Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

TKB v R[2017] QCHC 11

 

CHILDREN’S COURT OF QUEENSLAND

 

CITATION:

TKB v R [2017] QChC 11

PARTIES:

TKB

(applicant)

V

R

(respondent)

FILE NO/S:

47 of 2017

DIVISION:

Children’s Court of Queensland

PROCEEDING:

Sentence Review Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

7 August 2017

DELIVERED AT:

Brisbane

HEARING DATE:

1 August 2017

JUDGE:

Richards DCJ

ORDER:

Application for sentence review allowed.

Sentence of three months detention be served by way of conditional release order is set aside.

The applicant is sentenced to 12 months’ probation on the standard conditions. 

No conviction recorded.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – RELEVANT FACTORS – CUSTODIAL ORDERS

whether a period of detention was the only appropriate sentence

SOLICITORS:

Mr D Law of Legal Aid Queensland for the applicant

Ms M Fowke of QDPP for the respondent

  1. The applicant pleaded guilty to 2 charges of common assault, stealing and wilful damage.  On those charges she was sentenced to a conditional release order on 7 March 2017. She was also sentenced on that same date to 12 months of probation on seven charges of burglary and commit an indictable offence and one charge of enter premises with intent to commit an indictable offence.  She has applied for a review of the conditional release order.
  1. At the time of her sentence the applicant had spent 10 days in detention in relation to these offences. She was born on 20 March 2002 and was 14 both at the time of the offences and at sentence.
  1. The applicant was in the care of the Department of Child Safety, having been taken into their care when she was five years of age.  She has significant issues and a pre-sentence report describes her as struggling to regulate her emotions and easily becoming heightened, yelling, swearing and making threats towards people.  She had been prescribed medication to assist with her emotional regulation but regularly refused to take the medication.  She refused to participate in the pre-sentence report and had in the past assaulted residential support workers.  She was engaged with child and youth mental health and was involved in therapeutic services but has since disengaged from that.  She had completed year 7 at school but had not gone any further.  She struggles within the school environment.  She has regularly absconded from her child safety placement. 
  1. At the time of sentencing the applicant had been subject to two probation orders for offences relating to assaults and property damage within her residential placement.  She had breached the second order by these offences and at the time of the offending was living in a single tenancy residential placement staffed by Alternative Care and funded by the Department of Communities Child Safety and Disability Services. 
  1. The facts of the offending are as follows:
  • on 18 December 2016 the applicant became aggressive towards the complainant who was a carer for the applicant.  She swore at her, threatened to assault her and threatened to stab her.  The following day she was again aggressive, threatening to kill her.  She then approached the complainant who put her arms up to block the applicant and she grabbed the fingers of the complainant’s left hand and bent them backwards causing pain and discomfort;
  • on 25 December 2016 she was unhappy with a new carer who was taking care of her at the time. She kicked the refrigerator over, hitting the kitchen wall causing a hole and kicked a further hole in the kitchen and hallway walls;
  • on 7 January 2017 she went to her neighbour’s premises and took a packet of cigarettes before running away; and
  • on 14 January 2017 she became angry again at another one of her carers. She said that she had a pain in the stomach and needed to go to hospital. The carer refused and told her she would have the home doctor attend. She then poked the complainant in the mouth area before running away from the address.
  1. Section 188 of the Youth Justice Act 1992 provides that a Children’s Court Judge may on application review a sentence order made by a Children’s Court Magistrate.  Section 122 of the Act provides the review is by way of rehearing on the merits and the court may have regard to the record of the proceedings, any further submissions or evidence by way of affidavit or otherwise and it must be conducted expeditiously and with as little formality as possible.
  1. The Crown submits that the applicant, even though she is young, has a relevant criminal history including very similar offending and has committed offences while subject to court orders in the past.  They submit that the magistrate was endeavouring to fashion a sentence which would see her receiving intensive assistance before completing her probation order in the following nine months.  The Crown submits that there were no orders outside of the one imposed on the applicant left available to the learned magistrate in light of her failure to comply with orders and her continued offending. A further term of probation in isolation, it was suggested, was unlikely to cause the applicant to re-engage with Youth Justice Services.
  1. This submission ignores somewhat the effect of the 10 days the applicant spent in detention.  Further, an updated report has been submitted by her case worker which indicates she has been complying with her probation order.  Youth Justice is delivering the same interventions as those outlined in the conditional release order in the probation order [except for the provision of life skills].  The life skill courses are being provided by the Department of Child Safety and she is engaging well.  She has been compliant with her order and has attended all meetings with her case worker.  She presents twice a week to engage in programs and although her relationship with child safety remains difficult she nonetheless has improved in her behaviour. She is involved in the local equine therapy program, she is engaged with her doctors and is taking her medication.
  1. The magistrate, with the best of intentions, thought that the intensive nature of the order would be useful to the applicant but did not consider the principles in the Youth Justice Act 1992 in deciding that a period of detention was the only appropriate sentence for this 14 year old girl who, at the end of the day, was being sentenced for offences which whilst serious, were not so serious as to warrant a period of detention.
  1. Further, I note in the pre-sentence report that the applicant did not at the time participate in the pre-sentence report.  She was not spoken to for the preparation of the conditional release program.  She did not have input into its content.  She was not at the time of sentencing asked whether she was agreeable to participate in the program or whether she was willing to comply with the order. Section 222 of the Youth Justice Act 1992 states that “a court may make a conditional release order in relation to a child only if the child expresses willingness to comply with the order.”  On that ground alone, the sentence should be set aside.
  1. Given the applicant’s tender age at sentence, her disadvantaged background and her progress on the probation order it is appropriate, despite her relevant criminal history to grant the application for sentence review and impose a instead a term of probation.

Orders

Application for sentence review allowed.

The sentence of three months detention to be served by way of conditional release order is set aside.

The applicant is sentenced to 12 months’ probation on the standard conditions. 

No conviction recorded.

Close

Editorial Notes

  • Published Case Name:

    TKB v R

  • Shortened Case Name:

    TKB v R

  • MNC:

    [2017] QCHC 11

  • Court:

    QChC

  • Judge(s):

    Richards DCJ

  • Date:

    07 Aug 2019

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.