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The Queen v OPR[2019] QCHC 17

 

CHILDRENS COURT OF QUEENSLAND

 

CITATION:

R v OPR [2019] QChC 17

PARTIES:

R

v

OPR
(applicant)

FILE NO/S:

157/19

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. The application is allowed.
  1. The sentences imposed in the Childrens Court at Beenleigh on 22 March 2019 are discharged.
  1. Substitute an order pursuant to s 175(1)(db) Youth Justice Act 1992 in relation to all offences that the applicant participate in a restorative justice process as directed by the Chief Executive and that the child comply with the requirements set out in s 192B of the Youth Justice Act 1992
  1. No convictions are recorded.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – sentence review application – where the applicant child was sentenced to a combination of court diversion referrals, probation and community service in relation to nine offences – where the applicant submits that the combination of the orders is excessive – whether a different sentence ought to be imposed

Youth Justice Act 1992 (Qld), s 164, s 175, s 192, s 194

COUNSEL:

 

SOLICITORS:

J O'Donnell (sol)  of Legal Aid Queensland for the applicant

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

  1. [1]
    This is an application to review sentencing orders imposed on 22March 2019 in the Childrens Court at Beenleigh.  The applicant pleaded guilty to nine offences, the circumstances of which and the respective sentencing orders being summarised in a table at paragraph 6 of the applicant’s outline of submissions, as follows:

Offence

Facts

Sentence Imposed

Attempted enter premises

At about 11.30pm on 23 December 2018 the defendant and a co-offender attended at 38-40 Bronzewing Court in Greenbank and attempted to enter the victim’s vehicle. Upon being unsuccessful, both offenders left next door.

20 hours community service

Burglary

Following the above offence, the defendant and a co-offender have attended 36 Bronzewing Court in Greenbank and gained entry through the rear door by unknown means. Whilst inside the dwelling, the offenders located and stole property, which included a Black Samsung Galaxy mobile phone, a Samsung Galaxy computer tablet, a Kindle reader, a JBL speaker, various sets of keys and a handbag containing a purse containing a number of cards and $80. The offenders decamped on foot.

s 164 court diversion referral

Unlawful use of a motor vehicle

At about 2.30am on 24 December 2018, two juveniles attended the defendant’s address in a vehicle that had been stolen earlier that day. The defendant and another child entered the vehicle and drove away from the location. A short time later the vehicle was seen being driven along Pub Lane however police were unable to intercept. Two co-offenders were later found at a 7-11 service station. The stolen vehicle was later located without the front bumper attached.

s 164 court diversion referral

Possess utensils or pipes

On 26 December 2018 police executed a search warrant on 55-57 Bellbird Drive in Greenbank. During this search, a water pipe and metal pipe suspected of being used to smoke cannabis were located. The defendant made admissions when interviewed.

20 hours community service

Enter premises with intent to commit indictable offence

On an unknown time between 10pm on Sunday 30 December 2018 and Monday 31 December 2018 the defendant and a co-offender have attended at 6-8 Wallaroo Court in Greenbank and entered 4 vehicles parked at the house. The defendant and co-offender have taken two sets of keys from a bench near the front of the house and conducted untidy searches of the vehicles.

On 31 December 2108 police were contacted by care workers from Churches of Christ Care after large amounts of property was found in the bedrooms of the defendant and co-offender. The defendant declined to be interviewed.

s 164 court diversion referral

Enter premises with intent to commit indictable offence

As per the above facts, the defendant was charged with multiple offences due to entering vehicles.

6 month Probation Order

Enter premises with intent to commit indictable offence

As per the above facts, the defendant was charged with multiple offences due to entering vehicles.

6 month Probation Order

Unlawful possession of suspected stolen property

On 31 December 2018 police were contacted by care workers from Churches of Christ Care after large amounts of property was found in the bedroom of the defendant.

Inside the room was a pair of Nike shoes, Adidas shoes and a scooter that had not been in there the previous night.

6 month Probation Order

  1. [2]
    As can be seen, the orders were a combination of referral of some offences pursuant to s 164 of the Youth Justice Act 1992 (Qld) (“YJA”), six months probation for some other offences and 20 hours community service for two offences.
  1. [3]
    The applicant’s solicitor submitted to the learned sentencing magistrate that a combination of s 164 court diversion referrals and a period of six months probation would be an appropriate sentencing outcome. The learned sentencing magistrate did not enquire of the applicant’s willingness to comply with a community service order, as is required by s 194 of the YJA. That non-compliance of itself provides reason to interfere with the community service order.
  1. [4]
    The applicant was 16 years of age at the time of the offences and at the time of sentence. He had only one previous entry in his criminal history for an offence of enter premises and commit indictable offence committed on 19 April 2017, for which he was reprimanded on 12 July 2017. He had never previously been the subject of a good behaviour order, probation order or any other community based order. At the time of the offences and the time of sentence he was living in institutional care and did not enjoy the support of his family.
  1. [5]
    In all the circumstances, I am of the view that the combination of orders made was excessive. I agree with the learned sentencing magistrate that there were good reasons for referring some offences by way of a court diversion referral pursuant to s 164 of the YJA. However, the addition of the community service orders and probation order, in my view, amounted to a combination of penalties which was excessive when one has regard to the nature of the offences and the antecedents of the applicant.
  1. [6]
    For those reasons the application is allowed and the orders of the Magistrates Court are discharged, and I substitute an order in relation to all offences, pursuant to s 175(1)(db) of the YJA, that the applicant participate in a restorative justice process as directed by the Chief Executive with the requirements set out in s 192B of the YJA.
  1. [7]
    I do that after considering the preconditions for making a restorative justice order in s 192A of the YJA. Having regard to the submissions made before the learned sentencing magistrate and the submissions made before me today, I am satisfied that the applicant has been informed of and understands the restorative justice process, has indicated a willingness to comply with such an order, is a suitable person to participate in a restorative justice process and, having regard to the submissions made on behalf of the Chief Executive before the learned sentencing magistrate about the appropriateness of such an order and the deciding factors in s 192A(2) of the YJA, consider that such an order is appropriate in the circumstances.
  1. [8]
    As did the learned sentencing magistrate, I likewise do not record convictions for the offences.
Close

Editorial Notes

  • Published Case Name:

    The Queen v OPR

  • Shortened Case Name:

    The Queen v OPR

  • MNC:

    [2019] QCHC 17

  • 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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