CJM v R[2011] QCHC 1

[2011] QChC 1

THE CHILDRENS COURT OF QUEENSLAND

APPELLATE JURISDICTION

JUDGE REID

BRISBANE

DATE 11/04/2011

JUDGMENT

HIS HONOUR: The applicant was born in April 1994 and is therefore now 16 years of age.

On 3^rd March 2011 the Childrens Court in Toowoomba sentenced the applicant to a number of terms of imprisonment, all to be served concurrently. The matters before the Court were as follows:

1. That on the 12th of April 2010, he and two co-offenders had broken into a shed at and taken a go-kart which they then used on a Highway in a dangerous and unlawful manner.

2. On the 9th of May 2010, he and others engaged in wilful damage of part of a car park in Kingaroy.

3. On the 21st of June 2010, he and another stole a backpack containing some personal items of the owner from a Kingaroy Shopping centre. The complainant was an employee of the shopping centre.

He was originally given probation and community service with respect to each of these offences but breached these orders by his subsequent offending, so was before the Court on the 3rd of March 2011 for resentencing.

4. On the 9th of August 2010, he and another stole magazines from the rear of a newsagency. The magazines were being returned by the business for a credit and had a value in return credits of about $1,000. The applicant and his companion eventually threw the magazines into a rubbish bin.

5. On the 4th of August 2010, when aged 16 years and seven months, the applicant was involved in what seems clearly to have been the most serious offence. In the company of two other youths, the applicant assaulted a motor cyclist in Toowoomba. The man was unknown to them and the attack was entirely unprovoked. They punched him and when he fell to the ground he was also kicked. He suffered a fractured nose and required sutures to his cheek and bridge of his nose. When interviewed by police, the applicant provided an inaccurate version of events.

6. On the 7th of January 2011, the applicant and another younger boy committed numerous offences of entering and attempting to enter motor vehicles and a number of stealing offences involving theft of items from cars they had unlawfully entered.

The applicant has an extensive criminal history, dating from June 2007 when he was only 13 years of age. His offences include numerous offences of dishonesty - entering premises, stealing, unlawful dealing with shop goods and unlawful use of motor vehicles - but only one prior offence of common assault on the 11th of May 2009.

He has been the subject of prior reprimands and orders for good behaviour bonds, community service and probation orders. Whilst on such orders, he has continued to offend.

The matter came before me as an application to stay proceedings under the sentence order of the 3rd of March 2011, pending the outcome of an application to review the sentence. The parties sensibly agreed instead to proceed with the sentence review itself in circumstances where the Crown agreed the original sentence should not stand.

Some explanation of the reason why the original sentence of imprisonment was imposed is necessary. At the time of his sentence in the Magistrates Court, the defendant said he was not willing to comply with a conditional release order. He said, somewhat paradoxically, that he did that because he thought he was going to be sentenced to detention in any case. This decision on his part no doubt limited the ability of the Magistrate to impose a sentence which did not involve an actual period of imprisonment.

The applicant says he is now willing to comply with such an order and to undertake an anger management program. He says that he is prepared to live with either his sister in Dalby or aunt in Toowoomba.

The applicant, though having an extensive criminal history for a 16 year old, has not previously had the benefit of a conditional release order, which is the final option prior to actual imprisonment, pursuant to section 219 of the Act, however is nevertheless a detention order under section 150(2) and section 208.

There is also, in the circumstances of this case, the further option of also imposing probation with respect to other offences. In this regard see, R v A and S ex parte Attorney-General Queensland [2001] 2 Qd R 62.

A period of intensive supervision, as occurs under conditional release order, would, in my view, be of benefit to the applicant. This benefit was canvassed in the Department's presentence report. The report also sets out the applicant's unfortunate lack of adult supervision throughout his lifetime.

I should add that he has, since the order of the 3rd of March 2011, served a period of 36 days in detention.

In my view it is unnecessary to recount the full details of the departmental report, suffice it to say that in my view it is appropriate to allow the sentence review and to set aside each of the orders for detention made by the Childrens Court in Toowoomba on the 3rd of March and in lieu of such orders, I order:

1. With respect to the offence of assault occasioning bodily harm in company on the 14th of December 2010, that the applicant be sentenced to a period of detention of four months, but the period of detention is immediately suspended and the applicant is to be immediately released from detention.

2. That the applicant participate, as directed by the chief executive, in the conditional release program for a period of three months, which I think is the maximum; is it not?

MR THOMPSON: That’s correct, your Honour.

HIS HONOUR: 3. That during the period of the order:

1. (i)
   the applicant abstain from violation of the law;

2. (ii)
   that the applicant comply with every reasonable direction of the chief executive;

3. (iii)
   the applicant report and receive visits, as directed by the chief executive.

4. The applicant or a parent of the applicant will notify the chief executive within two business days of any change of address, employment or school.

5. The applicant not leave or stay out of Queensland without the prior approval of the chief executive.

The order, Mr Thompson, where I have made that the applicant or parent of the applicant notify, that might be inappropriate in circumstances where it is proposed that he live with either his sister or his aunt. They might be in a better position to know whether he has changed address and things like that.

MR THOMPSON: Yes, your Honour.

HIS HONOUR: Is there provision for allowing someone other than a parent to make such a notification?

MR THOMPSON: The legislation is quiet on that, your Honour, so therefore it doesn’t exclude it. That’s all I can help you with, I'm sorry.

HIS HONOUR: Mr Law, what is your position on that? It seems

to me that if the legislation does not say anything, it is probably not empowered to.

What I might do is just say, the applicant or a parent of the applicant or such person with whom the applicant was previously residing with the approval of the Department, notify the chief executive within two business days of any change of address, employment or school.

In respect of each of the other offences, I order that the applicant enter into a period of probation for a period of 12 months on the following conditions.

Mr Law, my associate contacted you and you have explained‑‑‑‑‑

MR LAW: Yes.

HIS HONOUR: ‑‑‑‑‑the nature and effect of a probation order to your client?

MR LAW: Yes, I have those instructions, your Honour.

HIS HONOUR: And he has given you instructions that he‑‑‑‑‑

MR LAW: Yes.

HIS HONOUR: ‑‑‑‑‑will consent to it? Thanks very much.

MR LAW: I confirm those instructions.

HIS HONOUR: The applicant must report in person to the chief executive within - he will be released today. I might make it by 4 p.m. on the 12th, in case there are any snags.

2. That during the period of the probation order, the applicant abstain from violation of the law:

2. (ii)
   satisfactorily attend programs as directed by the chief executive;

3. (iii)
   the applicant comply with every reasonable direction of the chief executive;

4. (iv)
   the applicant report and receive visits, as directed by the chief executive;

5. (v)
   the applicant or a parent of the applicant or such person with whom the applicant is residing with the approval of the chief executive, notify the chief executive within two business days of any change of address, employment or school; and

6. (vi)
   the applicant not leave or stay out of Queensland during the probation period without the prior approval of the chief executive.

In respect of the application for extension of time of applications and for sentence review of the orders of the Childrens Court of Kingaroy of the 11th of May 2009 and the 15th of January, 16th of April and 28th of May 2010, I order that that be adjourned.

Do you want it to a particular date or?

MR LAW: No. I'll talk to Ms Nona in the registry and we'll arrange a date.

HIS HONOUR: Adjourned to a date to be fixed.

MR LAW: Thank you, your Honour. Your Honour, in regard to the convictions being recorded for this current review‑‑‑‑‑

HIS HONOUR: It is a bit odd, is it not, because‑‑‑‑‑

MR LAW: Yes.

HIS HONOUR: ‑‑‑‑‑the question of whether I record them very much depend upon what happens with that application. If that application is successful‑‑‑‑‑

MR LAW: Yes.

HIS HONOUR: ‑‑‑‑‑you might say the inclination would be not to record a conviction here, but if that is unsuccessful, then there does not seem much point in not recording. I will not record and that might make it easier.

I am conscious of the assault occasioning bodily harm was unprovoked and moderately violent, but nonetheless the applicant was at the time only 16 years of age. In view of the high priority placed on rehabilitation of young offenders and that bearing in mind the fact that he was only 16 years, I do not record a conviction in respect of any of these matters.

MR LAW: Thank you, your Honour.

HIS HONOUR: Perhaps I should have heard from you, Mr Dickson. You did not have anything to the contrary to say?

MR DICKSON: Your Honour, there was no conviction recorded in the initial sentence‑‑‑‑‑

HIS HONOUR: Yes, that is right.

MR DICKSON: ‑‑‑‑‑so I don’t have any objection to that.

HIS HONOUR: Do I have to set out which office he is to report to? I said, by 4 p.m. tomorrow?

MR THOMPSON: No, your Honour. We will - the detention‑‑‑‑‑

HIS HONOUR: Notify him when he is released from‑‑‑‑‑

MR THOMPSON: The detention centre will organise that and advise him which office to attend.

HIS HONOUR: Thanks very much. Thanks.

MR LAW: Your Honour, just for the record, I should formally ask for leave to file those out of time applications.

HIS HONOUR: I will give you leave to‑‑‑‑‑

MR LAW: Thank you.

HIS HONOUR: ‑‑‑‑‑file the various applications for sentence review dated the 8th of April 2011.

MR LAW: Thank you, your Honour. I appreciate that.