R v KTB[2025] QCHC 3

CHILDRENS COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant was sentenced in the Townsville Childrens Court on 13 February 2025 in relation to, inter alia, the following offences:

   1. 1 x unlawful use of a motor vehicle, in company;
   2. 2 x enter premises with intent to commit an indictable offence;
   3. 2 x enter premises and commit an indictable offence, by break.
2. [2]
   For these offences, he was sentenced to a 12 month detention order, pursuant to s. 175A(2)(b)(i) of the Youth Justice Act 1992 (Qld) (the Act) accompanied by an order that he be released after serving 51 days in detention.^[1]  Due to time already spent in detention on remand, the effect of the order was that the applicant was released immediately on a supervised release order.
3. [3]
   Convictions were not recorded.
4. [4]
   For the remaining offences, which are not the subject of this review, he was reprimanded.
5. [5]
   The applicant seeks a review of the detention order.

The law – sentence review

6. [6]
   A Childrens Court Judge may review the sentence order of a Childrens Court Magistrate.^[2]
7. [7]
   A review must be by way of rehearing on the merits^[3] and must be conducted expeditiously and with as little formality as possible.^[4]
8. [8]
   In deciding the review, the Childrens Court Judge may have regard to a record of the proceeding before the Childrens Court Magistrate, and any further submissions and evidence by way of affidavit or otherwise.^[5]
9. [9]
   On reviewing the sentence order, a Childrens Court Judge may confirm the order, vary or discharge the order and substitute another order within the jurisdiction of the Childrens Court Magistrate to make.^[6]

Ground of review

10. [10]
    The review has been brought on the basis that in all the circumstances of the matter the detention order was excessive.

Facts of the offending

11. [11]
    The facts of the offending were detailed in a sentencing schedule^[7] and are as follows:

“At approximately 3.50 am on 24 December 2024 the applicant and another attended Peries IGA Bowen in a silver Holden Barina which was being unlawfully used.  They used the car to ram the front door of the business causing damage.  They then entered the store before ‘being spooked’ by an employee and drove off.

At approximately, 4.07 am they attended the Grandview Barn in Bowen in the same vehicle and then used an unknown implement to smash the window of the store before entering and conducting what was described as an ‘untidy’ search.  Nothing was stolen as they were interrupted by attending police and they left in the Holden Barina.

At approximately 4.10 am they attended the Metro Bowen Service Station in the same Holden Barina and, again by the use of an unknown implement, smashed the front glass doors before kicking them down.  The applicant entered the service station store and conducted an untidy search and stole numerous tobacco and vape related items.  He also caused damage to the registers and internal fittings.

At approximately 4.30 am the applicant attended the BP Merinda Service Station with two other offenders again in the same vehicle which was driven directly into the glass front doors of the store causing them to smash.  Two offenders then entered the store and conducted an untidy search and stole multiple items including cash and cigarette lighters before leaving in the vehicle.  At approximately 6.20 am police immobilised the vehicle on the Flinders Highway.  Three persons fled, including the applicant, who was arrested a short time later.”

Applicant’s antecedents

12. [12]
    The applicant was 15 years of age at the time of the offending and when sentenced.  He is now 16 years old.
13. [13]
    At the time of sentence, he had one prior entry on his Queensland juvenile criminal history for like offending.  That was for an offence of ‘Enter premises and commit an indictable offence by break’ and he was dealt with on 26 November 2024 by way of a Restorative Justice Order with no conviction recorded.
14. [14]
    A Pre-Sentence Report identified the applicant as having experienced a difficult childhood with significant instability.  His mother died in 2020 and, since then, he usually lived with his father.  At around the time of the offending, he was living between his father’s residence and the residence of his older brother depending on the state of his father’s health.  The author of the report noted that the applicant had been exposed to an environment where substance abuse was accepted and that this (including his own substance abuse) had contributed towards an antisocial attitude.

Submissions and consideration

15. [15]
    Counsel for the applicant raised as a preliminary issue, the fact that due to a severe weather event, the applicant was not interviewed and therefore his attitude to the offences and to the victims was not included in the presentence report.  It was submitted that such an admission is contrary to the mandatory requirements of r. 5(1)(h) of the Youth Justice Regulations 1992 (Qld) (‘the Regulations’).
16. [16]
    It is submitted that the presentence report should not have been accepted by the court, notwithstanding there having been no objection to it at the first instance.
17. [17]
    It is further submitted that this court should conclude that as there was no compliant presentence report, the court was not empowered to impose a sentence of detention.^[8]
18. [18]
    In the alternative, it is submitted that the court should draw no adverse inference against the applicant in relation to his attitude to his offending and to the victims of the offences, but rather should accept the contents of his letter of apology to the court.^[9]
19. [19]
    Whilst, rule 5(1)(h) of the Regulations requires a presentence report to include information as to the child’s attitude to the offence and to the victim of the offence,  it does not mandate how such information is to be obtained.
20. [20]
    In this matter, the author of the presentence report interviewed the applicant’s father and obtained information regarding the applicant from the Department of Education, the Department of Families, Seniors, Disability Services and Child Safety, the Department of Youth Justice, including information from the Cleveland Youth Detention Centre, and victim support files and records.
21. [21]
    On the basis of such information, the report’s author then identified the factors which, in her opinion, contributed to the offending including his exposure to antisocial values in his older brother’s household.  The applicant’s father identified that his son can be easily influenced by his peers and that he often leaves the family home to associate with his peer group.  Child safety information revealed that he had been frequenting his brother’s residence with other young persons who had regularly engaged in substance use, namely cannabis and methamphetamines.  In the author’s assessment, the applicant’s ongoing exposure to the antisocial attitudes and values of his sibling and peer group has predisposed him to engage in similar behaviours which may have contributed to his offending conduct.
22. [22]
    The author also noted that the applicant had engaged in similar offending in the recent past and that the pattern of behaviour may show that he presents with limited insight into the consequences of his offending.
23. [23]
    In my view, this combination of information in the report adequately addresses the issue of the applicant’s attitude to the offending conduct and to his victims and is therefore compliant.
24. [24]
    Furthermore, as the learned Magistrate appeared to accept the contents of the applicant’s letter of apology to the court, no inherent unfairness arose from the manner in which the sentencing proceeding was conducted.  The information before the court demonstrated that the applicant had, at the time of committing the offences, no regard for the property of others nor for the financial harm his actions would cause, but that he, in the time that has passed, may now be remorseful for his behaviour and its consequences.
25. [25]
    Finally on this issue, it must be noted that to suggest that a presentence report can only be compliant if the subject of the report provides to the report’s author information as to that person’s attitude towards the offending conduct and the victims, is nonsensical.  That is because, such an approach would mean that any child who declined to participate in the preparation of a presentence report could avoid the potential of a sentence of detention by virtue of there being no compliant presentence report. 
26. [26]
    Turning now to the submission that the sentence of detention was excessive.
27. [27]
    It must be noted at the outset, that these offences occurred at time after the Making Queensland Safer Act 2024 (Qld) gained assent.  That Act amended the Youth Justice Act 1992 (Qld) in a number of ways, including, relevantly, the addition of s 175A.^[10]
28. [28]
    Through the introduction of this section, the legislature raised the maximum penalty that could be imposed in relation to a ‘significant’ offence to a period of three years’ detention.^[11] Each of the offences the subject of this application is a significant offence.^[12] This is a clear signal from the legislature that sentences in relation to such offences ought to attract an increase in the severity than would otherwise have been imposed.^[13]
29. [29]
    It should also be noted that, relevant to this application, the Act was amended to remove the principle that a detention order should only be imposed as a last resort, and to add that the court must have primary regard to any impact of the offence on a victim.^[14]
30. [30]
    In that regard, the applicant is critical of the learned Magistrate where her Honour made the following comment:

“The prosecution has not provided any victim impact statements; however, even without a victim impact statement I think judicial notice can be given to the fact that this causes significant economic harm as well as stress and trauma to the people that run the businesses.  Whilst I do not know their names in particular, I know that IGA advertises itself as being independent grocery stores that are locally owned.  So that would be a local family that own that shop where the stolen car was used to ram the front doors to gain entry.”^[15]

31. [31]
    The criticism is that the Magistrate’s comment takes judicial notice of matters which were beyond the scope of the evidence presented at sentence and that such findings should not be made without evidence.  It is submitted that given the increased emphasis the legislation places on the impact of offences on victims, it is not appropriate to have regard to potential impacts on theoretical victims.
32. [32]
    Whilst there may be merit in that submission generally, it does not have relevance to this particular case.
33. [33]
    The undisputed facts in this matter unambiguously demonstrate that the applicant’s offending conduct caused significant damage to premises (and, for that matter, to the vehicle), all of which would have been expensive to repair.  That such damage and theft would cause “stress and trauma” to the people that own the businesses is obvious.  Such a conclusion does not invoke the concept of taking “judicial notice”, rather, it is the only reasonable inference open on the facts.  Whilst I agree that concluding that the IGA store was locally owned is purely speculative, nothing of consequence turned on that issue.  Whether it was locally owned or not, the impact of the offending conduct on the owner does not change.
34. [34]
    The applicant has submitted that whilst an increased maximum penalty must be taken into account in sentencing, it does not necessarily follow that all offences committed after commencement should attract a higher penalty than would previously have occurred. 
35. [35]
    That submission is not controversial.^[16]
36. [36]
    As noted by McMurdo P in Queensland Police Service v Terare [2014] QCA 260 at [40]:

“Whilst increased sentences can be expected with the increased maximum penalty, the sentence imposed will turn on the facts of each particular case.”

37. [37]
    I note, however, that the applicant has not identified any error by the learned sentencing Magistrate in her approach to this issue when determining the appropriate sentence, other than to submit that her Honour appears to have given substantial weight to the increased maximum penalty and to the impact of the offences on the victims.
38. [38]
    Of course, giving “increased substantial weight” to the impact of the offences on the victims is another way of saying that the court gave “primary regard” to the impact of the offending on the victims – that is, that the Magistrate approached the issue in compliance with the mandatory requirements of s 150(2) of the Act.
39. [39]
    That aspect of the submission is demonstrably of no assistance to the applicant.
40. [40]
    Nevertheless, the applicant has, quite correctly, submitted that notwithstanding the recent legislative amendments relevant to the sentencing of children, s 150 of the Act and the Charter of Youth Justice Principles still have application.  Specifically, the applicant submits that the requirements of proportionality remain applicable^[17] as does the child’s criminal history (or lack thereof)^[18]  and principles 1, 2, 8(b), 10 and 18 of the Youth Justice Principles, as well as the presence of any mitigating factors concerning the child,^[19] and any cultural considerations.^[20]
41. [41]
    The applicant submits that when all relevant matters are taken into account, an order for probation ought to have been the result, and that the learned sentencing Magistrate inferentially therefore did not take all relevant matters into account.
42. [42]
    Yet no specific omission or error has been identified by the applicant other than the following comment by the Magistrate:

“Clearly, probation, under the new sentencing regime, in my view – but I will hear all of your submissions.  You could persuade me otherwise … would not be an appropriate sentence.”^[21]

43. [43]
    The applicant submits that this comment demonstrates that the learned Magistrate unfairly fettered her sentencing discretion.
44. [44]
    I disagree with that submission.  Not only did her Honour not fetter her discretion, she acknowledged that her view as to an appropriate sentence had not been determined and that she would welcome submissions that would assist her in reaching a conclusion.
45. [45]
    That approach was further emphasised in her sentencing remarks when she stated that after taking all relevant considerations into account, which she identified in the course of her remarks, she held the view that a community-based order was inappropriate.^[22]  Her reasoning in that regard was that whilst the applicant was demonstrably in need of continuing supervision, a sentence which carried the threat of further detention if non-compliance with supervision were to occur, best achieves due and proper recognition of all considerations.  I cannot fault her Honour in such reasoning.  In recognition that the offending was of a serious nature and captured under s 175A, detention is an appropriate sentence.  By imposing that order, and immediately releasing the applicant onto a supervised release order pursuant to ss 227(4) and 228 of the Act, the learned Magistrate appropriately balanced the competing sentencing considerations, including the applicant’s relatively minor but relevant juvenile criminal history.
46. [46]
    For the reasons given, it is my view that the sentences imposed were not excessive and that the orders under review were appropriate in the circumstances.

Orders

1. The sentence order made in the Childrens Court at Townsville on 13 February 2025 is confirmed.
2. Application dismissed.