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  • Unreported Judgment

R v Jordan (a pseudonym)

 

[2020] QCHC 44

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v Jordan (a pseudonym) [2020] QChC 44

PARTIES:

R

v

Jordan (a pseudonym)

(applicant)

FILE NO:

352/20

DIVISION:

Appellate

PROCEEDING:

Sentence Review Application

ORIGINATING COURT:

Atherton Childrens Court

DELIVERED ON:

4 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

1 December 2020

JUDGE:

Richards DCJ

ORDER:

  1. The application for sentence review to be heard out of time be allowed.
  2. The application for sentence review is allowed.
  3. The sentence of 100 hours community service and the special conditions attached to the probation order is set aside.
  4. The sentence is otherwise to remain.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the applicant seeks an extension of time for sentence review – where the sentence review application was made out of time

CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the child was sentenced to various offences – where the child was sentenced to 100 hours community service and 12 months’ probation – where no convictions were recorded – where the child had spent 35 days in custody – where the probation order imposed included a number of extra conditions – where a pre-sentence report was before the court in relation to the child - where the child had a prejudicial upbringing – where the child had an acceptable level of empathy for the victims – where the child was taking constructive steps to disassociate from anti-social behaviour – where s 193(2) of the Youth Justice Act 1992 (Qld) sets out circumstances in which the court may impose additional probation conditions – whether the Magistrate complied with s 193(2) of the Youth Justice Act 1992 (Qld) when imposing extra probation conditions – whether the sentence imposed by the learned Magistrate was manifestly excessive due to the child previously serving 35 days in custody

LEGISLATION:

s 193 Youth Justice Act 1992 (Qld)

SOLICITORS:

C Anderson-James of Legal Aid Queensland for the applicant

J Coghlan for the Office of Director of Public Prosecutions for the prosecution

Introduction

  1. [1]
    The child was sentenced on 15 September 2020 in the Atherton Childrens Court in relation to one charge of stealing, one charge of fraud, one charge of enter dwelling and commit an indictable offence, two charges of enter premises with intent. All of those offences occurred on 4 February 2020. There are a further nine charges of entering premises and commit an indictable offence by break. Those offences occurred between 10 November 2019 and 15 December 2019 with the final offence on 6 February 2020. He was also charged with escape by persons in lawful custody on 7 February 2020 and enter premises and commit an indictable offence – two charges on 4 December 2019 and 4 April 2020.
  2. [2]
    He was sentenced to 100 hours community service and 12 months’ probation for all offences and no convictions were recorded. The probation order included additional conditions that the child must attend and satisfactorily participate in:
    1. (a)
      Such assessments, counselling and/or treatment for drug and/or substance abuse;
    2. (b)
      Such training or counselling to develop a sense of personal responsibilities and moral reasoning;
    3. (c)
      Such sporting and/or other activities as are appropriate to develop prosocial attitudes and self-worth;
    4. (d)
      Education sessions; and
    5. (e)
      Such culturally appropriate Indigenous programs as directed by the Chief Executive Officer.
  1. [3]
    The application for review was filed out of time and therefore an extension of time within which to apply has been sought. The extension of time is not opposed and given that there is merit in the review, it is appropriate to grant the extension.

Facts

  1. [4]
    The facts of the offences are as follows:
    1. (a)
      14 December 2019 – enter premises and commit an indictable offence – the child and an adult entered a Puma service station by throwing a rock through the front glass, they stole boxes of cigarettes, chips and drinks.
    2. (b)
      Between 10 December 2019 and 13 December 2019 – enter premises and commit an indicatable offence by break x 4 – the child and an adult broke into parked vehicles searching for property - on two occasions they stole keys.
    3. (c)
      14 December 2019 – enter premises and commit an indictable offence by break – the child and an adult entered Tablelands Hardware – they searched the office and left the store.
    4. (d)
      Between 12 December 2019 and 15 December 2019 – enter premises and commit an indictable offence by break x 3 – the child and an adult broke into a parked car and stole a pair of binoculars, they entered a Community Services Tablelands office on forced entry to a donation box and key box inside the building, they broke two windows of Barry Clough Auto Repairs and stole beer.
    5. (e)
      4 February 2020 – stealing, fraud, enter dwelling and commit an indictable offence, enter premises with intent to commit an indictable offence by x 2 – the child climbed onto a second storey balcony of a house and stole a mobile phone, a keyring and blue torch, the child used the mobile phone to make phone calls; the child and a co-offender entered an address and took property, the child and the co-offender entered a motor vehicle outside the address above looking for property, the child and a co-offender entered another vehicle outside the same address looking for property.
    6. (f)
      6 February 2020 – enter premises and commit an indictable offence by break – the child gained entry to a motor vehicle and stole a pair of shoes.
    7. (g)
      7 February 2020 – escape by persons in lawful custody – the child was being escorted to the rear of the Innisfail Watchhouse when he ran away through the courthouse carpark.
    8. (h)
      4 April 2020 – enter premises and commit an indictable offence – the child entered the Barron Valley Hotel through the rear entrance, he used a knife in the kitchen to cut cables connecting the cash register to the counter and took it. There was no cash in the cash register.
  2. [5]
    The child has a criminal history involving four court appearances, largely relating to property offences. He has two probation orders, a community service order and has previously been sentenced to detention.
  3. [6]
    A pre-sentence report was before the court. It noted that the child had a prejudicial upbringing. His mother suffered from depression and substance misuse. There was significant domestic violence in the household and family dysfunction. He started using cannabis in 2016 and has gone on to use MDMA and drink excessive amounts of alcohol. He is no longer attending school and his friends therefore are those that participate in criminal activity. It was noted he showed an acceptable level of empathy for his victims.
  4. [7]
    He has spent 35 days in custody and has been on a conditional bail program. At the time of the writing of the report he had successfully completed, since his release from detention, a Certificate 2 for work on vocational pathways with a vocational partnership group in Atherton. He had engaged in interventions with Youth Justice including the Changing Habits and Reaching Targets Program, indigenous mentoring and victim empathy. He had also attended two days of a numeracy and literacy program and participated in a music program. He has taken extra steps to reduce his alcohol and cannabis intake of his own volition.

Discussion

  1. [8]
    Section 193 of the Youth Justice Act 1992 (Qld) sets out the general requirements to be contained in a probation order. Section 193(2) sets out the circumstances in which the court may impose additional conditions namely to prevent a repetition of the offending or other offending. However, s 193(4) states:

“A requirement imposed by a court under sub-section 2—

  1. (a)
    must relate to the offence for which the probation order is made; and
  1. (b)
    must be supported by the court’s written reasons; and
  1. (c)
    must not require the child to wear a tracking device.”
  1. [9]
    The Magistrate, in sentencing the child, noted that he had come to a significant cross-road in his life and he was taking constructive steps to disassociate himself from that life. He noted that his sister had a positive impact and influence on him and that he had taken steps to address his issues and turn his life around. The Magistrate then decided the period of 12 months on probation and 100 hours unpaid community service would be appropriate.
  2. [10]
    It is submitted that the sentence is manifestly excessive because the magistrate did not take into account the 35 days in custody and the fact that he had been on a conditional bail program for six months and had complied with the program well.
  3. [11]
    This is a case where once again the Magistrate was led to a certain extent into error by the submissions of the child’s representative because having spent 35 days in custody he submitted that 100 hours community service would serve as punishment for the offending. Thirty-five days in custody is a significant punishment in itself.
  4. [12]
    It is conceded by the Crown that the requirements of s 193(2) were not followed when the Magistrate imposed the special conditions on the probation order. No written reasons were given for the special conditions imposed. This is a mandatory requirement of s 193(4) of the Act.
  5. [13]
    I accept the Crown concession that the exercise of the discretion miscarried and that the imposition of the 100 hour community service order was unnecessary to achieve the target of rehabilitating the child in circumstances where he had in fact made tangible and real improvement.
  6. [14]
    The application is allowed. The sentence of 100 hours community service and the special conditions attached to the probation order is set aside. The sentence is otherwise to remain.
Close

Editorial Notes

  • Published Case Name:

    R v Jordan (a pseudonym)

  • Shortened Case Name:

    R v Jordan (a pseudonym)

  • MNC:

    [2020] QCHC 44

  • Court:

    QChC

  • Judge(s):

    Richards DCJ

  • Date:

    04 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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