R v TC[2025] QCHC 8

CHILDRENS COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant was sentenced in the Childrens Court at Kingaroy on 24 February 2025. The offences were a combination which occurred before and after the amendments to the Youth Justice Act 1992 (Qld) (the Act) implemented through the Making Queensland Safer Act 2024 (Qld) (MQSA).
2. [2]
   The review of this sentence was heard on 14 April 2025. The sentence was set aside and a 12 month probation order imposed. I indicated that I would publish my reasons at a later date.

Facts

3. [3]
   The applicant sought review of the sentence imposed in relation to a large number of offences spanning from 17 January 2024 to 28 December 2024. The offending was mostly property related, although there were other offences of breach of bail, possession of a knife, and assault police.
4. [4]
   In relation to a charge of possession of a knife in a public place and a breach of bail, the child was formally reprimanded. In relation to the offences postdating the MQSA, the child was sentenced to 18 months detention to be released after serving four months. In relation to the remainder of the offences, he was sentenced to 12 months probation.
5. [5]
   The Crown has conceded that the sentence of detention was excessive, had proceeded on a wrong basis of law, and should therefore be set aside.

The Appeal Grounds

6. [6]
   The sentencing process was visited with a number of significant errors. It was submitted on behalf of the applicant that the Magistrate erred by:

   1. Applying adult cases;
   2. Applying the Penalties and Sentences Act 1992 (Qld);
   3. Rejecting uncontradicted evidence;
   4. Failing to give adequate weight to mitigating features;
   5. Acting on a mistaken view of the facts;
   6. Placing excessive weight on aggravating factors;
   7. Having regard to inadmissible evidence; and
   8. Imposing detention for an offence without a pre-sentence report (PSR).
7. [7]
   In relation to one of the offences which postdated the MQSA, (an unlawful use of a motor vehicle committed on 26 December 2024), the child was never called on and did not enter a plea. No PSR was ordered.  It is accepted that the sentence of detention for that charge must be set aside. At the hearing of this review, the child was charged, pleaded guilty and was sentenced for this offence.

The Sentence

8. [8]
   The applicant was 14 at the time of most of the offences. He turned 15 on 14 December 2024. The PSR and his criminal history showed he had a minor history; he was reprimanded for enter premises and commit an indictable offence and fail to appear in March 2022. He was again reprimanded for fail to appear in October 2023. At the beginning of 2024, he received 20 hours community service for three charges of stealing and unlawful use of a motor vehicle. At the time of this sentence, he had completed that community service.
9. [9]
   The facts of the December 2024 offending are:

   1. on 26 December 2024, the applicant was a passenger in a stolen vehicle and uploaded a video, filmed from inside the car, to Instagram.
   2. on 28 December 2024, he was a passenger in a vehicle which had earlier been stolen. He was with a group who searched two vehicles and stole a phone. He then was a passenger in a silver Mazda 6 and a party to the unlawful use of another vehicle.

The pre-sentence report

10. [10]
    A PSR was prepared by a Mr P Smith who had a Bachelor of Science and Psychology with Honours, a Graduate Diploma of Psychology and a long history as a Child Safety Officer and a report writer for Youth Justice. He noted that the applicant and his half-sister had been subject to domestic violence, physical and emotional abuse, exposure to substance misuse, and physical and emotional neglect over the past 17 years. At the time of writing the report, both parents had served time in custody for domestic violence. His father was in custody when the child was sentenced. He had witnessed domestic violence from birth, involving not only violence between his parents but also violence with other family members. These incidents included the use of weapons, threats and violence, some of which were at times directed toward the applicant. He had also witnessed concerning substance abuse by his mother and other adults in the family home. Mr Smith noted:

“[TC] said that he often left the house to get away from the stress of his mum drinking and getting angry and using drugs and then that was one of the reasons he is outside on the street and gets into trouble. This is an important contributing factor, as research has shown that children who experience trauma in the home tend to avoid being at home and spend more time with peers in environments with lower supervision.”^[1]

11. [11]
    There was considerable history of inadequate supervision for this child. The report writer noted that his experience with adverse childhood experiences and ongoing exposure to antisocial behaviours in his immediate environment were likely a significant contributing factor towards his own attitudes and behaviours. It was noted that he was likely modelling antisocial attitudes and behaviours having learned that they are acceptable and normal:^[2]

“The discussed adverse childhood experiences are known to increase the likelihood of disruption in brain development, leading to an impairment in cognitive abilities. This disruption in brain development is associated with a delayed ability to properly make decisions, plan ahead, or control impulses, leading to an increase in risky behaviours and irrational decisions and is known to predict antisocial behaviours.”^[3]

12. [12]
    The applicant had also experienced loss throughout his childhood, including the loss of several aunts and cousins, as well as the passing of an uncle in December 2024. It was noted that these feelings of grief and loss were likely significant contributing factors towards his antisocial behaviours.
13. [13]
    It was further noted that the child’s family unit has been significantly impacted by past government practices, including a long history of multi-generational government intervention and child safety involvement. The report writer noted that information available to him indicates that it is likely that intergenerational trauma has played a significant part in forming his antisocial behaviours and attitudes. The applicant identified boredom as a reason for committing offences. He stated that he also steals money to give to his family to help at home.
14. [14]
    In terms of his time in detention, he was engaging well with staff and other young people. He had been in detention for 112 days.

The decision

15. [15]
    In sentencing the applicant, the Magistrate noted that he had just turned 16. In fact, he was 15, but it seems as though the Magistrate was led into that error by the child’s solicitor.
16. [16]
    A number of victim impact statements were tendered. Ms Bagnall explained that the children lost their Christmas presents because they were in the car when it was stolen. She said that both cars were stolen, they feel unsafe in their home and they have been deprived of their means of earning a living. Ms Clews was traumatised by the people who broke into her house, as were Ms Sayer and Ms Lenton. However, the applicant was not charged with those break-ins; he was charged as a passenger in the stolen vehicles.
17. [17]
    The Magistrate rightly noted that he must have primary regard to the impact on the victims,^[4] although there was little information before him regarding the impact of the cars thefts on them. The Magistrate also noted that he was required to have regard to the general sentencing principles applying to all people, that he needed to consider s 9 of the Penalties and Sentences Act 1992 (Qld) as well as the youth justice principles.^[5]
18. [18]
    The Magistrate noted:

“I’m specifically required to take into account whether you have been exposed to domestic violence and I note that you have been. I’ve considered a pre-sentence report. As an indigenous person I am required to take into account intergenerational trauma. Again whilst that’s a general consideration, it’s difficult to relate that intergenerational trauma to any particular aspect of your offending. You, yourself, don’t directly make the link in the pre-sentence report, nor is it immediately apparent to me, other than in the general sense in the same way that other people from disadvantaged groups find themselves marginalised and ‘as Mr Oliver said, the haves and have nots.’”^[6]

19. [19]
    The PSR did outline the effect of intergenerational offending on his behaviour and how it related to the offending. It is difficult to understand why the Magistrate rejected that opinion and instead placed weight on the child’s inability to identify the connection between his offending and his trauma generally.
20. [20]
    His Honour noted he had to have regard to the child’s age, but that he had to be held accountable in the way that recognises the impact of his offending on any victim of the offending. His Honour then referred to s 9 of the Penalties and Sentences Act. He rightly noted that there was no real loss that could be attributed to him. He noted that the pleas were timely, and he noted that he had spent time in custody. The Magistrate went on to say that being part of groups that wander around the streets is not a lifestyle to which he should aspire:

“You demonstrated that you worshipped the culture of crime. You all worship the culture of crime. You choose to belong to it and by belonging to it you enable the others and perpetuate that culture into younger people. You are actively destroying the lives of young children in Cherbourg claiming to be the subject of peer pressure is simply telling this Court and your family that you think more of the values of the criminal group than you do of the other family that other cultures and family group. There are countless generations of elders over 10’s of 1,000’s years who would hang their heads in shame at what their proud people have become.”^[7]

21. [21]
    His comments seem to suggest that the child was a gang member; the applicant was not a gang member, but he did commit crime in the company of other children whom he knew.
22. [22]
    His Honour went on to say the effective penalty for offences had tripled since the recent amendments. This comment was inaccurate. The penalty for certain offences were increased but they were not tripled. The magistrates jurisdictional limit was increased threefold but that does not represent a tripling of penalties for offences. 
23. [23]
    His Honour noted that given the new penalties that previous comparable sentences were not particularly helpful. He noted that detention was no longer a sentence of last resort and that that was different to the sentencing principles for adults.
24. [24]
    His Honour quoted from a number of cases to establish that persistent offenders may receive increased penalties.^[8] In particular, he relied on a quote from CDL v Commissioner of Police [2024] QCA 245 (CDL) which spoke of cases where the sentences passed for previous offending have been shown to be insufficient deterrent and therefore longer sentences may be in the offenders own interest.
25. [25]
    His Honour then went on to consider the adult sentences of R v Dance [2009] QCA 371, R v Howie [2009] QCA 50, R v Ross [2000] QCA 49, R v Cummins [2004] QCA 350. His Honour then noted:

“As I say whilst these laws are called adult crime adult time it may well be that they can and should result in sentences higher than an adult would receive if that is the necessary implication of those changes.”^[9]

26. [26]
    He decided that the way to stop the child’s conduct in a criminal gang was to choose a penalty based on general deterrence.

The Magistrate erred

Sentencing principles

27. [27]
    A Court that sentences a child for an offence must sentence a child under Pt 7 Div 1 of the Youth Justice Act 1992 (Qld),^[10] despite any other Act or law.^[11]
28. [28]
    Section 150 of the Act contains the sentencing principles. It provides (in part):

• Detention is no longer a sentence of last resort;^[12]
• Primary regard must be had to any impact on the victim and s 179K of the Penalties and Sentences Act 1992 applies in this regard;^[13]
• General sentencing principles apply;^[14]
• The youth justice principles apply;^[15]
• Regard must be had to whether the child has been subject to domestic violence and whether that contributed to the offending;^[16]
• If the child is Aboriginal or Torres Strait Islander, the effect of systemic disadvantage and intergenerational trauma;^[17]
• The child’s age is a factor in mitigation;^[18]
• General factors of mitigation and aggravation must be applied.^[19]

29. [29]
    The reference to general sentencing principles in the Act is a reference to the principles such as general and specific deterrence, rehabilitation, proportionality, punishment, denunciation, community protection, and the specific factors of aggravation and mitigation which apply to sentencing. The Penalties and Sentences Act 1992 does not apply unless specifically stated. The reliance on sentencing decisions made under this Act meant that the Magistrate was relying on sentences imposed within a different sentencing regime.
30. [30]
    Secondly, the Youth Justice principles apply.^[20] These principles necessitate a balancing act of considerations. On one hand, protecting the community and holding the child accountable in a way that recognises the impact on the victim; and on the other hand, promoting the physical and mental wellbeing of the child, recognising their vulnerability, and giving them an opportunity to develop in a responsible, beneficial, and socially acceptable way that strengths their family and recognises the need for guidance and assistance. Although primary regard must be given to the impact on the victims, it cannot be allowed to overwhelm the sentencing process.

Impact on Victims

31. [31]
    His Honour, in sentencing the child, noted in relation to the new offences that “any factors that are not your fault that may have contributed to the offending take a back seat to the consequences of what you have decided to do.”^[21] His Honour then said:

“When I look at the purposes of section 9 of the Penalties and Sentences Act, I think this is what primary regard means. It means that in balancing those competing factors, punishment rises first and foremost to the top of the list. The impact on the victims would also promote denunciation and specific and general deterrence and protection. Rehabilitation remains a goal and in fact may be – for the purposes of the long term may be enhanced by protection and those other goals but it is not an immediate object of the primary focus on the victim of these crimes. It also means that the consequences of your actions have to be measured by the impact on your victims and must be borne by you and not just the victim.”^[22]

32. [32]
    In having regard to s 9 of the Penalties and Sentences Act 1992, the learned Magistrate erred; however, he was clearly trying to grapple with the need to have primary regard to the impact on the victims against the other sentencing considerations under the Act. The new provisions do reorder the principles to consider when sentencing a child and he was right to be concerned about how to apply them. 
33. [33]
    While the Magistrate relied on victim impact statements tendered, they provided little information about the specific effect of the child’s offending. The statements primarily focused on the trauma of having their houses broken into and their cars stolen; it was not alleged that this child was involved in that offending. Ms Bagnall, for example, spoke of the trauma of both cars being stolen, one of which had children’s Christmas presents inside. The applicant was charged as a passenger in one of those vehicles only. She did speak of the horror of seeing the video of people trashing her car. As the child was the one who put the video on social media, he was responsible for that particular impact on her. However, the primary impact on the victims was the invasion into their homes and the actual theft of the vehicles. It was not possible for the Magistrate to discern with any accuracy the impact of this child’s participation in the offending on the victims apart from that mentioned.  

Detention as a last resort

34. [34]
    The Magistrate placed heavy reliance on the principle that detention was no longer a sentence of last resort and therefore adults were in a better position than children under the new laws.^[23] That is an incorrect analysis of the Act; the Youth Justice principles still rely heavily on rehabilitation and other factors in mitigation.^[24] The new laws require a balancing of those factors against the primary regard of the impact on the victims in arriving at an appropriate sentence for the offending. In a case like this, where there was very little evidence of the impact of his offending on the victims, his Honour’s heavy reliance on that skewed the sentence in a way that was inappropriate. Although detention is no longer a sentence of last resort, it is not a sentence of first resort. A consideration of the appropriate sentence involves a synthesis of all the factors relevant to the particular child to be sentenced.

Factors in Aggravation

35. [35]
    The Learned Magistrate placed significant weight on the applicant’s involvement in criminal gangs,^[25] but did not have sufficient regard of the child’s role in the offending. The child was not charged with damaging vehicles nor charged with entering homes, yet he seemed to be tarred with the same brush as those that committed these more serious offences. His Honour noted that his behaviour had accelerated to the extent that the “gang” he was associated with was stealing multiple cars and burning them.^[26] This concentration on the collective misdeeds of his co-offenders resulted in a harsher sentence than was warranted. It is a well-established principle of sentencing that a person can only be sentenced for the offences for which they have been convicted.^[27] While His Honour was careful to say he did not sentence the child for the group’s activities, he was clearly heavily influenced by the overall criminality of the group.
36. [36]
    Further matters noted in aggravation were that the child was on a conditional bail program at the time of the offending and that the offending was part of a pattern of persistent property offending by the child. These were significant matters of aggravation.
37. [37]
    His Honour also took into account that the child had not cooperated with the police to the extent of participating in a record of interview or providing a s 13A statement. The provisions of s 13A of the Penalties and Sentences Act 1992 do not apply to children and this should not have been noted as a factor against him. He did enter a timely plea.
38. [38]
    His Honour placed significant weight on the fact that the child had previous convictions for property offending and that this justified a period of detention in this case. He relied on the case of CDL and, in particular, a quote from R v Ottewell (1970) AC 642 at 650 contained within that judgment. CDL related to the consideration of a sentence for a persistent domestic violence offender who had a history of breaching orders and the court noted in his case previous sentences, including sentences of imprisonment, had failed to deter him. This child had previously been sentenced to reprimands and a community service order; he had never had the benefit of a probation order. The court in CDL was careful to note that when sentencing an offender for criminal offending it is always appropriate to take into account previous convictions, however, it should not overwhelm the sentencing process. The court noted the principle in Veen v The Queen (No 2) (1988) 164 CLR 465 at 14 at 477-488:

“… the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] A.C. 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties.”^[28]

Factors in Mitigation

39. [39]
    Age is a factor that must be considered. This child was only 14 at the time most of the offences were committed and had just turned 15 in relation to the later offending. The learned Magistrate did note his age, but the age was incorrect.
40. [40]
    The child had spent 112 days in detention. This was a significant period of time for a child who was 14 at the time of offending.
41. [41]
    He noted that there was no loss occasioned by the victims in relation to the later offences. He had entered a timely plea and had cooperated fully and openly in the preparation of the PSR.
42. [42]
    The Learned Magistrate did not place weight on the contributing factors outlined in the PSR which was very thorough and indicated that the child had a lifelong and chronic exposure to domestic violence, physical and emotional abuse, neglect, substance abuse, inadequate supervision, and inter family violence. It was noted that intergenerational trauma was present as well as unresolved grief at the loss of family members and exposure to antisocial family dynamics. Those factors were carefully addressed by the report writer who was qualified to give those opinions and referred to relevant researched articles to support his contentions.
43. [43]
    Under the specific heading of factors contributing to offending, the writer outlined his assessment of the factors leading to the child’s antisocial behaviours. He detailed a chronic history of child protection concerns within the family dating back 17 years (before this boy was born). He described the magnitude of the child’s trauma as being substantial. Both parents had a history of violent offending. He spoke of the likelihood that the child was modelling anti-social behaviours and attitudes having learned they are acceptable and normal. The writer noted:

“The discussed adverse childhood experiences are known to increase the likelihood of disruption in brain development leading to an impairment in cognitive abilities (Evans-Chase, 2014). This disruption in brain development is associated with a delayed ability to properly make decisions, plan ahead, or control impulses, leading to an increase in risky behaviours and irrational decisions (Williams, 2020) and is known to predict anti-social behaviours (Mayer et al, 2009)”^[29]

44. [44]
    Further, it was noted in the report that the child had lost several aunts and cousins as well as an uncle in December 2024. He had unresolved feelings of loss and grief and it was noted that this can manifest in aggressive and impulsive behaviours. It was also noted that the child had attachment issues resulting from inconsistent parenting and parental incarceration. 
45. [45]
    The Magistrate did not seem to take any particular note of those factors in sentencing the child even though the Act required him to do so. In relation to the history of domestic violence, the Magistrate simply noted that he had been exposed to it. He also noted the reference to intergenerational trauma but disregarded it on the basis that this 15 year old child did not make any explicit link with it in the PSR. It is clear that the Magistrate did not properly have regard to the factors contributing to the offending in the PSR. He did have regard to the child’s statements to the report writer, as he was entitled to do, but very little attention was paid to the careful analysis of the contributing factors caused by his traumatic upbringing. There was no basis to reject or ignore the findings in the report, which were significant factors in mitigation.

Conclusion

46. [46]
    The sentence was visited by numerous errors. The child had spent a considerable time in custody. He was still very young and had never had the benefit of a probation order. While his involvement in the offending was concerning, the time he had already served in custody constituted significant punishment, given his role in the offending.  As such, the interests of the victims and the community would be better served by enabling the child to access programs and counselling to assist him in staying out of trouble once in the community. Having primary regard to the impact on the victims and balancing those considerations against the factors in mitigation in this case, it is appropriate that the sentence be set aside and the child admitted to probation on all the charges the subject of review.