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- Unreported Judgment
R v MXD QCHC 12
CHILDRENS COURT OF QUEENSLAND
R v MXD  QChC 12
Brisbane Childrens Court
4 April 2019 (delivered ex tempore)
Brisbane Childrens Court
4 April 2019
CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – application for sentence review – where the applicant had previously been sentenced to 12 months probation and 100 hours community service – where the applicant was only 13 years old – where the applicant had served pre-sentence custody – where the applicant had limited criminal history – whether the sentence of the learned magistrate was manifestly excessive in the circumstances
Youth Justice Act 1992 (Qld) s 118, s 122(1), s 150
Barnes, L (sol) for the applicant
Sherrie, S (sol) for the respondent
Legal Aid Queensland for the applicant
Office of the Director of Public Prosecutions for the respondent
- HIS HONOUR: This is an application for sentence review by the applicant MXD. The application relates to the following offences:
(1) enter premise and commit indictable offence by break (between 30/8/18 – 4/9/18);
(2) enter premises and commit indictable offence by break (12/10/18);
(3) enter premises and commit indictable offence (13/10/18);
(4) enter premise with intent to commit (on or about 14/10/18);
(5) enter premises and commit indictable offence by break (on or about 14/10/18);
(6) enter premises and commit indictable offence by break (14/10/18);
(7) enter premises with intent to commit (14/10/18);
(8) unlawful use of a motor vehicle (21/10/18);
(9) possess dangerous drugs (21/10/18);
(10) enter premises with intent to commit (8/11/18); and
(11) enter premises with intent to commit (10/11/18).
- The applicant was sentenced at the Yarrabah Childrens Court on 9 January 2019 to a combined 12 months probation order and 100 hour community service order, with no conviction recorded.
- The order was stayed on 14 February 2019 in the Childrens Court of Queensland after an extension of time was granted. This morning I granted an application to extend time for sentence review, which was amended to include a possess dangerous drug (21/10/18) that had been omitted from the initial application to extend time, and also gave leave for an amended application for sentence review including that extra charge, so that all matters can be before the court.
- The submission before me is that, in the light of the child’s age at the time (between 13 years and 13 years and two months), the child’s criminal history and, in particular, a period of some 74 days in pre-sentence custody, that the order imposed of 12 months probation and a component of 100 hours community service (the maximum available in the circumstances) was excessive and inappropriate in the circumstances.
- The offending is of some significant concern and, without reciting all of the details (see exhibit 1, paragraph 7), it involved the child, with others, breaking into the Yarrabah supermarket, Shire Council premises, a rehabilitation centre, a pre-school, another building owned by the Yarrabah Council, a further stealing from the supermarket while it was open, another entry to the Treatment and Healing Centre, the unlawful use of a motor vehicle which had been taken from a premises at Mt Sheridan, the possession of a gram of cannabis, an entry into another health services centre and an entry into the Yarrabah Works Compound, all occurring over a period of approximately two months between 13 October and 10 November 2018.
- The power for this court to conduct a sentence review of a magistrate’s sentence order from the Childrens Court arises from Youth Justice Act 1992 (Qld) (YJA) s 118. The review was to be conducted as a rehearing on the merits (YJA s 122(1)), and should be conducted expeditiously and with as little formality as possible, having regard to the record of the Childrens Court preceding and any further submissions and evidence by way of affidavit in this hearing.
- The sentencing provisions that this court must take into account are contained in YJA s 150.
- As identified, the submission is that the sentence order was excessive because of the component of 100 hours of community service for a 13 year old child who had just, pre-sentence, spent 74 days (approximately two and a-half months) in custody and had a limited criminal history with one previous order of eight months probation.
- The child, it does seem, on the two hours that he was able to undertake community service, responded well and, importantly, Ms Barnes points out that since the sentence on 9 January 2019, there’s been no further offending, and the child appears to be responding well to the supervision component. The learned magistrate, it seems, was well aware of the child’s family background, and the very substantial loss (estimated at $20,000) from the offending at the local supermarket was clearly a very concerning matter to the community and a very concerning matter to the learned magistrate. Although there was no doubt that this was a deeply distressing matter to all concerned, in particular the Community Justice Group, who are obviously very upset about what had occurred and the fact that the supermarket had had to be closed for a week, the court should not lose sight of the age of the applicant and, in particular, the substantial period in pre-sentence custody. In all of those circumstances, I accept that insufficient weight has been placed on those factors, and the appropriate step by this court on a sentence review is to mitigate the penalty by setting aside the community service component, but allowing the probation order to continue to provide the supervision that’s obviously needed for a child who otherwise has significant difficulties, many of them not of his own making, in respect of his personal circumstances.
- In all of the circumstances, then, the order of the court is as follows:
- (1)Application granted; and
- (2)Amend the order from 9 January 2019 by the learned magistrate at the Yarrabah Childrens Court by deleting the requirement for the applicant to complete 100 hours community service.
- Published Case Name:
R v MXD
- Shortened Case Name:
R v MXD
 QCHC 12
04 Apr 2019