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William (a pseudonym) v Director of Public Prosecutions[2021] QCHC 28

William (a pseudonym) v Director of Public Prosecutions[2021] QCHC 28

CHILDRENS COURT OF QUEENSLAND

CITATION:

William (a pseudonym) v Director of Public Prosecutions [2021] QChC 28

PARTIES:

WILLIAM (a pseudonym)

(applicant)

v

OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS

(respondent)

FILE NO:

249/21

DIVISION:

Appellate

PROCEEDING:

Sentence Review

ORIGINATING COURT:

Magistrates Childrens Court at Redcliffe

DELIVERED ON:

3 August 2021

DELIVERED AT:

Childrens Court at Brisbane

HEARING DATE:

20 July 2021

JUDGE:

Richards P

ORDER:

  1. The sentences of detention are set aside.
  2. The child is sentenced to three months’ detention to be served as a conditional release order in relation to the following charges:
    1. a.
      Entering a dwelling and commit indictable offence (two charges);
    1. b.
      Unlawful use of motor vehicle (two charges); and
    1. c.
      Dangerous operation of a motor vehicle.
  3. The child is formally reprimanded in relation to three charges of fraud and one charge of driving a motor vehicle without a drivers’ license, never held a license. 
  4. No convictions are recorded.
  5. The child is to report within 24 hours of his release from current custody to Youth Justice at Redcliffe.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – where the child was sentenced for a series of offences to 8 months’ detention with release after having served 50 percent – where all sentencing options had not been considered – where a conditional release order was not considered by the Magistrate – where the child had low intellectual functioning – where the child had a prejudicial background – where the child had lost a friend prior to the offending – where the child was 16 years old at the time of the offences and sentence – whether the sentence was excessive in the circumstances

LEGISLATION:

Youth Justice Act 1992 (Qld) s 208

CASES:

R v MDD [2019] QCA 197

R v SCU [2017] QCA 198

COUNSEL:

L Fabian for the applicant

Ms K M McFarlane for the respondent

C Pearse for Youth Justice

SOLICITORS:

Legal Aid Queensland for the applicant

Office of the Director of Public Prosecutions for the respondent

Introduction

  1. [1]
    On 25 June 2021 the applicant pleaded guilty in the Redcliffe Childrens Court to a series of offences occurring between 4 May 2021 and 18 May 2021.  He was sentenced to a total of eight months’ detention to be released after serving 50 percent of that time.  Thirty-eight days pre-sentence custody was declared and no convictions were recorded.  He was granted bail pending appeal on 8 July 2021. As a result he has now spent 51 days in custody for these offences.

Circumstances of offences

  1. [2]
    The circumstances of the offences are below:
  • Enter dwelling and commit indictable offence between 4 May 2021 and 7 May 2021.  The child entered a residence and stole a handbag and a set of car keys which were used to steal a BMW.
  • Unlawful use of a motor vehicle and fraud.  On 6 May 2021 the child put $61.56 worth of petrol in that BMW at a fuel station and left without paying.
  • Unlawful use of a motor vehicle between 5 May 2021 and 8 May 2021.  The child was a passenger in a Volkswagon that was stolen from Broadbeach Waters on 6 May 2021.
  • Fraud and stealing on 12 May 2021.  The child attended a 7-Eleven fuel station in Aspley and put $75.07 into an Audi vehicle that was reported as stolen.  He later put a further $64.00 worth of fuel into the Audi at Geebung and drove away without paying.
  • Enter a dwelling, commit indictable offence on 15 May 2021.  He entered a house and stole electronics, clothing, sunglasses and car keys for a Mercedes and a Jaguar.  Both of those vehicles were taken.
  • Stealing and fraud on 15 May 2021.  The child put $58.83 worth of fuel into the Mercedes and later $47.22 worth of fuel into the Mercedes and drove away without paying.
  • Unlawful use of a motor vehicle and dangerous driving of a motor vehicle on 18 May 2021.  He was seen driving the Mercedes in Morayfield.  Police followed him.  He travelled at speeds in excess of 130 kilometres per hour through traffic and went through a red light.  The vehicle eventually came to a stop due to damage of the front tyres and he was captured.  At the time he did not have a drivers licence.
  1. [3]
    The child had a six page criminal history including offences of assault occasioning bodily harm and drug offences.  He had five previous convictions for unlawful use of a motor vehicle and seven for entering premises.  He had previously been sentenced to probation and community service.  He was subject to community service at the time of committing the offences and the pre-sentence report indicated he had completed 42 hours and 45 minutes of the order.
  2. [4]
    The pre-sentence report indicated that the child had a disrupted early childhood.  His parents separated due to domestic violence and he was removed from the care of his mother due to her inability to care for her children for five years.  He was returned to her care from 2011 to 2018 during which time the family experienced significant housing instability and homelessness.  He had extremely low intellectual functioning and as a result it was suggested that his low level cognitive functioning paired with his disengagement from pro social activities, increased his susceptibility to forming connections with anti-social peers and adopting a pro criminal orientation.  In 2019 he lost a close friend in a motor vehicle incident and he had turned to polysubstance abuse and self-harm.  Additionally, his father had been frequenting the home that he was living in which resulted in increasing conflict and chaos.
  3. [5]
    Section 208 of the Youth Justice Act provides:

“208 Detention must be only appropriate sentence

A court may make a detention order against a child only if the court, after—

  1. (a)
    considering all other available sentences; and
  1. (b)
    taking into account the desirability of not holding a child in detention;

is satisfied that no other sentence is appropriate in the circumstances of the case.”

  1. [6]
    As was noted in R v SCU [2017] QCA 198 Sofronoff P stated[1]:

“The effect of the provisions of the Youth Justice Act that I have referred to is that the Act is emphatic about the requirement that a court give consideration to all statutory factors relevant to a particular case, as well as the facts of the case itself in the ordinary way, before deciding upon an appropriate sentence to be imposed upon a child. At the forefront of the strictures imposed by the Act is the obligation of a court to consider all other options that are reasonably available before imposing a sentence of detention. Even at that point, a court must consider whether a conditional release order can properly be put to one side in favour of actual immediate detention of a child.”

  1. [7]
    In this case the Magistrate was concerned about the previous criminal history of the child and the fact that he previously had probation, community service and diversionary sentencing options.  He noted that this was an increase in his offending behaviour in terms of seriousness.  He stated[2]:

“Unfortunately, all sentencing options, including diversion, have been deployed.  And none has worked.  This is now a step up in his criminal activity with a dangerous operation introducing a new element to the offending.”

  1. [8]
    It was not the case that all sentencing options had been deployed, the child had never been subject to a conditional release order.
  2. [9]
    The sentencing remarks of the Magistrate were interrupted by the Police Prosecutor who fairly placed on the record that the child was only subject to community service during the period of the offending and that order did not offer any therapeutic assistance from the Department.  It was then noted by the officer that a conditional release order offered intensive therapeutic options for the young person and the community and that non-compliance would have him back before the Court whereupon he could then serve a period of detention.  The Magistrate however was not convinced by that analysis and noted that he took into account the prevalence of the offending, the community attitudes towards the offending, particularly the dangerous driving and that the primary purpose in sentencing this young boy was deterrence.  The Magistrate proceeded to sentence him to eight months’ detention. 
  3. [10]
    No pre-sentence report was ordered in relation to the fraud charges.  Therefore, the Magistrate was unable to impose the sentence he did on all the charges. The Crown concedes this point but also submits that a sentence of detention without a conditional release order was a sentencing error. 
  4. [11]
    In R v MDD[3] Davis J observed:

Even if ultimately detention is ordered, as 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. The sentencing remarks here do not explain why the options of the making of a restorative justice order or a conditional release order were rejected in the face of a pre-sentence report which assessed the applicant as suitable for both. For these reasons, the sentencing process miscarried.”

  1. [12]
    In raising the question of deterrence in his sentencing remarks, the Magistrate seemed to be referring to the principle of general deterrence in sentencing, noting that stealing cars and dangerously driving them was a consistent pattern of offending of young people in the child’s cohort.  In that regard the child’s intellectual functioning was not taken into account in deciding the appropriate sentence. 
  2. [13]
    The pre-sentence report talks about him being easily led because of his lack of intellectual capacity, and of course his intellectual capacity was a factor that should have presented as strong mitigation on sentence.  This balanced against the child’s disadvantaged background, the tragedy of losing a friend in 2019  and the fact that he was a young boy who had never been subject to an intensive corrections order leads to a conclusion that the sentencing discretion has miscarried.

Order

  1. [14]
    Sentences of detention are set aside, the child is sentenced to three months’ detention with a conditional release order for the following charges, entering a dwelling and commit indictable offence by two, unlawful use of motor vehicle by two, dangerous operation of a motor vehicle.  The child is formally reprimanded in relation to three charges of fraud and one charge of driving a motor vehicle without a drivers’ license, never held a license.  No convictions are recorded. 
  2. [15]
    In addition, the child is to report within 24 hours of his release from current custody to Youth Justice at Redcliffe.

Footnotes

[1] R v SCU [2017] QCA 198, [53].

[2] Transcript of Decision, 25 June 2021, pg 3 l 31.  

[3] [2019] QCA 197, [58].

Close

Editorial Notes

  • Published Case Name:

    William (a pseudonym) v Director of Public Prosecutions

  • Shortened Case Name:

    William (a pseudonym) v Director of Public Prosecutions

  • MNC:

    [2021] QCHC 28

  • Court:

    QChC

  • Judge(s):

    Richards P

  • Date:

    03 Aug 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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