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- Unreported Judgment
UVB v Commissioner of Police QCHC 7
CHILDRENS COURT OF QUEENSLAND
UVB v Commissioner of Police  QChC 7
COMMISSIONER OF POLICE
20 April 2017 (delivered ex tempore)
20 April 2017
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – appeal under s. 222 of the Justices Act 1886 in respect of an order of restitution – whether the learned sentencing magistrate has fallen into error in concluding that the appellant had capacity to pay restitution in the circumstances – whether the learned sentencing magistrate has fallen into error in attributing all of the compensation to this particular appellant
Youth Justice Act 1992, s 235
Justices Act 1886, ss 222, 224
Tierney v The Commissioner of Police  QCA 327
D Law for the applicant
A Nikolic for the respondent
Legal Aid Queensland for the applicant
Office of the Director of the Public Prosecutions for the respondent
- HIS HONOUR: Given the Crown and defence both consented to the filing of a notice of appeal under section 222 of the Justices Act, out of time, and given the contents of exhibit 4, the affidavit of David Law, sworn 20th of April 2017, explaining the delay, firstly with respect to one day in filing a sentence review, and then subsequently, on ascertaining that the provisions of the Youth Justice Act do not cover what is effectively an appeal, in respect of an order of restitution, I’m satisfied that it is appropriate, pursuant to section 224(1)(a), to extend the time for filing a notice of appeal in this matter, and I extend that time until today, which is the 20th of April 2017.
- I further order that the material filed on the sentence review be treated as material filed in respect of the substantive section 222 appeal, and the matter will proceed today as a hearing under the provisions of the Justices Act.
- In respect of the sentence review in this matter, having granted leave pursuant to section 224 of the Justices Act, for this matter to proceed out of time as an appeal under the Justices Act, I accordingly order that the sentence review, which nominally commenced these proceedings, be struck out.
- This is an appeal in respect of a sentence imposed on UVB at the Redcliffe Childrens Court on 23 December 2016.
- The sentence imposed on UVB was 100 hours’ community service (for which there is no complaint) and an order to pay $2187.30 of restitution.
- The matter originally proceeded by way of a sentence review, filed on 20 January 2017 (one day out of time). Upon review of the matter, Mr Law, who appears for the applicant identified that there was no power for this court to deal with the issue of the restitution component of the sentence on a sentence review, and by agreement with the respondent, Director of Public Prosecutions, made a successful application for the matter to proceed out of time as an appeal, pursuant to section 222 of the Justices Act. I made an order, in respect of that appeal out of time, under section 224(1)(a) of the Justices Act. The sentence review was accordingly struck out and the matter proceeded in accordance with the provisions of the Justices Act.
The law – appeals
- In Tierney v The Commissioner of Police  QCA 327, para 26 Margaret Wilson AJA stated that:
An appeal from a Magistrates Court to the District Court, pursuant to s. 222 of the Justices Act (Queensland) is a rehearing on the evidence given at trial and any new evidence adduced by leave. In other words, it involves a review of the record of proceedings below, subject to the District Court’s power to admit to new evidence. To succeed, an appellant needs to show some legal, factual or discretionary error.
- The principle, of course, is equally applicable to appeals under the Justices Act from magistrates sitting in the Childrens Court.
- The appellant child was born on 22 November 1999, was 16 years old at the time of the offence (an enter premises and commit indictable offence on 15 November 2016) and was 17 years old at the time of sentence. The child had relevant criminal history and was at the time of the offences subject to a nine-month probation order, which commenced on 11 March 2016 and a 40 hour community service order, also commencing on 11 March 2016.
- The circumstances of the offence are briefly outlined by the appellant, and I’ll adopt those and add some comments:
6.1 On 15th November 2016, the applicant child entered a house that was under construction at 291 Jones Street, West Rothwell, R-o-t-h-w-e-l-l. At the time, he was in company with a number of other children. The house was damaged by the children. The applicant child’s fingerprint was located on a damaged towel rail.
6.2 The applicant made admissions to being in the company, at the time the damage occurred, but denied he caused any of the damage –
(Exhibit 3, Applicant’s Outline of Submissions para 6.1 & 6.2).
- I note that, during the course of submissions, it was identified by the prosecution that the appellant’s admissions were that he was with a group of five or more other males, that he admitted entering the building, that he was holding a metal door handle (presumably the one on which his fingerprints were identified), but that he waited outside, heard other members of the group smashing the walls and denied causing the damage or touching anything else in the house.
- The fact that the appellant was one of a group of young persons was also confirmed by police discussion with neighbours, who advised,
…that a group of young persons on bikes [had] been seen near the home at the time of [the] noises –
- As indicated, there is no complaint about the substantive sentence (100 hours’ community service), and this appeal is limited to the order in respect of restitution.
- The power to order restitution under the Youth Justice Act 1992 is contained in s. 235, which provides the caveat to the making of an order in these terms:
(5) A court may make an order requiring a child to pay amount under this section only if the court is satisfied that the child has the capacity to pay the amount.
- The exchange between the learned sentencing magistrate and the child’s legal representative at sentence about the issue occupied some number of pages of transcript. In particular, however, the learned sentencing magistrate was advised that the appellant had been working (which contributed to his partial non-compliance with the probation order he was then on), but that employment as a labourer had concluded, the applicant having been laid off, and although he was earning $20 an hour while employed, he was (as Mr Law who appeared for him at the original sentence stated) in a position where:
He’s been laid off for a (sic) weeks now, and he has no funds –
- It was clarified that there was no power to refer a compensation order to SPER (State Penalty Enforcement Registry).
- The learned sentencing magistrate observed during a further exchange with Mr Law that,
Now, as a 17 year old, it seems to be he has the capacity for some paid employment –
- Further, the learned sentencing magistrates (transcript 1-11) said to Mr Law:
Now, the restitution was $2187.30. I would have thought he can knock that over in 18 months.
- To which Mr Law replied (appropriately):
If he gains employment again.
- The learned sentencing magistrate, in his sentencing remarks, after placing the appellant on a 100 hour community service order then said:
I do make an order that you pay restitution of the sum of $2187.30. I am satisfied that you’ve got the capacity, given time, to pay that. I’ll allow you 18 months to pay that. That’s to be paid to the clerk of the court [indistinct] It can be paid in instalments –
- The submission, quite simply, is that the learned sentencing magistrate has fallen into error in concluding that the appellant had capacity to pay restitution in circumstances where, at the time of sentence, the child wasn’t employed, had been unemployed for some weeks, was not – it appears from the submissions – in receipt of income, and in circumstances where the ability to pay restitution must have been entirely speculative. There is of course a further issue, which is that the learned sentencing magistrate appears to have paid no regard to the issue that there were at least five offenders involved, of whom the appellant was only one and (at least on the submissions made by the prosecution) claimed not to have caused any actual damage. His lack of involvement in actually damaging property did not preclude the learned sentencing magistrate from making an order as to restitution, but within the learned sentencing magistrate’s discretion, it was in my view an error in any event to attribute all of the compensation to this particular appellant. That clearly had significant capacity for unfairness. Further, however, as indicated, I consider that the learned magistrate has fallen into sentencing error in the view that he has taken in respect of section 235(5) of the Youth Justice Act, in that on the material before the learned sentencing magistrate, he could not in my view have been satisfied that,
The child has the capacity to pay the amount –
(s. 235(5) Youth Justice Act).
- At best, it was a speculative exercise that the child might at some future time have capacity, but certainly not at the time of imposing the sentence.
- I note in reaching this conclusion that Ms Nikolic for the Crown, submits that the magistrate had regard to the applicant’s future ability, at some stage, to secure employment (no doubt comforted at least in part by his previous ability to obtain a job), but with respect, that doesn’t meet the test that the magistrate was obliged to apply at the time that he was imposing the order.
- Accordingly, I’m satisfied that the learned sentencing magistrate did fall into sentencing error on the two bases that I’ve identified. In the circumstances, I make the following orders:
- appeal granted;
- set aside that part of the sentence in which the magistrate made an order that the appellant pay restitution in the sum of $2187.30.
- Published Case Name:
UVB v Commissioner of Police
- Shortened Case Name:
UVB v Commissioner of Police
 QCHC 7
20 Apr 2017