WEN v Director of Public Prosecutions
[2021] QCHC 22
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- Unreported Judgment
- WEN v Director of Public Prosecutions[2021] QCHC 22
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WEN v Director of Public Prosecutions[2021] QCHC 22
WEN v Director of Public Prosecutions[2021] QCHC 22
CHILDRENS COURT OF QUEENSLAND
CITATION: | WEN v Director of Public Prosecutions [2021] QChC 22 |
PARTIES: | WEN (Applicant) v DIRECTOR OF PUBLIC PROSECUTIONS (Respondent) |
FILE NO/S: | 186 of 2021 |
DIVISION: | Childrens Court of Queensland |
PROCEEDING: | Sentence Review Application |
ORIGINATING COURT: | Townsville Childrens Magistrates Court |
DELIVERED ON: | 25 May 2021 (delivered ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 May 2021 |
JUDGE: | Dearden DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the child was sentenced to 6 months probation for various assault, motor vehicle and enter premises offences; a 5 hour graffiti removal order for wilful damage by graffiti and; reprimanded for various trespass and property – related offences – where the child was 12-13 at the time of the offences – where the child had a lack of criminal history – where the child has spent 117 days in detention – whether the sentence imposed was excessive in the circumstances |
Youth Justice Act 1992 (Qld) ss 118, 122 | |
R v HTK [2013] QChC 4 | |
COUNSEL: | B Callanan for the applicant K Thomas for the respondent |
SOLICITORS: | Legal Aid Queensland for the applicant Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]This is an application for a sentence review by the applicant WEN in respect of the matters set out in the application dated 5 March 2021.
- [2]The applicant appeared in the Townsville Childrens Court on 8 February 2021 and pleaded guilty to 39 offences. Those offences include (as outlined in exhibit 1, paragraph 6) sixteen charges of unlawful use of a motor vehicle where the applicant was not the driver. She was 12 years old for 10 of these offences and 13 for the remaining 6.
- [3]A charge of unlawful possession of a motor vehicle (3.7.2020) relates to photographs of the applicant and her co-offenders using a stolen car and a photo of the applicant sitting on top of the stolen vehicle
- [4]Charges of assault occasioning bodily harm and common assault occurred at Brisbane Youth Detention Centre. The applicant struck another child in the head and wrestled the same child until separated by a youth detention worker. The applicant then struck the detention worker in the upper body/face area.
- [5]The charge of unlawful possession of a motor vehicle (23.9.2020) arose after police located the applicant in the driver’s seat of the car. The applicant was attempting to start the car.
- [6]A charge of enter dwelling and commit indictable offence is where a house was entered and cars and a vehicle were stolen. The applicant made admissions to being present when the vehicle was stolen and being in the vehicle.
- [7]The orders imposed have been helpfully summarised by the respondent Crown as follows:-
Penalty | Offences |
Six months probation | On each charge of unlawful use of a motor vehicle (16 charges) On each charge of the unlawful possession of a motor vehicle (two charges) Assault occasioning bodily harm (one charge) Common assault (one charge) Enter dwelling and commit indictable offence (one charge) |
Graffiti removal order (five hours) | Wilful damage by graffiti |
Reprimanded | On each charge of stealing (nine charges) On each charge of receiving tainted property (two charges) On each charge of trespass (three charges) On each charge of enter premises and commit indictable offence (two charges) Wilful damage of police property (one charge) |
- [8]No convictions were recorded.
- [9]The learned magistrate took into account the erroneous information from Youth Justice that 135 days had been spent on remand – this was in fact 117 days. Little turns on this error (exhibit 2, paragraphs 1.1-1.4.)
- [10]The probation order was stayed upon the application for sentence review. There is no dispute about the recording of convictions nor with respect to the graffiti removal order.
The law – sentence reviews
- [11]A Childrens Court judge may review a sentence order made by a magistrate (Youth Justice Act 1992 (Qld) (‘YJA’) s.118), which must be by way of rehearing on the merits (YJA s.122 (1)) and no error is required to be demonstrated (R v HTK [2013] QChC 4, 15-16). The sentence review must be conducted expeditiously and with as little formality as possible (YJA s.122(3)) and this court may have regard to the record of proceeding before the Childrens Court magistrate and any further submissions in evidence by way of affidavit or otherwise (YJA s.122(2)).
- [12]The court is required to have regard to the sentencing principles and special considerations of the YJA.
Discussion
- [13]The submission here is that the sentence order imposed was excessive in the circumstances. In particular, that the learned magistrate placed insufficient weight on the time that the child had spent in detention, at a very young age (she was aged 12-13 at the time of the offending) and lack of criminal history; conversely that the learned magistrate placed excessive weight on the seriousness of the offending; and placed insufficient weight on the desirability of the child being diverted away from the criminal justice system.
- [14]Fundamentally, as the applicant’s counsel agreed in oral submissions, the learned magistrate appears to have failed to appreciate the significance of the 117 days of pre-sentence custody, for offending which would not otherwise have brought a detention order under almost any circumstances, and has imposed an outcome by way of probation for those matters on which probation was ordered in circumstances where that probation order was not proportional to the effective sentence on the child, albeit by pre-sentence custody that was not otherwise part of the penalty.
- [15]In those circumstances the lack of criminal history and the very young age of the child were, of course, each significant factors in the mix of antecedents before the magistrate which needed to be given appropriate weight in order to arrive at a sentence that was proportionate in the rather unusual circumstances that this child’s repeated offending (frequently on bail as the respondent has pointed out) meant that she had spent a substantial period of time in pre-sentence custody which had to be given “credit” in one way or another, albeit that a detention order was clearly not appropriate in the circumstances of either the child or the offending.
- [16]The applicant’s submission is that the appropriate way to recognise that pre-sentence custody and the fact that it represented, effectively, the custodial component of an eight-month detention order was to impose with a good behaviour order for a period of nine months in respect of those matters for which the probation order was imposed.
- [17]The respondent Crown submits that the sentence imposed was not excessive in the circumstances, and that an otherwise appropriate order of 12 months was reduced by the learned magistrate to take into account the pre-sentence custody. Although I understand that submission, in my view, ultimately, proportionality failed to be appropriately weighted in this case, particularly in consideration of the child’s age and lack of criminal history.
- [18]I am persuaded that the learned magistrate fell into error (although error is not necessarily required in matters such as these).
Orders
- [19]In all of the circumstances, the application for sentence review should be granted. I make the following orders:
- (1)Application granted.
- (2)The six-month probation order imposed on 8 February 2021 be discharged.
- (3)In respect of those 21 offences, an order be imposed that the child be of good behaviour for a period of nine months.
- (4)Convictions not recorded for those 21 offences.