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AGW v Commissioner of Police[2016] QCHC 9

AGW v Commissioner of Police[2016] QCHC 9

CHILDRENS COURT OF QUEENSLAND

CITATION:

AGW v Commissioner of Police [2016] QChC 9

PARTIES:

AGW

v

Commissioner of Police

FILE NO/S:

CCQ No. 1514 of 2016

DIVISION:

Childrens Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Children’s Court at Mackay

DELIVERED ON:

22 August 2016 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2016

JUDGE:

Shanahan JDC

COUNSEL:

D Law for the Appellant

C Ahern for the Respondent

SOLICITORS:

Legal Aid Queensland for the Appellant

Office of the Director of the Public Prosecutions for the Respondent instructed by the Commissioner of Police

  1. [1]
    THE PRESIDENT: This is an appeal against sentences imposed in the Mackay Childrens Court. The appellant pleaded guilty to a number of offences on the 18th of March 2016 and a pre-sentence report was ordered.  He was then sentenced on the 15th of April 2016.  I’ve read the sentencing submissions and remarks and the pre-sentence report that was ordered.  There were six offences dealt with:  an offence of stealing that had occurred on the 9th of January 2016, an offence of entering a dwelling house and stealing that occurred on the 12th of January 2016. 
  1. [2]
    The last four offences occurred after the appellant had appeared in the Childrens Court in relation to other dishonesty matters on the 22nd of January 2016 and being placed on probation and community service orders.  There is an offence of stealing that occurred on the 25th of January 2016, an offence of entering a dwelling house and stealing on the 26th of January 2016.  He was arrested on those and granted bail.  Further offences occurred on the 15th of February 2016.  Again, there was an offence of entering a dwelling house and stealing and a further offence of entering a dwelling house with intent.  In relation to those last two offences, the complainants were actually present in the houses that were entered and the Magistrate took the view that they were serious examples of burglary. 
  1. [3]
    It’s difficult to disagree with that conclusion. After the last offences, the child was remanded in custody and spent some days on remand before he was released on a conditional bail program. In the end result, the sentencing Magistrate sentenced him to three months’ detention in relation to each to be served by way of a conditional release order. No conviction was recorded and in relation to the breach of the probation order that was also dealt with on the same day, that order was extended by some four months. In relation to that earlier appearance, the appellant had appeared on the 22nd of January 2016 in relation to a number of entering premises offences as well as other fraud offences and an assault or obstruct police. 
  1. [4]
    He was ordered on to probation for a period of four months, together with 50 hours’ community service. No convictions were recorded. It is submitted here that the learned Magistrate did not give appropriate weight to factors in the appellant’s favour, particularly in the light of his early plea, his limited history, the 22 days that he had served in detention, his later compliance upon his release with both the probation order and the community service order, and his compliance with the conditional bail program. Those matters were submitted before the learned sentencing Magistrate and were plainly before him at the time of sentence.
  1. [5]
    The appellant was aged 15 at the time of the commission of the offences and 16 at time of sentence. From the record, it’s apparent that the sentencing Magistrate knew the appellant and knew his family because various comments were made concerning the family situation and the return of the child to the community. The appeal here is pursuant to section 222 of the Justices Act. Such an appeal is by way of rehearing on the record with appropriate deference given to the findings of the presiding Magistrate. In order to interfere with the sentence, I would need to determine that it is manifestly excessive. It is not sufficient for me to be of the view that I would have imposed a different sentence, which I may well have done.
  1. [6]
    It seems to me, considering the serious nature of the burglary offences, particularly in relation to the two where complainants were actually present in the house late at night, and the commission of these offences shortly after being placed on supervised orders in relation to similar offences, that the Magistrate gave appropriate weight to the serious nature of those offences at the expense of the personal circumstances of the appellant. At this stage of the proceedings, there was no requirement on the Magistrate to consider that detention should have been a last resort. In those circumstances, that was not a consideration that the Magistrate had to take into account.
  1. [7]
    He was of the view that there was a need for both strong personal and general deterrence. I’m afraid that I do not disagree with that. Considering the serious nature of the offences and, particularly, the burglary offences, it seems to me the penalty that was imposed was open in the circumstances and no error can be shown. That is particularly the case when the Magistrate decided to exercise his discretion not to record convictions. The appeal is dismissed.
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Editorial Notes

  • Published Case Name:

    AGW v Commissioner of Police

  • Shortened Case Name:

    AGW v Commissioner of Police

  • MNC:

    [2016] QCHC 9

  • Court:

    QChC

  • Judge(s):

    Shanahan JDC

  • Date:

    22 Aug 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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