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Maria (a pseudonym) v Director of Public Prosecutions[2021] QCHC 1

Maria (a pseudonym) v Director of Public Prosecutions[2021] QCHC 1

CHILDRENS COURT OF QUEENSLAND

CITATION:

Maria (a pseudonym) v Director of Public Prosecutions [2021] QChC 1

PARTIES:

Maria (a pseudonym)

(Applicant)

v

DIRECTOR OF PUBLIC PROSECUTIONS

(Respondent)

FILE NO:

424/20

DIVISION:

Childrens Court of Queensland

PROCEEDING:

Sentence Review Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

16 February 2021

DELIVERED AT:

Brisbane

HEARING DATE:

29 January 2021

JUDGE:

Richards P

ORDER:

              The sentence is set aside.  The child is re-sentenced to 12 months’ probation in relation to all of the offences before the court.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the child was sentenced to 38 offences, 37 of those are the subject of the review – where the sentences imposed were 9 months’ detention, six months’ detention and three months’ detention to be served by way of conditional release orders, a 12 month probation order and 12 month licence disqualification – where no convictions were recorded – where the child had no previous criminal history – where the child had spent 135 days in custody at the time of sentence – where some of the offending was committed whilst on bail – where offending was persistent – where the child’s mental health deteriorated in detention – where pre-sentence report detailed the child disengaged from school the year prior to the offending –  where the pre-sentence report details the child began drinking and using drugs at a young age – where the family report the child displayed a lack of remorse – where detention centre staff indicate the child demonstrated remorse – where detention can be imposed upon a child as a last resort – whether the sentence imposed by the learned Magistrate was manifestly excessive

LEGISLATION:

Youth Justice Act 1992 (Qld) s 150

CASES:

R v SCU [2017] QCA 198

COUNSEL:

Mr L Fabian – counsel for the applicant instructed by Legal Aid (Queensland)

Ms E McGregor – counsel for the respondent instructed by the Office of the Director of Prosecutions

SOLICITORS:

Legal Aid Office Queensland for the applicant

Office of the Director of Public Prosecutions for the respondent

  1. [1]
    On 6 November 2020 the applicant child was sentenced in relation to 38 offences, 37 of those offences are the subject of this review.  The sentences imposed were variously nine months’ detention, six months’ detention and three months’ detention, all to be served by way of conditional release orders, a 12 month probation order and a 12 month license disqualification. No convictions were recorded. 
  2. [2]
    The offences can be summarised as follows:

 9 April 2020Stealing — the child stole petrol from a service station.

 30 April 2020Enter dwelling and commit indictable offence — between 8.00pm and 9.00pm the child entered the victim’s dwelling at Broadbeach by cutting a fly-screen and stole property.

 16 May 2020 Enter dwelling and commit indictable offence — unlawful use of a motor vehicle — the child and a male entered an address through an unlocked door and took two sets of keys belonging to a BMW and a Mercedes Benz.  The child drove the BMW out of the driveway and onto the street.  She then exited the vehicle and entered the Mercedes with the male offender, who drove away.

 16 May — 19 May 2020 10 charges of attempt to enter dwelling and commit indictable offence — on various occasions the child, with others, attempted to gain access to dwellings in Sunnybank Hills; entry was unsuccessful.

 19 May 2020 Enter dwelling and commit indictable offence — unlawful use of a motor vehicle fraud — between 4.00am and 8.00am offenders entered a residence at Sunnybank Hills through an unlocked door.  They took keys belonging to two vehicles and other property including a debit card.  They used the key from the dwelling to drive away in a black Kia Carnival.  At 6.51am they attended McDonald’s Calamvale and used the stolen debit card to make four small purchases.

 21 May 2020 Possession of utensils or pipes for use — police located the child in possession of three plastic bongs.

 18 May 2020 Enter dwelling and commit indictable offence —  assault occasioning bodily harm whilst armed in company — unlawful use of a motor vehicle — a dwelling was entered between the 17 and 18 May and a set of keys were taken plus other property.  The offenders left in the victim’s Toyota Prado.  The next morning the victim went searching for his vehicle and located it nearby.  He saw the applicant and co-accused walking towards the vehicle and demanded the return of the keys.  A scuffle ensued and threats were issued by the co-offender and the child.  The victim was threatened and felt a sharp pain in his side and he let go of the child. 

 18 May 2020 Attempt to enter dwelling and commit indictable offence — at 8.10am the child attended an address at Daisy Hill in the stolen Prado, the child walked through an open garage and tried to enter the dwelling but was disturbed by the victim.

 18 May 2020Enter dwelling with intent by break — between 2.00am and 7.00am the offenders attended a residence and tried to enter the dwelling through screen doors.  They were unable to gain entry despite cutting the screen doors.

 6 June 2020Enter dwelling and commit indictable offence — unlawful use of a motor vehicle — between 4.00am and 6.00am offenders entered a unit through the front door; they stole wallets, phones and car keys, they then drove away in the victim’s Hyundai.  The vehicle was later located at Woodridge.

 15 — 21 June 2020 Unlawful use of a motor vehicle — between 10.00pm on 16 June and 7.00am on 17 June keys were stolen to the victim’s Toyota Camry from a Palm Beach address and the vehicle was driven away in.  It was later located at Surfers Paradise.

 22 June 2020Enter dwelling and commit indictable offence — between 7.30am and 5.00pm the child entered the dwelling and took a phone. 

 23 June 2020Enter dwelling and commit indictable offencewilful damage — the offenders broke into a house and were disturbed by the owner of the house.  Property was taken including high end watches and jewellery.  The child was arrested on that day and committed an offence of wilful damage by writing graffiti on a table at the police station.

 1 July 2020 Enter dwelling and commit indictable offence — between 9.20am and 2.45pm a home was entered through a back window and two ladies’ watches were stolen.

 11 July 2020Enter dwelling and commit indictable offence — unlawful use of a motor vehicle — possession of utensils or pipes — between 4.00am and 8.00am a Toyota Yaris was stolen from within the garage of a residence.  At 9.30pm that vehicle was located and the child was inside in the back passenger seat.  A glass pipe was located in the vehicle, it had been used for smoking methamphetamine.

 8 August 2020Attempt enter dwelling with intent by break at night — the offenders entered the victim’s yard and used an item to smash a window in the living room in an attempt to gain entry.  They were disturbed by the victim.

 9 August 2020Enter dwelling with intent by break at nightserious assault police officer by spitting — serious assault police officer causing bodily harm — at 4.50am offenders used a lighter to burn open a bathroom screen window to gain entry to the victim’s dwelling.  Inside they woke the victim and the child was detected and arrested.  She refused to state her name and spat in the face of the officer and kicked the officer during the arrest.  She also intentionally kicked the door of the van shut on the second officer’s hand.

  1. [3]
    The applicant was 15 and 16 at the time of committing the offences and 16 at sentence.  She had no previous criminal history.  At the time of sentence she had been in custody for 135 days.  She had never been on a supervised order although some of the offending was committed whilst she was on bail. 
  2. [4]
    A pre-sentence report was ordered and tendered at the hearing of the matter. 
  3. [5]
    It was noted that she was of Maori cultural heritage and her family had relocated to Australia when she was four years of age.  She had a good childhood and positive relationships with both parents and most of her six siblings.  She describes herself as different to the rest of her family.  She was bullied at school and that escalated to physical altercations.  She was excluded from mainstream school and since mid-2019 was disengaged from all structured activities and education.   As a result of this she gravitated to an anti-social peer network and inappropriate adult company.  At the time of the offences she was living a transient lifestyle with peers.  Her mother stated at sentence she did not know where she was during this time.
  4. [6]
    She began drinking at age 13 and using cannabis.  She had escalated, at the time of offending, to volatile substances including but not limited to methamphetamines. 
  5. [7]
    At the time of the report her family said that she had an appalling attitude with minimal victim empathy and they had ongoing concerns about her behaviour.  However, the detention centre staff indicated that they had seen her demonstrate remorse for her actions during meaningful conversations with staff.
  6. [8]
    She noted that she had experienced a decline in her mental health and an increase in paranoid thoughts and anxiety whilst remanded in custody.  She found custody a negative experience as it created barriers to connecting with family and re-engaging in productive activities.
  7. [9]
    It was noted in the report that she had a placement with supported community accommodation in Logan, her family have advised that she was welcome to return to the family home but they wanted her to transition back to community and family life through the supported community accommodation.  She had agreed to engage in mental health and substance use counselling and it was thought that she would benefit from therapeutic intervention to address her reported paranoid thoughts, anxiety and preliminary diagnosis of conduct disorder and substance abuse.  She was motivated to re-engage with education on release.
  8. [10]
    At the initial hearing of this matter, before the pre-sentence report was supplied, it was noted that she had spent 106 days in pre-sentence custody and it was submitted by the parties that a probation period would be appropriate.  It was submitted on behalf of the prosecution that six to 12 months’ probation would be the appropriate sentence to help the defendant address the issues behind her offending behaviour and rehabilitate and reflect on the severity of her offending. The magistrate rejected those submissions.
  9. [11]
    It is well-established that a detention order can only be imposed on a child as a last resort and for the shortest period appropriate. A non-custodial order is better than detention in promoting successful reintegration into the community.[1]  In R v SCU [2017] QCA 198 Sofronoff P dealt at length with the requirement that the court must give consideration to all the statutory factors relevant to a particular case and in particular the court has an obligation to consider all other options that are reasonably available before imposing detention.  At [58] his Honour noted:

“Even if ultimately detention is ordered, s 208 obliges the sentencing court to consider all other options, the reasons for imposing detention (rather than taking other options) must be expressed in the sentencing remarks.”

  1. [12]
    In this case the magistrate did give some reasons as to why a 12 month probation order was not appropriate emphasising the need for intense supervision.  However, he did not outline why other sentencing options were inappropriate such as a combination of restorative justice and probation or community service and probation.  Further, it would appear he was unaware that although the child only had 49 days of declarable time in custody, she had in fact been in custody for 135 days. 
  2. [13]
    There were obvious aggravating factors in respect of this offending, namely that the offences were persistent and some were serious in nature involving entering houses at night, sometimes when the occupants were home and stealing valuable items. There were offences involving violence; the offences were committed within a short period of time and the child offended whilst on bail on two occasions.  This, of course, made the principle that the community should be protected from further offences an important matter to consider.
  3. [14]
    However balancing that was the fact that the child did not have any previous criminal history, had not had the benefit of a supervisory sentencing order, that she had pleaded guilty to the offences and that she had spent a significant period of time in custody. 
  4. [15]
    As a result of her time in custody she had experienced a decline in her mental health and she was a candidate for therapeutic intervention to address her mental health conditions and her substance abuse.  Given the significant amount of time she had spent in pre-sentence custody, the utility of a conditional release order was significantly reduced.  The intensity of the order could have been easily remedied by attaching appropriate special conditions that the magistrate to a probation order.  In any event, a further period of detention after the child spent 135 days on remand, was unnecessary in this case.
  5. [16]
    It was submitted on behalf of the applicant that given the time in custody a sentence of six months’ probation for all offences would be appropriate.  In my view a sentence of probation is appropriate in this case, however, given the proclivity of the child’s offending and her lack of insight, a lengthy period of probation is appropriate, even having regard to the amount of time she spent on remand waiting for these offences to be finalised.  The appropriate order is one of 12 months’ probation in relation to all of the offences. 
  6. [17]
    The application is allowed, the sentence is set aside and the child is sentenced to 12 months’ probation in relation to all of the offences before the court. No convictions are recorded.

Footnotes

[1] Youth Justice Act 1992 (Qld) s 150.

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Editorial Notes

  • Published Case Name:

    Maria (a pseudonym) v Director of Public Prosecutions

  • Shortened Case Name:

    Maria (a pseudonym) v Director of Public Prosecutions

  • MNC:

    [2021] QCHC 1

  • Court:

    QChC

  • Judge(s):

    Richards P

  • Date:

    16 Feb 2021

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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