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Matilda (a pseudonym) v Director of Public Prosecutions[2021] QCHC 8

Matilda (a pseudonym) v Director of Public Prosecutions[2021] QCHC 8

CHILDRENS COURT OF QUEENSLAND

CITATION:

Matilda (a pseudonym) v Director of Public Prosecutions [2021] QChC 8

PARTIES:

MATILDA (a pseudonym)

(applicant)

v

DIRECTOR OF PUBLIC PROSECUTIONS

(respondent)

FILE NO:

238/2021

DIVISION:

Children’s Court of Queensland

PROCEEDING:

Sentence Review Application

ORIGINATING COURT:

Childrens Court at Brisbane

DELIVERED ON:

18 May 2021

DELIVERED AT:

Childrens Court at Brisbane

HEARING DATE:

28 April 2021

JUDGE:

Richards P

ORDER:

  1. Application for sentence review is granted.
  2. The sentence is set aside. The sentence is substituted to the extent that an order for a restorative justice pursuant process to s 163 and s 164 of the Act take place.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the child was sentenced to three months’ probation and a restorative justice order for offences of enter premises and commit an indictable offence, unlawful use of a motor vehicle and driving without a licence all on the same date – where the offending was serious –  where the child was thirteen years old at the time of the offences – where the child was remorseful – where the child had no criminal history, was attending programs, was engaged within the community with plans for the future and was receiving counselling – whether it was just to impose both a restorative justice order and probation order

LEGISLATION:

Youth Justice Act 1992 (Qld)  ss 163, 164, 177, 178C, 192B, 193

CASES:

R v CCO [2020] QCA 231

R v Patrick [2020] QCA 51

COUNSEL:

Miss M Jones for the applicant

J Coghlan for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Office of the Director of Public Prosecutions for the respondent

Introduction

  1. [1]
    On 24 February 2021, the applicant child was sentenced in relation to offences of enter premises and commit an indictable offence on 30 January 2021, unlawful use of a motor vehicle and driving without a licence all on the same date. She was cautioned in relation to driving without a licence but for the other offences was sentenced to a combination of a three month probation order and a restorative justice order.
  2. [2]
    The child was 13 at the time of the offending. On 30 January 2021 between midnight and 5.15am the child entered the victim’s dwelling and stole a handbag containing cash and keys. The keys were used to steal a Toyota Prado. The vehicle was later sighted being driven dangerously through Townsville until, at 7.13am, the driver lost control of the vehicle and mounted the curb onto the footpath hitting a pole and causing the vehicle to roll. There were six occupants in the vehicle and this child was one of them. She was a passenger in the vehicle at the time of the impact although she had driven the car previously. Whilst in the car with detectives she and her friend were laughing about the car rolling and acting generally in a very immature fashion.
  3. [3]
    It was submitted at sentence on the child’s behalf that a restorative justice process should be imposed. She was 13 years at the time of the offences having been primarily raised by her grandmother. She was experiencing feelings of neglect because her father was never involved in her life and her mother has moved on to have other children and now resides in Charters Towers.
  4. [4]
    She attended school at Mungalla Silver Linings at Crystal Creek and attended there regularly. Her year level was year 9 but she had been completing year 11 curriculum. She was a bright young woman and she had articulated a desire to commence an apprenticeship in a trades industry when old enough. She has, when being looked after by her mother, experienced drug and alcohol use within the home environment and domestic violence and she received counselling and support in relation to that. She was attending weekly at the Townsville Aboriginal and Islanders Health Services, (‘TAIHS’) and since this incident, there has been a specific focus on therapy around the dangers associated with offending. She has also engaged with the Proud Warriors Program. She understood that her conduct was unacceptable and risky. She was remorseful and sorry for her actions. She pleaded guilty and had no criminal history. She was also involved in a local football tournament and had been unable to participate in that as a consequence of the offending because of her curfew.
  5. [5]
    In sentencing the child, the Magistrate indicated that there needed to be a balancing act between the seriousness of what happened and a need for rehabilitation. The Magistrate took into account that she was one of the drivers of the vehicle and although she was not driving at the time when it lost control that she was driving erratically. She was not charged with dangerous operation of a motor vehicle. The Magistrate went on to say[1]:

“I cannot accept that restorative justice alone for you is an appropriate penalty and as I said I’ve considered everything that I need to under the Youth Justice Act. I do consider that even if it is a short period of probation together with restorative justice that that would reflect the seriousness of the offences and also perhaps continue with the work that has been done to give you the skills and support so that you are not doing this sort of offence again.”

  1. [6]
    She then imposed a probation order and a restorative justice order.
  2. [7]
    In R v CCO[2], the Court of Appeal examined a sentence where a restorative justice order was imposed together with a probation order for an offence of dangerous operation of a motor vehicle causing grievous bodily harm. In that case the applicant was 17 at the time of the offences and 18 at sentence with no prior criminal history. He’d been driving dangerously in a vacant lot while the complainant and another person were in the tray of the vehicle. The vehicle rolled and part of it landed momentarily on the complainant’s back. He suffered significant physical and emotional injury as a result. The applicant was sorry for the offending. In discussing whether it was just to impose both a restorative justice order and probation order, Henry J noted[3]:

“The imposition of both a restorative justice order and a probation order is permitted by ss 177 and 178C of the Youth Justice Act. Doubtless there will be cases in which such a combination of orders is appropriate. However, as was emphasised by Sofronoff P in R v Patrick,[4] a sentencing court must determine the sentence to be imposed “by reference to some purpose or purposes”. The applicant’s complaint is that there was no legitimate purpose for imposing probation additionally to a restorative justice order.

Consideration of ground one requires some appreciation of the statutory requirements of a restorative justice order and a probation order, set out respectively at ss 192B and 193 Youth Justice Act. Those sections contain identical supervisory provisions requiring the child to report, abstain from violation of the law, comply with reasonable directions, report and receive visits as directed, notify change of address, employment or school, and not leave Queensland without permission.

The only difference in the sections’ requirements is that, on the one hand, s 192B requires the child to participate in a restorative justice process as directed and to perform his or her obligations under a restorative justice agreement made in consequence of that participation and, on the other hand, s 193 requires that the child must satisfactorily attend programmes as directed.”

  1. [8]
    The court noted in that case that a failure to comply with an agreement under a restorative justice order can trigger breach proceedings much in the same way as a failure to comply with a direction under probation order. It was noted that a restorative justice order can contain the same type of supervision requirements as a probation order and there was therefore no additional purpose to be served by also imposing probation. In those circumstances, it was said to be inexplicable that both orders were imposed and therefore bespoke of error.
  2. [9]
    In this case, the Crown concedes that a review should be allowed and the matter diverted to restorative justice process pursuant to s 163 and s 164 of the Act. This is because the child, although she committed a serious offence, was acting out of character. She had no criminal history. She was engaged within the community with plans for the future, was receiving counselling, was involved in programs offered to her and was engaged with services such as the TAIHS. In those circumstances an additional penalty of probation was not required. Further, in this particular case, a probation order of three months would serve little additional purpose to a restorative justice order as the restorative justice order would take place over the same period of time.
  3. [10]
    I accept the submissions made by the parties that the probation order was an unnecessary addition to the sentence and was indicative of an error in the sentence. The sentence is set aside and the sentence is substituted to the extent that an order for a diversionary restorative justice process pursuant to s 163 and s 164 of the Act take place.

Footnotes

[1] P4 LL10.

[2] [2020] QCA 231.

[3] At [14].

[4] [2020] QCA 51, [42].

Close

Editorial Notes

  • Published Case Name:

    Matilda (a pseudonym) v Director of Public Prosecutions

  • Shortened Case Name:

    Matilda (a pseudonym) v Director of Public Prosecutions

  • MNC:

    [2021] QCHC 8

  • Court:

    QChC

  • Judge(s):

    Richards P

  • Date:

    18 May 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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