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W (a child) v Commissioner of Police[2024] QCHC 4

W (a child) v Commissioner of Police[2024] QCHC 4

CHILDRENS COURT OF QUEENSLAND

CITATION:

W (a child) v Commissioner of Police [2024] QChC 4

PARTIES:

W (a child)

(appellant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO:

D170/23

DIVISON

Appellate

PROCEEDING:

Appeal against sentence

ORIGINATING COURT:

Childrens Court (Magistrate)

Maroochydore

DELIVERED ON:

10 May 2024

DELIVERED AT:

Maroochydore

HEARING DATE:

23 April 2024, 2 May 2024

JUDGE:

Cash DCJ

ORDERS:

  1. 1.The appeal is allowed.
  2. 2.The orders of the Childrens Court Magistrate of 18 October 2023 are set aside.
  3. 3.Instead, the charges are dismissed pursuant to section 24A of the Youth Justice Act 1992 (Qld).
  4. 4.The offences are referred to the chief executive for a restorative justice process pursuant to section 24A(2) of the Youth Justice Act 1992 (Qld).
  5. 5.There is no order as to the costs of the appeal.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND A NEW TRIAL – APPEAL AGAINST SENTENCE – criminal law – particular offences – where the appellant was 17 years old at the time of the offending – where the appellant drove a car with a blood alcohol concentration above the legal limit and was obstructive of police – where the appellant had no criminal or traffic history and was otherwise of a good character – where a police officer chose not to refer the offences for a restorative justice process – where, upon pleas of guilty, the Magistrate declined to dismiss the charges pursuant to section 24A of the Youth Justice Act 1992 (Qld) – whether the decision of the Magistrate not to dismiss the charges was affected by error

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – what is the proper construction of section 24A – whether section 24A requires a consideration of the facts and circumstances as they are at the time of the police officer’s choice or at the time of the application to the Magistrate – consideration of extrinsic material – explanatory memoranda, parliamentary debates and materials

LEGISLATION:

Acts Interpretation Act 1954 (Qld), s 14A, s 14B, s 32CA

Justices Act 1886 (Qld), s 222, s 225

Youth Justice Act 1992 (Qld), s 2, s 3, s 8, s 11, s 14, s 15, s 16, s 21, s 22, s 24A, s 117, s 162, s 164, s 254, sch 1, sch 4

CASES:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27

NIGHT v Director of Public Prosecutions [2022] QChC 6

Pullen v O'Brien [2014] QDC 9

R v A2 [2019] HCA 35; 269 CLR 507; 93 ALJR 1106

R v PBD [2019] QCA 59

Teelow v Commissioner of Police [2009] QCA 84; 2 Qd R 489

ZXL v The Commissioner of Police [2022] QDC 293

APPEARANCES:

C Lumme of Lumme Rynderman for the appellant.

L Dennis instructed by the Director of Public Prosecutions for the respondent.

Introduction

  1. [1]
    The appellant was 17 years old when he drove a car with a blood alcohol concentration of 0.133%. When the police stopped him, the appellant was obstructive. The appellant had no criminal or traffic history and was otherwise of good character. The offences occurred in the context of the recent death of the appellant’s father and what seems to have been his subsequent psychological distress. At the time, a police officer decided not to refer the offences for a restorative justice process, as they might have pursuant to sections 11 and 22 of the Youth Justice Act 1992 (Qld) (‘YJA’). Instead, a criminal proceeding for charges of driving over the middle alcohol limit and obstructing police was commenced by a notice to appear. When he sobered up, the appellant apologised to the police involved and sought counselling.
  2. [2]
    The appellant pleaded guilty at the first mention of the charges. The Magistrate was asked by the appellant’s lawyer to dismiss the charges pursuant to section 24A of the YJA. This provision permits a Childrens Court to dismiss a charge instead of accepting the plea if ‘the court is satisfied the offence should have been referred…for a restorative justice process’ by the police. The Magistrate declined to make any order under s 24A and proceeded to reprimand the appellant. The acceptance by the court of appellant’s pleas of guilty and the sentence order[1] which was made triggered the mandatory licence disqualification provisions of the legislation.[2] The appellant was disqualified from holding or obtaining a driver’s licence for a period of three months.
  3. [3]
    The question presented by this appeal is whether the decision of the Magistrate to not dismiss the charges pursuant to section 24A was affected by error.[3] The answer to this question turns upon the proper construction of section 24A. The respondent contends that section 24A requires a limited review of whether the decision of the police officer was correct, having regard only to the facts and circumstances as they were at the time of the police officer’s decision. The appellant contends the operation of section 24A is broader and includes a consideration of the facts and circumstances as they are at the time of the application to the Magistrate. For the reasons which follow, the appellant is correct. When an application is made pursuant to section 24A of the YJA, the matters to which regard must be had will include relevant facts or circumstances which have arisen after the decision of the police.
  4. [4]
    To explain why this is so it is necessary to begin with the legislation.

Legislation

  1. [5]
    The YJA has among its objects the establishment of a code for dealing with children who have, or are alleged to have, committed an offence, and seeks to ensure children are dealt with in accordance with the principles established under the Act.[4] These include the charter of youth justice principles found in Schedule 1, which are said to underlie the Act.[5] The most relevant of these principles for present purposes are:
  1. 5
    If a child commits an offence, the child should be treated in a way that diverts the child from the courts’ criminal justice system, unless the nature of the offence and the child’s criminal history indicate that a proceeding for the offence should be started.
  2. 6
    A child being dealt with under this Act should have procedures and other matters explained to the child in a way the child understands.
  1. [6]
    Police officers who suspect a child has committed an offence have a choice as to whether to commence a criminal proceeding against a child. Where, as in this case, the alleged offence is not a ‘serious offence’,[6] the choice is to be made having regard to section 11 of the YJA, which relevantly provides:[7]

11 POLICE OFFICER TO CONSIDER ALTERNATIVES TO PROCEEDING AGAINST CHILD

  1. (1)
    Unless otherwise provided under this division, a police officer, before starting a proceeding against a child for an offence other than a serious offence, must first consider whether in all the circumstances it would be more appropriate to do 1 of the following—
  1. (a)
    to take no action;
  2. (b)
    to administer a caution to the child;
  3. (c)
    to refer the offence to the chief executive for a restorative justice process;

…

  1. (2)
    The circumstances to which the police officer must have regard include—
  1. (a)
    the circumstances of the alleged offence; and
  2. (b)
    the child’s criminal history, any previous cautions administered to the child for an offence and, if the child has been in any other way dealt with for an offence under any Act, the other dealings.
  1. (3)
    If necessary, the police officer must delay starting the proceeding in order to comply with a requirement under subsection (1) or (2).
  2. (4)
    If, on complying with subsections (1) and (2), the police officer considers it would be more appropriate to act as mentioned in subsection (1)(a), (b), (c), (d) or (e), then the police officer must do so.
  3. (5)
    If, on complying with subsections (1) and (2), the police officer considers it would not be more appropriate to act as mentioned in subsection (1) (a), (b), (c), (d) or (e), the police officer may start a proceeding against the child for the offence.

…

  1. [7]
    The effect of section 11 is to impose a mandatory requirement on a police officer to consider diverting a child from the criminal justice system. A decision to proceed with a criminal charge may only be made if a diversion is ‘not more appropriate’. The charter of youth justice principles is relevant to this choice. The principles set out above reinforce the desirability of diverting children from the criminal justice system and emphasise the need to ensure the child understands all relevant matters. The latter also finds expression in section 11(3) which requires the police officer to delay starting a proceeding if that is necessary to properly consider and decide whether the child should be diverted or charged.
  2. [8]
    Section 22 provides a power, complementary to section 11, for a police officer to refer a child to the chief executive for a ‘restorative justice process’. It provides:

22 WHEN POLICE OFFICER MAY REFER OFFENCE FOR RESTORATIVE JUSTICE PROCESS

  1. (1)
    This section applies if a child admits committing an offence to a police officer.
  2. (2)
    Instead of bringing the child before a court for the offence, the police officer may, by written notice given to the chief executive, refer the offence to the chief executive for a restorative justice process.
  3. (3)
    However, the police officer may make the referral only if—
  1. (a)
    the child indicates willingness to comply with the referral; and
  2. (b)
    having regard to the deciding factors, the officer considers—
  1. (i)
    a caution is inappropriate; and
  2. (ii)
    a proceeding for the offence would be appropriate if the referral were not made; and
  3. (iii)
    the referral is a more appropriate way of dealing with the offence than starting a proceeding.
  1. (4)
    The "deciding factors" for referring an offence to the chief executive for a restorative justice process are—
  1. (a)
    the nature of the offence; and
  2. (b)
    the harm suffered by anyone because of the offence; and
  3. (c)
    whether the interests of the community and the child would be served by having the offence dealt with under a restorative justice process.
  1. (5)
    The police officer must inform the child generally of the restorative justice process and potential consequences for the child if he or she fails to properly participate in the process.
  2. (6)
    If the referral is accepted by the chief executive, the chief executive must give written notice of the acceptance to the police officer and the child.
  1. [9]
    A police officer, when choosing how to proceed pursuant to section 11 of the YJA, will have to apply section 22 to decide whether a referral for a restorative justice process is ‘more appropriate’ than starting a proceeding against the child.[8] The combination of section 11(3) and section 22 means that, in some cases, the police officer must delay starting the proceeding so that proper consideration can be given to referring the offence for a restorative justice process. It would be impossible to describe all the circumstances where the necessity of delaying the decision under section 11 would arise. An obvious example would be where the child is so intoxicated they are unable to be interviewed by police, and thus are unable to admit committing the offence or indicate a willingness to comply with a referral.
  2. [10]
    There is also a requirement in section 22(5) that the police officer ‘inform the child generally of the restorative justice process and potential consequences for the child if he or she fails to properly participate in the process’. This provision reflects the youth justice principle that a ‘child being dealt with under this Act should have procedures and other matters explained to the child in a way the child understands’.[9] The obvious point at which this information is to be given is when the police officer is ascertaining whether the child is willing to comply with the referral. That is, it is necessary information to give to the child to allow them to decide if they admit their guilt for the offence and are willing to undertake a restorative justice process. To the extent the Queensland Police Operational Procedures Manual suggests this explanation follows the referral and its acceptance by the chief executive,[10] the manual seems to be inconsistent with the legislation. While it is not an issue to be decided in this appeal, it seems to me that process of a police officer choosing whether to refer an offence for a restorative justice process must include explaining the procedure to the child, and allowing for any delay required by section 11(3), before making a choice.
  3. [11]
    If the police officer chooses to commence a proceeding, section 24A permits the child to apply to a Magistrate for a dismissal of the charge. It relevantly provides:

24A  CHILDRENS COURT MAY DISMISS CHARGE IF OFFENCE SHOULD HAVE BEEN REFERRED TO RESTORATIVE JUSTICE PROCESS

  1. (1)
    If a child pleads guilty before a Childrens Court to a charge made against the child by a police officer, the court may dismiss the charge instead of accepting the plea of guilty if—
  1. (a)
    application is made for the dismissal by or on behalf of the child; and
  2. (b)
    the court is satisfied the offence should have been referred to the chief executive for a restorative justice process under section 22, regardless of whether or not the child admitted committing the offence to the police officer.
  1. (1A)
    In deciding the application, the Childrens Court may have regard to—
  1. (a)
    any cautions administered to the child for any offence; and
  2. (b)
    whether any previous restorative justice agreements have been made by the child.
  1. (2)
    If the court dismisses the charge, the court may refer the offence to the chief executive for a restorative justice process.

…

  1. [12]
    It is the construction of this provision which is at the heart of the present appeal. While the principles of statutory construction were not in dispute in the appeal, it is useful to briefly identify the relevant considerations.

Principles of statutory construction

  1. [13]
    The task of construing a statutory provision of Queensland to determine its meaning is dealt with in the Acts Interpretation Act 1954 (Qld) (‘AIA’). Section 14A of the AIA provides:

(14A)  INTERPRETATION BEST ACHIEVING ACT’S PURPOSE

  1. (1)
    In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.

…

  1. [14]
    In this context, ‘purpose’ includes a ‘policy objective’. Extrinsic material may be considered to determine the meaning of a provision that is ‘ambiguous or obscure’, or if the ordinary meaning of the words of the statute would produce a result that is manifestly absurd or unreasonable.[11] Regard may also be had to extrinsic material to ‘confirm the interpretation conveyed by the ordinary meaning of the provision’.[12]
  2. [15]
    The High Court has confirmed that the task begins with the text of the legislation, and its context, to determine what is intended by the language the parliament has employed.[13] ‘Context’ is to be understood in its widest sense. It includes the statute as a whole and what is to be seen as the mischief the statute seeks to remedy.[14] The application of these principles to the YJA as a whole, and section 24A in particular, will determine the meaning and effect of the provision.

What does section 24A require?

  1. [16]
    Section 24A provides a Childrens Court with the power to dismiss a charge instead of accepting a plea of guilty. The use of the permissive word ‘may’ in the section means that ‘the power may be exercised or not exercised, at discretion’.[15] But there are preconditions and criteria relevant to the exercise of the power dismiss a charge. The preconditions are that there must be an application for dismissal and that the court must be ‘satisfied the offence should have been referred’ for a restorative justice process under section 22. The second condition is subject to the express qualification that it does not matter if the child did not admit committing the offence to the police officer.
  2. [17]
    A non-exhaustive list of matters to be considered by the court is found in section 24A(1A).[16] These are the cautions administered to the child, if any, and whether there has been any previous restorative justice agreement concerning the child. The reference to section 22 calls up the relevant matters listed in that section, except for the requirement of section 22 that the child admitted to committing the offence, which is excluded by section 24A(1)(b). There is otherwise no statutory limit on the matters to which a Magistrate may have regard in determining an application for dismissal under section 24A.
  3. [18]
    Section 24A, along with sections 11 and 22, is in an early part of the YJA, which otherwise deals with interactions between police and children. Sections 22 and 24A are in Division 3 of this part, which is titled ‘Referral for restorative justice process’. In the context of the youth justice principles, especially the principle that diverting children from the criminal justice system is to be preferred, they may be seen as integrated provisions designed to allow multiple occasions at which the diversion of a child must or may be considered. The first occasion will be when a police officer is required by section 11 to choose how to proceed. The diversionary choices presented to the police officer include to take no action, to caution the child,[17] or to refer the offence for a restorative justice process. If the police officer chooses to start a proceeding against a child, section 24A presents another occasion at which diversion may be considered.[18] This construction is consistent with the preference of the legislation to see children diverted from the criminal justice system.
  4. [19]
    Understood in this context, the language of section 24A requires an answer to be arrived at having regard to all relevant circumstances as they exist at the time of the application. Where section 24A exists to provide a second occasion at which to consider a diversionary process, that is the only sensible construction of the provision. The narrow construction proposed by the respondent would be inconsistent with the section’s apparent purpose. The question might be asked, what is the point of providing a second occasion for considering a diversionary process if it is limited to a strict review of the correctness of the choice made by the police officer under sections 11 and 22?
  5. [20]
    Support for this conclusion is also found in the terms of section 24A, where the existence of one circumstance which may have prevented a police referral – the absence of an admission of responsibility to the police officer – is expressly removed from consideration. This is an example of a change in circumstances which the court is permitted to consider, and an indication that the court is not restricted to the circumstances as they were at the time of the police officer’s choice. While the requirement of section 22 that the child indicate a willingness to comply with the referral is not dealt with by section 24A in the same way, this does not change how the provision should be interpreted. That is because section 24A would otherwise be practically unworkable.
  6. [21]
    Imagine a case where a child, through immaturity or lack of understanding, does not indicate to the police officer a willingness to comply with a restorative justice referral. The police officer cannot, consistent with section 22, make a referral without the child’s indication. In such circumstances, the choice to not refer the offence is one compelled by the legislation. If the respondent’s submission is correct, and an application under section 24A is to be decided having regard only to whether the choice of the police officer was correct in the circumstances as they existed at the time, there would be no work for the section to do. The child would be foreclosed from making an application for dismissal under section 24A because the child did not tell the police officer they were willing to comply with a referral. This would be the case even if the reason was because the child was not told of the process, contrary to the charter of youth justice principles, or was not asked if they were willing to comply. This would be an absurd result.
  7. [22]
    There is little to commend the construction proposed by the respondent. The only textual indication in the legislation supporting the respondent’s submission is the use of the past tense phrase ‘should have been’. I accept, as the respondent submits, that taken literally the phrase calls attention to an event which has occurred in the past. This may suggest the issue for the court under section 24A is directed solely at whether the choice made by the police officer to not refer an offence was correct. In turn, this may suggest the focus is on the circumstances existing at the time of the choice. But for the reasons set out above, this would likely produce absurd results. In the circumstances the only sensible way to read section 24A is if ‘should have been’ was instead ‘should be’. That is, the question posed by section 24A(1)(b) is whether the court is satisfied the offence should be referred for a restorative justice process, having regard to the relevant facts and circumstances as they appear at the time of the application.
  8. [23]
    The manifestly absurd or unreasonable results of a literal application of the phrase ‘should have been’ means that it is permissible to have regard to extrinsic material to assist in the interpretation of the provision. The explanatory note to the Bill which inserted section 24A provides some assistance. After paraphrasing section 24A(1), the explanatory note continued:

The requirement that the child pleads guilty is consistent with the diversionary nature of this referral. This is a suitable option where the court considers a child or young person should be given an opportunity to be diverted from a justice system response, but a police officer did not exercise that discretion or the child’s refusal to be interviewed by police or failure or refusal to admit guilt during the interview, prevented police from making a diversionary referral. This strategy, aimed at reducing the risk of children and young people being unnecessarily criminalised through being further entrenched in the formal criminal justice system, is fundamental to addressing the overrepresentation of Aboriginal and Torres Strait Islander young people in the youth justice system, who are generally reluctant to cooperate with the police process.[19]

  1. [24]
    This passage specifically addresses only the absence of an admission of responsibility. But it indicates to me that Parliament did not intend for applications under section 24A to fail on niggling grounds or to be considered on the narrowly confined basis proposed by the respondent. The passage from the Explanatory Note provides support for the construction I would accept.
  2. [25]
    My conclusion is that a court deciding an application pursuant to section 24A of the YJA must have regard to all relevant facts and circumstances, whether or not those circumstances existed at the time a police officer chose not to make a referral for a restorative justice procedure.
  3. [26]
    With this in mind, it is necessary to consider the approach of the Magistrate in this case and whether the appellant has established the decision was affected by error.

Did the Magistrate misunderstand the legislation?

  1. [27]
    When addressing the appellant’s application for the charge to be dismissed, the police prosecutor submitted to the Magistrate that:

[Section] Two-fifty-four-four of the Youth Justice Act, when transitioned to youth – to 17 years olds into the youth justice system, it’s clearly designed to disqualify young people in relation to disqualification of driver’s licence.

  1. [28]
    Then, in the Magistrate’s sentencing remarks, the following exchange occurred:

HIS HONOUR: … In any event, this amendments to the – to the legislation in 2018, I think it was, it has been around for that long, that indicate to – knowing that 17 year olds – the story is this, okay. Was it – they were treated as up to 18 wasn’t it? And they brought it back to 17. Is that how it happened?

[PROSECUTOR]:  Seventeens used to be adults in the adult Court system.

HIS HONOUR:  Yes.

[PROSECUTOR]:  And then they made it to 18 to be an adult - - -.

HIS HONOUR:  That is right.

[PROSECUTOR]:  - - - for the Court system.

HIS HONOUR:  Yes. Pull it out to 18. Knowing that, knowing that, it dawned upon them that, hand on, what is going to go – we have got all of these provisional licence holders running around driving. Seventeen year olds in this jurisdiction. So they amended the legislation to say that the – you have – you, and anyone else at your age, will – are subject to the mandatory period of disqualification. Same as an adult. I understand there is a 24. There is a – there is a trap door there in respect of section twenty – 24A, but the – as I said, at that reading, in the circumstances, it is not appropriate and, in any event, I – you may be subject to a interlock when you come off the period of disqualification.

  1. [29]
    The statements of the prosecutor and Magistrate were a reference to section 254 of the YJA. This section picks up and applies provisions of other legislation concerning the disqualification of the driver’s licence of offenders in some circumstances. It was amended in 2018 to change its application to offenders who were children but at least 17 years old.[20] In its current form, section 254 provides for three outcomes when a child is found guilty of an offence which would require consideration of a licence disqualification order if the offender were an adult. First, if the disqualification provision creates a liability to be disqualified – such as section 187 of the Penalties and Sentences Act 1992 (Qld) – the child is liable to be disqualified to the same extent as an adult. Secondly, if the child offender is less than 17 years old and the disqualification provision sets a mandatory disqualification, the mandatory disqualification applies only if a conviction is recorded. Thirdly, if the child offender is at least 17 years old and the disqualification provision is mandatory, it applies whether a conviction is recorded or not.
  2. [30]
    It is a little difficult to determine the significance placed by the Magistrate on section 254 when deciding whether to dismiss the charge under section 24A. One available view of the statements of the Magistrate set out above is that he thought Parliament, by amending section 254, intended child offenders to be subject to mandatory licence disqualification provisions. It seems that the Magistrate took this as an indication that he should not use section 24A as a ‘trapdoor’ to escape the result of Parliament’s intention. If that is what the Magistrate thought, it is wrong. Section 254 is a facilitative provision in Part 7 of the YJA, which deals with sentencing child offenders. Section 24A is in Part 2; ‘Special provisions about policing and children’. There is no indication that in amending section 254 Parliament intended to affect the interpretation or operation of section 24A. In particular, the amendment to section 254 cannot be understood as an indication by Parliament that the dismissal of a proceeding pursuant to section 24A is inappropriate for all 17-year-olds who commit offences which might be subject to a mandatory disqualification order. Such a conclusion would be contrary to the charter of youth justice principles, which favours the diversion of a child from the criminal justice system, unless the nature of the offence and the child’s criminal history indicate otherwise.
  3. [31]
    Section 254 does not operate as a fetter or constraint on the discretion conferred by section 24A. If the Magistrate decided that the amendment to section 254 meant that he could not, or should not, dismiss the charges under section 24A, that is a wrong understanding and would amount to an error of law.[21] Section 254 by itself says nothing about how the discretion conferred by section 24A is to be exercised. Having regard to the extract of the proceeding set out above, it seems to me that the Magistrate wrongly constrained himself in deciding the application for dismissal of the charges under section 24A. The result is that the Magistrate’s decision to dismiss the application was affected by error, with the consequence that the Magistrate wrongly confined himself to making a sentence order as the only way in which to dispose of the charges.

Other asserted errors

  1. [32]
    The appellant also submitted that, having regard to the proper construction of section 24A, the Magistrate erred by failing to have consider relevant matters. This submission must also be accepted. There is no indication that the Magistrate had any regard to the position of the appellant at the time of the application under section 24A. To be fair to the Magistrate, the duty lawyer then appearing for the appellant (who was not the solicitor in this appeal) made no submissions about the effect of section 24A, and only briefly mentioned the appellant’s current circumstances. Nevertheless, having regard to the conclusion I have reached about the construction of section 24A, it is apparent the Magistrate failed to consider all relevant matters. Indeed, apart from the significance of section 254, the only matter identified by the Magistrate was the appellant’s blood alcohol concentration. During submissions, the Magistrate said, ‘section 24A application is refused. It’s refused even on the basis of the reading of 133.’ This must be taken as a reference to the nature of the offence, which is one of the ‘deciding factors’ for section 22 of the YJA.
  2. [33]
    The matters which were relevant, and which the Magistrate should have considered, included what was said by the duty lawyer, which was as follows:

My client is 17. He lives with Mum and two young sisters, who are six and 12. Dad passed away recently from brain cancer, so, effectively, my client is the man of the house. He's in year 11 at Nambour Christian college, doing very well. He is an elite basketball player. He is trialling for the Queensland team this Saturday, and he was just awarded the most valued player from his school. He also plays in the men’s team and also in the Queensland state league team.

Your Honour, his – as I said, his father passed away two years ago – sorry – sorry – grief is just starting to bubble to the surface, unfortunately. After this incident with the police and the drink driving, he has engaged with a counsellor weekly and is back on track. Your Honour, he’s very remorseful. The behaviour is very out of character. He has apologised to the police over the phone, I’m instructed. Your Honour, Mum is a support worker, and she works in Brisbane. The impact for the entire family if my client was to lose his licence is huge.

  1. [34]
    There is no indication in the Magistrate’s reasons that he considered anything apart from what he thought was the intention of Parliament in amending section 254 and the seriousness of the offence. The former was irrelevant, and the latter was far from the only consideration. This failure to consider relevant matters is another indication that the sentencing decision was affected by error.
  2. [35]
    A further submission was advanced by the appellant to the effect that the sentence miscarried because the Magistrate did not consider a restorative justice process referral as required by section 162(1) of the YJA. This provision was considered by the Court of Appeal in R v PBD.[22] Sofronoff P, with whom McMurdo JA and Wilson J agreed, held that the requirement of section 162 to consider a referral is mandatory,[23] but in the circumstances of that case the failure to consider section 162 was an omission which ‘leads nowhere’.[24] This appeal has some similarities to R v PBD. While the Magistrate did not consider section 162, he was not asked to by the prosecutor or duty lawyer. I would be hesitant to attribute this to a considered decision on the part of the duty lawyer, but it explains the failure of the Magistrate to refer to section 162. Having regard to the busy nature of a jurisdiction such as the Childrens Court constituted by a Magistrate, it would be pernickety to find error in a failure to refer to a matter not mentioned by the parties.
  3. [36]
    It also seems to me unlikely that a consideration of section 162 and its associated sections would have led to a different result. The orders of the Magistrate were to reprimand the appellant and to make the mandatory order for licence disqualification. A restorative justice process referral, even a court diversion referral,[25] would arguably have been a more onerous sentence and still would have required the disqualification of the appellant’s licence.[26] In these circumstances I am not persuaded that the failure to consider section 162 could justify interfering with the sentence orders of the Magistrate.

Disposition of the appeal

  1. [37]
    Because the sentence orders made by Magistrate were affected by the errors identified above, it is open to this court to make any other I consider just, including by exercising the powers available to the Magistrate at the time.[27] In this case that included the power to dismiss the charges pursuant to section 24A of the YJA. The parties agreed that I was in a position to decide what orders were just, based on the facts and circumstances as they were revealed in the proceeding before the Magistrate. Neither the appellant nor respondent wished to take up an opportunity to put on further evidence of the appellant’s circumstances at the time of the appeal.
  2. [38]
    The facts and circumstances which favoured a lenient approach were:
    1. (a)
      The appellant was only 17 years old;
    2. (b)
      He had no prior traffic infringements or criminal offences;
    3. (c)
      The offending was uncharacteristic;
    4. (d)
      It occurred in the circumstances of the recent death of the appellant’s father, which left him as the oldest male in household. The appellant was distressed, with the prosecutor informing the court that he was heard by friends to be threatening suicide at the time;
    5. (e)
      A licence disqualification would cause particular hardship to the appellant’s family;
    6. (f)
      He was remorseful and apologised to the police for his behaviour.
  3. [39]
    Against that was the obvious seriousness of driving while drunk with a high blood alcohol concentration, which was aggravated by the appellant’s behaviour when stopped by police. Even so, the only conclusion which could be reached is that the offending was an unfortunate aberration in the life of an otherwise good 17-year-old who had experienced significant trauma in recent years. The appellant’s remorse, apology and counselling were each powerful indicators that diversion was appropriate, consistent with the statutory principle that diversion is to be preferred.
  4. [40]
    The appellant had not previously been cautioned or reached a restorative justice agreement.[28] He had pleaded guilty and was willing to participate in a restorative justice process. The offences were serious, but no harm was caused and the ‘interests of the community and the child would be served by having the offence[s] dealt with under a restorative justice process’.[29] A referral was a more appropriate way of dealing with the appellant than continuing to sentence him in a criminal proceeding. Having regard to the above facts and circumstances, the appropriate order is that the charges be dismissed pursuant to section 24A of the YJA, without the plea being accepted by the court. It is also appropriate, and consistent with the submission of the appellant, to refer the offences to the chief executive for a restorative justice process pursuant to section 24A(2).
  5. [41]
    The effect of these orders will be that the mandatory disqualification provisions picked up by section 254 of the YJA have no application. That is because the provisions of section 254 only apply if a child is ‘found guilty of an offence’. A ‘finding of guilt’ means ‘a finding of guilt, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded’.[30] As neither has occurred in this case section 254 is not engaged and the appellant’s licence will not be disqualified. This is not an inappropriate response, having regard to the charter of youth justice principles which underlie the YJA.
  6. [42]
    Neither party sought the costs of the appeal.
  7. [43]
    The appropriate orders are:
  1. 1.The appeal is allowed.
  2. 2.The orders of the Childrens Court Magistrate of 18 October 2023 are set aside.
  3. 3.Instead, the charges are dismissed pursuant to section 24A of the Youth Justice Act 1992 (Qld).
  4. 4.The offences are referred to the chief executive for a restorative justice process pursuant to section 24A(2) of the Youth Justice Act 1992 (Qld).
  5. 5.There is no order as to the costs of the appeal.

Footnotes

[1] YJA, schedule 4.

[2] ZXL v The Commissioner of Police [2022] QDC 293.

[3] The appeal is brought to the Childrens Court of Queensland by way of section 222 of the Justices Act 1886 (Qld), which is picked up by section 117 of the YJA. As this is an appeal against sentence, it is necessary for the appellant to demonstrate the decision at first instance was affected by error – see Teelow v Commissioner of Police [2009] QCA 84; 2 Qd R 489, [4]; Pullen v O'Brien [2014] QDC 92, [37]-[39].

[4] YJA, section 2.

[5] YJA, section 3.

[6] YJA, section 8.

[7] Part of section 11 concerning the diversion of minor drug offences and graffiti offences are not presently relevant and have not been reproduced.

[8] The police officer will also have to consider cautioning the child pursuant to Part 2, Division 2, but that is not presently relevant.

[9] YJA, schedule 1, section 3, item 5.

[10] Queensland Police Service, Operation Procedures Manual Issue 99.1 Public Edition, (2024) 5.6.1.

[11] AIA, section 14B.

[12] Ibid.

[13] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 46–47 [47].

[14] R v A2 [2019] HCA 35; 269 CLR 507; 93 ALJR 1106, [33].

[15] AIA, section 32CA.

[16] Subsection (1A) formed part of section 24A when it was inserted into the YJA in 2016. The numbering, which might otherwise suggest a later addition, reflects that (1A) was proposed and agreed to during parliamentary debates about the amending Bill.

[17] YJA, sections 14, 15 and 16.

[18] As does section 21 of the YJA in the case of cautions.

[19] Explanatory Note, Youth Justice and Other Legislation Amendment Act (No. 2) 2016 (Qld) 10.

[20] Explanatory Note, Tow Truck and Other Legislation Amendment Act 2018 (Qld) 14.

[21] A similar error was made by a Magistrate in NIGHT v Director of Public Prosecutions [2022] QChC 6, [18]–[19].

[22] [2019] QCA 59.

[23] Ibid, [29].

[24] Ibid, [39].

[25] YJA, section 164.

[26] ZXL v The Commissioner of Police [2022] QDC 293.

[27] Justices Act 1886 (Qld), section 225.

[28] YJA, section 24A(1A).

[29] YJA, section 22(4).

[30] YJA, schedule 4.

Close

Editorial Notes

  • Published Case Name:

    W (a child) v Commissioner of Police

  • Shortened Case Name:

    W (a child) v Commissioner of Police

  • MNC:

    [2024] QCHC 4

  • Court:

    QChC

  • Judge(s):

    Cash KC DCJ

  • Date:

    10 May 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
2 citations
Jump To
Cite 1 - (2009) 239 CLR 27
Cite 2 - (2009) 239 CLR 27
Night v Director of Public Prosecutions [2022] QCHC 6
2 citations
Jump To
Cite 1 - [2022] QCHC 6
Cite 2 - [2022] QCHC 6
Pullen v O'Brien [2014] QDC 92
1 citation
Jump To
Cite 1 - [2014] QDC 92
R v A2 [2019] HCA 35
2 citations
Jump To
Cite 1 - [2019] HCA 35
Cite 2 - [2019] HCA 35
R v Lees [2014] QDC 9
1 citation
Jump To
Cite 1 - [2014] QDC 9
R v PBD [2019] QCA 59
2 citations
Jump To
Cite 1 - [2019] QCA 59
Cite 2 - [2019] QCA 59
Teelow v Commissioner of Police[2009] 2 Qd R 489; [2009] QCA 84
2 citations
Jump To
Cite 1 - [2009] QCA 84
Cite 2 - [2009] QCA 84
ZXL v The Commissioner of Police [2022] QDC 293
3 citations
Jump To
Cite 1 - [2022] QDC 293
Cite 2 - [2022] QDC 293
Cite 3 - [2022] QDC 293

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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