R v CMJ[2011] QCHC 17

[2011] QChC 17

THE CHILDRENS COURT OF QUEENSLAND

ACTING JUDGE FARR SC

THE QUEEN

v.

CMJ

BRISBANE

DATE 07/07/2011

ORDER

HIS HONOUR: This is an application for sentence review in relation to CJ, who was sentenced in the Atherton Childrens Court on the 8th of February 2011 in relation to a charge of enter a premises and commit an indictable offence, such offence occurring on the 13th of January 2011.

On that same day, she was also convicted of one count of trespass, an offence which was related to the entering premises offence, and for that matter she was reprimanded.

At the time of the commission of that offence, the applicant was 16 year of age. She is now 17 years of age.

Briefly, in relation to the offence itself, the applicant was one of a number of juveniles - three, I think, in total - who entered the school hall at the Atherton High School on the afternoon or evening in question, and sprayed a fire extinguisher around in the hall. The cost of the damage alleged for the two fire extinguishers that were used, not one, and the fire extinguisher cabinets, which were broken when they took the fire extinguishers from the cabinets, totals $1,028.50.

The applicant has one prior entry on her criminal history when she was given a reprimand on the 8th of August 2010, for an offence of wilful damage. That offence was one where she effectively lost her temper, and damaged some property at a residence.

I note that the applicant has been diagnosed as suffering from a mild intellectual impairment. She's currently medicated for depression, and attention deficit disorder, and is in the care of the Department of Child Safety.

She was sentenced in the first instance to 100 hours of community service and 12 months' probation, and it is submitted on her behalf that that sentence is manifestly excessive in the circumstances.

Given, however, that this application for review is by way of re-hearing on the merits, I do not need to find error on the part of the sentencing Magistrate; rather, to reassess the material afresh in this proceeding.

I note also that one of the co-offenders, a young 13-year-old boy by the surname of C, has also been dealt with by the Courts for this matter, and in fact, was the previous review matter that I dealt with this morning, at which time I reprimanded him on the same charge. I note that C had completed 68.15 hours of the 100 hours of community service that had originally been ordered to be performed.

Parity principles do play some role, therefore, in this matter, but there are some distinguishing features. Ms CMJ, of course, is considerably older than Master C, and she has a prior conviction for a similar offence, whereas Master C had no prior convictions.

Counter-balancing those considerations, however, is her intellectual impairment and her psychiatric or psychological state, which are relevant considerations on sentence.

I note that Ms CMJ has completed 12 and a-half hours to date, of the 100 hours of community service that was originally imposed upon her.

The application for review is not challenged. The respondent agrees that the sentence imposed at the first instance was excessive in the circumstances, and that other sentencing options were reasonably open to the sentencing Magistrate, and are open to this Court.

Originally, there was a dispute as to whether an appropriate outcome to this matter would have been a reduced period of probation or an order for good behaviour, but that disagreement has dissipated this morning, and both parties are of the view that an order for good behaviour would be appropriate in the circumstances of this case.

The fact that both parties agree in that regard is of assistance to the Court, but ultimately, the Court, of course, has to make its own decision as to what is an appropriate penalty in the circumstances, and in that regard, I readily accept that a 100-hour community service order and a 12-month probation order are excessive in the circumstances of this case, particularly given the fact that she has only the one prior conviction, the relatively minor nature of the offending behaviour, and the sentence which was imposed upon her co-offender.

I note that the applicant is in the care of the Department of Child Safety, and that she will therefore have the benefit of departmental officers to assist her with life support and housing, and that that type of ongoing support to assist with her independent living within the community is the type of support that is referred to in the report of psychologist Jenny Davis, such report dated the 30th of September 2010. I accept that the support that Ms Davis speaks of is the type that is most properly provided by the department, and is not one that would ordinarily fall within the ambit of a probation officer.

I have also been referred to two decisions; one decision of this Court, and one of the Court of Appeal. In this Court, the matter of the Queen and Alex Kemeny and Cameron Woodall, which is number 174 of 2007, and was a matter before his Honour Judge Botting, which was a similar type of matter in which his Honour interfered with a fine of $300, I think, which was imposed in the first instance. That dealt with offenders who were not juveniles at the time. Notwithstanding that, they were ordered to be placed on a good behaviour bond for a period of nine months with a $100 recognisance.

The other matter to which I was referred was the Queen and BBX [2011] QCA 8, which again suggests that the sentence which was imposed in this case was excessive in the circumstances.

For those reasons, I conclude that it is appropriate in this case to discharge the order of the Magistrate that was imposed on the 8th of February 2011, and I do so, and I will substitute another order which is within the jurisdiction of a Childrens Court Magistrate to make. Namely I order that the application be of good behaviour for a period of six months. I impose as a condition of this order, a requirement that the applicant abstain from violation of the law for the period of the order.

Are there any other orders that are required?

MS MCMAHON: No, your Honour.

MS FRANCIS: No, thank you, your Honour.

HIS HONOUR: All right. Thank you both for your assistance.