R v HTK[2013] QCHC 4

CHILDRENS COURT OF QUEENSLAND

HIS HONOUR: This is an application under section 118 of the Youth Justice Act 1992(QLD) (The Act) on behalf of HTK who was sentenced on 15 January 2013 when he was 16 years of age in the Maryborough Childrens Court on his plea of guilty to one count each of commit public nuisance and assault or obstruct police officer to be placed on 12 months' probation. One order was made in relation to both offences. I note the applicant is still 16 years of age, being within two weeks of his 17th birthday.

BACKGROUND

These offences arose out of one incident on 27 December 2012. The facts placed before the Court by the Prosecutor were that at about 12.05 a.m. on that date police conducting mobile patrols observed the applicant standing in the middle of a Maryborough Road. He was yelling out. His attention was drawn to the approaching police vehicle. He refused to leave the roadway and remained in a position to disrupt moving traffic. He began yelling and shouting at the police vehicle as it approached with no intention to move from the road. The police vehicle had to come to a full stop. After a period of time he went to the side of the road. I understand this is the factual basis of the public nuisance offence.

The police then made inquiries at a nearby residence. He continually tried to move away from the police as they were doing this. As stated by the Prosecutor he continued to obstruct the police in the performance of their duties before he was taken to the police station and charged with the offences. I understand that this is the factual basis of the other charge. However, the circumstances of this charge are expanded on in the Queensland Police Service (QPS) Court brief which has been placed in evidence before me on the applicant's behalf.

Because under section 122(1) of the Act, this review is by way of rehearing on it's merits, it is relevant for me to also take this additional evidence into account despite the fact it was not before the Magistrate. The police brief contains the following additional statement of facts: "The defendant has then stood up and attempted to walk away from the party address on the roadway. The defendant was subsequently placed under arrest. Police told the juvenile defendant he was under arrest and subsequently took control of his arms. The juvenile defendant has then violently swung his arms forwards and backwards in attempt to break the hold the police had on him. The juvenile defendant has then become involved in a violent struggle with police. For the safety of the juvenile defendant, police have then transitioned him to the ground where he had to be restrained using handcuffs. The juvenile defendant was subsequently transported to the Maryborough Watch house."

However, there is no suggestion the applicant directed any blows at the police as opposed to struggling against them in an attempt to get away. This is consistent with the charge being framed on the basis he obstructed as opposed to assaulted the police.

PROCEEDINGS BEFORE THE MAGISTRATE

The Prosecutor tendered the applicant's criminal history which included one previous conviction for assault or obstruct a police officer committed on 16 September 2012, together with one count each of contravene a direction or requirement and minor consume liquor. On 21 September 2012, without a conviction being recorded, he was ordered to be of good behaviour for six months.

The offending to which this review relates was committed in breach of that order after approximately three months had elapsed. This offending was the second time he had been convicted of assault or obstruct a police officer. This was also not the first time the applicant had received the benefit of what is conveniently described as a good behaviour bond and breached it. He had received a 12 month good behaviour bond on his first appearance before the Childrens Court on 14 August 2010 as a 14 year old for one count each of assault occasioning bodily harm and common assault.

These are indictable offences. It can be inferred the seriousness of this offending is consistent with the order being for the maximum period, despite this being his first appearance before the Court. Each of these offences were committed on 31 July 2010. He breached this order whilst still 14 years of age, within a month, by committing a stealing offence on 11 September 2010. He was dealt with by the Childrens Court on 30th November 2010 for this and three other offences. Two of these offences were committed before those on which he had been placed on the good behaviour bond when he was still 13 years of age on 13 March 2010. The other offence was trespass - entering or remaining in dwelling or yard between 23 and 26 August 2010. This could have been committed before he was sentenced on his first appearance before the Court on 24 August 2010. For the four offences, three of which were indictable, the Court on 30 November 2010 placed him on probation for 12 months. No conviction was recorded.

He in turn breached this order towards the end of the probation period by committing a number of indictable offences. On 9 October 2011, he committed three offences of enter premises and commit indictable offence. On 16 October 2010 he committed three offences each of stealing and unlawful entry of a vehicle for committing indictable offence. On 8 November 2011 he was sentenced for all these charges by being placed on probation for 12 months and ordered to perform 70 hours unpaid community service to be completed within 12 months. Again, no conviction was recorded. By this time he was 15 years of age.

The offences for which he was placed on the six months good behaviour bond as a 16 year old on 21 September 2012 were committed in breach of that probation order. Accordingly, these offences committed after the expiration of the probation order but in breach of the bond are his fourth breach of a Childrens Court order. The Prosecutor, not surprisingly, observed the applicant was, "Again back before you in relation to offences which occurred approximately three months after that day, good order offences again". It was submitted his Honour might be of a mind to order probation with a special curfew condition given the applicant's offending in 2010, 2011 and 2012. It was suggested a curfew may prevent him from walking the streets and becoming intoxicated.

The applicant's legal representative emphasised his age and guilty plea. While not at school, he had completed a certificate II in Business through Community Solutions and had commenced a certificate II in Engineering. He was unemployed and receiving Centrelink benefits. It was his hope to move to another town where he had an uncle, to obtain some employment. It was said he was interested in moving to make a fresh start away from associates, activities and consuming alcohol when he was not supposed to be. It was accepted he had consumed alcohol at the time of committing the offences the subject of this review.

The Magistrate was told the applicant's receipt of a $450 fortnightly Centrelink benefit would be available to pay a monetary penalty. Further it was said, again not surprisingly, that he understood probation. It was also said he would be compliant with such an order. His legal representative said that while he had previously had some difficulty in completing community service hours these had now been completed. However, in light of his breaches of both previous probation orders by committing offences it was incorrect to suggest he had completed those orders without issue. I note there was no report from a youth justice officer before his Honour as to the applicant's performance on probation in other respects.

THE MAGISTRATE'S SENTENCING REMARKS

In sentencing the applicant, his Honour made reference to his plea of guilty and that he was putting his life and the lives of others at risk by not getting off the road while under the influence of alcohol. Having referred to the applicant's history of having been given a good behaviour bond, community service and probation, and saying he was considering probation on this occasion, his Honour took the applicant through the conditions of probation as set out in section 193(1) of the Act. The applicant responded that he understood them and as required by section 194, he was willing to comply. Accordingly, his Honour made the probation order for 12 months which is the subject of the appeal. No additional requirements were imposed under section 193(2).

APPLICANT'S SUBMISSIONS

It is submitted on behalf of the applicant there was no suggestion he was interfering with traffic except for the police vehicle. I am directed in particular to the fact the learned Magistrate imposed the maximum period of probation available for offending of this nature. It is submitted that in doing so the applicant's plea of guilty at the first opportunity was not taken into account. It is also said that despite the applicant's intoxication, he did remove himself from the roadway, albeit not immediately after the police request. And while the applicant's behaviour was immature, the situation escalated only after he tried to walk away.

Although it is accepted the imposition of the probation order may have been an attempt to get some assistance for the applicant's issues involving alcohol, it is submitted it was also open to the Court to impose a good behaviour order. It is argued in the written outline of submissions that such an order would have been within range when taking into account the early plea of guilty, the relatively minor nature of the offending, the submission he had stopped drinking and had already suffered some consequences of having been restrained, handcuffed and arrested.

I am unable to identify a submission by the applicant's lawyer he had stopped drinking. It is accepted on behalf of the applicant that it was he who mentioned during the sentencing remarks that he hadn't had a drink for a while. The applicant's lawyer's submission went no further than to suggest it was one of the reasons he wanted to move to another place to live near his uncle, that he hoped it would get him away from drinking alcohol when he was not supposed to be.

In the alternative, it is submitted that if this Court thought a probation order was warranted it would be reduced to three months.

The applicant's legal representative, Mr Law, did not press the submission in support of the imposition of a good behaviour bond but maintained the argument that a probation order was within range and it could be for three months and for no more than four months.

In essence, the applicant's submission is that the sentence was manifestly excessive and not within the sound exercise of the learned Magistrate's sentencing discretion.

RESPONDENT'S SUBMISSIONS

The respondent submits the learned Magistrate had in mind that the applicant needed supervision to address his problem with alcohol and associate behaviour. Reliance is placed on his past history to which reference has been made with particular reference to the offences to which the review relates being committed in breach of the six month good behaviour bond only three months after being convicted for offences of what are said to involve similar behaviour of being drunk on a road and obstructive to police officers.

For the reason I have previously given, I am entitled on this review to take into account the evidence in the form of the QPS Court brief concerning this earlier offending, although this was not before the Magistrate. This evidence is annexed to an affidavit filed on behalf of the respondent.

Those three offences arose out of the following facts: shortly after midnight on 16 December 2012 police observed the applicant standing on the roadway holding a can of alcohol. When the police vehicle pulled up beside the applicant he was seen to consume it's contents. He then approached the vehicle and leaned in the window. He was asked to step off the roadway and remain still. He then stood back from the vehicle and drank from the can. I understand this to be the basis of the minor consume liquor charge.

He was then asked to give his full name and correct name. However, he gave a false name. As a result he was charged with contravene direction or requirement. When advised he was under arrest for this he ran away. The police pursued him on foot and restrained him. He attempted to resist and was restrained with handcuffs. This is the basis of the assault or obstruct a police charge. As in the present case, it is particularised as obstructing the police rather than assaulting them.

Ms Adams submits on behalf of the respondent that the conduct, the subject of this review, had escalated to a more serious level of offending, particularly due to the struggle against the police attempts to restrain him on that occasion being described as a violent one. In these circumstances it was submitted the learned Magistrate was entitled to view the applicant's comments regarding not having a drink for a while with some caution and to view as important the need to provide him with support to desist in the abuse of alcohol. I am inclined to the same view.

It is submitted the sentence takes into account the applicant's previous opportunities through good behaviour bonds and community based orders. It is also argued the probation order takes into account the need for specific and general deterrence of the risk of harm to the applicant and others from his actions, discourages violent behaviour towards police and reflects the community interest in minors not consuming alcohol.

It is suggested his Honour did not impose a special curfew condition in preference for a longer period of probation of a less onerous nature to a 16 year old. Taking into account the offending behaviour occurred in breach of a good behaviour bond, a further similar order would not have offered the applicant the same deterrence or supervision probation would provide. Although it is conceded a period of 12 months' probation is a stern punishment, it is submitted in view of his history it is not outside the range of appropriate penalties and manifestly excessive.

DISCUSSION:

I agree that having regard to the applicant's previous offending history, as I must do under section 150(1)(e), an order that he be of good behaviour even for a period of one year would not have the necessary effect of specific and general deterrence concerning conduct of this nature, in particular violently resisting police officers attempting to discharge their lawful duties in the community interest.

The applicant had breached all four previous Childrens Court orders, including a six month good behaviour bond for similar offending by committing these offences. The behaviour involved in the offences which are the subject of this sentence review in my view involve more violent conduct towards the police than the earlier similar offences. As Ms Adams submitted, they involve an escalation in his conduct of this nature.

These offences are not so minor as to warrant giving the applicant a further opportunity to be sentenced by way of a good behaviour bond. It is also to be remembered the applicant had been placed on an earlier good behaviour bond for offences of assault occasioning bodily harm and common assault when he was 14 years of age. This was a bond for the maximum period of 12 months.

However, as stated by McMeekin J with whom the other members of the Court agreed in R v. Roberts-O'Keefe [2012] QCA 260 [39], citing with approval the explanation by Fraser JA in R v. Matauaina [2011] QCA 334 as to the significance of a criminal history to the sentencing process [20]:

"An offender's criminal history cannot justify a sentence which is out of proportion to the gravity of the offence, but the criminal history may be taken into account both in assessing any claim for leniency and in deciding whether considerations such as retribution, deterrence and protection of society indicate that a more severe penalty should be imposed."

In the circumstances of the present case, while the consideration of deterrence warranted the applicant with this history being placed on probation, which would also assist in his rehabilitation, it did not justify the maximum probation period being imposed by virtue of section 175(1)(d)(i) of the Act. This is reinforced by section 150(1)(d) and section 150(1)(k) which require the Court to have regard to the nature and seriousness of the offences and the fitting proportion between those offences and the sentence respectively.

It is also relevant that a special consideration which must be had regard to under section 150(1)(c) is as provided by section 150(2)(a) the child's age is a mitigating factor in determining whether or not to impose a penalty and the nature of a penalty imposed.

The maximum sentence of imprisonment for the offences of commit public nuisance under section 6(1) of the Summary Offences Act 2005 (Qld) and assault or obstruct police officer under section 790(1) of the Police Powers and Responsibilities Act 2000 (Qld) is six months. The maximum fines available under those provisions is 10 penalty units ($1,000) and 40 penalty units ($4,000) respectively.

In the present case the public nuisance committed was not a very serious example of this type of offence. It is towards the lower end of this type of offending. As submitted for the applicant, there is no suggestion that the applicant was interfering with traffic other than the police vehicle. He was in reality a danger only to himself at that time. As submitted, he did remove himself from the roadway, even if he did not do so immediately.

The Magistrate was correct to impose a sentence to reflect the totality of the applicant's offending, of which the assault or obstruct police officer was the most serious conduct. However, despite the violence of the struggle against the police, as I have observed, it is not suggested he directed any blows against them in an attempt to get away. The charge is particularised as obstructing police. It is not suggested any physical harm was caused to the police. It is not an offence towards the top of the range for offending of this nature.

It is also essential that the applicant's early plea of guilty be properly reflected in the exercise of the sentencing discretion by meaningful credit being given to him for it. Although the learned Magistrate extended some leniency to the applicant by not recording a conviction, by nonetheless, placing the applicant on the maximum period of probation, even without the special condition of a curfew, he did not give sufficient weight to this early plea. This is emphasised by the absence of a reference in his sentencing remarks to the early plea of guilty, as opposed to a recognition the applicant had pleaded guilty.

Because this review is by way of rehearing on the merits, the applicant did not have to demonstrate any error on the part of the Magistrate. However, in this case the learned Magistrate fell into error by not giving sufficient weight to the early pleas of guilty and imposing a sentence which is out of all proportion to the gravity of the offending for which he was sentencing. As such, it is manifestly excessive and not within the sound exercise of his Honour's sentencing discretion.

In dealing with this matter as a rehearing on the merits, having regard to the need to balance the principles of deterrence, particularly in discouraging this type of conduct towards police officers with the need for a sentence which will assist the applicant's rehabilitation, particularly in addressing his problem with alcohol and his behaviour whilst intoxicated, a probation order of four months is proportionate to the offending for this 16 year old offender. It is likely to be his last supervised order in the Childrens Court jurisdiction. It also gives sufficient weight to his early plea of guilty.

Although the applicant has previously had the benefit of supervision for the maximum period of a good behaviour bond and probation orders, it is relevant those penalties related to indictable offences. Further, while it is not to his credit, he has within a period of four months committed two sets of offences of a similar nature, one set being in breach of a good behaviour bond imposed for the other set, it is correct, as submitted on his behalf, that this conduct is a de-escalation from his earlier indictable offending. The last indictable offence was committed just over 12 months before the offending, which is the subject of this review. This is also a circumstance I take into account in reaching my conclusion.

CONCLUSION AND ORDER

Therefore, with the exception of that part of the order of the Court that no conviction be recorded, I discharge the order of the Childrens Court and substitute in its place an order that for the offences of commit public nuisance and assault or obstruct police officer, the applicant be placed on probation for four months subject to the requirements of section 193(1) of the Act.

In doing so I note the terms of 12 month probation order and the consequences of breaching it were explained by the sentencing Magistrate to the applicant, and it is accepted by Mr Law on his behalf that he has consented to an order in those terms and for that period, and such consent has not been withdrawn. It therefore follows I can proceed on the basis he has indicated his willingness to comply with the order I have made.