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John (a pseudonym) v R[2021] QCHC 6

CHILDRENS COURT OF QUEENSLAND

CITATION:

John (a pseudonym) v R [2021] QChC 6

PARTIES:

JOHN (a pseudonym)

(applicant)

v

THE QUEEN

(respondent)

FILE NO:

104/21

DIVISION:

Appeal

PROCEEDING:

Sentence Review Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

27April 2021

DELIVERED AT:

Brisbane

HEARING DATE:

30 March 2021

JUDGE:

Richards P

ORDER:

  1. Application for extension of time granted;
  2. Application for Sentence Review is refused.  

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – where application for sentence review filed out of time – where application for extension of time granted  – where the child was 11 years old at the time of the offending and in the care of the Department of Child Safety – where the child was sentenced to 12 months’ probation for various offences, including an  offence of violence – where child has a prejudicial background – where the child was engaging with school at the time – where the applicant submits a s 162 restorative justice referral would have been more appropriate given the nature of offending and the child’s age – where the child had assaulted the complainant before – where the child had a relevant criminal history and had been offending consistently – where the child was released from custody 24 hours before offending – whether the sentence imposed was excessive in the circumstances

LEGISLATION:

Youth Justice Act 1992 (Qld) s 162

COUNSEL:

Mr T Clements of Legal Aid for the applicant

Ms K Droney for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Office of the Director of Public Prosecutions for the respondent

Introduction

  1. [1]
    The applicant was sentenced on 4 November 2020 to 12 months’ probation.  No convictions were recorded.  He had pleaded guilty to offences of stealing on 18 October 2020, unlawful use of a motor vehicle on 24 October 2020, receiving tainted property between 24 and 27 October 2020, fraud on 26 October 2020 and assault occasioning bodily harm on 3 November 2020. 
  2. [2]
    The application for review has been filed out of time.  However, given the child’s age (11 years) and the Crown’s attitude (application for extension not opposed) it is appropriate to extend the time for the application to be made.
  3. [3]
    The offences are not particularly serious.  The stealing involved the child entering the office of the group home in which he was living and taking $75.00 from a purse of the carer in charge of the house that day.  The unlawful use of the motor vehicle involved him being a passenger in a car.  The receiving tainted property and fraud involved him being in the possession of a stolen credit card and using it to buy a drink.  The most serious offence was the assault occasioning bodily harm where he threw a phone at his carer upon being told that he could not use the Wi-Fi in the home.  The phone hit the carer in the right side of her face and caused bruising and swelling.
  4. [4]
    The child was 11 years of age at the time of the offence and is in the care of the Department of Child Safety.  Despite his young age he has a seven page juvenile criminal history.  His first appearance in court was on 9 June 2020 when he pleaded guilty to a large number of property offences and some offences of violence.  This offending covered the period from December 2019 to 18 May 2020 and takes up the first five pages of his criminal history.  He was then sentenced again on 16 September 2020 when he received a nine month probation order for offences committed between March and August of 2020.  He was on probation at the time of these offences.  He is currently subject to a restorative justice order.
  5. [5]
    At the time of sentence the Magistrate was aware of the child’s background having sentenced him before, therefore the details of his background are unfortunately not apparent from the sentencing proceedings.  An affidavit of Tim Clements filed on 25 March 2021 indicates that the Department of Youth Justice advises that the child has had a traumatic childhood being exposed to parental domestic violence and alcohol use and subject to excessive disciplinary action as a young child.  He has documented behavioural issues and Child Safety has been involved in his care since 2008.  No doubt because of these behavioural issues he was living in a group home at the time of the offending which is obviously not an ideal situation for an 11 year old child.
  6. [6]
    The Magistrate noted that the child had been in custody for two days when he was released on bail and returned to the residential care facility the day before he threw the phone at the carer.  The Magistrate was told that it was the same carer that he had  physically attacked previously and this was an aggravating factor.
  7. [7]
    In relation to that assault occasioning bodily harm it was put before the court on his behalf that he had used a volatile substance the night before, his sister who also resided at this home was coming into his room and she would not leave.  He became stressed out by her actions and then when he was told he could not use the Wi-Fi at the house this caused him to become more agitated, lose his temper and throw the phone which made contact with the care worker’s face.
  8. [8]
    There had been some signs of improvement in his behaviour.  He had been attending school more often.  He was in Grade 6 and he described building a fence, feeding chickens and playing sports.  It was indicated by Youth Justice that the school had taken a keen interest in him and even resulted in the principal showing steps of engaging with the child and picking him up for school.  It was submitted on his behalf that for a further period of 12 months’ probation was appropriate.
  9. [9]
    The primary submission of the applicant was that despite the relevant criminal history it was submitted that the 12 month probation imposed on an 11 year old child was disproportionate to the offending and the Magistrate did not place sufficient weight on his age and the fitting proportion between the offence and sentence.  It was submitted that a s 162 restorative justice referral would have been appropriate given the nature of the offending and the age of the child.
  10. [10]
    The Magistrate did have in mind the sentencing options open to him including a court diversion referral under s 162 of the Youth Justice Act 1992 (Qld).  He decided however that the nature of the offending, particularly the unlawful use of a motor vehicle and assault occasioning bodily harm considered in the context of his history of offending, meant that a more significant sentence than a court diversion referral was appropriate.  The Crown submits that having regard to the Youth Justice principle that the community should be protected from the offences that there was a sound reason for the Magistrate to impose an order of supervision on this young man.
  11. [11]
    It is true to say that the child is very young.  He is only 12 now, 11 at the time of the sentence and attends Grade 6 at the Weir State School.  The offending itself is not particularly serious with the exception of the assault occasioning bodily harm and the unlawful use of a motor vehicle, which involved him being a passenger in the vehicle rather than stealing or driving a stolen vehicle.  However, even at his tender age he has been involved in consistent offending since December 2019 through to this offending with little break in-between.  He has assaulted this particular carer before and he has declined to participate in alcohol and drug programs and the Yalga cultural mentoring programs.  Moreover, he was released from custody the night before he committed the assault occasioning bodily harm so was out for less than 24 hours before he offended again. 
  12. [12]
    In those circumstances it was reasonable in my view to dismiss a court diversion referral under s 162 of the Youth Justice Act and to decide that a further period of probation extending beyond his current term was appropriate.  This is particularly so in circumstances where he clearly comes into conflict with the child safety officers that are appointed to care for him and it enables him to have support from another department other than the department that has on more than one occasion complained about his criminal offending.
  13. [13]
    In all the circumstances it cannot be said that the sentence was excessive and the application is refused.

 

Close

Editorial Notes

  • Published Case Name:

    John (a pseudonym) v R

  • Shortened Case Name:

    John (a pseudonym) v R

  • MNC:

    [2021] QCHC 6

  • Court:

    QChC

  • Judge(s):

    Richards P

  • Date:

    27 Apr 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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