R v S; R v L[2015] QCHC 3

CHILDRENS COURT OF QUEENSLAND

1. [1]
   On 30 January 2015 the defendant children were arraigned in the Children’s Court of Queensland in relation to a number of offences and pleaded guilty. The Crown alleged that, by their pleas of guilty, they became guilty of an offence of having committed those offences whilst on bail, contrary to s 59A of the Youth Justice Act 1992.  On that day, bail undertakings were tendered, and in accordance with s 59B of the Act they were called upon to prove why they should not be convicted of the offence.  Upon calling on the children the learned children’s court judge, called for submissions relating to the procedure and sentencing options under s 59A and 59B of the Act. The matter was then adjourned for further hearing.

Jurisdiction

2. [2]
   The Children’s Court of Queensland is a creature of statute. The power to deal with a child under ss 59A and 59B of the Youth Justice Act must be found either in the Act itself or in other legislation.  The procedure outlined under s 59B(3) of the Act calls on the court to immediately call on the child to prove why the child should not be convicted of an offence under s 59A.  In doing that, the court is effectively charging, finding the case proved and convicting in the same hearing. The section does not allow for defences other than a possible challenge to the fact of bail for the original offence. 

3. [3]
   A Children’s Court judge ordinarily hears and determines a charge under s 62A of the Act, which provides:

“ A Children’s Court judge has jurisdiction –

(a) to hear and determine under Division 7 a charge against a child for an offence; and

(b) to delegate sentencing powers to a Children’s Court magistrate under s 185;and

© to hear bail applications under s 59;and

(d) to perform other functions and exercise other powers conferred on the judge under this Act.”

4. [4]
   Sections 99 and 100 of the Act give the court the power to inquire of, hear and decide indictable offences other than Supreme Court offences and to sentence a child for summary offences. Section 62A only confers jurisdiction to hear and determine offences under Division 7 of the Act. S59A is found under division 5 of the Act. Whilst it can be argued that the power of the Court to call upon the child under s 59B can be found in s 62A(d) of the Act, the power to determine the charge must be found elsewhere. This is because s 62A(a) provides the specific power to hear and determine and the general provision in s 62A(d) cannot extend the court’s jurisdiction beyond those specific powers.

5. [5]
   Nonetheless, it is accepted that it is the court’s duty to give meaning, if possible, to the legislative intent of the provision.

6. [6]
   S 49A of the Acts Interpretation Act 1954 provides:

“If a provision of an Act, whether expressly or by implication, authorises a proceeding to be instituted in a particular court or tribunal in relation to a matter, the provision is taken to confer jurisdiction in the matter on the court or tribunal.”

7. [7]
   Section 59B of the Youth Justice Act 1992 particularly provides that the proceeding for an offence under section 59A may be started without complaint and summons, and must be started immediately after the child is found guilty of the subsequent offence.  The court must call upon the child to provide why they should not be convicted of an offence.  The clear implication is that the Children’s Court must deal with the offence and must do so without delay. There is an express intention to proceed in the Children’s Court and s 49A of the Acts Interpretation Act 1954 authorises and confers jurisdiction on the court to do so.

Penalty Provisions

8. [8]
   The explanatory notes issued on the introduction of S59A and 59B state:

“Having regard to the different sentencing treatment afforded to youth and adult offending, the maximum penalty for the new breach of bail offence will be 20 penalty units or one year's imprisonment, half the maximum penalty under section 29 of the Penalties and Sentences Act 1992 for breach of a condition of bail by an adult.”

It would seem clear that the reference to s 29 of the Penalties and Sentences Act 1992 is actually a reference to s 29 of the Bail Act 1980 which creates an offence for an adult to breach conditions of bail and by way of penalty imposes 40 penalty units or two years’ imprisonment.  However, as was noted during argument in this matter, it is not a breach of bail for an adult to commit an offence whilst on bail and there is no corresponding adult offence for s 59A of the Youth Justice Act.  It is certainly an aggravating factor on sentence, but it does not afford or give rise to a charge of breaching bail conditions. 

9. [9]
   The difficulties with the provisions in s 59A of the Act are immediately apparent.  The penalty provisions provide a maximum penalty of 20 penalty units or one year’s imprisonment.  Imprisonment is not a sentencing option for a child. Detention is the only order that takes away the liberty of a child and the terms are not interchangeable.  The Youth Justice Act 1992 provides, under Part 7 of the Act, that a child must be sentenced under this part of the Act and that this provision applies despite any other Act or law (s 149). 

10. [10]
    Sentencing of children often takes place for offences where the maximum penalties involve terms of imprisonment. Offences in the Criminal Code such as robbery, burglary and rape all provide for maximum periods of imprisonment.  However, s 175 and 176 of Part 7 of the Act provide a sentencing regime to be applied in such cases. Generally, they provide that a child being sentenced by a Children’s Court judge is liable to a period of detention of either half the maximum term of imprisonment that an adult convicted of the offence could be ordered to serve or five years – whichever is the shorter of the two periods. A slightly different regime applies to sentences where the maximum adult penalty is life imprisonment (s 176).

11. [11]
    It is the Crown’s contention that S59A can be interpreted as if the penalty of one year imprisonment represents a notional adult sentence that would, by operation of s 175(1)(g)(ii)(A) of the Act, result in a maximum penalty for a child of six months’ detention.  If that was indeed the intention of parliament it would seem to be against the explanatory notes for the section where it was specifically noted to be half of the penalty for a breach of bail under s 29 of the Bail Act 1980. 

12. [12]
    In any event, as already noted, the Children’s Court is a court of statute and its powers can only be found in the Acts which constitute it and under which it operates. Section 175(1)(g)(ii)(A) of the Act only operates with respect to the maximum term of imprisonment that an adult convicted of the offence could be ordered to serve. Uniquely, s 59A only provides for an offence by “a child”.  There is no corresponding offence for an adult to commit.  Whilst ss 25(9) and 255(4) of the Act also create offences which can be committed by a child only, they do not proscribe a penalty of imprisonment or detention. Both offences carry a maximum penalty of 10 penalty units.  There are other offences contained within the Act which create offences carrying both fines and imprisonment as punishment, ( ss 278, 279, 288, 297, 299(4) and 301), however, in each of those cases the offences may be committed by “a person” thus encompassing an adult as well as a child.  The Act would therefore operate to provide a period of detention which was half of the period of imprisonment. 

13. [13]
    It cannot be suggested, and the Crown does not suggest, that this section introduced a penalty of imprisonment for children. S59A(2) envisages the “maximum penalty” being “subject to part 7” ensuring that the sentencing regime enshrined in that part continues to operate.

14. [14]
    Section 14A of the Acts Interpretation Act 1954 provides that an interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation (subsection (1)). It does not however extend the interpretation past that which is logically available.  The Crown’s contention that the provisions of ss 59A and 175(1)(g) can be read in conjunction with each other cannot in my view be accepted. It is difficult to see in what possible circumstances an adult could be sentenced for this offence because the sanction can only apply if the person charged is a child.  Therefore, as soon as the child turns 17, the offence no longer exists because the offender would no longer be a child. [Where there is a significant delay in sentencing and the offender has become an adult it is unlikely that this section of the Act will apply because of the 59A(2) of the Act, however for the purposes of this judgement it is not necessary to decide that question].

15. [15]
    In my view, because of the necessity to read the penalty in s 59A with Part 7 of the Youth Justice Act 1992, it is not possible to read the penalty in the way the Crown suggests.  It is however accepted that if the penalty provision is flawed, then the entire section is not necessarily invalid.  The maximum penalty provides not only for imprisonment but also for a fine of 20 penalty units.  Section 9 of the Acts Interpretation Act 1954 notes that in interpreting an Act it should be read as operating to the full extent of the legislative power but not exceeding it and it is to be interpreted distributively.  If an Act or part of it exceeds power, then it is valid to the extent that it does not exceed the power and the remainder of the Act is unaffected.  I accept the principle outlined in Coleman v Power (2004) 220 CLR 1 at paragraph 110 where McHugh J stated:

“… the clear intention of s 9 of the Queensland Acts Interpretation Act is that, where possible, an invalid law should be saved to the extent that it is within the power of the Queensland legislature.”

16. [16]
    There is no reason in this case that the part of the penalty that imposes a term of imprisonment should not be severed from s 59A of the Act such that the maximum penalty is 20 penalty units. This means that the sentencing options available to the court pursuant to s 175(1) of the Act would be a reprimand, a good behaviour order, or a fine up to 20 penalty units.  Community service and intensive supervision orders would not be available as the offence against s 59A is not one that can be committed by an adult so as to make the adult liable to imprisonment (see s 175(2) of the Act, Division 7).  

Section 16 of the Criminal Code

17. [17]
    Section 16 of the Criminal Code provides:

“A person can not be twice punished either under the provisions of this Code or under the provisions of any other law for the same act or omission …”

18. [18]
    In R v Hull (No. 2) [1902] StRQld 53, Griffith CJ at 57-58 talked of the importance of the words “the same act or omission”:

“… when it is alleged that acts referred to in two indictments are the same, there is implied a unity, at least, of time and place.”

19. [19]
    In R v Dibble; ex parte Attorney-General (Qld) [2014] QCA 8 the Court adopted the reasoning in R v Gordon; ex parte Attorney-General [1975] Qd R 301.  At paragraph [23]:

“The same punishable acts or omissions test has been consistently adopted and applied in Queensland since its formulation. The test was not the subject of challenge in this appeal. To the contrary, both sides made submissions on the footing that it is the prevailing test. In my view, it ought to be adopted and applied for this appeal. I would add that it is in no sense inconsistent with the observations of Griffith CJ in Hull (No 2). The test bespeaks a unity of time and of place, at least, in the punishable acts or omissions. Thus those observations are consistent with it.”

20. [20]
    In this case it has been submitted on behalf of the defendant children that the provisions of s 16 of the Criminal code operate to exclude any punishment for an offence under s 59Aof the Act. The Crown submits that it does not apply because the offence is taken to have occurred when the finding of guilt is made in relation to the second offence and in this way it operates in a similar way to an offence of breach of probation. While there is some force in that argument it cannot in my view sustained. Probation is a sentence which carries a number of conditions one of which is not to commit another offence during the period of the probation order. When an offender appears on a breach of probation order for reoffending the usual outcome is that they are resentenced for the original offences. If they are charged with an offence of breach of probation the reoffending is often coupled with other breaches such as failure to attend programmes or appointments. If they are simply charged with the offence of breach of probation as a result of reoffending and charged with the offending as well then it may well be arguable that the provisions of s 16 of the Criminal Code apply in that case as well.

21. [21]
    The gravamen of s 59A is committing an offence whilst on bail for another offence.  The offence can never be committed until the second offence is committed and inevitably because the charge is made once the child is convicted of the second offence, the offence could not exist without a conviction for that second offence.  So whilst the conviction takes place at a date later in time to the offence, the child’s liability for conviction crystallises at the time and place he commits an offence whilst on bail for another offence.  There is no situation in which the child could be convicted of an offence under s 59A without committing that second offence, and therefore there is complete unity of time and place between this offence and the subsequent offence committed whilst on bail. 

22. [22]
    In my view there could not be a clearer example of s 16 of the Criminal Code, and accordingly, although a child can be convicted of this offence, he/she cannot be punished for the offence. 

Conclusion