NOR v Director of Public Prosecutions
[2021] QCHC 23
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- NOR v Director of Public Prosecutions[2021] QCHC 23
- Add to List
NOR v Director of Public Prosecutions[2021] QCHC 23
NOR v Director of Public Prosecutions[2021] QCHC 23
CHILDRENS COURT OF QUEENSLAND
CITATION: | NOR v Director of Public Prosecutions [2021] QChC 23 |
PARTIES: | NOR (Applicant) v DIRECTOR OF PUBLIC PROSECUTIONS (Respondent) |
FILE NO/S: | 127 of 2021 |
DIVISION: | Childrens Court of Queensland |
PROCEEDING: | Sentence Review Application |
ORIGINATING COURT: | Redcliffe Childrens Magistrates Court |
DELIVERED ON: | 24 May 2021 (delivered ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 May 2021 |
JUDGE: | Dearden DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the child was sentenced to nine-month probation order for a single charge of dangerous operation of a motor vehicle – where this sentence triggered an automatic 6 month licence disqualification – where all remaining charges were dismissed and referred for a restorative justice process – where the child was 17 years old – where the child had no criminal history – where the applicant submits that that the learned magistrate erred in concluding that the police could not have referred the offence to a restorative justice process, and erred in imposing a probation order – where the respondent does not oppose the application and an order for a restorative justice process – whether the sentence imposed was excessive in the circumstances – whether any restorative justice process referral should proceed pursuant to s 24A or s 254(4) – whether the court is satisfied that the police should have referred the offence to a restorative justice process – whether a restorative justice process was appropriate in the circumstances |
Youth Justice Act 1992 (Qld) ss 24A, 118, 121, 122, 254(4) | |
COUNSEL: | N Bennett for the applicant R Aldas 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 sentence review by the applicant, NOR, in respect of one charge of dangerous operation of a motor vehicle.
- [2]The applicant appeared at the Redcliffe Childrens Court on 19 March 2021 and pleaded guilty to a variety of charges, the details of which will be set out shortly. The applicant’s lawyer submitted that all charges ought to be dismissed and referred for a restorative justice process. This submission was accepted in respect of all but the dangerous operation of a motor vehicle charge, on which the magistrate imposed a nine month probation order.
- [3]This application seeks that that order be discharged, an order be substituted that the charge of dangerous operation of a motor vehicle be dismissed, and the offence be referred to the chief executive for a restorative justice process.
Background
- [4]The background to the matters is as follows (I quote from the applicant’s submission, at paragraphs 6 – 8):
- (6)On 19 March 2021, the applicant entered pleas of guilty to the following offences which occurred across two separate dates:
Offences on 21 March 2020
- (a)unlawful possession of a weapon;
- (b)possession of a knife in a public place;
Offences on 16 February 2021
- (a)dangerous operation of a motor vehicle;
- (b)evasion offence;
- (c)licensing must comply with condition on license;
- (d)learner must not drive without L plates displayed;
- (e)possessing a dangerous drug; and
- (f)possession of a knife in a public place or school.
- (7)The earlier offending concerned the applicant being found in a parked vehicle. Police searched that vehicle and found a flick knife in the front passenger footwell, and a folding knife attached to the applicant’s belt.
- (8)The later offending may be summarised as follows:
- (a)the applicant had a learned driver’s license at the relevant time;
- (b)police patrolled a main road in the Redcliffe area, and observed the applicant driving his mother’s car at a speed of approximately 100 kilometres per hour in a 70 kilometre per hour zone. The vehicle swerved through three lanes of traffic, and almost collided with other vehicles;
- (c)police pulled behind the applicant’s vehicle and activated lights and sirens. The applicant sharply turned into another lane, causing the vehicle to nearly flip and collide with another vehicle;
- (d)the applicant continued driving onto the opposite side of the road, and moved through a U-turn facility, narrowly missing a further two vehicles;
- (e)The applicant continued driving on the opposite side of the road, and drove along the road’s shoulder to avoid oncoming vehicles;
- (f)while driving, the applicant did not display learner driver plates, and did not have a qualified driver with him;
- (g)the police assisted and contacted the applicant’s mother. The applicant’s mother telephoned him, and he confirmed he would come home and speak with police;
- (h)the applicant returned home and participated in an interview with police, during which he made full admission to the offending. The police formed the view he was unremorseful for his conduct; and
- (i)the vehicle was seized and later found to contain 1.15 grams of cannabis, and a small flick knife.
- [5]The applicant’s antecedents were placed before the court. The prosecutor confirmed the applicant had no criminal history, but otherwise did not make submissions as to penalty. And, in summary, the applicant’s antecedents were that he was 17 years old, had no criminal history, was attending grade 12 at a local school, was a second year apprentice, intended to attend university to obtain a business degree, and was about to become eligible for his provisional driver’s licence, and was hoping to obtain that licence soon. Further, the applicant instructed that the offences occurred because he, “freaked out and kept on driving”, acknowledged that he behaved stupidly, endangered himself and the community, instructed that he was extremely remorseful, was committed to not repeating his conduct. A letter from his employer was tendered, which confirmed the remorse and the discussion with his lawyers of the importance of traffic laws (exhibit 1, paras 9-12).
- [6]Although the learned magistrate dismissed and referred the bulk of the offences (except for the dangerous operation charge) for a restorative justice process pursuant to section 24A of the Youth Justice Act 1992 (Qld) (‘YJA’), he imposed a nine month probation order for the charge, which then, pursuant to YJA s 254(4), triggered an automatic disqualification of the applicant’s licence for a period of 6 months. The restorative justice process has been suspended pending the completion of this review.
The law – sentence reviews
- [7]The process for sentence review is governed by YJA s 118. The review is a re-hearing on the merits (YJA s 122(1)) and must be conducted expeditiously andwith as little formality as possible (YJA s 122(3)). This court has regard to the record of the proceedings before the Childrens Court magistrate, and any further submissions or evidence by affidavit or otherwise (YJA s 122(2)).
- [8]A community-based order, which is subject to a review as a result of this application is stayed until the end of the review (YJA s 121(3)), which includes a probation order as imposed in this particular matter.
Discussion
- [9]The submission is made that the learned magistrate erred in concluding that the police could not have referred the offence to a restorative justice process, and erred in imposing a probation order that served no additional purposes.
- [10]In the circumstances, given that the Crown does not oppose the making of a restorative justice process order (the only difference being the mechanism by which that occurred), it is unnecessary to canvas, in detail, the arguments, other than to say that the learned magistrate appears to have been affected (perhaps unsurprisingly) by the serious aspects of the dangerous operation charge, and has, in those circumstances, taken a view which did not appear to contemplate, appropriately, the otherwise sensible submission that the dangerous operation charge be subject to the restorative justice process along with the other charges, pursuant (the applicant submits) to YJA s 24A. The significance of such a referral is, firstly, that the court has to be satisfied that the police should have referred the offence to a restorative justice process (YJA s 24A(1)(a)), and then, of course, has to conclude that the restorative justice process was appropriate in the circumstances.
- [11]The deciding factors, which had to be considered by the police (and therefore by the court) included the seriousness of the offence; the fact that, in this case, the applicant was not under the influence of any substance; the vehicle was not stolen; there was no harm to the applicant, nor any member of the community (although perhaps more by good luck than good judgement); that no person or property was harmed because of the offence; the interest of the community and the child would have been better served by diverting an otherwise “good young man” from the court’s system; and increasing his awareness of the potential consequences of his offending, rather than having him proceed through the criminal courts (exhibit 1, paragraph 51 – outline of submissions on behalf of the applicant)).
- [12]As Mr Bennett has identified in his oral submissions to this court, there is, in a practicable consequence, almost no difference between a restorative justice process referral, pursuant to YJA s 24A and a diversion by the court, other than the clear effect of YJA s 254(4), which would disqualify a 17 year old child to the same extent as an adult, which would mean an automatic 6 month disqualification of this applicant’s licence.
As I have indicated, the Crown does not oppose the application being granted and an order made for a restorative justice process, the only difference is the mechanism by which that should occur. I am persuaded that it is appropriate that that the mechanism of the referral should be pursuant to YJA s 24A, given the circumstances of this offence, which is unusual, although serious; was committed by a young man with no criminal history whatsoever; in unusual circumstances, where remorse has been expressed; and none of the particularly concerning aggravating issues that have been identified in the submissions, as I have read out previously, have occurred.
Conclusion
- [13]In all of those circumstances, I conclude that it would have been appropriate for the police to refer the applicant to a restorative justice process on the dangerous operation charge as well as all of the other charges (for which orders have already been made by the learned magistrate of the Redcliffe Childrens Court), and accordingly, I consider that the application should be granted, and that the referral should proceed pursuant to YJA s 24A, rather than a court referral.
Orders
- [14]The formal orders the court makes are as follows:
- (1)The probation order made on 19 March 2021, in respect of the charge of dangerous operation of a motor vehicle, be discharged.
- (2)Substitute the following orders:
- (i)The charge be dismissed.
- (ii)The offence be referred to the chief executive for a restorative justice order.
- (iii)No order be made (by court or automatically) that the applicant’s driver’s license be disqualified.