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MOJ v The Queen[2019] QCHC 45



MOJ v The Queen [2019] QChC 45












Sentence Review


Children’s Court of Cairns


13 December 2019 (ex tempore reasons given)




13 December 2019




Application dismissed.


CRIMINAL LAW – APPEAL – Youth Justice Act 1992 – section 118 – appeal against sentence – where the applicant pleaded guilty to twenty-two offences, including assault occasioning bodily harm – whether the sentence imposed was excessive in the circumstances – whether the magistrate gave insufficient weight to time spend in pre-sentence detention – whether the period of probation imposed was excessive – whether the orders given constituted an excessive penalty in the circumstances.


C Anderson-James for the applicant

G Cho for the respondent

J Cashman for Youth Justice


Legal Aid (Qld) for the applicant

Director of Public Prosecutions (Qld) for the respondent

  1. [1]
    HIS HONOUR:   All right.  The applicant seeks a review of a sentence order made by a Magistrate in the Cairns Childrens Court on the 17th of September 2019.  At that time, the applicant was sentenced after entering pleas of guilty in relation to 22 offences that were committed over a 39-day period.  A schedule has been tendered, detailing the offending conduct in respect of each offence.  I note that the first offence is to be ignored as being irrelevant on that schedule.  The offences cover a variety of offending conduct, but there can be no doubt the most serious of the charges involved charges of assault occasioning bodily harm.  As I understand it, there were two of those.
  1. [2]
    The applicant was 14 years of age at the time and had no prior convictions.  She had spent 34 days in detention – pre-sentence detention at the time of sentence.  That was as a consequence of a decision made by her – I would assume in conjunction with her legal representation, but, nevertheless, by her, to not apply for bail.  The Magistrate sentenced the applicant in relation to the two charges of assault occasioning bodily harm whilst armed and in company to a restorative justice order.  And in relation to the remaining charges, the Magistrate made one order, that being a 12-month probation order, with a condition that she undergo – a special condition that she undergo any psychological assessment or counselling, as directed by the Chief Executive.  In particular, grief counselling.  No convictions were recorded.
  1. [3]
    The applicant submits that the penalty imposed was excessive in the circumstances and that a period of probation of four months would have been appropriate.  The power of this Court to review a sentence order of a Childrens Court magistrate is contained in the Youth Justice Act 1992, section 118.  Such a review is a rehearing on the merits.  It should be conducted expeditiously and with as little formality as possible, and this Court is entitled to have regard to the record of the Childrens Court proceeding and any further submissions and evidence by way of affidavit or other material.  The respondent does not oppose the order sought.
  1. [4]
    The crux of the applicant’s submission is that the magistrate gave insufficient weight to the fact that she had spent 34 days in pre-sentence detention and that the period of probation which was imposed was the maximum period allowable for such offences in such circumstances.  It is also submitted that the combination of a restorative justice order and probation of 12 months together may also constitute an excessive penalty for someone who has spent 34 days in pre-sentence custody.  As I have indicated, though, the restorative justice order applied to the two charges of assault occasioning bodily harm with circumstances of aggravation, and the probation order was imposed in relation to the other charges.
  1. [5]
    I accept that the applicant pleaded guilty to these charges and did so at any early stage, and, of course, I have already noted that she had no prior convictions.  The behaviour the subject of the charges was dealt with by the learned magistrate on a global basis in that the one probation order for the 20 charges was imposed, that is, that the learned magistrate took into account the full criminality of the offending conduct in that regard, and upon reading the material, it is quite apparent that she took into account the assault occasioning bodily harm with circumstances of aggravation charges in that regard as well as she is quite entitled to do.
  1. [6]
    The fact that 12 months probation was the maximum allowable is not – should not be mistakenly thought of as the imposition of a maximum penalty.  I am not suggesting that the legal representative for the applicant in Court made such an error, but the magistrate had available a variety of sentencing options.  In the course of her lengthy sentencing remarks, she identified all relevant considerations.  She referred to the 34 days in pre-sentence detention on a number of occasions both during submissions and in remarks, and there is no apparent error available on the part of the magistrate – or indicated on the part of the magistrate on the record.
  1. [7]
    I note that in a sentence review this Court need not find error on the part of the learned magistrate, but, nevertheless, if error exists, it is of relevance to this proceeding.  In my view, the magistrate took all relevant considerations into account, did not fail to give proper weight to any one matter, particularly the pre-sentence detention, and imposed a sentence that was carefully structured that would ultimately give appropriate weight to the various sentencing considerations including personal and general deterrence and, importantly, the applicant’s rehabilitation.  It is most apparent on the record that she is a child in need of continuing supervision and that supervision for a reasonably lengthy period of time is called for in the circumstances.
  1. [8]
    That approach was also identified by the applicant’s legal representative in the Court below who really did not make any submissions to the contrary to that which the – to the sentence that the magistrate ultimately imposed and recognised the various considerations in the course of submissions that would give rise to such an outcome.  So not withstanding that this matter is unopposed, on my review of the matter, as I have indicated, I can find no error on the part of the magistrate.  Moreover, in my view, the sentence imposed was well within the appropriate range given all the circumstances and is designed predominantly for the rehabilitation of the applicant.  In those circumstances, the application is dismissed.  Anything else for that matter?
  1. [9]
    MS CHO:   No, your Honour.
  1. [10]
    HIS HONOUR:   Thank you.
  1. [11]
    MS CHO:   Thank you.
  1. [12]
    MS ANDERSON-JAMES:   Thank you, your Honour.  That is my only matter this morning.  If I might be excused, your Honour.
  1. [13]
    HIS HONOUR:   Yes, thank you.
  1. [14]
    MS CHO:   Likewise, your Honour.  If I may   
  1. [15]
    HIS HONOUR:   Yes, thank you.
  1. [16]
    MS CHO:      be excused.  Thank you.

Editorial Notes

  • Published Case Name:

    MOJ v The Queen

  • Shortened Case Name:

    MOJ v The Queen

  • MNC:

    [2019] QCHC 45

  • Court:


  • Judge(s):

    Farr SC DCJ

  • Date:

    13 Dec 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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