The Queen v YMJ

[2011] QChC 27

[2011] QChC 27

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE FARR SC

THE QUEEN

v.

YMJ

BRISBANE

..DATE 17/11/2011

ORDER

HIS HONOUR: This is an application for sentence review by YMJ, the applicant, pursuant to sections 119 and 121 of the Youth Justice Act 1992.

The applicant pleaded guilty to three counts of assault or obstruct police, all of those offences occurring during the same incident on the 1st of September 2011.  You were sentenced on the 4th of September 2011 at the Ipswich Childrens Court and you were sentenced to a period of four months' probation. 

At the time of the offending and at the time of sentence the applicant was 12 years of age.  Briefly the facts relating to the offending behaviour are these:  on the 1st of September police received information of a child hiding in an alleyway inside the Ipswich Railway Station.  When police approached and spoke to him he advised them that he had not eaten for some days.  Police noted that he was in a dishevelled state and had apparently not bathed for some considerable time.  Whilst speaking to him the applicant's mother pulled up outside the train station.  She, in fact, had reported her son as a missing person some days earlier.  She advised the police of that fact.  She also advised them that he had been diagnosed with ADHD and Aspergers syndrome.  The applicant refused to go with his mother even though the police attempted to escort him to his mother's car. 

During that process the applicant struck out at a police officer, he pushed one officer in the chest and kicked another officer in the leg.  I think, in fact, he kicked two officers in the leg and struggled and resisted.  Police subsequently charged him with the subject offences.  He continued to be loud and abusive and was taken to the police station where he was later released on bail. 

At the time of sentence the applicant had reengaged with school through an organisation known as Children of the Dreaming, and they were providing case work support for the family through a family support scheme, and it appeared that a rapport had been developed or was developing between the applicant and I think one of the principal organisers of that scheme. 

The learned Magistrate in the course of sentencing submissions referred on a couple of occasions to the fact that he was surprised that the Department of Children's Services had not become involved with this child and then further in submissions his Honour said this:  "Although he is on what are relatively minor offences and he's got no previous and he is very young, given the background that I have heard and the lack of any interest at this stage from child safety, I would have thought perhaps that what might be appropriate is a short probation order with a recommendation that the department requires him to continue contact with Children of the Dreaming." 

The further information that his Honour had heard up until that point in time was that the child frequently ran away from home and stayed away for days on end; that his mother would be required to report him as a missing person before ultimately having him bought back home again.  His mother was present in Court during the sentencing process.  She, in fact, spoke to the Magistrate when questions were directed towards her.  His Honour then went on to speak to the mother about probation, its potential benefits, and the child's mother tended to agree that it might be an appropriate way to go. 

In fact, his Honour decided that probation would be beneficial because it would at least entitle or enable the probation officer to order the child to attend that course and that breach of that would result in him being returned to the Court.  It has been argued on behalf of the applicant that the sentence imposed was manifestly excessive in the circumstances.  It has also been argued that the Court would not be satisfied that the child agreed to probation voluntarily.  The submission in that regard is that when his Honour was speaking to the child and indicating the sentence he had in mind the child stated that he wouldn't agree.  His Honour then said, "You won't agree to that?  All right, well, then if you don't agree to it I will have to look at another option which can include even possibly locking you up, …, because somebody has got to teach you that you must do what you're told."  A bit later his Honour said, "Before I can lock you up, though, I have got to order a pre‑sentence report which is a big report telling me all about you to decide what we should do with you.  So if you are not going to agree to probation, I am going to order a pre‑sentence report; is that what you want me to do?"

Now, comments of that nature might not necessarily amount to a threat or the subsequent consent to probation being anything other than voluntary, although as properly pointed out by counsel for the applicant today, those comments must be viewed in light of the fact that the applicant was a 12 year old with no criminal history who had Aspergers and ADHD and that his perception is what is important. 

Whilst I accept that submission I, in fact, don't really need to determine this issue on that basis because, in my view, the probation order that was imposed was manifestly excessive in the circumstances.  I note that in a review hearing the matter is conducted by way of rehearing, so error does not need to be identified on the part of the Court below before this Court can intervene. 

Having said that, however, I am of the view that the learned Magistrate in the Court below did fall into error in that he has placed too much emphasis on welfare concerns with this child and concomitantly gave too little weight to the child's age, early plea, absence of criminal history, and the relatively minor nature of the offending behaviour.  I can well understand the Magistrate's thought processes, and it is quite apparent that he was trying to achieve an outcome that he considered would be in the child's best interests, something which it appears the child's mother agreed with.  But nevertheless, welfare issues can be determined and addressed by other more appropriate means, and it is not for the Court to be embarking upon issues of welfare consideration to the extent that occurred in this particular matter when it might result, or when it does result in an outcome that is inappropriate in all the circumstances. 

I have no doubt that this child does need assistance from authorities, although the true reasons for his behaviour are not apparent on any of the material before this Court.  There is quite obviously something that needs to be investigated and he should be offered every assistance in that regard.  But insofar as this offending behaviour is concerned, when one takes into account its nature, together with the fact that he was only 12 years old, had no prior convictions and pleaded guilty, then I have no doubt that an appropriate sentence in the circumstances would have been a reprimand. 

Accordingly, I set aside the probation order of the Court below and substitute an order that the child be reprimanded in relation to each of these three offences.

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