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- Unreported Judgment
CHILDRENS COURT OF QUEENSLAND
R v MSR  QChC 31
Childrens Court of Queensland
Townsville Childrens Court
21 August 2020 (ex tempore)
21 August 2020
Allen QC DCJ
CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – application for sentence review – where the child was 15 years old at the time of offending and sentence – where the child was sentenced in relation to property offences – where the child was sentenced to 6 weeks detention with a 3 month conditional release order – where no convictions were recorded – whether the learned Magistrate erred in failing to give reasons why community based orders would not be appropriate rather than detention – whether the sentence imposed was excessive
Criminal Code 1899 (Qld), s 421, s 433
Youth Justice Act 1992 (Qld), s 122, s 123, s 150, s 208, s 209
R v MDD  QCA 197
Veen v R (No 2) (1988) 164 CLR 465
Ms C Anderson-James for the applicant
Mr R Byrne for the respondent
Legal Aid Queensland for the applicant
Office of the Director of Public Prosecutions for the respondent
- The applicant child seeks review of a sentence imposed by a Childrens Court Magistrate in the Childrens Court of Townsville on 1 July 2020. The applicant child had earlier appeared before the Court and entered pleas of guilty to two counts of entering premises and committing an indictable offence by break (section 421(2) and (3) of the Criminal Code) and one count of receiving tainted property (section 433(1) of the Criminal Code). The Court had before it a pre-sentence report.
- With respect to the charge of receiving tainted property, the child was reprimanded. With respect to the two counts of entering premises and commit an indictable offence by break the child was sentenced to a period of six weeks detention with release after 50 per cent of such term, but with the whole term being suspended by way of a three-month conditional release order. No convictions were recorded for any of the offences.
- The applicant child filed an application for review of the sentence with respect to the two counts of entering premises and commit indictable offence by break on 9 July 2020.
- The applicant child was 15 years of age at the time of the offences and sentence. He is an Indigenous child who has, throughout his lifetime, suffered a considerable history of trauma and neglect. He has been in the care of Child Safety since he was four months old and reported to be discovered alone in a dry riverbank. His subsequent history and care is one of extreme family dysfunction with multiple placements with different kinship and community carers between Mornington Island, Mount Isa and Townsville.
- The applicant has been diagnosed with reactive attachment disorder and eight additional secondary diagnoses. Cognitive testing by Queensland Health in 2019 found the applicant’s general thinking and reasoning skills to be extremely low. A diagnosis of foetal alcohol spectrum disorder is being investigated, and the applicant has been accepted as an NDIS applicant.
- The pre-sentence report stated that a restorative justice order, probation order, community service order or conditional release order would be viable sentencing options. The author, however, did note that the applicant’s verbal comprehension was of such an extremely low level in comparison to peers and his ability to completely understand the complexity of the orders and the consequence of non-compliance was compromised.
- Importantly, at the time of sentence, the child had spent 19 days remanded in custody between 12 June 2020 and 1 July 2020.
- He had a relevant criminal history and was subject to the following supervised orders at the time of the offences:
- (a)nine month probation order imposed on 10 June 2020;
- (b)30 hour community service order imposed on 14 May 2020;
- (c)12 month restorative justice order imposed on 11 May 2020; and
- (d)six month probation order imposed on 5 May 2020.
- After each previous appearance in the Children’s Court, the applicant had re-offended within days of those orders being made, committing similar property offences to that for which he was sentenced on 1 July 2020.
- The facts of those offences are as follows. At approximately 2.30 am on 12 June 2020, the child entered a fast food outlet at a shopping centre by smashing a glass door. Whilst inside the business, the applicant stole a can of lemonade and started consuming the contents. At about 4.13 am on the same morning, the child entered a liquor outlet through a broken glass door and stole two bottles of rum, a six-pack of beer, cigarettes, tobacco and lighters, with a total value of about $630. Although not the subject of this application for review, the receiving tainted property related to the child being found in possession of a bank card which had been stolen during a burglary on 19 March 2020. And it has already been noted such offences were committed during the currency of community-based orders made during the preceding six weeks.
- The author of the pre-sentence reported noted, however, that the applicant had otherwise complied with the community-based orders, including complying with program activities, reporting requirements and associated interventions of the orders. He had not received any warnings or been the subject of any applications for finding of contravention of the orders.
- The applicant submits that, in arriving at a decision to impose a detention order to be served by way of a conditional release order, the Magistrate erred by:
- (a)not placing sufficient weight on the fitting proportion between the offences and the sentence:
- (b)placing excessive weight on the child’s criminal history: and
- (c)not giving appropriate consideration to all other available sentences.
- The applicant refers to the decision of the Court of Appeal in R v MDD  QCA 197, and in particular to the following statements by Justice Davis, with whom the other members of the Court agreed:
 The learned sentencing Judge, faced with a pre-sentence report identifying the making of a restorative justice order, or the making of a conditional release order, as viable alternatives to detention, has not explained why one or other of those orders was not preferred to detention but then concluded that detention was necessary because the applicant had offended before. It by no means follows that the appropriate order is one of detention simply because a child has been subject to non-custodial orders previously and has reoffended.
 Even if ultimately detention is ordered, as s 208 obliges the sentencing court to consider all other options, the reason for imposing detention (rather than taking other options) must be expressed in the sentencing remarks. The sentencing remarks here do not explain why the options of the making of a restorative justice order or a conditional release order were rejected in the face of a pre-sentence report which assessed the applicant as suitable for both. For these reasons, the sentencing process miscarried.
- The sentencing Magistrate obviously gave earnest consideration to the appropriate sentencing orders to be made for the applicant. He recounted in great detail the sad history of the antecedents of the applicant and the disabilities he suffered. He noted that such issues manifested themselves in the applicant having impulsivity and a tendency to engage in high-risk behaviours, with difficulty in comprehending social cues and limited insight into the consequences of this behaviour and limited moral reasoning and limited empathy. The sentencing Magistrate acknowledged that he needed to consider the applicant’s offending in the context of that background and that any assessment of the applicant’s attitude to offending was also to be considered in the context of his historical trauma, mild intellectual impairment and mental health diagnoses. After noting the purposes of sentence and the needs for general and personal deterrence, the Magistrate stated as follows:
I also have to think about what I can do to help you with your rehabilitation to avoid you coming back here again. And I acknowledge I have to consider all sentencing options before I might contemplate an order for detention.
- The Magistrate then went on to state the reasons why a court diversion referral would not be an adequate response to the applicant’s offending. The sentencing Magistrate then stated why he would be reprimanding the applicant for receiving tainted property, before stating:
On these other charges, though, which are more serious, but I considered them in the context of your history of offending, what sentences I have imposed previously and how quickly you have re-offended, I am satisfied now that there is no option when it comes to sentencing you, other than to make an order for detention.
- The applicant submits that the sentencing Magistrate erred by failing to state reasons why community-based orders were not appropriate sentencing options before making a detention order and relies upon those statements in R v MDD quoted earlier. The respondent submits likewise that the sentencing Magistrate failed to give proper consideration to community-based orders as required and likewise cites the authority of R v MDD.
- Section 208 of the Youth Justice Act (Act) provides that a court may make a detention order against a child only if the court, after considering all other available sentences and taking into account the desirability of not holding a child in detention, is satisfied that no other detention is appropriate in the circumstances of the case.
- Section 209(1)(a) of the Act requires that a court that makes a detention order against a child must state its reasons in court. Section 209(2) provides that, subject to subsection (3), a court’s failure to comply with subsection (1) does not affect the sentence order. Section 209(3) provides that a court considering the sentence order on appeal or review must take into account a failure to comply with subsection (1)(a) and give the failure the weight it considers appropriate.
- The learned Magistrate has, as quoted above, acknowledged the requirement to consider all sentencing options before deciding that an order for detention should be made. He has only specifically discussed the alternative option of a court diversion referral under section 162 of the Act before deciding that no other option other than detention is appropriate. It is implicit that the experienced sentencing Magistrate has considered, but rejected, the further options of community-based orders before ordering detention. Notwithstanding those statements in R v MDD, I am not satisfied that the Magistrate has failed to comply with sections 208 or 209 of the Act. And notwithstanding the submissions of both parties, I am not satisfied that he has fallen into error in that respect.
- It is worth noting that the legal representative for the applicant child at the time of sentencing before the Magistrate specifically concurred with the submission by the police prosecutor that a short period of detention with release on a conditional release order was an appropriate sentencing outcome. In those circumstances, the reasons of a sentencing Magistrate in a busy court should not be parsed with detailed consideration so as to discern error.
- Error by a Magistrate is not required before this court will intervene upon a review of the sentence. Pursuant to section 122(1) of the Act, a review of the sentence is by way of rehearing on the merits.
- As to the merit of the sentence imposed, the applicant submits that, whilst the applicant’s previous offending history must be taken into account in determining the sentence to be imposed, it cannot be given such weight as to lead to the imposition of the penalty which is disproportionate to the gravity of the instant offence, as to do so would be to impose a fresh penalty for past offences: Veen v R (No 2) (1988) 164 CLR 465 at 477. The applicant submits that, in light of the 19 days spent in custody and in light of the circumstances of the offences for which he was being sentenced, a detention order is excessive.
- On the other hand, the respondent submits that a short detention order is not excessive given the objective seriousness of the offending and the re-offending whilst subject to community-based orders. The prosecution submits that a short detention order with release on a conditional release order in such circumstances is not disproportionate to the objective seriousness of the offending and submits that a conditional release order would be better than probation in assisting the applicant with his particular problems.
- The frustration that must have been felt by the Childrens Court Magistrate in sentencing the applicant for the fifth time in about six weeks for committing similar offences is understandable. In circumstances where, in effect, both parties before him submitted for the same sentencing result, it is unsurprising that such orders were made.
- I am required to look at the matter afresh on the merits. I consider this may well be a situation where insufficient time had elapsed for the applicant to gain any real benefit from the assistance being offered to him by the earlier community-based orders. As I recall a former Judge and Chief Judge of this Court saying in similar circumstances some 30 years ago, the orders “had not yet had time to bite”. I am encouraged by the fact that, other than re-offending, the applicant had been complying with the requirements of those community-based orders.
- When I take into account the objective seriousness of the offences themselves, the antecedents of the child, the 19 days spent in detention prior to sentence, the purposes for which sentence are to be imposed and the principles for sentencing of children as stated in s 150 of the Act, including Youth Justice Principle 18, I am not satisfied, as I need to be, pursuant to section 208 of the Act, that no other sentence but detention is appropriate in the circumstances of this case.
- Considering the matter afresh on its merits, I conclude that an appropriate sentencing order for the two offences of enter premises and commit indictable offence by break is one of 12 months probation.
- Pursuant to section 123(1)(c) of the Youth Justice Act, I discharge the order under review, set aside the order for detention with a conditional release order and substitute an order pursuant to section 193 of the Youth Justice Act that the child be subject to a probation order for a period of 12 months on the conditions specified in section 193(1) of the Act. And as was the case in the Childrens Court below, no convictions are recorded.
- Published Case Name:
R v MSR
- Shortened Case Name:
R v MSR
 QCHC 31
Allen QC DCJ
21 Aug 2020