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OCS v The Queen[2019] QCHC 9

 

CHILDRENS COURT OF QUEENSLAND

 

CITATION:

OCS v The Queen [2019] QChC 9

PARTIES:

OCS

(Applicant)

v

THE QUEEN

(Respondent)

FILE NO/S:

96/2019

 

DIVISION:

Appellate

PROCEEDING:

Application for sentence review

ORIGINATING COURT:

Cairns Childrens Court

DELIVERED ON:

29 April 2019

DELIVERED AT:

Brisbane

HEARING DATE:

24 April 2019

JUDGE:

Richards P

ORDER:

Application allowed. Sentence of probation is set aside. The child is sentenced to a 6 month good behaviour bond. No conviction recorded.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – where the applicant child had served 59 days in pre-sentence custody – where the child was sentenced to a six month probation order – whether sentencing principles of s 150 of the Youth Justice Act were adequately applied

SOLICITORS:

L Barnes of Legal Aid Queensland for the applicant

P Patty of the Office of the Director of Public Prosecutions for the respondent

  1. [1]
    The applicant was convicted on 8 February 2019 of unlawful use of a motor vehicle and two charges of stealing. The offences occurred on 2 December 2018. She was sentenced to six months’ probation with no conviction recorded. She was also reprimanded in relation to one charge of failure to appear and on the same date an outstanding charge of robbery in company with actual violence was committed for trial to the Childrens Court of Queensland. The sentence review is in relation to the six month probation order.
  1. [2]
    The child was fifteen at the time of the offences. She had a relevant criminal history having been sentenced on 19 October 2018 in relation to charges of unlawful use of a motor vehicle, obstructing police, burglary and failure to appear. At the time she was placed on a good behaviour bond of 12 months. On 2 December 2018 the child was a passenger in a stolen Honda Accord. The vehicle went to the Nightowl service station. The child put $60.44 worth of fuel in the vehicle and the vehicle was driven off without payment. At 10.05 a.m. the same vehicle attended Grafton Cellars bottle shop and three cartons of Bundaberg rum cans were stolen. The child was not involved in the theft of the motor vehicle.
  1. [3]
    At the time of the sentence the court was advised that the child had spent over a month in detention and including the Christmas period. In fact, she had spent 59 days in pre-sentence custody, a period of almost two months. She pleaded guilty to the offences. There was no violence involved in the offences and they were towards the lower end of seriousness for this type of offending. At the time of sentence she had completed year 10 at Djarragun College and was intending to start grade 11. She described her upbringing as good and that her time in custody had been an eye opener for her. She lived with her mother who was supportive, her sister was in court and spoke on her behalf during the sentence.
  1. [4]
    In sentencing the child there was discussion about whether a conditional bail program was appropriate for the robbery charge which was to be committed to the Childrens Court of Queensland. It was suggested that rather than a conditional bail program being considered for the robbery, that perhaps it was unnecessary and a probation order could be imposed. The defence submitted “her propensity here for behaviour while on bail does certainly aggravate the situation somewhat and given the likely continued peer relations that she has not just friends but also family members that perhaps a period supervision is appropriate in these circumstances.”[1]
  1. [5]
    The magistrate adopted that submission stating[2]:

“I form the view that [a period of supervision] is necessary at this stage just to help you get back to school.  Keep on a better path.  Because prior to October last year you’ve never been in the court before.  So it is a real shame that this has started and gotten so bad so quickly.  I’ve decided that I want you on probation for six months so that will start pretty much straight away today and you’ll need to report to Youth Justice as soon as you can in Cairns I presume once you get back here.”

  1. [6]
    The magistrate then decided that in those circumstances there was no need for a conditional bail program and allowed bail on the robbery charge with residential and non-contact conditions.
  1. [7]
    In imposing a sentence the court must take into account the sentencing principles contained within s 150 of the Youth Justice Act 1992.  Sub-section (1) of that section provides that a court must take into account the nature and seriousness of the offence and the general principles applying to the sentencing of all persons as well as the Youth Justice Principles contained in Schedule 1 of the Act. 
  1. [8]
    In this case the magistrate was led into error by the parties appearing. She was not told that the child has spent 59 days in pre-sentence custody and was asked to put the child on a supervised order. The magistrate clearly was imposing a sentence to aid and assist the applicant in staying in school, however, given the significant amount of time spent in youth detention (including the Christmas period spent in a detention centre removed from her home base), the court should not have imposed any additional punishment on the child. In those circumstances the application is allowed, the sentence set aside and on each charge the child is placed on a 6 month good behaviour bond in lieu of the probation order.

Footnotes

[1] Transcript of Proceedings, 1-11.

[2] Decision p2 L20.

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Editorial Notes

  • Published Case Name:

    OCS v The Queen

  • Shortened Case Name:

    OCS v The Queen

  • MNC:

    [2019] QCHC 9

  • Court:

    QChC

  • Judge(s):

    Richards P

  • Date:

    29 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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