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ECM v Department of Child Safety Youth & Women[2019] QCHC 8

ECM v Department of Child Safety Youth & Women[2019] QCHC 8

 

CHILDRENS COURT OF QUEENSLAND

 

CITATION:

ECM v Department of Child Safety Youth & Women [2019] QChC 8

PARTIES:

ECM

(Applicant)

v

CHIEF EXECUTIVE DEPARTMENT OF CHILD SAFETY YOUTH & WOMEN

(Respondent)

FILE NO/S:

113/19

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

Childrens Court of Queensland

DELIVERED ON:

17 April 2019

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2019

JUDGE:

Richards DCJ

ORDER:

Application dismissed.

CATCHWORDS:

CRIMINAL LAW – APPLICATION FOR DELAY OF TRANSFER – YOUTH DETENTION – s 276C of the Youth Justice Act – where the applicant turned eighteen in detention – where the applicant seeks delay of transfer from youth detention to adult corrective services – whether delay of transfer would be in the interests of justice and without prejudice to others

COUNSEL:

D Bartholomew for the applicant

P O'Connor for the respondent

SOLICITORS:

Youth Advocacy Centre for the applicant 

Crown Law for the respondent

  1. [1]
    The applicant was born on 17 March 2001. He was sentenced in the Childrens Court of Queensland on 30 November 2018 to 4 years and 6 months detention for 2 offences of enter premises and commit indictable offence by break, enter premises with intent, enter dwelling, 2 offences of commit indictable offence and rape. The sentence has an end date of 29 July 2022. His supervised release date is 29 April 2020.
  1. [2]
    Pursuant to s 276B of the Youth Justice Act 1992, the applicant became liable to transfer to a corrective services facility on his eighteenth birthday because he was “a person in detention who:
  1. turns eighteen while serving a period of detention; and
  2. is liable to serve a remaining period of detention of six months or more.”
  1. [3]
    The applicant turned eighteen on 17 March 2019 and accordingly was served with the required notice under s 276C of the Act indicating that he would be transferred. As a result being served with that notice he made an application for temporary delay of transfer. Section 276D of the Youth Justice Act states as follows:

Application for temporary delay of transfer

  1. (1)
    If, when a court makes a detention order against a person for an offence, the person becomes liable to be transferred to a corrective services facility under section 276B, the person may immediately apply to the court for a temporary delay of the person’s transfer to the corrective services facility.
  2. (2)
    A detainee given a copy of a prison transfer direction under section 276C(3) may, before the transfer, apply to the Childrens Court for a temporary delay of the detainee’s transfer to the corrective services facility.
  3. (3)
    On receipt by the court of a detainee’s application made under subsection (2), the detainee’s transfer is stayed until the application is decided, withdrawn or otherwise ends.
  4. (4)
    The court may grant an application made under subsection (1) or (2) only if it is satisfied the delay—
  1. (a)
    would be in the interests of justice; and
  1. (b)
    would not prejudice the security or good order of the detention centre at which the applicant is, or is to be, detained; and
  1. (c)
    would not prejudice the safety or wellbeing of any detainee at the detention centre at which the applicant is, or is to be, detained; and
  1. (d)
    would not cause the person to be detained at a detention centre after the person turns 18 years and 6 months.
  1. (5)
    Without limiting the matters the court may have regard to, the court must have regard to the following matters in making a decision on an application made under subsection (1) or (2)—
  1. (a)
    any vulnerability of the applicant;
  1. (b)
    any interventionist, rehabilitation or similar activities being undertaken by the applicant and the availability of those activities if transferred.”
  1. [4]
    The applicant submits that the philosophy of the Youth Justice Act is that a child should be held in a facility suitable for children and should be able to have a safe and stable living environment and access to various programs and their family. It is accepted that this is part of the philosophy of the Act, however, the applicant in this case is no longer a child.  The protections of the Youth Justice Act as they apply to children are no longer relevant in my view to the applicant.  Part 8, Division 2A and in particular Section 276D contains the relevant considerations for this application.
  1. [5]
    The reasons stated in the application for delay of transfer are a desire to complete the vocational training that is available at the Brisbane Youth Detention Centre and may not be available to the applicant in the correctional services facility, and that the sentence is subject to appeal and should the sentence be reduced he may not be required to transfer to a corrective services facility at all.
  1. [6]
    The applicant has assessed numeracy levels of approximately 9-10 years and literacy of 11-12 years. He is less than 177cm tall and weighs approximately 56 kilograms. In an affidavit filed on 10 April 2019 the applicant affirms that since being at the detention centre he has completed courses in English and Maths. He is currently enrolled in a certificate I in general education for adults, a certificate I in construction and a certificate I in engineering. He has completed approximately one-third of his construction course and one half of his engineering course. He is currently working on the construction of a large cubby house to be donated to a day-care centre on completion, and he estimates that will take approximately three months. In relation to the certificate I in engineering he is required to construct a boat anchor and horseshoe, and in order to do that he is required to use a welder, bench grinder and oxy-torch and these tools can be available under supervision in the Brisbane Youth Detention Centre. The delays in completing the certificates have been due in recent months to lockdowns in the Brisbane Youth Detention Centre and restrictions upon participation programs with tools as a result of security issues. However, the engineering course is currently unavailable due to security upgrades being performed at the centre.
  1. [7]
    He is currently engaged with the Griffith Youth Forensic Service and has seen them on one occasion since his sentence.
  1. [8]
    The applicant has been involved in a number of incidents in the detention centre both in his first period of detention for this offence and his later period of detention. The current term of detention has included eighteen reported incidents. Many of these incidents are not particularly serious and are likely indicative of his age. There are six incidents involving physical altercations, eleven incidents involving non-physical violence and one incident of internal boundary breach where he tried to escape from the accommodation section of the detention centre and involved the manipulation of the veranda lock. This incident resulted in the area being locked down and other children being unable to participate in programs. He has on occasion acted aggressively and been defiant to staff as well as physically aggressive to other children in the centre. It is fair to say that his behaviour has certainly improved in 2019 with only two incidents recorded and no incidents since 28 January 2019.
  1. [9]
    Obviously involvement in incidents that cause parts of the centre to be locked down and aggressive behaviour towards staff prejudices the security and good order of the detention centre. I accept that the applicant is not alone in creating disruption in that way. It remains, nonetheless, a factor to be taken into account.
  1. [10]
    The fact that the applicant has been involved in physical altercations with young people at the centre also remains a concern for the good order of the centre. He is not particularly large and undoubtedly there would be larger children at the centre but his age would be a factor in any intimidation that the younger children, particularly the 14 year olds and 13 year olds, may feel. Additionally, he is a sex offender who has committed a serious sexual offence and the report of the Griffith Youth Forensic service of 31 October 2018 notes at p50: “Risk assessments have estimated that [the applicant] presents as a high risk of both sexual and non sexual/ violent reoffending.” This alone causes concerns for the safety and wellbeing of other detainees at the detention centre.
  1. [11]
    The crown submits that the difference in maturity between the younger detainees and the applicant is marked and increasingly given his age and criminal history he is likely to wield some influence in the population within the centre. Some support for that proposition can be taken from his proactive involvement in displays of aggression or defiant behaviour as a member of a large group. It is submitted that poses a real risk of escalating violence and jeopardising the wellbeing of other detainees in the detention centre. The applicant submits that the fact that the applicant has displayed more settled and compliant behaviour in recent times would serve as an example to the older detainees that good behaviour may lead to a delay in transfer to an adult facility and thereby contribute positively to an improvement in behaviour within the centre. Both submissions have merit. However, looking at the history of his behaviour it is impossible to be confident that his current behaviour is predictive of his future attitude.
  1. [12]
    Having regard to the factors in s 276D (5) there are no specific vulnerabilities claimed by the young person. He is small in stature and young and that may put him at a physical disadvantage in a conflict situation in an adult facility. His numeracy and literacy levels would not put him at any special disadvantage. Sadly, his numeracy and literacy levels would not make him unusual in an adult facility.
  1. [13]
    There are positive indications in relation to his study. The reports tendered on behalf of the crown indicate that he has been working hard in 2019. He has been getting positive comments from his teachers and he has been taking theory work to complete in his room at night so he is able to complete his construction course. The engineering building will not be available for some time due to the building rectifications required so he is concentrating on his other study. It was noted in a report from the detention centre that the Borallon training and correctional centre may offer courses such as those offered to the young person at the detention centre and other training facilities will be obliged to recognise his studies and complete the qualifications with the applicant. He would therefore only be required to complete the remaining units of competency in the courses.
  1. [14]
    A report from correctional services indicates that once he is received into the adult system his suitability for individual intervention services will be formally assessed. If approved, a referral will be made to an external provider with specialist experience in working with sexual offenders but that will be dependent on his willingness to engage with the provider for the purpose of addressing his sexual offending behaviour. That assessment can occur as soon as he is placed into adult custody. QCS offers a number of educational and vocational training courses. He would, however, have to undergo assessment for suitability. It is confirmed that his current study will be taken into consideration when his placement centre is determined. He could transfer his certificate I general education into a certificate I or certificate II foundation skills course at any of the correctional centres, and those courses run continuously throughout the year. He would be offered distance education through Charters Towers School of Education. Certificate I in construction is offered at all correctional centres except for Townsville. The certificate I in engineering is not offered in adult custody but certificate II is offered and he would get credit for what he has done. Those courses run from July to June but of course the assessment has to take place first so there would need to be time for that to be done before he could be enrolled.
  1. [15]
    In relation to the appeal there has been no date set for hearing. One can only guess as to when that might occur but given the vagaries of the listing system and the fact that it is now mid-April, it is unlikely that that appeal would be heard before the end of May and a judgment is unlikely to be given immediately.
  1. [16]
    A report has also been received from Griffith Youth Forensic Centre which has indicated that the applicant is pre-contemplative in terms of treatment. Pre-contemplation means that he is not yet acknowledging that there is behaviour that needs to be changed. At his first session with the service, the applicant indicated that he didn’t see any benefit from offence specific interventions and lacked an internal motivation to engage. At his second session he was more open and communicative but remained ambivalent to the therapeutic process. The next session was scheduled for just before the hearing of this matter, on that occasion the applicant did not attend the session citing a sore toe. He had been to the nurse’s office and been given a band-aid and an anti-septic wipe and told not to walk around on the toe and so did not go to the appointment. Even accepting the applicant’s reason for not attending the session, this shows a lack of commitment to treatment. This most important intervention has not been taken up by the applicant and whilst it may not be available in a correctional centre, it is not being utilised in any case in the detention centre.
  1. [17]
    The Forensic Child Youth Mental Health Service is not currently seeing the applicant. He was only attending that service sporadically and did not engage particularly well. It was noted that when it is difficult to develop continuity in therapy it is hard to assist the young person.
  1. [18]
    The applicant will still be able to complete his studies in an adult correctional facility. He will need to be assessed and that will take some time so he needs to be able to have that done before the July intake of TAFE. He can still participate in his adult education to improve his numeracy and literacy in the correctional centre. He would not be able to access current counselling services but that counselling has not been engaged in at this stage. He may be offered other counselling services should he wish to undertake counselling in the adult facility. It does not seem that he has a particular vulnerabilities other than his age and size. He will have access to similar services to those he currently has in an adult facility. Although he has currently lodged an appeal against sentence, it is not appropriate given the length of the sentence to delay transfer on the assumption that the appeal will be successful. The applicant’s sentence will continue for a significant period of time past when he is 18years and 6 months of age.
  1. [19]
    It is in the interests of justice that the applicant be settled in an adult facility with ample time for the authorities to arrange for the continuation of his study from July this year. If possible it would be appropriate for the cubby house he has been constructing to be taken to the adult facility for continuation of his certificate requirements.
  1. [20]
    In my view it is appropriate that the transfer take place. The application is dismissed.
Close

Editorial Notes

  • Published Case Name:

    ECM v Department of Child Safety Youth & Women

  • Shortened Case Name:

    ECM v Department of Child Safety Youth & Women

  • MNC:

    [2019] QCHC 8

  • Court:

    QChC

  • Judge(s):

    Richards DCJ

  • Date:

    17 Apr 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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