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Beatrix (a pseudonym) v Office of the Director of Public Prosecutions[2021] QCHC 31

Beatrix (a pseudonym) v Office of the Director of Public Prosecutions[2021] QCHC 31

CHILDRENS COURT OF QUEENSLAND

CITATION:

Beatrix (a pseudonym) v Office of the Director of Public Prosecutions [2021] QChC 31

PARTIES:

BEATRIX (a pseudonym)

(Applicant)

v

OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS

(Respondent)

FILE NO:

260/21

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:

28 July 2021

JUDGE:

Richards P

ORDER:

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

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – where the child was sentenced to 12 months’ probation with no convictions recorded for nine offences – where the offences were relatively minor – where the child was 15 years old at the time of offending and at sentence – where the child had no criminal history –  where no express or implied reference to a court diversion or presentence referral was made as required under the Youth Justice Act 1992 (Qld) – 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:

M Coburn for the Applicant

B Reynolds 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 applicant was sentenced in the Richlands Childrens Court on 10 June 2021. He pleaded guilty to charges of; contravene a direction or requirement on 8 March 2021, possession of dangerous drugs and receiving tainted property on 13 April 2021, possession of a knife in a public place and possession of tainted property on 26 April 2021, possessing dangerous drugs and possession of tainted property on 22 May 2021 and possessing dangerous drugs and possession of property suspected of having been used in connection with a commission of a drug offence on 6 June 2021.
  2. [2]
    At the time of the offending and at sentence the child was 15 years of age. He was sentenced to 12 months probation with no convictions recorded.
  3. [3]
    The facts of the offending are as follows:
    1. (a)
      On 22 February 2021 the child was given a requirement to attend a drug diversion program. He agreed and then failed to attend the program.
    2. (b)
      On 26 April 2021 he was arrested. When police searched him, they located a small knife with a black handle in his bag.
    3. (c)
      Again, on 26 April 2021 police found a grey Apple iPhone 12 in the child’s possession which did not belong to him.
    4. (d)
      On 13 April 2021 in the early hours of the morning the child was detained and was in possession of stolen property as well as 15 cannabis seeds, a drivers’ licence in the name of a victim of a burglary, a Mastercard and a Myer gift card.
    5. (e)
      On 22 May 2021 the child was stopped because he had no fare to ride the train. Police identified that he smelt of cannabis. He was searched and found to have a small pouch under his jumper. Inside the pouch was cannabis and credit cards belonging to somebody else.
    6. (f)
      On 6 June 2021 at 8.45pm the child was searched by police and was found in possession of a butt of cannabis weighing approximately one gram and a manual grinder with cannabis residue on it.
  4. [4]
    The child’s parents were refugees from Tanzania, he is not currently attending school but was linked with Challenge Employment and looking for work in the construction industry. He acknowledged that he had drug issues and started smoking cannabis when he was in Grade 8. He had indicated a desire to address his ongoing use of cannabis.
  5. [5]
    The matter was an early plea of guilty. He had no previous convictions; he was subject to a court diversion referral but that was for offending that post dated this offending. The Magistrate noted that he needed some supervision and defence submitted that probation was within range. Youth Justice made no sentence submissions and neither did the prosecution.
  6. [6]
    The Magistrate indicated he was concerned about the child’s use of drugs at such a young age, that he was offending in groups and that he may have been using the tainted property to support his drug habit. The Magistrate concluded the most appropriate thing was to place the child on probation for 12 months.
  7. [7]
    The Crown concedes the sentence is excessive. The Crown submits that there was no express or implied reference to consideration of court diversion or presentence referral which of course is required under the Youth Justice Act 1992 (Qld). However, even if the Magistrate had considered restorative justice to be inappropriate, the length of time to be imposed in relation to the probation was excessive having regard to the nature of the offending, his age and his lack of criminal history. A restorative justice order, if it had been considered, would have provided supervision for the child in the same way that probation could. Further, it is accepted that the charge of contravention of a direction or requirement was unable to form part of the probation order in any case as it was a non-serious offence.
  8. [8]
    The sentence is manifestly excessive. A term of 12 months’ probation (the maximum amount of probation that could have been imposed) for a first-time offender for minor drug offences and possessing tainted property, was outside the sentencing range.
  9. [9]
    A referral to a restorative justice process would not have been a lenient outcome. The referral would require the child to attend ongoing interactions with Youth Justice, for him to face the effects of his offending behaviour and to do so in the presence of family member. In addition, the remedial outcomes would no doubt have had a supervisory element and if he did not comply with the order he could be brought back to the Court for resentencing.
  10. [10]
    Given the child’s admission that he had a drug problem, it was appropriate that the child be given some supervision. Supervision can be affected by way of the restorative justice process.

Order

  1. [11]
    The application is allowed, the sentence is set aside and the child is referred pursuant to s 164 of the Youth Justice Act 1992 (Qld) to participate in a restorative justice process.
Close

Editorial Notes

  • Published Case Name:

    Beatrix (a pseudonym) v Office of the Director of Public Prosecutions

  • Shortened Case Name:

    Beatrix (a pseudonym) v Office of the Director of Public Prosecutions

  • MNC:

    [2021] QCHC 31

  • 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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