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NG v Director of Public Prosecutions Queensland[2022] QCHC 8

NG v Director of Public Prosecutions Queensland[2022] QCHC 8

CHILDRENS COURT OF QUEENSLAND

CITATION:

NG v Director of Public Prosecutions Queensland [2022] QChC 8

PARTIES:

NG
(applicant)

v

Director of Public Prosecutions (QLD)
(respondent)

FILE NO/S:

84/22

DIVISION:

Appellate

PROCEEDING:

Application for Sentence Review

ORIGINATING COURT:

Redcliffe Childrens Court

DELIVERED ON:

6 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

30 March 2022

JUDGES:

Richards P

ORDER:

Application allowed. Sentence set aside.

The child is ordered to participate in a restorative justice process pursuant to s 175(1)(db) Youth Justice Act

CATCHWORDS:

CRIMINAL LAW – SENTENCE – APPEAL AGAINST SENTENCE – where the child was years of age with no criminal history – where the child was sentenced to a 9-month probation order – whether the sentence was manifestly excessive – whether the court did not give adequate consideration to the appropriateness of a restorative justice process.

LEGISLATION:

Youth Justice Act 1992 (QLD) s 175(1)(db)

COUNSEL:

Cavalli for the Applicant

Byrne for the Respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Office of the Director of Public Prosecutions (QLD) for the respondent

Introduction

  1. [1]
    On 6 December 2021, the applicant child was sentenced in the Redcliffe Childrens Court in relation to two charges of receiving tainted property, one charge of attempt to enter dwelling and commit indictable offence, four charges of unlawful use of a motor vehicle, four charges of stealing, one charge of enter premises with intent to commit indictable offence, five charges of enter dwelling and commit indictable offence, and one charge of enter premises and commit indictable offence. He received a nine-month probation order and convictions were not recorded.
  2. [2]
    At the time of the sentence he was 16 years of age. He was of Aboriginal background and had been in custody for five days. He had no criminal history.

Extension of time

  1. [3]
    There has been a delay in lodging the application for sentence review of approximately two months, however the child had not received advice about his rights in that regard until 3 February 2022. There were further delays caused by transcripts being requested and merit assessment. In any event, the Crown does not oppose the extension of time within which to hear this matter and I propose to proceed on that basis.

Facts

  1. [4]
    Between 27 October and 9 November 2021, the child received keys to a stolen Hyundai motor vehicle. On 29 October 2021, he and others walked through the side gate of a dwelling and attempted to open the rear door at an address but were unsuccessful. On that same day, he was in the front passenger seat of the Hyundai for which he received the keys and he pumped $74.83 of fuel into the vehicle. On 30 October 2021, he and others entered a Toyota SUV and conducted a search. No property was stolen. On that same day they entered a dwelling and were interrupted by the occupiers of the residence. They took keys, electrical goods, bank cards and other personal items. They then went to another residence, entered and stole bank cards, a garage door opener, motorcycle keys and a grey utility. He also put $76.05 worth of petrol into the Hyundai motor vehicle. On 2 November 2021, he and others entered through a rear unlocked sliding door and stole a wallet containing $100 cash and searched a motor vehicle that was parked in the garage. They were disturbed searching the motor vehicle. On 3 November 2021 they gained entry to a dwelling by the rear door and removed a set of vehicle keys. They were scared away by the family pet. They then approached another dwelling and removed car keys and searched the victim’s car, removing keys and sunglasses from the vehicle. Between 24 October and 27 October 2021, he and others entered a vehicle and searched it. House keys were stolen. Around the same time, he received keys for a stolen red Subaru wagon. He was seen in that wagon on 28 October 2021 as a passenger and he put $91.90 worth of petrol into it. On 23 November 2021, he was in the front passenger side of a stolen Kia van and he put $105.58 worth of petrol into that vehicle. On 18 November 2021, he and others went to an address at Newport and entered a vehicle which was parked in the driveway. They rolled the vehicle down the driveway and then ran away.
  2. [5]
    The child was 16 at the time of the sentences. He grew up in Caboolture and was raised by his mother, however she had been in gaol for the previous three months (this coincided with the period of the offending). His older sister was also on a return to prison warrant. His aunty, who was offering to take him to her home after sentence, was the carer of his younger sister. He had been living between two houses prior to his arrest. It was an early plea of guilty.
  3. [6]
    The prosecutor at sentence did not make submissions on penalty. The solicitor indicated;

“… he’s young and it’s my submission that these offences are serious enough to warrant him going straight on to a period of probation. Your Honour, it’s my submission your Honour can take into account that he’s been in custody since Thursday; so he’s a young man who’s never been in custody before previously. Further, he’s had an infection on his foot which has resulted in him spending a few nights in hospital, which has also caused him some issues”.[1]

It was submitted that six months would be appropriate.

  1. [7]
    The Magistrate in sentencing him said;

“I take into account the nature and circumstances of the charges, and I note the pleas of guilty. A reduction in penalty is given in recognition of the pleas. I note the relevant sentencing principles in the Youth Justice Act including the need to consider diverting young people from the Youth Justice system. I am of the view that, given the number and the nature and seriousness of these charges, that they are not best dealt with by way of a restorative justice order, that it does require some supervision of GB. He has managed to not commit any offences up until now, but he has really hit the big time with these. I am of the view that, perhaps, he is someone in need of some supervision and that rehabilitation is best (indistinct)”.[2]

  1. [8]
    In this case, there was very little information given about the child’s background, his educational standard, or his plans for the future other than the fact that his mother was in prison. What is clear is that he was a child whose home life had been disrupted by his mother’s incarceration, and that his offending occurred during a period of time when there was instability because of that event. His aunt indicated that he was now being offered stable accommodation away from his peers and away from the area of offending.
  2. [9]
    The Magistrate does not seem to have considered that the restorative justice order could have elements of supervision or that there was a period of time when the child was rudderless. It is fair to say that in this case, while the offences were serious, he was not the driver in the stolen vehicles and many of the entering offences involve entry of vehicles rather than dwellings. Fortunately, no one was harmed during the offending, and the child has indicated that he is willing to participate in restorative justice.
  3. [10]
    It was the incorrect submission by the solicitor to say that the offending was too serious for restorative justice. The process of referral involves preparation and discussion in circumstances where this child had not previously been before the courts. 
  4. [11]
    The Crown concedes that the matter could be appropriately dealt with under a restorative justice process. The child has indicated that he is willing to do so and, given those factors and the lack of consideration of restorative justice, in my view it is appropriate to make an order under section 175(1)(db)[3] that he comply with a restorative justice order. Given the number of offences and the period of time during which the offending took place, a diversionary referral is not appropriate.
  5. [12]
    The application is allowed. Sentence is set aside and in lieu thereof the child is ordered to participate in a restorative justice process pursuant to section 175(1)(db) of the Youth Justice Act.

Footnotes

[1] Transcript p 1-6 line 1.

[2] Transcript of decision p 3.

[3] Youth Justice Act 1992 (QLD).

Close

Editorial Notes

  • Published Case Name:

    NG v Director of Public Prosecutions Queensland

  • Shortened Case Name:

    NG v Director of Public Prosecutions Queensland

  • MNC:

    [2022] QCHC 8

  • 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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