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The Queen v GAA[2019] QCHC 14

 

CHILDRENS COURT OF QUEENSLAND

 

CITATION:

R v GAA [2019] QChC 14

PARTIES:

R

v

GAA
(applicant)

FILE NO/S:

203/19

DIVISION:

Appellate

PROCEEDING:

Sentence review

ORIGINATING COURT:

Childrens Court of Queensland

DELIVERED ON:

14 June 2019 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

14 June 2019

JUDGE:

Allen QC DCJ

ORDER:

  1. Application to review the sentence is allowed.
  1. The sentence imposed in the Childrens Court at Beenleigh on 8 March 2019 of 20 hours of community service in relation to wilful damage of police property (14/02/2019) is set aside.
  1. With respect to the offence of wilful damage of police property (14/02/2019), order that the applicant be reprimanded pursuant to s 175(1)(a) of the Youth Justice Act 1992.
  1. No conviction is recorded.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – sentence review application – where the applicant child was sentenced to 20 hours of community service with respect to an offence of wilful damage – where the learned magistrate failed to inquire as to the applicant child’s willingness to comply with such order – where the applicant further submits that the order is excessive – whether a different sentence ought to be imposed

Youth Justice Act 1992 (Qld), s 154, s 175, s 195

COUNSEL:

 

SOLICITORS:

C Anderson-James (sol) of Legal Aid Queensland for the applicant

S Rigby (sol) of the Office of the Director of Public Prosecutions for the respondent

  1. [1]
    This is an application for a review of the sentence imposed on the applicant in the Childrens Court at Beenleigh on 8 March 2019. The applicant pleaded guilty to two offences of serious assault of a police officer and one charge of wilful damage of police property. The applicant was 15 years of age at the time of the offence and 15 years old at the time of sentence, having been born on 2 January 2004.
  1. [2]
    The circumstances of the offence were that at about 8.30pm on 14 February 2019, police were tasked to attend an address in Shailer Park. The applicant’s mother had telephoned police, reporting that the applicant was causing damage inside the property and was being violent towards her. Police arrived and saw the applicant near the front fence of the property. They attempted to speak to the applicant who them to “fuck off.” The applicant appeared to be enraged and police, having some knowledge of his mental health history, feared harm to the defendant or members of the public.
  1. [3]
    Police attempted to stop the defendant from walking away, when he struck out at police and pushed them. The applicant assumed a fighting stance and clenched both fists. Police restrained the applicant on the ground. He continued to struggle. He was handcuffed and put in the rear seat of the police car. The applicant struck out at police, using his legs to kick a police officer two times in the chest and another police officer five times to the stomach, causing them pain and discomfort. Whilst inside the police vehicle, the applicant continued a verbal tirade and spat at surfaces of the car. He kicked at the window and door of the vehicle, causing the window frame to bend away from the structure of the vehicle. He was removed from the vehicle and placed on the ground, and further assistance was sought from the Queensland Ambulance Service because of concerns as to the applicant’s mental health, and he was conveyed to the Logan Hospital for an emergency examination order. On a later date the applicant made full admissions to the offences but displayed a distinct lack of remorse, and a negative attitude towards the police.
  1. [4]
    At the time he appeared before the Childrens Court at Beenleigh, the applicant had one previous conviction for wilful damage committed on the 21st of October 2017 and for stealing on the same date for which he had been reprimanded.  The criminal history placed in front of the learned sentencing Magistrate also included an entry for the Cleveland Childrens Court of 23 July 2018, noting an offence of wilful damage of police property and two offences of assaulting or obstructing police officers, and noting that a restorative justice order imposed on 13 April 2018 had been complied with.  It is common ground between the parties that such matter should not have been noted on the criminal history, given the terms of s 154(3) of the Youth Justice Act 1992.  It is impossible to say what regard the learned sentencing Magistrate had to such an entry, but it is clear that I should not have regard to it when considering the application for review. 
  1. [5]
    The solicitor for the applicant in the Childrens Court at Beenleigh submitted that the applicant child had been diagnosed with anxiety and depression and at the time of the commission of the offences was unstable because he was transitioning between medications. The solicitor for the applicant submitted that he was an ideal candidate for a restorative justice process referral. The learned sentencing Magistrate rightly, in my opinion, regarded a restorative justice process referral as appropriate for the offences of serious assault of police and made such an order with respect to those charges. I am told that the restorative justice process, with respect to those two offences, has since been completed. And so that order is not the subject of the application for review. The application for review is thus limited to the order of 20 hours community service with respect to the offence of wilful damage.
  1. [6]
    It seems clear from the transcript of the proceedings in the Childrens Court in Beenleigh that the learned sentencing Magistrate failed to have regard to the provisions of s 195(a) of the Youth Justice Act 1992, prior to making the community service order, in that he did not inquire as to the willingness of the applicant to comply with the order.  That, of itself, is sufficient reason to set the order aside, but I am also of the opinion that, in the particular circumstances of this case, the making of the community service order resulted in the sentence overall being excessive.  Considerations of the influence of the applicant’s mental illness and its contribution to the commission of the offences and the fact that the wilful damage was part of one episode of criminality along with the offences of assault police, mean that it would have been appropriate for the offence of wilful damage to also have been subject to the restorative justice court diversion referral along with those offences of assault police.  Given that the process has been completed with respect to the offences of assault police, there is little purpose, now, in referring the offence of wilful damage for such a process. 
  1. [7]
    In the circumstances, the appropriate orders are as follows:
  1. Application to review the sentence is allowed.

The sentence imposed in the Childrens Court at Beenleigh on 8 March 2019 of 20 hours of community service in relation to wilful damage of police property (14/02/2019) is set aside.

  1. With respect to the offence of wilful damage of police property (14/02/2019), order that the applicant be reprimanded pursuant to s 175(1)(a) of the Youth Justice Act 1992.
  1. No conviction is recorded.
Close

Editorial Notes

  • Published Case Name:

    The Queen v GAA

  • Shortened Case Name:

    The Queen v GAA

  • MNC:

    [2019] QCHC 14

  • Court:

    QChC

  • Judge(s):

    Allen DCJ

  • Date:

    14 Jun 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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