The Queen v HRD

[2011] QChC 31

[2011] QChC 31

CHILDRENS COURT OF QUEENSLAND

JUDGE FARR SC

Indictment No 7253 of 2010

THE QUEEN

v.

HRD

BRISBANE

..DATE 15/12/2011

SENTENCE

HIS HONOUR: This is an application for sentence review pursuant to sections 119 and 121 of the Youth Justice Act of 1992.

The review application arises from two appearances the applicant made before the Mareeba Children's Court, the first in time being on the 2nd of September 2011 and the second on the 25th of October 2011. 

On the first of those occasions he pleaded guilty to and was convicted of 20 counts of unlawful entry of a motor vehicle at night in company; one count of entering a premises and commit an indictable offence by break; four counts of burglary and commit an indictable offence; three of stealing; one of wilful damage of police property; one of assault or obstruct police; two of wilful damage; and one of wilful damage by graffiti. 

On that occasion he was sentenced to 10 months' detention, but that period of detention was ordered to be suspended immediately and to be served by way of a conditional release order. 

He appeared on the 25th of October 2011 in relation to one offence of burglary and commit an indictable offence, one of unlawful entry of a motor vehicle at night and in company, and one of stealing. 

In relation to those offences he was sentenced to 12 months' detention with release after serving 70 per cent and convictions were recorded. 

At the time of the commission I think of all of those offences, he was 14 years of age and is still 14 years of age now.  He had only one entry on a criminal history, and that was for a single offence of entering a premise and commit an indictable offence by break for which he was reprimanded. 

In relation to the offences on the 2nd of September 2011, the applicant had spent 32 days in pre‑sentence custody.  He has, as at today's date spent 95 days in pre‑sentence custody in relation to the second of the groups of offences for which he appeared on the 25th of October. 

I note on a sentence review, pursuant to the legislation, the hearing is conducted by way of a rehearing.  As such, there is no necessity for this Court to find error on the part of the Court below. 

Nevertheless, if an error is demonstrably present, then, of course, that would be a relevant consideration. 

The Court also should have consideration to the transcript of what occurred in the Court below and to the sentencing remarks of the learned magistrate on each of the two occasions, and I have done so. 

So far as the September offences are concerned, it has been submitted on behalf of the applicant that the sentence which was imposed is manifestly excessive, and in that regard reliance is placed upon the applicant's youth, the nature and seriousness of the offending behaviour, his relatively minor criminal history, the contents of a pre‑sentence report that had been provided at the time and which I have had the opportunity of reading, and considerations such as rehabilitation. 

It has also been submitted that the rehabilitation of the child is the predominant consideration for these offences, whilst acknowledging that general and personal deterrence is still an important consideration. 

I note also that the applicant entered pleas of guilty at an early stage and that the offences fall towards the lower end of the scale of seriousness for that type of offending conduct. 

The nature of the offences, by and large, speak for themselves.  Just for the record, I should indicate that the type of offences that he was dealt with for in September of this year include things such as breaking into a rugby league club at night and stealing $40 worth of perishables; inscribing his initials on the wall of a watch‑house; smashing car windows and gaining access to them and stealing contents; spray painting street signs; attempting to run away from police; reaching inside open windows of vehicles to unlock them and steal cigarettes and foods; scratch a table in the watch‑house; breaking into a backpackers' and stealing property/electronic equipment whilst people were asleep; stealing alcohol from a fridge in a garage, and from an esky in a carport; and entering a premise and stealing some electronic equipment. 

Whilst I accept that the nature of the offences are probably towards the lower end of the scale of seriousness, it is undoubted that there are a large number of such offences and that the offending conduct took place over a period of approximately six months.  It demonstrates a determination to commit offences. 

I also note that during the course of this offending conduct, the applicant had been remanded in custody overnight on the 24th of May.  He was also remanded in custody on the 18th of June to the 5th of July 2011 when he entered a conditional bail program.  He was remanded in custody from the 22nd of August to the 2nd of September 2011 and finally was remanded in custody from the 11th of September to the 25th of October 2011. 

The offences for which he was dealt with in September continued through during all of that passage of time up until the 10th of September 2011, so there were numerous offences committed whilst he was the subject of a conditional bail program, or after having been released from custody when on remand, and are suggestive of a disregard for the Court's orders and for legal process. 

Now, whilst I acknowledge that the principles of the Youth Justice Act are clear, that a sentence of detention is one of last resort and that when it is necessary it should be for the shortest time possible, I nevertheless am of the view that the sentence which was imposed on this occasion was an appropriate sentence in all the circumstances; that is, referring to the September appearance. There was a large volume of persistent offending and, despite being arrested, charged and detained for periods of time, he often re‑offended within a matter of days.

The respondent has submitted that he has shown little or no remorse or respect for the property of others and that seems quite apparent upon the facts relevant to those charges. 

For that reason, it is my view that the sentence imposed on the 2nd of September 2011 was an appropriate sentence in all the circumstances, and I would not vary it in any way.  So that sentence is confirmed. 

Now, as I have indicated, he subsequently appeared on the 25th of October 2011 for offences that I have already mentioned, those that occurred on the 10th of September 2011.  That is a period of only eight days after his previous Court appearance.  The facts in relation to those offences are that he opened a closed, but unlocked sliding door to a premises and stole a mobile phone and a video camera.  He was in the company of a co‑accused at the time.  The female complainant confronted them and they both left. 
On that same day he opened a car door and stole a wallet from within it that contained $120.  That accounts for the other two charges. 

Now, the fact that he committed these offences only eight days after being placed on a conditional release order is, of course, a significant aggravating feature, but, nevertheless, one should not lose sight of the fact that we are dealing with a 14‑year‑old and a 14‑year‑old who, prior to the 2nd of September 2011, had very little by way of criminal history.  The offences that he committed in breach of that conditional release order, whilst serious, were all in the one day, appear to be quite opportunistic in nature, and, again, are not the most serious examples of that type of offending.  No doubt in his local community it would be considered a behaviour that is worthy of punishment, and no doubt he has caused much inconvenience for the complainants, but the ultimate outcome from his Court appearance that day, being 12 months' imprisonment and having to serve 70 per cent of it, is, in my view, manifestly excessive. 

That was the maximum penalty that the Court could have imposed at that time and, given the circumstances, including his personal circumstances that I have referred to and the difficulties that he has had in his life, as evidenced in the pre‑sentence reports that have been prepared on his behalf, it is, in my view, quite apparent that this was not a matter that warranted a sentence of that magnitude. 

I am comforted in that conclusion, I must say, by the fact that the respondent, in its submissions, has agreed that the sentence imposed was manifestly excessive and that this Court should vary the order in a way considered to be appropriate. 

For those reasons, the order of the Court below from that date should be varied and the sentence that will be imposed is one of six months' imprisonment in relation to each of the offences. 

All terms of imprisonment are to be served concurrently, and, in my opinion, given the features that I have referred to in the course of these remarks, exceptional circumstances exist which warrant an order that the applicant only serve 50 per cent of that term of detention. 

I note, in that regard, that he has served 95 days in pre‑detention custody to the present time. 

I order that the sentence below be set aside, and in lieu thereof a sentence of six months' detention on each charge is imposed with the requirement that he be released after serving 50 per cent, just for clarity purposes. 

...

HIS HONOUR:  In relation to the recording of a conviction, which applies only to the three offences that were dealt with in October of this year, given his still reasonably brief criminal history and his youth, in my opinion it would be appropriate, taking into account all the relative considerations under the legislation, to not record convictions for those three offences. 

So in that regard the sentence below is also discharged and no convictions will be recorded.

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