R v CCO[2020] QCA 231

SUPREME COURT OF QUEENSLAND

1. [1]
   PHILIPPIDES JA:  I agree with the orders proposed by Henry J for the reasons given by his Honour.
2. [2]
   McMURDO JA:  I agree with Henry J.
3. [3]
   HENRY J:  The applicant child pleaded guilty to dangerous operation of a motor vehicle causing grievous bodily harm.  He was sentenced to a restorative justice order and nine months’ probation.  He was also disqualified from holding or obtaining a driver’s licence for 12 months and no conviction was recorded.  He seeks leave to appeal the sentence, complaining that he should not have been sentenced to probation in addition to a restorative justice order.

Background

4. [4]
   The applicant was 17 years old at the time of the offences and 18 at the time of sentence.  He had no prior criminal or traffic history.
5. [5]
   At the urging of the complainant, the applicant drove the complainant’s parent’s utility in a vacant lot while the complainant and another young person were in the tray of the vehicle.  The applicant executed a series of fishtail manoeuvres, travelling between 20 to 40 kilometres per hour.  The vehicle rolled and part of it landed momentarily upon the complainant’s back.
6. [6]
   The applicant, who was the holder of a provisional driver’s licence, was thereafter distraught.  He was not found to be under the influence of any drug or alcohol.
7. [7]
   The complainant suffered a collapsed lung, blood in his lungs and chest cavity, multiple internal contusions and lacerations, including lung contusions, and fractures to his T9 and T10 vertebrae.  A victim impact statement spoke eloquently to the significant physical and emotional consequences of the event, as well as the adverse impact upon the complainant’s final year of schooling.  The vehicle was written off, occasioning financial loss to the complainant’s family.  The Court was informed in the course of the sentence that the complainant was unwilling to participate in any conferencing associated with a restorative justice order.
8. [8]
   By the time of sentence the applicant, who is said to come from a supportive family, had completed year 12 and a number of certificates in mechanics and engineering.  He had also been in full-time employment, which had recently ceased in consequence of the economic impact of the COVID-19 pandemic.  The applicant had expressed remorse to his former friend.
9. [9]
   In sentencing the applicant, the learned sentencing judge had regard to all of the above matters, as well as the applicant’s early guilty plea and a number of youth justice principles recited by his Honour.  He alluded to various comparative authorities in concluding there were more suitable “appropriate sentencing options available” than a “period of detention in a youth detention centre”.
10. [10]
    The prosecution below submitted for a period of up to 12 months’ probation and noted the sentencing judge could make a restorative justice order.  The defence submitted for the imposition of a restorative justice order, rather than probation.  His Honour imposed both.^[1]

Grounds

11. [11]
    The applicant’s grounds of appeal are:

    1. (i)
       the sentence imposed was manifestly excessive;
    2. (ii)
       the sentencing judge erred in making an order in which a restorative justice order was a condition of a probation order; and
    3. (iii)
       the sentencing judge erred in failing to consider a diversionary or presentence restorative justice referral under section 162 of the Youth Justice Act 1992 (Qld).
12. [12]
    As will become apparent, there is sufficient substance to this matter to allow the application for leave and determine the matter as an appeal.

Ground one

13. [13]
    Ground one was, as argued, a complaint of error in the sense identified in House v The King,^[2] namely that the imposition of both orders was collectively so unreasonable or plainly unjust to compel a conclusion that his Honour must have erred, notwithstanding that the nature of the error is not discoverable.
14. [14]
    The imposition of both a restorative justice order and a probation order is permitted by ss 177 and 178C Youth Justice Act.  Doubtless there will be cases in which such a combination of orders is appropriate.  However, as was emphasised by Sofronoff P in R v Patrick,^[3] a sentencing court must determine the sentence to be imposed “by reference to some purpose or purposes”.  The applicant’s complaint is that there was no legitimate purpose for imposing probation additionally to a restorative justice order.
15. [15]
    Consideration of ground one requires some appreciation of the statutory requirements of a restorative justice order and a probation order, set out respectively at ss 192B and 193 Youth Justice Act.  Those sections contain identical supervisory provisions requiring the child to report, abstain from violation of the law, comply with reasonable directions, report and receive visits as directed, notify change of address, employment or school, and not leave Queensland without permission.
16. [16]
    The only difference in the sections’ requirements is that, on the one hand, s 192B requires the child to participate in a restorative justice process as directed and to perform his or her obligations under a restorative justice agreement made in consequence of that participation and, on the other hand, s 193 requires that the child must satisfactorily attend programmes as directed.
17. [17]
    A child’s participation in a restorative justice process, as required by a restorative justice order, involves attending a conference, which sch 4 Youth Justice Act defines as meaning a conference under pt 3 div 2 of the Act.  The object of that division, pursuant to s 33, is to allow the defendant child and other concerned persons to consider or deal with the offence “in a way that benefits all concerned”.  Such a conference is to involve a degree of victim participation, even if only representatively, for example by a representative of an organisation advocating on behalf of victims of crime – see s 35(1)(b)(iii) (the complainant’s reticence to attend such a conference in this case would therefore not be a disqualifying obstacle).  The conference is directed towards making a conference agreement, per s 35(3), in which the child undertakes to address the harm caused by the child committing the offence, per s 36(1)(b).  Such an agreement might potentially include an agreement to attend a programme of a kind which a child could potentially also be directed to attend under a probation order.
18. [18]
    In the present case the offending, while serious, was an isolated instance of immature recklessness.  There was obvious merit in the child being forced to meaningfully confront the grave consequences of his recklessness via the restorative justice process.  It is not apparent how a probation order was additionally apt to the circumstances.  The applicant child was a first offender with good support.  The offending had no connection with some broader issue, such as drug abuse, a psychological problem or a drift into repetitive offending, of the kind which often prompts the making of a probation order on sentence.
19. [19]
    The absence of broader issues meant the only kind of programme likely to emerge as beneficial in the circumstances of the case was a programme about driving danger and safety.  In the course of submissions his Honour noted attendance at such a programme could be directed pursuant to probation and enquired of the Youth Justice representative, Ms Hoffman, whether it could also occur as part of the restorative justice process.  Ms Hoffman confirmed it could, explaining:

“Usually, with restorative justice orders and conferences that involve traffic accidents, as you said, there are a lot of options, either through the transport department – as also – the Forensic Crash Unit with QPS have been involved with previous conferences involving dangerous driving, Road Accident Action Group, as – so there are quite a few options for – in particular, for road accident groups that can participate or be invited to participate in any conference that is held, but as you say, as part of the agreement, he can then be directed to undertake any programs, as offered by the transport department or any other organisation that we can engage in this process.

Under a probation order, it’s similar in that he would be required to participate in any programs as directed, so that is, again, something that can also be achieved by that on a probation order.”^[4]

20. [20]
    After his Honour had heard from Ms Hoffman and the focus of submissions narrowed to the desirability of the two forms of order, the following exchange occurred:

“MS SARGENT [Crown prosecutor]:  My submission is purely on the basis that the probation order would ensure those programs are put to him, and in relation to the conference – just in relation to, I guess, any variable that might arise, and if those orders are – or programs are not offered at that agreement.  That’s purely the basis of the Crown’s submission, is that that probation has a stricter insurance.

HIS HONOUR:  Well, one of the---

MS SARGENT:  Other than – if – in the instance it doesn’t arise out of the agreement or out of the conference---

MS HOFFMAN [Youth Justice representative]:  Your Honour is able to combine a restorative justice order with a probation order under section 178C.

HIS HONOUR:  With probation, yes.  Section 162 requires the court must consider referring for restorative justice, but – Mr Ahlstrand, do you want to be heard in relation to that, a combined order?

MR AHLSTRAND [Defence counsel]:  Your Honour, my instructor’s just formalising some instructions, which I know my client will give that he is willing to participate in any programs, complying with any requirements, as part of the restorative justice order.

HIS HONOUR:  Well, it will just give the---

MR AHLSTRAND:  And if he doesn’t, of course, he’s in breach.

HIS HONOUR:  Yes.  Well, if it comforts the Crown, I think, as I say, the Act is plain enough that if he acts unreasonably, he’s in contravention, but we’ll put that beyond doubt by putting a probation order in place, as well.

MR AHLSTRAND:  It seems, your Honour, that if your Honour were minded to impose a combined order, it’s somewhat duplicitous insofar----

HIS HONOUR:  They’re separate orders.

MR AHLSTRAND:  Yes.  But in terms of – he’s willing to comply with any orders, whether they be under a restorative justice order or standalone probation order.  I’m just not sure what utility there is in doing a combined order.

HIS HONOUR:  Well, look, the utility is that he can be directed under probation.  Obviously, if he, through the restorative justice process, agrees to do all the programs, then probation will have – it will be rendered inutile, but he at least has the – sitting behind him, he has the knowledge that he can be directed to do things, which will – not that I think that’s an issue here.  You tell me he’s prepared to undertake all reasonable things, but I don’t know what things you’re going to put to him.  He might decide, because of his employment, it’s too onerous, he doesn’t want to do it.

MR AHLSTRAND:  Well, he – yes, he is presently unemployed, but very desirous of securing employment, your Honour.  I’m just mindful of the fact the combined order seems quite onerous when your Honour may have been considering just restorative justice prior to my learned friend’s submission.  Would your Honour consider, perhaps, then, just a probation order for about six months.  In my view, it should be, with great respect, one or the other.

HIS HONOUR:  Yes.

MR AHLSTRAND:  I know my friend was agitating for probation [indistinct].

HIS HONOUR:  Look, I’m only considering restorative justice because I’m required to.

MR AHLSTRAND:  Yes, I understand, your Honour.  Yes.

HIS HONOUR:  So I’ve flagged restorative justice because the Act requires me to do it.

MR AHLSTRAND:  Yes.

HIS HONOUR:  And as you know, under the Youth Justice Act, it’s a whole different sentencing regime to that that applies outside Childrens Court.

MR AHLSTRAND:  Yes.

HIS HONOUR:  So I’m just going through the steps.  I’m content, if the parties are happy for a probation order, to put in place probation.

MR AHLSTRAND:  Well, obviously, the defence preferred position, your Honour, is a restorative justice order and a restorative justice order alone, but if your Honour’s not minded to accede to that submission, then it should be a short period of probation only.

HIS HONOUR:  Well, we’ll do the restorative justice.  I’ll put the probation order in place for a short time, just to ensure that the matters are put beyond doubt.  So that there’s no doubt that he will perform in accordance with the orders that are agreed following the restorative justice conference, but probation might see something else that warrants further attention.

TAKE IN SENTENCE”^[5]  (emphasis added)

21. [21]
    This exchange raises the possibility his Honour was troubled that, under a restorative justice order, if the agreement required attendance at a programme about driving danger and safety, the applicant might not attend it, perhaps because of the demands of employment, and a probation order was somehow necessary to ensure such attendance.  Such concern would be ill-founded because, if a restorative justice agreement required the applicant to attend such a programme and he failed to do so, it would be a breach of the order’s requirement under s 192B(b)(vii) that he perform his obligations under the agreement.  In that event, action could be initiated for the breach pursuant to s 238 and the court could vary the order or discharge it and re-sentence pursuant to s 245.  The same sections and powers apply in the event of a breach of probation.
22. [22]
    In the course of his ensuing reasons his Honour purported to explain his decision to impose both the restorative justice order and a probation order, saying:

“While it is, of course, open for restorative justice to be a matter of agreement between you and the agency, Youth Justice in particular, and, of course, I understand your willingness to comply with all reasonable directions, I also have to consider, obviously, the prospect of you at some stage in the near future obtaining employment.  It might be that you enter into an agreement.  Employment, of course, might interfere with that, and might then be seen by you to be something that places the obligations under your agreement into a secondary context.

I think it is beneficial for you to have the benefit of probation for a short time to work with the agreement you will, no doubt, enter into in accordance with the youth justice arrangements for restorative justice.  They can work hand in glove together, hopefully, to see a positive outcome, directed, of course, to your rehabilitation, which is, of course, the principal informing feature of the Youth Justice Act.”^[6]

23. [23]
    These reasons again raise the possibility his Honour did not appreciate that a failure to comply with an agreement under a restorative justice order to attend a programme could trigger breach proceedings in the same way as a failure to comply with a direction under a probation order to attend a programme.  If there was some purpose for imposing probation, other than for the erroneous purpose of de facto enforcement of an agreement to attend a programme, it was not given and is not obvious from the circumstances.  If there had been no restorative justice order it might arguably have been inferred that the purpose was rehabilitative supervision.  However, a restorative justice order carried the same supervisory requirements as a probation order.  There was no additional purpose to be served here by also imposing probation.  The imposition of both orders was so inexplicable and so plainly unwarranted, as to bespeak error.
24. [24]
    It is no answer to the inference of such error that the unwarranted sentence of probation additionally to the restorative justice order might not have resulted in a significantly more onerous burden than the restorative justice order standing alone, for example, if the Chief Executive chose to require the applicant to report under both orders to the same supervising officer at the same times.  The fact remains that a probation order is a separate order and exposes the applicant to obligations which will not inevitably coincide with the obligations of a restorative justice order.  Nor is it an answer that the prospective additional burden of an unwarranted probation order is not as relatively concerning as the burden of an unwarranted period of detention.  Community based sentences carry the burden of obligations and consequences for their subjects.  That such a burden is not as significant as detention cannot justify its wrongful imposition.
25. [25]
    The appellant has made good his complaint of House v The King error.

Ground two

26. [26]
    As to the second alleged error, s 178C(2) Youth Justice Act requires that when a restorative justice order and another sentence order are made for a single offence, they must be made as separate orders rather than one being imposed as a requirement of the other.  It would therefore have been an error if his Honour had made an order in which a restorative justice order was a condition of a probation order or vice versa.  The applicant submits his Honour’s remarks show that is what occurred.
27. [27]
    However, at the highest, his Honour’s remarks indicated a restorative justice order and a probation order would be of complementary rehabilitative effect.  Moreover, when his Honour went on to articulate his orders at the conclusion of his reasons, he articulated each of the orders separately.  He did not make one a condition of the other.  This ground must fail.

Ground three

28. [28]
    The final ground relates to the learned sentencing judge’s alleged failure to comply with s 162 Youth Justice Act by considering a pre-sentence referral for a restorative justice process.  It was held in R v PBD^[7] that such a failure constitutes an error of law in the sentencing process.
29. [29]
    Section 162 provides:

“(1) If a child enters a plea of guilty for an offence in a proceeding before a court, the court must consider referring the offence to the chief executive for a restorative justice process instead of sentencing the child.

3. (2)
   If a finding of guilt for an offence is made against a child before a court, the court must consider referring the offence to the chief executive for a restorative justice process to help the court make an appropriate sentence order.”

30. [30]
    Section 163 deals with the court’s powers to make such referrals, describing a referral as contemplated by s 162(1) as a “court diversion referral” and a referral as contemplated by s 162(2) as a “presentence referral”.  A “finding of guilt” is defined by sch 4 of the Act as meaning “a finding of guilt, or the acceptance of a plea of guilty by a court”.
31. [31]
    Section 162 therefore requires, in the event of a plea of guilty, that before imposing sentence the sentencing judge “must consider” making a court diversion referral as an alternative to imposing sentence and “must consider” making a presentence referral as a means of helping the court make an appropriate sentence order, in the event it does not make a court diversion referral.
32. [32]
    Importantly, the referrals which the court “must consider” pursuant to s 162 are quite different from and not to be confused with the imposition of a restorative justice order as a sentence.  The appellant’s argument raises the spectre of such confusion occurring here.
33. [33]
    The only comments by the learned sentencing Judge which shed any light upon whether his Honour considered making a court diversion referral or a pre-sentence referral were those in the passage quoted above at [18].  Comments such as “I’m only considering restorative justice because I’m required to” and “I’m just going through the steps” appear to have been made in the context of exchanges about whether the sentence to be imposed ought to include both probation and a restorative justice order.  However, his Honour did earlier say, “Section 162 requires the court must consider referring for restorative justice”.  His Honour’s use of the word “referring” suggests he correctly appreciated s 162 was concerned with referrals and not orders made in imposing sentence.  True it is his Honour did not in terms say he had considered making either form of referral and had rejected that course.  However, as Sofronoff P observed in PBD,^[8] the absence of express reference to a particular matter need not mean the matter was not considered.  It is reasonable to infer from his Honour’s express reference to s 162 and the fact no party urged a referral that his Honour considered and rejected the making of any referral as contemplated in s 162.  The third ground has not been established.

Disposition

34. [34]
    The error established in ground one has the consequence that the appeal should be allowed and the sentencing discretion exercised afresh.  It is therefore necessary to consider whether there should be a referral pursuant to s 162, whether as an alternative to imposing sentence or to help this court make an appropriate sentence order.  That the applicant only takes issue with part of the sentence imposed, and not with other parts including driving licence disqualification, is of itself a concession that it would be inappropriate to make a referral as an alternative to sentence.  The court is also sufficiently informed to impose an appropriate sentence without the benefit of a pre-sentence referral.  There should be no referral pursuant to s 162.
35. [35]
    For the reasons already given this is an appropriate case in which to impose a restorative justice order.  As between a restorative justice order and a probation order, the former form of order is preferable here because, additionally to supervisory requirements common to either order, a restorative justice order will compel the applicant child to address the harm caused by his immature but very dangerous conduct.
36. [36]
    I would therefore vary the sentence imposed below only to the extent of setting aside the probation order.

Orders

37. [37]
    I would order:

1. Application for leave to appeal sentence granted.
2. Appeal allowed.
3. The sentence imposed below is varied only to the extent that the order releasing the offender under the supervision of the Chief Executive for nine months (the probation order) is set aside.