The Queen v MKH

[2014] QChC 3

CHILDRENS COURT OF QUEENSLAND
JUDGE SHANAHAN, President
THE QUEEN
v.
MKH
BRISBANE
9.59 AM, TUESDAY, 22 APRIL 2014
ORDER

HIS HONOUR: This is a sentence review in relation to a sentence imposed in the Emerald Children’s Court. On the 28^th of January 2014, the applicant pleaded guilty to three break and enter premises and commit indictable offences, one offence of stealing and one offence of trespass. The offences were committed in company with other offenders over a period of about three nights in Emerald. The break and enter offences involve the offenders entering business premises by means of a break and stealing various property, including soft drinks and alcohol. The stealing involves the entry of an unlocked vehicle and the theft of property there from. The trespass involves him swimming in a swimming pool in a unit complex without any permission.

When interviewed by the police concerning these matters, the applicant child told them that he was not involved in those matters. He ultimately pleaded guilty to each of them. A co-offender, another child of the age of 12, did admit his involvement in these same offences and was administered a caution by investigating police. That option was not open to those police because this child did not admit the offences. He thus came before the magistrate. He pleaded guilty to the offences, he was 12 years of age and he had no previous history whatsoever. The learned magistrate imposed a probation order for a period of six months in relation to each matter and did not record convictions. Other co-offenders have also been dealt with in relation to these offences. A child with a similar background to this one, although he had been cautioned in the past, was placed on five months probation and another offender who had a much more serious history was sentenced to detention to be served by way of a conditional release order.

The learned magistrate decided that probation was the appropriate penalty here. Although this is a sentence review and error does not need to be shown by the sentencing magistrate, I am of the view that there is error here. The sentence is plainly manifestly excessive. This is a 12 year old first offender who has been involved in a number of relatively minor break and enter offences, not burglary offences as described by the magistrate. The sentencing principles under the Youth Justice Act are clear. One of the issues to be taken into account is the age of the child. The child here is only 12. There are other factors in the child’s favour, including his plea of guilty and the fact that he had no history. It seems to me, in those circumstances, that a probation order was not called for.

I note in passing the remarks made by the learned magistrate that, in his view, probation orders less than six months are inappropriate. That is contrary to the Act. The magistrate’s personal views about the appropriateness of sentences and the youth justice system in particular are irrelevant. He is bound by the Act and the cases decided pursuant to that Act. He is bound by the sentencing principles of that Act. His own views, as I say, are irrelevant.

In those circumstances, I am of the view that the sentencing discretion has miscarried. I allow the sentence review. I substitute sentences in relation to each matter of a good behaviour order for a period of three months. No conviction is recorded. Are there any other orders needed?

MS AN: No, your Honour.

MS SMITH: No. Thank you, your Honour.

______________________

CaseChat Overview and Summary

In the case of The Queen v MKH, the defendant, a 12-year-old boy, was sentenced in the Emerald Children’s Court for multiple offences including break and enter premises and commit indictable offences, stealing, and trespass. The boy pleaded guilty to these charges and was sentenced to a six-month probation order for each offence, with no convictions recorded. The case was brought before the Children's Court of Queensland for a sentence review, where the President, Judge Shanahan, examined the appropriateness of the sentence imposed by the magistrate.

The central legal issues addressed by the court were whether the sentence imposed by the magistrate was excessive and whether it correctly applied the principles of the Youth Justice Act. The Youth Justice Act requires that sentencing take into account factors such as the age of the child, the nature of the offence, and the child's history. Given that this was the boy's first offence, his young age, and his early guilty plea, the court had to consider whether a probation order was appropriate. Furthermore, the court had to determine whether the magistrate correctly adhered to the legal framework provided by the Act.

In reviewing the sentence, Judge Shanahan found that the probation order was indeed manifestly excessive. The court emphasized that the sentencing magistrate is bound by the principles of the Youth Justice Act and cannot impose personal views on the appropriateness of sentences. The court noted that probation orders of less than six months are permissible under the Act, contrary to the magistrate’s belief. Consequently, the court concluded that the sentencing discretion had miscarried. The sentence review was allowed, and the court substituted the six-month probation orders with three-month good behaviour orders for each offence, without recording any convictions.

In conclusion, the court ordered the substitution of the original six-month probation orders with three-month good behaviour orders for each offence, and no convictions were recorded. The court's decision underscored the importance of adhering to the statutory sentencing principles and highlighted the error in imposing a sentence that was excessively harsh for a first-time offender with no prior history.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established