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- Unreported Judgment
CHILDRENS COURT OF QUEENSLAND
R v QTA  QChC 19
Application for sentence review
Childrens Court at Palm Island
26 July 2019
22 July 2019
Application allowed. Sentences of detention are set aside. The child is sentenced to a 6 month good behaviour bond.
CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING OF JUVENILES – PRE-SENTENCE REPORT – where a pre-sentence report existed for some but not all charges at sentence – where the child was 15 years old at the time of offending and at sentence – where the child committed an offence whilst in detention – whether a custodial sentence can be imposed on a child without a pre-sentence report
S Carter for the respondent
B Callinan for the applicant
Legal Aid Queensland solicitor for the applicant
Office of the Director of Public Prosecutions for the respondent
- The applicant was sentenced on 25 June 2019 in relation to 15 offences: assault occasioning bodily harm, possession of dangerous drugs, stealing, obstruct police officer, two charges of assault police officers, two charges of enter premises and commit an indictable offence by break, wilful damage, enter premises and commit indictable offence and five offences of trespass. He was sentenced to six months detention for the assault occasioning bodily harm with varying shorter orders of detention for the remaining offences (with the exception of the trespass charges for which he was reprimanded). There is no application made in relation to the trespass charges. The court ordered he be released after serving 50 per cent of his time in custody and no convictions were recorded.
- The child had pleaded guilty at an earlier date to 12 of the 15 offences. On the day of his sentence he was further arraigned on the charges of wilful damage, assault occasioning bodily harm and possession of dangerous drug. He pleaded guilty to those charges.
- The child was 15 at the time of the offending and sentence. He had a relevant criminal history for property offending. He had been sentenced previously to two periods of probation, one community service order, a restorative justice order and a good behaviour order. He had not previously been sentenced to detention. At the time of sentence he was subject to two 12 month probation orders imposed on 8 August 2018 and 7 March 2019. He was also subject to a 100 hour community service order. He was released from detention on 8 July 2019 having served 50% of this sentence.
- He is an Aboriginal child who has largely lived in Normanton. He was exposed to domestic violence, substance misuse, neglect and inadequate supervision during childhood. The Department of Child Safety has ongoing involvement with the family. He has an intellectual disability and works at a year 3 level with support. That intellectual disability makes it more difficult for him to tell right from wrong. He has, since his release from detention, moved to Palm Island to live with his grandfather and aunts. This removes him from his previous peer group in Normanton.
- The learned magistrate correctly assessed the assault occasioning bodily harm as the most serious offence. The victim was a child who was also in detention at the Cleveland Youth Detention Centre at the time. They were known to each other and there were issues between them. On 28 February 2019 there was a verbal argument which escalated with the child punching the victim. A co-offender then approached and also began punching the victim who fell to the ground and whilst he was on the ground they continued to kick him until staff intervened. The child was unconscious for 30 seconds. After regaining consciousness, he began speaking incoherently and then began convulsing and vomiting. He was transported to Townsville Hospital by ambulance. Clearly this is a very serious offence committed whilst he was in detention and involving a significant injury to another child. The wilful damage was also committed whilst in detention and involved them trying to flood their cells. It was therefore appropriate that the major sentence is attached to that offence. However, the child only pleaded guilty to that offence on the morning of the hearing. The magistrate questioned whether he could sentence the child to detention in relation to that offence.
- The Magistrate was aware that the pre-sentence report did not involve a consideration of the three offences to which the child pleaded guilty on the morning of sentence. At p 6 of the sentencing transcript the learned Magistrate indicated: “There hasn’t been a pre-sentence custody report ordered in relation to that has there?” (in relation to the assault occasioning bodily harm). The prosecutor indicated that there hadn’t been but the representative from Youth Justice assured the learned Magistrate that he could nonetheless sentence the child to detention if the charge was included with the other charges included in the report.
- Unfortunately this information was incorrect. In conveying that information I assume that the officer was relying on the case of R v S (2000) 2 Qd R 663 which considered the effect of s110 and s164 of the Juvenile Justice Act 1992 relating to pre-sentence reports and held that it is sufficient if the chief executive places further material before the court to be considered with another report for another sentencing on the same day.
- In 1997, s164 was in the same terms as the current s207 of the Youth Justice Act 1992, however, s110 was substantially different.
- Section 207 of the Youth Justice Act 1992, states:
“207 Pre-sentence report must be obtained before detention order sentence
A court may make a detention order against a child only if it has first—
- (a)ordered the chief executive to prepare a pre-sentence report; and
- (b)received and considered the report.”
- Section 151 of the Act provides:
“151 Pre-sentence report
- (1)A court, before it sentences a child found guilty of an offence, may order the chief executive to give to the court a pre-sentence report concerning the child.
- (2)Subject to subsection (9), the report must be made for the purpose of the sentencing of the child for the offence.
- (3)The court may request that the report contain specified information, assessments and reports relating to the child or
the child’s family or other matters.
- (4)The pre-sentence report may not contain the chief executive’s opinion on what impact an order under section 234 may have on the child.
- (5)Pending the giving of a pre-sentence report, the court may adjourn the proceeding and remand the child in custody or exercise the powers conferred by part 5 to grant bail to and release the child from custody.
- (6)In releasing the child from custody, the court may impose conditions that it considers necessary to facilitate the preparation of the pre-sentence report.
- (7)The chief executive must cause the pre-sentence report to be prepared in documentary form and given to the court promptly.
- (8)The report must be given to the court promptly, but need not be given in less than 15 business days.
- (9)For subsection (7), it is enough if the chief executive gives the court further material to be considered with another report prepared for another sentencing of the child that happens on the same day.
- The pre-sentence report is to be prepared for the sentencing of the child for the offence. Whilst ss 9 allows the court to consider further material by way of a shorter report, there is still a requirement that further material be received and that the material comply with regulations 5 and 6 of the Youth Justice Regulation 2016 . This was not done.
- His Honour was right to be concerned about the imposition of a detention order without a further report or at least without further additional material. His Honour did not actually order a pre-sentence report in relation to those charges nor did he order that further additional material be obtained, which could only have been obtained by interviewing the child.
- In those circumstances it was not within the jurisdiction of the court for the Magistrate to impose a custodial sentence on the child on the three offences to which pleas were entered on the day. Those sentences must be set aside.
- The child has now spent 90 days in custody in relation to these offences. The Magistrate rightly decided that the most serious offence was the assault which occurred in the detention centre. It is clear that the other sentences of detention were imposed because of his Honour’s view of the seriousness of the assault. Given the procedural error evident in the sentencing process and the time already served in detention it is now appropriate to set aside the sentences and order that a 6 month good behaviour bond be imposed instead.
- Published Case Name:
R v QTA
- Shortened Case Name:
R v QTA
 QCHC 19
26 Jul 2019