R v TA
[2023] QCHC 2
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R v TA[2023] QCHC 2
R v TA[2023] QCHC 2
CHILDRENS COURT OF QUEENSLAND
CITATION: | R v TA [2023] QChC 2 |
PARTIES: | THE KING v TA (defendant) (anonymised) |
FILE NO: | 116 of 2022 |
DIVISION: | Criminal |
PROCEEDING: | Sentence |
ORIGINATING COURT: | Childrens Court at Cairns |
DELIVERED ON: | 21 February 2023 ex tempore |
DELIVERED AT: | Cairns |
HEARING DATE: | 21 February 2023 |
JUDGE: | Fantin DCJ |
ORDERS: |
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CATCHWORDS: | CRIMINAL LAW – SENTENCE – 13 year old child – Foetal Alcohol Syndrome and Attention Deficit Hyperactivity Disorder – single count of robbery in company with personal violence – limited criminal history at time of offence – 122 days remanded in detention for subject offence – conditions in detention – for 78 out of 87 days, confined in cell for between 20 and 24 hours per day – for 10 days, confined in cell for 24 hours per day – Schedule 1 Charter of Youth Justice Principles |
LEGISLATION: | Criminal Code Act 1899 (Qld) s 7(1)(c), s 409, s 411(2) Youth Justice Act 1992 (Qld) s 268(6), Schedule 1 |
COUNSEL: | J Eagle-Rowe (solicitor) for the Crown. T Grau for the defendant. |
SOLICITORS: | Office of the Director of Public Prosecutions for the Crown. Northern Plateau Legal for the defendant. Department of Children, Youth Justice and Multicultural Affairs. |
- FANTIN DCJ (ex tempore): [TA] you have pleaded guilty to one offence of robbery in company with personal violence.
- You were 13 years old at the time you committed the offence, and you are now 14.
- It occurred on the 2nd of August 2022. You were with three other children at a shopping centre. The group approached a man who was employed as a trolley collector. The group was mocking him. Two of the group, it is not known who, used sticks to hit the man to his back. He tried to run away, but his legs were pulled, causing him to fall. As he fell, his mobile phone fell out of his pocket. One of the group picked it up. The group demanded he buy them cigarettes and give them $20 for the return of the phone. He said he needed his phone to withdraw money from the ATM. The group returned his phone to him. He walked inside the shopping centre. A plastic bottle was thrown at him as he did that. He approached a staff member and the group of you quickly left on foot.
- Because you were present in the group when that occurred, you are also responsible for that attack on the man. It is not clear whether you actually did any of the things, in terms of hitting him or stealing or trying to take his phone. But because you were part of the group who were doing that and you did not walk away from it, you are also responsible for it under law.
- It was a terrible thing to do to that man. He was just trying to do his job to earn money, probably for his family, and it would have been frightening for him to have that happen to him. It was disgraceful, and very bad behaviour. Luckily, the man did not sustain any visible injuries.
- You were arrested on the 3rd of August 2022. You did not participate in an interview. You were charged and remanded in custody.
- You have been in detention for three separate periods since then, which I will say more about.
- At the time you committed the offence, you did have a criminal history. You had been before a Magistrate in the Children’s Court twice in April of that year for some offences of wilful damage and a common assault. You received a reprimand and no convictions recorded.
- I am satisfied that you did understand that what you were doing was wrong and you had been involved in the Court process before that. You had a very limited criminal history. You were not on any supervised orders.
- Since then, you have been sentenced in the Mareeba Childrens Court by a Magistrate. That occurred on the 8th of February 2023. You were sentenced for a large number of offences, including wilful damage, enter premises and commit indictable offence, and unlawful use of a motor vehicle, which were all committed around the same time as, or some before and some after, this offence. A 12 month probation order was imposed and 100 hours of community service. There is a sentence review application on foot with respect to that sentence. I take into account that you are currently subject both to a probation order and a community service order.
- The sentencing Magistrate had before them a pre-sentence report, which became exhibit 1 on this sentence. I have read that report in detail and it provides some information about your background.
- You have had a very difficult childhood so far. Your parents were not able to look after you properly because they were drug users. You were removed from their care when you were just a baby. Their drug use affected you before you were even born, and you have suffered the consequences of that as part of your physical make-up. Those consequences, which are set out in the report, I will not talk about in detail, but you have had some diagnoses because of your mother’s drug and alcohol use while pregnant [Foetal Alcohol Syndrome] and others that have affected you [Attention Deficit Hyperactivity Disorder].
- In particular, they affect your ability to make good decisions, and to control your thinking and your impulses. They also mean that you are easily led by other people. You find it hard to manage your emotions and, because you have not had the ongoing stable support of a family, you have also used drugs from when you were very young, from only 10 years of age.
- You were placed into foster care. You were also in the care of your grandparents for some time. You have been on a long-term guardianship order of the State since you were only seven years of age. You were subjected to abuse and neglect in your father’s care at different times.
- None of that is any of your fault. Those adults have let you down and, in some ways, the State, which was meant to be caring for you in New South Wales and Queensland, has also let you down.
- That does not excuse your bad behaviour. You cannot go around hitting people with sticks or trying to take their money, because if you do that, you will just end up in jail or in detention.
- But it does mean that those things that are special to you have to be taken into account, and I do give them significant weight.
- The Department of Child Safety does not yet have a residential placement arranged for you for when you will be released from detention today, but that is the authority with legal responsibility, as your parent, for your care and welfare.
- You have some understanding that what you did was wrong, but because of the things which have happened to you, you find it hard to understand how another person might have felt; for example, the man who was the trolley collector, when that happened to him.
- One of the most significant factors in sentencing you today, apart from the things I have already referred to, is the very long time you have been locked up.
- You have served a total of 139 days (over four and a half months) in juvenile detention, 122 of which you were remanded expressly for this offence. There were an additional 17 days in which you were remanded for some of the other offences. You have been in detention for three separate periods of time. There were two days in August 2022. There were 45 days between August and October 2022. And there have been 92 days, approximately, between 21 November 2022 and today’s date. So the most recent period of time you have been in detention has been one of three months.
- To detain a 13 and 14 year old child in a detention centre for such a long period of time is a significant punishment. To detain a young person who has your deficits and impairments, for the offence in question, for such a long period of time is, in my view, completely contrary to the regime of the Youth Justice Act and the Youth Justice principles. Particularly principle 18, that a child should be detained in custody for an offence, whether on arrest, remand or sentence, only as a last resort and for the least time that is justified in the circumstances.
- If that detention were demonstrated to have served some rehabilitative effect, that would be something which would have ameliorated the harsh punishment which 139 days in detention constitutes, bearing in mind it is a period of over four months.
- But on the material before the Court, not only is there no evidence that that detention has had any rehabilitative effect, I am satisfied that the detention is likely to have caused you significant harm. That is because of the circumstances in which you have been detained.
- For a start, at least five days of that period were spent detained in police watchhouses in Cairns and Mareeba as a 13 or 14 year old.
- Second, and more significantly, there is a document before the Court which I ordered to be provided. An order was necessary because the Department of Children, Youth Justice and Multicultural Affairs declined to release the information I had requested to assist me on sentence without a court order. When one sees the information, its declining to do so is unsurprising, because that information contains the regime of detention which you have been subjected to.
- The information I requested was information relating to your “separation” whilst remanded at Cleveland Youth Detention Centre, including all occasions you had been detained in your cell over and above the 12 hours overnight, and for the number of hours on these occasions due to “separation” or “continual cell occupancy”. Those expressions, “separation” and “continual cell occupancy”, are euphemisms which have been developed or used by the Cleveland Youth Detention Centre to describe periods of time a child is locked in their cell, over and above the 12 hours they are locked down overnight for sleep.
- Exhibit 6, the separation information produced in response to the order, was helpfully summarised by the parties in this way. It does not cover the entire period you have been in detention, it covers only a period that is the most recent three months, and only 87 days of it. So it is not a complete history.
- But of the 87 days that it does cover from 25 November 2022, what it shows, in summary is this.
- For 78 of those 87 days (that is, for the overwhelming majority of the time you have been at Cleveland Youth Detention Centre on the last occasion), you have been confined in your cell for 20 hours or more each day. For 10 of those 87 days, you have been confined in your cell for 24 hours per day. That is, you have effectively been held in solitary confinement.
- What the report also explains for the relevant days is that, particularly on days when you have been locked in your cell for the entire day, or only let out for a few minutes (there are many days that fall within that description) you developed behavioural problems. For example, on multiple days you intentionally damaged a smoke detector. On other days you became disruptive and caused damage to property. On other days you threatened to cause damage to property. There are also references to threats to assault staff, or poor behaviour of one kind or another. On other days there are references to you engaging in tagging or graffiti, or becoming disruptive, climbing benches and damaging property, and becoming abusive to staff. There are other examples in the document.
- It is unsurprising that if you lock up a child for such lengthy periods of time with no stimulation other than access to a television, a child is likely to respond by behaving poorly. And that their behaviour over time is likely to deteriorate, including by causing damage to property, and that there is an increased risk of assault on staff or others.
- As other judicial officers in other jurisdictions in this country have observed, if you treat a child like an animal, it is unsurprising that they may behave like an animal.
- Exhibit 6 supports a finding that your period of incarceration at Cleveland Youth Detention Centre has been significantly more onerous that it otherwise would have been; that the circumstances in which you have been detained have been cruel, inappropriate, and have served no rehabilitative effect.
- Indeed, I am comfortably satisfied that you would have suffered harm while detained in Cleveland Youth Detention Centre within the meaning of that expression as defined in section 268 of the Youth Justice Act. That is, harm to a child is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.
- In addition, I am comfortably satisfied that your incarceration for large periods of time in solitary confinement, or virtually in solitary confinement, for between 20 and 24 hours a day, is a direct breach of the Charter of Youth Justice principles, including:
- principle 18, that a child should be detained in custody for an offence, whether on arrest, remand or sentence, only as a last resort and for the least time justified in the circumstances;
- principle 19, that a child detained in custody should only be held in a facility suitable for children;
- principle 20, while a child is in detention, contact should be fostered between the child and the community; and
- principle 21, that a child who is detained in a detention centre under this Act should be provided with a safe and stable living environment, should be helped to maintain relationships with their family and community, should be consulted about and allowed to take part in making decisions affecting their life about various issues, should be given access to education appropriate to their age and development, given access to medical and therapeutic services necessary to meet the child’s needs, and receive appropriate help in making the transition from being in detention to dependence.
- On the information before the Court, none of these things have occurred.
- Most significantly for community safety, what is clear is that although Youth Justice principle 1 is that the community should be protected from offences, and in particular recidivist high risk offenders, your period in detention will have achieved little or nothing to protect the community from your future offending.
- Indeed, it may well have increased the risk of further offending by you, and the State of Queensland must bear responsibility for that.
- Taking into account the lengthy period you have served in custody, the circumstances in which it has been served, you early plea of guilty, the matters in the presentence report, and the very significant mitigating factors in your favour, in my view, the appropriate sentence is a reprimand.
- You are reprimanded.
- No conviction is recorded.
- I decline to order a restorative justice referral or order because the victim refuses to participate in the process, and under the presentence report you have been assessed as not willing and not suitable for such a process because of your diagnoses.