R v MKH
[2014] QCHC 3
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R v MKH[2014] QCHC 3
R v MKH[2014] QCHC 3
[2014] QChC 3
CHILDRENS COURT OF QUEENSLAND
JUDGE SHANAHAN, President
THE QUEEN
v.
MKH
BRISBANE
9.59 AM, TUESDAY, 22 APRIL 2014
ORDER
HIS HONOUR: This is a sentence review in relation to a sentence imposed in the Emerald Children’s Court. On the 28th of January 2014, the applicant pleaded guilty to three break and enter premises and commit indictable offences, one offence of stealing and one offence of trespass. The offences were committed in company with other offenders over a period of about three nights in Emerald. The break and enter offences involve the offenders entering business premises by means of a break and stealing various property, including soft drinks and alcohol. The stealing involves the entry of an unlocked vehicle and the theft of property there from. The trespass involves him swimming in a swimming pool in a unit complex without any permission.
When interviewed by the police concerning these matters, the applicant child told them that he was not involved in those matters. He ultimately pleaded guilty to each of them. A co-offender, another child of the age of 12, did admit his involvement in these same offences and was administered a caution by investigating police. That option was not open to those police because this child did not admit the offences. He thus came before the magistrate. He pleaded guilty to the offences, he was 12 years of age and he had no previous history whatsoever. The learned magistrate imposed a probation order for a period of six months in relation to each matter and did not record convictions. Other co-offenders have also been dealt with in relation to these offences. A child with a similar background to this one, although he had been cautioned in the past, was placed on five months probation and another offender who had a much more serious history was sentenced to detention to be served by way of a conditional release order.
The learned magistrate decided that probation was the appropriate penalty here. Although this is a sentence review and error does not need to be shown by the sentencing magistrate, I am of the view that there is error here. The sentence is plainly manifestly excessive. This is a 12 year old first offender who has been involved in a number of relatively minor break and enter offences, not burglary offences as described by the magistrate. The sentencing principles under the Youth Justice Act are clear. One of the issues to be taken into account is the age of the child. The child here is only 12. There are other factors in the child’s favour, including his plea of guilty and the fact that he had no history. It seems to me, in those circumstances, that a probation order was not called for.
I note in passing the remarks made by the learned magistrate that, in his view, probation orders less than six months are inappropriate. That is contrary to the Act. The magistrate’s personal views about the appropriateness of sentences and the youth justice system in particular are irrelevant. He is bound by the Act and the cases decided pursuant to that Act. He is bound by the sentencing principles of that Act. His own views, as I say, are irrelevant.
In those circumstances, I am of the view that the sentencing discretion has miscarried. I allow the sentence review. I substitute sentences in relation to each matter of a good behaviour order for a period of three months. No conviction is recorded. Are there any other orders needed?
MS AN: No, your Honour.
MS SMITH: No. Thank you, your Honour.
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