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Queensland Judgments
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  • Unreported Judgment

R v LKB

 

[2019] QCHC 31

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v LKB [2019] QChC 31

PARTIES:

R

v

LKB

(Applicant)

FILE NO/S:

236/2019

DIVISION:

Childrens Court

PROCEEDING:

Sentence review

ORIGINATING COURT:

Gladstone Childrens Court

DELIVERED ON:

26 July 2019 (delivered ex tempore)

DELIVERED AT:

Brisbane Childrens Court

HEARING DATE:

26 July 2019

JUDGE:

Dearden DCJ

ORDER:

  1. (1)
    Application for sentence review is granted.
  1. (2)
    The sentence of three months detention to be served by three months conditional release order, imposed on 3 May 2019, be discharged. 
  1. (3)
    The 12 months’ probation order imposed in respect of the offences of commit public nuisance, driving without a license and 3 x stealing, be ordered to also include the offence of threatening violence. 
  1. (4)
    Further, that the probation order be varied to remove the two special conditions imposed on 3 May 2019, namely:
  1. (a)
    The child and his mother shall maintain a logbook of [LKB’s] compliance with his medication regime and that such logbook shall be produced to Youth Justice upon their request and to the Court every month; and
  1. (b)
    Must report to the Childrens Court at Gladstone for the first Childrens Court sittings date of each and every month for the duration of this order.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – application for sentence review – where the applicant was sentenced to three months’ detention to be served by way of a conditional release order for one charge of threatening violence – where the applicant was sentenced to 12 months’ probation and 80 hours of community service for five other offences – where the applicant had demonstrated an IQ and other cognitive abilities in the ‘Extremely Low’ range – whether the special conditions imposed on the probation order were within the power of the learned sentencing magistrate – whether the sentence was excessive in the circumstances  

LEGISLATION:

Youth Justice Act 1992 (Qld) s 118, s 122, s 150, s 193, s 208, Principle 17

COUNSEL:

D Law (sol) for the applicant

M Andronicus (sol) for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Office of the Director of Public Prosecutions for the respondent

  1. [2]
    HIS HONOUR: This is a sentence review in respect of a sentence imposed on the child LKB by the learned magistrate at the Gladstone Childrens Court on 3 May 2019 in respect of the following offences:
  1. Commit public nuisance (03/03/2019);
  2. Driving without a licence (10/12/2018);
  3. Stealing (23/12/2018);
  4. Stealing (24/12/2018);
  5. Stealing (24/12/2018); and
  6. Threatening violence (26/03/2019).
  1. [3]
    The child entered pleas of guilty on 27 March 2019, and a pre-sentence report was ordered. The sentence proceeded, as indicated, on 3 May 2019, and the application for review was filed on 24 May 2019.
  1. [4]
    The sentence in respect of the threatening violence charge was a sentence of three months detention, to be served by way of a conditional release order. The sentence in respect of the remaining five charges (public nuisance, driving without a licence and 3 x stealing) was a sentence of 12 months’ probation and 80 hours community service.
  1. [5]
    The circumstances of the offences are briefly set out in the Outline of Submissions on behalf of the child at [7.1], as follows:

Date

Offence

Facts

10 December 2018

Drive without a licence

The child admitted to police that he was riding a motorbike in the area of Busteed Street, Gladstone when he was not the holder of a licence.

23-24 December 2018

3 x stealing

The child was a passenger in his sister’s vehicle when he attended at three petrol stations and pumped fuel into the vehicle before his co-offender drove off without paying.  He made full admissions to the offences.

3 March 2019

Commit public nuisance

The applicant approached the police and told them he was “no snitch” and swore at them.  Police observed customers from a Coles supermarket nearby.

26 March 2019

Threaten violence

The applicant was in the grounds of Gladstone State High School.  He was approached by a groundskeeper and asked to identify himself.  The applicant refused to either identify himself or go to the office.  The applicant told the groundskeeper he had a gun and that he was there to shoot someone before placing his hand in the bag he was carrying.  The groundskeeper negotiated with the applicant and they attended the school office.  A search of his bag revealed that the applicant did not have a gun.  The applicant was collected from the school by a worker from Youth Justice.

  1. [6]
    The power of a Childrens Court judge of this court to review the sentence of a Childrens Court magistrate is contained in Youth Justice Act 1992 (Qld) (“YJA”) s 118.  The review is a rehearing on the merits, must be conducted expeditiously and with as little formality as possible, and this court is entitled to have regard to a record of the Childrens Court proceedings and any further submissions and evidence by way of affidavit or otherwise.[1] 
  1. [7]
    In particular, in this matter, the affidavit of David Law, sworn 10 July 2019, annexes the verdict and judgment record, the applicant’s criminal history, the pre-sentence report, and the transcript of sentencing submissions and sentencing remarks from 3 May 2019 at the Gladstone Childrens Court. Further, however, the affidavit of David Law, sworn 22 July 2019, contains a copy of the sentencing schedule referred to in the transcript of proceedings, an email which was referred to as ‘exhibit 5’ in the transcript of proceedings, and, of significance in my view, what is arguably “fresh evidence,” being a confidential guidance report conducted on 3 June 2015, which was, it appears, referred to during the course of submissions, but critically, in terms of this sentence review, identifies the current full-scale score of the applicant’s intellectual ability as falling within the “extremely low range.” It further notes:

“All four composite scores: Verbal Comprehension, Perceptual Reasoning, Processing Speed and Working Memory Indices scored in the Extremely Low range.  [LKB’s] Full Scale IQ scored in the extremely low range, and ABAS-II also scored in the Extremely Low range.”[2]

  1. [8]
    If it is necessary to make an order, I conclude that that material, which may well have been at least indirectly before the learned sentencing magistrate, be considered as “fresh evidence” in this sentence review.
  1. [9]
    The applicant submits, and I accept, that this court, in reviewing the sentence imposed by the learned sentencing Childrens Court magistrate, must take into account the sentencing principles in YJA s 150. In particular, the submission is made that the court must have regard to s 150(1)(k), which requires:

“...the fitting proportion between the sentence and the offence.”

  1. [10]
    Further, YJA s 150(2)(e) provides:

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

  1. [11]
    The review seeks to identify the excessive aspects of the sentence in respect of two matters, namely, the imposition of a detention order to be served by way of a three-month conditional release order (“CRO”) in relation to the threaten violence charge, but also in respect of two specific conditions placed on the applicant’s probation order, namely:
  1. (a)
    The child and his mother shall maintain a logbook of [LKB’s] compliance with his medication regime and that such logbook shall be produced to Youth Justice upon their request and to the Court every month;  and
  1. (b)
    Must report to the Childrens Court at Gladstone for the first Childrens Court sittings date of each and every month for the duration of this order.[3]
  1. [12]
    The probation order, with the special conditions that I have just identified, was imposed, as noted, in respect of all of the offences save the threatening violence offence. That offence incurred the three-month detention order to be served by way of a three-month conditional release order.
  1. [13]
    It is clear that the learned Childrens Court magistrate was motivated to impose a sentence that, as best as possible, reduced the risk of the applicant reoffending, and noted the benefits that had flowed from some of the conditions of the bail program, on which the applicant had been placed pending his sentence.[4]
  1. [14]
    The imposition of a detention order, as the applicant submits, is governed by the provisions of YJA s 150, s 208 and Principle 17. In particular, I note that although the effect of the detention order was ameliorated by the conditional release order, it remains a detention order, which is clearly a sentence of last resort, and in the context of the report which identified the applicant’s IQ as being in the “extremely low range,” the imposition of a detention order, even by way of a conditional release order, which, if breached, could lead to the applicant actually serving a significant period of detention, must be of significant concern both to a sentencing Childrens Court magistrate and, of course, this court on a review of such a sentence.
  1. [15]
    I accept the submission that the nature of the offence of threatening violence, in the context of a troubled child with an intellectual disability and other significant deficits, was not a serious example of its kind, and, as concerning as it may have been, was an offence for which the imposition of a detention order was by no means the proportionate sentence.[5] 
  1. [16]
    The applicant’s counsel, Mr Law, in his written submissions identifies the magistrate’s desire to impose a sentence that provided more intensive supervision, but the risk, as Mr Law identifies further in his submissions, is that the detention order has been used primarily for welfare or supervision reasons without a careful consideration of the provisions of the YJA and the retention of the imposition of a sentence of detention as a sentence of last resort.[6]
  1. [17]
    The learned magistrate was not, unfortunately, assisted by the submissions made by the applicant’s legal representative at sentence. Those submissions were, at best, confusing, jumbled, and poorly articulated and appear not to have grappled with the complexity of this applicant, with his significant medical, intellectual and family difficulties, and accordingly provided little practical assistance to a learned Childrens Court magistrate seeking to find the best solution to ensure this child is appropriately supervised and his risk of reoffending is reduced as much as possible.[7] 
  1. [18]
    In that respect, it was acknowledged that since the child had been regularly taking his medication, pursuant to the conditions of his bail, his behaviour had de-escalated.[8]  That, however, would not of itself warrant the condition placed on the applicant’s probation order which, in any event, to the extent that it purported to bind the applicant’s mother, was beyond the power of the learned magistrate pursuant to YJA s 193(2), which relevantly provides:

“A probation order made against a child may contain requirements that the child must comply during the whole or part of the probation period with conditions that the court considers necessary or desirable for preventing –

  1. (a)
    a repetition by the child of the offence in relation to which the order was made;  or
  2. (b)
    the commission by the child of other offences.”
  1. [19]
    To the extent that the condition which I have outlined on the probation order purported to bind the child’s mother, it is beyond power. To the extent that it was relevant to the child, given the child’s intellectual disability, it is at best unhelpful and is more appropriately dealt with by way of directions from the Chief Executive pursuant to YJA s 193(1)(b)(iii).
  1. [20]
    I leave open the issue as to whether the learned Childrens Court magistrate was able to impose a condition requiring the attendance of a child at the Childrens Court sittings on a monthly basis for the duration of probation. Although not argued before me, there are precedents – at least in other states of which I am aware – for the use of such an order as a condition in probation orders to effectively permit the sentencing magistrate to continue to overview the conduct of the probation order by a probationer.
  1. [21]
    Mr Law, in his oral submissions, expresses the concern that this is a blurring of the role between the judiciary and the executive and contrasts the position under the Youth Justice Act with that under the Drug Court legislation, where such supervision is not only available but, of course, mandated. I acknowledge those concerns but reach no concluded position in respect of the matter. That being said, in the context of this child with his extremely low IQ, my concern is that the more intensive supervision, if appropriate, that this child requires, is best carried out, in the circumstances of these matters, by the Chief Executive rather than the learned Childrens Court magistrate.
  1. [22]
    It follows from these observations that in my view, the sentence order of three months detention to be served by way of a three month conditional release order was a disproportionate sentence in respect of the threatening violence offence, and further that the two special conditions imposed by the learned magistrate were either beyond power (at least in part) and/or inappropriate in the circumstances of this offender and these offences.
  1. [23]
    I stress (as Mr Law stressed to me in submissions) that there is no doubt in this matter that the learned sentencing magistrate was seeking to find the best possible solution to the very difficult issues raised by the sentence of this child, but in doing so, has, in Mr Law’s submission and in my view, imposed a sentence that was either disproportionate (in respect to the threatening violence), and/or beyond power (in respect of the purported imposition of a sentence binding the applicant’s mother) and/or inappropriate (given the material before me relevant to the applicant’s intellectual functioning).

Orders

  1. [24]
    In all of the circumstances then, I make the following orders:
  1. the application for sentence review is granted.
  1. that the sentence of three months detention to be served by three months conditional release order, imposed on 3 May 2019, be discharged. 
  1. that the 12 months’ probation order imposed in respect of the offences of commit public nuisance, driving without a license and 3 x stealing, be ordered to also include the offence of threatening violence. 
  1. further, that the probation order be varied to remove the two special conditions imposed on 3 May 2019, namely:
  1. (a)
    The child and his mother shall maintain a logbook of [LKB’s] compliance with his medication regime and that such logbook shall be produced to Youth Justice upon their request and to the Court every month; and
  1. (b)
    Must report to the Childrens Court at Gladstone for the first Childrens Court sittings date of each and every month for the duration of this order.
  1. [25]
    I note by way of post-script that I recommend that the Chief Executive, in his or her independent assessment of the situation of this child, undertake the supervision of the child with due regard for the intent of the learned sentencing magistrate’s sentence and probation conditions, but do so, of course, within the limits of their power pursuant to YJA s 193.

Footnotes

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

[2] Exhibit C – Affidavit of David Law, sworn 22 July 2019, 10.

[3] Exhibit A – Affidavit of David Law, sworn 10 July 2019, 2.

[4] Exhibit E – Affidavit of David Law, sworn 10 July 2019. 

[5] Outline of Submissions on behalf of the child, filed 22 July 2019, [12.10].

[6] Outline of Submissions on behalf of the child, filed 22 July 2019, [13.1]-[13.3].

[7] Outline of Submissions on behalf of the child, filed 22 July 2019, [11.2].

[8] Outline of Submissions on behalf of the child, filed 22 July 2019, [12.8].

Close

Editorial Notes

  • Published Case Name:

    R v LKB

  • Shortened Case Name:

    R v LKB

  • MNC:

    [2019] QCHC 31

  • Court:

    QChC

  • Judge(s):

    Dearden DCJ

  • Date:

    26 Jul 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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