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- Unreported Judgment
MLN v The Queen QCHC 32
CHILDRENS COURT OF QUEENSLAND
MLN v The Queen  QChC 32
Rockhampton Childrens Court
13 September 2018 (delivered ex tempore)
Brisbane Childrens Court
13 September 2018
CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – application for sentence review – where the applicant’s counsel submitted for a combination of a restorative justice order and a probation order – where the learned Childrens Court magistrate was not prepared to consider restorative justice generally – where the learned magistrate unreasonably constrained the exercise of the learned magistrate’s sentencing discretion
D Law for the applicant
S Sherry for the respondent
Legal Aid Queensland for the applicant
Office of the Director of Public Prosecutions for the respondent
- This is an application for sentence review by the applicant, MLN, in respect of the following charges:
- enter premises and commit indictable offence by break (16/12/17);
- trespass (22/2/18);
- trespass (1/3/18);
- wilful damage (6/3/18);
- trespass (9/3/18);
- trespass (9/3/18);
- obstruct police officer in performance of duties (10/3/18);
- unregulated, high-risk activities (19/3/18);
- common assault (1/5/18);
- unlawful use of a motor vehicle (1/5/18); and
- wilful damage (1/7/18).
- The applicant was sentenced at the Rockhampton Childrens Court on 3 July 2018, before the learned Childrens Court magistrate to a six-month probation order, combined with 30 hours of community service, and no convictions were recorded. At the time of sentence, the applicant had a single matter on his criminal history: two matters but one appearance; a stealing and a wilful damage which occurred, respectively, on the 31st of December 2017 and the 4th of December 2017, for which he was dealt with in the Yeppoon Childrens Court on the 15 February 2018, with no conviction recorded and a reprimand. The application for review was filed on 30 July 2018.
- The circumstances of the offending are briefly summarised by the applicant’s counsel, Mr Gill, at paragraph 7 of the applicant’s outline (exhibit 2), and, for convenience, I’ll read those into the record:
- (1) enter premises and commit indictable offence by break (16/12/17), the complainant was a business. The child and two accomplices forced entry by smashing a glass panel and a door stop. Once inside, they ransacked the premises and stole bags of lollies. The child made full admissions to police in an electronic record of interview;
- (2) trespass (22/2/18) – the child was issued with a banning notice from [indistinct] the Yeppoon Shopping Centre, which was enforceable until 12/2/19. It was reported to security that he was causing a disturbance and in a stairwell area, and yelling abuse at security. Police were unable to locate him at the time, but he was captured on CCTV and made admissions to police;
- (3) trespass (1/3/18) – with reference to the same banning notice as above – an incident was reported to police whereby security advised that the child was in the company of other persons, loitering near McDonald’s. He was standing in the roadway and was riding a bicycle in front of vehicles. He left after being told to leave by security, but returned an hour later. Police viewed CCTV which depicted his presence at the location, and he made admissions to police;
- (4) wilful damage (6/3/18) – witness abused a number of youths smashing light globes at the Yeppoon library. The youths were seen to knock off the lightbulbs from atop their poles, causing them to fall to the ground and smash. Police attended the location and arrested the child. He made admissions to kicking a lightbulb from one side of the grass to the other, causing it to scratch. The repair cost was estimated to be $250;
- (5) trespass (9/3/18) – with reference to the same banning notice as above – the child was at the Yeppoon Centre Shopping Centre and acting disorderly. He was told to leave by security. He ignored this request and left only after being told police had been called. Police attended and arrested him;
- (6) trespass (9/3/18) – with reference to the same banning notice as above – police conducted checks on 10/3/18 which revealed that the child was nominated for trespassing at the Yeppoon Centre Shopping Centre. CCTV footage and an eye witness confirmed this;
- (7) obstruct police in performance of duties (10/3/18) – police had cause to attend an incident where the child was arrested. The charge relating to the incident was not proceeded with by the prosecution. The child refused police demands to go to the police vehicle. He was physically apprehended and began swearing at police and continued to be belligerent and uncooperative upon being taken to the police station;
- (8) unregulated high-risk activities (19/3/18) – police were informed that juveniles were walking on the roof of a business premises. Police reviewed CCTV which depicted the child climbing onto shipping containers and then jumping onto the roof of the premises;
- (9) common assault (1/5/18) – the victim was waiting for a bus at a street near the Yeppoon High School. The child approached the victim and hit him once, with a clenched fist. The punch connected to the victim’s face. He had made full admissions to police in an electronic record of interview. He stated that he was angry at the victim for giving his sister a “hickie”;
- (10) unlawful use of a motor vehicle (1/5/18) – at 8 pm on 1/5/18, co-offenders attended the residence of the child and invited him to enter the vehicle “for a cruise”. The vehicle was driven by a co-offender, from Yeppoon to Rockhampton, with the child being a passenger. The vehicle was involved in a crash, and the child left the scene, with the driver. He was arrested nearby and bail was refused by police; and
- (11) wilful damage (1/7/18) – the child was involved in a fight with another juvenile at Keppel Bay Plaza. He has picked up a timber-framed sign and raised it above his head, and smashed it to the ground. He later made full admissions to police, stating that he committed the offence because he was angry.
The law – sentence reviews
- The power to review a sentence order of a Childrens Court magistrate, by a Childrens Court judge, is found in Youth Justice Act (YJA) s. 118. The review is to be conducted as a re-hearing on the merits (YJA s.122(1)). That review should be conducted expeditiously and with as little formality as possible, and the court is to have regard to the record of the Childrens Court proceedings as well as any further submissions in evidence by way of affidavit or otherwise.
- The court is obliged to take into account the sentencing principles of YJA s.150.
- The submission in respect of this application is that the sentence order imposed was excessive in the circumstances. In particular, it submitted that the learned magistrate did not properly consider the relevance of sentencing provisions under YJA s.162 in respect of restorative justice.
- During the course of the sentencing of the applicant, the applicant’s counsel submitted for a combination of restorative justice and a short probation order. During the course of those submissions the following exchange took place with the learned Childrens Court magistrate.
I’m not in great favour of this restorative justice. It’s all airy fairy, if you ask me. I – I’d rather that people be supervised and get to the root of the problem, because what’s happening here is, this young man’s running amok for some reason, and that needs to be addressed because he can’t afford to keep on running amok because he is going to be facing much more heavy penalties if he keeps doing it, and he is going to keep – go – and he is going to – things are going to get worse for him, and may get worse for the community, so – yes. I will hear Youth Justice, yes (transcript 1-11 ll 24-30, exhibit B, affidavit of Rajiv Gill, affirmed 10 September 2018).
- The learned magistrate was then advised that the department (Youth Justice) was supportive of a restorative justice order being made in combination with a probation order. When asked by the learned magistrate, “But what is it?”, the person noted in the transcript as “unidentified speaker”, but quite clearly a representative of Youth Justice says:
So restorative justice is a conference arranged by the department, where the young person must attend and also victims are invited to attend. They don’t have to, but the department does spent a lot of time educating them about the process and supporting them to attend in a safe way. We also invite elders, if the young person is Aboriginal or Torres Strait Islander, and we can – we also invite police officers and potentially representatives from other organisations, like the Department of Transport and Main Roads is a frequent attender at conferences. They sit down and educate the young person about the impacts of their offending. We do find it to be an effective process, not just for the young person ‑ ‑ ‑
Well, where – where – where are – how do you judge effectiveness? Have you got results that people don’t reoffend?
- Youth Justice:
I don’t have statistics for you today, your Honour, but it is a process that is not just about the young person. It’s about the victims, primarily have the ability to ‑ ‑ ‑
Yes, I’ve heard enough ‑ ‑ ‑
- Youth Justice:
‑ ‑ ‑ address ‑ ‑ ‑
I’ve heard enough of it, though. Stop. I – yep, but – yeah, thank you...(transcript 1-12 LL11-33, exhibit B, affidavit of Rajiv Gill, affirmed 10 September 2018).
- The submission on behalf of the applicant is that although the submission was made at the sentencing hearing suggesting a diversionary option by way of restorative justice and the child was deemed by Youth Justice Services to be suitable and eligible for restorative justice, and despite the process being explained to the learned Childrens Court magistrate by a representative of Youth Justice, the learned Childrens Court magistrate was dismissive and somewhat critical of the concept of restorative justice.
- With respect, that rather understates the situation. In my view, the learned Childrens Court magistrate appears to have concluded that restorative justice was “airy-fairy”, and expressed, fairly bluntly, a disinclination to utilise a sentencing option that the learned magistrate was obliged to consider, and, clearly, in this matter, declined to consider, in circumstances where it was clearly an appropriate and applicable alternative to be considered. Relevantly, YJA s.162(1) states that:
If a child enters a plea of guilty for an offence in a proceeding before a Court, the Court must consider referring the offence to the Chief Executive for a restorative justice process instead of sentencing the child (my emphasis).
- Although the Crown indicates, quite properly, that the restorative justice submission was not the only submission made by the applicant’s counsel at the original sentence, in my view, it was quite clear that the learned magistrate was not prepared to consider restorative justice generally as an alternative, rather than considering it specifically in respect of this child in this child’s circumstances, and after consideration of the mandatory provisions of YJA s.162(1).
- Although the sentence review process is a rehearing, and although it is not necessary in those circumstances to find error, it is quite clear that the magistrate has unreasonably constrained the exercise of his sentencing discretion by his expressed general attitude about restorative justice. And, in the circumstances, it is my view that the learned Childrens Court magistrate has fallen into error in the approach taken to the relative and respective sentencing alternatives available to the learned magistrate.
- Although, as Youth Justice concedes, there are some serious aspects to some of the offending, it seems to me that the offences are extraordinarily well suited to a restorative justice process, in which I would envisage, for example, representatives of the shopping centre, as well as, as indicated by Youth Justice, the Department of Transport, and the police, and individual victims, if and where applicable, would enable a restorative justice process in this matter to be of significant benefit, at least potentially, to this applicant who, at the time of sentence, had only one other matter on his criminal history, for which no conviction had been recorded and a reprimand had been entered as the outcome.
- The further complication is that as a result of miscommunication, this child has completed his 30 hours of community service, which, it appears, has gone well for him, and, in those circumstances, given the learned magistrate’s refusal to consider the restorative justice alternative, particularly after it had been explained, in my view, quite appropriately and reasonably fulsomely by the Youth Justice representative, it is a situation where the application for sentence review should be granted.
- Accordingly, I make the following orders:
- Application for sentence review granted;
- Set aside the sentence imposed by the learned Childrens Court magistrate on 3 July 2018; and
- Pursuant to section 162(1) that, without making a sentence order, the applicant be referred to a restorative justice process in respect of the charges the subject of the application for sentence review.
- Published Case Name:
MLN v The Queen
- Shortened Case Name:
MLN v The Queen
 QCHC 32
13 Sep 2018