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  • Unreported Judgment

R v Abigail (a pseudonym)

 

[2020] QCHC 41

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v Abigail (a pseudonym) [2020] QChC 41

PARTIES:

R

v

Abigail (a pseudonym)

(applicant)

FILE NO:

356/2020

DIVISION:

Criminal

PROCEEDING:

Sentence Review

ORIGINATING COURT:

Children’s Court at Mareeba

DELIVERED ON:

3 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

26 November 2020

JUDGE:

Richards P

ORDER:

  1. The application is allowed. 
  2. The sentence is set aside.
  3. In lieu thereof the child is placed on 12 months probation and 75 hours community service. The graffiti order is to remain.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the child was sentenced to eighteen offences – where the child was sentenced to a 12 month probation order with special conditions, a 115 hour community service order, a five hour graffiti removal order and a restorative justice order - where the child was 14 years old at the time of the majority of offending – where the child had previously been sentenced on two occasions and received two 12 month probation orders – where the child was on probation as the time of the commission of the offences – where the child had a difficult upbringing - where the child has recently become subject to a long-term guardianship order of the Department - where the child spent 15 days in detention – where the child has positively changed after time in detention - where the child’s living arrangements have changed since the time of offences – whether the learned Magistrate adequately considered s 162 of the Youth Justice Act 1992 (Qld) – whether the sentence imposed by the learned Magistrate was manifestly excessive taking into account the child’s background

LEGISLATION:

s 162 of the Youth Justice Act 1992 (Qld)

COUNSEL:

Mr T Finter for the applicant

Ms M Parfitt for the respondent

SOLICITORS:

Legal Aid Office of Queensland for the applicant

Office of the Director of Public Prosecutions for the respondent

Introduction

  1. [1]
    On 24 September 2020 the applicant child appeared in the Children’s Court at Mareeba and pleaded guilty to a total of 18 offences.  She was sentenced to a 12 month probation order with special conditions, a 115 hour community service order, a five hour graffiti removal order, a restorative justice order and no convictions were recorded.

The offences

  1. [2]
    On 7 January 2020 she committed wilful damage by graffiti by using a black permanent marker to draw on a vehicle parked in a public car park.

On 8 March 2020 she entered the underneath of a house and stole a bicycle.  The next day she entered an open carport and stole another bicycle. 

On 27 March she was found in possession of a bong.

On 13 March she was smashing windows at a residential care placement and put holes in the rear windscreen of a white Holden hatchback. 

On 24 April she called triple zero claiming that there had been a domestic violence incident at a property in Kuranda.  This was not true.  On that same day, two hours later, she again rang triple zero claiming that there had been a domestic violence incident going on at an address in Kuranda and was waiting for police at the BP Service Station.  She then claimed that she had not made the call. 

On 8 May she entered business premises in Cairns and stole a white Samsung Galaxy S2 Tablet. 

Between 5 June and 8 June she entered residential premises at Kuranda and stole keys to a white Ford Fiesta and then stole the vehicle (unlawful use of a motor vehicle).  She drove the vehicle to a rugby league oval and was driving it around the oval. 

On 9 June she threw a kettlebell at an open kitchen window at the residential care placement where she lived and it shattered the window.  On that same day she hit the complainant who had reported the wilful damage with the stalk of a palm frond on the right shoulder several times.  No injuries were sustained. 

On 15 June she gained entry to the Atherton Backpackers Hostel and took $1,200 from the wallet of the complainant (burglary and commit indictable offence), on that same day she stole $350 from another person within the hostel (stealing). 

On 20 June she entered the same hostel and went into a number of different rooms and took a number of items including a patch of tobacco (burglary and commit indictable offence).  On that same day she also took a portable speaker (stealing).

On 26 June she entered the dwelling of the complainant and had a look through the contents of her handbag and jewellery box (enter dwelling with intent).  The police came and searched her and found a bong in her handbag (possession of utensils). 

  1. [3]
    The majority of the offending occurred when she was 14 years of age.  She had previously been sentenced on two occasions and received two 12 month probation orders on 2 April 2019 and 16 March 2020 so she was subject to probation at the time of the offences.
  2. [4]
    The applicant had been on remand for these offences for 15 days and she had found this time in custody to be confronting.  She was residing in residential care with 24 hour supervision.  She had been compliant with her conditional bail program and found the program to be of benefit.  She had completed modules in the following programs: aggression replacement training; changing habits and reaching targets; and emotional regulation and impulse control.  She was enrolled in a Distance Education Program. 
  3. [5]
    There are issues of totality that are relevant to the matter. 
  4. [6]
    A pre-sentence report was prepared for this sentence.  It noted that the applicant child was the youngest of three children.  Her parents had separated when she was 12 months’ old and the father gained full custody of the children.  The parental relationship had broken down due to domestic violence and excessive substance misuse by both parties.  Between 2006 and 2020 there were 17 child concern reports and five investigations recorded relating to domestic violence and substance misuse, inadequate supervision, lack of school attendance, unsanitary home environments, emotional abuse and harsh physical discipline.
  5. [7]
    A temporary custody order was taken out in February of 2020 when she was placed in residential placement in Cairns.  She was placed in long-term guardianship on 1 September 2020.  As a result of the child’s father using overly harsh physical discipline in trying to control the child she was responding by becoming reactive, withdrawn or exceedingly anxious in social settings as she modelled her father’s use of violence to resolve interpersonal conflict.
  6. [8]
    Her brother committed suicide in August of 2018 and she was still grieving that loss.  She described feeling angry and helpless as a result and was engaging in self-harming behaviours and substance misuse.  She started using cannabis and alcohol at 11 years of age and had started using methamphetamine at around the time of the current offences.  She left school at Grade 9. 
  7. [9]
    At the time of sentence she had been engaging with a psychologist and had also been participating in cultural mentoring activities.
  8. [10]
    She had indicated a desire to address her substance misuse and she had enrolled at a Distance Education Program.  The child was willing to comply with a restorative justice order, community service order or probation. 
  9. [11]
    Her placement at the time of sentence was in Kuranda where she had 24 hour one on one supervision.  Her previous placement had no structure and she was left to her own devices during the day.  The applicant addressed the court “I think that Cleveland was a very good thing for me to realise that what I was doing wasn’t worth it and I’ll not do it again and I obviously won’t come back here.  Yeah. That’s pretty much all I have to say. But, yeah, Cleveland was a good thing for me.”  Her solicitor noted that she had changed remarkably since her release from Cleveland Youth Detention Centre.  He said she was not on any drugs any more, she speaks coherently and she is well presented.
  10. [12]
    Given her background and the combination of sentences imposed the Crown concedes that the sentence is manifestly excessive.  There is no evidence that the Magistrate considered s 162 of the Youth Justice Act 1992 (Qld) and whether a restorative justice diversion was appropriate although it has to be said that order was an unlikely outcome in the circumstances, given the fact that most of this offending took place very soon after she was placed on a probation order.   
  11. [13]
    The Crown concedes that the combination of orders are excessive.  The Crown submits that 12 months’ probation and 75 hours community service together with a graffiti removal order and a reprimand is the appropriate order.  The applicant submits that a 60 hour community service order and a reprimand is appropriate. I agree with the crowns submissions in relation to penalty.
  12. [14]
    The application is allowed.  The sentence is set aside. In lieu thereof the child is placed on 12 months probation and 75 hours community service. The graffiti order is to remain.
Close

Editorial Notes

  • Published Case Name:

    R v Abigail (a pseudonym)

  • Shortened Case Name:

    R v Abigail (a pseudonym)

  • MNC:

    [2020] QCHC 41

  • Court:

    QChC

  • Judge(s):

    Richards P

  • Date:

    03 Dec 2020

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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