The Queen v HCG - [2021] QCA 200

[2021] QCA 200

COURT OF APPEAL

FRASER JA
McMURDO JA
MULLINS JA

CA No 188 of 2021
DC No 17 of 2021
DC No 23 of 2021
DC No 25 of 2021

THE QUEEN

HCG Applicant

BRISBANE

TUESDAY, 21 SEPTEMBER 2021

JUDGMENT

McMURDO JA: On 21 June 2021, in the Childrens Court the applicant pleaded guilty to offences charged on two indictments and to one summary offence. He was sentenced by a Judge of that Court on 21 July 2021. In total, there were 15 offences, the most serious of which was committed on 17 May this year, when he spat in the face of a police officer. On that offence, it was ordered that he be detained for six months. There were three offences of burglary and stealing, for which three months’ detention was imposed in each case, and an offence of the unlawful use of a motor vehicle, for which three months’ detention was imposed. There were other offences which attracted penalties of two months’ or one month of detention. And four offences for which he was simply reprimanded.

The Judge ordered that he would be released after serving 50 per cent of the period in detention, that is to say, after three months. He had spent four days in pre-sentence detention. Consequently, that three months will expire on 17 October. Subject to the outcome of this application, he will then be released under a supervised release order under s 228 of the Youth Justice Act 1992 (Qld).

This is an application for leave to appeal against those orders, in which it is argued that the “sentence imposed” is manifestly excessive and that the Judge made errors in his application of s 208 of the Act. Ultimately, what is challenged is the Judge’s decision not to make a conditional release order.

The applicant was born on 31 August 2004. He was aged 15 and 16 at the time of the offences, and 16 at the time of the sentence hearing. He already had an extensive history of offending involving, mainly, offences such as burglary and unlawfully using motor vehicles. He had previously received sentences which included probation, and some community service orders which he had breached on occasions by reoffending.

As recently as 29 March 2021 he had received a 12 months’ probation order for four offences, including burglary and the unlawful use of a motor vehicle. All but one of the subject offences were committed in April and May, that is to say, very soon after that probation period had commenced. However, prior to the present matters, he had never been sentenced to any period of detention or a conditional release order.

A pre-sentence report dated 14 July 2021 was tendered at the sentencing hearing. The author noted that the applicant was an Indigenous boy with a mild intellectual impairment. He said that the applicant had become disengaged from education from late last year, and that his offending had come from a combination of limited adult…

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 HCG

Details

AGLC: The Queen v HCG [2021] QCA 200
Case: [2021] QCA 200
Decision Date: 21 SEPTEMBER 2021

CaseChat Overview and Summary

In this appeal, the applicant, HCG, contests the sentence imposed on him by a Judge of the Children's Court. HCG had pleaded guilty to fifteen offences, including several instances of burglary, theft, and assaulting a police officer. The Judge sentenced HCG to a total of three months' detention for certain of the offences, with the possibility of release after serving half of that period. HCG argues that the sentence is manifestly excessive and that the Judge misapplied the relevant statutory provisions when deciding not to grant a conditional release order.

The legal issues in the appeal revolve around the interpretation and application of sections 150, 208, and 220 of the Youth Justice Act 1992 (Qld). The primary contention is whether the Judge correctly exercised his discretion under section 208 when he decided that a detention order was the only appropriate sentence, rather than a conditional release order. The applicant's argument hinges on the statutory requirement that a non-custodial order is to be preferred over detention in promoting a child's ability to reintegrate into the community, and that rehabilitation of a child is greatly assisted by opportunities to engage in educational programs.

The Court of Appeal found that the Judge's reasoning was inconsistent with the statutory framework for sentencing children. The Court held that the Judge failed to adequately consider the special importance of rehabilitation and educational opportunities as prescribed by sections 150(2)(b) and (c). The evidence indicated that a conditional release order would provide HCG with the opportunity to participate in an educational program and address his offending behaviour, which was not the case with a detention order. Consequently, the Court determined that the exercise of the sentencing discretion miscarried, and the applicant should be resentenced. The Court also noted that it was unnecessary to address the alternative ground of appeal concerning the excessiveness of the sentence.

Accordingly, the Court granted leave to appeal and ordered that HCG be immediately released from detention under a conditional release order. The order mandates that HCG participate in a program for a period of three months, during which he must abstain from violating the law and comply with various conditions, including regular reporting and notification of any changes in his circumstances. The Court's order was in accordance with sections 220 and 221 of the Youth Justice Act 1992 (Qld).

Orders