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Queensland Judgments
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  • Unreported Judgment

The Queen v HJY

 

[2019] QCHC 36

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v HJY [2019] QChC 36

PARTIES:

R

v

HJY

(Applicant)

FILE NO/S:

419/2019

DIVISION:

Childrens Court

PROCEEDING:

Sentence review

ORIGINATING COURT:

Gladstone Childrens Court

DELIVERED ON:

4 November 2019 (delivered ex tempore)

DELIVERED AT:

Brisbane Childrens Court

HEARING DATE:

4 November 2019

JUDGE:

Dearden DCJ

ORDER:

  1. (1)
    Application for sentence review granted.
  2. (2)
    Order that the charge be dismissed pursuant to Youth Justice Act 1992 (Qld) s 24A.
  3. (3)
    Order that the matter be referred to the Chief Executive for a restorative justice process.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – application for sentence review – where the applicant was sentenced to a restorative justice order for one charge of possession of a knife in a public place – where the defendant had extensive mental health issues – where the defendant had no prior criminal history – where there was an application for the matter to be dealt with pursuant to s 24A of the Youth Justice Act 1992 (Qld) – whether the learned sentencing magistrate failed to consider other provisions for a restorative justice order – whether the sentence was excessive in all the circumstances  

LEGISLATION:

Youth Justice Act 1992 (Qld) s 22, s 24A, s 118, s 122, s 150, s 162, s 175(1)(db)

CASES:

R v PBD [2019] QCA 59

R v SCU [2017] QCA 198

COUNSEL:

P Dent (sol) for the applicant

K Byrne (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 the applicant HJY. The applicant pleaded guilty to one charge of possession of a knife in a public place or school before the learned Children’s Court Magistrate at Gladstone on 31 July 2019.[1]  The applicant was sentenced to a restorative justice order under section 175(1)(db) of the Youth Justice Act 1992 (Qld) (‘YJA’).[2]  The applicant seeks a review of the sentenced imposed.[3]
  1. [2]
    The applicant’s antecedents are set out in the Outline of Submissions on behalf of the Applicant at [3]. Namely, the applicant is 17 years old, born on 28 December 2001, has no prior criminal history, has extensive mental health issues (diagnoses of ADHD, oppositional defiance disorder, conduct disorder, anxiety and ASD), is prescribed medication and has been exposed to both domestic violence and physical abuse in the family home.[4]  The circumstances of the offence are summarised in these terms:

“The Applicant had attended Mylestones Employment where he had a verbal altercation with [a] counsellor before leaving the premises.  Police were notified and located the applicant on Bonar Street.  He was searched and a knife was located in his pocket.  He made immediate admissions.  He was transported to his mother’s location and made admissions after cautions were administered.  He told the police that he carried the knife for self-defence.”[5]

The law – sentence reviews 

  1. [3]
    A Children’s Court judge may review the sentence order of a Children’s Court magistrate.[6]  The review must be a rehearing on the merits and must be conducted expeditiously and with as little formality as possible.  This court, in deciding the review, may have regard to the record of the proceeding before the Children’s Court magistrate, and any further submissions or evidence by way of affidavit or otherwise.[7]

The law – sentencing children

  1. [4]
    The Youth Justice Act 1992 (Qld) (‘YJA’) is a code for dealing with children who have or are alleged to have committed offences, and this court is obliged to take into account the sentencing principles contained within YJA s 150.[8]
  1. [5]
    In particular, the decision of R v SCU [2017] QCA 198 requires this court (and any sentencing court) to give:

“…consideration to all statutory factors relevant to a particular case, as well as the facts of the case itself in the ordinary way, before deciding upon an appropriate sentence imposed upon a child.”[9]

Submissions

  1. [6]
    The submission made is that the order imposed was excessive, given the failure of the learned sentencing magistrate to consider other provisions for ordering a restorative justice conference.[10]
  1. [7]
    In particular, it is submitted that the learned magistrate should have exercised the power available under YJA s 24A, which permits the court to dismiss the charge instead of accepting the plea of guilty, having regard to the matters outlined in section 24A(1A), and, pursuant to s 24A(2):

“…refer the offence to the Chief Executive for a restorative justice process.”

  1. [8]
    The next alternative available to the learned sentencing magistrate was to consider a court diversion pursuant to YJA s 162(1) which provides:

“If a child enters a plea of guilty for an offence in a proceeding before a court, the court must consider referring the offence to the chief executive for a restorative justice process instead of sentencing the child.”

  1. [9]
    The argument here is that, although no application was made pursuant to YJA s 24A at the substantive hearing before the learned sentencing magistrate, given that the offence was not serious, the applicant had no criminal history, had cooperated by way of admission to police and an early plea of guilty, there had been no offending between the offence date and the date of sentence, and the applicant continued to be supported by his mother and was engaged with school, and in the light of the prosecutor’s submission that ordinarily the prosecution would have submitted for a reprimand, that the failure to consider an order pursuant to YJA s 24A was an error on the part of learned sentencing magistrate.[11]
  1. [10]
    In the alternative, as indicated, the learned sentencing magistrate should (it is submitted) have considered a diversion under YJA s 162.[12]
  1. [11]
    In the circumstances of this offence, given the information placed before the learned sentencing magistrate, and despite the clear lack of assistance from the Applicant’s legal representatives, it is my view that the submission at [10.2.1] of the Outline of Submissions on behalf of the Applicant, can be treated by this court as an application (which should ideally have been brought before the primary court) for the proceedings to be dealt with pursuant to section 24A YJA.

Conclusion

  1. [12]
    Accordingly, I conclude that the offence should have been referred to the Chief Executive for a restorative justice process under section 22 of the YJA.[13]  I have noted that the applicant has no previous criminal history (including no other cautions or previous restorative justice agreements) and the extenuating circumstances leading to the commission of the offence, in my view, impel the outcome that I consider appropriate in the circumstances.

Orders

  1. [13]
    In all of the circumstances, then I order as follows:
  1. (1)
    Application for sentence review granted.
  2. (2)
    Order that the charge be dismissed pursuant to Youth Justice Act 1992 (Qld) s 24A.
  1. (3)
    Order that the matter be referred to the Chief Executive for a restorative justice process.

Footnotes

[1] Application for sentence review, filed 27 August 2019.

[2] Application for sentence review, filed 27 August 2019.

[3] Outline of Submissions in behalf of the Applicant, filed 4 November 2019, [2.4].

[4] Outline of Submissions in behalf of the Applicant, filed 4 November 2019, [3].

[5] Outline of Submissions in behalf of the Applicant, filed 4 November 2019, [4.2].

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

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

[8] Youth Justice Act 1992 (Qld) ss 2(b), 150(1).

[9]R v SCU [2017] QCA 198 at [53].

[10] Outline of Submissions in behalf of the Applicant, filed 4 November 2019, [7].

[11] Outline of Submissions in behalf of the Applicant, filed 4 November 2019, [8].

[12] See R v PBD [2019] QCA 59.

[13] Youth Justice Act 1992 (Qld) s 24A(1)(b).

Close

Editorial Notes

  • Published Case Name:

    The Queen v HJY

  • Shortened Case Name:

    The Queen v HJY

  • MNC:

    [2019] QCHC 36

  • Court:

    QChc

  • Judge(s):

    Dearden DCJ

  • Date:

    04 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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