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- Unreported Judgment
R v TWL QCHC 5
CHILDRENS COURT OF QUEENSLAND
R v TWL  QChC 5
Childrens Court of Queensland
5 April 2019
8 March 2019
President Richards DCJ
CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – RESTORATIVE JUSTICE – application for sentence review – where the applicant child pleaded guilty to two offences of going armed in public so as to cause fear and entering a premises committing an indictable offence – where a six month probation order with no conviction recorded was imposed – where the magistrate failed to consider a presentence restorative justice referral as required by s 162(1) of the Youth Justice Act 1992.
D. J. Law for the applicant child
S. McCray for the respondent
Legal Aid Queensland for the applicant
Office of the Director of Public Prosecutions for the respondent
- The applicant child pleaded guilty on 17 December 2018 when he was 17 years of age to two offences of going armed in public so as to cause fear and entering a premises and committing an indictable offence. He had no criminal history at the time of sentence and was sentenced to six months’ probation with no conviction recorded.
- The offences were unusual. On 14 August 2018 the applicant, a student at a local college, was at a bus stop when he showed two younger students a device that he had hidden in his bag. He said the device was a bomb and he intended to use it to kill someone else at school. On arrival at the college the younger students telephoned their parents to tell what they had been shown and the parents contacted the school. The school was placed into lockdown and the child was spoken to by police. He admitted bringing the device to school and stated that it was a smoke bomb. He stated that he had brought it there to scare another student whom he blamed for being complicit in the suicide of one of his friends.
- The student that the child intended to scare with the smoke bomb was the boyfriend of the deceased. She had committed suicide four days before the incident and the child had a view that the boyfriend should have done more to stop the suicide.
- As result of the offending the child, who at the time was in his final year of school, was excluded from school and not allowed to participate in any event with his class, including the school formal or the graduation ceremony. He concluded his study externally. On 22 December 2018 his father died at the family home after a heart attack.
- Upon exclusion from the school the mother arranged for a youth worker to assist the child. This continued until the youth worker advised that there was little he could continue to offer. He has also been seeing a psychologist regularly. The child is now working three days a week in one of the mother’s stores. Family and friends have rallied to support him to get his driver’s licence so that he can pursue his desired career as a cabinetmaker.
- Unaware of it at the time, the applicant child has autism spectrum disorder. By the time he came to be sentenced he had been seeing a psychologist and a youth worker to assist him to understand and change his behaviour. Both the police prosecutor and his counsel suggested that the child needed some guidance and as a result the sentence of six months’ probation was submitted to be appropriate.
- A psychologist report was tendered at the sentence (Ex.1). The psychologist diagnosed the child with autism spectrum disorder. The psychiatrist noted:
“Joshua’s recent experiences with the death of his best friend would be difficult for any seventeen year old to process. The added difficulties in information processing, social and emotional deficit and extreme levels of anxiety that Joshua experiences as a result of his disability have contributed to the series of events that have since come to pass. It is my opinion that none of these events were premeditated or intended to cause harm, but rather a series of events that when aligned resulted in an emotional breakdown and ill-conceived (directly resulted from his diagnosed disability) behaviours.”
- In sentencing the child the magistrate indicated that the conduct was very serious, that he intended that fear and pain be suffered by a number of people and that he put the safety, comfort and confidence of a high range of young people at risk. He also took into account that it was not a real bomb and therefore could not have actually killed anyone. He noted that there had been some steps at rehabilitation and that he was suffering from a grief reaction in relation to his close friend.
- It is not apparent on the face of the record that the learned magistrate considered the provisions of s 162(1) of the Youth Justice Act. Consideration of that provision is mandatory and as a matter of practice should be noted on the record. The court must consider referral to the restorative justice process in relation to a child. The magistrate was led into error in relation to this by both the prosecutor and defence counsel.
- It is conceded by the Crown that a restorative justice process should have been considered and ordered but that it should be a presentence restorative justice referral. In my view given the fact that it was the child’s first offence, that the offence took place in extraordinary circumstances and soon after the death of his friend, that the child had an undiagnosed autistic spectrum disorder which exacerbated his grief reaction, he pleaded guilty and has been involved in counselling and is now working, a referral to restorative justice was the appropriate action. In those circumstances a restorative justice referral is appropriate and the appeal is allowed.
Appeal allowed. Sentence set aside. The applicant child is referred to a restorative justice process pursuant to s 163(1)(d)(i) of the Youth Justice Act 1992
- Published Case Name:
R v TWL
- Shortened Case Name:
R v TWL
 QCHC 5
05 Apr 2019