The Queen v KH

[2012] QChC 31

[2012] QChC 31

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE SHANAHAN

Indictment No 246 of 2012

THE QUEEN

v.

KH

BRISBANE

..DATE 03/12/2012

SENTENCE

HIS HONOUR:  This is an application for sentence review by the
15 year old child.  The applicant was dealt with in the Mount
Isa Magistrates Court on the 13th of September 2012.  She
pleaded guilty to 13 offences, the most serious of which was
an offence of serious assault.  That offence was committed
upon a police officer.  As the applicant struggled in her
arrest, there was a kick to the police officer's mouth which
caused bleeding, but more seriously a bite.

In relation to that particular offence the applicant was
sentenced to three months and 20 days' detention to be served
by way of a conditional release order.  She had already served
20 days in detention prior to the sentence.  On each of the
remaining offences the applicant was admitted to 12 months
probation.  No convictions were recorded in relation to any of
the offences.

The applicant is a 15 year old Aboriginal girl.  She had
travelled earlier this year from the Northern Territory where
she had been living with her mother.  She was staying with
relatives, although had been estranged from them at the time
of the commission of these offences.  She only had one
previous appearance before the Childrens Court on the 3rd of
August 2012 and was not or had not been subject to any
supervised orders in the past.

The sentencing Magistrate was concerned at the seriousness of
the serious assault offence and determined that the prospect
of detention hanging over the child's head was a further
incentive to comply with the supervision that he thought was
appropriate.

It seems to me, however, that the first decision that should
have been taken is whether the offences warranted a detention
order.  It seems to me inappropriate to determine that
detention is warranted as some sort of incentive for the
compliance with a community-based order.  In that regard,
whilst the serious assault is a serious offence involving a
biting, it does not seem to me that detention was open in the
circumstances of this child's background.

In those circumstances, I am of the view that the sentence
review should be allowed in relation to the offence of serious
assault.  I note in that regard that the Crown do not oppose
that.  It's also necessary to take into account that the child
has now been returned to the Northern Territory to live with
her mother pursuant to a child safety agreement.

In those circumstances, it seems to me that probation is the
appropriate penalty in relation to all these matters.  I allow
the application in relation to the offence of serious assault.
In relation to that sentence, I substitute a sentence of 12
months' probation.  No conviction is recorded.  The other
orders are to remain.  Are there any other orders needed?

MS SMITH:  No.  Thank you, your Honour.

HIS HONOUR:  Mr Thompson, yes?

MR THOMPSON:  Just a point of clarification.  Your Honour,
that order is to commence today?

HIS HONOUR:  Well, it hasn't really commenced, has it?  She
hasn't been subject to any supervision.

MR THOMPSON:  No.  No, your Honour.

HIS HONOUR:  Ms Smith, it seems to me it should commence
today.

MS SMITH:  That's my understanding.  Because the matter's a
rehearing on the merits, it is a fresh sentence today.

HIS HONOUR:  All right.  Those orders - although obviously I
didn't interfere with the other probation orders, but all of
the orders are to commence today.  All right.  Thank you for
that, Mr Thompson.

MR THOMPSON:  Thank you, your Honour.

MR LE GRAND:  Thank you.

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