The Queen v SDB

[2012] QChC 10

[2012] QChC 10

CHILDRENS COURT OF QUEENSLAND

JUDGE SAMIOS

Indictment No 392 of 2011

THE QUEEN

v.

SDB

BRISBANE

..DATE 21/03/2012

ORDER

HIS HONOUR:  This is an application to review the sentence imposed by the Mackay Childrens Court on the 30th of November 2011.

The applicant was born on the 1st of November 1995; he was 16 years of age when sentenced by the learned Magistrate who comprised the Mackay Childrens Court.  The applicant was sentenced for four charges, one was an unlawful use of a motor vehicle on or about 6 November 2011; the second was an enter dwelling and commit indictable offence on or about the 7th of November 2011; the third was an unlawful use of a motor vehicle on or about the 7th of November 2011 and the fourth was an enter dwelling and commit indictable offence on or about the 16th of November 2011.

At the time of sentence the applicant had one entry on his criminal history for an offence of stealing.  He was sentenced for that offence on the 5th of October 2011 and reprimanded.  Concerning the facts of the offending, the unlawful use of the motor vehicle on or about the 6th of November 2011, the complainants' Commodore was locked and secured in their driveway during the night the vehicle was stolen.

On the 16th of November 2011 the applicant participated in an interview with police; he told police that on the night of the 6th of November he was with his friends.  Now, one of those friends left and returned in a Commodore, the applicant got in the car and went for a ride even though his friend told him it was stolen. 

The second offence of enter the dwelling and commit indictable offence on or about the 7th of November 2011 and the third offence, the unlawful use of a motor vehicle on or about the 7th of November 2011, relate to the same set of circumstances; that is, on the 6th of November the complainant went to bed leaving the sliding door closed but unlocked.  At about 3.15 a.m. he was awoken by a crashing noise, he saw a male running from his driveway and got into his car, a Mazda, which was parked on the footpath.  The complainant checked his house and found his car keys and mobile phone had been stolen from the kitchen bench.

Now, police had information that the applicant was involved in these offences.  In his police interview on the 16th of November he told police that he and two others entered the complainant's house, another person took the mobile phone and car keys, that person gave the keys to the applicant and the applicant drove everyone from the scene.  The applicant, to his credit, told the police the names of the other people who travelled in the car over the next few days. 

Then finally there is the offence of entering the dwelling on or about the 16th of November 2011.  On that occasion the applicant entered the dwelling of the complainants by cutting a hole in a screen door and unlocking the door.  He entered the dwelling and stole a quantity of handbags, mobile phones, iPads, cameras, phone charges and one man's wallet.

At approximately 11.30 p.m. on the 15th of November, the complainants heard noises and called police who attended and located the applicant in the backyard of their dwelling.  At least some of the complainants' property was located inside the applicant's pants.  In the interview on the 16th of November the applicant said he could not recall the offence but admitted sniffing glue and drinking alcohol at the time.  He could not explain to the police how the property came to be in his pants.

On an application of this kind it is a re-hearing on the merits and I need not necessarily identify any error on the part of the learned Magistrate.  Relevant on sentencing is the applicant's previous offending and the nature and seriousness of the offences to which he is to be sentenced.  A child's age is a mitigating factor.  The learned Magistrate imposed the maximum period of probation permissible under the Act.  It does appear, looking at the record before the learned Magistrate, that the learned Magistrate was not fully informed of the applicant's cooperation with police particularly his cooperation in naming other offenders. 

It would also appear that it was the applicant's admissions that would provide the evidence against him for the other offending.  That was also in the applicant's favour in that he would not have been able to be convicted of offences except for his admissions.  That had to be taken into account in sentencing the applicant. 

While the offence of burglary is serious in all the circumstances, bearing in mind the applicant's pleas of guilty and cooperation with the administration of justice and the minimal offending that he had committed before this occasion before the learned Magistrate, I have come to the view - and consistent with the submissions that have been made before me here today - that the applicant should be sentenced to a good behaviour order.

Both the applicant and the respondent who appear before me on this application to review the sentence agree that a good behaviour order is appropriate.  The applicant though submitted a period of between six to 12 months, whereas the respondent submitted a period of 12 months.  In the end I've come to the view the period should be 12 months.

I therefore vacate the order made by the Childrens Court at Mackay on the 30th of November 2011.  I order in lieu thereof that the applicant be sentenced to be of good behaviour for 12 months and of course no conviction is recorded.

-----