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George (a pseudonym) v Director of Public Prosecutions[2021] QCHC 11

George (a pseudonym) v Director of Public Prosecutions[2021] QCHC 11

CHILDRENS COURT OF QUEENSLAND

CITATION:

George (a pseudonym) v Director of Public Prosecutions [2021] QChC 11

PARTIES:

GEORGE (a pseudonym)

(applicant)

v

DIRECTOR OF PUBLIC PROSECUTIONS

(respondent)

FILE NO:

125/21

DIVISION:

Childrens Court of Queensland

PROCEEDING:

Sentence Review Application

ORIGINATING COURT:

Childrens Court at Brisbane

DELIVERED ON:

18 May 2021

DELIVERED AT:

Childrens Court at Brisbane

HEARING DATE:

7 May 2021

JUDGE:

Richards P

ORDER:

  1. Application for sentence review is granted.
  2. The sentences of probation and community service are set aside. In relation to the offences of enter premises with intent to commit an indictable offence, attempt to enter premises with intent to commit an indictable offence and attempt to enter a dwelling with intent at night the child is referred to a restorative justice process pursuant to s 163 and 164 of the Youth Justice Act.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – where the child was sentenced to four months detention with a conditional release order attached, 60 hours of community service and 6 months’ probation for vehicle and property related offences – where the child was 15 years old at the time of offending – where the child had a relevant criminal history – where the child was on probation at the time of the offending – where a pre-sentence report was not prepared for some of the property related offences – where the Crown concedes the overall sentence is excessive – where the child was willing to engage in restorative justice – whether the sentence imposed was excessive in the circumstances

LEGISLATION:

Youth Justice Act 1992 (Qld) ss 163, 164

COUNSEL:

Mr T Clements for the applicant instructed by Legal Aid

Ms K Thomas for the respondent instructed by the Office of the Director of Public Prosecutions for the respondent

SOLICITORS:

Legal Aid for the applicant

Director of Public Prosecutions for the respondent

Introduction

  1. [1]
    The child was sentenced on 18 March 2021 in relation to offences of enter premises with intent to commit an indictable offence, attempt to enter premises with intent to commit an indictable offence, attempt to enter a dwelling with intent at night, unlawful use of a motor vehicle and enter a dwelling and commit an indictable offence. The offences occurred on 27 and 28 February 2021. He was 15 at the time of the offences. He had a relevant criminal history. He was sentenced to four months’ detention with a conditional release order attached, 60 hours of community service and six months’ probation. Convictions were not recorded.
  2. [2]
    On 27 February 2021 the child entered an unlocked car and searched through it without taking anything. The next day he tried to get into a locked car and then tried to get into a house but was unsuccessful in both endeavours. He managed to enter a house by an open window and steal a set of keys. The complainant was home at the time. Later that day he was a passenger in a stolen vehicle.
  3. [3]
    The child’s criminal history began in August 2018 with reprimands for failing to appear in accordance with undertakings. In March 2019 he was sentenced in relation to assault occasioning bodily harm, attempted armed robbery. The child’s offending was fairly consistent through 2019. In July and October 2020 he received three months’ probation for property offences. Finally on 25 February 2021 he received five months’ probation for property offending. Within two days of that order being imposed he committed these offences.
  4. [4]
    At the time of sentence he had spent 12 days on remand. In relation to the probation order, that was breached by this offending. He failed to report for his initial interview.
  5. [5]
    A pre-sentence report was prepared. It indicated that the child had resided with his maternal aunt and uncle since he was two to three years of age. His aunt passed away in 2016. Before his aunt’s death he displayed no behavioural concerns as he was subject to strict rules and boundaries. After her death he began to challenge boundaries and started absconding from the familial home and associating with a cousin who was in trouble with the law. The family had had difficulties keeping track of him as he was moving between Goodna, Brisbane and Inala with friends and he had become somewhat resistant to more stringent levels of supervision.
  6. [6]
    He completed his primary education before transitioning to high school at Bellbird Park. His behaviour was largely uneventful until his aunt passed away. Behavioural concerns began to emerge after this and he was excluded as a result of a physical altercation. Since that time he has disengaged from education despite efforts made by the family, the Department of Education and Youth Justice to re-engage him. He further disengaged from the local rugby team and was left with a large amount of unstructured time in his life.
  7. [7]
    He began using illicit substances and by the age of 12 was engaged in misuse of aerosols, cannabis and alcohol.
  8. [8]
    When questioned he was unable to empathise with the victims of his offending although it was noted that he was at the Ipswich Watch House at the time the discussion took place.
  9. [9]
    As a consequence of his anti-social behaviour his relationship with his mother has deteriorated. He has a number of positive role models in his life with his mother and father holding full time employment and several of his siblings excelling in their chosen pursuits. He has agreed to pursue flexible learning and consented to referral to a drug and alcohol counselling service. A conditional release program was outlined for him. He was willing to participate in restorative justice as well.
  10. [10]
    It is conceded by the Crown that the overall sentence is excessive. A pre-sentence report was not prepared for the offences of attempt to enter premises with intent, attempt to enter a dwelling with intent at night and enter premises with attempt to commit an indictable offence and therefore the conditional release order cannot be imposed in relation to those particular matters.
  11. [11]
    I note the report indicates that the child is willing to engage in restorative justice. Restorative justice was not considered at the sentence although the child was willing to participate. The appropriate order for the more serious offences, given his criminal history and the speed with which he reoffended was the conditional release order. However, in relation to the three offences for which there was no pre-sentence report, the court should have considered a restorative justice process particularly given that the offences themselves were not particularly serious. There will be some supervision of the child implicit in that order.
  12. [12]
    The application is granted. The sentences of probation and community service are set aside. In relation to the offences of enter premises with intent to commit an indictable offence, attempt to enter premises with intent to commit an indictable offence and attempt to enter a dwelling with intent at night the child is referred to a restorative justice process pursuant to s 163 and 164 of the Youth Justice Act.

 

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Editorial Notes

  • Published Case Name:

    George (a pseudonym) v Director of Public Prosecutions

  • Shortened Case Name:

    George (a pseudonym) v Director of Public Prosecutions

  • MNC:

    [2021] QCHC 11

  • Judge(s):

    Richards P

  • Date:

    18 May 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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