KLP v Commissioner of Police[2017] QCHC 5

CHILDREN’S COURT OF QUEENSLAND

1. [1]
   HIS HONOUR: This is an application for sentence review in respect of two sentences imposed on separate dates in relation to the applicant, KLP, by the learned sentencing magistrate at the Woorabinda Childrens Court, the first being the 7th of December 2016 in respect of an offence of obstruct (29 September 2016) for which the applicant was sentenced to 12 months’ probation with no conviction recorded, the second a sentence on 2 January 2017 in which the applicant was sentenced to 12 months’ probation and 50 hours’ community service, as well as being dealt with for a breach. Again, a conviction was not recorded.

2. [2]
   The application for sentence review proceeds pursuant to sections 118 and 119 of the Youth Justice Act 1992, and the conduct of such a sentence review must be “by way of rehearing of the merits” (Youth Justice Act 1992 s. 122).

3. [3]
   Although it is open to me on a sentence review in the District Court/Childrens Court to find error on the part of the sentencing magistrate, identification of error is not a component of a sentence review, and I have the discretion to substitute an alternative sentence in the process of a rehearing on the merits.

4. [4]
   In respect of the two matters before me which I intend to deal with in one hearing, as I indicated to Mr Clements who appears for the applicant, I consider that the learned sentencing magistrate has, in each case, misconstrued the nature and seriousness of the relevant offence. In context, the “obstruct” offence is a relatively minor presentation of that offence (I differ from the learned sentencing magistrate’s assessment of it), and I take a similar view in respect of the “public nuisance” offence, which involved a consensual fight in the street, which, had it taken place in private, would not have constituted an offence at all.

5. [5]
   Both offences have occurred in the context of an indigenous community troubled by a range of different stressors, and a sentencing magistrate in those circumstances should be alive to both the personal and broader issues involved, and critically should impose sentences in respect of minor matters which are proportionate to the nature of the offending (Veen (No. 2) v R (1988) 164 CLR 465, 477; see also Youth Justice Act 1992 s.150(1)(d) & (k)).

6. [6]
   The circumstances, as I have indicated, of both the “obstruct” offence and of the “public nuisance” were not such that required further a supervision order with the associated risks of breach and failure, and having also in this sittings dealt with a sentence review in the matter of AGC^[1] in relation to this same “obstruct”, which did not involve any form of violence to the police but merely a non-co-operation and running away, I consider that the appropriate penalty in respect of the “obstruct” would be a good behaviour order for a period of six months and in respect of the “public nuisance” a good behaviour order of a similar period.

7. [7]
   Such orders would, in my view, appropriately reflect proportionality in the context of the antecedents of the child, albeit acknowledging that this is a child who was known to the criminal justice system, to put it at its most neutral.

8. [8]
   In all the circumstances, I make the following orders.

1. Sentence review application granted in respect of each of the offences of “obstruct police” (sentence imposed 20 December 2016) and “public nuisance” (sentence imposed 7 February 2017).
2. Set aside the sentences imposed in each case (12 months’ probation for “obstruct”) and (12 months’ probation and 50 hours’ community service for “public nuisance”).
3. Substitute in each case an order that the child be of good behaviour for a period of six months (s.175(1)(b) Youth Justice Act1992).
4. No conviction recorded in respect of either offence.