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The Queen v HGR[2019] QCHC 25

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v HGR [2019] QChC 25

PARTIES:

R

v

HGR

(Applicant)

FILE NO/S:

402/2019

DIVISION:

Childrens Court

PROCEEDING:

Sentence review

ORIGINATING COURT:

Aurukun Childrens Court

DELIVERED ON:

20 September 2019 (delivered ex tempore)

DELIVERED AT:

Brisbane Childrens Court

HEARING DATE:

20 September 2019

JUDGE:

Dearden DCJ

ORDER:

  1. (1)
    Application for extension of time in which to file an application for sentence review granted;
  2. (2)
    The time for filing of the sentence review in respect of the offences for which the applicant was originally sentenced on 18 July 2018, and resentenced on 18 July 2019, be extended to 21 August 2019;
  3. (3)
    Application for sentence review granted; and
  4. (4)
    Order that the child be referred to the Chief Executive for a restorative justice process pursuant to Youth Justice Act 1992 (Qld) s 163(1)(d)(i) (a court diversion referral).

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – application for sentence review – where the applicant was convicted of several property offences and assault occasioning bodily harm, while armed, in company – where the applicant had previously erroneously been sentenced to 50 hours community service when he was only 12 years old – where he was resentenced to nine months’ probation on all charges – whether the nine months’ probation was excessive in the circumstances  

LEGISLATION:

Youth Justice Act 1992 (Qld) s 118, s 122, s 150, s 163(1)(d)(i) 

COUNSEL:

D Law (sol) for the applicant

E Hislop (sol) for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Office of the Director of Public Prosecutions for the respondent

  1. [1]
    HIS HONOUR: This is an application for sentence review by the applicant, HGR, in respect of the following matters:
  1. (1)
    assault occasioning bodily harm, whilst armed, in company (08/03/2018);[1]
  2. (2)
    break and enter premises and commit an indictable offence (x 2) (03/05/2018);
  3. (3)
    enter premises with intent to commit indictable offence (x 6) (03/05/2018); and (4) wilful damage (03/05/2019).[2]
  1. [2]
    The child was born on 24 September 2005.
  1. [3]
    The child was originally convicted and sentenced at the Aurukun Childrens Court on 18 July 2018, and was sentenced to 50 hours community service on the incorrect basis that he was believed to be 13 at the time.[3] However he was aged only 12 at both the time of offending and at sentence, and that was an unlawful order.
  1. [4]
    The original sentence of 50 hours community service was set aside when the matter was reopened on 18 July 2019, and a sentence of nine months’ probation was substituted, with no conviction recorded.[4] 
  1. [5]
    The application for sentence review was filed on 21 August 2019, and is therefore out of time.
  1. [6]
    An application is made for extension of time, which is not opposed by the respondent. In respect of the application for an extension of time for sentence review, I make the following orders:
  1. (1)
    Application for extension of time granted;
  2. (2)
    The time for filing of the sentence review in respect of the offences for which the applicant was originally sentenced on 18 July 2018, and resentenced on 18 July 2019, be extended to 21 August 2019.

The law – sentence reviews

  1. [7]
    The Youth Justice Act 1992 (Qld) (‘YJA’) s 118 provides the power for this court to review a sentence order of a Childrens Court magistrate.  That review is to be conducted as a rehearing on the merits, which should be conducted as expeditiously and with as little formality as possible.[5]  This court is required to have regard to the record of the Childrens Court and any further submissions and evidence by way of affidavit or otherwise.[6]
  1. [8]
    The sentencing principles of the YJA are contained in s 150.

Discussion

  1. [9]
    The submission of the applicant is that, in resentencing the applicant when the matter was reopened on 18 July 2019, the learned acting magistrate failed to place sufficient weight on the applicant’s age, lack of criminal history at the time, the early plea of guilty, and the nature of the offences, resulting in a sentence that was excessive in the circumstances.
  1. [10]
    As indicated, the original sentence imposed on 18 July 2018 was 50 hours community service, which was not a sentence available to the learned acting magistrate when it was identified that the child was 12 rather than 13 (as the court believed he was at the time).
  1. [11]
    The applicant reoffended in the 12 months that it took to reopen the matter, and proceeded to a sentence of probation and community service on those new offences. That sentence is not challenged.
  1. [12]
    What is challenged is that the offending for which the child was originally sentenced for offences committed at the age of 12 and sentenced at the age of 12, being the first matters for which he had come before the court, were sentences for which the appropriate order would have been a restorative justice process referral by way of court diversion.
  1. [13]
    The respondent, pragmatically and appropriately in my view, concedes that the original sentence was excessive in the circumstances (that is, the resentence after the original unlawful sentence), and acknowledges that a restorative justice diversion was within the sentencing discretion of the learned acting magistrate, given his age and lack of criminal history at the time.

Orders

  1. [14]
    In all of the circumstances, I accept the submissions made by the applicant and adopted by the respondent.
  1. [15]
    Accordingly, I order:
  1. (1)
    Application for sentence review granted; and
  2. (2)
    Order that the child be referred to the Chief Executive for a restorative justice process pursuant to YJA s 163(1)(d)(i) (a court diversion referral).

Footnotes

[1] Outline of Submissions on behalf of the child, [7.1]; Outline of submission on behalf of the respondent, [1].

[2] Application for Sentence Review, filed 21 August 2019.

[3] Exhibit A – Affidavit of David Law, sworn 19 September 2019; Outline of submissions on behalf of the child, [6.1]-[6.2].

[4] Exhibit A – Affidavit of David Law, sworn 19 September 2019; Outline of submissions on behalf of the child, [6.3].

[5] Youth Justice Act 1992 (Qld) ss 122(1), 122(3).

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

Close

Editorial Notes

  • Published Case Name:

    The Queen v HGR

  • Shortened Case Name:

    The Queen v HGR

  • MNC:

    [2019] QCHC 25

  • Court:

    QChc

  • Judge(s):

    Dearden DCJ

  • Date:

    20 Sep 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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