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The Queen v BWR[2019] QCHC 15

 

CHILDRENS COURT OF QUEENSLAND

 

CITATION:

R v BWR [2019] QChC 15

PARTIES:

R

v

BWR
(applicant)

FILE NO/S:

121/18

DIVISION:

Appellate

PROCEEDING:

Sentence review

ORIGINATING COURT:

Childrens Court of Queensland

DELIVERED ON:

13 June 2019 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

13 June 2019

JUDGE:

Allen QC DCJ

ORDER:

  1. The application for a sentence review is granted.
  1. The orders of the Childrens Court at Beenleigh of 22 February 2019 that the child be released on a 12 month probation order are set aside.
  1. The following sentencing orders are substituted.
  1. With respect to the offences of:
    1. Assault occasioning bodily harm (26/10/2018);
    2. Common assault (26/10/2018);
    3. Stealing (19/11/2018);
    4. Stealing (19/1/2019); and
    5. Going armed to cause fear (19/1/2019);

the child be released under the supervision of the Chief Executive for a period of 5 months and the child must comply with the requirements set out in s 193(1) of the Youth Justice Act 1992.

  1. Pursuant to s 164 of the Youth Justice Act 1992, the offences of:
    1. Commit public nuisance (4/12/2018);
    2. Trespass (31/12/2018);
    3. Commit public nuisance (31/12/2018);
    4. Commit public nuisance (4/2/2019); and
    5. Trespass (4/2/2019).

are referred to the Chief Executive for a court diversion process.

  1. Affirm the reprimand ordered in the Childrens Court at Beenleigh on 22 February 2019 in respect of the following offences:
    1. Failure to appear (16/11/2018); and
    2. Unauthorised dealing with shop goods (10/1/2019).
  1. No convictions are recorded.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – application for sentence review – where the learned magistrate gave no reasons for declining to order a restorative justice process for any of the offences – where the learned magistrate did not enquiry as to the applicant child’s willingness to comply with the probation order imposed - where the applicant submits that the order of 12 months probation was excessive – where the applicant child has successfully completed a period of one month of the probation imposed – whether a proper exercise of the sentencing discretion would result in a different sentence

COUNSEL:

 

SOLICITORS:

R Hew (sol) of Legal Aid Queensland for the applicant

J Marxson (sol) of the Office of the Director of Public Prosecutions for the respondent

  1. [1]
    HIS HONOUR: This is an application for a sentence review by the applicant, BWR, who was sentenced in the Children’s Court at Beenleigh on 22 February 2019 in relation to offences as follows:
  1. assault occasioning bodily harm on 26.10.2018;
  1. common assault on 26.10.2018;
  1. failure to appear on 16.11.2018;
  1. stealing on 19.11.2018;
  1. commit public nuisance on 31.12.2018;
  1. unauthorised stealing of shop goods on 10.1.2019;
  1. stealing on 19.1.2019;
  1. going armed to cause fear on 19.1.2019;
  1. commit public nuisance on 4.2.2019; and
  1. trespass on 4.2.2019. 
  1. [2]
    The applicant was sentenced to 12 months probation for all offences except for the offences of failure to appear and unauthorised stealing of shop goods in respect of which she was reprimanded. The court also imposed a three month exclusion order from Queensland Rail. That order has subsequently expired and it is not the subject of any complaint in the application for review. The application for review was filed on 20 March 2019 and the probation order stayed from that date.
  1. [3]
    The applicant was born on 12 February 2001 and was 17 years of age at the time of the offences and 18 years old at the time of sentence. The applicant had limited relevant criminal history and was not subject to any orders at the time of the commission of the offences. The facts of the offences may be summarised as follows:

Date

Offence

Summary of facts

20/10/2018

Assault occasioning bodily harm

At 2:30pm the victim was outside Loganlea railway station. The applicant child was seen talking to herself and yelling. She said to the victim “Stop looking at me cunt” and hit the victim in the nose with her left hand. She continued to walk inside the station. The victim’s nose was bleeding. The victim reported the incident to staff, and a short time later his girlfriend and mother attended the train station. When later spoken to by police, the applicant child said the victim had wolf whistled at her and stared at her, to which she took offence and hit him in the face.

26/10/2018

Common assault

When the victim’s girlfriend in the above offence attended the station, she went looking for the applicant child. A verbal argument broke out, where the applicant child tried to start a physical fight. The girlfriend’s mother stood in between the victim and the applicant child, and the applicant child used her left elbow to try and move past the girlfriend’s mother, and her elbow hit her right arm. The applicant child further pushed the girlfriend’s mother twice in the chest with her left arm, and the girlfriend’s mother refused to move out of the way. Two male friends of the applicant child then separated the applicant child from the incident.

16/11/2018

Failure to appear

On the 2nd of November 2018 the applicant child entered into a bail undertaking to appear at the Beenleigh Childrens Court on 16 November 2018, however did not appear.

19/11/2018

Stealing

The applicant child stole multiple items from Target Coomera, including candles, a women’s bra, ladies night shirt, ladies’ underwear, men’s underwear, a FILA brand t-shirt and DVDs by putting the items in a duffel bag and exiting without payment. The items were valued at $234.

4/12/2018

Commit public nuisance

The applicant child attended the Beenleigh Centrelink office, where she is currently banned. She began screaming and shorting about not getting paid. She refused to leave and the Centrelink went into lockdown. The child stopped the sliding glass doors from closing by putting her arm in between the doors.

31/12/2018

Trespass

The applicant child attended the Beenleigh Centrelink office. She is currently banned from all Centrelink offices. She was asked to leave and did leave, however then returned and the Centrelink went into lockdown.

31/12/2018

Commit public nuisance

After being asked to leave the Beenleigh Centrelink office, the applicant child raised her voice, was verbally abusing staff, obstructing the entry to the office, waving her arms and aggressively posturing herself. She sat in the doorway to the business, refusing to leave.

10/1/2019

Unauthorised dealing with shop goods

The applicant child stole a pair of bikini bathers (Target brand) and a pair of men’s volley shorts from Target Pacific Fair. The total amount was $17.00. The applicant child later made admissions to the offence.

19/1/2019

Stealing

At 11:00am the applicant child stole a kitchen knife from Woolworths Meadowbrook to the total value of $3.00.

19/1/2019

Going armed to cause fear

After committing the above offence the applicant child went to the Loganlea Train Station. She produced the knife in her right hand and waved it around in the air whilst screaming and swearing at members of the public. Members of the public felt fearful. When arrested by police the child said she was suicidal and refused to answer questions.

4/2/2019

Commit public nuisance

The applicant child attended the Beenleigh Centrelink office, where she is currently banned. Police were called and were advised that the child had attended, demanded that her payments be changed from Inala to Beenleigh, and walked into the manager’s office without permission. She has yelled out and sworn.

4/2/2019

Trespass

The applicant child attended the Beenleigh Centrelink office. She is currently banned from all Centrelink offices. The above offence occurred. The Centrelink office was forced to go into lockdown due to the child’s behaviour.

  1. [4]
    A Children’s Court judge may review the sentence order of the Children’s Court magistrate.[1]  A review is to be conducted as a rehearing on the merits and to be conducted expeditiously and with as little formality as possible.[2]
  1. [5]
    On the review, I have had the benefit of an affidavit of Ms Rachel Hew, exhibiting the statement of facts before the sentencing magistrate, some stills of CCTV footage relevant to the offences of assault occasioning bodily harm and common assault, and a transcript of the proceedings before the magistrate, including the learned magistrate’s sentencing remarks. Both the prosecutor and the solicitor appearing for the applicant before the magistrate referred to the possibility of restorative justice conferencing with respect to some offences. The solicitor for the applicant particularly submitted that a restorative justice process would be appropriate for those offences associated with the applicant’s attendance at Centrelink from which she’d been excluded. The solicitor for the applicant submitted with respect to other offences that the applicant had instructed that she would be willing to comply with a probation order of “perhaps six months”.
  1. [6]
    The learned magistrate gave no reasons for declining to order a restorative justice referral for any offences. Pursuant to s 163(1)(d) of the Youth Justice Act 1992, the question that the learned magistrate was required to ask and answer was whether, having regard to the deciding factors for referring the offence, the Court considered the referral would allow the offence to be appropriately dealt with without making a sentence order and, pursuant to s 163(1)(e), whether the referral was appropriate in the circumstances.  Pursuant to s 163(2), the “deciding factors” for referring an offence meant:
  1. the nature of the offence; and
  2. the harm suffered by anyone because of the offence;  and
  3. whether the interests of the community and the child would be served by having the offence dealt with under a restorative justice process.
  1. [7]
    The respondent quite fairly and reasonably concedes that there is merit in structuring a sentence which would assist the applicant in re-establishing or improving her relationship with and conduct towards Centrelink. The respondent submits that such a sentence would also be in accordance with the charter of the Youth Justice Principles, enabling the applicant to be dealt with in a way that will give the applicant the opportunity to develop in responsible, beneficial and socially acceptable ways[3] by mending the relationship and improving interactions with Centrelink staff and allow the applicant to reintegrate into the community[4] by enabling better access to government services which will assist in the applicant finding her place within the community now she is an adult.
  1. [8]
    I agree with those submissions and it is appropriate that those offences related to the applicant’s interactions with Centrelink be the subject of a court diversion referral pursuant to s 164 of the Youth Justice Act 1992, those offences being commit public nuisance on 4.12.2018, trespass on 31.12.2018, commit public nuisance on 31.12.2018, commit public nuisance on 4.2.2019 and trespass on 4.2.2019.
  1. [9]
    The applicant further submits that the order of 12 months probation is excessive when one considers the circumstances of the offences, the applicant’s limited history and her own unfortunate childhood circumstances, and notes that the period of 12 months is the maximum period of probation that the Magistrate was able to impose.[5] The applicant also submits that the Court would find that there was non-compliance with s 194 of the Youth Justice Act 1992, which provides that a Court may make a probation order against a child only if the child indicates willingness to comply with the order.  The transcript shows that there was no query by the Magistrate of the applicant as to whether she was willing to comply with the conditions of the probation order he imposed.  The applicant does concede that during the course of sentencing submissions, the solicitor for the applicant submitted as to the applicant’s willingness to comply with probation, but that that was in the context of a submission that six months probation would be appropriate.  In those circumstances, it cannot be said that the applicant indicated willingness to comply with the order that was, in fact, imposed by the sentencing Magistrate, and I do find that he fell into error in that respect.
  1. [10]
    The respondent submits that 12 months probation was within a proper exercise of sentencing discretion, considering the support it would provide to the applicant in addressing her underlying issues and her significant disadvantages, which were apparently manifesting in her offending conduct. The respondent submits that the Court, if making a restorative justice order in relation to other offences, might reduce the 12 month probation order to 8-10 months to take into account the one month of compliance with the probation order and the additional requirement of the restorative justice order. The applicant submits that, in all the circumstances, a probation order of no longer than five months would be imposed, taking into account the one month of probation already completed.
  1. [11]
    Taking into account all the circumstances of the offending for which the probation order is to be imposed and the circumstances of the applicant which were addressed in submissions on her behalf before the magistrate, I accept the submission on behalf of the applicant that a period of five months probation would appropriately address the sentencing principles in s 150 of the Youth Justice Act 1992.  That probation order would be with respect to the offences of assault occasioning bodily harm on 26.10.2018, common assault on 26.10.2018, stealing on 19.11.2018, stealing on 19.1.2019 and going armed to cause fear on 19.1.2019.
  1. [12]
    I see no reason why I should take any different approach to that of the sentencing magistrate with respect to the offences of failure to appear on 16.11.2018 and unauthorised stealing of shop goods on 10.01.2019 with respect to which the applicant was reprimanded. Likewise, I see no reason why it would be appropriate for convictions to be recorded.
  1. [13]
    So, accordingly, I make the following orders:
  1. The application for a sentence review is granted.
  1. The orders of the Childrens Court at Beenleigh of 22 February 2019 that the child be released on a 12 month probation order are set aside.
  1. The following sentencing orders are substituted.
  1. With respect to the offences of:
    1. Assault occasioning bodily harm (26/10/2018);
    2. Common assault (26/10/2018);
    3. Stealing (19/11/2018);
    4. Stealing (19/1/2019); and
    5. Going armed to cause fear (19/1/2019);

the child be released under the supervision of the Chief Executive for a period of 5 months and the child must comply with the requirements set out in s 193(1) of the Youth Justice Act 1992.

  1. Pursuant to s 164 of the Youth Justice Act 1992, the offences of:
    1. Commit public nuisance (4/12/2018);
    2. Trespass (31/12/2018);
    3. Commit public nuisance (31/12/2018);
    4. Commit public nuisance (4/2/2019); and
    5. Trespass (4/2/2019).

are referred to the Chief Executive for a court diversion process.

  1. Affirm the reprimand ordered in the Childrens Court at Beenleigh on 22 February 2019 in respect of the following offences:
    1. Failure to appear (16/11/2018); and
    2. Unauthorised dealing with shop goods (10/1/2019).
  1. No convictions are recorded.

Footnotes

[1] Youth Justice Act 1992 (Qld), s 118.

[2] Youth Justice Act 1992 (Qld), s 122.

[3] Youth Justice Principle 8(b).

[4] Youth Justice Principle 16.

[5] Youth Justice Act 1992 (Qld), s 175(d)(1).

Close

Editorial Notes

  • Published Case Name:

    The Queen v BWR

  • Shortened Case Name:

    The Queen v BWR

  • MNC:

    [2019] QCHC 15

  • Court:

    QChC

  • Judge(s):

    Allen DCJ

  • Date:

    13 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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