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- Unreported Judgment
SGJ v Commissioner of Police QCHC 35
CHILDRENS COURT OF QUEENSLAND
SGJ v Commissioner of Police  QChC 35
COMMISSIONER OF POLICE
Magistrates Court at Woorabinda
5 November 2019 (delivered ex-tempore)
Childrens Court at Emerald
4 November 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 on the ground it is manifestly excessive – where the order related to the commission of 35 offences – where the appellant was sentenced to 7 months in detention, with a requirement the appellant serve 70 per cent thereof – where the appellant was disqualified from holding or obtaining a driver’s license for 12 months.
Youth Justice Act 1992 (Qld) s 118, s 122
R v SCU  QCA 198
J Kennedy for the Appellant
T Corsbie for the Respondent
Aboriginal and Torres Strait Islander Legal Service for the Appellant
Office of the Director of Public Prosecutions for the Respondent
- The appellant appeals against a sentence imposed on the 21st of August 2019 under the Youth Justices Act 1992 (Qld). On that day, he was sentenced to seven months’ detention, with a requirement he serve 70 per cent thereof, for each of 35 offences. The sentence was said to be imposed having regard to his overall offending. He was also disqualified for holding or obtaining a driver’s licence for a period of 12 months.
- The appellant was born the 3rd of June 2003. So he is now 16 years and five months of age. He lives in Woorabinda. He has a very concerning eight-page criminal history as a juvenile and also a traffic history, despite his age. He has been sentenced to various periods of probation on six separate occasions, between the 3rd of June 2016 and the 13th of February 2019. He was on probation at the time of all of the subject offences except for the first offence committed on the 2nd of February 2019. And that offence was one of wilful damage, committed whilst he was in a detention facility as a result of his being refused bail in respect of earlier charged matters. It is unnecessary to recount the details of the 35 offences before the Court on the 21st of August. But a general description of them and of their relationship to his periods of detention gives some insight as to his offending.
- The appellant spent five months in detention from the 14th of September 2018 until the 13th of February 2019, for unrelated prior offending. The earliest offence before the Court on the 21st of August was, as I said, related to the offence of wilful damage committed during that period of detention.
- On the 13th of February 2019, he was sentenced to 12 months’ probation and 40 hours community service. Between the 5th of April and the 25th of April 2019, after his release on the 13th of February, he committed 12 offences which were before the Court on the 21st of August. The most serious was a burglary and commit indictable offence charge committed on the 18th of April. On that occasion, he broke into a home at Woorabinda and took items of property, including jewellery, having a total value of over $10,000. That group of offences included other burglary offences, entering premises with intent, stealing, unlawful use of a motor vehicle, a home invasion offence and wilful damage. Many were committed in company.
- After his arrest from the 26th of April, he was returned to detention for 27 days until his release on bail on the 22nd of May. Between that release and the 22nd of July 2019, he committed a further 22 offences which were before the Court on the 21st of August. The most serious included an unlawful use of a motor vehicle offence on the 12th of June. The vehicle was driven to Banana, where the appellant and others entered the Banana Hotel and stole 17 bottles of spirits and over 20 cartons of other alcohol. On the 27th of June, he committed another unlawful use of a motor vehicle offence, driving the vehicle dangerously through Woorabinda. He evaded police by driving off at increasing speed when they signalled for him to stop. On the 16th of July, he and others entered the Bluff Hotel and stole a large quantity of alcohol and about $10,000 in cash. Other offences over this period included burglary, attempting to enter premises, entering premises, unlicensed driving and stealing.
- After his arrest on the 27th of July, the appellant spent a further 25 days in detention before his sentence on the 21st of August.
- On that day, the learned acting magistrate sentenced the appellant on each offence to seven months detention, with a requirement he serve 70 per cent thereof before his release and disqualified him for the period of 12 months earlier referred to.
- The appellant turns 16 and a-half on the 3rd of December 2019, so the effect of the order of disqualification is to preclude him from applying for a learner’s permit from then until after the 21st of August 2020.
- The sole ground of appeal is that the sentence was manifestly excessive. The appeal, pursuant to section 118 of the Youth Justice Act is to a Childrens Court Judge. On such an application, the Judge may review the sentence order made by the Childrens Court under section 122 of the Act. Such a review, of course, must be by way of rehearing on the merits. Although it is open on such a review to find error on the part of the sentencing magistrate, that is not a necessary determination in order to alter the sentence. I have an overall discretion to substitute an alternative sentence in the process of rehearing the matter on the merits. In doing so, the Judge may have regard both to the record of proceedings below and to any further submissions or evidence. The Judge is empowered to confirm the sentence order, vary the order or discharge it and substitute another order within the jurisdiction of the Childrens Magistrates Court or make any other order the magistrate could have made.
- The material below included the appellant’s criminal and traffic history and an outline of the circumstances of the appellant’s offending. Importantly, it included a pre-sentence report concerning the appellant. That report contains much information about the appellant’s circumstances, but also about the sentencing options the learned acting magistrate had and the consequences of the various orders that he could have made. Included in the report are observations (see page 5, second paragraph thereof) that the appellant’s grandmother told the author of the report that the appellant lacked any positive and consistent adult male role models. The author noted his transient home life and observed “… the only consistent consequence for [the appellant] were those imposed by the criminal justice system”.
- Both his mother and grandmother felt the extended family, many of whom were living in Woorabinda, had “…failed to support their efforts to provide appropriate discipline and consequences for [the child]”.
- The report concludes that the following matters have contributed to the appellant’s offending:
- Familial factors including inadequate supervision and discipline and the absence of positive consistent male role models;
- Reinforcement of offending behaviours amongst his peer group;
- Substance abuse;
- Disengagement from education and limited structural activities; and
- Lack of consequential thinking and poor emotional regulation.
- The appellant has, according to Youth Justice records, regularly engaged in substance abuse since he was 12 years of age. He has disengaged from education and organised activities, and himself says boredom has been a strong contributor to his offending. He has developed very limited empathy for the victims of his offending, including of Aboriginal people living in Woorabinda, although he also is a member of that community.
- In dealing with the sentencing options available, the report says at paragraph 10:
Should your Honour deem a detention order the most appropriate sentence in relation to these offences, consideration could be given to immediately suspending the order to allow [the child] the opportunity to participate in a conditional release order for up to three months. [The child] would be required to attend programs, activities, counselling, and the order would include an education and employment component.
However, it is noted that the duration of a conditional release order is for a maximum period of three months. While this would provide intensive supervision over that time, many of the interventions offered by way of a conditional release order could also be provided as part of a probation order over a longer period of time.
- The report also notes that the appellant was “suitable” for the making of a conditional release order.
- It was also noted that, “whilst a detention order would offer a clear consequence to [the child] for his offending, it is respectfully requested that your Honour take into consideration that programs and interventions offered in the detention centre are available to [the child] in the community.”
- The report also noted the possibility of ordering both detention and probation, pursuant to the provisions of section 180 of the Youth Justice Act, for the one offence. That option applies, however, only if the detention was for a maximum of six months and the probation order could be for no more than 12 months. I note that section applies however in relation to sentencing to detention and probation for the one offence, and not for sentencing a person to probation on some offences and detention on others, which is always an option where there are multiple offences such as here.
The Sentence Below
- It was in those circumstances that the acting learned magistrate imposed the one sentence for all of the offences. He noted the 52 days of pre-sentence detention and that, over the last 12 months, the appellant had been in detention “for quite a bit of time”. He said that it appeared to him the appellant “… cannot be trusted to comply with any supervised order, be it probation, community service or conditional release.”
- I note however that whilst the appellant had a history of non-compliance with probation orders, and he had completed only, I gather, seven hours of the 40-hours community service order imposed on the 13th of February, he had never previously been given a conditional release order and, after release following his serving five months of pre-sentence detention, because his custody all related to pre-sentence custody, had never had the benefit of a supervised release order following detention.
- Since the sentence, the appellant has spent a further 75 days in detention. In all he has now been confined for 127 days which coincidentally is some 60 per cent of the seven months’ sentence of detention.
- In my view, there is real force in the argument that the appellant ought to have been sentenced for the more serious offences to effectively the 52 days of detention that have been then already served in pre-sentence custody, and a conditional release order then made for a period of three months to enable him to be closely monitored and supervised at the time of the original sentence on the 21st of August. He could also then have been placed on probation for other offences to ensure longer, ongoing supervision, which hopefully would be effective in ensuring the benefits of the three months’ intensive supervision under the correctional release order would not be lost.
- In my view, such a sentence would be more compliant with the provisions of the Youth Justice Act, including the Youth Justice principles. (As to these, see paragraphs 44 to 57 of the judgment of Sofronoff P in R v SCU  QCA 198.)
- The effect of the sentence imposed, in this case, was that, after spending 70 per cent of the seven months in detention, the child would be subject to only just over two months of the supervised release order, being the period after release until the end of the seven-month period on the 20th of March 2020, and then subject to no further ongoing supervision, as the probation order of the 13th of February 2019 expires on the 12th of February 2020.
- In my view, that might well mean the intensive supervision offered under the supervised release order would be for too short a time to be of real benefit and would not be reinforced by subsequent supervision under a probation order.
- In such circumstances, it is in my view appropriate to allow the appeal so that the appellant is immediately released.
- In order to reduce the period of detention from 70 per cent of the seven months’ head sentence to 60 per cent, it is necessary I be satisfied that there are special circumstances, having regard to the provisions of the Act.
- In my view, the fact the child has spent now nine months in detention since the 14th of September 2018 – that is, nine months of the last 13 and a-half months in detention – while now still only 16 years and five months of age, has never had the benefit of either a conditional release order or a supervised release order, the personal circumstances of his upbringing, the lack of offences of physical violence and the need to ensure ongoing supervision beyond the period of the seven months head sentence imposed, together constitute special circumstances in this case. Consequently, I propose to allow the appeal and will make the following orders:
- In respect of each of the offences of burglary on the 18th of April 2019, of unlawful use of a motor vehicle and also entering premises and committing an indictable offence of the 12th of June 2016, unlawful use of a motor vehicle offence and dangerous operation of a motor vehicle on the 27th of June 2019 and of entering premises and committing an indictable offence by break on the 11th of July 2019, I allow the appeal and reduce the period of detention imposed to a requirement that the appellant serve 128 days thereof in detention, so that he be released on the 5th of November 2019.
- In respect of all other offences, I allow the appeal and in lieu of the sentence of detention imposed, order that the appellant be given probation for a period of 12 months.
- In respect of the disqualification of a driver’s licence imposed on the 21st of August 2019, I allow the appeal and order the appellant be disqualified from holding and obtaining a driver’s licence for a period of three months from the original disqualification date of the 21st of August 2019.
- No convictions are recorded in respect of any of the offences.
- Published Case Name:
SGJ v Commissioner of Police
- Shortened Case Name:
SGJ v Commissioner of Police
 QCHC 35
05 Nov 2019