that I have already detailed in the course of these remarks.  The submission on the applicant's behalf now is that when one considers totality principles it is unlikely that he would have received the sentence of 50 hours of community service at a time that he could have been dealt with on any of those other matters, and that he would, in all likelihood, have received a good behaviour order or a lesser period of community service. 

The respondent in written submissions has conceded that if the applicant had been dealt with for these offences on any of those other dates he would not have received any additional penalty or, alternatively, would have received a smaller amount of community service, although the respondent further concedes that if he had been sentenced on the 16th of May 2012 it is likely that he would not have received any additional penalty at all. 

I don't know that I necessarily agree that he would not have received any additional penalty given the fact that he had been before the Court twice in just over a week prior to the commission of the first of these offences and has been given a number of opportunities by the Court prior to the commission of both of these offences. 

I do accept, however, that when one considers the sentences that have been imposed subsequently and the delay in bringing this matter before the Court, had they been dealt with at an earlier stage it is unlikely that a sentence of 50 hours community service would have been imposed. 

In my view the sentence is excessive for that reason, and for that reason I order that the sentence of the Court below be varied such that the order for 50 hours is varied to one of 20 hours of community service.

So that is the order of the Court. 

...

HIS HONOUR:  A conviction is still recorded