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Queensland Judgments
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  • Unreported Judgment

The Queen v PLP

 

[2019] QCHC 38

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v PLP  [2019] QChC 38

PARTIES:

R

v

PLP

(Applicant)

FILE NO/S:

416/2019

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 a two month detention order to be served by way of a three month conditional release order imposed at the Townsville Childrens Court on 6 August 2019. 
  3. (3)
    Substitute with the following orders: 
    1. 12-month probation order in respect of all offences; and
    2. pursuant to Youth Justice Act 1992 (Qld) s 175(1)(db), order that the child participate in a restorative justice process as directed by the chief executive.
  4. (4)
    No convictions are recorded.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – application for sentence review – where the applicant was sentenced to two months detention to be served by way of a three month conditional release order for several charges – where the applicant had a recent and relevant criminal history – where the applicant had served 15 days in pre-sentence custody – where the presentence report outlined the difficulties of the applicant’s childhood and alternative sentence options – whether the sentence was excessive in all the circumstances  

LEGISLATION:

Youth Justice Act 1992 (Qld) s 118, s 122, s 150, s 175

CASES:

R v MDD [2019] QCA 197

R v SCU [2017] QCA 198

COUNSEL:

L Barnes (sol) for the applicant

T O’Brien (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, PLP, in respect of the following matters:
  1. (1)
    attempted enter premises with intent to commit indictable offence (on or about 06/07/2019); 
  2. (2)
    attempted enter premises with intent to commit indictable offence (06/07/2019); 
  3. (3)
    enter premises with intent (06/07/2019); 
  4. (4)
    enter premises and commit indictable offence by break (07/07/2019);  and 
  5. (5)
    enter premises and commit indictable offences by break (08/07/2019).[1]
  1. [2]
    The applicant entered a plea of guilty on 10 July 2019 and was sentenced on 6 August 2019 to a two month detention order to be served by way of a three month conditional release order, with no convictions recorded. The sentence took place at the Townsville Childrens Court.[2]
  1. [3]
    The applicant’s antecedents are briefly set out in the Outline of Submissions on behalf of the child. In summary, the child was born on 30 November 2004, and was accordingly 14 months and seven months at the time of the offending and 14 years and eight months at the time of sentence. Critically, he had spent 15 days in pre-sentence custody as at the sentence date, and has a relevant criminal history, which indicates that at the time of the offending he was subject to a 12 month probation order imposed on 19 March 2019, a 10 hour graffiti removal order imposed on 19 March 2019 and a 12 month probation order imposed on 3 July 2019.[3]
  1. [4]
    The circumstances of the offending are set out in the Outline of Submissions on behalf of the child at [6] as follows:

Date

Charge

Allegation

6 July

2019

Attempted

enter

premises

with intent

to commit

indictable offence

The child, in company with four co-offenders, attended the Outback motel at 11:30pm. A co-offender has used an unknown implement to smash the reception door causing damage to the glass. Co-offenders have attempted to open the door but were unable to gain access. Police attended and the child and co-offenders ran away. CCTV footage shows the child walking up to the door with his co-offenders. On 9 July 2019, police interviewed a co-offender who stated that the child was present when a co-offender attempted to gain entry.

6 July 2019

Enter

premises

with intent

to commit

indictable offence

The child, in company with two co-offenders approached the complainant’s Mitsubishi Triton, which was parked at the Mount Isa Railway station. The child and co-offenders have thrown rocks at the vehicle window causing it to break before searching inside the car. No property was taken. There is CCTV footage of the offence.

6 July 2019

Attempted

enter

premises

with intent

to commit

indictable

offence

It is alleged that the child in company with other co-offenders attended Splashez Aquatic Centre in Mount Isa. The child watched while a co-offender attempted to kick the glass door of the business. Access was not able to be gained by the children.

7 July 2019

Enter

premises

and commit

indictable

offence by break

The child, in company with four co-offenders attended the offence location of Good Shepherds Catholic Church at 4:15am. One of the co-offenders has smashed the driver’s side window and the vehicle was searched by all offenders. Six dollars was stolen from the vehicle.

8 July 2019

Enter

premises

and commit

indictable

offence by break

The child, in company with five co-offenders, attended the Buffalo Carpentaria club at 3:15am. The child in company with co-offenders smashed the driver’s side window of a Mitsubishi Lancer to gain access Approximately $10.00 was taken from the vehicle.

The law – sentence reviews 

  1. [5]
    A Childrens Court judge may review the sentence order of a Childrens Court Magistrate.[4]  Such a review is to be conducted as a re-hearing on the merits and should be conducted expeditiously and with as little formality as possible.  This court can 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]
    In imposing sentence, the court must take into account the sentencing principles contained within Youth Justice Act 1992 (Qld) (‘YJA’) s 150.  I am also guided, in particular, by the decision of Sofronoff P in R v SCU [2017] QCA 198, and the decision of Davis J in R v MDD [2019] QCA 197.

Submissions

  1. [7]
    The submission of the applicant is that the sentence was excessive in the circumstances, with insufficient weight being placed on the 15 days of pre-sentence custody, the availability of alternate sentencing options in lieu of a detention order, and the failure to appropriately consider the sentencing principles of the YJA in respect of the imposition of a detention order as a last resort and for the shortest possible period.[6]

Discussion

  1. [8]
    The applicant’s offending is serious and concerning. In particular, it is serious that it occurred just three days after the applicant had previously been sentenced.[7]  The applicant’s circumstances are canvassed in detail in the pre-sentence report which was before the learned magistrate.[8]
  1. [9]
    The fact that the child was also subject to two separate probation orders at the time was of significant concern and the offences were committed while in company with other offending children.
  1. [10]
    As the applicant’s counsel has submitted, and the respondent’s counsel concedes, there was little assistance to the learned sentencing magistrate from the submissions of either the prosecution or the child’s legal representatives.[9]  Although there are always pressures on both ends of the bar table in high volume courts, particularly Childrens Courts, there is still a fundamental ethical obligation to ensure that judicial officers are assisted with appropriate and comprehensive submissions when dealing particularly with young children charged with serious criminal offences and (as here) in challenging circumstances, being a child who was subject to the care of the Department of Child Safety at the relevant time and who appears to have returned to offending just days after being previously sentenced for similar offences.
  1. [11]
    The submission on behalf of the applicant is that the detention order, served by way of a three month conditional release order, should be set aside and a 20 hour community service order substituted.[10]  As I canvassed with Ms Barnes, who appears for the applicant, I consider the learned sentencing magistrate fell into error in imposing a detention order without appropriately considering the alternatives, which include options which the child had never previously been subject to, including a community service order, a pre-sentence restorative justice process or a restorative justice order. However, the 20 hour community service order submitted for by the applicant (even taking into account the 15 days of pre-sentence custody) is an inadequate penalty in the circumstances.
  1. [12]
    Mr O’Brien, who appears for the respondent, quite properly makes the point that a 20 hour community service order in substitution for the current detention order served by way of a conditional release order would be manifestly inadequate, and I accept that submission. Having accepted that submission, however, I remain of the view that the learned magistrate has fallen into error in proceeding as he did from the current situation of a child being subject to probation orders directly to an order for detention, without carefully identifying why less serious alternatives were not considered by way of sentencing orders.
  1. [13]
    I note that there was some consideration of a restorative justice order, but otherwise, there appears to be no contemplation of the intermediate alternatives which should have been considered in the light of the pre-sentence report.[11]  Again, I note that the learned magistrate received little practical assistance by way of submissions from the either end of the bar table.

Conclusion

  1. [14]
    In all of the circumstances, I am persuaded that the learned sentencing magistrate has fallen into error in proceeding to impose a detention order without considering the alternatives. The alternatives available include another probation order, restorative justice orders, and/or community service.
  1. [15]
    In my view, the appropriate combination of orders which will continue supervision for a substantial period (clearly required in these circumstances) but at the same time allow the child to be confronted (appropriately, of course) with the consequences of his actions by way of a restorative justice process, is to make appropriate orders allowing both options to proceed as the sentencing outcome in this matter.

Orders

  1. [16]
    In all of the circumstances, then, I make the following orders:
  1. (1)
    Application for sentence review granted. 
  2. (2)
    Set aside the sentence of a two month detention order to be served by way of a three month conditional release order imposed at the Townsville Childrens Court on 6 August 2019. 
  3. (3)
    Substitute with the following orders: 
  1. (a)
    12 month probation order in respect of all offences; and
  2. (b)
    pursuant to Youth Justice Act 1992 (Qld) s 175(1)(db), order that the child participate in a restorative justice process as directed by the chief executive.
  1. (4)
    No convictions are recorded.
  1. [17]
    In the circumstances, it is appropriate to order that no conviction be recorded and that no further steps be taken in respect of the breaches of community-based orders.

Footnotes

[1] Application for sentence review filed 2 September 2019; Exhibit A – Affidavit of Leisa Barnes, affirmed 1 November 2019.

[2] Exhibit A – Affidavit of Leisa Barnes, affirmed 1 November 2019.

[3] Outline of Submissions on behalf of the Child, filed 6 November 2019, [5].

[4] Youth Justice Act 1992 (Qld) s 118.

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

[6] Outline of Submissions on behalf of the Child, filed 6 November 2019, [9].

[7] Exhibit B – Affidavit of Leisa Barnes, affirmed 1 November 2019, p. 4.

[8] Exhibit F – Affidavit of Leisa Barnes, affirmed 1 November 2019.

[9] Outline of Submissions on behalf of the Child, filed 6 November 2019, [10.13]; Outline of Submissions on behalf of the Respondent, filed 6 November 2019, [6.30].

[10] Outline of submissions on behalf of the child, filed 6 November 2019, [11].

[11] Sentence remarks p. 5, ll 5-8 – Exhibit E - Affidavit of Leisa Barnes, affirmed 1 November 2019.

Close

Editorial Notes

  • Published Case Name:

    The Queen v PLP

  • Shortened Case Name:

    The Queen v PLP

  • MNC:

    [2019] QCHC 38

  • 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.
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