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WFA v Commissioner of Police QCHC 33
CHILDRENS COURT OF QUEENSLAND
WFA v Commissioner of Police  QChC 33
COMMISSIONER OF POLICE
Magistrates Court at Woorabinda
29 October 2019 (delivered ex-tempore)
Childrens Court at Emerald
29 October 2019
CRIMINAL LAW – APPEAL OF A DECISION BY A MAGISTRATE – SENTENCING OF JUVENILES – where the appellant appeals against an order in the Woorabinda Childrens Court – where the order related to a breach of a conditional release order earlier imposed on the appellant – where the offences related to two offences of entering premises and committing an indictable offence.
Youth Justice Act 1992 (Qld) s 118, s 122, 227(1), 246, 248
J Kennedy for the Appellant
T Corsbie for the Respondent
Aboriginal and Torres Strait Islander Legal Service for the Applicant
Office of the Director of Public Prosecutions for the Respondent
- The appellant was born on the 18th of August 2000, so turned 18 on the 18th of August 2018. He appeals against an order of the learned acting Magistrate imposed in the Woorabinda Childrens Court on the 23rd of July 2019. That order related to a breach of a conditional release order (CRO) earlier imposed on the appellant on the 30th of August 2017. That earlier sentence related to two offences of entering premises and committing an indictable offence. Both offences occurred on the 30th of July 2017.
- On the appellant’s guilty plea, he was sentenced in August 2017 to six months’ detention to be served by way of a CRO. Due to his lack of compliance, proceedings were commenced against him. His guardian was served with a copy of the complaint and summons on the 22nd of November 2017. The appellant failed to appear and a number of warrants were subsequently issued. The most recent was on the 8th of March 2019 for failing to appear in the Blackwater Childrens Court. He was ultimately arrested on the 8th of April this year. On that day, the Rockhampton Childrens Court ordered he again appear at Blackwater Childrens Court on the 18th of April. He failed to do so.
- Following further adjournments and transfers of the matter, ultimately to Woorabinda, the appellant again failed to appear. On the 26th of June this year a further warrant for his arrest was issued. When he was arrested on the 16th of July, bail was refused and he was remanded to appear on the 23rd of July. On that day he pleaded guilty to fresh offences, committed as an adult and was given two years’ probation for those matters. He was also dealt with for breach of a community service order and given a bond. For breach of the six month CRO he was ordered to serve 70 per cent of the balance of the period of detention. It was accepted he had the benefit of 10 days compliance with the CRO and seven days remand credit.
- The period of detention was said to be 115 days, being 70 per cent of six month, less the 17 days. I, in fact, calculate it to be 110 days, calculated as follows: 70 per cent of 182 days (being 127 days) less 17 days, amounting to 110 days. It is important that when applying the formula, the 70 per cent is applied to the six months and not the six months less the 17 days credit, as appears to have been done.
- In any case, the appellant turned 18 in August 2018. The sentence of the 23rd of July was thus more than six months after that event. Consequently, the provisions of section 276F of the Youth Justice Act 1992 (Qld) (YJA) required that the period of detention was to be served in a corrective services facility and not in youth detention.
- Before the learned acting Magistrate, it was submitted that the fact he was to serve his period of detention in such a facility, and not in youth detention, amounted to quite a “special circumstance” within the meaning of section 227(2) of the YJA and sought an order that the appellant be released after serving only 50 per cent of the period of detention, rather than 70 per cent. The learned acting Magistrate declined to consider making such an order on the basis that he had no power to do so.
- I set out sections 246, 248 and 227 of the Act.
246 Court’s power on breach of conditional release order
- A court that acts under this section may revoke the conditional release order and order the child to serve the sentence of detention for which the conditional release order was made.
- However, instead of revoking the conditional release order, the court may permit the child a further opportunity to satisfy the requirements of the order and, for that purpose, may—
- vary the requirements in a way it considers just; or
- extend the program period for the order, but not so that the last day of the period is more than 3 months after the court acts under this section.
- The onus is on the child to satisfy the court it should permit the child this further opportunity.
- If the court decides to extend the program period for the conditional release order, the court must have regard to the period for which the child has complied with the order.
- An order may be made under this section even though, at the time it is made, the conditional release order in relation to which the order is made is no longer in force because the period of the conditional release order has ended.
- For part 6 , division 9 , subdivision 4 , an order mentioned in this section and made by a Childrens Court magistrate is a sentence order.
248 Detention reduced to the extent just
- This section applies to a court if, under this division, it revokes a conditional release order and orders a child to serve the period of detention for which the conditional release order was made.
- The court must reduce the period of detention by the period the court considers just, having regard to everything done by the child to conform with the conditional release order.
227 Release of child after service of period of detention
- Unless a court makes an order under subsection (2), a child sentenced to serve a period of detention must be released from detention after serving 70% of the period of detention.
- A court may order a child to be released from detention after serving 50% or more, and less than 70%, of a period of detention if it considers that there are special circumstances, for example to ensure parity of sentence with that imposed on a person involved in the same or related offence.
- However, a court may not make an order under subsection (2) if—
- the child has, at any time, been found guilty of a terrorism offence; or
- the child is the subject of a Commonwealth control order; or
- the court is satisfied the child has promoted terrorism.
- If the child is entitled under section 218 to have a period of custody pending the proceeding (the "custody period") treated as detention on sentence, the period before the child is released under this section must be reduced by the custody period.
- The solicitor appearing for the appellant referred the learned acting Magistrate to the two options available under section 246 of the YJA. In relation to the option of sentencing the appellant to serve the sentence of six months detention for which the conditional release order was made, she submitted that consideration be given to requiring the appellant to serve only 50 per cent of the 7 months, and not 70 per cent thereof.
- In support of that submission the solicitor referred, in particular, to the fact that the appellant would be required to serve it in an adult facility. She submitted that this submission was consistent with section 227(2) in August 2017 (that required she show special circumstances) and with the fact that at no time had the original sentencing Magistrate in imposing the CRO turned his or her mind to the question of whether the appellant should serve 70 per cent or only 50 per cent or more of the period of detention before being released.
- The learned acting Magistrate referred to section 246(1) of the YJA, pursuant to which the conditional release order was revoked and an order made that the child “serve the sentence of detention for which the conditional release order was made.”
- His Honour said (see p 13 of the transcript) that in his view, the requirement of subsection (1) of section 227 “… goes back to the original sentence because that’s when the detention order was made.”
- His Honour said that he was “… not going back and revisiting an order that has already been made”.
- The approach of the learned acting Magistrate was supported by the respondent’s written submissions. It was submitted that “[a]t the time the original order for a period of detention is made … the period of time to serve before release had already been set” because under section 227(1) the court must order the child be released after serving 70 per cent of the time or lesser period under subsection (2) “at the time the sentence is imposed”.
- That view is, however, entirely artificial in circumstances where a conditional release order was made under section 220. Under that section, a court that makes a detention order against the child immediately suspends the order and makes a conditional release order “… that the child be immediately released from detention”.
- Such immediate release is anathema to the notion of the court making an order under section 227(1) of release after serving 70 per cent of the period of detention rather than an order for release after serving 50 per cent or more under subsection (2). In my view section 227 has no application to a sentence made under section 220 for a conditional release order.
- In written submissions of counsel for the respondent it was said that pursuant to section 246(1), under which a conditional release order is revoked, the Act does not “confer power on the Court to resentence the child”.
- It was submitted that upon revocation of the conditional release order “… the original sentence – said to be six months with release after 70 per cent – was activated”.
- A significant difficulty with that interpretation is that when the conditional release order was made by the court in August 2017 (and, indeed, when any court makes a conditional release order) it did not (and any court would not, indeed, could not) turn its judicial mind to whether the usual rule under section 227(1) would apply or whether there might be special circumstances which could, justify making another order under section 227(2). That issue was, necessarily, never considered, and nor could it have been properly considered, at the time of the imposition of the CRO.
- It would be surprising indeed if the inevitable result of imposing a conditional release order is that, in the event of breach and consequent revocation of the order, 70 per cent of the period of detention must inevitably be served, even if there were special circumstances justifying a lesser period of detention, including circumstances which very clearly could arise after the imposition of the CRO.
- The respondent submitted that the view advanced on its behalf was not inconsistent with the Youth Justice Act principles. It was said:
- that the appellant had benefited from the making of the conditional release order and that it would be “peculiar indeed” if after “such leniency” his sentence was further discounted by requiring he serve only 50 per cent of the period of detention, and
- the provisions of section 248 gave the Magistrate “a discretion to reduce the period of imprisonment”.
- There are, in my view, difficulties with both those submissions. In relation to the first, it appears to me the submission goes to issues concerning how any discretion ought to be exercised – that is, the extent to which the fact the appellant had already been offered some leniency through the making of a conditional release order should militate against a further discount in the period to be served in custody. The submission does not directly address the question of whether there is such a discretion, but rather, if there was a discretion, whether it should be exercised to the appellant’s benefit. The second submission does not recognise the fact that under section 248, the discretion to reduce the period of detention is limited to doing so “having regard to everything done by the child to confirm with the conditional release order”. It does not entitle the court to do so having regard to other circumstances – including, in this case, the fact detention will be served in a correctional services facility and not in youth detention.
- The appellant submits, correctly in my view, that the way the respondent interprets section 227 “is untenable, as it effectively deprives (the appellant) … of the benefit of section 227(2)”. At no time has any magistrate turned his or her mind to the question of whether the circumstances can be said to be special so as to invoke the discretion under section 227(2) to require him to serve only 50 per cent, or some intermediate amount up to 70 per cent of the head sentence, in detention.
- In the circumstances, it is appropriate to consider whether the fact of the appellant being more than 18 years and six months of age, which event occurred on the 18th of February this year, and so having to serve his detention in a correctional services facility constitutes special circumstances.
- It is, of course, well-recognised that an adult correctional facility can have a significantly deleterious effect on a young inmate. It is also well-recognised that detention in such a facility can be particularly burdensome for a young man serving his first period of such incarceration. In my view, such a circumstance does amount to special circumstance, especially as an adult who had pleaded guilty to an offence was likely to have received a significant reduction in the period of actual imprisonment from a head sentence imposed of six months.
- I, of course, recognise that the YJA imposes its own sentencing regime, and if the appellant had been sentenced as an adult for the offences for which he was before the Childrens Court, an entirely different sentence might well have been imposed. Nevertheless, one must do one’s best, consistent with the YJA schedule 1 Charter of Youth Justice Principles.
- In my view, his being 19 years of age, and so required by section 276F of the YJA to serve his sentence in a correctional service facility and not a detention centre, constitutes a special circumstance such that on the revocation of the conditional release order, a court ought have acted under section 227(2) and ordered that he be released after serving less than 70 per cent of the sentence.
- I have calculated that of the six-month sentence, amounting to 182 days, he has already been required to serve 63 per cent thereof, giving appropriate reduction for the 10 days of compliance and seven days of pre-sentence custody, acknowledged by the learned acting Magistrate would result in his release today. In the circumstances the other of the court is that
- The appeal be allowed;
- Pursuant to section 227(2) of the Youth Justice Act 1992 (Qld), I order that the appellant serve 63 per cent of his 6 month sentence, calculated to be 115 days;
- Having regard to 17 days compliance and remand credit, I order that the appellant be released on 29th of October 2019.
- The effect of the judgment is that the appellant be immediately released.
- Published Case Name:
WFA v Commissioner of Police
- Shortened Case Name:
WFA v Commissioner of Police
 QCHC 33
29 Oct 2019