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Horatio (a pseudonym) v Director of Public Prosecutions[2021] QCHC 29

Horatio (a pseudonym) v Director of Public Prosecutions[2021] QCHC 29

CHILDRENS COURT OF QUEENSLAND

CITATION:

Horatio (a pseudonym) v Director of Public Prosecutions [2021] QChC 29

PARTIES:

HORATIO (a pseudonym)

(applicant)

v

OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS

(respondent)

FILE NO:

221/21

DIVISION:

Childrens Court

PROCEEDING:

Sentence Review

ORIGINATING COURT:

Childrens Court at Richlands

DELIVERED ON:

4 August 2021

DELIVERED AT:

Childrens Court at Brisbane

HEARING DATE:

30 July 2021

JUDGE:

Richards P

ORDER:

  1. The sentence is set aside.
  2. The child is referred to a restorative justice process pursuant to s 164 of the Youth Justice Act 1992 (Qld).

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – where the child was sentenced to six months’ probation with no conviction recorded for one offence of stealing – where the child had previous convictions – where the child was 14 years old at the time of sentence – where restorative justice was not considered as required by the Youth Justice Act 1992 (Qld) – where the child’s background was not taken into account – where the Crown concedes the sentence was excessive – whether the sentence imposed was excessive in the circumstances

LEGISLATION:

Youth Justice Act 1992 (Qld) s 164

COUNSEL:

K Goyen for the Applicant

S McCrady 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]
    The child appeared in the Richlands Childrens Court on 13 May 2021 and pleaded guilty to a charge of stealing.  The stealing involved the theft of a carton of Corona Beers and two bottles of wine.  The total value of the property was $80.00 and most of the property was recovered.  He was sentenced to probation for six months with no conviction recorded.  He was 14 years old at the time of sentence.
  2. [2]
    The child had previous convictions.  On 26 October 2020 he was dealt with at the Childrens Court at Richland for a number of offences.  He would have been 13 years at the time of that sentence and he was subject to a court diversion referral.  On 4 February 2021, he was reprimanded in relation to two charges of stealing.  On 15 February 2021, he was sentenced to restorative justice for two charges of committing a public nuisance. At the time of the two sentences the child was 14 years of age and at the time of committing the offences. 
  3. [3]
    In this instance, the offence itself was minor. There was a circumstance of aggravation in that the child committed the offence on the day that he was reprimanded in relation to two other stealing offences. This seems to have particularly annoyed the Magistrate who stated[1]:

“It’s a blatant – big raspberry blown at the laws of this State.  The police get involved.  They’ve got to go and track him down, recover property.  The people lose $80 or part thereof because only something – only part of it’s recovered, and he thinks it’s probably a big joke.  Probably thinks it’s a big joke today.”

  1. [4]
    The learned Magistrate did not consider restorative justice at any stage during the sentencing process, as he was required to under the Youth Justice Act 1992 (Qld), nor did he take into account the child’s background.  He was only 14 years of age.  He was born deaf which was not discovered until he was three years of age.  He had intensive therapy until he was seven years old, at which time he regained his hearing. Despite this, the child cannot read or write.  His mother has been his fulltime carer since he was five years old, however his mother has had significant health problems herself, having been in and out of hospital this year. 
  2. [5]
    Since the offending, the child had managed to stop drinking, as his drinking was an issue at the time. In addition to this, he hadn’t been back before the Court for any similar offending since February 2021.  Youth Justice indicated that he had been compliant with the restorative justice process, had been attending appointments as required and had moved through the process appropriately. 
  3. [6]
    In an affidavit tendered to the court Ms Goyen affirmed she had spoken to Ms Zancola, an officer at the Western Districts Youth Justice Service Centre.  Ms Zancola confirmed that in respect of a court diversion referral for restorative justice, neither of the conferences had occurred and the child had not yet participated in the process. She further advised under the referral that drug and alcohol counselling, education and other support would be available to the child, as it would under a probation order. 
  4. [7]
    The Crown concedes that the sentence of six months’ probation for one charge of shoplifting is clearly excessive, it is disproportionate to the gravity of the offending and there was no additional purpose for imposing probation.  Further to this, I also note that the totality principle was not appropriately considered. 
  5. [8]
    At the hearing of this matter it was indicated that the child was willing to participate in restorative justice. Restorative justice is clearly the appropriate sentence given the child’s age and personal circumstances. 

Order

  1. [9]
    The sentence is set aside. The child is referred to a restorative justice process pursuant to s 164 of the Youth Justice Act 1992 (Qld).

Footnotes

[1] T1-5 l 15.

Close

Editorial Notes

  • Published Case Name:

    Horatio (a pseudonym) v Director of Public Prosecutions

  • Shortened Case Name:

    Horatio (a pseudonym) v Director of Public Prosecutions

  • MNC:

    [2021] QCHC 29

  • Court:

    QChC

  • Judge(s):

    Richards P

  • Date:

    04 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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