MJPL v The King[2024] QCHC 14

CHILDRENS COURT OF QUEENSLAND

1. [1]
   This is an application for sentence review.  It is also an application to extend time within which to file the application for sentence review.  The application to extend time is not opposed.  I therefore need not go through the reasons for the delay, and it is appropriate that leave be granted to extend time as sought – and such leave is granted. 
2. [2]
   The review arises from a sentence hearing that occurred on the 30th of April 2024 at the Rockhampton Childrens Court.  The applicant was facing a number of charges – 18 in total.  He entered pleas of guilty, and each plea of guilty was accepted to be an early plea of guilty in the circumstances.  He had pleaded at an earlier time and pre-sentence reports were prepared.  And those pre-sentence reports related to 17 of the 18 charges.  The charge to which they did not relate was one charge of serious assault.  The applicant also had spent 83 days in pre-sentence custody on remand for those charges.  He was, at the time of the offending conduct, 14 years of age.  He was sentenced to six months detention to be served by way of a conditional release order for a period of six months for 17 of the offences, and a 12-month probation order for the serious assault charge.  No convictions were recorded. 
3. [3]
   It is submitted that the totality of the sentence imposed is excessive in the circumstances and for that reason, the applicant should be successful in his review application.  The application is not opposed in respect of one of the charges – that was a charge of trespass.  It is agreed that in respect of that charge, which was laid under section 334 of the Education (General Provisions) Act 2006 (Qld). Section 334 provides, though, that the maximum penalty for that offence was one of 20 penalty units.  So the sentence imposed in respect of that offence was not one which was open to the court, and was therefore an unlawful sentence. 
4. [4]
   At the time of the commission of these offences, the applicant had been sentenced on two prior occasions, and had received periods of probation on each of those occasions – and in fact, was still the subject of one of those probation orders at the time of the commission of the subject offences.  The information placed before the court, however, noted that his reporting on that order, excluding his reoffending, was considered to be satisfactory, and Youth Justice had not commenced breach proceedings. 
5. [5]
   Of course, on a review of this nature, the review is conducted by way of rehearing, and is to be conducted as expeditiously and with as little formality as is possible in the circumstances. 
6. [6]
   The pre-sentence reports which were provided to the court speak in detail of the applicant’s dysfunctional background and upbringing.  Without going through the full details of his unfortunate life, he had an absence of stable parental figures.  In fact, his biological father was unknown, and he has no relationship with his mother and her whereabouts are also unknown.  He had been exposed to significant  domestic violence, substance misuse and neglect and multiple kinship arrangements with several family members.  He had been the subject of insufficient supervision and other forms of neglect.  He had been to seven different primary schools.  He had a diagnosed language disorder, and his standard Australian English was assessed as being significantly underdeveloped when compared with same-aged peers.  He also scored in the extremely low range for his overall cognitive ability and could meet the criteria for a diagnosis of intellectual disability. 
7. [7]
   It is submitted on behalf of the applicant that the learned Magistrate placed undue weight on his history and did not have proper regard to the period of pre-sentence custody, the earlier pleas of guilty, the prejudicial upbringing and his disadvantaged circumstances.  It is further submitted that the Magistrate failed to give consideration – or sufficient consideration to the global effect of the two orders which were made. 
8. [8]
   It must be noted that, as I read the material, the reason the two orders were made in the way that they were seems to stem from the fact that the pre-sentence reports that were prepared did not involve the charge of serious assault.  Hence, under the legislation, a sentence of detention could not have been ordered in respect of that charge, and I perceive that to be the reason why a different sentence was imposed in respect of that matter when compared to the other 17 charges before the court. And whilst that in and of itself is not an issue, the sentencing court must, of course in such a circumstance, have due regard to the overall sentence which is being imposed, and in the circumstances of this matter, that includes the fact that the applicant had spent 83 days in pre-sentence custody.  That is a long period of time for a child of his age, and particularly so for someone with a reasonably limited criminal history. 
9. [9]
   Part of the problem facing the applicant is the fact that the applicant’s legal representative at the sentence hearing, during the course of submissions, submitted that the sentences which were ultimately imposed were within the appropriate range in the circumstances of this particular matter.  The fact that that was conceded of course immediately, whilst not determinative of the issue, is of some relevance to this court’s consideration having regard to the decision of R v Walsh [2008] QCA 391.  But the court must of course make an assessment for itself as to what might be considered to be the appropriate sentence, and one of the matters to take into account is the submission on behalf of the applicant, and it must be said here that the applicant’s legal representative seemed to provide little assistance to the court as to an appropriate sentence in the circumstances. 
10. [10]
    I note that the probation period which was imposed is the maximum that was allowable for the offence in question.  On reading the material, it is not readily clear how the 83 days of pre-sentence custody was taken into account by the learned Magistrate, notwithstanding that Her Honour made reference to relevant sentencing principles during the course of her remarks. But it must be noted that, even with such comments, just how that 83 days was taken into account is not readily discernible.  Given that the maximum period of probation was imposed, given that the maximum period for a conditional release order period was imposed, it becomes reasonably clear that insufficient, if any, regard to the 83 days was given in the determination of the overall sentence. 
11. [11]
    The respondent opposes the application for review other than for that relating to the charge of trespass and submits that the orders imposed fell within the sound sentencing discretion, particularly given that they were consistent with the submissions of legal representatives at the time.  But as I have indicated, that is not the end of the matter. 
12. [12]
    I do not intend to go through the facts in respect of each of these offences during the course of these ex tempore remarks, but it does appear that, for some of those charges, a sentence of six months detention to be served by way of a six-month conditional release order was demonstratively excessive given the relatively minor nature of the offending conduct.  In that regard, I refer to two offences of breach of bail and two offences of receiving tainted property.  The Magistrate has clearly sentenced on a global basis taking all criminality across all of the offences into account, but that does not then mean that each of the charges is deserving of the most serious punishment.  In fact, quite the contrary is the case and there ought to have been some distinction as to penalties imposed for less serious charges.  That is a further issue in relation to the sentences imposed in this matter.  I should add to those charges, there was also the possess utensils or pipes charge. That was also a reasonably minor matter. 
13. [13]
    So making those observations, I am of the view that the sentences imposed were excessive in the circumstances and that this court ought to accept the application and sentence afresh, and I so order.  I find the submissions of the legal representative for the applicant in respect of the following charges to be appropriate and reasonable and I accept the submission as to penalty in that regard. 
14. [14]
    In respect of the following charges I order that the applicant be sentenced in respect of each charge to three months detention to be served by way of a three month conditional release order.  Those charges being: 

• entering a premises and committing an indictable offence between the 1st of January 2024 and the 4th of January 2024;
• enter a dwelling and committing an indictable offence on the 7th of January 2024;
• unlawful use of a motor vehicle on the 7th of January 2024;
• attempted enter a dwelling with intent on the 15th of January 2024;
• attempted entry of a premises with intent to commit an indictable offence on the 15th of January 2024;
• entry of a premises and committing an indictable offence by break on the 2nd of February 2024;
• unlawful use of a motor vehicle on the 7th of February 2024;
• driving of a motor vehicle without a driver licence never held licence on the 7th of February 2024;
• enter a dwelling and commit an indictable offence on the 7th of February 2024;
• unlawful use of a motor vehicle on the 7th of February 2024; and
• unlawful use of a motor vehicle use in the night on the 7th of February 2024.

I order that the sentences imposed below also be set aside for the following offences, and that a period of nine months probation is appropriate and I so order.  Nine months to reflect the 83 days of pre-sentence custody that the applicant had spent on remand.  So in respect of the following charges, the applicant is sentenced to nine months probation with the usual conditions that attach to that order under the legislation. Those charges being: 

• breach of a bail condition on the 27th of January 2024;
• breach of a bail condition on the 3rd of February 2024;
• two counts of receiving tainted property on or about the 7th of February 2024; and
• the offence of serious assault of a public officer by spitting on the 24th of April 2024.

15. [15]
    In relation to the charge of trespass under the Education (General Provisions) Act 2006 (Qld) that order is set aside and the applicant is reprimanded.
16. [16]
    In relation to the charge of possessing utensils or pipes etcetera that had been used on the 15th of January 2024, again, that sentence is set aside and, again, the applicant is reprimanded. 
17. [17]
    I order that no convictions be recorded in respect of these charges.