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The Queen v AEU[2019] QCHC 27

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v AEU [2019] QChC 27

PARTIES:

R

v

AEU 

(Applicant)

FILE NO/S:

334/2019

DIVISION:

Childrens Court

PROCEEDING:

Sentence review

ORIGINATING COURT:

Mount Isa Childrens Court

DELIVERED ON:

18 September 2019 (delivered ex tempore)

DELIVERED AT:

Brisbane Childrens Court

HEARING DATE:

18 September 2019

JUDGE:

Dearden DCJ

ORDER:

  1. (1)
    Application for sentence review granted; 
  2. (2)
    Delete that component of the sentence imposed at the Mount Isa Childrens Court on 25 June 2019, which refers to the imposition of “70 hours community service”.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – application for sentence review – where the applicant was convicted of several offences involving breaking and entering and unlawfully using a motor vehicle – where the applicant was sentenced to 9 months’ probation and 70 hours of community service – where the applicant had a moderate intellectual impairment from an organic origin – where the applicant had served presentence detention – whether the sentence was excessive in the circumstances  

LEGISLATION:

Youth Justice Act 1992 (Qld) s 118, s 122, s 150

COUNSEL:

L Barnes (sol) for the applicant

T O'Brien (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 in respect of the applicant AEU, who was sentenced at the Mount Isa Childrens Court on 25 June 2019 in respect of the following matters:
  1. (1)
    Enter dwelling and commit indictable offence (19/06/2019);
  2. (2)
    Unlawful use of a motor vehicle (19/06/2019);
  3. (3)
    Driving a motor vehicle without a driver licence, never held a licence (19/06/2019);  and
  4. (4)
    Fail to comply with duties of driver involved in a crash and give the driver’s required particulars to the owner of the property damaged (19/06/2019).[1]
  1. [2]
    The applicant was convicted on his own plea of guilty in respect of all four charges.[2]  On charges 1, 2 and 3, the applicant was placed on nine months’ probation and 70 hours community service, with no conviction recorded.[3]  On charge 4, the applicant was reprimanded and no conviction was recorded.[4]
  1. [3]
    This sentence review relates to the imposition of the community service order component of that combined community service and probation order in respect of charges 1, 2 and 3.

The law – sentence reviews

  1. [4]
    A Childrens Court Judge may review the sentence order of a Childrens Court Magistrate.[5]  That review is to be conducted as a rehearing on the merits.[6]  The review should be conducted expeditiously and with as little formality as possible.[7]  This court is entitled to have regard to the record of the Childrens Court proceedings and any further submissions are evidenced by way of affidavit or otherwise.[8] 
  1. [5]
    This court (as any court does), in sentencing pursuant to the Youth Justice Act 1992 (Qld) (‘YJA’) must take account of the sentencing principles contained in YJA s 150.

Grounds of review

  1. [6]
    It is submitted that the sentence order imposed was excessive in the circumstances with insufficient weight placed on the early plea of guilty, time spent on remand and YJA sentencing principles.[9] 

Circumstances of offending

  1. [7]
    The circumstances of the offending are that, in respect of charge 1, the proprietors of the Copper Gate Motel provided accommodation and the defendant and co-offender observed the door to one of the rooms to be slightly open. They located a set of vehicle keys inside that room, and removed the keys. The vehicle in relation to charge 2 was parked outside room 3 at the Copper Gate Motel, and the vehicle key located in the room was used to drive the vehicle and reverse it into Marian Street in Mount Isa.[10]
  1. [8]
    The vehicle struck a parked vehicle while reversing, and then struck another vehicle. The applicant and the co-offender then fled when chased. Charge 3 relates to the driving of that vehicle without a licence and charge 4 relates to failing to comply with the driver’s duties after the relevant crashes.[11] 
  1. [9]
    The applicant had appeared in the Mount Isa Childrens Court on the 12th of June 2019 (only a week prior to the further offending) and two weeks prior to the sentence the subject of this sentence review.[12] 

Discussion

  1. [10]
    The relevant issues in respect of this applicant are: the early plea of guilty; the fact that the applicant spent three days in watch-house custody; was the driver of the vehicle; was not engaged in school and had been in the care of Child Safety for a number of years, but was unable to reside on Mornington Island, where he was born and raised, and his parents reside.[13]
  1. [11]
    The learned acting magistrate in imposing sentence (although he didn’t have the relevant reports before him), indicated that he was well aware of the reports in respect of the child, and those have been placed before this court by way of exhibits to the affidavit of Ms Barnes, affirmed 17 September 2019 at exhibits F, G and H.
  1. [12]
    The prosecution originally submitted for detention, but of course, there was no pre-sentence report ordered at that stage, and the learned acting magistrate indicated that he was not considering detention.[14]  The order imposed of nine months probation and 70 hours community service raises two obvious issues:  firstly, whether that adequately reflects the mitigation, in particular, of the period of time spent in actual custody prior to release, and [secondly] although it was raised by the learned acting magistrate during his sentencing remarks,[15] given the psychological and psychiatric assessments, there are, in my view, significant concerns as to whether that sentence is not only excessive in the circumstances, but is, essentially, a sentence which sets the applicant up for failure, given the matters raised, in particular, in exhibit H to the affidavit of Lisa Barnes, affirmed 17 September 2019, which relevantly states that the applicant fits:

The DSM5…criteria for moderate Intellectual Impairment due to an organic cause (foetal alcohol syndrome).  This diagnosis indicates that he is currently functioning at a five or six year old age.  Having an intellectual impairment with an organic origin means that [AEU] will always have a moderate intellectual impairment.  He will always struggle with processing verbal and non-verbal information, problem solving and making reasonable decisions and dealing with emotions.[16]

  1. [13]
    With the greatest respect to the Youth Justice officer who appeared at the sentence and responded to the learned acting magistrate’s query,[17] it seems to me that this child who is 14 and functions at the cognitive age as a five or six year old, is undoubtedly at a significant risk of not completing a reasonably substantial community service order, and (although the report was before the learned acting magistrate some two weeks previously) that is an issue that does not seem to be appropriately addressed during the course of either submissions or sentence.  I also note that community service was a submission made by the applicant’s legal representative at sentence, but that, of course, does not bind this court on the sentence review. 
  1. [14]
    In all of the circumstances, it is, of course, entirely appropriate that the probation order remain in place. The imposition of the community service order in these circumstances is, in my view, excessive.

Orders

  1. [15]
    Accordingly, I make the following orders:
  1. (1)
    Application for sentence review granted; 
  2. (2)
    Delete that component of the sentence imposed at the Mount Isa Childrens Court on 25 June 2019, which refers to the imposition of “70 hours community service”.

Footnotes

[1] Application for Sentence Review, filed 23 July 2019.

[2] Exhibit A – Affidavit of Leisa Renae Barnes, affirmed 17 September 2019.

[3] Exhibit A – Affidavit of Leisa Renae Barnes, affirmed 17 September 2019.

[4] Exhibit A – Affidavit of Leisa Renae Barnes, affirmed 17 September 2019.

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

[6] Youth Justice Act 1992 (Qld) s 122(1).

[7] Youth Justice Act 1992 (Qld) s 122(3).

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

[9] Outline of Submissions on behalf of the child, filed 17 September 2019, [9].

[10] Exhibit B – Affidavit of Leisa Renae Barnes, affirmed 17 September 2019.

[11] Exhibit B – Affidavit of Leisa Renae Barnes, affirmed 17 September 2019.

[12] Exhibit C – Affidavit of Leisa Renae Barnes, affirmed 17 September 2019.

[13] Outline of Submissions on behalf of the child, filed 17 September 2019, [10.3].

[14] Transcript 1-5, ll 13-20 – Exhibit D - Affidavit of Leisa Renae Barnes affirmed 17 September 2019.

[15] Transcript p. 3, ll 35-42 – Exhibit E - Affidavit of Lisa Barnes, affirmed 17 September 2019.

[16] Exhibit H – Affidavit of Leisa Renae Barnes, affirmed 17 September 2019, p. 2.

[17] Transcript p. 3, ll 35-42 – Exhibit E - Affidavit of Lisa Barnes, affirmed 17 September 2019.

Close

Editorial Notes

  • Published Case Name:

    The Queen v AEU

  • Shortened Case Name:

    The Queen v AEU

  • MNC:

    [2019] QCHC 27

  • Court:

    QChc

  • Judge(s):

    Dearden DCJ

  • Date:

    18 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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