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- Unreported Judgment
CHILDRENS COURT OF QUEENSLAND
LMO v The Queen  QChC 2
Childrens Court at Hervey Bay
31 January 2020 (ex tempore)
31 January 2020
Farr SC DCJ
CRIMINAL LAW – APPEAL – Youth Justice Act 1992 – section 118 – re-hearing on the merits, pursuant to section 122(1) – where the applicant was sentenced for 23 offences – where the sentence included a three-month detention order to be served by way of a conditional release order – where the applicant had been remanded for 39-days at the time of sentence – where the applicant was subject to previous community-based orders at the time of the offences – where the review must take into account the sentencing principles in the Youth Justice Act 1992 (Qld) s 150 – whether the sentence imposed was excessive in the circumstances and disproportionate to the offences before the court – where some of the offences were of a reasonably serious nature – whether too much weight was placed on the applicants criminal history.
D Law for the applicant
T Little for the respondent
Legal Aid (Qld) for the applicant
Director of Public Prosecutions (Qld) for the respondent
- HIS HONOUR: All right. The Applicant was sentenced in the Hervey Bay Childrens Court on the 1st of November 2019 in relation to a total of 23 offences. For some of those offences, she was sentenced to a three-month detention order to be served by way of a conditional release order. Those offences were one of enter a dwelling and committing an indictable offence, two of entering a premises and committing an indictable offence, 11 charges of stealing, one of entering a premises with intent to commit an indictable offence, and one offence of serious assault of a police officer by biting, spitting, etcetera.
- For the remainder of the charges, the Applicant was sentenced to a four-month good behaviour order, and that order is not the subject of this review; it need not be commented upon further. No convictions were recorded in relation to the offences, and probably of most relevance to this matter was the fact that the Applicant had been remanded for 39 days in relation to the offences at the time of sentence.
- In relation to the offences the subject of this review, on one occasion the Applicant and a co-offender entered a dwelling and stole some keys to a restaurant; they subsequently entered that restaurant and stole $3000, an unknown quantity of liquor, and ate some small amount of food. The stealing charges relate to her stealing a phone charger from a service station, shoes from a sport store, lighters from a service station, a drink from a service station, a tip jar which contained only a small amount of money, some clothing from a clothing store, coins, other relatively minor things from various business premises, coins from a parked vehicle. She also, whilst in lawful custody, spat on the ground in front of a nearby police officer, and when that officer told her not to spit, she then spat at his face, but he dodged the projectile.
- At the time that the offences were committed, she had a – it was a five-page criminal history at that stage for a similar type of offending. And at the time of the commission of the offences, she was the subject of a six-month probation order, a 12-month restorative justice order, a 12-month probation order and a five-hour graffiti removal order. It has been submitted by the Respondent that she has shown a disregard for these previous community-based orders by the commission of further offences, and that would seem to be a reasonable and accurate submission. I am advised as well that she has committed further offences whilst – well, since the imposition of the order the subject of this review.
- The Applicant was only 13 years old at the time of these offences and at the time of sentence, and had never been sentenced to detention, actual or otherwise, at the time of sentence. Now, a review, of course, is to be conducted as a rehearing on the merits and should be conducted expeditiously and with as little formality as possible. I have regard to the record of the proceeding before the Childrens Court Magistrate, which I have read, and the submissions and material that has been placed before this Court.
- As Mr Law has submitted, a Court conducting such a review must take into account the sentencing principles contained within section 150 of the Youth Justice Act. In his submission, the considerations of particular relevance to this review are the nature and seriousness of the offending conduct, the child’s previous offending history, any information about the child, including a pre-sentence report, provided to assist the Court in making a determination, a fitting proportion between sentence and offence, the child’s age, being a mitigating factor in determining whether or not to impose a penalty and the nature of a penalty imposed, and of course that a detention order should be imposed only as a last resort and for the shortest appropriate period.
- Submissions have been made in relation to R v SCU  QCA 198, a matter which, of course, is well known in the Childrens Court jurisdiction by virtue of the various principles that it speaks of. It has been submitted that the sentence order imposed in this matter was excessive in the circumstances, and that a further period of probation would have been the appropriate order in all of the circumstances. It seems to me that the two factual features upon which reliance is placed to support that submission is the age of the Applicant and the fact that she has spent 39 days in pre-sentence detention.
- It was submitted in the Court below and, I think, accepted by all parties, including the Magistrate, as I read the material, that the serious assault of a police officer charge was the most serious of the offences that the Applicant was facing, but that is not to say, though, that some of the other offences were also not serious. True it is that some of the offences were of a less serious nature, but the overall behaviour of the Defendant – of the Applicant is of a reasonably serious nature involving offending conduct that is deserving of some degree of sanction. But, of course, the various considerations do apply pursuant to the legislation.
- It has been submitted on the Applicant’s behalf that too much weight was placed on the child’s previous criminal history, which resulted in a penalty being imposed which was disproportionate to the offences currently before the Court. Whilst I understand the nature of that submission, I do not agree that that was the case. It appears to me that the Magistrate quite properly took into account the Applicant’s criminal history and in particular the fact that she committed these offences whilst she was the subject of the Court orders that I have already identified.
- The learned Magistrate appeared to take the view that attempts to assist with the child’s rehabilitation up to the date of sentence had thus far been unsuccessful, and that a further order of probation, for instance, would be of no utility. It does seem to me that that was a reasonable approach to adopt and that a further period of probation really was not a reasonable option open in the circumstances. The learned Magistrate did acknowledge that the offending is more towards the lower end of the scale of seriousness, but acknowledged as well that some of it was of a serious nature, and it seems again to be an accurate categorisation of the offending conduct.
- I do not, of course, need to find error on the part of the Magistrate in a review such as this, and none is obvious upon reading all the material. Ultimately, there was the exercise of discretion in this matter, the only question being whether the 39 days pre-sentence detention should have warranted a different order. Of course, under the legislation, that 39 days is taken into account in relation to the three months which was imposed and is not in addition to that period of time.
- In all the circumstances, I am not satisfied that the Youth Justice principles were not properly taken into account and that the sentence imposed was excessive in the circumstances. Even taking into account the fact that a sentence of detention is one of last resort, the Applicant’s behaviour in all the circumstances is such that it appears to me that the order that was made fell well within the exercise of discretion reasonably open in the circumstances.
- A pre-sentence report was prepared in relation to this matter, which I have read. It demonstrates that the Applicant has had a dysfunctional upbringing, if I can use that term, with substandard parenting and difficulties no 13 year old should have to endure. Notwithstanding that feature, however, it still is apparent to me that the order imposed properly took into account all the relevant considerations, including her cooperating with the administration of justice by the entry of the pleas of guilty and her age and pre-sentence history – detention history. So notwithstanding those features, I am not of the view that this is a matter that requires intervention by this Court, and the application is dismissed.
- MR LAW: Thank you, your Honour.
- HIS HONOUR: Thank you. Thank you both. All right. Adjourn the Court, please.
- Published Case Name:
LMO v The Queen
- Shortened Case Name:
LMO v The Queen
 QCHC 2
Farr SC DCJ
31 Jan 2020