The Queen v CJM

[2011] QChC 16

[2011] QChC 16

THE CHILDRENS COURT OF QUEENSLAND

ACTING JUDGE FARR SC

THE QUEEN

v.

CJM

BRISBANE

..DATE 07/07/2011

ORDER

HIS HONOUR:  This is an application under section 118 of the Youth Justices Act for a sentence review in relation to a sentence imposed in the Atherton Childrens Court on the 1st of March 2011 for the offence of enter a premises and commit an indictable offence by break, such offence occurring on the 12th of January 2011.

In relation to that charge, the applicant was sentenced to 100 hours of community service, which I understand is the maximum that was available in the circumstances and 12 months probation.  The applicant at the time of the offending and sentence was 13 years old, he is now 14 years of age.

The facts relating to the offence in brief are that the applicant, with two juvenile co-offenders, entered the hall at the Atherton State High School at around 4 p.m. and let off a fire extinguisher in that premises.  As I understand it, the fire extinguisher has not been recovered and there was damage to the hall from the mess that was created.

As this is an application for review, the applicant does not have to demonstrate any error on the part of Magistrate in the original sentence because this is a re-hearing on the merits. Nevertheless, it has been submitted on behalf of the applicant that the Magistrate failed to properly take into account a number of factors that he was required to take into account pursuant to section 150 of the Youth Justice Act 1992, particularly (a) that the applicant had no prior criminal convictions, (b) that he was only 13 years old at the time of the offence, and (c) the gravity of the offence did not warrant a community-based order.

The respondent has conceded that the Magistrate failed to expressly take those matters into account in the course of the sentencing remarks.

It is also submitted that the Magistrate failed to consider whether a Youth Justice conference would be an appropriate sentence for this offence, which was something he must have done pursuant to section 161 of the Act, and also failed to have regard to the applicant's plea of guilty and cooperation with the administration of justice.

I note also that in the course of submissions before the Magistrate, counsel for the applicant revealed the fact that the applicant had been previously cautioned on occasions, which, as I understand it, is quite inadmissible and appeared to concede on the basis of that inadmissible history that a community-based order was appropriate in the circumstances.  In that respect, counsel really provided little assistance to the Magistrate in the course of determining an appropriate sentence in the matter.

I note also that on that same occasion and relating to the same event, the applicant faced two other charges, one of unlawfully taking away goods, which I think was an unrelated event; is that right, the unlawful taking away of goods.  What was that relating to?

MS MCMAHON:  Sorry, your Honour, that he was sentenced for on that‑‑‑‑‑

HIS HONOUR:  Yes, the facts in relation to that.

MS MCMAHON:  ‑‑‑‑‑same date.  It was - it was factually unrelated to the other two, yes.

HIS HONOUR:  Unrelated, that's right.

MS MCMAHON:  Yes.

HIS HONOUR:  Thank you.

HIS HONOUR:  And a charge of trespass which, in fact, related to his being on the school grounds at the time of the commission of the substantive offences which I'm concerned today.

In relation to that trespass charge, the applicant was referred to a Youth Justice conference.  I have been advised that that conference has taken place and it's not been returned to the Court and we can assume that it has proceeded in an appropriate fashion and that it, inferentially, would have covered a lot of the aspects relevant to the substantive offences, which we are concerned today.

Insofar as the application is concerned, it's submitted that the sentence imposed by the Magistrate was manifestly excessive and that is not challenged by the respondent.

It has been submitted on behalf of the applicant that an appropriate order would be one of reprimand, given the facts that I have already referred to combined with the additional feature that the applicant has, as at today's date, completed 68.15 hours of the 100 hours community service that had been imposed by the learned Magistrate.

It does not seem appropriate to refer this matter for a Youth Justice conference, given that the applicant has already been through that process in relation to the related offence of trespass, so that is an option which appears to have little attraction to it.

In my opinion, given his age, lack of prior convictions and cooperation with the administration of justice, this is a matter that does not require the imposition of a community-based order and certainly does not require the imposition of the maximum number of community service hours that can be imposed.

Accordingly, the order of the Court will be that the Magistrate's sentence is discharged.

I substitute another order which is within the jurisdiction of a Childrens Court Magistrate to make, namely, I order that the applicant be reprimanded in relation to the offence, the subject of this review application.

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