Loading...
Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

The Queen v BHJ

 

[2019] QCHC 39

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v BHJ  [2019] QChC 39

PARTIES:

R

v

BHJ

(Applicant)

FILE NO/S:

414/2019

DIVISION:

Childrens Court

PROCEEDING:

Sentence review

ORIGINATING COURT:

Townsville Childrens Court

DELIVERED ON:

6 November 2019 (delivered ex tempore)

DELIVERED AT:

Brisbane Childrens Court

HEARING DATE:

6 November 2019

JUDGE:

Dearden DCJ

ORDER:

  1. (1)
    Application for sentence review granted. 
  2. (2)
    Set aside the sentence of one month detention to be served by way of a conditional release order for three months in respect of the two offences of stealing (8 June 2019 and 10 June 2019) imposed in the Townsville Childrens Court on 7 August 2019. 
  3. (3)
    Substitute an order for 12 months probation in respect of both offences. 
  4. (4)
    No convictions are recorded.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – application for sentence review – where the applicant was sentenced to one month detention to be served by way of a conditional release order for two charges of stealing – where a presentence report was only ordered for one charge of stealing – where the presentence report outlined the difficulties of the applicant’s childhood – where the applicant had an extensive criminal history – whether the sentence was excessive in all the circumstances  

LEGISLATION:

Youth Justice Act 1992 (Qld) s 118, s 122, s 150, s 207

COUNSEL:

R Gill (sol) for the applicant

A Bryan (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 in respect of two charges of stealing committed on 8 June 2019 and 10 June 2019, for which the defendant was sentenced on 7 August 2019 at the Townsville Childrens Court to an order of one month detention to be served by way of a conditional release order for three months.[1] 
  1. [2]
    The applicant was born on 11 July 2002, was 16 at the time of the offending and 17 at sentence, and has a relevant criminal history.[2]  In particular, the applicant was sentenced on 19 March 2019 to a combination of 16 months probation and 100 hours community service.[3]  The probation expires on 18 July 2020 and the community service order expires on 18 March 2020, unless completed earlier.  The child has completed at least 56.25 hours of the community service order.[4]
  1. [3]
    The circumstances of the offending are set out in the Outline of Submissions on behalf of the child at [7.1]. In brief summary, the applicant, together with another offender, followed the complainant to her car at a shopping centre, and stole the complainant’s wallet which was on top of her handbag in a pram-basket while she was transferring her child to her vehicle. The wallet contained various cards and $85 cash.
  1. [4]
    The stealing on 10 June 2019 was of a bicycle from a bike rack at a shopping centre in Townsville.

The law – sentence reviews

  1. [5]
    The power of this court to review a sentence order of a Childrens Court magistrate is contained in Youth Justice Act 1992 (Qld) (‘YJA’) s 118.  Such a review is a rehearing on the merits, should be conducted expeditiously and with as little formality as possible, and this court is entitled to have regard to the record of the Childrens Court proceeding and any further submissions and evidence by way of affidavit or otherwise.[5]

The law – sentencing children

  1. [6]
    The relevant sentencing principles are contained in YJA s 150.

Grounds of review

  1. [7]
    It is submitted that the sentence order imposed was excessive and the magistrate placed insufficient weight on the personal circumstances of the child and placed disproportionate weight on the child’s criminal history.[6] 
  1. [8]
    Further, the detention order by way of a conditional release order in respect of the second charge of stealing was unlawful, because no pre-sentence report had been prepared in respect of that second charge, given that the child was not arraigned until the day of sentence.[7] 
  1. [9]
    The court is required to have both received and reviewed a pre-sentence report, pursuant to YJA s 207, before making a detention order. The learned magistrate clearly fell into error in failing to comply with this requirement of the Act.

Discussion

  1. [10]
    In oral submissions, Mr Gill who appears on behalf of the applicant, agreed with my observation that the learned magistrate appears, in approaching the sentence, to have placed too much weight on the character of the offending (although it has some parallels with a robbery, it was not, in fact, charged as a robbery), but was a stealing (in terms of the offence on 8 June 2019). The stealing of the bicycle on 10 June 2019 was an offence that, on any view, did not warrant being included as part of a detention order.
  1. [11]
    Conversely, as Mr Gill’s outline indicates, the learned sentencing magistrate appears to have placed excessive weight on the criminal history.[8]  This may, in part, be understandable given these offences occurred less than three months after the applicant’s previous appearance in the Childrens Court but, in my view, quite clearly the learned magistrate has fallen into error, both in imposing a sentence that was disproportionate to the offending, and by placing too much weight on the applicant’s criminal history and the relatively early return to further offending.
  1. [12]
    The applicant is currently subject to both probation and community service orders, and although there has been some relatively minor non-compliance, it was not such that it should have negatively affected the magistrate’s assessment of his compliance to that date.[9]
  1. [13]
    The learned magistrate, in my view, erred by proceeding to a detention order and concluding it was the only appropriate sentence it the circumstances, while failing to consider the nature of the offences, matters raised in the pre-sentence report and, of course, the fact that there was no pre-sentence report for the second stealing charge.

Conclusion

  1. [14]
    In all of the circumstances, the learned sentencing magistrate has, in my view, fallen into error in imposing a detention order, albeit ameliorated by way of a conditional release order.
  1. [15]
    In this matter, the appropriate sentence, in my view, would be a substantial probation order to proceed concurrently with the existing orders. The length of the order that I propose will see the applicant supervised for some months after the expiry of the current probation order, which expires on 18 July 2020.

Orders

  1. [16]
    I make the following orders:
  1. (1)
    Applicant for sentence review granted. 
  2. (2)
    Set aside the sentence of one month detention to be served by way of a conditional release order for three months in respect of the two offences of stealing (8 June 2019 and 10 June 2019) imposed in the Townsville Childrens Court on 7 August 2019. 
  3. (3)
    Substitute an order for 12 months probation in respect of both offences. 
  4. (4)
    No convictions are recorded.

Footnotes

[1] Application for sentence review, filed 5 September 2019. 

[2] Outline of Submissions on behalf of the Child, filed 4 November 2019, [5].

[3] Exhibit C – Affidavit of Jake O’Donnell, affirmed 1 November 2019, p. 3.

[4] Outline of Submissions on behalf of the Child, filed 4 November 2019, [5.4.2].

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

[6] Outline of Submissions on behalf of the Child, filed 4 November 2019, [10.1].

[7] Outline of Submissions on behalf of the Child, filed 4 November 2019, [17].

[8] Outline of Submissions on behalf of the Child, filed 4 November 2019, [13].

[9] Outline of Submissions on behalf of the Child, filed 4 November 2019, [12].

Close

Editorial Notes

  • Published Case Name:

    The Queen v BHJ

  • Shortened Case Name:

    The Queen v BHJ

  • MNC:

    [2019] QCHC 39

  • Court:

    QChc

  • Judge(s):

    Dearden DCJ

  • Date:

    06 Nov 2019

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.