R v HCG[2021] QCA 200

[2021] QCA 200

COURT OF APPEAL

FRASER JA

McMURDO JA

MULLINS JA

CA No 188 of 2021

DC No 17 of 2021

DC No 23 of 2021

DC No 25 of 2021

THE QUEEN

v

HCG Applicant

BRISBANE

TUESDAY, 21 SEPTEMBER 2021

JUDGMENT

McMURDO JA:  On 21 June 2021, in the Childrens Court the applicant pleaded guilty to offences charged on two indictments and to one summary offence.  He was sentenced by a Judge of that Court on 21 July 2021.  In total, there were 15 offences, the most serious of which was committed on 17 May this year, when he spat in the face of a police officer.  On that offence, it was ordered that he be detained for six months.  There were three offences of burglary and stealing, for which three months’ detention was imposed in each case, and an offence of the unlawful use of a motor vehicle, for which three months’ detention was imposed.  There were other offences which attracted penalties of two months’ or one month of detention.  And four offences for which he was simply reprimanded.

The Judge ordered that he would be released after serving 50 per cent of the period in detention, that is to say, after three months.  He had spent four days in pre-sentence detention.  Consequently, that three months will expire on 17 October.  Subject to the outcome of this application, he will then be released under a supervised release order under s 228 of the Youth Justice Act 1992 (Qld).

This is an application for leave to appeal against those orders, in which it is argued that the “sentence imposed” is manifestly excessive and that the Judge made errors in his application of s 208 of the Act.  Ultimately, what is challenged is the Judge’s decision not to make a conditional release order.

The applicant was born on 31 August 2004.  He was aged 15 and 16 at the time of the offences, and 16 at the time of the sentence hearing.  He already had an extensive history of offending involving, mainly, offences such as burglary and unlawfully using motor vehicles.  He had previously received sentences which included probation, and some community service orders which he had breached on occasions by reoffending.

As recently as 29 March 2021 he had received a 12 months’ probation order for four offences, including burglary and the unlawful use of a motor vehicle.  All but one of the subject offences were committed in April and May, that is to say, very soon after that probation period had commenced.  However, prior to the present matters, he had never been sentenced to any period of detention or a conditional release order.

A pre-sentence report dated 14 July 2021 was tendered at the sentencing hearing.  The author noted that the applicant was an Indigenous boy with a mild intellectual impairment.  He said that the applicant had become disengaged from education from late last year, and that his offending had come from a combination of limited adult supervision, disregard for parental boundaries, low level intellectual disability, his disengagement from education, negative peer relationships and associated anti-social attitudes, as well as from the influence of substance abuse.  The report outlined the sentencing options which might be considered.  One of them was a conditional release order, about which the author said:

“Should your Honour deem a detention order the most appropriate sentence in relation to the offence, your Honour may wish to consider suspending the order and making a conditional release order.  Such an order would reinforce the seriousness of [the applicant’s] offending, whilst giving him a final opportunity to remain in the community.

A conditional release order would require [the applicant] to be involved in a structured program for a maximum period of three months.  The conditional release order program would require [him] to participate in an educational program, reintegrative activities, and interventions to reduce the likelihood of further offending.  [The applicant] would be required to work intensively with his caseworker throughout the duration of this order.

…

[The applicant] has been assessed as a suitable candidate for a conditional release order by the Youth Justice, and a copy of the proposed program is attached.”

The report said this about a detention order:

“A detention order would provide a clear punishment for [the applicant] and a strong message that such offending is unacceptable; however it would deny [him] the opportunity to re-engage with educational based programs and limit his opportunity to address his offending behaviour and his community based support network.”

The sentencing Judge described the applicant’s offending as “flagrant” and “brazen” and as showing a total disregard for the safety, wellbeing and property of the community.  His Honour discussed the pre-sentence report before observing that the applicant had not responded positively to any of the five probation orders to which the applicant had been the subject previously.  He said that what was really in contest was whether the applicant would be subject to a conditional release order, or simply a detention order.

The Judge referred to the sentencing principles to which he was to have regard, pursuant to s 150(2) of the Act, as well as to s 208, by which a detention order against a child has to be made only if the Court is satisfied, after considering all other alternative sentences and taking into account the desirability of not holding a child in detention, that there is no other sentence which is appropriate in the circumstances for the case.

His Honour referred to the passages – to passes of the judgment of the President in R v SCU [2017] QCA 198 at [81] and [83] before giving these reasons for his conclusion that, in the terms of s 208, no other sentence but detention was appropriate.  He said:

“In my view, your extremely anti-social behaviour, your disregard for the support that has been offered to you by your family, your disengagement with the mainstream education system for an extended period of time, your cognitive deficits, and the flagrant and serious offending which involves a complete disregard for the interests of other people, and both their property and personal integrity, means that a conditional release order would not be likely to be effective in preventing you continue on the path of committing serious offences.

In my view, deterrent sentences are warranted because of your complete failure to attempt to rehabilitate yourself in any meaningful way, your complete failure to take advantage of the supports that have been offered to you in circumstances where your offending has even occurred in the presence of an officer who was attempting to ensure compliance with a previous order that been imposed which had required a reporting condition.  Your offending is so flagrant.

And I have so little appreciation that you have any motivation to engage, in any meaningful way, with any attempts to rehabilitate you and transition you into a law abiding member of the community, that I am of the view that, considering all other available sentences – even when I take into account that you have only spent four days in detention, and for various short periods on remand – you have reached a point, at 16 years and 10 months of age, where there is no other sentence which is appropriate in the circumstances of this case.”

In my judgment in SCU, with which Justice Morrison agreed, I discussed the balancing exercise which is to be undertaken in the sentencing of children under the Act, and the differences between that and the sentencing discretion which is exercised with adult offenders.  One of the differences, which is centrally relevant to this case, is the special importance under the Act of the consideration of rehabilitation.  I referred to s 150(2)(a) and said, at [152], that this:

“…necessarily affects the weight to be given to the objects of punishment, denunciation and deterrence and thereby lessens their importance relative to the object of rehabilitation.”

I referred also to the special considerations which are prescribed by section 150 (2)(b), (c) and (e).

As I read the reasoning of the sentencing Judge, his Honour concluded that a conditional release order would not be likely to be effective towards the rehabilitation of the applicant, and that all which remained, as a way of correcting his behaviour, was to deter him from further offending by a period of actual detention.  In my respectful view, that reasoning was inconsistent with the requirements of the Act.

By s 150(2)(b), the Court must accept that a non-custodial order is better than detention in promoting a child’s ability to reintegrate into the community.  By s 150(2)(c), the Court must accept that the rehabilitation of a child would be greatly assisted by opportunities to engage in educational programs.  The evidence from the pre-sentence report was that the applicant had become disengaged from mainstream education.  The evidence was that a conditional release order would require him to participate in an educational program.  A detention order would deny him the opportunity to re-engage with educational based programs, as well as limiting his opportunity to address his offending behaviour with his community-based support network.  His Honour’s conclusion that the applicant’s prospects of avoiding a path of committing serious offences could be promoted only by a period of detention was therefore inconsistent with the evidence from that report and with the premises upon which a Judge is required to sentence a child by the mandatory terms of sections 150 and 208.

For these reasons, the exercise of the sentencing discretion miscarried and the applicant should be resentenced.  Given my conclusion on this ground of appeal, it is unnecessary to consider the alternative ground that the sentence was manifestly excessive.

By s 220, a Court that makes a detention order against a child may immediately suspend the order and make an order, called a conditional release order, that the child be immediately released from detention.  A conditional release order must contain the matters as required by s 221.  They include a condition that during the period of the order the child abstain from violation of the law.  The period of the child’s participation under a conditional release order must be no more than three months.  At the end of the program period a child is no longer liable to serve a period of detention under the detention order.  Of course, this is subject to there being no contravention of the order.

The applicant, having now served two months of the three months of detention to be served before his release under a supervised release order, it is appropriate that he be released immediately under a conditional release order for a period of three months.  If he is willing to comply with that order, there should be an order under s 220 for the immediate suspension of the detention order and for a conditional release order, on such of the sentences in this case for which a period of detention of at least three months was imposed (the other sentences having been served by now).  Counsel for the applicant was able to inform the Court that the applicant is willing to comply with such an order.

Accordingly, I would grant leave to allow the appeal, immediately suspend the detention orders imposed for the offence on indictment 17 of 2021 and the offences the subject of counts 4, 7, 8, 11 and 12 on indictment 25 of 2021, and order that the applicant be immediately released from detention, upon conditions that:

1. (a)
   he participate as directed by the Chief Executive in a program for a period of three months from today, and
2. (b)
   that during the period of that program –

1. (i)
   he abstain from violation of the law, and
2. (ii)
   he comply with every reasonable direction of the Chief Executive, and
3. (iii)
   he report and receive visits as directed by the Chief Executive, and
4. (iv)
   that he or a parent of him notify the Chief Executive within two business days of any change of address, employment or school, and
5. (v)
   he not leave, or stay out of Queensland, without the prior approval of the Chief Executive.

FRASER JA:  I agree.

MULLINS JA:  I agree.

FRASER JA:  The order of the Court will be that which was pronounced by Justice McMurdo.