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SRT v Office of the Director of Public Prosecutions QCHC 25
CHILDREN'S COURT OF QUEENSLAND
SRT v Office of the Director of Public Prosecutions  QChC 25
OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS
Cairns Children's Court
27 August 2020
30 July 2020
CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the child was sentenced to various offences – where the learned Magistrate sentenced the child to a four month intensive supervision order and restorative justice order – where the child was 12 years of age at the time of offending – where the child had extensive exposure to domestic and family violence and drug use – where his parents have spent time in adult correctional facilities – where the child is cared for by his grandmother during those times – where the child spent 31 days in pre-sentence custody – whether the learned Magistrate adequately took into account the period of pre-sentence custody the child had served – whether the learned Magistrate adequately took into account the child’s guilty plea – where the child required extra supervision while in the care of the grandmother – whether an intensive supervision order was an appropriate sentence
Ms C Anderson-James, Legal Aid Queensland for the applicant
Mr S Sherrie for the Office of the Director of Public Prosecutions, Queensland
- The child was sentenced on 1 May 2020 in the Cairns Childrens Court in relation to charges of enter premises with intent, unlawful use of a motor vehicle, evasion, driving a motor vehicle without a licence, trespass and stealing. He was sentenced to a four month intensive supervision order and a restorative justice order. He appeals that sentence. The offences can be summarised as follows:
- (a)On 28 February 2020 he and others went into the Stockland Shopping Centre and pried open sliding doors at the entrance to the food court. They jumped over counters of multiple food outlets and looked through cabinets and drawers. They were disturbed by security officers and decamped on foot.
- (b)On 25 March 2020 police saw a white Toyota Camry travelling at speed. They made attempts to catch up with the vehicle, however it continued to disobey traffic lights and road rules in wet weather conditions. The car had been stolen, a tyre deflation device was deployed and lights and sirens were activated. The vehicle continued to travel along Mulgrave Road avoiding other road users and then came to an abrupt stop causing the unmarked police vehicle to run into the back of the vehicle. Five children attempted to decamp from the vehicle. This child was observed to be in the driver’s seat. He admitted he was the driver and told police he stole the keys earlier in the day (unlawful use of a motor vehicle, evasion and driving a motor vehicle without a driver’s licence).
- (c)On 27 March 2020 the child was in the Stockland Shopping Centre having been previously banned from the area. Whilst there he entered City Beach and took a baseball cap valued at $40.00.
- He was 12 years of age at the time of the sentence and is presently 12 years of age. At the time of sentence he had spent 31 days in pre-sentence custody waiting for the preparation of a pre-sentence report.
- The pre-sentence report detailed his family history.
- He grew up with persistent exposure to domestic and family violence and exposure to drug use. He spent his time between his mother and his grandmother in Cairns, Rockhampton and Woorabinda. In 2014 he witnessed the death of two younger siblings and was also the victim of sexual abuse. His ongoing trauma lead to behavioural explosions. His mother participated in extensive endemic drug use and has provided minimal protection to her children. His father experienced severe mental health issues including drug induced psychotic episodes and schizophrenia. The children are fearful of their father. His father was involved in the use, manufacture and trafficking of methamphetamine. Both his parents have spent time in adult correctional centres with the child being cared for by his grandmother during those times.
- He attended six different schools between February 2013 and February 2019. In 2019 he began to show multiple behaviour management incidents whilst at school two days a week. He is currently enrolled at Trinity Bay State High School in Cairns for Year 7 where he has attended only two days schooling in 2020.
- His mother is a daily user of crystal methamphetamine and has experienced chronic homelessness. The child reported that he acted under the influence of new friends made while unsupervised at night and it was assessed that he was motivated in part by the need to gain their approval and acceptance. There was little remorse shown for the offending but he was willing to accept help to stop offending.
- At the hearing of the matter the prosecutor pointed out that these offences were committed the day after being sentenced to 12 months’ probation in the Cairns Childrens Court. He was stingered by the police and continued to drive after that. For the minor offences of trespass at Stockland and stealing it was submitted that a reprimand would be appropriate as well as in relation to the earlier enter premises with intent to commit an indicatable offence. However, in relation to the driving offences it was submitted that a conditional release order was appropriate. It was pointed out he had already spent 18 days in custody on the probation order and this had no effect on slowing down his offending.
- On his behalf it was submitted that he was sorry for what happened. It was submitted that an intensive supervision order may be considered because he really needed the supervision. At the time of the offending he was living with his grandmother but he had only recently come back from Woorabinda and he was not very stable going from family to family.
- He had been studying in detention and was at a 16 or 17 year level in some of his subjects so he was quite intelligent. He was, prior to going to Woorabinda, doing well in school and he intended to reengage with Trinity Bay High. At the sentence hearing the child indicated that he was not going to follow the crowd that he was once following.
- In sentencing the child the Magistrate took into account his plea, the fact that he had a loving and supportive family, that he was quite bright and doing well at school while in detention. He was healthy and did not appear to be addicted to drugs or substances. On the other hand he was making poor choices and showing bravado that led him to make poor decisions to impress his friends.
- It is submitted in this review that given the period of time he had spent in detention that the sentence was excessive. It was submitted, that neither party had addressed the court on requirement to consider a court diversion referral as required under s 162 of the Act and that does appear to be the case. There was no consideration given to a court diversion referral other than Her Honour indicating that she would consider a restorative justice order at the sentence and there was no objection from the person acting for the child. It was submitted the learned Magistrate did not place sufficient weight on the significant period of pre-sentence custody the child had served and that the child’s pleas of guilty were not taken into account in reducing the penalty.
- The crown submits that the Magistrate was cognisant of s 162 of the Youth Justice Act at the time of making the orders but rejected that and decided to consider restorative justice when sentencing the child. This was simply a practical answer to the difficulties encountered with the restrictions placed on everyone during the COVID pandemic. It was further submitted by the Crown that the Magistrate, the Youth Justice representative and the child’s representative were concerned about the child having some intensive support in the community and the intensive supervision order was in place to assist the child with that support.
- The purpose of an intensive supervision order is that children under 13 may need intensive supervision to address emerging antisocial behaviour. This child had committed a large amount of serious offences for which he was sentenced the day before. He had been in detention for 18 days at that stage and undeterred, went out and committed further offences. The driving was serious in that he was in a stolen vehicle, he was the actual driver and he evaded police. He continued to drive even after tyres were deflated and whilst there is no charge of dangerous operation of a motor vehicle he nonetheless, given his age, would have not been in a position to avoid any serious traffic accidents had the situation presented itself.
- It would have been open to the Magistrate to order a concurrent term of probation. However, the presentence report indicated that the child lacked parental supervision and he was back in the care of his grandmother. His grandmother was seeking help to make him behave and he himself admitted that he was easily influenced by his peers. It cannot be said in those circumstances that the intensive supervision order is outside the range of sentencing or even inappropriate in this case. The application is dismissed.
- Published Case Name:
SRT v Office of the Director of Public Prosecutions
- Shortened Case Name:
SRT v Office of the Director of Public Prosecutions
 QCHC 25
27 Aug 2020