Commissioner of Police v David Taylor (a pseudonym)
[2023] QChCM 2
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- Unreported Judgment
- Commissioner of Police v David Taylor (a pseudonym)[2023] QChCM 2
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Commissioner of Police v David Taylor (a pseudonym)[2023] QChCM 2
Commissioner of Police v David Taylor (a pseudonym)[2023] QChCM 2
MAGISTRATES COURT OF QUEENSLAND
CITATION: | Commissioner of Police v David Taylor (a pseudonym) [2023] QChCM 2 |
PARTIES: | COMMISSIONER OF POLICE v DAVID TAYLOR (a pseudonym) |
FILE NO: | Mount Isa CCM 669/22 |
PROCEEDING: | Sentence |
COURT: | Children’s Court, Mount Isa |
DELIVERED ON: | 24 January 2023 |
HEARING DATE: | 10 January 2023 |
MAGISTRATE: | E. Mac Giolla Ri |
APPEARANCES: | Mr B Fotheringham, Prosecution Mr N Honnef, ATSILS for Mr Taylor Mr C Lewis, Youth Justice |
- [1]On 10 January 2023 I sentenced David Taylor, a 17-year-old aboriginal boy, to 51 days in detention and ordered that he serve 70% or 36 days. That order saw David released on the day of his sentence. David had served the 36 days either in the Mount Isa watchhouse or confined in his cell for 21+ hours per day at Cleveland Youth Detention Centre in Townsville (‘CYDC’).
- [2]At the time of sentence, I explained the order to David but reserved my reasons. I publish my reasons now.
- [3]On 6 December 2022 David had pleaded guilty to the following offences, all of which occurred on 4 & 5 December 2022:
Offence | Facts |
Enter premises | David and his co-accused entered a business premises in his regional/remote home-town and stole sets of car keys. |
Unlawful use of a car (x 4) | David and his co-accused used those of those sets of keys to drive away in two cars belonging to the business. They drove the cars to Mount Isa. The balance of the offending took place at Mount Isa or on route to Mount Isa.[1] |
Stealing | David and his co-accused stole petrol for one of the stolen cars from a service station in a town on route to Mount Isa |
Enter Premises | David and his co-accused broke into a shop in the same town. |
Enter Premises | In the same town, David and his co-accused broke into a second shop and stole cash and hardware items. |
Attempted Enter Premises | In the same town, the offenders damaged glass trying to enter a business premises but they did not get in. |
Enter Premises | In the same town, the offenders entered a supermarket and stole groceries and cigarettes |
Stealing | On arrival in Mount Isa one of the stolen cars was involved in a further fuel theft at a service station. |
- [4]David was picked up by police for this offending on 5 December 2022 and was remanded in custody when he appeared before me on 6 December 2022.
- [5]A presentence report (‘PSR’) was ordered and the sentence was heard on 10 January 2023. David appeared at the sentence hearing by video link from CYDC. At that time, David had spent 36 nights in custody: 10 days in the watchhouse at Mount Isa and 26 days in Cleveland Youth Detention Centre (‘CYDC’).
David’s background
- [6]At the time of sentence David was 17 years old. I was assisted by a pre-sentence report, which sets out David’s very disadvantaged childhood. David’s family first came to the attention of Child Safety the year David was born, though no formal orders were ever made in relation to him. Child Safety’s concerns included violence in the home, child neglect and substance abuse.
- [7]The violence in the home involved substantial and ongoing violence by his father against his mother, to the extent that his father was imprisoned for that violence. At the time of sentence, David’s father is back in prison for offending against his mother.
- [8]David has a substantial criminal history but, until he committed these offences, he appeared to be outgrowing his offending. Many young people can dramatically reduce their offending behaviour as they mature. As the relevant parts of the brain physically mature, consequential reasoning develops and a young person is better able to regulate risk-taking and to understand that actions have consequences. Similarly, a drop off in offending is sometimes seen when children are old enough to work to earn their own money or old enough to qualify for government benefits.
- [9]In the 12 months up to the date of these offences, David had only committed two offences: an unlawful use of a car and a stealing offence, both in July 2022, for which he was sentenced to 29 days detention.
- [10]Those 29 days appear to be the only time he has spent in detention in the 12 months leading up to his most recent offending,[2] so the substantial reduction in David’s offending was not because he was remanded in custody for extended periods.
Mount Isa Watchhouse
- [11]David spent 10 days in Mount Isa watchhouse. As explained in Re Richard Jones[3] the detention of children for more than 1 night in a watchhouse should only occur in extraordinary circumstances. Imprisonment in a watchhouse is clearly much more onerous than imprisonment in a detention centre.
- [12]While David was still imprisoned in the watchhouse, his mother, his primary carer, suffered a heart attack and was hospitalised for an extended period.
Relevance of the circumstances of David’s Detention
- [13]Mr Honnef argued that David was imprisonment in circumstances different to and more onerous than the conditions undergone by other imprisoned children and, as such, he was entitled to be sentenced to less detention that might ordinarily be the case.[4]
- [14]In addition to the 10 days in the watchhouse, Mr Honnef submitted that children in CYDC are subjected to a substantially more difficult regime of punishment than children detained in Brisbane Youth Detention Centre.
- [15]Mr Honnef relied on two documents, which he tendered in evidence:
- a.A “separation” report covering David’s imprisonment at CYDC; and
- b.An anonymised “separation” report for another young person detained during December 2022 at Brisbane Youth Detention Centre (‘BYDC’).
- [16]“Separation” is a euphemism used in the youth detention system for time a child must stay in his or her cell over and above the 12 hours the child spends in their cell at night.
- [17]The term “separation” connotes the idea of detainees being kept separate from one another for because of fighting or other misbehaviour. If “separation” ever had that meaning at CYDC it no longer does. At this point in time, “separation” mostly means locking children in their cells because the ratio of staff to children is below the level set in the Certified Industrial Agreement between the Department and the unions representing the staff at the centre.
- [18]The separation report confirms that when staff numbers at CYDC falls below a certain point, children are locked in their cells. Such staff numbers ought to be entirely predictable.
- [19]One would have hoped that such occasions would be rare but a review of David’s separation report discloses that out of the 21 days[5] covered by the report, David’s unit was appropriately staffed on only 1 day.
- [20]The amount of time David was locked in his cell varied from day to day, for example:
- On Christmas Eve, David was locked in his cell for 23 hours and 50 minutes.
- On Christmas Day, David was locked in his cell for 20 hours and 40 minutes.
- On Boxing Day, David was locked in his cell for only 13 hours and 53 minutes; and
- On 27 December, David was only locked in his cell for the standard 12 hours at night.
- [21]On average, David was locked in his cell, for 21 hours and 23 minutes per day or, to put it another way, David was only out of his cell for 2 hours and 37 minutes instead of the expected 12 hours per day.
- [22]David’s separation report discloses that it is likely that only left his unit block on one out of the twenty-one days for which data was provided. It follows that David only had access to the full range of facilities and assistance at CYDC, such as they are, on that one day.
- [23]The separation report discloses that, in the period for which I have data, David’s unit was visited by the following centre personnel:
Professional | No. of days on which there were visits - out of 21 days. |
Nurse | 12 |
Youth Justice Case Worker | 9 |
Psychologist | 5 |
Community visitor | 2 |
Music Teacher | 1 |
Restorative Justice Practitioner | 1 |
Cultural Liaison Officer | 1 |
- [24]Importantly, there is no evidence of a teacher (other than one visit by a music teacher) visiting the unit. I understand that while separation is occurring, children provided with “educational packs” and are expected to engage in self-directed learning with those packs. I have no evidence on the effectiveness of this strategy.
- [25]David was allowed to make phone calls, but only during the time he was out of his cell and David had access to a TV while in his cell.
Detention at Brisbane YDC
- [26]The data available to me in relation to BYDC covers 10 days from 3 to 13 December 2022. In contrast to CYDC, “separation” for the child at BYDC was less frequent and, on average, for shorter periods.
- [27]The report indicates that no separation occurred at BYDC because of staff shortages. Importantly, on average, the child was only “separated” for 3 hours and 26 minutes per day. Therefore, the child at BYDC spent an average of ‘only’ 15 hours and 26 minutes in his or her cell.
- [28]David’s experience of being locked up for, on average, 21 hours and 23 minutes means that he was spending 6 hours longer per day in his cell than the child imprisoned in Brisbane.
Reasons for Differences between Cleveland/Townsville and Brisbane.
- [29]The reason a prisoner experiences a more onerous imprisonment are relevant to whether it is a relevant sentencing consideration.[6]
- [30]The reasons for the stark differences between detention in Cleveland (Townsville) and Brisbane are not apparent to me.
- [31]The CYDC separation report suggests that recruitment is more difficult in Townsville than it is in Brisbane but it also says that the Department has initiated the redeployment of operationally trained staff across youth detention centres in Queensland to support operational workforce needs. If that is the case, there appears to be much room for further redeployment if parity is to be established between CYDC and BYDC.
- [32]Importantly, there is no suggestion that any of the separation time experienced by David was as a consequence of his conduct. In fact, the pre-sentence report notes that detention staff reported to the writer that David’s “behaviour at CYDC had been very good with no concerns.”[7]
Findings in relation to David’s Imprisonment
- [33]For the reasons identified above, I find:
- a.David’s 10 days at the Mount Isa watchhouse involved imprisonment that was substantially more onerous than imprisonment in any youth detention centre;
- b.David’s experience of having his mother hospitalised because of a heart attack while he was in the watchhouse made his imprisonment there more onerous still.
- c.David’s imprisonment in CYDC was substantially more onerous than it would have been had he served his time at BYDC,
- d.The reasons David’s time in detention was more onerous are not attributable to him in any way.
Sentence
- [34]In Callanan v Attendee X Applegarth J noted at [25] that the sentencing judge at first instance in the Court of Appeal decision of R v Allingham, Lansdowne, Marshall & Booth [1994] QCA 433 treated 18 days in the Brisbane Watchhouse as equivalent to 18 weeks in a prison, such, it seems, was the terrible state of the Brisbane Watchhouse at that time.[8]
- [35]It is unnecessary in this case to try to develop an equivalent mathematical formula as between time served in CYDC and BYDC.
- [36]For the following reasons I find that the 36 days David had already served was enough time to meet the needs of punishment, deterrence, denunciation and the protection of the community because:
- a.I am satisfied that the Youth Justice principles tend to support David’s release, in particular:
Principle 2: David’s mental and physical well-being will be better served.
Principle 3: Continuing to detain David under present circumstances would be contrary to treating him with dignity and respect.
Principle 9(d): His continued detention in CYDC is not offering him guidance and assistance.
Principle 15: David appeared unable to meaningfully access relevant programs at CYDC.
Principle 17: David does not appear to have been offered any meaningful educational opportunities at CYDC.
Principle 18: David should be detained only as a last resort and, even then, only for the shortest period justified in the circumstances.
Principle 19: The Mount Isa Watchhouse is not a suitable place to detain a child and CYDC appears unsuitable to detain a child at the moment because of the amount of time David was required to remain in his cell.[9]
Principle 21: CYDC does not presently have some of the characteristics enumerated in this principle.
- b.David appears to be maturing ‘out’ of offending as demonstrated by the fact that he had committed only two offences in 12 month period before the offending for which I am sentencing him.
- c.David’s rehabilitation will be facilitated more easily in the community.
- d.The overall circumstances of David’s detention were extremely onerous and well beyond how a child should ordinarily be expected to serve detention.
- [37]I am satisfied that 51 days with release at 36 days (70%) more than adequately meets the requirements of punishment, deterrence, denunciation and the protection of the community and is consistent with the Youth Justice Principles.
Footnotes
[1] The four UUMV charges are based on the use of the same two cars in two discrete time periods.
[2] Though the form of the presentence report and the criminal history mean that not all time David spent in detention is evident in that material.
[3] [2023] QChCM 1
[4] See Callanan v Attendee X [2013] QSC 340, particularly at [21]-[27]
[5] The report was necessarily prepared 5 days out from the sentence date so the last 5 days of David’s detention are not covered by the separation report.
[6] Callanan v Attendee X at [26]
[7] Presentence report at page 6.
[8] I am unable to find a reference to that comparison in the decision itself but at Callanan v Attendee Y [2013] QSC 341 the day/week equivalence between solitary confinement and ‘ordinary’ prison was expressly adopted by Applegarth J.
[9] The circumstances in which a child is detained is very much a matter for the Executive. I express an opinion here only because section 3 of the YJA provides that the YJ principles underlie the operation of the Act and s 150 specifically requires me to consider the YJ principles in imposing sentence.