The Queen v LD

[2013] QChC 28

[2013] QChC 28

CHILDRENS COURT OF QUEENSLAND

JUDGE SHANAHAN, President

Indictment No 164 of 2013

THE QUEEN

v.

LD

BRISBANE

11.26 AM, MONDAY, 1 JULY 2013

JUDGMENT

THE PRESIDENT:   This is an application to extend time in which to file a sentence review.  There is also an application to stay a detention order and for bail, pending the hearing of the sentence review.  The applicant child, on 2 April 2013, was sentenced in relation to a number of offences including dishonesty and assault matters to six months detention to be served by way of a boot camp order by the Mareeba Children’s Court.  The child agreed to the conditions of that order which involved a particular service provider and residence at a particular place. 

After commencing the boot camp residence component, the child’s brother died and the child was allowed to attend the funeral.  Those funeral proceedings extended for a considerable period of time, and the child was granted various extensions to remain with his family.  During that period, because of events not connected with this child, the service provider, in relation to the boot camp order, was dismissed, and that particular centre was no longer available for boot camp.  As a result, the child was ordered to attend upon a different centre for the completion of the residence component.  There is some question about the process that was involved here, because the matter did not proceed back to court for an alteration of the order to be made and the child’s consent to be canvassed again.

The child refused to attend the new centre, and as a result, breach proceedings commenced.  On the 27^th of May 2013, the applicant accepted that he had breached the order and was re-sentenced.  The magistrate imposed the original six months detention order, less the 16 days that the child had been compliant with the boot camp order.  It’s apparent from the material placed before me that the child made considerable efforts to abide by the order, and it was only as a result of a family tragedy and the cessation of the original providers that the breach proceedings were taken.  There is some question, then, to my mind, as to whether the child had actually breached the original boot camp order.  However, considering what has occurred since, it seems to me that it is appropriate to deal with the matter expeditiously.

The applications were filed on the 26^th of June 2013, so some period out of time.  The child has now served a considerable period in detention.  The 60 days that he was on remand prior to sentence, the 16 days during which he performed the boot camp order, and the period from the breach proceedings, on the 27^th of May, to today’s date.  The submission is made that the sentence review should proceed today, that leave should be granted to extend time, and the sentence review proceed on the basis that all that is being sought is an order for a release from detention after 50 per cent of the order has been served.  The Crown accepts that position in view of the unusual circumstances that have pertained here.

An additional feature of this matter is whether the sentence review procedure actually applies to a breach proceeding of a boot camp order.  The definition of sentence order in section 118 and Schedule 4 does not seem to consider a breach proceeding under section 246 as one of the matters for which the sentence review procedure applies.  As I understand it, two previous decisions of judges of this court have determined that the sentence review procedure does apply as it relates to the original sentence that was imposed.  To my mind, the situation needs clarification, but I am also of the view that the

sentence review procedure does apply, as it does apply to the original sentence of six months detention. 

The Crown submit, here, a way through the various issues is to deal with the sentence review today and to treat the application as a sentence review of the original sentence of six months detention.  It seems to me, considering the position of the child in detention, that that is an appropriate way to deal with this matter at this stage.  I allow the application to extend the time for the filing of the sentence review.  That time is extended to the 26^th of June 2013, when the applications were filed.  In the unusual circumstances here, I allow the sentence review in relation to the sentence imposed on the 2^nd of April 2013, and its reactivation on the 27^th of May 2013, to order the applicant’s release from detention after serving 50 per cent of the six months detention order.  Are there any other orders needed?

MR LAW:   No, your Honour.

UNIDENTIFIED SPEAKER:   No, thank you.

THE PRESIDENT:   All right.  Thank you both for your assistance.

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