R v CDKS[2011] QCHC 19

[2011] QChC 19

THE CHILDRENS COURT OF QUEENSLAND

JUDGE FARR SC

THE QUEEN

v.

CDKS

BRISBANE

DATE 30/09/2011

SENTENCE

HIS HONOUR: This is an application for sentence review pursuant to sections 119 and 121 of the Justice Act [1992].

The applicant was convicted and sentenced in the Townsville Childrens Court on the 27th of July, 2011, for 22 offences. Some of those offences were indictable, some were summary. In relation to the summary offences, he was reprimanded. In relation to the indictable offences, different penalties were imposed of varying terms of detention.

Three of those indictable offences incurred concurrent sentences of nine months detention. They being burglaries that occurred on the 31st of March, 2011. There were two offences on that date. And a third burglary on the 3rd of June, 2011. In relation to the other indictable offences, lesser periods of detention were imposed.

This application relates to those three offences for which the nine months detention was imposed.

The nine months that was imposed for each of those offences was accompanied by no other order, which results, of course, in the applicant having to serve 70 per cent of that period of detention, before release. At the time of sentence, he had spent 54 days on remand.

The applicant was 15 years of age at the time of the first of the offending behaviour, but, as I understand it, was 16 years of age for the three that are the subject of this application.

He has an extensive criminal history containing like offences dating back to 12 years of age. He has been sentenced to periods of detention previously, although for shorter periods of time, being 21 days detention, which may well have been pre sentence custody, back in 2008. And he had received a period of three months detention on the 10th of December, 2008.

He has in the past been sentenced to a total of 17 different community based orders. That took place over approximately three years. There have been six probation orders, seven detention orders, one community service order, one conditional release ordering two supervised release orders. All of the offences for which he was placed on those orders were property related offences. And he was on probation in relation to one of those matters at the time of the commission of these offences.

It has been submitted on his behalf that the learned sentencing magistrate failed to give due recognition to the pleas of guilty, notwithstanding that the magistrate did in fact refer to the fact in his sentencing remarks that this was an early plea, and he would treat this, as an early plea of guilty.

It has also been submitted that the magistrate failed to give sufficient recognition to the fact that the applicant had some glimmer of hope for the future, and that the pre sentence report revealed that at some prior time, when he and his family lived at Katherine in the Northern Territory, his behaviour seemed to improve dramatically; and that his poor behaviour, the subject of these charges, only occurred after moving to Townsville or Mount Isa where he associated with other family members or friends who led him astray.

The magistrate did in fact, in the course of his remarks, refer to that issue, in fact discussing that very issue, I think with the applicant's mother at one point in the proceedings; and made comments regarding the applicant needing to consider his future, and perhaps moving to the Northern Territory upon his release, and try and make something of his life.

Essentially the submission by the applicant is that nine months detention insufficiently recognises the mitigating features, most significantly or most importantly being the early plea of guilty, the prospect of him being able to lead a socially acceptable life in a different State, and his remorse.

Given that applications of this nature are by way of re-hearing, it's not strictly necessary for me to find error on the part of the original Court when determining these issues. Nevertheless, the sentence imposed by the magistrate below is a relevant consideration for a judge conducting a review of this nature when determining the exercise of discretion and what might be considered appropriate in all the circumstances.

In relation to the other indictable offences that aren't the subject of this application, six months imprisonment was imposed. The magistrate drawing distinctions in seriousness between different types of offending. It seems to me that he was quite right to do so. And it makes it difficult to now conclude that nine months detention would be inappropriate for the most serious of the offences that the applicant is facing.

The alternative submission in that regard, by the applicant, is that the sentence could be varied to allow him to be released after he has served 50 per cent of that period.

The respondent has referred me to one decision, the Queen v. L [2000] QCA 427. He was a young fellow that had a similarly serious criminal history, and was of a similar age at the time of his offending. He was convicted of two offences. It is immediately apparent upon reading that decision, that the offences of which he was being dealt with on that occasion were, on the whole, less serious than those with which I am concerned here.

In that case, he was sentenced to nine months detention, but his release was ordered after serving 50 per cent. The President of the Court of Appeal noted that that effectively recognised his plea of guilty, and any rehabilitative promise.

As I say, the maximum penalty that was available to the magistrate in this matter was for 12 months imprisonment. It has been submitted on behalf of the respondent, given the greater number of charges that this fellow was facing, that the 70 per cent mark is appropriate in the circumstances.

I note, however, that this particular application relates only to three charges. So there is only one charge more than there was in the case of 'L', that is the subject of this application. In relation to all of the other offences, lesser terms of imprisonment were imposed, which are irrelevant for my purposes today, he having to serve 70 per cent of those terms, all of which would be less than 50 per cent of the term that I could impose here if I were to vary the order.

The learned sentencing magistrate referred to the fact that the plea was really the only thing he could see that this young fellow had going for him. One can well understand that sentiment. Nevertheless, it was a plea of guilty. He was only 16 years of age at the time. And the Courts have well and long recognised that pleas of guilty should be given appropriate recognition in the imposition of sentences.

Despite the fact that I don't necessarily have to find error on the part of the magistrate below, it is my view that requiring the applicant to serve 70 per cent of the nine months fails to fully recognise those pleas of guilty in an appropriate way, rendering the ultimate sentence excessive in the circumstances.

However, I do not take the view that a 50 per cent order would be appropriate in the circumstances of his offending, given his criminal history, and the rather slim rehabilitative prospects that were placed before the Court.

In my view, an order requiring him to serve 60 per cent would have been appropriate in the circumstances. And I will accordingly order that the sentence in relation to these three charges be varied, and that the applicant be required to serve 60 per cent of those sentences before release eligibility.