The Queen v Dhaj

[2011] QChC 18

[2011] QChC 18

THE CHILDRENS COURT OF QUEENSLAND

ACTING JUDGE FARR SC

THE QUEEN

v.

DHAJ

BRISBANE

..DATE 08/07/2011

ORDER

HIS HONOUR: This is an application for sentence review by DHAJ, pursuant to section 118 of the Youth Justice Act of 1992. He seeks a review of the sentence order made by the Childrens Court at Atherton on the 12th of April 2011, when he was convicted, on his own plea, to three counts of wilful damage and was sentenced to a period of 12 months' probation and ordered to perform 60 hours of community service.

I understand that he has, to the present time, performed five of those community service hours.  It seems that, perhaps, those five hours performed after the stay of the order occurred, when this application was filed.

Briefly, the facts in relation to the matter are these.  The applicant is a year 11 student at the Atherton State High School. 

On the 22nd of March this year, he attended his first class, but instead of attending the second, he met up with two other students in the school sports hall.  They played innocently enough in that hall for a period of time, before the applicant went behind the stage area near the rear fire door.  Next to the door was a container which held a fire extinguisher and was bolted to the wall.  He hit the storage container several times with his hand, destroying the frame, a seal and a clear panel, which covered the face of the container.

The applicant took the fire extinguisher from the container and removed the safety pin.  He pulled the trigger twice to see what it would feel like and discharged the powder from the extinguisher.  The fine powder eventually settled, covering half of the hall floor.

The applicant then went to a second fire extinguisher, which was also bolted to the wall near the side doors of the hall.  He again hit the storage container several times with his hand, destroying the front clear panel covering the face of the container.  He was then disturbed by a teacher and fled from the hall.

The cost of replacing the fire extinguisher and the two storage containers was approximately $1,200 and when apprehended, he participated in an interview with police and made admissions to the offences. 

I note that a very similar offence occurred just a couple of months earlier in time in that same hall for that same school by three different children.  There is inadequate material before me, however, to infer that this applicant was aware, or had knowledge of that prior offending behaviour, so I won't infer any greater degree of criminality on his part, for that reason.

Relevantly, however, the applicant does have one prior entry on his criminal history.  On the 18th of January, he appeared in the Atherton Childrens Court and was ordered to perform 20 hours of community service in relation to charges of wilful damage by graffiti and possession of a graffiti instrument.  Those offences occurred on the 28th of December 2010 and involved the applicant spraying various names, symbols and pictures on the concrete surfaces of the Atherton Skate Park.  I am told he completed that 20 hours of community service in four sessions and did those four sessions very quickly and in a satisfactory way.

Given that this is an application for sentence review, I do not need to find fault on the part of the sentencing Magistrate, as this matter is to be heard by way of re-hearing on the merits.  The applicant has submitted that the penalty imposed was, nevertheless, excessive in the circumstances, predominantly relying upon these features. 

(a) That the applicant was 15 years of age at the time of the offence and is now 16.

(b) That the applicant has only one prior entry on his criminal history, which I've just detailed.

(c) That he has completed five hours of his community service order.

(d) That he lives at home with his mother and father and comes from a stable and supportive background.

(e) That he participated in an interview with police where full and frank admissions were made.

It has been submitted, on his behalf, that his personal circumstances do not reveal any ongoing need for supervision through a probation order.  It has also been submitted that parity principles might apply with the offenders that committed the previous offence a couple of months earlier, that offence being almost identical in circumstances.

There is a distinguishing feature here that is of some significance, however and that is the previous conviction, or the previous Court appearance that this applicant has.  It was for similar type of offending, that is, wilful damage and it was committed only two to three months prior to the offending behaviour on this occasion and he appeared in Court only two months before this offending behaviour and was given community service at that time. 

It may well be that that community service order was excessive in the circumstances of that offending behaviour, but that's not for me to determine.  Nevertheless, he did receive a community service order.  He completed it well, but it clearly did not have the impact of personal deterrence that, no doubt, the Court was hoping it might have and that feature places him in a slightly more serious position than the offenders that committed the previous offence a couple of months earlier, whose surnames I think were C and C

Nevertheless, for the reasons that I have just detailed, it is my view that the sentence which was imposed on this occasion, which was one of 12 months' probation and 60 hours of community service, is excessive in the circumstances.  I note that the respondent does not challenge that submission and the only dispute is really as to what might be the appropriate sentence to be imposed in relation to these offences.

It has been submitted on behalf of the applicant, that a good behaviour order would be appropriate in the circumstances.   It has been submitted on behalf of the respondent that a lesser period of probation would be appropriate and that the community service order should remain as it is.

In my opinion, particularly given that prior conviction and the sentence that was imposed previously and the timing in relation to the current offences, a probation order and a community service order would be appropriate and the most appropriate orders in the circumstances of this offence, albeit somewhat less than was imposed by the Magistrate in the Court below.

Notwithstanding that it is said that this applicant comes from a good family and has good family support, he has demonstrated, through his repeated offending behaviour, that some supervision would be of benefit to him and therefore, of benefit to the community. 

It equally is the case that his offending behaviour is of such a nature that some community service, again given his prior conviction, would be an appropriate reminder to him, insofar as personal deterrence is concerned and hopefully it will also play a role insofar as general deterrence. 

I have no doubt that the Atherton State High School headmaster is thoroughly sick and tired of this type of offending behaviour.

For those reasons, the application is accepted and the order of the Court below - I can just vary under the act, can't I?

MS McMAHON:  You can, your Honour.  Yes.

HIS HONOUR:  The order of the Court below is varied and the probation order is reduced to one of six months' probation and the community service order is reduced to one of 20 hours of community service and that will be the sentence of the Court. 

Are there any other orders that are required for that matter?
MS McMAHON:  No, your Honour.
BENCH:  Thank you both.

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