WCM v The Queen

[2013] QChC 15

CHILDRENS COURT OF QUEENSLAND

CITATION:

WCM  v The Queen [2013] QChC 15

PARTIES:

WCM

(Applicant)

v

The Queen

(Respondent)

FILE NO/S:

CCJ 10/13

DIVISION:

Criminal

PROCEEDING:

Sentence Reviews

ORIGINATING COURT:

Magistrates Court of Hopevale

DELIVERED ON:

19 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

19 April 2013

JUDGE:

Farr SC DCJ

ORDER:

The application is allowed.

The order of the Magistrates Court is discharged and I substitute a reprimand as the appropriate sentence.

The order that no conviction be recorded should remain.

CATCHWORDS:

APPLICATION FOR SENTENCE REVIEW – Childrens Court of Queensland – Youth Justice Act 1992 (Qld) – section 119 – section 121 – where applicant pleaded guilty – where applicant dealt with at the same time as applicant’s sister – where applicant’s sister facing identical charges – where applicant and sister were each sentenced to six months probation – whether parity principles were offended by sentence imposed – where sentence failed to reflect the significant distinguishing features of the applicant’s role in the offences

SOLICITORS:

D Law for the applicant

S Baso for the respondent

HIS HONOUR: This is an application for sentence review pursuant to sections 119 and 121 of the Youth Justice Act of 1992. The applicant was convicted after pleading guilty in the Children’s Magistrates Court at Hopevale of one count of affray and one count of possession of implements that were to be used in relation to particular offences. That plea of guilty occurred in November last year. The offending behaviour occurred on the 23^rd of September last year.  She was ordered to perform six months probation in relation to those offences and no convictions were recorded against her.

At the time of those offences the applicant was only 11 years of age and is still only 11 years of age today.  Significantly, she has no previous criminal history.  She was dealt with at the same time as her older sister, who was facing identical charges arising from the same incident.  Her older sister was 15 years of age at the time of sentence, 14 at the time of offending, and her sister had a criminal history which included offences of common assault and public nuisance. 

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HIS HONOUR:   It appears that the sister was only convicted of the charge of affray.

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HIS HONOUR:   Her sister had been the recipient of two previous good behaviour bonds and subsequently received that six month probation order in relation to this matter. 

The application for review has, as its basis, the submission that parity principles have been offended in the sentences that were imposed upon the two girls and that distinguishing features between them should properly have resulted in quite distinct sentences being imposed.  I agree with that submission. 

For the purposes of explaining my view in that regard I need to place the relevant facts regarding these offences on the record. The applicant was with her sister at an

intersection in Hopevale; the sister clenched her fist and struck an adult female and a fight then ensued between those two, during which they each struck each other several times and ended up on the ground; the adult female at one stage kicked the applicant’s sister in the chest when she was on the ground, I’m not sure whether it was one or more times; the fight then developed into an affray involving another six to eight persons and about 50 on-lookers; the adult female gained the advantage over the applicant’s sister and at that time the applicant began to strike and kick at the adult female, while she was on the ground still struggling with the sister; the sister also punched the adult female whilst she was in that position; the fight began to slow down a bit then erupted again, and at that time the applicant handed her sister a stick, that was somewhere between 30 to 45 centimetres long, and her sister then used that to strike another female to the face, and it was accepted that the stick was supplied for that purpose. 

Some video footage of this incident revealed that the sister incited violence by yelling abuse, throwing rock type objects at others and using that stick to strike someone with.  When questioned by police, this applicant declined to participate in an interview after receiving legal advice and there was no evidence as to any injuries that might have been sustained as a result of this incident.

Now, that brief summary of facts immediately identifies some significant distinguishing features between the case against the applicant and that against her sister.  The applicant was only 11 years of age at the time, her sister was 14.  The applicant had no prior criminal history, her sister had been to Court twice previously, and has been the subject of two separate good behaviour bonds.  The applicant did not instigate this incident, her sister did.  The applicant did not, on the facts that have been presented to me, inflict violence personally on any other person, her sister did.  The applicant did not incite others to become involved, her sister did.  And the applicant’s initial involvement would seem to have been instigated by her perception that her sister was losing the fight that she was having and that she went to her sister’s aid.  I note, of course, that the applicant did provide the stick to her sister for the purposes of hitting someone with it but, of course, she didn’t use it herself.  Now, the learned Magistrate was seized of all these facts, but nevertheless, ultimately took

the view that a six month probation order for each of the girls was the appropriate order in all the circumstances. 

It’s been submitted on behalf of the applicant that a six month probation order for an 11 year old in these circumstances is manifestly excessive, and it’s been submitted that it is not a sentence that survives the parity test when one looks at the sentence imposed upon her sister.  I tend to agree with both of those submissions, although I note that, for the purposes of a review, it’s not necessary for this Court to find error on the part of the Court below.  Nevertheless, the failure to reflect the significant distinguishing features between the two girls is an error and the proper consideration of those features should have resulted in a lesser sentence being imposed upon the applicant.  The respondent has presented written submissions as to why the order that was imposed was appropriate in all the circumstances, although Mr Baso in Court today has quite properly and quite fairly acknowledged that his argument has a number of problems and he hasn’t strenuously argued the respondent’s position.  That was a very sensible approach to the matter. 

I should note as well, for the record, that the learned Magistrate did not receive particularly helpful submissions from the applicant’s legal representative.  No submissions were made as to the appropriateness of non-supervised orders, and on my reading of the material, no submissions were made as to the significance of the distinguishing features between the two defendants that were appearing before the Magistrate at that time.

One suspects that the Magistrate, perhaps knowing local circumstances, was hoping to achieve a peaceful resolution for Hopevale in that this incident seemed to have, as its genesis, hostility between two family groups, and it may well be that that local knowledge played some role in assisting the Magistrate to determine what might be considered an appropriate sentence.  One can well understand why that might be the case.  But it would seem that it was unnecessary if, in fact, that did occur, because I have been provided with material this morning which shows that the probation order imposed upon the applicant’s sister has resulted in the applicant voluntarily involving

herself, with other family members, in aggression replacement therapy which has been administered through the case worker for the applicant’s sister.

I note that the family has been engaging very well in that program, and that includes the applicant, and that the family have been actively engaged in, and have chased up, appointments with Youth Justice and there is only two weeks left to complete on that program.  I note also that police have held mediation between the two families and the response from the W’s was considered to be excellent. 

So in that regard it would seem that the probation order for the sister had what many might consider to be the desired effect for the entire family, including the applicant.  But having taken all those matters into account I predominantly come back, of course, to the significant distinguishing features between the applicant and her sister which on any view of the evidence should have resulted in a quite distinct sentence being imposed upon the applicant. 

Given that she was only 11 years of age at the time with no criminal history whatsoever in my view a reprimand would have been an appropriate order for the applicant.  Given her voluntary involvement in her sister’s probation program my view in that regard is strengthened.  So, accordingly, for those reasons I order that the order of the Magistrate’s Court be discharged and I substitute a reprimand as the appropriate sentence in this matter.  The order that no conviction be recorded should remain.
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HIS HONOUR:   I meant to say with the exception of going to her sister’s defence.