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NIGHT v Director of Public Prosecutions[2022] QCHC 6

NIGHT v Director of Public Prosecutions[2022] QCHC 6

CHILDRENS COURT OF QUEENSLAND

CITATION:

NIGHT v Director of Public Prosecutions [2022] QChC 6

PARTIES:

NIGHT

(applicant)

v

Director of Public Prosecutions Queensland

(respondent)

FILE NO/S:

55 of 2022

DIVISION:

Appellate

PROCEEDING:

Application for sentence review

ORIGINATING COURT:

Maroochydore Childrens Court

DELIVERED ON:

6 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

29 March 2022

JUDGES:

Richards P

ORDER:

Application granted.

That the order made to reprimand the child on 9 February 2022 is discharged and substituted by the following orders:

  1. The charge be dismissed
  2. The child be referred to the Chief Executive for a restorative justice process pursuant to s 22 of the Youth Justice Act.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – APPEAL AGAINST SENTENCE – where the defendant was 17 years of age at the time of offending – where the defendant had no criminal or traffic history – where the defendant was reprimanded and sentenced to a 3-month disqualification from holding or obtaining a driver’s license – whether the sentence is manifestly excessive – whether the failure to order a restorative justice process amounts to an error.

INTERPRETATION – whether s 123 Youth Justice Act prevents a refusal of a s 24A application to be reviewed on the basis that a s 24A referral is not a ‘sentencing order’ – where a s 24A referral is available to the court pursuant to s 123(1)(c) Youth Justice Act.

LEGISLATION:

Transport Operations (Road Use Management) Act 1995 (QLD) s 86(2)(e)

Youth Justice Act 1992 (QLD) ss 24A, 22, 11, 123, Div 13, Sch 1

CASES:

NOR v Director of Public Prosecutions [2021] QChC 23

COUNSEL:

N Douglas for the applicant

B Crook for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions (QLD) for the respondent

Introduction

  1. [1]
    On 9 February 2022 the applicant child appeared in the Maroochydore Childrens Court on a charge of driving whilst a relevant drug was present in his blood/saliva. He was reprimanded and automatically disqualified from driving a motor vehicle for three months pursuant to section 86(2)(e) of the Transport Operations (Road Use Management) Act 1995 (QLD).
  2. [2]
    The applicant applies for review of that sentence on the basis that the sentence was excessive and that the learned Magistrate’s refusal to dismiss the charge and refer the matter to the chief executive for a restorative justice process pursuant to section 24A of the Youth Justice Act 1992 (QLD) amounts to an error.

Facts

  1. [3]
    On 13 November 2021 the applicant was pulled over whilst driving his silver Nissan Pulsar. At the time he held a provisional driver’s license (P1). He submitted to a roadside drug test which returned a positive indication to a relevant drug, namely delta-9-tetrahydrocannabinol. He made admissions to having smoked cannabis about 36 hours before driving.
  2. [4]
    The applicant was 17 years old. He had no criminal or traffic history. He had recently completed year 12 at Nambour State High and lived at home with his father and younger sister. His mother had passed away at age four, and he had been raised by his father since that time. He had been employed since he was 15 years of age, and at the time of the sentence, he held down two jobs where he worked between 30 and 35 hours each week. His employment includes shifts finishing at 11:00pm. He also assisted with picking up and dropping off his younger sister to school. His sister now has to walk 3km each way to get to school.
  3. [5]
    At the original hearing of this matter, a letter was tendered under the hand of the applicant’s father which indicated that the child is not a drug or alcohol user, that on the day of graduation he had been involved in a car accident and that evening attended a graduation party where he had been encouraged to smoke a joint. He called his father and asked him to come and pick him up because he didn’t like the feeling. It was the first time he had smoked marijuana and the first time that he had contacted his father in circumstances of that kind. His father’s employment was in the emergency department of the Nambour and Sunshine Coast University Hospital, so there had been many discussions within the family about the effects of drugs. His father told him that he was not to drive for 24 hours as the drugs could show up in his system and he followed that advice.
  4. [6]
    On 13 November 2021 he was on his way home after working a seven-hour shift when he was pulled over by police for a random breath test and was tested by police 36 hours after smoking the joint at the party. He was found to still have marijuana in his system.

The Law

  1. [7]
    The representative for the applicant at the initial hearing of this matter submitted that it should be dealt with by way of section 24A of the Youth Justice Act¸ which provides:

24A Childrens Court may dismiss charge if offence should have been referred to restorative justice process

  1. (1)
    If a child pleads guilty before a Childrens Court to a charge made against the child by a police officer, the court may dismiss the charge instead of accepting the plea of guilty if—
  1. (a)
    application is made for the dismissal by or on behalf of the child; and
  1. (b)
    the court is satisfied the offence should have been referred to the chief executive for a restorative justice process under section 22, regardless of whether or not the child admitted committing the offence to the police officer.”
  1. [8]
    In considering whether to act under section 24A, a court must be satisfied that the offence should have been referred to the chief executive for a restorative justice process under section 22. In considering that factor, the court should have regard to section 11 of the Youth Justice Act:

Police officer to consider alternatives to proceeding against child

  1. (1)
    Unless otherwise provided under this division, a police officer, before starting a proceeding against a child for an offence other than a serious offence, must first consider whether in all the circumstances it would be more appropriate to do 1 of the following—
  1. (a)
    to take no action;
  1. (b)
    to administer a caution to the child;
  1. (c)
    to refer the offence to the chief executive for a restorative justice process;
  1. (d)
    if the offence is a minor drugs offence within the meaning of the Police Powers and Responsibilities Act 2000 and the child may be offered an opportunity to attend a drug diversion assessment program under section 379 of that Act—to offer the child that opportunity in accordance with that section;
  1. (e)
    if the offence is a graffiti offence and the child may be offered an opportunity to attend a graffiti removal program under the Police Powers and Responsibilities Act 2000, section 379A—to offer the child that opportunity in accordance with that section.
  1. (2)
    The circumstances to which the police officer must have regard include—
  1. (a)
    the circumstances of the alleged offence; and
  1. (b)
    the child’s criminal history, any previous cautions administered to the child for an offence and, if the child has been in any other way dealt with for an offence under any Act, the other dealings.”
  1. [9]
    This is consistent with the Youth Justice Principles found in schedule 1 of the Act.
  2. [10]
    At the hearing of this matter, the Crown submitted that there is no power for a refusal of a section 24A application to be reviewed by the Court. This is because, the Crown submits, section 123 of the Youth Justice Act confines the powers of the Childrens Court Judge to reviewing sentence orders and a section 24A dismissal is not a sentence order. Section 123 states:

123 Review decision

  1. (1)
    On reviewing a sentence order, a Childrens Court judge may—
  1. (a)
    confirm the order; or
  1. (b)
    vary the order; or
  1. (c)
    discharge the order and substitute another order within the jurisdiction of the Childrens Court magistrate to make.
  1. (2)
    The judge may also make any other order a Childrens Court magistrate could have made in connection with the sentence order as confirmed, varied or substituted under subsection (1).”
  1. [11]
    A sentence order is defined in the Act as an order made under section 175 or 176 including a reprimand, the recording of a conviction, a conditional release order or an order under section 234 of the Act. I accept that the phrase “the order” in section 123(1)(a), (b) and (c) refers to the sentence order, however, section 123(1)(c) also confers the power to discharge the order and substitute another order that is within the jurisdiction of the Childrens Court magistrate to make. Given the overarching principles of the Act, there is no reason to interpret the phrase “another order within the jurisdiction of the Childrens Court magistrate to make” narrowly.  The power to discharge the order under section 1(c) brings with it a power to substitute any other order within the jurisdiction of the Childrens Court magistrate. Section 24A involves an order for dismissal of the charges and referral to a restorative justice process. That is an order that is within the jurisdiction of the Childrens Court magistrate and therefore available to the court on a review of the proceedings.

Discussion

  1. [12]
    At the sentence in this matter, the court was referred to NOR v Director of Public Prosecutions [2021] QChC 23. In that case His Honour Judge Dearden held that a child sentenced to probation for dangerous operation of a motor vehicle and evasion should have been referred pursuant to section 24A of the Youth Justice Act. The learned Magistrate distinguished the case on the basis that there was no alcohol or drugs involved in that case. That was a distinction without a difference of principle. In that case the Judge was also considering the issue of mandatory disqualification and of course it was a much more serious offence in that the child in NOR[1] was driving in a way that endangered the public. There is no suggestion in this case that the child was driving poorly. There was no danger to the public due to his manner of driving.
  2. [13]
    The Crown submits that even if there was a power pursuant to section 123 of the Youth Justice Act to make an order under section 24A to dismiss the charge, the applicant still cannot get over the hurdle that an order refusing to dismiss the charges is not related to an exercise of sentencing discretion. I accept that to be the case, however the argument is not that the refusal to dismiss the charge is appellable, rather that the decision to reprimand and to thereby disqualify the child is manifestly excessive given that there were other possibilities that were within the discretion of the court to consider.
  3. [14]
    In this case, it is clear that the Magistrate took into account irrelevant considerations in arriving at the sentence that he imposed on this child. When told that the marijuana was still in his system 36 hours later, the Magistrate commented that to show up 36 hours later the child must be a habitual user otherwise it would be metabolised. When it was pointed out that there was no evidence of that, the Magistrate commented that he had been to a couple of conferences.[2] The Magistrate was not an expert in this area nor was he giving evidence in the proceeding. His view of the applicant’s use of drugs was not based on any submissions or evidence in the proceeding and may have led to a view of the case which was not open. 
  4. [15]
    In the QP9 document[3] which is attached to the affidavit of Ms Siobhan Markwell, the arresting officer noted for the prosecutor that the defendant child had no previous traffic or criminal history but, due to the fact that the matter required a disqualification period, a caution was not suitable in this instance and therefore a notice to appear was served.
  5. [16]
    There is no apparent reason why the police are unable, pursuant to section 11 Youth Justice Act, to administer a caution or a restorative justice diversionary referral in a case such as this, and, in fact, they are required to consider the circumstances of the child in deciding whether to divert them away from the court process. The police did not do that in this case. They clearly felt bound to issue a notice to appear. They did not have to issue a notice to appear. The general provisions of the Youth Justice Act, and section 11 in particular, still apply in a case such as this where mandatory penalty provisions apply upon a finding of guilt.
  6. [17]
    The Magistrate, in sentencing the child and deciding to proceed by way of a reprimand, gave an example of a 40-year-old with no history testing positive for substances and then of course having to bear the burden of a mandatory disqualification.[4] That is a very unhelpful comparison as the considerations under the Youth Justice Act are very different to the considerations that apply to a mature adult, even where that adult may have an unblemished record.
  7. [18]
    He went on to say:

“That is why you are, as a provisional license holder at the age of 17 years – the intention parliament was that you would be sentenced in respect of mandatory periods of disqualification as if you were an adult because that is one of the issues that you have to abide by, of course, as a P plater. Triple zero and negative. Not 05, not just a bit in at – nil-nil. Again, I will put on the record I appreciate that these applications can be made pursuant to section 24A of the Youth Justices Act but I do not think it is appropriate to utilise that provision to get around specific legislation on the issue attached parliament’s intention.”[5]

  1. [19]
    There is no reason to conclude that the provisions contained in Division 13 of the Youth Justice Act were meant to override the Youth Justice Principles in schedule 1 of the Act and the preference for diversion from court for suitable cases.

Conclusion

  1. [20]
    It is hard to imagine a more suitable case for a diversionary restorative justice than the case of this particular young man who, having consumed an illegal substance in circumstances where he was in a moment of weakness tempted, phoned his father so that he did not drive home, and sought his father’s assistance. He then followed his father’s advice by not driving for the required period that his father advised. That mistake of fact does not excuse his behaviour but it does show that he followed advice and chose not to drive.  He was not driving erratically. He had significant need for his license including assisting his younger sister. He entered an early plea showing remorse. He was the perfect example of a child who should have been given a chance to be diverted away from the criminal justice system.
  2. [21]
    In the affidavit filed by Mr Nicholas Douglas, dated 24 March 2022, the Maroochydore Youth Justice Service Centre convenor Ms Terry Johnson indicated that there would have been interventions prioritised in this child’s case in relation to substance misuse as well as driving and road safety. A police officer would likely be invited to participate in a conference and they could supply confronting detail about traffic incidents that they had attended during which people had been killed or injured. They would further engage a substance misuse counsellor to participate in the restorative justice conference, explain the dangers of substance misuse and offer ongoing counselling and support. Further, the applicant’s family would be invited to participate. This would represent a significant consequence for the child.
  3. [22]
    The application is granted. The reprimand and subsequent license disqualification should be set aside. The order of the court is:
  1. That the order made to reprimand the child on 9 February 2022 is discharged.
  2. Substitute the following orders:
    1. The charge be dismissed
    2. The child be referred to the Chief Executive for a restorative justice process pursuant to section 22 of the Youth Justice Act.

Footnotes

[1] NOR v Director of Public Prosecutions [2021] QChC 23.

[2] Transcript 1-4 line 15-25.

[3] Exhibit SM1.

[4] Page 2 of the decision line 22-28

[5] Transcript decision page 2.

Close

Editorial Notes

  • Published Case Name:

    NIGHT v Director of Public Prosecutions

  • Shortened Case Name:

    NIGHT v Director of Public Prosecutions

  • MNC:

    [2022] QCHC 6

  • Court:

    QChC

  • Judge(s):

    Richards P

  • Date:

    06 May 2022

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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