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Queensland Judgments
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  • Unreported Judgment

The Queen v ZLO

 

[2019] QCHC 28

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v ZLO [2019] QChC 28

PARTIES:

R

v

ZLO

(Applicant)

FILE NO/S:

345/2019

DIVISION:

Childrens Court

PROCEEDING:

Sentence review

ORIGINATING COURT:

Blackwater Childrens Court

DELIVERED ON:

19 September 2019 (delivered ex tempore)

DELIVERED AT:

Brisbane Childrens Court

HEARING DATE:

19 September 2019

JUDGE:

Dearden DCJ

ORDER:

  1. (1)
    In respect of the charge rider of a bicycle failing to wear an approved helmetonly, substitute an order that the applicant be reprimanded.
  2. (2)
    Order that the period of 12 months’ probation imposed in respect of all other matters for which the applicant was sentenced on 28 June 2019 at the Blackwater Childrens Court be vacated and an order for six months’ probation on the same terms be substituted; 
  1. (3)
    Order that the sentence from 28 June 2019 otherwise be affirmed.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – application for sentence review – where the applicant was convicted of 22 offences – where the applicant was sentenced to 12 months probation and ordered to undertake a restorative justice process – where the applicant was 12 years old at the time of offending – where the applicant had served presentence detention – whether the sentence was excessive in the circumstances  

LEGISLATION:

Youth Justice Act 1992 (Qld) s 118, s 122, s 150

COUNSEL:

B Callanan (sol) for the applicant

S McCray (sol) for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Office of the Director of Public Prosecutions for the respondent

  1. [1]
    HIS HONOUR: This is an application for sentence review by the applicant, ZLO. On 28 June 2019, the child was sentenced for 22 offences at the Blackwater Childrens Court.[1]  Those offences are set out in the application, and, for want of time, I will not read them into the record.  But they are identified in the application, and they are identified specifically at paragraph 7 of exhibit 2 (outline of submissions on behalf of the child). 
  1. [2]
    It is common ground that the charge of a ‘rider of a bicycle failing to wear an approved helmet’ is punishable only by fine and could not be included as part of a probation order. In respect of that matter, the order will be amended, and the child will be reprimanded.
  1. [3]
    The remaining matters were the subject of a 12-month probation order, and again, it is common ground that 12 months’ probation for a child who was 12 years old at the time of the majority of the offending, and had spent 38 days in pre-sentence detention, was an order that was not proportionate in the context of the child’s age, criminal history and quite substantial period in detention.
  1. [4]
    The final issue was the order that the child participate in a restorative justice conference in respect of the following matters:
  • 6 x enter dwelling and commit indictable offence (09/01/2019, 09/01/2019, 09/01/2019, 20/05/2019, 20/05/2019);
  • 1 x enter premises and commit indictable offence by break (20/05/2019);
  • 1 x enter premises with intent (6/4/2019);
  • 1 x wilful damage to property which is part of a school/education centre/college/university or other educational institution (6/4/2019)
  • 1 x stealing (06/04/2019).[2]

The law – sentence reviews

  1. [5]
    The law in respect of a sentence review is adequately canvassed at exhibit 2, paragraph 14. The relevant provisions are Youth Justice Act 1992 (Qld) (‘YJA’) s 118.  The review is to be conducted as a rehearing on the merits, and must be conducted expeditiously and with as little formality as possible.[3]  I am entitled to, and in fact have the recording of the proceedings before the Childrens Court and further submissions and affidavits before me.[4]
  1. [6]
    The relevant sentencing provisions are contained in YJA s 150.

Discussion

  1. [7]
    In particular, it is submitted (and I accept) that the learned magistrate did not place sufficient weight on the child’s young age and placed excessive weight on the child’s previous criminal history. What was pressed by Ms Callanan for the applicant, but not accepted by me, was a submission that the restorative justice order was unnecessary in the light of a previous and unserved order of a similar nature.
  1. [8]
    The respondent, represented today by Ms McCray, accepts that the penalty was excessive in terms of the period of probation, identifies (as the applicant does) the inability of the court to order that the bicycle helmet charge be included in the probation order, but resists parts of the application that would see the restorative justice order set aside.
  1. [9]
    In terms of the restorative justice order, Ms Davidson, who appears for the Department of Youth Justice, upon query by me during the course of submissions, indicated that a restorative justice conference or conferences could be structured so that the current matters and the previous matters for which an order was made on 9 November 2018 could, and would be dealt with in a way that was sensitive to the issues raised by Ms Callanan (ie, a child aged 12 potentially being confronted by a wide range of complainants in a potentially intimidating process). On that assurance that the department can and will sensitively deal with a comprehensive restorative justice conference process that minimises the potential issues raised but, at the same time, ensures that the child is confronted by the reality of what he has pleaded guilty to (which may, of course, be done by appointing a representative victim or in some other way ensuring that there is some balance in the process), I am of the view that the application for sentence review in respect of that matter only, should not be granted, but in respect of the length of probation, it should be granted.

Orders

  1. [10]
    Accordingly, I make the following orders:
  1. (1)
    In respect of the charge ‘rider of a bicycle failing to wear an approved helmet’ only, substitute an order that the applicant be reprimanded; 
  2. (2)
    Order that the period of 12 months’ probation imposed in respect of all other matters for which the applicant was sentenced on 28 June 2019 at the Blackwater Childrens Court be vacated and an order for six months’ probation on the same terms be substituted; 
  3. (3)
    Order that the sentence from 28 June 2019 otherwise be affirmed.

Footnotes

[1] The offences as contained in the Application for Sentence Review, filed 26 July 2019, are:

(1)Enter premises and commit indictable offence by break (09/01/2018);

(2)Enter dwelling and commit indictable offence (09/01/2019);

(3)Enter dwelling and commit indictable offence (09/01/2019);

(4)Enter dwelling and commit indictable offence (09/01/2019);

(5)Unlawful entry of vehicle for committing indictable offence (09/01/2019);

(6)Unlawful use of a motor vehicles, aircraft or vessels (09/01/2019);

(7)Escape by persons in lawful custody (17/03/2019);

(8) Obstruct police officer (17/03/2019);

(9)Obstruct police officer (17/03/2019);

(10)Enter premises and commit indictable offence (03/03/2019);

(11) Commit public nuisance (17/03/2019);

(12)Rider of bicycle fail to wear approved helmet (17/03/2019);

(13) Enter dwelling and commit indictable offence (17/03/2019);

(14) Enter premises with intent (06/04/2019);

(15)Wilful damage to property which is part of a school/education centre/ college/ university or other educational institution (06/04/2019);

(16) Stealing (06/04/2019);

(17)Trespass – entering or remaining in yard or place for business (06/04/2019);

(18)Attempted enter dwelling with intent (22/04/2019);

(19)Enter dwelling and commit indictable offence (20/05/2019);

(20)Enter dwelling and commit indictable offence (20/05/2019);

(21)Enter premises and commit indictable offence by break (20/05/2019); and

(22)Enter premises with intent (26/05/2019).

[2] Exhibit G – Affidavit of Bridget Callanan, affirmed 2 September 2019.

[3] Youth Justice Act 1992 (Qld) ss 122(1), 122(3).

[4] Youth Justice Act 1992 (Qld) s 122(2).

Close

Editorial Notes

  • Published Case Name:

    The Queen v ZLO

  • Shortened Case Name:

    The Queen v ZLO

  • MNC:

    [2019] QCHC 28

  • Court:

    QChc

  • Judge(s):

    Dearden DCJ

  • Date:

    19 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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