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- Unreported Judgment
The Queen v ASR QCHC 16
CHILDRENS COURT OF QUEENSLAND
R v ASR  QChC 16
Childrens Court of Queensland
13 June 2019 (ex tempore)
13 June 2019
Allen QC DCJ
CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – sentence review application – where the learned magistrate did not consider a restorative justice order – where the applicant submits that the imposition of a probation was excessive – where the applicant submits that the sentence imposed was disproportionate to the offending – whether a good behaviour order should be substituted
Youth Justice Act 1992 (Qld), s 162, s 163, s 164, s 150, s 188
R Hew (sol) of Legal Aid Queensland for the applicant
NJ Hooper (sol) of the Office of the Director of Public Prosecutions for the respondent
- On the 10 April 2019, the applicant child appeared in the Childrens Court at Southport and pleaded guilty to one offence of trespass, contrary to s 11(1) of the Summary Offences Act 2005, committed on 7 April 2019. The circumstances of the offences were that the applicant was with a group of juveniles who entered and remained in an unoccupied single level dwelling at Arundel. Police were notified of the juveniles and attended the address. Police located the applicant inside the dwelling without having permission or authority or emergent reason to be at the property. The applicant was transported to the watch-house and given bail.
- The applicant was born on 15 June 2004, and was aged 14 years at the time of the offence and at the time of sentence. He did have some prior criminal history for offences of dishonesty, including shoplifting and burglary, common assault and wilful damage. At the time of the commission of the offence of trespass, he was subject to a good behaviour order for an offence of unlawful possession of suspected stolen property and a probation order for an offence of committing public nuisance.
- The solicitor for the applicant told the learned sentencing magistrate that he was attending year 10 at high school and had a great deal of support at home. It was submitted that the applicant had suffered consequences of the event by way of being grounded, having his phone taken from him and being banned from video games. The prosecutor informed the Court that the applicant had reported successfully on 10 out of 11 occasions, and was excused on one occasion in relation to his current probation order. The solicitor for the applicant submitted that a short period of probation might be an appropriate order. It would appear that the learned sentencing magistrate accepted such submission when ordering that the applicant be subject to a two month probation order.
- The solicitor for the applicant (who was not the solicitor in the Magistrates Court) now submits that the sentence imposed by the magistrate was excessive in that it failed to properly take into account the need for a fitting proportion between the offence and the sentence, the extra punishments imposed within the family unit, and the availability and effectiveness of alternate sentencing options, including a restorative justice process under s 164 of the Youth Justice Act 1992. It is also submitted that a special condition imposed pursuant to the probation order that the applicant not attend the city of the Gold Coast unless in the company of his parents and if attending for court is excessive. In further developing those submissions, the applicant submits that imposing a period of probation of any length for one summary offence of trespass relating to the applicant being in an unoccupied dwelling as part of the group is disproportionate to the nature and low level seriousness of the offence. The applicant points to information from the Department of Youth Justice as to procedures with respect to probation orders involving assessment which can take up to six weeks and a final review a week prior to the expiry of the order as indicating that there is little utility in a probation order for a period of two months.
- The applicant submits, and the respondent accepts, that the magistrate fell into error in not considering a restorative justice process referral, as the magistrate was obliged to do pursuant to section 162 of the Youth Justice Act 1992. The applicant confirms that he is willing to participate in a restorative justice process, and submits that such would be an appropriate order rather than probation. The respondent concedes that the condition of the probation order prohibiting the applicant from attending the city of the Gold Coast unless in the company of his parents and while attending court is excessive, but only in respect of the court attendance aspect of the condition. Whilst conceding an error by the magistrate in not considering a restorative justice process referral, the respondent submits that the nature of the offence is impersonal in the sense that it does not involve any apparent harm to a person or property, and that there would be little benefit to the victim through apology or reparation of harm, and little benefit to the applicant from such a process. Whilst accepting that the offence is minor in nature, the respondent submits that it was open to the magistrate to order a short period of probation, which would have some efficacy in providing supervision of the applicant.
- It is not in contest that the learned sentencing magistrate failed to consider, as the court was obliged to do pursuant to s 162 of the Youth Justice Act 1992, referring the offence for a restorative justice process instead of sentencing the applicant. In those circumstances, the court should now consider whether it is appropriate to do so. Section 163 of the Youth Justice Act 1992 provides that the court may refer an offence for a restorative justice process if, amongst other things, having regard to the deciding factors for referring the offence, the court considers the referral would allow the offence to be appropriately dealt with without making a sentence order and the court considers the referral is appropriate in the circumstances.
- Section 163(2) provides that the deciding factors for referring an offence means:
- (a)the nature of the offence; and
- (b)the harm suffered by anyone because of the offence; and
- (c)whether the interests of the community and the child will be served by having the offence dealt with under a restorative justice process.
- I do not consider, having taken into account such factors, that a referral is appropriate in the circumstances. Whilst acknowledging that the process of referral is not limited to offences where there is some particular harm suffered by a victim as a consequence of the offence, I do not consider that the nature of the offence is such that a referral is appropriate in all the circumstances.
- Turning then to the applicant’s argument that the sentence of probation imposed is excessive, I note the sentencing principles in s 150 of the Youth Justice Act 1992, and, in particular, the requirement pursuant to s 150(1)(k) that the court must have regard to a fitting proportion between the sentence and the offence. The applicant correctly submits that whilst it is relevant to a consideration of sentence that the offence was committed in breach of a good behaviour order and a probation order, that the penalty for the offence must still be proportionate to the criminality involved in the actual offence.
- In my view, a period of probation is disproportionate to the nature of and low level of seriousness of the offence, and when one considers the mitigating factors of the plea of guilty and the consequences that the applicant had suffered at home as a result of his offending behaviour, the period of probation imposed was an excessive sentence for the offence.
- In all the circumstances, considering the sentencing principles in s 150 of the Youth Justice Act 1992, I consider that a good behaviour order would meet the necessary considerations governing sentence. And, accordingly, the application is allowed. The order of the Magistrates Court is set aside, and, in substitution of that order, pursuant to s 188 of the Youth Justice Act 1992, I order that the applicant be of good behaviour and abstain from violation of the law for a period of three months.
- And I confirm that no conviction is recorded.
- Published Case Name:
The Queen v ASR
- Shortened Case Name:
The Queen v ASR
 QCHC 16
13 Jun 2019