WO v Office of the Director of Public Prosecutions
[2023] QCHC 13
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- WO v Office of the Director of Public Prosecutions[2023] QCHC 13
- Add to List
WO v Office of the Director of Public Prosecutions[2023] QCHC 13
WO v Office of the Director of Public Prosecutions[2023] QCHC 13
CHILDRENS COURT OF QUEENSLAND
CITATION: | WO v Office of the Director of Public Prosecutions (Qld) [2023] QChC 13 |
PARTIES: | WO (applicant) v OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS (respondent) |
FILE NO/S: | 57 of 2022 |
DIVISION: | Childrens Court of Queensland |
PROCEEDING: | Sentence Review |
ORIGINATING COURT: | Mareeba Childrens Court |
DELIVERED ON: | 4 August 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7 July 2023 |
JUDGES: | Richards P |
ORDER: | The application is allowed. The sentences set aside. In relation to the breach of probation and community service, the breach is proved and no further action is taken. In relation to the breach of a supervised release order, the applicant child is ordered to serve 47 days detention. In relation to the offences of common assault and attempted enter premises and commit an indictable offence, the child is sentenced to a good behaviour bond for 6 months. No convictions recorded. |
CATCHWORDS: | CRIMINAL LAW – SENTENCE – APPEAL AGAINST SENTENCE – where the child applicant was guilty of common assault and attempted enter premises and commit an indictable offence, and breached a supervised release order and community-based orders – whether the sentencing magistrate erred in resentencing the child applicant without knowledge of the facts of the original offences CRIMINAL LAW – SENTENCE – APPEAL AGAINST SENTENCE – where the sentencing magistrate recorded a conviction against the child applicant – whether it was appropriate to record a conviction against the child applicant |
LEGISLATION: | Youth Justice Act 1992 (Qld) s 249, s 249 |
CASES: | R v SCU [2017] QCA 198 |
COUNSEL: | R Cavalli for the applicant A Worthington for the respondent |
SOLICITORS: | Legal Aid For the applicant Office of the Director of Prosecutions for the respondent |
Introduction
- [1]The applicant child was sentenced on 17 October 2022 in relation to charges of common assault and attempted enter premises and commit an indictable offence. At the same time the Magistrate breached the applicant child in relation to community- based orders imposed on 13 January 2021 and resentenced the child to three months detention followed by 12 months probation and 73.50 of community service for each offence. Convictions were recorded. The child was also subject to a supervised release order at the time of the new offences and he was ordered to serve the unexpired portion of that detention order.
- [2]The facts of the new offending are as follows:
- On 9 August 2022, the child was in the Cleveland Youth Detention Centre. At approximately 7.06pm a youth detention officer attended at room 6. The complainant opened the door to the cell and the applicant child threw a black shoe at the complainant hitting him in the face (common assault).
- On 1 September 2022, the child together with a co-offender went to the front door of a residence. The child went to open the door of a Nissan Navara and an outside light came on and the child and co-offender left (attempted enter premises and commit an indictable offence).
- [3]The applicant child was 14 at the time of the sentencing. He had been in detention for 35 days. He is now 15 years and six months.
The sentence hearing
- [4]A pre-sentence report was provided which indicated that he was initially released from Cleveland Youth Detention Centre on 11 August 2022. Upon his release, he was subject to a supervised release order, probation and community service. He was originally sentenced to probation on 26 July and 28 October 2021. At that stage he was 13 years old. Those probation orders were breached and he was resentenced in relation to those offences on 13 January 2022 to probation for 12 months together with 100 hours community service. The new charges breach both the supervised release order and the combined probation and community service order.
- [5]In relation to his performance on probation, the youth justice representative indicated that he had reported on three out of nine occasions and he had attended programs including Community and Transition to Success on 14 out 15 occasions and had completed 26 and a half hours of his 100 hours order. [the pre-sentence report states that he completed 36.25 hours of his community service].
- [6]He has been diagnosed with an intellectual disability and hearing and speech impairments. He had a NDIS plan which supported him three to four times a week to help him with health appointments, activities and outings and he apparently had a strong connection with his FlexiChoice support worker. There was a current review being undertaken for the NDIS with the hope that he would get support seven days a week.
- [7]The pre-sentence report indicated that from about 2017 (when he was nine years of age) his school attendance declined to 43 percent. Between 2017 to 2020 it had further declined to 27 percent. He was assessed as being in the extremely low range of intelligence and it was suggested that these deficits manifested in a limited ability to form close relationships, poor impulse control and low academic achievement. They were exacerbated by instability resulting from inconsistent parenting. He has a reduced ability to problem solve, process cues, apply pro-social judgment and develop and maintain relationships across all domains. He has significant difficulties in the area of working memory and processing speed meaning he was not able to rapidly transmit critical information into action or hold in his mind information while performing tasks associated with that information. It was also noted he had limited ability to care for himself. A report commissioned by Legal Aid dated 27 May 2023 confirmed these issues. His intellectual disability affects his culpability in relation to his offending.
The breach proceedings
- [8]The Crown concedes that the appeal should be allowed in relation to the recording of convictions and the breach proceedings.
- [9]Section 245 of the Youth Justice Act provides:
- “245Court’s power on breach of a community based order other than a conditional release order
- A court that acts under this section may—
- for a probation order—extend the period of the order, but not so that the period by which the order is extended is longer than the period for which the order could be made under sections 175(1)(d), 176(1)(a) and 180(3); or
- (aa)for a graffiti removal order—
…
- for a community service order—
- increase the number of community service hours, but not so that the total number of hours is more than the number allowed under section 175(1)(e); or
- extend the period within which the community service must be performed, but not so that the extended period ends more than 1 year after the court acts under this section; or
…
- for any community based order—
- vary another requirement of the order other than the requirement that the child abstain from violation of the law; or
- discharge the order and resentence the child for the offence for which the order was made as if the child had just been found guilty before the court of that offence; or
- on the undertaking of the child to comply in all respects with the order, take no further action.”
- [10]When resentencing the child the court needs to further consider compliance with the orders:
- “249Matters relevant to making further order
- This section applies to a court if, under this division, it discharges a community based order, other than a conditional release order, and resentences the child for the offence in respect of which the order was made.
- The court must have regard to—
- the reasons for making the order; and
- anything done by the child in compliance with the order.”
- [11]In relation to the probation order, it is noted that there was a degree of compliance and no information was offered in relation to his initial performance on probation. Further, it is noted that the child had effectively been on probation continuously on these same offences since 6 July 2021 and prior to that he had been on probation since 25 September 2020.
- [12]The Magistrate was entitled to resentence the child in relation to the offences for which he was on probation and community service given the breaching offences. However, in order to resentence the child pursuant to s 245(1)(d)(ii), the Court was required to sentence him as if the child had just been found guilty of the offences. It follows that in order to sentence a child as if he had just been found guilty of the offence the court would have to have some knowledge of what facts of the offences were. No facts were placed before the court in relation to the original offences. The Magistrate clearly erred in resentencing the child without knowing the facts of the offending.
- [13]In conducting this review, I also have not been given any information on the facts of the offences and am therefore similarly unable to resentence the child. In those circumstances and given the dated nature of the original offences, the only appropriate order is to note the breaches and take no further action. The Crown concedes that this is the appropriate order in the circumstances of this case.
The supervised release order
- [14]In relation to the supervised release order, the Magistrate imposed the unserved portion of the order. It is accepted by all the parties that the calculation given to the Magistrate was incorrect and that in fact the Magistrate was not told of 38 days of remand credit that had to be taken into account on the sentence. Therefore, a sentence of 47 days detention was appropriate in relation to the supervised release order.
The fresh offences
- [15]In relation to the fresh offences, given that the child has spent 35 days in detention and the offences themselves were not particularly serious. The child has a significant and relevant disability which affects his ability to act in a controlled and measured way. Given the amount of time spent on remand, it is appropriate that the child be placed on a good behaviour bond in relation to those offences.
The recording of convictions
- [16]In relation to the convictions, the lawyer for the child made no submissions about the recording of a conviction although the Magistrate did ask if he had anything to say. The Magistrate noted in his decision:[1]
His Honour: | Of course I appreciate that some people think that criminal convictions should never be recorded against young people. The fact of the matter is that the act provides at s 184 that it can be done. Now I am contemplating obviously recording convictions against him today Ms Hawton. If you have submissions on that … |
Ms Hawton: | No submissions your Honour |
His Honour: | Section 184 talks about the nature of the offence, your age and previous convictions, the impact the recording a conviction would have on your chance of rehabilitation of finding employment. I also have regard, of course, to those higher court decisions, particularly R v MDD [2021] QCA 235 on the fact that the previous President of the Court of Appeal also said of course and I understand that recording a conviction against a child – is a serious matter. |
- [17]In SCU,[2] the President of the Court specifically analysed the considerations whether or not to record a conviction. In that case, the child was charged with arson, stealing and attempted break and enter premises. It was noted at [94]:
“It has been emphasised repeatedly by authorities of this Court that the starting premise is that no conviction should be recorded. That being the position, a sentencing judge must be satisfied positively after considering the matters that the statute mandates should be considered that the proper exercise of discretion is in favour of recording a conviction. This is not a simple task as the cases considered by this Court have shown. In R v KU and Ors a conviction was recorded in a case in which youths aged between 13 and 15, all with previous convictions, raped a 10 year old girl. In R v JO, 20 Holmes JA described the offence in R v KU as one that was “inherently so serious that a conviction must be recorded”. Yet, in R v MBQ, an appeal by the Attorney-General, the Court refused to disturb a judge’s refusal to record a conviction in a case of penile-vaginal rape of a three year old by a 12 year old despite the Court’s observing that such an offence would “ordinarily suggest that the recording of a conviction is warranted”. And in R v DAU, an appeal by the Attorney-General, the Court refused to disturb a decision not to record a conviction in a rape case in which a two year period of detention had been ordered.”[3]
- [18]The Court then went on to discuss the errors the Judge made in recording a conviction against the applicant. It noted that deciding to record a conviction because of the seriousness of the offending with no other factors is not in itself a process of reasoning. Secondly, a decision to order detention does not necessarily call for a conviction to be recorded and conversely where detention is not ordered convictions may be required having regard to all the factors in the case. The Court noted at [101]:
“Fourth, even assuming that the offence of arson was so serious that its commission justified recording a conviction, the same cannot be said of the other two offences, one a minor stealing offence and the other an attempted break and enter with intent. His Honour’s reasoning about the “egregiousness” of arson is incapable of explaining his decision to record convictions in respect of the other two offences.”[4]
- [19]In this case, the Magistrate recorded convictions in relation to not only the common assault and the attempted break and enter - which in themselves were not particularly serious offences - but also all of the offences for which he resentenced on the breach of probation and community service some of which involved mere traffic matters. It goes without saying that the Magistrate did not consider each of the individual offences and make a considered decision as to whether to record convictions in relation to those offences. In fact he was not even aware of the details of the facts of most of those offences.
- [20]In all of the circumstances, given the age of the child, the intellectual disability of the child and the positive attachment he now has to his NDIS workers together with the nature of the offences it would be inappropriate at this stage to order convictions be recorded.
ORDER
- [21]The application is allowed. The sentences set aside. In relation to the breach of probation and community service the breach is proved and no further action is taken. In relation to the breach of a supervised release order the applicant child is ordered to serve 47 days detention. In relation to the offences of common assault and attempted enter premises and commit an indictable offence the child is sentenced to a good behaviour bond for 6 months. No convictions recorded.