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Queensland Judgments
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  • Unreported Judgment

The Queen v EOA; The Queen v WQP

 

[2019] QCHC 29

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v EOA; R v WQP [2019] QChC 29

PARTIES:

In File No 400 of 2019:

R

v

EOA

(Applicant)

In File No 401 of 2019:

R

v

WQP 

(Applicant)

FILE NO/S:

400/2019

401/2019

DIVISION:

Childrens Court

PROCEEDING:

Sentence review

ORIGINATING COURT:

Atherton Childrens Court (400/2019)

Mareeba Childrens Court (401/2019)

DELIVERED ON:

20 September 2019 (delivered ex tempore)

DELIVERED AT:

Brisbane Childrens Court

HEARING DATE:

20 September 2019

JUDGE:

Dearden DCJ

ORDER:

With respect to Applicant EOA:

  1. (1)
    Application for sentence review granted;
  2. (2)
    Set aside all sentences imposed in respect of the offences for which the applicant was sentenced on 1 August 2019.
  3. (3)
    Substitute an order that all offences be dealt with by way of a restorative justice process under section 175(1)(db) of the Youth Justice Act 1992 (Qld), with the conditions as per Youth Justice Act 1992 (Qld) s 192B, effective as of 20 September 2019.

With respect to Applicant WQP:

  1. (4)
    Application granted; 
  2. (5)
    Time for filing of the sentence review by WQP from the sentence imposed on 17 July 2019 at the Mareeba Childrens Court, be extended to 21 August 2019.
  3. (6)
    Application for sentence review granted.
  4. (7)
    Set aside all sentences imposed in respect of the offences for which the applicant child was sentenced on 17 July 2019 at the Mareeba Childrens Court.
  5. (8)
    Substitute a single order for nine months’ probation in respect of all of the matters, the subject of the application for sentence review.
  6. (9)
    No convictions recorded in respect of all matters.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – application for sentence review by two applicants – where each applicant was sentenced to six months detention to be served by way of a conditional release order for assault occasioning bodily harm in company – where each applicant was sentenced to 12 months’ probation for several property and driving offences – where each applicant had a traumatic childhood – whether the sentence was excessive in the circumstances  

LEGISLATION:

Youth Justice Act 1992 (Qld) s 118, s 122, s 150, s 150(2)(e), s 175(1)(db), s 192B 

CASES:

R v SCU [2017] QCA 198

COUNSEL:

D Law (sol) for the applicants EOA and WQP

S Rigby (sol) for the respondent to the application by EOA

M Andronicus (sol) for the respondent to the application by WQP

SOLICITORS:

Legal Aid Queensland for the applicants

Office of the Director of Public Prosecutions for the respondents

  1. [1]
    HIS HONOUR: This is a decision in respect of the applications for sentence review by the applicants WQP and EOA, arising out of sentences imposed in the Mareeba Childrens Court and Atherton Childrens Court respectively.
  1. [2]
    The applicant WQP was sentenced by the learned Childrens Court Magistrate on 17 July 2019 at Mareeba Childrens Court in respect of the following matters:
  1. (1)
    assault occasioning bodily harm in company (30/03/2019); 
  2. (2)
    enter premises and commit an indictable offence (x2) (08/05/2019); 
  3. (3)
    unlawful use of a motor vehicle (08/05/2019); 
  4. (4)
    unlicensed driving (08/05/2019); 
  5. (5)
    unlawful use of a motor vehicle (x2) (12/05/2019); 
  6. (6)
    unlicensed driving (x2) (12/05/2019); 
  7. (7)
    enter dwelling and commit an indictable offence (12/05/2019).
  1. [3]
    The applicant WQP was sentenced to six months detention, to be served by way of a three-month conditional release order in respect of the assault occasioning bodily harm in company charge;[1] and a 12-month probation order in respect of the remaining offences.[2]  Convictions were not recorded.
  1. [4]
    The application for the review of sentence is filed out of time. Given the clear merit in the application, there is agreement at the bar table that leave should be granted in respect of the application for review out of time.
  1. [5]
    In respect of that application for extension of time, I make the following orders:
  1. (1)
    Application granted; 
  2. (2)
    Time for filing of the sentence review by WQP from the sentence imposed on 17 July 2019 at the Mareeba Childrens Court, be extended to 21 August 2019.
  1. [6]
    The applicant EOA applies for a sentence review in respect of the following matters:
  1. (1)
    assault occasioning bodily harm in company (30/03/2019); 
  2. (2)
    enter premises and commit an indictable offence (x2) (08/05/2019); 
  3. (3)
    wilful damage (08/05/2019); 
  4. (4)
    unlawful use of a motor vehicle (08/05/2019).
  1. [7]
    The applicant EOA pleaded guilty to the assault occasioning bodily harm in company charge on 24 April 2019[3] and the balance of the charges on 25 June 2019[4] and was sentenced on 1 August 2019.  The applicant was sentenced to six months detention, to be served by way of a three-month conditional release order in respect of the offence of assault occasioning bodily harm in company,[5] and was sentenced to 12 months’ probation for the remaining four offences.[6]  No convictions were recorded for any of the matters.

The Law – Sentence Reviews

A Childrens Court Judge may review the sentence order of a Childrens Court Magistrate, pursuant to Youth Justice Act 1992(Qld) (‘YJA’) s 118.  The review is to be conducted as a rehearing on the merits and should be conducted as expeditiously and with as little formality as possible.  This court is entitled to have regard to the record and any further submissions in evidence by way of affidavit or otherwise.[7]

The Law – Sentencing Children

  1. [8]
    The sentencing principles of the Youth Justice Act are contained in YJA s 150.  In particular, YJA s 150(2)(e) provides:

a detention order should be imposed only as a last resort and for the shortest appropriate period.”

  1. [9]
    In respect of each of the applicants, it is submitted that the sentence imposed was excessive in the circumstances.
  1. [10]
    In respect of the applicant WQP, it is submitted that the learned magistrate:

“…did not place sufficient weight on the child’s age, their lack of criminal history, their antecedents and the principle that detention should only be imposed as a last resort.”[8] 

  1. [11]
    In respect of the applicant EOA, it is submitted:

“…that the Magistrate did not place sufficient weight on the applicant’s age, lack of criminal history, the applicant’s antecedents, the early plea of guilty and the matters in the applicant’s favour.”[9] 

  1. [12]
    Mr Law, who appears for the applicant EOA, orally confirms the additional submission that the sentence breached the principle that detention should only be imposed as a last resort on a child offender.
  1. [13]
    The learned sentencing magistrate, despite receiving comprehensive pre-sentence reports in respect of each applicant, which outlined in each case significant issues of abuse, neglect and traumatic background, proceeded on a basis that, in respect of the assault occasioning bodily harm charge, the starting point was an order for detention.

Applicant WQP

  1. [14]
    I’m advised that the sentencing remarks have not arrived for applicant WQP, but the outcome (as indicated in the application) was the imposition of a detention order (to be served by way of a conditional release order) in respect of the assault charge.  During the course of submissions, the learned sentencing magistrate made a comment which (inferentially) indicated his consideration of a detention order, in which he says:

“I’ve got in mind a place in Townsville for him actually.”[10] 

This was clearly a reference to a detention order at Cleveland Youth Detention Centre in Townsville. 

  1. [15]
    The lack of criminal history, the significant issues raised in the pre-sentence report for a child who had been under the care of Child Safety since the age of two, starting with physical abuse and neglect, and then some 15 primary and 40 respite placements,[11] together with the lack of criminal history, that history of trauma, all resulted in the imposition of a detention order, which should only have been imposed as a sentence of last resort[12] but, in fact, was (it appears) the first option utilised by the learned sentencing magistrate.

Applicant - EOA

  1. [16]
    In respect of the applicant, EOA, the pre-sentence report indicates again a childhood tainted by abuse and neglect, with avoidance strategies, which include failure to attend school and abuse of alcohol and cannabis, but at 15, with both offence and sentence, the child had no criminal history.[13] 

Discussion

  1. [17]
    In respect of both applicants, the learned sentencing magistrate appears to have failed to follow the approach identified by the Court of Appeal in R v SCU [2017] QCA 198 [53], where the court noted:

“At the forefront of the strictures imposed by the Act is the obligation of a court to consider all other options that are reasonably available before imposing a sentence of detention.”

  1. [18]
    In all of the circumstances, I’m satisfied in respect of each of the applicants, WQP and EOA, that the sentence imposed was excessive.  There was a clear error in the imposition of a detention order, in that the learned magistrate did not consider that detention order as a sentence of last resort. 
  1. [19]
    In addition, the probation orders imposed were set at the maximum of 12 months in respect of the applicant, WQP, and in respect of the applicant, EOA, for the balance of offences in respect of each of them. 
  1. [20]
    After considering the material and submissions, and in the light of the concessions by the respondent in respect of both applicants, I’m of the view that the appropriate sentence in respect of all of the offences the subject of the application by WQP, would be a probation order fixed at nine months’ probation.  I accept the submission that the seriousness of the offenders’ conduct, the applicants’ culpability and, of course, the number of offences committed over the period between 30 March and 12 May 2019 require some reasonably substantial period of supervision.  That, of course, is balanced against the lack of criminal history and the matters identified in the pre-sentence report.
  1. [21]
    In respect of the applicant, EOA, the submission is made that rather than a probation order at this stage of his life, that an order should be made that the matter be referred to a restorative process under the YJA s 175(1)(db), which will have the effect that the applicant is subject to the provisions of YJA s 192B. 
  1. [22]
    As I understand the effect of those requirements, they mirror the provisions of a probation order, but without a fixed period, so that the restorative justice conference process can be followed. The Department of Youth Justice Chief Executive is then able to supervise the applicant through the process and through any follow-up, concluding that process before a period of 12 months, but ensuring that the child complies with those probation-like requirements until the conclusion of the child’s obligations pursuant to the restorative justice conference process.

Orders

  1. [23]
    Accordingly, I make the following orders in respect of the applicant, WQP:
  1. (1)
    Application for sentence review granted.
  2. (2)
    Set aside all sentences imposed in respect of the offences for which the applicant child was sentenced on 17 July 2019 at the Mareeba Childrens Court.
  3. (3)
    Substitute a single order for nine months’ probation in respect of all of the matters, the subject of the application for sentence review.
  4. (4)
    No convictions recorded in respect of all matters.
  1. [24]
    In respect of the applicant, EOA, the following orders are made:
  1. (1)
    Application for sentence review granted;
  2. (2)
    Set aside all sentences imposed in respect of the offences for which the applicant was sentenced on 1 August 2019.
  3. (3)
    Substitute an order that all offences be dealt with by way of a restorative justice process under section 175(1)(db) of the Youth Justice Act 1992 (Qld), with the conditions as per Youth Justice Act 1992 (Qld) s 192B, effective as of 20 September 2019.

Footnotes

[1] Exhibit A - Affidavit of David Law, sworn 17 September 2019.

[2] Exhibit B - Affidavit of David Law, sworn 17 September 2019.

[3] Pre-sentence Report dated 6 June 2019 - Exhibit C - Affidavit of David Law, sworn 16 September 2019.

[4] Addendum Pre-sentence Report dated 5 July 2019 - Exhibit C - Affidavit of David Law, sworn 16 September 2019.

[5] Exhibit B - Affidavit of David Law, sworn 16 September 2019.

[6] Exhibit A - Affidavit of David Law, sworn 16 September 2019.

[7] Youth Justice Act 1992 (Qld) s 122.

[8] Outline of submissions on behalf of the child, filed 17 September 2019 (Exhibit 2), [10.2].

[9] Outline of submissions on behalf of the child, filed 17 September 2019 (Exhibit 5), [10.2].

[10] Transcript 1-6, l 32 – Exhibit E – Affidavit of David Law, sworn 17 September 2019.

[11] Exhibit C - Affidavit of David Law, sworn 17 September 2019, p. 3.

[12] Youth Justice Act 1992 (Qld) s 150(2)(e).

[13] Exhibit C - Affidavit of David Law, sworn 16 September 2019, pp. 3-4.

Close

Editorial Notes

  • Published Case Name:

    The Queen v EOA; The Queen v WQP

  • Shortened Case Name:

    The Queen v EOA; The Queen v WQP

  • MNC:

    [2019] QCHC 29

  • Court:

    QChc

  • Judge(s):

    Dearden DCJ

  • Date:

    20 Sep 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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