The Queen v CJG - [2012] QChC 18

[2012] QChC 18

THE CHILDRENS COURT OF QUEENSLAND

JUDGE JONES

THE QUEEN

CJG

TOOWOOMBA

..DATE 17/05/2012

SENTENCE

HIS HONOUR: This is an application to review a sentence imposed by the learned Magistrate in the Childrens Court at Toowoomba where the applicant was sentenced in respect of one count of attempted unlawful use of a motor vehicle, two counts of enter dwelling and commit an indictable offence and one count of possessing tainted property. The learned Magistrate sentenced the applicant to 10 months detention with release set after serving 70 percent of that time, that is, effectively, seven months, and a conviction was to be recorded.

At the time the offences were committed, the applicant was aged 15 and at the time of the sentence, as I understand it, had just turned or was nearly 16.

It is not necessary for me, on a review such as this, to have to specifically identify a error in the sentencing discretion exercised below. But that aside, in my view, the sentence imposed by the learned Magistrate did miscarry in that it failed to have sufficient regard to the sentence imposed on the applicant's older brother, and also, in my view, failed to have sufficient regard to the role the applicant's brother played in all of the offences, and also, failed to have sufficient regard to what appear to be at least some prospects of rehabilitation in the future.

I should note, though, one can have some sympathy for the sentence imposed by his Honour when regard is had to the applicant's criminal history which dates back to when he was about 11 and 12. It is nothing short of appalling, and it is littered with numerous property offences, burglary, enter, unlawful entry of vehicles. The list goes on and on.

The background to the offending has been set out in the Crown's submissions. I don't intend to go into them in any great detail, but the facts as set out are consistent with the observations made in the presentence report which is Exhibit 1 in these proceedings. It seems quite clear to me that the applicant is a person prone to do whatever his older brother wants him to do. And, in fact, from my reading of the material, the applicant was in bed asleep prior to these offences occurring, but his brother and a cousin woke him up to go, what is referred to as, "creeping". But for the intervention of the applicant's brother, it seems to be quite likely that he would have slept the night through. That, of course, doesn't provide an excuse, but it is a relevant consideration in my view.

In the presentence report, it is, as I've said, noted that the applicant finds it very difficult to say, "No.", to his brother and acts out of a strong sense of loyalty to his brother and also his extended family members. It is also relevant that the applicant came from a fairly dysfunctional family background. But as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v CJG

Details

AGLC: The Queen v CJG [2012] QChC 18
Case: [2012] QChC 18
Decision Date: 17/05/2012

CaseChat Overview and Summary

The case of The Queen v CJG involved an application to review a sentence imposed by a magistrate in the Children's Court at Toowoomba. The applicant, CJG, was sentenced for one count of attempted unlawful use of a motor vehicle, two counts of enter dwelling and commit an indictable offence, and one count of possessing tainted property. The sentence imposed was 10 months detention with release set after serving 70 percent of that time, effectively seven months, and a conviction was to be recorded. The applicant was 15 at the time of the offences and had just turned or was nearly 16 at the time of sentencing.

The legal issues before the court were whether the sentence imposed by the magistrate miscarried in failing to have sufficient regard to the sentence imposed on the applicant's older brother, the role of the applicant's brother in the offences, and the prospects of rehabilitation for the applicant. The court noted that the applicant had a criminal history dating back to when he was about 11 and 12, and that he had a propensity to follow the lead of his older brother. The court also noted that the applicant had shown some signs of taking steps to become a more useful member of the community, but had a degree of reservation about it.

The court found that the sentence imposed by the magistrate did miscarry in that it failed to have sufficient regard to the sentence imposed on the applicant's older brother, the role the applicant's brother played in the offences, and the prospects of rehabilitation for the applicant. The court noted that the applicant's brother had an equally appalling criminal history, and that the applicant was required to serve more time than his brother for the same offences. The court also noted that the magistrate did not have the benefit of the brother's sentences when dealing with the applicant. The court accepted that the sentence imposed below was manifestly excessive in the circumstances and needed to be revisited.

The court imposed a sentence of six months detention but ordered that the applicant be released immediately due to the time already spent in custody and presentence custody. The court also decided not to interfere with the magistrate's decision to record a conviction. The court noted that the subject offences were serious charges, the applicant had a criminal history, and two convictions had already been recorded against him. The court also noted that the applicant had attended two courses while in custody and expressed an interest in obtaining employment in the rural industry in remote areas of Queensland.

Orders