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- Unreported Judgment
CHILDRENS COURT OF QUEENSLAND
LTO & NTO v Office of the Director of Public Prosecutions  QChC 36
OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS
296/2020 and 297/20
Sentence Review Application
Childrens Court of Queensland
18 November 2020
13 November 2020
CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the child was sentenced for two charges of assault occasioning bodily harm in company – where the child was sentenced to three months detention to be served by way of conditional release order – where the child was 16 years old at the time of offending and 17 at the time of sentence – where a pre-sentence report was ordered in relation to the child – where the child is in the care of the Department of Child Safety – where the child had limited involvement in the offending – where the child felt empathy for the victim – whether the sentence imposed by the learned Magistrate was excessive given the mitigating factors in favour of the child
CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the child was sentenced for four offences – where the child was sentenced to four months detention to be served by way of conditional release order for three months – where the child was 16 years old at the time of offending and 17 at the time of sentence – where a presentence report was ordered in relation to the child – where the child is in the care of the Department of Child Safety – where the child had a significant juvenile criminal history – where the child had limited insight into the effects of her offending – where the offending was serious in nature – where the child had significant involvement in the offences – where the child had a traumatic and unstable upbringing – whether the sentence imposed should have been one of a lengthy term of probation – whether the sentence imposed by the learned Magistrate was manifestly excessive
s 175 of the Youth Justice Act 1992 (Qld)
Mr R Gill instructed by Legal Aid for LTO
Ms R Cavalli instructed by Legal Aid for NTO
Mr D Sampey for the Office of the Director of Public Prosecutions.
- On 19 August 2020, the two applicants were sentenced in the Childrens Court at Townsville. LTO was sentenced in relation to two charges of assault occasioning bodily harm in company. NTO was sentenced in relation to two charges of assault occasioning bodily harm in company and two charges of common assault. She was also sentenced on the same day for wilful damage and stealing and was reprimanded. [Those two charges are not the subject of this review]. LTO was sentenced to three months’ detention to be served by way of a conditional release order for a period of three months. NTO was sentenced to four months’ detention to be served by way of a conditional release order for three months. Convictions were not recorded in relation to any of the offences.
- The two applicants were born on 27 March 2003 and are twins. They were 16 years at the time of the offences and 17 at the time of sentence. Pre-sentence reports were prepared in relation to both of the applicants.
- The two sisters were born in New Zealand and re-located to Australia at the age of 10. Their biological mother passed away when they were a few months old and they had been raised by their father and step mother. Both girls were in the care of the Department of Child Safety at the time of the offending. The department’s contact with the family commenced in 2017 following information that the two girls had been absconding from the family home and that the father and step-mother were unwilling to care for them. They went to live at their sister’s residence for a short period and then with their aunt, but both of those family placements broke down. Their father and step-mother have indicated they are unwilling to care for the children and have returned to New Zealand and have no further contact with them. As a result of this, the two girls are very reliant on each other and it was the opinion of the report writer that LTO acted in a protective capacity towards her sister, saying there was an expectation that they support each other.
- LTO received a community service order in May 2019 and has been since subject to further community service orders which were completed in April of 2020. Her offences previously included assault occasioning bodily harm, property related offences and public nuisance. She was not at the time of the offending subject to any orders.
- NTO was not subject to any orders at the time the commission of the offences, however, she had previously had one probation order, three community services orders and a restorative justice order. The restorative justice order was ongoing. She had previous been convicted of offending in very similar circumstances to this, namely confrontation with other girls. She had a more significant juvenile criminal history than her sister.
- Both girls had documented conflicts with their carers in their residential homes and with members of their family. Additionally, they had had a significant number of behaviour incidences in their last three school enrolments with verbal misconduct, peer conflict and defiance and threats to adults. NTO had received a number of suspensions from school.
- In relation to the offending, LTO described the offences as opportunistic. She said that she felt empathy for the teacher victim, but indicated she was not an instigator of the violence. She justified the offending against the child victim on the basis that there was ongoing conflict between that victim and the co-offender group. At the time of the offending, both girls had been in residential care and they were attending a local school. They were engaged with the school and LTO had demonstrated a consistent school attendance since May of 2020. She was willing to comply with any order that was imposed.
- In relation to the most serious offending, the assaults occasioning bodily harm, NTO was focused on revenge as she planned to attend the victim’s school the day after a dispute with the victim. She had limited insight into her offending behaviour and the impact it might have on others. The report writer opined that this was as a result of her instability in her childhood and experiences of trauma. She was willing to comply with any order imposed. NTO had achieved 100% attendance at the local school since being enrolled at the end of term one, 2020. She was also engaged with Evolve Therapeutic Services.
- The offending was very serious, they had, in a group, tracked down this girl and she had been punched and kicked whilst on the ground. Teachers came to help but that did not stop the offending as the girls’ reached around to punch her while the teachers were trying to stand in between, and the teachers ended up being assaulted as well. LTO was a party to the offending by encouraging the assault on the young girl, but did not physically participate. She did however try and punch the girl once the teacher stood in the way and ended up assaulting him. NTO did actually punch the young girl and then proceeded to assault three of the teachers in her efforts to get to the young girl when the teachers tried to protect her.
- The Crown lists the following features as indicating the seriousness of the offending: the fact that the girl was alone, that she was punched and kicked whilst on the ground, that the children were in company, that the child victim was at school, that it was premeditated, that the assault continued despite teacher intervention, that some of the injuries required medical treatment and that the teachers were assaulted in the course of their employment and it occurred in public. There was also the fact that they both had previous convictions for offences of violence occurring in a similar fashion.
- On behalf LTO it was submitted at sentence that the girls had very little contact with her father and step-mother and of course they were no longer in the same country as them. Their longer term placement had broken down and they were experiencing instability and upheaval in terms of their accommodation, although the Department was endeavouring to assist with that. There was significant violence within the family unit between the parents, step-mother and directed towards the children as well as exposure to drug use. The plan was to graduate from Year 12 through the local school. The Department intended to work towards reunification of the family in New Zealand, although it is unclear when that would happen. It was submitted on her behalf that probation was the appropriate penalty and that the seriousness of the offence alone is not a reason to escalate the penalty to detention; that there were other options that could be explored.
- In terms of interventions for the probation, it was suggested that they could be used to help her develop appropriate decision-making problem-solving skills as well as strategies to address negative peer influences. There was also the Emotional Regulation Response Control Program, which was designed to promote healthy social and emotional development for adolescents and help cultivate appropriate emotional regulation and impulse control skills.
- In relation to NTO, it was submitted that she had grown up in very damaging circumstances and this is reflected in her reactions to others. She had previously completed her community service and probation orders and she was in the process of finalising a restorative justice order.
- In sentencing the two girls the magistrate noted that the assault was disturbing and serious and the fact that teachers were involved was a circumstance of aggravation because they were authority figures who were being completely ignored by these young girls. Her Honour noted that her task involved balancing rehabilitation with the need for deterrence and that children should be detained in custody as a last resort and for the least time that is justified. She noted that NTO was unable to demonstrate appropriate remorse for her reactions and had limited insight. LTO was more empathetic, particularly towards the teacher victim. She further noted that NTO had a significant history of violence. She concluded that the assaults were so serious that they could not be appropriately dealt with by way of community-based orders. She concluded that there was no other sentence that was appropriate other than detention but that a conditional release order was appropriate.
- In relation to LTO, it is submitted on her behalf that a restorative justice order would be appropriate. The Crown accepted that the sentence imposed in respect of LTO was excessive in the circumstances, given her involvement in the offending, her shorter history and the fewer charges that she was facing. Her assault on the school teacher was an attempt to assault the victim while she was on the floor rather than a focused assault on the actual teacher. It is submitted that a period of probation together with community service order would be appropriate for LTO by the Crown. This would enable her to have the necessary supervision and programs to assist in her rehabilitation.
- In relation to NTO, it was submitted that a lengthy period of probation would have been the appropriate sentence. The Crown opposes that order indicating that she was involved in assaulting four people. She threatened some of the teachers. She punched the victim while she was lying on the ground. She deliberately punched two teachers in the head and one punch caused a swelling to a teacher’s lip. She had a relevant criminal history for offences of violence. She had previously had probation and there were two further minor offences that were dealt with on the day.
- In respect to LTO, I accept the submissions that the sentence was manifestly excessive. Given the level of her involvement in the offending, it could not be said that the sentence of detention was appropriate. Both girls have indicated a desire to move back to New Zealand when they turn 18. In that country they have family who are willing to engage with them and obviously family support would be to their benefit. In those circumstances it seems to me that the appropriate for LTO would be a restorative justice order pursuant to s 175 of the Youth Justice Act 1992 (Qld) rather than probation. A sentence of that nature would enable completion of any agreement in a more timely manner than a lengthy period of probation. A probation order cannot be transferred to New Zealand. The conditional release order is set aside and a restorative justice order pursuant to s 175 of the Youth Justice Act 1992 (Qld) is imposed.
- In relation to NTO, given her more serious history of offending, her more significant involvement in the offences, together with her deliberate assault of three teachers, it cannot be said in my view that the sentence imposed was manifestly excessive. The application for sentence review in relation to NTO is dismissed.
- Published Case Name:
LTO & NTO v Office of the Director of Public Prosecutions
- Shortened Case Name:
LTO & NTO v Office of the Director of Public Prosecutions
 QCHC 36
18 Nov 2020