The Queen v PJ

[2013] QChC 10

[2013] QChC 10

CHILDRENS COURT OF QUEENSLAND

CRIMINAL JURISDICTION

JUDGE REID

Indictment No TBA

THE QUEEN

v.

PJ

BRISBANE

2.34 PM, MONDAY, 29 APRIL 2013

SENTENCE

HIS HONOUR:   The applicant in this matter pleaded guilty to 35 property and drug offences committed between the 3^rd of March and September 2012.  He was born the 1^st December 1995 and so was 16 at the time.  He has a relevant prior criminal history. In particular, in October 2011 he was sentenced to nine months probation for a number of offences of dishonesty, including entering premises and committing an indictable offence, entering with intent and stealing.  He was subject to that order for probation and another for six months probation imposed on the 16^th of November 2011, the time of some of this offending.  He’s also served 127 days of pre-sentence custody at the time of this sentence in January this year. 

The subject’s offences comprise two groups.  After a series of offending around March 2012, he was in custody from the 30^th of March 2012 until the 16^th of May, and then after release committed further offences between the 9^th of August and the 17^th of September 2012.  These later offences were in breach of conditions of bail imposed with respect to the earlier offences. 

The offending occurred during a time when the applicant was addicted to both marijuana and amphetamines.  He’d commenced marijuana use at age 12 and amphetamine use from age 14.  His parents separated in 2010 when he was 14.  He then lived for a time with both parents.  More importantly, in 2011, the applicant’s father was shot with a shotgun.  I was given no details about that event, but it resulted in his father leaving Australia and living in the USA for a period of time.  The applicant reacted badly to the loss of his father’s presence in his life, although I do note he already was then a significant user, as I’ve said, of both marijuana and amphetamines.  So I think the effect of his father’s absence has perhaps been overstated by him as a cause of his descent into criminal conduct.  One suspects the seeds of his involvement in that life were sown significantly earlier.  No doubt as a result of his drug attention and perhaps angry and defiant attitude, he began associating with an older and negative peer group.

He was involved in the theft of property and of motor vehicles to enable him to dishonestly obtain the means to purchase the drugs that he was then using daily.  Fortunately, the Court report tendered before the sentencing Magistrates suggests that the four months in prison in two periods, the latter up until the 6^th of December 2012, appears to have had a significantly positive effect.  At page 5 of the report, the author says that the applicant has engaged in counselling with the Mental Health Alcohol Tobacco and Other Drugs Service and other educational activities while in prison.  He was then placed on conditional bail from early December 2012, without further offending to date.  He appears to have complied with conditions of his bail, at least significantly. 

He and his mother report improved relationships, and of his ceasing association with the previous negative peer group.  The learned Magistrate questioned the applicant about his time in prison. Consistent with the contents of the pre-sentence report the applicant informed the learned Magistrate that, whilst detention was “not fun”, it had “helped me out” and that he was then drug-free and doing his conditional bail program.  The learned Magistrate, whilst recognising the 127 days of pre-sentence

custody, imposed a sentence of 12 months probation and 200 hours community service.  No conviction was recorded. 

The applicant does not appeal against the order for probation, but contends that 200 hours community service was excessive, and suggests an appropriate order was for 50 hours.

The DPP contends that the sentence was appropriate, having regard to the number and seriousness of his offending, his prior history, and the fact that there were two series of offences, the first in breach of probation and the latter in breach of his bail undertaken.  In the alternative, the DPP contends that a lesser number of hours, 100 to 150, would be appropriate. 

It is important to note that a sentence review under the Youth Justice Act is a rehearing on the merits and it is not necessary to show error; see 122(1) of the Youth Justice Act.

In my view, the significant period of pre-sentence detention, equivalent by my calculations to a head sentence of at least six months imprisonment, assuming 70 per cent was served, and eight months if only 50 per cent had been ordered because of special circumstances, is a vitally important factor to be taken into account when considering what sentence to impose by way of punishment.  So too is the defendant’s apparent good response to his second period of detention in late 2012.  The strength of the appellant’s argument would of course have been significantly strengthened if he were now engaged in employment or training and education of some sort. 

But in my view, to impose the maximum of 200 hours community service in addition to the pre-sentence custody to which I have referred was a little more than what was required in my view.  Despite the severity of the offending, which largely involved entering premises or motor vehicles and taking goods in order to be sold and finance his drug addiction, I would allow the appeal to the extent of reducing the requirement for community service to 100 hours, of which I’m informed 30 has already been performed.  I urge the applicant to attempt to perform the remaining hours as soon as possible, to enable him to then be in a position to perform any work he might obtain without impediment.

In view of the reduction of hours required to be performed by way of community service, I would order that such be completed within nine months of the original sentence, that is, by the 16^th of October 2013.  The appeal is allowed for that extent.

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