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R v HGM[2020] QCHC 18

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v HGM [2020] QChC 18

PARTIES:

THE QUEEN

v

HGM

FILE NO/S:

164 of 2020

DIVISION:

Childrens Court of Queensland

PROCEEDING:

Sentence Review

ORIGINATING COURT:

Dalby Childrens Court

DELIVERED ON:

10 July 2020

DELIVERED AT:

Brisbane

HEARING DATE:

2 July 2020

JUDGES:

Richards DCJ

ORDER:

  1. Application allowed.
  2. Sentence of 25 days detention set aside.
  3. The child be reprimanded.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING JUVENILES – where the child was sentenced for entering a dwelling and committing an indictable offence – where the child was sentenced to 25 days detention – where the child was 14 and 15 at the time of the offences – where the child pleaded guilty to all charges – where a presentence report was provided to the Court for sentencing - whether the learned Magistrate adequately took into account the sentencing principles of s 150 of the Youth Justice Act 1992 (Qld) – whether the learned Magistrate erred in not giving any reasons for imposing a detention order – whether the learned Magistrate adequately took into account the child’s age, disadvantaged upbringing and the lack of seriousness of the majority of the offending

Legislation

s 150 Youth Justice Act 1992 (Qld). 

Cases

The Queen v SCU [2017] 198

LEGAL REPRESENTATIVES:

L Barnes appeared on behalf of Legal Aid Queensland

N Hopper instructed by the Office of the Director of Public Prosecutions appeared on behalf of the respondent.

  1. [1]
    The child was sentence in the Dalby Childrens Court on 6 April 2020 to 25 days detention for an offence of entering a dwelling and committing an indictable offence committed on 18 October 2019. On that day he was also reprimanded in relation to an offence of interfering with fire apparatus and sentenced to 80 hours community service on other charges of wilful damage on 4 March 2019, possession of a utensil on 20 March 2019, wilful damage (3 charges), obstruct police and threatening violence on 7 April 2019, stealing on 31 October 2019, wilful damage and unlawful possession of tainted property on 22 November 2019 and two further charges of wilful damage on 26 January 2020.  This application for sentence review is in relation to the sentence of 25 days detention only.
  2. [2]
    The child was 14 and 15 at the time of the offences, and 15 at the time of the sentences. He had been in custody for 25 days.  He entered pleas of guilty to all the charges. 
  3. [3]
    The offences largely reflect offending by a child who is unable to control his emotions and impulsive in his actions.  On 4 March 2018, he threw a pole at his mother’s car damaging it.  On 20 March 2019, he was found in possession of a drug utensil.  On 7 April 2019, he threatened his mother with a pair scissors after an argument and jumped on the bonnet of her car.  He was taken to the watch house where he threw a cup of orange juice out of his cell which hit the fire alarm, and broke a plastic cup and he ripped his watch house shirt.  He then placed a piece of paper over the police camera obstructing the police officers’ view of the cell.  On 18 October 2019, his fingerprints were located at the scene of a burglary at Dalby,  where a mobile phone, headphones, tobacco and a jumper had been stolen.  On 31 October 2019, he stole some headphones and a mobile phone charger from BP Service Station.  On 22 November 2019, police located a number of jewellery boxes in his room that did not belong to him, and he smashed a mug at the Dalby watch house.  On 26 January 2020, he kicked and punched some walls and damaged a motor vehicle mirror and obstructed police by hiding from them. 
  4. [4]
    He had a criminal history for like offending and had one previous detention order, which was served by way of a conditional release order.  He had previously also been sentenced to periods of probation, restorative justice, good behaviour bonds, and community service. 
  1. [5]
    A presentence report was prepared in relation to the child.  The child was raised by his mother and had little to do with the father because of issues of domestic violence and periods of incarceration.  When the child was five years of age, the mother re-partnered and had an additional two children and that was a period of stability in this life from 2009 until 2011, until the partner and the two children passed away in a motor vehicle accident.  As a result, his mother was unable to care for herself and for this child.  She fell into heavy depression and substance abuse and she sought help from family members to take care of the child.  He was then often left unsupervised and uncared for, would arrive at school late with no food, or not attend school at all and be found walking the streets of Dalby by police.  When police would attend his mother’s address to return him, they would often be told that she was heavily under the influence of a substance and unable to supervise him.
  2. [6]
    He came under the care of the Department of Child Safety in February of 2014 and it was noted then that he had complex behavioural and mental health issues stemming from this trauma. 
  3. [7]
    His mother re-partnered and had another child, but that did not last for long.  The child did not enjoy being in care, and self-placed with either his mother or his maternal grandmother from time to time.  He continues to have a turbulent relationship with his mother, who has had a number of relationships since that were domestically violent. 
  4. [8]
    At the time of sentencing, he was living with his grandmother who was a more stable influence on him. 
  5. [9]
    He said that before the commission of the offences before the Court, his mother was a significant trigger for him.  His mother had been visiting Dalby at the time and he said she usually argues with him about cigarettes and her requirement for him to provide these to her in the form of “dumpers”.  Unsurprisingly it was assessed that he had a sense of abandonment from his mother and continuing grief and loss for his step-father and half-siblings.
  6. [10]
    He was diagnosed with Attention Deficit Hyperactivity Disorder in 2010.  At the time he was not taking his medication.  He has also been diagnosed with Oppositional Defiant Disorder characterized by a persistent non-compliance defiance and temper outbursts.  He also suffers from Post-Traumatic Stress Disorder.  He has poor emotional regulation and lack of impulse control.  He has in the past attempted suicide, self-harmed and threatened others.  He has poor emotional regulation.
  7. [11]
    He is a cannabis user and was under the influence of cannabis at the time of the offending.  His substance abuse also included chroming and has escalated to methamphetamine.  He uses cannabis to assist him in managing his emotions.
  8. [12]
    The report indicated that the time in custody was not pleasant for the child and that whilst on conditional bail he had been forced to live with his mother from time to time and that resulted in multiple suicide attempts and exacerbated his mental health
  9. [13]
    At the time of sentencing he was living with his grandmother which was his preferred placement because he could have contact with his extended family and was away from his mother.  He had indicated to the author of the presentence report that he was willing to engage in the Downs Industry Schools Co-op in Dalby to slowly transition back to mainstream schooling.  His grandmother was willing to help him and they had been engaging with the Youth Offender Support Service and the Goolburri family-led decision-making group and had agreed to continue with those services.  He was motivated to abstain from using methamphetamines and from chroming, although still used cannabis to cope with his grief at the loss of family members. He had agreed to engage with the Dalby Child Youth and Mental Health Services.
  10. [14]
    The sentencing principles of the Childrens Court are set out in s 150 of the Youth Justice Act 1992 (Qld).  They state in part that the court must have regard to the Youth Justice Principles, a pre-sentence report, if one is provided, the child’s previous history and the fitting proportion between the sentence and the offences. The child’s age needs to be given special consideration and a non-custodial order is better than detention in promoting a child’s ability to reintegrate into the community. Most importantly a detention order should be imposed only as the last resort and for the shortest appropriate period.  The provisions were exhaustively examined in The Queen v SCU [2017] 198 by the President of the Court of Appeal.  After a detailed analysis of the philosophy and the provisions of the Act, His Honour noted at paragraph 57:

“The Act requires a judge to be satisfied positively, for reasons that he or she must state, that none of the courses of action that do not involve incarceration would be likely to serve their intended purpose, which is the prevention of re-offending before imposing the final and alternative, that of incarceration.  And even then, a judge is bound to consider whether it might be enough to order detention with conditional release, an order that pre-supposes the existence of satisfactory programs to modify a child’s behaviour and attitudes.”

  1. [15]
    The President noted the need for the court to take on its shoulders a heavy burden “by process of exhausted reasoning to eliminate all the options offered by the Act before making a detention order”.  That was not done in this case.  In fact, other than saying that the burglary was a serious offence, the magistrate did not give any reason for imposing detention for that particular offence.
  2. [16]
    The magistrate noted that the offending had occurred over a long period of time and that is a correct analysis.  However, much of the offending was minor in nature, such as wilful damage of a mug and reflected the child’s immaturity and lack of impulse control.  Despite the child’s history, there was reason to hope that with a stable placement with his grandmother, he might be able to participate in programs that were offered.  The child had a significantly disadvantaged upbringing and his behaviour particularly when dealing with his mother whilst not appropriate, was understandable.
  1. [17]
    It is conceded by the Crown that the magistrate erred in not properly articulating her reasons for imposing a period of actual detention on the child.  That is clear and the sentence should be set aside on that basis. 
  2. [18]
    However, in my view the matter goes further than that.  There was no actual reason to impose detention on this child who was 14 years old at the time of the offending.  The appropriate course would have been to attach that offence to the community service.  Because of the passage of time that is now not possible; so taking into account the 25 days in detention, the child should now be formally reprimanded.

ORDER

The application for sentence review is allowed. The sentence of 25 days detention is set aside. The applicant child is reprimanded

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Editorial Notes

  • Published Case Name:

    R v HGM

  • Shortened Case Name:

    R v HGM

  • MNC:

    [2020] QCHC 18

  • Court:

    QChC

  • Judge(s):

    Richards DCJ

  • Date:

    10 Jul 2020

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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