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Queensland Judgments
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  • Unreported Judgment

R v MBD

 

[2019] QCHC 43

 

CHILDRENS COURT OF QUEENSLAND

 

CITATION:

R v MBD [2019] QChC 43

PARTIES:

R

v

MBD

(Applicant)

FILE NO/S:

422/2019

DIVISION:

Childrens Court

PROCEEDING:

Sentence review

ORIGINATING COURT:

Cairns Childrens Court

DELIVERED ON:

14 November 2019 (delivered ex tempore)

DELIVERED AT:

Brisbane Childrens Court

HEARING DATE:

14 November 2019

JUDGE:

Dearden DCJ

ORDER:

  1. Applicant for sentence review granted.
  1. In respect of the following charges, order that the sentence of detention imposed on 16 August 2019 not cover these three offences, namely: 
  1. (1)
    enter dwelling and commit indictable offence (23/9/2018);
  2. (2)
    enter premises and commit indictable offence by break (17/2/2019); and
  3. (3)
    receiving tainted property (2/3/2019). 

In substitution, the applicant is reprimanded in respect of each of those three offences. 

  1. In respect of the balance of offences, namely:
  1. (4)
    enter premises and commit indictable offence (21/3/2019);
  2. (5)
    enter dwelling and commit indictable offence (30/3/2019);
  3. (6)
    unlawful use of a motor vehicle (30/3/2019);
  4. (7)
    enter dwelling and commit indictable offence (1/4/2019);
  5. (8)
    unlawful use of a motor vehicle (1/4/2019);
  6. (9)
    enter dwelling and commit indictable offence (31/5/2019); and
  7. (10)
    attempted enter dwelling and commit indictable offence (31/5/2019).

Order that the detention order of six months imposed in respect of those matters be set aside and a detention order of three months substituted. 

  1. Order further that the three months detention be satisfied by way of a conditional release order served for the number of days calculated between 12 September 2019 and 14 November 2019. 
  1. The court considers that the conditional release order, as varied, has been satisfied by the period served on conditional release order from 12 September 2019 to 14 November 2019.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – application for sentence review – where the applicant was sentenced to six months detention to be served by way of a conditional release order for three months for various property offences – where the applicant was subject to several court orders at the time of offending – where the applicant had had a dysfunctional childhood with difficult personal circumstances – where the applicant had spent 133 days in pre-sentence custody – whether the sentence was manifestly excessive  

LEGISLATION:

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

CASES:

R v PBD [2019] QCA 59

COUNSEL:

R Gill (sol) for the applicant

P Patty (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 MBD in respect of the sentence imposed at the Cairns Childrens Court on 16 August 2019 (pleas were entered on 12 July 2019) of six months detention to be served by way of a conditional release order for three months in respect of the following offences:
  1. (1)
    enter dwelling and commit indictable offence (23/9/2018);
  2. (2)
    enter premises and commit indictable offence by break (17/2/2019);
  3. (3)
    receiving tainted property (2/3/2019);
  4. (4)
    enter premises and commit indictable offence (21/3/2019);
  5. (5)
    enter dwelling and commit indictable offence (30/3/2019);
  6. (6)
    unlawful use of a motor vehicle (30/3/2019);
  7. (7)
    enter dwelling and commit indictable offence (1/4/2019);
  8. (8)
    unlawful use of a motor vehicle (1/4/2019);
  9. (9)
    enter dwelling and commit indictable offence (31/5/2019); and
  10. (10)
    attempted enter dwelling and commit indictable offence (31/5/2019).
  1. [2]
    A probation order of six months imposed on 12 March 2019 was extended for a further period of six months, and a 20-hour community service order was also extended by six months.[1] Neither of those orders are the subject of this review.
  1. [3]
    The applicant was 13 and 14 years at the time of offending, and was 14 years at the time of sentence. The applicants’ personal circumstances are set out in summary in the applicant’s submissions, and, relevantly, he is an Aboriginal boy, whose father died before he was born, has a Child Safety history, a transient lifestyle, had been on suspension from school at the relevant time, has recommenced schooling as at 11 September 2019, has substance abuse issues, and a relevant and significant criminal history.[2] 
  1. [4]
    The applicant was subject to a series of probation orders as well as a graffiti removal order at the time of the offending, namely:

“6.13.1 A six month probation order combined with twenty hours of community service – order made [by] the Childrens Court Queensland at Brisbane on 28 May 2019 following a successful sentence review of a sentence originally imposed in the Cairns Childrens Court on 12 March 2019.

6.13.2 A six month probation order – order made in the Childrens Court Queensland at Brisbane on 28 May 2019 following a successful sentence review of a sentence originally imposed in the Cairns Childrens Court on 20 November 2018.

6.13.3 A twelve month probation order – order made in the Childrens Court at Cairns on 20 November 2018.

6.13.4 A ten hour graffiti removal order – order made in the Childrens Court at Cairns on 20 November 2018.

6.13.5 A [nine] month probation order – order made in the Childrens Court at Cairns on 19 September 2018.”[3]

  1. [5]
    The circumstances of the offending are set out in detail in the Outline of Submissions on behalf of the Child at [8.1]:

Offence

Facts

Enter dwelling and commit indictable offence (23/9/2018)

The victim in this matter is a 20-year-old female American tourist who was residing at a backpackers hostel located in Cairns City. The victim owns an Apple iPhone 7.

Just past midnight on 23/09/18 the victim was asleep in her dormitory style room within the hostel. She recalls seeing her mobile phone charging at her feet just before she fell asleep.

At approximately 4.30am on the same day the victim woke up and realised that her mobile phone was missing.

The next morning, she spoke with other persons staying within the hostel who also stated that they had $80 cash stolen.

The victim subsequently reported the matter to Police.

At approximately 10.55am on the 2/04/19, the child was located at his home address and was arrested.

Enter premises and commit indictable offence by break (17/2/2019)

At approximately 01:00am the victim parked her vehicle (White 2010 Suzuki Swift) outside an address in Cairns North.

At this time the applicant child and two friends have passed the victim’s vehicle. They have then checked the doors of the vehicle finding it unlocked. They have then removed the victim’s handbag and decamped from the area with the property.

Receiving tainted property (2/3/2019)

At approximately 03:30am on 2/03/19, the victim was asleep in her camper van which was parked in a carpark behind a backpackers hostel located in Cairns North. Located inside the van was the victim’s bag on the passenger seat, which contained a money pouch containing 7500.00 Euro and an unknown quantity of Indonesian Rupiah 100,000 notes.

Other persons were arrested in relation to this offence and during the course of police investigations, it was revealed that the child possessed a quantity of foreign currency which was provided to another person who attempted to exchange it into Australian currency.

At approximately 01:00am on 3/03/19, the child was arrested [and] transported to Cairns Station. He declined to be interviewed however stated that he didn’t steal the money, and that a co-accused had given him the money.

Enter premises and commit indictable offence (21/3/2019)

The victim was staying at a hostel, located in Cairns.

At approximately 6.40am, the victim was in the kitchen area of the offence location, doing dishes after breakfast. The victim has placed her back pack on the table, which is the common area of the hostel. The victim has then observed five males enter the kitchen area and pick up her backpack and run off. The victim was not able to see where the males have run towards. In the victims backpack were her passport, laptop, wallet, credit cards, Kindle eBook reader, headphones, charger and $500 cash. The victim has reported this matter to Police who have viewed the CCTV footage which depicted the defendant as one of the offenders in this matter.

Enter dwelling and commit indictable offence (30/3/2019) & unlawful use of a motor vehicle (30/3/2019)

 

The victim is an international tourist who is the registered owner of a pink Daihatsu Sirion.

At approximately 9pm, the victim left his vehicle parked on the street out the front of an address in Cairns. He stated that he put the keys in the ignition of his vehicle to turn the lights on and then forgot to take them back out. The vehicle was left unlocked.

At approximately 2:30am Police located the Daihatsu Sirion on Lyons Street with the keys in the ignition and headlights on.

No persons were in the vehicle. Police subsequently located the victim and he confirmed the vehicle had been stolen.

The child took part in an electronic record of interview and stated that he recalled the night. He stated that he was with a co-offender and they walked from Cairns Central. They walked to a hostel just behind it and the co-offender went inside. He stated he waited outside but he knew that the co-offender went in there to steal. He stated the co-offender came out shortly after with some car keys. The co-offender then used the keys to access a small vehicle and drive off. The child stated he sat passenger in the car.

The co-offender provided a s 93A statement in relation to this matter. He stated the defendant went inside the hostel and stole car keys. He stated the child then drove the vehicle while he sat passenger.

The child stated he did not know the victims in this matter. He further stated he knew it was the wrong thing to do.

Enter dwelling and commit indictable offence (1/4/2019) & unlawful use of a motor vehicle (1/4/2019)

The victim in this matter is MB who is the principal of a school. The principal’s private residence is located within the school grounds.

Between 10.30am and 2.27pm, offenders have gained entry to the victim’s dwelling by unknown means. Offenders have proceeded to the victim’s bedroom and stolen the victim’s vehicle keys and two Apple iPhones which were on the bedside table.

Offenders have then used the victim’s keys to enter and start his vehicle (2015 Subaru Outback wagon).

Offenders have then exited the school grounds in the victim’s vehicle.

CCTV depicts the child and co-offender walking towards the victim’s residence at approximately 2.10pm. At approximately 2.27pm the victim’s vehicle is observed on the same camera driving away from the residence. 

Enter dwelling and commit indictable offence (31/5/2019)

Between 11:40am and 4:20pm a burglary offence occurred at an address in Woree whilst the victim was out.

Offenders appeared to have entered the dwelling via the rear bedroom window by removing the security screen. Once inside, the offenders have conducted an untidy search, breaking furnishing inside the dwelling, leaving drawers and cupboards open. A money box stored in the rear of a standalone garage which contained several hundred dollars in coins was stolen. The victim has returned home and reported the matter to Police link.

The victim has since discovered further property missing including a lady’s wallet which contained a load and go pre-paid debit card valued $200.00, $200.00 cash (4 x $50.00 notes) as well as other personal bank cards and identification.

A co-offender was arrested a short time later and was conveyed to Cairns Property Crime Unit. The co-offender participated in an electronic record of interview and confirmed the identity of the remaining offenders.

Attempted enter dwelling and commit indictable offence (31/5/2019)

At about 3:00pm a burglary offence occurred at an address in Earlville whilst the victim was out.

The dwelling is surrounded by 6-foot timber fences which are locked and secured. Offenders appear to have come onto the property via the rear fence which backs onto council land.

The offenders have made a concerted effort to break into a side bathroom window attempting to remove the security screen, damage has been caused to the frame of the security window, no entry was gained to this window as the offenders were interrupted by a neighbour. The suspect has the jumped the rear fence in doing so the offender has left a black thong behind.

It is also suspected that the offenders have also attempted to gain entry via a rear sliding door as the security door and solid glass door were off their tracks when the victim has returned home.

A co-offender was arrested a short time later and was conveyed to Cairns Property Crime Unit. The co-offender participated in an electronic record of interview and confirmed the identity of the remaining offenders.

The Law - Sentence Reviews

  1. [6]
    A Childrens Court judge may review the sentence order of a Childrens Court magistrate[4] which is to be conducted as a rehearing on the merits, to be conducted expeditiously and with as little formality as possible, with this court having 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. [7]
    This court is required to take into account the sentencing principles contained in the Youth Justice Act 1992 (Qld) (‘YJA’) s 150. 
  1. [8]
    The review is sought on the basis that the sentence order imposed was excessive, given that the magistrate placed insufficient weight on a number of factors including:
  1. (1)
    the principle of totality;
  2. (2)
    the child’s personal circumstances (including his age);
  3. (3)
    the principle of proportionality; and
  4. (4)
    the time spent by the applicant in presentence remand (a total of 133 days).[6]
  1. [9]
    As identified in oral submissions this morning, the first three offences (enter dwelling and commit indictable offence on 23 September 2018, enter premises and commit indictable an indictable offence by break on 17 February 2019, and receiving tainted property on 2 March 2019) are all offences which pre-date the sentence of six months probation imposed on 12 March 2019. For reasons that will be articulated shortly, it is submitted that those matters, if they are incorporated into a detention order, offend the principle of totality (a submission I accept) and, in the circumstances, should be removed from the overall outcome in respect of those matters identified as (4) – (10), and instead be dealt with by way of a reprimand.
  1. [10]
    The complication in respect of the rest of the matters is two-fold. Mainly, the applicant has now served approximately two months of the three month conditional release order (it was not stayed at the time of the filing of the review application)[7] and, in the circumstances, the submission is made that if a detention order remains as the effective “head sentence,” then the conditional release order should be reduced.
  1. [11]
    I accept that detention should be imposed as a last resort, and although there may be some argument about that in the circumstances of this offending, that has to be balanced against the child’s repeated offending, despite his age. There was, it seems, a failure to consider the referral of these matters to restorative justice processes,[8] but given the pragmatic response that this court proposes, in the context of the applicant’s circumstances, I do not propose to say anything further in respect of that failure, other than to note it, in the light of the outcome that I propose.
  1. [12]
    In particular though, Mr Gill, who appears for the applicant, stresses the failure to place sufficient weight on the 133 days (effectively more than four months) of presentence detention. Taking that into account, and the nature of the offending, it is submitted (and I accept) that there was a failure to sentence proportionately, given the nature of the offending.
  1. [13]
    In all of the circumstances, the appropriate way to deal with this appeal is to significantly reduce the detention order imposed, and to then conclude that the time already served on the conditional release order is appropriate. The effect of this will be that the outcome of this sentence will have been completed as of today. The child will, of course, be subject to any other uncompleted community-based orders which are not the subject of this appeal, but in respect of this appeal at least, all matters will have been concluded.

Orders

  1. [14]
    Accordingly, I make the following orders:                   
  1. Applicant for sentence review granted.
  1. In respect of the following charges, order that the sentence of detention imposed on 16 August 2019 not cover these three offences, namely: 
  1. (1)
    enter dwelling and commit indictable offence (23/9/2018);
  2. (2)
    enter premises and commit indictable offence by break(17/2/2019); and
  3. (3)
    receiving tainted property (2/3/2019). 

In substitution, the applicant is reprimanded in respect of each of those three offences.

  1. In respect of the balance of offences, namely:
  1. (4)
    enter premises and commit indictable offence (21/3/2019);
  2. (5)
    enter dwelling and commit indictable offence (30/3/2019);
  3. (6)
    unlawful use of a motor vehicle (30/3/2019);
  4. (7)
    enter dwelling and commit indictable offence (1/4/2019);
  5. (8)
    unlawful use of a motor vehicle (1/4/2019);
  6. (9)
    enter dwelling and commit indictable offence (31/5/2019); and
  7. (10)
    attempted enter dwelling and commit indictable offence (31/5/2019).

Order that the detention order of six months imposed in respect of those matters be set aside and a detention order of three months substituted. 

  1. Order further that the three months detention be satisfied by way of a conditional release order served for the number of days calculated between 12 September 2019 and 14 November 2019. 
  2. The court considers that the conditional release order, as varied, has been satisfied by the period served on conditional release order from 12 September 2019 to 14 November 2019.

Footnotes

[1] Exhibit 1 – Outline of Submissions on behalf of the Child [4.1] – [4.3].

[2] Outline of Submissions on behalf of the Child, filed 5 November 2019, [6.2]-[6.12].

[3] Outline of Submissions on behalf of the Child, filed 5 November 2019, [6.13]; Criminal history of MBD dated 6 November 2019, p. 6.

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

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

[6] Exhibit E – Affidavit of Rajiv Gill, affirmed 4 November 2019; Outline of Submissions on behalf of the Child, filed 5 November 2019, [11.1]-[11.2].

[7] Affidavit of Rajiv Gill, filed 14 November 2019, [4].

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

Close

Editorial Notes

  • Published Case Name:

    R v MBD

  • Shortened Case Name:

    R v MBD

  • MNC:

    [2019] QCHC 43

  • Court:

    QChc

  • Judge(s):

    Dearden DCJ

  • Date:

    14 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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