O v Commissioner of Police[2018] QCHC 8

CHILDRENS COURT OF QUEENSLAND

1. [1]
   On 24 November 2017 the applicant O appeared in the Chinchilla Childrens Court and pleaded guilty to two counts of trespass [11 and 14 October 2017], assault occasioning bodily harm [18 October 2017], enter premises and commit indictable offence and wilful damage [11 November 2017] and enter premises and commit indictable offence [13 November 2017]. In relation to the offences of trespass he was convicted and not further punished and on the remaining offences he was sentenced to six months’ probation with no convictions recorded.

2. [2]
   The applicant was 15 years of age at the time of the offences and 15 at sentence. He entered very early pleas of guilty. He had no criminal history but had been previously cautioned. The offences themselves involved him entering the grounds of a local school and turning on water taps on two occasions; assaulting a 15 year old boy with whom he attended school by punching him four times causing pain, swelling and bruising; entering an unoccupied home and searching through draws and cupboards and breaking windows; and entering the underneath section of the house and stealing quantities of liquid, presumably alcohol. The owners of the properties were elderly and in relation to the stealing of the property under the house they were at home and asleep at the time.

3. [3]
   The applicant W appeared immediately after O and was sentenced largely in relation to the same offences. He was not involved in the assault occasioning bodily harm. He was convicted and not further punished in relation to the trespass offences and otherwise sentenced to 4 months’ probation and no convictions were recorded.

The Offences

4. [4]
   The crown concedes that a sentence of convicted and not further punished is not available in the Childrens Court. The Youth Justice Act 1992 provides a code for dealing with children who have committed offences.  It is a comprehensive code. The Childrens Court is a creature of statute.  Sentencing options that are not available within the Youth Justice Act 1992 are not within the jurisdiction of the Court unless specifically permitted by the Act.  The appropriate sentence in this case is a reprimand. 

5. [5]
   In relation to the remaining offences the crown submits that given the number of offences and the serious nature of those offences that a short term of probation is within range and will act to ensure that the child is given the support he needs to stay out of trouble. The defence submit that because this is the first time before the court for both of the children, the sentencing options should have favoured a sentence that did not involve formal supervision, and that a sentence of probation is a more severe punishment than was warranted in the circumstances. It was submitted that the magistrate fell into error by concluding that probation was not a punishment as it is a sentence that forces a child to do things he might otherwise choose not to do.

Sentencing Principles

6. [6]
   There is no doubt that the sentencing of children requires a greater focus on rehabilitation rather than punishment and that diversion away from the criminal justice system is desirable when dealing with first time offenders.

7. [7]
   The youth justice principles are outlined in Schedule 1 of the Youth Justice Act 1992 state [in part]:

“8. A child who commits an offence should be:

1. (a)
   held accountable and encouraged to accept responsibility for the offending behaviour; and

2. (b)
   dealt with in a way that will give the child the opportunity to develop a responsible, beneficial and socially accepted way; and

3. (c)
   dealt with in a way that strengthens the child’s family”

8. [8]
   In R v SCU [2017] QCA 198 Sofronoff P stated at 53 and 55:

“The effect of the provisions of the Youth Justice Act that I have referred to is that the Act is emphatic about the requirement that a court give consideration to all statutory factors relevant to a particular case, as well as the facts of the case itself in the ordinary way, before deciding upon an appropriate sentence to be imposed upon a child.

Section 150(1)(d) requires that the court have regard to the nature and seriousness of the offence. Otherwise, the Act emphasises considerations that, when they exist, would tend to be factors in mitigation of a sentence. This emphasis on the child’s future at the expense of aggravating factors is understandable because judges need little reminder to take into account aggravating factors. Too often, they are very plain and painful to see. Yet, in the sentencing of a child it is vital that a sentencing judge not permit aggravating circumstances to overshadow considerations that are peculiar to the situation of children.”

9. [9]
   Section 162 of the Youth Justice Act provides:

1. (1)
   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.

2. (2)
   If a finding of guilt for an offence is made against a child before a court, the court must consider referring the offence to the chief executive for a restorative justice process to help the court make an appropriate sentence order.”

10. [10]
    The role of the court is to balance the serious nature of the offences against the principles outlined in the Act. The emphasis must always be, however, on the rehabilitative aspect of the sentencing process when sentencing a child and particularly when sentencing a child who has had no previous contact with the courts. The role of the restorative justice process is to ensure that the child understands the impact that his behaviour has on the victims and how the type of offending impacts on society as a whole. It is accepted in the philosophy of the Act that immature minds are often lacking in foresight and consideration of the wider impacts of their impulsive acts. Due to these factors the court is inevitably obliged, in the case of young first offenders, to consider sentencing options that ensure that they are not cast into a situation where they might be in contact with or influenced by more experienced and older offenders.

Discussion

O

11. [11]
    The child O in this case was before the court at 15 years of age with no criminal history. It was submitted that he had learning difficulties although there was no material before the court which indicated the extent of those learning difficulties. At the hearing of this sentence review there was material placed before the court which indicated that he has intellectual and cognitive difficulties which indicate that his adaptive functioning is low and is ranked in the 0.2 percentile, his communication skills are in the low range and his daily living skills are in the low range. His current overall level is classified as low average and he is ranked in the 9^th percentile. He requires learning support to function in a school environment. 

12. [12]
    The offending took place over a relatively short period of time. The assault occasioning bodily harm was committed in the background of a history of bullying by the victim to W’s the applicants girlfriend. It appears that the applicant had been working for a short period of time and the workshop where he had gained employment went bankrupt and closed. It was after this that he began to commit these offences. He was not living at home and was essentially couch surfing.

13. [13]
    The applicant’s mother had been very proactive in ensuring that the child was occupied since he had returned home. She had been helping him look for employment. Her partner who worked in Roma was trying to get him a job two days a week at his employment. They had already attended a re-entry meeting at the local high school and they were looking at two days’ work next year and then three days at school. Whilst on bail he had been working with her cleaning and had not been leaving the house. The mother had done all of these things in the space of two weeks.

14. [14]
    The department, who was represented by Ms Harding indicated that there were a number of protective factors within the family unit and submitted that there was an option for a diversion which would still, the department submitted, have consequences for the child. Despite these submissions, the Magistrate indicated that he thought probation was appropriate to provide more support for the child. It would appear that the Magistrate did not take into account s 162 of Youth Justice Act because he did not give consideration to a restorative justice process as recommended by the representative of Youth Justice Services or even a restorative justice referral. 

15. [15]
    The submission was made on behalf of the applicant that the Magistrate wrongly classified the probation as rehabilitative and not punitive because the probation had certain obligations which could have consequences if he did not comply. I do not accept this argument. The purpose of probation is to provide a support for the child outside the family and in any event, a restorative justice referral also imposes obligations which have consequences if there is non-compliance. In my view, the Magistrate was correct in classifying the probation as rehabilitative.

16. [16]
    However, in this case, there seems little need for further support because the child had a supportive family who were making significant and tangible efforts to address the underlying causes of his offending. Further, although the Magistrate was not given any real information on his intellectual disability, the court is now aware of his intellectual and cognitive difficulties and it is appropriate to take that into account when dealing with this child. Finally, the Magistrate should have given more consideration to the restorative justice process.

W

In the case of W, the child was 16 years of age and had just finished year 11. He was looking for W to year 12 had plans to go into boiler making as a trade.  His mother was a single parent who supported the family by working 3 jobs: at the local service station, a motel and for Queensland Health.  The mother indicated that he was well behaved as a rule but in the last couple of months he had been making stupid decisions.  Again the mother had him working up at the hospital to keep him occupied so that he stayed out of trouble. 

In this particular case the department did not make submissions as the Magistrate had already indicated that he had to take into account parity issues with O, who had already received a sentence of 6 months’ probation.  Once again the Magistrate did not consider a restorative justice referral as a sentence or as a presentence option. This, in itself, amounts to an error as consideration of these options is mandatory under the Act. The child was a first time offender, he entered an early plea of guilty,  he made full admissions and cooperated with the police and his mother was very involved in the process, in my view, it is appropriate for the offence to be referred to a court diversion.

Conclusion

17. [17]
    I note the crown has indicated that the complainants are not interested in participating in the restorative justice process and that is completely understandable given their age, however, in my view, there are other ways in which a restorative justice process can be implemented. In my view, given the attitude of the department to a diversionary order and the fact that both children in this case have supportive and involved parents, it is appropriate for the matters to be referred to the Chief Executive of Youth Justice Services for a restorative justice process.

18. [18]
    Accordingly, I allow the review, set aside the orders made in the lower court. The children are sentenced as follows:

On the 2 charges of trespass both children are reprimanded. In relation to the remaining offences namely wilful damage, enter premises and commit an indictable offence by break, enter premises and commit an indictable offence for both children and assault occasioning bodily harm for O, the matters are referred to the chief executive for a restorative justice referral.