The Queen v CMJ - [2011] QChC 17

[2011] QChC 17

THE CHILDRENS COURT OF QUEENSLAND

ACTING JUDGE FARR SC

THE QUEEN

CMJ

BRISBANE

..DATE 07/07/2011

ORDER

HIS HONOUR: This is an application for sentence review in relation to CJ, who was sentenced in the Atherton Childrens Court on the 8th of February 2011 in relation to a charge of enter a premises and commit an indictable offence, such offence occurring on the 13th of January 2011.

On that same day, she was also convicted of one count of trespass, an offence which was related to the entering premises offence, and for that matter she was reprimanded.

At the time of the commission of that offence, the applicant was 16 year of age. She is now 17 years of age.

Briefly, in relation to the offence itself, the applicant was one of a number of juveniles - three, I think, in total - who entered the school hall at the Atherton High School on the afternoon or evening in question, and sprayed a fire extinguisher around in the hall. The cost of the damage alleged for the two fire extinguishers that were used, not one, and the fire extinguisher cabinets, which were broken when they took the fire extinguishers from the cabinets, totals $1,028.50.

The applicant has one prior entry on her criminal history when she was given a reprimand on the 8th of August 2010, for an offence of wilful damage. That offence was one where she effectively lost her temper, and damaged some property at a residence.

I note that the applicant has been diagnosed as suffering from a mild intellectual impairment. She's currently medicated for depression, and attention deficit disorder, and is in the care of the Department of Child Safety.

She was sentenced in the first instance to 100 hours of community service and 12 months' probation, and it is submitted on her behalf that that sentence is manifestly excessive in the circumstances.

Given, however, that this application for review is by way of re-hearing on the merits, I do not need to find error on the part of the sentencing Magistrate; rather, to reassess the material afresh in this proceeding.

I note also that one of the co-offenders, a young 13-year-old boy by the surname of C, has also been dealt with by the Courts for this matter, and in fact, was the previous review matter that I dealt with this morning, at which time I reprimanded him on the same charge. I note that C had completed 68.15 hours of the 100 hours of community service that had originally been ordered to be performed.

Parity principles do play some role, therefore, in this matter, but there are some distinguishing features. Ms CMJ, of course, is considerably older than Master C, and she has a prior conviction for a similar offence, whereas Master C had no prior convictions.

Counter-balancing those considerations, however, is her intellectual impairment and her psychiatric or psychological state, which are relevant considerations on sentence.

I note that Ms…

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 CMJ

Details

AGLC: The Queen v CMJ [2011] QChC 17
Case: [2011] QChC 17
Decision Date: 07/07/2011

CaseChat Overview and Summary

This case concerns an application for sentence review by the applicant, CMJ, who was sentenced in the Atherton Children's Court on 8 February 2011 for entering premises and committing an indictable offence on 13 January 2011. On the same day, CMJ was convicted of one count of trespass, related to the entering premises offence, and was reprimanded. The applicant, who was 16 years old at the time of the offence, is now 17 years old. She has one prior entry on her criminal history, a reprimand given on 8 August 2010 for wilful damage. CMJ has been diagnosed with a mild intellectual impairment, and is currently medicated for depression and attention deficit disorder. She is in the care of the Department of Child Safety.

The legal issues in this case revolve around the appropriateness of the sentence imposed on CMJ, specifically whether the original sentence of 100 hours of community service and 12 months' probation was excessive in the circumstances. The court was required to reassess the case afresh, considering the mitigating factors such as CMJ's age, intellectual impairment, and psychological state, as well as the parity principles with her co-offender. Both parties agreed that an order for good behaviour would be appropriate, but the court had to determine what was an appropriate penalty in the circumstances.

The court found that the original sentence was excessive, particularly given CMJ's one prior conviction, the relatively minor nature of the offending behaviour, and the sentence imposed on her co-offender. The court accepted that a 100-hour community service order and a 12-month probation order were excessive in the circumstances. The court concluded that it was appropriate to discharge the order of the Magistrate and substitute another order which was within the jurisdiction of a Children's Court Magistrate to make. The court ordered that the application be of good behaviour for a period of six months, with a requirement that CMJ abstain from violation of the law for the period of the order.

No further orders were required.

Orders