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LRM v Office of the Director of Public Prosecutions[2020] QCHC 39

LRM v Office of the Director of Public Prosecutions[2020] QCHC 39

CHILDREN’S COURT OF QUEENSLAND

CITATION:

LRM v Office of the Director of Public Prosecutions [2020] QChC 39

PARTIES:

LRM

(applicant)

v

OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS

(respondent)

FILE NO:

353 of 2020

DIVISION:

Children’s Court of Queensland

PROCEEDING:

Application for sentence review

ORIGINATING COURT:

Children’s Court at Brisbane

DELIVERED ON:

2 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

26 November 2020

JUDGE:

Richards DCJ

ORDER:

  1. Application allowed.
  2. The sentence is set aside.
  3. The Chief Executive is ordered to refer the child for a restorative justice process pursuant to s 163 and s 164 of the Youth Justice Act 1992 (Qld).

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the child was sentenced to three offences – where the child was 16 years old at the time of offending and at the time of sentence– where the child had previously received an eight month probation order for previous offending – where the child had not offended for a period of nine months – where the child’s living arrangements had changed since the previous probation order - where the child was sentenced to 6 months’ probation – whether the Magistrate adequately considered a pre-sentence referral pursuant to s 162 of the Youth Justice Act 1992 (Qld) – whether the matter should be referred to the Chief Executive pursuant to s 163 and s 164 of the Youth Justice Act 1992 (Qld) instead of sentencing the child

COUNSEL:

Mr J Alcorn for the applicant

M Whelan for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Office of the Director of Public Prosecutions for the respondent

Introduction

  1. [1]
    On 18 September 2020, the child pleaded guilty to two charges of commit public nuisance and one charge of wilful damage. All charges were committed on 2 August 2020. He was sentenced to six months’ probation with no conviction recorded. He has applied to review that sentence.
  2. [2]
    The facts of the offences involved the child at 1.20am walking across the front yard of a house. When they were asked to move along they became aggressive. The applicant ran to the front door, rattled the door, banged on the windows and yelled threats of violence. He then threw rocks at the complainant’s vehicle causing damage and kicked the side mirror causing it to fold back. It’s unknown how much damage was caused.
  3. [3]
    At 4.10pm he approached a parked vehicle and punched the window of the vehicle and hit the side mirror. No damage was caused. He yelled and swore at the owner of the vehicle.
  4. [4]
    He was 16 at the time of the offending. On 29 March 2019 he received an eight month probation order in relation to 11 charges. That period of probation expired 9 months prior to the commission of these offences. At the time of the offending he did not have a stable address and at the time of sentence had begun living with his grandparents. He’s been diagnosed with Attention Deficit Hyperactivity Disorder.
  5. [5]
    Before hearing submissions from Youth Justice or the child’s legal representatives, the Magistrate indicated that he was going to impose probation. Upon making submissions on his behalf, his legal representative indicated that he had taken some Xanax tablets prior to the offending and didn’t have much of a clear recollection of what happened but he was couch surfing at the time and had now moved to live with his grandparents and was hoping to commence working with his uncle on a fishing trawler. It was pointed out he didn’t have a lengthy criminal history and his previous probation order was completed without breach.
  6. [6]
    The learned Magistrate labelled the behaviour as outrageous and said that there was a need for intervention. It was submitted that there had been a significant passage of time since the date of the previous offences which were committed in 2018.
  7. [7]
    It was submitted a restorative justice order would have more of an impact in assisting the child to deal with his issues than probation. The child had agreed to a court diversion referral and it was submitted on behalf of Youth Justice that he would benefit from that process and that any issues that needed attention could be addressed outside of a supervised order.
  8. [8]
    In sentencing him, the Magistrate said that he had taken into account the pleas of guilty and had reduced the sentence accordingly. He also said that he noted the relevant sentencing principles in the Youth Justice Act 1992 including the need to consider diversion from the criminal justice system. However, he decided that a probation order was more appropriate. He said that he had considered diversion but he was satisfied there should be some formal supervision.
  9. [9]
    The Crown submits that the application should be dismissed. It was submitted that the Magistrate had considered all sentencing options and that the child’s drug use and extreme anger required the intervention of a probation order.
  10. [10]
    It appears that the Magistrate was overwhelmed by the threats that were made by the child on the particular night and the fact that he had previously had probation. He did not take into account the fact that the child had managed to change his circumstances, he had not offended since that probation order other than this offending and that restorative justice may well have been effective in getting him to consider his behaviour in circumstances where he was disturbing people at night and attacking people’s cars. In my view, the sentence was manifestly excessive and a restorative justice referral was the appropriate order.
  11. [11]
    Accordingly, the application is allowed. The sentence is set aside and I order that a restorative justice referral be made instead of sentencing the child.
Close

Editorial Notes

  • Published Case Name:

    LRM v Office of the Director of Public Prosecutions

  • Shortened Case Name:

    LRM v Office of the Director of Public Prosecutions

  • MNC:

    [2020] QCHC 39

  • Court:

    QChC

  • Judge(s):

    Richards DCJ

  • Date:

    02 Dec 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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