R v JG[2023] QCHC 7

CHILDRENS COURT OF QUEENSLAND

FANTIN DCJ (ex tempore): I can tell you, [JG], that what I am going to do is make a probation order for a period of six months.  I cannot make that order unless I explain it to you and you agree to do it.  So I am going to do that first so that you understand what is going to happen.  Then I need to give some information about why I have made that decision.  That will take a bit longer.  But the short part which you need to pay particular attention to is now. 

I am satisfied that the sentence should be a period of probation.  You are not going back to Cleveland today, into detention, and you will not go back into detention unless you commit other offences in the future and you are not granted bail. 

The probation order will be for six months.  It is designed to help you stay in the community, to get support, and to keep doing the things that you are starting to do now.  For example, to get training, get your bank account, get a driver’s licence and all of those useful things that will help you in future. 

But probation comes with conditions.  You must not commit other offences during the six months.  If you do that, you will breach the order and you might have to come back to court and be punished again for it.  You must attend the programs that Youth Justice tell you to attend.  So if they say you have to turn up and go to this, you have to do it.  You have to obey their directions.  You have to tell them within two days of any change in where you are living or going to school or training or working.  So if you move, you have to tell them where you are.  You must report when they tell you to report, by either seeing Youth Justice or phoning them and you must receive visits from them.  You are not allowed to leave or stay out of Queensland without the permission of Youth Justice. 

The information I have received, including the psychological report and the pre-sentence report, recommends some things which I am going to include as special conditions on your probation order.  The first is that you are referred to a paediatrician for review and formal diagnosis, including to consider ADHD medication.  The second … is that your probation order include intensive therapeutic support that specialises in working with young people with cognitive impairments. 

…

HER HONOUR:   …  I order that you be released under the supervision of the Chief Executive for a period of six months and that you must comply with the requirements set out in s 193(1) of the Youth Justice Act 1992 (Qld), and report within one business day to the Chief Executive.  That order contains two special conditions, which I am satisfied will assist in reducing the risk of reoffending.  The first is that you are referred to a paediatrician for review and diagnosis, including with respect to ADHD medication, and the second that the probation order include intensive therapeutic support that specialises in working with young people with cognitive impairments. 

[JG], I now have to go through the formal part of the sentence.  You might not understand all of this, but I need to give reasons for why I have made that probation order.  So just be patient.  Thank you. 

[JG], you have pleaded guilty on an earlier occasion to one count of robbery in company with personal violence and one count of assault occasioning bodily harm in company, as well as 10 summary charges which have been transmitted to this Court.  They are wilful damage, common assault, possessing dangerous drugs, stealing, attempted stealing, contravene direction order requirement, wilful damage, failure to appear in accordance with an undertaking, unlawful use of a motor vehicle and receiving tainted property. 

You were 15 years old at the time of the offending when it started and later, 16 years old.  You are still 16 years old. 

The matter was originally listed for sentence on the 2nd of February 2023. I adjourned the sentence on that date and ordered a pre-sentence report with a psychological assessment. 

You were released on bail on the same day, having served 94 days pre-sentence detention on remand.^[1] 

You have been on a conditional bail program since the 2nd of February 2023, which is a period of two months, or more than two months.  You have been doing well on that conditional bail program, which is very positive.  You have reported as directed on 11 out of 16 occasions.  You have attended 13 out of 22 scheduled programs.  The programs you have done include cultural mentoring, changing habits and reaching targets, and 10 sessions of life skill development and family-based support program.  According to the pre-sentence report, your compliance with your conditional bail program has been satisfactory. 

I am told that as things have improved, particularly with your case manager Ms Atherton, your engagement and compliance has also improved. The fact that Ms Atherton and Ms Jaffer are both in Court to support you today is very encouraging for you, Ms Jaffer being the person who wrote the pre-sentence report. 

The offending you committed is described in a long document which became exhibit 2.  There is no dispute about it. I will not repeat it in detail.  Essentially, it involved offending between March and November 2022.  So it is offending that started more a year ago.  Much of it was relatively minor offending. That does not excuse it. It was still bad behaviour.  But it was not of the most serious kind.  It involved graffiti, and stealing low value items from stores.  But there are two serious entries in it, which both involve violence. 

One was in March 2022, which is the assault occasioning bodily harm in company.  You were with a group of other young people.  You were not the principal offender, but you went along with the violence and participated in it.  Another girl essentially assaulted an employee at a hotel.  She went in first and did that. You and another girl entered the smoking area.  You participated by hitting a person in the back when another staff member ran over to intervene.  You tried to prevent her doing that.  So you were actively involved in that.  Both of the women suffered injuries.  I have seen the photographs of their injuries. It was painful for them.  Fortunately, they did not have to be hospitalised, but one had a cut to her lip and swelling to her mouth.  When police arrested you, they found you with a small amount of cannabis. 

You were released on bail.  There was some further graffitiing the following month. Then, in June, you committed a robbery in company with personal violence.  Again, in the company of other young people, a young girl who was 16.  That involved a terrible assault on a 14 year old girl in which her phone was taken.  She refused to provide the PIN code to unlock it, and both you and the other girl punched her many times.  She was lying on the ground and she was kicked by both of you.  It only stopped when a passer-by intervened.  That girl suffered physical injuries to her face, bruising and swelling, and a laceration inside her mouth.  Luckily, she did not have to be hospitalised.  Again, I have seen the photos of her injuries. 

You were charged and remanded in detention. 

You were eventually released on bail after about a month in detention.

You were involved in two offences (within a day or so of each other) in November 2022. That involved you being present in a car that had been stolen.  It is not suggested that you were driving or that you were the person who took it.  That is an unlawful use of a motor vehicle.  It also involved you and other young children attending an RSL club.  Entry was gained and alcohol was stolen.  You were located intoxicated.  You conceded you were in the stolen vehicle. 

You were remanded in detention again and you remained in detention for approximately two months. 

I have read the victim impact statements that have been provided.  The women at the hotel who were assaulted were very badly affected emotionally, as well as the physical injuries they suffered.  The girl you assaulted, the 14 year old, has not provided a victim impact statement. 

I have taken into account the sentences imposed on the other girls who have been sentenced for the March assault and the June robbery.  Each of those girls had a more serious criminal history than yours and was pleading guilty to other offences. 

I take into account your early plea of guilty and all of the mitigating factors identified by your barrister. 

It is significant that at the time you started that period of offending, you had no criminal history.  You did not offend in breach of court orders, although you did commit some of the later offences while on bail.  It is relevant that the two most serious offences occurred more than 12 months and 10 months ago. The other offending is significantly less serious. 

You spent 94 days in pre-sentence detention in two separate periods.  You spent 14 to 17 June 2022 inclusive in the Mareeba watchhouse, and then 17 June to 14 July 2022 inclusive in a detention centre.  Of the 30 days that you were in detention, for 17 of those 30 days you were locked in your cell for more than 21 hours a day and allowed out for three hours or less.  Of those 17 days, for two days you had no time out of your cell at all. 

You were released on bail, and your response to, or compliance with, bail was mixed. 

For the second period you were remanded in detention, you spent another two days in Mareeba watchhouse and then the balance of that time from 2 December 2022 to 2 February 2023 inclusive, a period of about two months, remanded in detention.  Of those 59 days in detention, for 40 of those days you were locked in your cell for at least 19 hours; that is, you had less than five hours out of your cell.  For three of those days you were locked in your cell for 24 hours a day.  For 30 of those days, that is, more than half of that two month period, you were locked in your cell for 21 to 24 hours per day. 

That had a number of consequences.  Significantly, you were not able to access the education unit in Cleveland Youth Detention Centre so you did not have the benefit of being able to go to school there.  It also was a much more significant burden for you because you have been diagnosed with a number of impairments. I am satisfied the conditions in which you were incarcerated were more onerous than they would have been for a child who does not have your diagnoses.  That is a significant mitigating factor on sentence. 

I have taken into account everything in the pre-sentence report and the attached psychological report and medical records.  I will not repeat all of the detail of that. 

You are a young Aboriginal woman from the west cost of Cape York.  That is your traditional country; your parents are from there.  But you were removed from your parents when you were only two years of age due to abuse and neglect, and you have been on a long-term guardianship order with the Department of Child Safety since you were four years of age.  You still have contact with your parents, although as at the date of the report your father was incarcerated.  Your other siblings were also removed.  You have, more recently, been in the care of an aunt, and that has been going reasonably well. 

You have had a profoundly disadvantaged upbringing and childhood, as I previously observed. And in circumstances where you are now clearly distressed, I am not going to repeat the detail of it. 

What stands out from the pre-sentence report and the psychological report are a number of positive matters.  You speak to your siblings regularly and often take a position of responsibility for the younger ones; that is, you look out for them and you like to ensure they are eating and are safe.  That shows real maturity and responsibility. 

You have been diagnosed with a number of conditions, which are set out in the documents before me.  Again, in summary form, they include Foetal Alcohol Spectrum Disorder, Attention Deficit Hyperactivity Disorder and some cognitive impairments. 

You were doing well at school up until about high school and then, as often happens with young people when they reach that age, things became more difficult for you.  You have advised a psychologist that your offending behaviour began when you started dating a particular boy. 

You have shown genuine remorse and insight into your offending.  You have regularly expressed shame and that you were sorry, particularly for the assault charges.  I have no doubt that that is genuine.  You understand that sometimes when you get angry you feel out of control, and it is hard to manage your feelings.  You are currently working towards getting a driver’s licence, photo ID and Centrelink payments organised.  You have expressed a desire that you want to leave crime behind you and make changes to make your life better.  You are making much better choices and you are motivated to keep doing that.  All of the reports of your behaviour while you were in detention are positive.  I am told you have a particular joy for music and sport. 

The diagnoses referred to in your report have clearly contributed to the offending in the sense that they make it difficult for you to regulate your emotions and control your impulses, and to understand the consequences of your behaviour. But your insight is a very positive factor. 

I accept that you will continue to need therapeutic support and help, and the probation order I have made with those special conditions I hope will help that occur. 

No party submitted that a detention order was appropriate in this case.  Both parties submitted that a probation order ought be imposed. 

I am satisfied, having regard to s 150 of the Youth Justice Act 1992 (Qld), and the Youth Justice Principles, that a probation order is appropriate.  In my view, it is unnecessary to impose a graffiti removal order as well, given the significant punishment you have already served through three months in detention, much of which was spent locked in a cell. 

I decline to order a restorative justice order because you have expressed shame, insight and remorse, and it is recommended that that process would not be appropriate for you. 

I decline to record convictions for any of the offences. No party sought that a conviction be recorded.  Although the offences of violence are serious, you were a young person with no criminal history.  You have good prospects of rehabilitation if you can stay on track, and recording a conviction will have an adverse impact on your chances of improving your behaviour and finding and keeping a job.  No convictions are recorded. 

Although the court must make a graffiti removal order against a child found guilty by a court of a graffiti offence, it is open not to do so if the court is satisfied that, because of the young person’s physical or mental capacity, the young person is not capable of complying with the order.  In all the circumstances based on the information before me, I am so satisfied, and I decline to make a graffiti removal order. 

HER HONOUR:   … Thank you everyone, for attending today and for your assistance with detailed submissions and helpful reports.  I found the pre-sentence report, the psychological report and the medical material very helpful. 

It may be the first time that all of that information has been collated into one document for [JG], and I would hope that the Department of Child Safety might pay close attention to what is in those medical records in terms of [JG’s] future assistance.