The Queen v TJN

[2011] QChC 28

[2011] QChC 28

CHILDRENS COURT OF QUEENSLAND

JUDGE FARR SC

THE QUEEN

v.

TJN

BRISBANE

..DATE 18/11/2011

ORDER

HIS HONOUR: This is an application for sentence review pursuant to sections 119 and 121 of the Youth Justice Act 1992. The application relates to one charge of trespass. The applicant was 15 years of age at the time of the commission of that offence and is currently 16 years of age. He was dealt with in relation to this matter in the Thursday Island Childrens Court on the 14th of September 2011.

Briefly, the facts in relation to the offence are that on the 6th of June 2011 the applicant crawled through a hole in the fence surrounding the yard of a place known as “Sea Swift on Horn Island” with three of his friends.  He was located in that yard standing on the top of a shipping container and was subsequently arrested and later charged.  He was sentenced to six months' probation in relation to that offence.  It's been submitted on his behalf that in the circumstances of this matter that penalty was manifestly excessive in the circumstances and that a reprimand would have been an appropriate order in all the circumstances. 

He has been before the Court on occasions prior to that.  In July 2010 he appeared before the Thursday Island Childrens Court in relation to one charge of entering premises and committing an indictable offence by a break, that offence occurring in June of 2010; on one charge of entering a premises with intent to commit an indictable offence, that offence occurring in March 2010, and one charge of stealing, that offence occurring on the same day in March.  In relation to those offences he was reprimanded and no conviction was recorded. 

When he appeared before the Court in September in relation to this matter he was also dealt with for charges that had previously been the subject of an Indefinite Youth Justice Conference.  Unfortunately that conference failed, hence the applicant was resentenced on that same day in September in relation to one charge of assault occasioning bodily harm, which occurred in October of 2010, and one charge of unlawful use of a motor vehicle which occurred in July of 2010.  In relation to each of those charges he was sentenced to 30 hours of community service, to be served cumulatively. 

The respondent in its written submissions has conceded that the penalty imposed for this offence was excessive in the circumstances and whilst, of course, that concession is not determinative of the outcome, it is, nevertheless, a relevant consideration for the Court in determining the outcome of this application. 

I should note that sentence reviews are conducted by way of rehearing, which means, of course, that error is not necessary on the part of the original Court before the jurisdiction of this Court is enlivened, but, nevertheless, it appears to me that there has been an error made by the Court below, as evidenced by the nature of the penalty which was imposed for this offence.  The offence itself falls very much at the lowest end of the scale of seriousness for most offences and even for the offence of trespass.  To impose six months of probation as a consequence upon that behaviour in my view appears disproportionate and for that reason excessive. 

I accept that the submission made on behalf of the applicant that a reprimand would have been the appropriate penalty in the circumstances is a fair submission and it would seem that it's not one that is disputed by the respondent. 

I should note for the record as well that there was some difficulty with the recording equipment or the recording quality of what occurred in the Thursday Island Court and no transcript has been able to be provided to this Court but that does not impede this matter being able to be dealt with today. 

But for those reasons it's my view that the sentence imposed was excessive and manifestly so.  I accordingly set aside the order of the Magistrate and replace it with an order that the applicant be reprimanded for the offence that is the subject of this application. 

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