R v DT[2023] QCHC 8

CHILDRENS COURT OF QUEENSLAND

Introduction

1. [1]
   These are the written reasons as to the sentence I imposed on the child on 12 July 2023. 
2. [2]
   The child, DT, has pleaded guilty to one count of burglary, one count of armed robbery and one count of unlawfully using a motor vehicle on Indictment 270 of 2023, and one count of burglary, one count of armed robbery in company with personal violence and one count of unlawfully using a motor vehicle with a circumstance of aggravation  on Indictment 269 of 2023.
3. [3]
   Additionally, the child is before this Court for contravening a conditional release order made in the Childrens Court of Queensland at Toowoomba on 25 August 2022 with respect to one count of robbery in company with personal violence in that he failed to report and receive visits and failed to attend programs as directed by the Chief Executive. I find the breach proved beyond reasonable doubt.^[1]
4. [4]
   The pleas are early pleas and I take them into account and reduce the sentence I would otherwise have imposed by reason of the pleas. 

Provisions of the Youth Justice Act

5. [5]
   In sentencing the child, I specifically have regard and take into account the provisions of s 150 of the Youth Justice Act 1992 (Qld) (“YJA”) and the Schedule of Youth Justice Principles.  I specifically note that a detention order shall be imposed only as a last resort and for the shortest appropriate period.^[2]  I also note s 208 of the YJA which provides that a court may make a detention order against a child only if after the court considers all other available sentences and taking into account the desirability of not holding a child in detention, it is satisfied that no other sentence is appropriate in the circumstances of the case.  With respect to the recording of convictions, I specifically take into account ss 183 and 184 of the YJA.

Child’s age and criminal history

6. [6]
   The child was born on 21 June 2006 and is now 17 years of age.  He was 16 at the time of the commission of the offences before this Court.  He has a criminal history which was marked as Exhibit 5.  In that history, there are numerous previous entries for burglary/entering premises and for unlawful use of a motor vehicle.  There is a previous serious assault charge on a 74-year-old woman, and the child was dealt with for robbery on 25 August 2022.  He has previously been subject to all forms of orders up to actual detention.  He has previously had two conditional release orders.  The present offending breaches a probation order, a restorative justice order and a conditional release order.
7. [7]
   Exhibit 6 are the sentencing remarks of Judge Loury.  That robbery involved the child and three others robbing a 14-year-old boy in Toowoomba City at 7.30 pm on the evening of 3 November 2021.  The child was interviewed and admitted being present during the robbery.  The child spent 103 days in detention prior to being dealt with by Judge Loury.  Unfortunately, that period in detention did not deter the child from committing the offending here.

Facts of present matters

8. [8]
   The facts are agreed (Exhibits 7 and 8).
9. [9]
   As to the first indictment,^[3] the complainant was Ms Crampton.  She was 36 years of age at the time of the offending.  On 7 October 2022, she was at home with her two young children.  She had parked her Mercedes in the driveway and had locked it.  At 2.20 pm, she could hear a dog barking. She went outside to quieten the dog and she saw the child walking into her house through the back door (Count 1).  The child was wearing a black hooded jacket.  She began to follow the child into the house and told him to get out of the house.  The child ran through the house and turned abruptly and faced her holding a knife with a blade about 10 to 15 centimetres long and walked towards the complainant with the knife raised.  The complainant said, “Please don’t, just go, I have children here.”  The child said, “Give me your keys motherfucker.”  The child then grabbed keys from a dining room table and ran out the front door (Count 2).
10. [10]
    There was another person in the front yard.  The police were called shortly after and she was able to provide police with a tracking application.  This application provided live updates of the location of the stolen vehicle.  Undercover police were deployed to follow the stolen car throughout Toowoomba.  At one point, it was driving at a speed of 132 kilometres per hour in a 50 kilometre per hour speed zone (Count 3).  The driver was a male teenager with dark hair.
11. [11]
    The car was sighted several more times that afternoon.  Eventually, a police helicopter commenced surveillance.  At 7.07 pm POLAIR observed three people exit the stolen vehicle on Smith Lane and leave on foot.  One of these people was the child.  The car continued on and minutes later was intercepted by police.  The child fled.  Two other juveniles were detained.  The following day, a search warrant was executed at a townhouse for unrelated matters and police located a text message thread between CT and the child. The child sent an image of the steering wheel of the Mercedes. The child also told her he was in a “foot chase”.  The child’s fingerprints were found on the car. He was picked up on a warrant in St George on 21 October 2022 and was detained and remanded.
12. [12]
    As to the next indictment,^[4] the complainant was Ms Hunter.  She lived in a house in Mt Lofty and owned a black VW Passat.  In the afternoon of 16 October 2022, she was at her home.  She had returned home at about 4.30 pm and parked her car on the nature strip.  The door to her house was unlocked and open.  Her handbag was on her couch. At 5.30 pm, she walked into her hallway and saw the child holding her handbag.  She ran towards him saying, “Get the fuck out of my house.” (Count 1).  He left the house through the veranda doors with the handbag and was chased.  He went through a gate and closed it.  The handbag was caught in a fence paling and the complainant grabbed the strap, ripping it from the bag.  The child took keys from the handbag and ran to the complainant’s car getting into the driver’s seat. At this stage, a white Commodore drove up behind the complainant’s car.  A female got out of the back seat and approached the complainant yelling, “I’m going to kill you cunt, let go of the fucking car.”  There was another female on the back seat of the Commodore.  The complainant stood holding the door to her car, and the female raised her arm and hit the complainant in the right side of the head with a small shiny object.  The complainant let go of the door.  The Commodore with the females drove off and the child drove away in the complainant’s car.  The complainant called for help.  Later, the child drove back down the street. The child accelerated off after he had accelerated towards one of the neighbours.  Police and ambulance were called.  The car was seen at 1.00 am on 17 October 2022.  Police were called and the child’s fingerprint was located on a window (Count 3).
13. [13]
    Later on, the car was located behind a furniture shop on Bridge Street.  The complainant positively identified the child from a photo board.  A warrant was issued and the accused was arrested and remanded in custody.

Pre-sentence reports

14. [14]
    Pre-sentence reports were obtained concerning the child (Exhibits 1 and 2).  There is also material (Exhibit 3) concerning the child’s failure to comply with the conditional release order.
15. [15]
    Turning to the pre-sentence reports, the reports note that the child was first sentenced to supervised orders on 2 April 2020 when he was 12 years and 10 months of age.  Since that time, he has been subject to three probation orders, two restorative justice orders and two detention orders immediately suspended.  At the time of the offences before the Court, he was subject to three community-based orders.
16. [16]
    The author’s assessment was that the following factors contributed to his offending behaviour:

    1. (a)
       family background including exposure to parental substance misuse, inadequate parental applications and rejection of rules and boundaries;
    2. (b)
       disengagement from education and employment;
    3. (c)
       pro-criminal peer associations and substance misuse;
    4. (d)
       opportunistic offending and economic gain.
17. [17]
    The child is the fourth of five siblings born to SJ from Toowoomba and RT from St George.  His parents separated when he was two years of age.  His father had no active parenting role in his life.  He did maintain contact with his father, but not regularly as his father is often incarcerated.  Between November 2013 and June 2016, the child was subject to investigations of child abuse allegedly perpetuated by SJ.  Two of these substantiated harm.  His mother and other adults misused substances, including injecting methylamphetamines and drinking alcohol and used inappropriate disciplinary methods.  The child was subject to child protection orders.  He was initially placed in a residential care facility and then with his grandmother in St George. 
18. [18]
    In January 2018, he was placed back at home with SJ as part of a reunification plan.  SJ has a history of substance abuse which she feels has affected the child adversely.  She was also experiencing significant personal struggles between 2016 and 2019.  The author assesses that her personal stressors impacted her capacity to effectively supervise the child.  SJ had difficulty with the child after his return to her care in 2018.  He did as he pleased.  His behavioural misconduct escalated between 2018 and 2020, and he absconded regularly and mixed with his older brother’s anti-social peers.
19. [19]
    At the time of the offences, he was rarely at home.  He would only go home after a period of offending or when he was withdrawing from methylamphetamine.  SJ could not discipline or control the child.  The child has said there have been minimal consequences for his offending behaviour in the home.  The author’s assessment was the child had become accustomed to making his own decisions from a young age and ultimately disregarded authority which predisposed him to anti-social behaviours.
20. [20]
    He was last enrolled in high school in 2019.  When he was at the St George High School, he did well and was supported by his teachers and peers.  But when he returned to Toowoomba and went to Centenary Heights State High School, he struggled at school.  He hated school and became involved with fights which led to his suspension.  After he ceased attending school, he used drugs and associated with other peers not engaged in education or employment. 
21. [21]
    During his remand in custody at the Brisbane Youth Detention Centre since October 2022, the child has expressed minimal willingness to reengage in education or explore employment opportunities.  His attendance with schooling at BYDC has been minimal and he has learning difficulties. 
22. [22]
    It is the author’s assessment that his pro-criminal peer association and susceptibility to peer influences normalised and encouraged his thinking around offending.  The child explained his peer relationships held a greater importance to him than the relationships he holds with his mother or other authority figures.  He advised he committed the offences before the Court because his lifestyle consisted of spending most of the day and night from about 10 am to 5 am “kicking back” with marijuana and ice and canvassing opportunities for offending.  He and his peers would discuss “creeping” around different areas and canvass houses looking for opportunities to obtain valuable items, money and cars.  He would join in without hesitation. He instigated some of the offences before the court.
23. [23]
    He advised that after his release from BYDC in July 2022, he was introduced to ice by an older friend.  He attributed his ability to commit the spree of offending in October 2022 to the excessive ice use.  He had difficulty recalling significant details.
24. [24]
    It is the author’s assessment that his excessive use of ice within a short period of time escalated his high-risk taking behaviours and inhibited his ability to exercise appropriate consequential thinking.  His substance misuse was a primary contributory factor to the commission of the offences. 
25. [25]
    It was the author’s assessment that a significant motivator in the child’s offending behaviour was the opportunity to obtain desired items such as jewellery, money, luxurious cars to drive and anything that could provide economic gain.  He used his criminal activity as a way of gaining greater financial independence.  The child was able to verbalise these offences were wrong, but he did not feel bad as he did not have a personal relationship with the victims.  He did not accept full responsibility for the offences, placing blame on the victims for leaving their cars and keys visible, unsecure or having valuable items visible from outside their home.  He failed to express remorse towards the victims for the harm that was caused by saying “I don’t feel anything.”  He appeared to excuse his behaviours in regard to some of the victims being elderly and vulnerable, as well as the presence of children during the commission of some of the offences as their victimisation was not contingent on their vulnerability. He demonstrated a significant lack of empathy and a limited understanding of how his offences impacted on the victims, his family and the wider community. 
26. [26]
    The child acknowledged he did not consider the consequences for himself or others at the time of the offending, nor did he consider removing himself from the situations despite there being ample opportunity on each occasion.  He said he was not able to demonstrate any intention of ceasing his offending behaviours and when canvassing the charges, spoke with excitement when reciting what happened. 
27. [27]
    The most significant consequence experienced by the child has been the 241 days on remand.  A number of sentencing options have been discussed. 
28. [28]
    I note that on his release from custody, the child indicates he will be staying at his mother’s address in Toowoomba and she is willing to have him back there.  He is interested in engaging in programs which explore work preparedness.  He has not expressed any interest in returning to education.  He will be encouraged to explore vocation or training activities. 
29. [29]
    Unfortunately, whilst on remand he has continued to associate with other known offenders inclusive of family members.  He has indicated his intention to continue to associate with his former peer group if he remains in Toowoomba.  On his release, he intends to continue to smoke cannabis but is motivated to abstain from using ice.  He has not indicated any willingness to engage in counselling for his substance abuse. 
30. [30]
    He is motivated to engage in football and fishing and will be supported by the Department’s Indigenous Service Support Officer.  He identifies as an Aboriginal young man.  A number of interventions have been proposed and I have had regard to those.  I have also had regard to the information given as to various sentencing options and the proposed interventions.
31. [31]
    The material concerning the breach of the conditional release order (Exhibit 3) shows a poor response to it. He failed to attend the programs without reasonable excuse.
32. [32]
    Additionally, in answer to questions raised at the sentence, an affidavit from the Department was obtained (Exhibit 14). This indicates that the child has been in discussions with BYDC as to exploring his culture and identity. There is an option to have access to the Dhiiyaan Church and a Dalby farm. Concerns have been expressed as to his being cared for in the St George area. No IQ tests have been administered.
33. [33]
    A further affidavit from Ms Kiepe (Exhibit 15) states that efforts have been made to attempt to engage the child in motivational interviewing and goal setting together with encouragement to enrol in education, but his poor compliance with orders has meant there has been a limited amount of rehabilitative treatment. 

Crown submissions

34. [34]
    In summary, the pre-sentence report notes the following:

    1. (a)
       the child had a difficult upbringing;
    2. (b)
       he absconded from home and was using drugs;
    3. (c)
       there is a lack of remorse/insight;
    4. (d)
       he is excited by the offending.
35. [35]
    The Crown submits in all of the circumstances there are low prospects of rehabilitation.  It is submitted by the Crown the offending is very serious, particularly bearing in mind there are two separate home invasions. The Crown submits that the facts of the offending are extremely serious and represent an escalation in offending.  The aggravating feature is that the child breached various orders.  The Crown says that deterrent penalties are necessary, relying on R v Leu; R v Togia.^[5]  The Crown also submits having regard to the lengthy criminal history and the serious nature of the offences, convictions should be recorded, particularly considering his rehabilitation prospects are low.
36. [36]
    The Crown relies on the case of R v HCO.^[6]  The Crown ultimately submits that the Court would:

    1. (a)
       make a serious repeat offender declaration pursuant to s 150A of the Youth Justice Act;
    2. (b)
       impose two years’ detention on all of the charges with an order for release after serving 60 percent, and record a conviction in respect of each count;
    3. (c)
       revoke the conditional release order imposed on 25 August 2022 and order the child serve the original detention order, noting 106 days (three months and 15 days) spent on remand to be counted as part of the period of detention and impose an order of eight months and 27 days concurrent with the two-year detention order;
    4. (d)
       discharge the 12-month restorative justice order made on 25 August 2022;
    5. (e)
       take no action in respect of the breach of probation order made in the Toowoomba Childrens Court on 25 August 2022.

Defence submissions

37. [37]
    Mr Edridge on behalf of the child has prepared detailed written submissions (Exhibit 11).  He raises an issue as to the validity of s 150A of the Youth Justices Act, a matter I will turn to later in these reasons.
38. [38]
    He points out that the child is still young. He was 16 at the time of the offending. He says there are a number of matters which mitigate penalty including the significant period of time on remand.
39. [39]
    Remand has been particularly burdensome due to separation periods (Exhibit 12) and the child hails from a prejudicial background which is linked to his offending conduct.
40. [40]
    The revocation of the conditional release order is not opposed.  Special circumstances though exist so that he should be released after serving 50 percent of the detention order.  It is not disputed that the restorative justice order should be discharged.
41. [41]
    Turning then to the facts of the matters before the Court, it is accepted the offending is serious.  Fortunately, there is no evidence of any physical injury or severe or permanent ongoing effects on the victim.  It is accepted that the prior history is relevant in aggravation of penalty.  There is no challenge to the opinions expressed in the pre-sentence report and the factors contributing to the offending should be accepted.  The child suffered a deprived upbringing with his parents separating at two and his father often incarcerated.  There was child abuse between 2013 and 2016, including exposure to methylamphetamine being injected, inappropriate discipline by the mother and other males, and physical and medical neglect relating to insufficient food and school absences.  He was only seven to 10 years of age at the time.  Since January 2018, he has mainly resided with his mother.  He has limited opportunity for formal education.  He has learning difficulties.  His responses in the pre-sentence report should be considered against his lack of formal education and learning difficulties.  He has done a course towards obtaining his driver licence and has a construction white card.  He wishes to get a driver’s licence when he gets the opportunity.  His family have agreed to engage in the intensive case management program (page 10 of the pre-sentence report).  It is culturally sensitive and aimed at preventing reoffending.  He will be supported by an Indigenous Support Officer on release.  His drug use is referred to and he has no desire to return to ice use.  He is confident he will abstain from this use.  He has demonstrated insight concerning his attitude towards ice.  His attitude towards the offending and remorse should be seen in the context of learning difficulties and background.  He will try and stay away from the children that commit crimes, although this can be difficult.  He has an interest in football and fishing.  He did comply reasonably with the conditional release order imposed on 7 October 2021, and is willing to engage in the intensive case management.  He has taken steps towards obtaining employment. 
42. [42]
    It is conceded that detention is the only appropriate penalty and a sentence in the order of 18 to 21 months should be imposed.  It is submitted that special circumstances are present such that supervised release should be ordered after 50 percent of the sentence is served.  Those special circumstances are:

    1. (a)
       deprived background;
    2. (b)
       early plea of guilty;
    3. (c)
       lengthy period of remand;
    4. (d)
       burdensome separation periods.
43. [43]
    The details of the separation report are referred to at paragraphs 47 to 50 of the defence submissions.
44. [44]
    It is further submitted having regard to R v MDD^[7] that no conviction should be recorded bearing in mind his chances of finding employment and the fact that no-one seems to have been seriously injured. 
45. [45]
    In oral submissions, Mr Edridge repeated much of which I have stated above.  Since the obtaining of the first pre-sentence report, the child has instructed that he wishes to desist from future offending.  He understands it is wrong to harm others and he has learnt his lesson this time, bearing in mind he has spent a long time on remand (eight and a half months).  He realises that remanding in detention is a waste of a life. 
46. [46]
    Mr Edridge stresses the difficult upbringing and the possibility of a lower risk of reoffending as he matures.  He plans to stay away from the other youths, although he will be going back to Toowoomba.  It seems he went well with the grandmother, but the Department made the decision to send him to Toowoomba in 2018.  Mr Edridge relied on page 11 of the pre-sentence report noting that he wants to work.  He understands that methylamphetamine is a problem.  Mr Edridge stressed the fact he did report on the first conditional release order and he wants to do the ICM program.  There is a chance of rehabilitation here.

47. [47]
    Mr Edridge heavily relies on the separation report to which I have referred and distinguishes the case of HCO. 
48. [48]
    He submits that 21 months is appropriate, with 50 percent to serve, and no conviction should be recorded because of the importance of not impacting his employment prospects.

Conclusion

49. [49]
    In conclusion, it is my view that these are very serious offences.  They involve two home invasions.  One involves the use of a weapon.  It is true that no physical injuries were apparently caused (or serious ones), but they would have been quite frightening to the complainants.  It is of concern that the child has a previous assault entry for assaulting a 74-year-old woman and a previous robbery charge.  It is also of concern the present offending breaches a restorative justice order, a conditional release order and a probation order which is a significant  aggravating feature.  I have gone through the pre-sentence reports in some detail and despite Mr Edridge’s submissions, a lot of the matters stated by the child are of concern.
50. [50]
    I am very concerned there is a real and high risk of re-offending, particularly if the child associates with his peer group in Toowoomba which I think is likely.
51. [51]
    Considering the nature of the offences, the child’s history, the pre-sentence report, all of the sentencing options and  noting that detention is a sentence of last resort and not desirable, I consider detention to be the only appropriate sentence in this matter.^[8]   
52. [52]
    In my view, if the matter had gone to trial, bearing in mind the principle of totality and the breaches, the child would have received a sentence in the order of two and a half to three years’ imprisonment to serve 70 percent. 
53. [53]
    In light of the mitigating factors, in particular the plea of guilty, I propose to reduce that to a total of two years’ detention to serve 60 percent. The particulars of the sentence are below. I consider there are special circumstances to reduce the detention period from 70 percent to 60 percent in light of the early pleas, the deprived upbringing and the separation periods. 
54. [54]
    As regards the recording of a conviction, to my mind, the offence involving the use of the knife is particularly serious and would have been quite frightening. I consider the second robbery to be serious as well. He has numerous previous convictions, including for burglary and unlawful use.
55. [55]
    I note of course that one must have regard to the child’s future and that the starting point is that no conviction should be recorded. It is also not a simple task.^[9]   
56. [56]
    I agree with the Crown that unfortunately there are low prospects of rehabilitation here bearing in mind the nature of the offence and the history of the child. Balancing that against the matters in s 183(1)(c) of the YJA, I exercise my discretion to record convictions on each count.
57. [57]
    With respect to the conditional release order imposed on 25 August 2022, I order the child serve detention of eight months and 27 days.  I order this period be served concurrently with the detention orders I have imposed on the other indictments.

58. [58]
    I discharge the 12-month restorative justice order made on 25 August 2022.

59. [59]
    I take no action in respect of the breach of the probation order made in the Toowoomba Childrens Court on 25 August 2022.
60. [60]
    In light of the serious nature of the offences and noting that the pre-sentence report considers the child is not suitable for the restorative justice process, I do not order restorative justice.

Serious repeat offender declaration

61. [61]
    Pursuant to section 150A of the YJA the Crown has applied for a “serious repeat offender” declaration.  The defence has submitted that the legislation is not valid.
62. [62]
    Section 150A of the YJA provides:

“150A Serious repeat offenders

1. (1)
   This section applies if a court is sentencing a child for a prescribed indictable offence.

2. (2)
   The court may, on application by the prosecution, declare the child to be a serious repeat offender if—

1. (a)
   at least 1 detention order has previously been made against the child in relation to a prescribed indictable offence; and

2. (b)
   the court has—

1. (i)
   ordered the chief executive to prepare a pre-sentence     report; and

2. (ii)
   received and considered the report; and

3. (c)
   the court has had regard to—

1. (i)
   the child’s previous offending history and bail history; and

2. (ii)
   any efforts of rehabilitation by the child, including rehabilitation carried out under a court order; and

3. (iii)
   any other matter the court considers relevant; and

4. (d)
   the court is satisfied that there is a high probability that the child would commit a further prescribed indictable offence.

3. (3)
   If the court makes a declaration that the child is a serious repeat offender, the court in sentencing the child must have primary regard to—

1. (a)
   the need to protect members of the community; and

2. (b)
   the nature and extent of violence, if any, used in the commission of the offence; and

3. (c)
   the extent of any disregard by the child in the commission of the offence for the interests of public safety; and

4. (d)
   the impact of the offence on public safety; and

5. (e)
   the child’s previous offending history and bail history.

4. (4)
   If the court makes a declaration that the child is a serious repeat offender, the court must state in its sentencing remarks for the child reasons for making the declaration.

5. (5)
   For the purposes of the Criminal Code, chapter 67, a declaration made under this section is taken to be a sentence imposed on conviction.

6. (6)
   For the purposes of the Human Rights Act 2019, section 43(1), it is declared that this section has effect—

1. (a)
   despite being incompatible with human rights; and

2. (b)
   despite anything else in the Human Rights Act 2019.

Note—

Under the Human Rights Act 2019, section 45(2), this subsection expires 5 years after the commencement.”

63. [63]
    As may be seen, the section provides that where a court is sentencing a child for a prescribed indictable offence, if at least one detention order has been made against the child and a pre-sentence report has been ordered, received and considered, then the court has the power to make a declaration that the child is a serious repeat offender.  Such an order lasts for 12 months after the child is released from detention (s 150B of the YJA).  The effect of the order is that if another court sentences the child for a prescribed indictable offence, for an offence committed during the period of the order, then the primary sentencing considerations are in s 150(3)(a) to (d) of the YJA.

Defence submissions as to validity

64. [64]
    The defence submits that the section should not act retrospectively.  It is submitted that the section does not comply with the Legislative Standards Act 1992 (Qld) (“LSA”) in that the legislation has not given sufficient regards to the rights and liabilities of individuals in that it has adversely affected the rights and liberties or imposed obligations retrospectively (s 4)(3)(g) of the LSA). 
65. [65]
    It is further submitted that the amendment should be regarded as substantive rather than procedural and therefore the section should not have retrospective operation. 

Crown submissions as to validity

66. [66]
    The Crown on the other hand, submits that the parliament can implement retrospective laws.  Even if it is thought there is a breach of the LSA, this does not render the legislation invalid.
67. [67]
    The Crown submits that the provision commenced on 22 March 2023. It is submitted s 409 of the Strengthening Community Safety Act 2023 (Qld) specifically provides that s 150A of the YJA applies whether or not the offence was committed before or after the commencement date. 
68. [68]
    The Crown also submits the legislation is procedural rather than substantive.

Discussion as to validity

69. [69]
    It is common ground that s 150A of the YJA commenced on 22 March 2023. The offences in this case occurred prior to this. The questions are whether the provision can operate retrospectively and whether it can be valid if it breaches the LSA.
70. [70]
    Turning to the first question, there is a common law presumption against the retrospective operation of a statute where the law affects an existing right or obligation, unless that statute expressly or by necessary implication requires such a construction.^[10] This common law presumption is reflected in s 11 of the Criminal Code and s 20 of the Acts Interpretation Act 1954 (Qld).  
71. [71]
    It is to be noted that presumption also does not apply where the law is procedural rather than substantive.^[11]
72. [72]
    Such a distinction has been examined in a number of cases.
73. [73]
    In R v Truong,^[12] the Court of Appeal considered that the amendment which removed a presumption against imprisonment was procedural only. 
74. [74]
    Truong was followed in R v Carlton,^[13] where the Court of Appeal considered amendments to the Penalties and Sentences Act which required the court to have regard to certain factors when sentencing an offender for a sexual offence against a child under 16.  The court held that the provision was procedural only as it merely reordered the priority of matters to be considered in the exercise of the discretionary power of sentencing.  
75. [75]
    Likewise in R v Hutchinson,^[14] the insertion of s 9(10A) into the Penalties and Sentences Act was considered to be procedural.  The judge’s sentencing discretion remained intact.  
76. [76]
    On the other hand, in R v Mason and Saunders,^[15] the Court of Appeal considered that the insertion of Part A into the Penalties and Sentences Act requiring an offender to serve 80 percent of their sentence was substantive.
77. [77]
    Mason and Saunders was applied in R v Koster,^[16] where the court held that an amendment requiring the offender to serve a period of imprisonment unless there are exceptional circumstances was substantive.
78. [78]
    In the end, I am satisfied that the amendment here is procedural.  I consider the sentencing judge’s discretion remains intact.  The section merely reorders sentencing priorities.  Mason and Saunders and Koster may be distinguished.
79. [79]
    Further, the presumption against retrospectivity can be displaced by an express provision or necessary amendment.  In this case, s 409 of the Strengthening Community Safety Act 2023 specifically provides the section applies to offences committed before the introduction of the section.  That then brings us to a consideration of whether the law is “invalid” by reason of the LSA.
80. [80]
    In my opinion, s 4(3)(g) of the LSA does not prohibit the enactment of retrospective laws.  It operates as one factor within a standard of “fundamental legislative principles”.  In s 4(1) the LSA refers to fundamental legislative principles. These principles include requiring that legislation has sufficient regard to the rights and liberties of individuals.  One factor to consider on whether there has been sufficient regard includes, for example, whether the legislation adversely affects rights and liberties or imposes obligations retrospectively.
81. [81]
    Section 14B of the Acts Interpretation Act 1954 (Qld) permits reference to extrinsic material if a provision is ambiguous or obscure or to confirm the interpretation conveyed by the ordinary meaning of the provision.
82. [82]
    The Explanatory Notes to the Legislative Standard Bill note that the principles are not absolute, but it is important that proper regard be paid to them in drafting legislation.
83. [83]
    Parliament has the power to enact laws inconsistent with the legislative principles in section 4 of the LSA provided the explanatory note contains a brief assessment of the consistency of the Bill with fundamental legislative principles and, if it is inconsistent, reasons for the inconsistency.^[17]
84. [84]
    In this case, I consider there has been sufficient regard to the LSA principles even though it might be thought there is a “breach” of them.   
85. [85]
    There is no doubt there is community concern regarding juvenile offenders who commit serious crimes repeatedly. 
86. [86]
    The Explanatory Memorandum to the Strengthening Community Safety Bill 2023 noted that on 29 December 2022, the Queensland Government announced 10 new measures aimed at keeping the community safe.  The objective of the Bill was to give effect to these reforms.  It was noted that offending involving the unlawful use of motor vehicles was often accompanied by dangerous, risk-taking behaviour that places both the offender and the community at risk of harm including death.  The Bill also sought to respond to a small cohort of serious repeat young offenders who engaged in persistent and serious offending.  It was said that the youth justice sentencing framework would be strengthened by:

“Creating the ability of a sentencing court to declare a child a serious repeat offender in certain circumstances to ensure considerations such as community safety are paramount during sentencing and that serious repeat offenders are held in detention on sentence for longer than would normally be the case.  This will mean that, where appropriate, child offenders will have the opportunity to complete the necessary rehabilitation programs identified in any pre-sentence report.”

87. [87]
    In regard to this declaration, it was noted that it is expected that courts would likely impose harsher penalties and that the regime would operate with a degree of retrospectivity which breaches s 4(3)(g) of the LSA.  In this regard though, even though it would impact on the rights and liberties of child offenders, it is considered justified to address the acute problem presented by serious repeat offenders who continue to put the community at harm.  It is noted there are provisions in the Bill to require a court to provide reasons for making the declaration.  Further, the Bill provides that the child is still able to make an application for review of and appeal the making of the declaration as though a part of the sentence.  This ensures that the regime is still subject to appropriate review and appeal.
88. [88]
    It may be accepted that s 150A of the YJA might produce harsher sentences, but to my mind, there are a number of protective factors in the section.  Firstly, the order is not easily made.  Secondly, there is a requirement for the court to determine matters with a high probability and finally, the section specifically sets out the factors to which the Court must have regard. 
89. [89]
    In my view, a breach of the LSA does not invalidate this legislation.  It only says that “sufficient regard” must be had to the principles.  Sufficient regard was had here.
90. [90]
    I find that the legislation is valid.

Whether the declaration should be made

Crown submissions

91. [91]
    The Crown submits that a declaration should be made.  It submits the child is to be sentenced for a prescribed indictable offence and he has previously had a detention order.  There is a significant history.
92. [92]
    The court would be satisfied there is a high probability the child will commit further prescribed indictable offences.  This is supported by the pre-sentence reports which note:

    1. (a)
       The child demonstrates a significant lack of empathy and limited understanding of how the offences impacted the victims.
    2. (b)
       He was unable to demonstrate any intention of ceasing his offending behaviour.
    3. (c)
       He did not really express any intention in returning to school or obtaining employment.
    4. (d)
       He expressed an intention to continue his association with other young offenders.
    5. (e)
       He intended to continue to use cannabis.
    6. (f)
       He was unwilling to comply with a Restorative Justice Order.     

Defence submissions

93. [93]
    The defence on the other hand submits that whilst the court might consider there is a probability of further offending, it cannot be proved there is a “high” probability.  It further submits there is some evidence of rehabilitation in this case.

Determination

94. [94]
    In this particular case I find as follows:

1. At least one detention order has been made against this child previously (7 October 2021 and 25 August 2022).
2. The Court has ordered a pre-sentence report and I have received and considered the report.
3. I have had regard to the child’s offending history and bail history. There are numerous entries for unlawful use of a motor vehicle and failure to appear.  There are numerous entries for burglary.  There is a serious assault on a 74-year-old woman.  There are breaches of orders.  There is a previous entry for robbery.
4. I have had regard to the child’s efforts of rehabilitation, but they are not good.  The offences before me were committed in breach of various orders including probation, a conditional release order and a restorative justice order.

The pre-sentence report notes:

1. (a)
   he has a disregard for authority;
2. (b)
   he continues to engage in anti-social behaviours;
3. (c)
   there is minimal willingness to engage in education or employment;
4. (d)
   his peer relationships hold a greater importance to him than his parents;
5. (e)
   he has a growing anti-social network;
6. (f)
   he used drugs and canvassed opportunities for offending;
7. (g)
   he joined the other offenders without hesitation;
8. (h)
   his drug use impaired his thinking;
9. (i)
   he committed the offences to obtain goods – it was a way of making easy money;
10. (j)
    he failed to express appropriate remorse;
11. (k)
    there was a lack of empathy;
12. (l)
    he did not demonstrate any intent of ceasing his offending behaviour;
13. (m)
    he did not consider removing himself from the situation despite ample opportunities to do so;

5. I am satisfied there is a high degree of probability the child will commit further prescribed indictable offences such as unlawful use of a motor vehicle (s 408C), life offences (robbery, burglary (with circumstances of aggravation)), attempted robbery (s 412), and assault occasioning bodily harm (s 339).
6. I consider there is a strong need to protect members of the community. 

95. [95]
    I have decided to declare the child is a serious repeat offender.
96. [96]
    I have given the parties liberty to apply in the case of any technical errors concerning the sentence.

Orders

97. [97]
    For the reasons given, I make the following orders:

1. With respect to Indictment 270/23:

1. (a)
   On count 1, a conviction is recorded and I order the child be detained for 12 months.

2. (b)
   On count 2, a conviction is recorded and I order the child be detained for 2 years.

3. (c)
   On count 3, a conviction is recorded and I order the child be detained for 12 months.

2. With respect to Indictment 269/23:

1. (a)
   On count 1, a conviction is recorded and I order the child be detained for 12 months.

2. (b)
   On count 2, a conviction is recorded and I order the child be detained for 18 months.

3. (c)
   On count 3, a conviction is recorded and I order the child be detained for 12 months.

3. I find the child has breached the conditional release order made on 25 August 2022. Pursuant to s 246A of the Youth Justice Act 1992 (Qld) I revoke the conditional release order and order the child serve detention of eight months and 27 days. 
4. I discharge the 12-month restorative justice order made on 25 August 2022. I resentence the child to a reprimand.
5. I order that all sentences of detention be served concurrently with each other.
6. Pursuant to s 227(2) of the Youth Justice Act 1992 (Qld), I order the child be released after serving 60 percent of the period of detention.
7. I find the child has breached the probation order imposed on 25 August 2022. I take no action with respect to that breach.
8. Pursuant to s 150A of the Youth Justice Act 1992 (Qld), I declare the child is a serious repeat offender.
9. I give liberty to apply.