Queensland Police Service v Jack Campbell (a pseudonym)
[2024] QChCM 2
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- Unreported Judgment
- Queensland Police Service v Jack Campbell (a pseudonym)[2024] QChCM 2
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Queensland Police Service v Jack Campbell (a pseudonym)[2024] QChCM 2
Queensland Police Service v Jack Campbell (a pseudonym)[2024] QChCM 2
MAGISTRATES COURT OF QUEENSLAND
CITATION: | QPS v Jack Campbell (a pseudonym) [2024] QChCM 2 |
PARTIES: | QUEENSLAND POLICE SERVICE v JACK CAMPBELL (A pseudonym) |
FILE NO: | Beenleigh CCM 926/24 |
PROCEEDING: | Sentence |
COURT: | Children’s Court, Beenleigh |
HEARING DATE: | 16 August 2024 |
PUBLISHED: | 2 September 2024 |
MAGISTRATE: | E. Mac Giolla Rí |
APPEARANCES: | QPS:Snr Const Hill Defence:Mr Honnef, LAQ Youth Justice:Ms Draskic Child Safety:Ms Anderson, CLO |
Background
- [1]Jack Campbell is a 15 year-old indigenous boy with a significant intellectual disability. Jack is in the care of the State of Queensland but he has spent two-thirds of this year imprisoned. Jack was placed in the care of the State two days after he was born. It is likely that Jack’s imprisonment and offending against the community would not be occurring if Jack was receiving appropriate care from his guardian, the State of Queensland.
- [2]This is not to say that Jack is not responsible for his actions or that he is not accountable for his offending in a legal sense. Over his short life Jack been held responsible and punished for many, many offences and has been imprisoned many times. No argument has been advanced that his disability provides him with a defence or that he is not capable of participating in these proceedings.
- [3]Jack has pleaded guilty to three offences. My role in sentencing Jack is to impose a sentence that is just in all the circumstances and compatible with the provisions and principles of the Youth Justice Act. A key aspect of Jack’s sentence should be imposing an order that protects the community from the risk that Jack will offend again. Ultimately, for the reasons that follow, it seems to me that the justice system can have only a limited impact of Jack’s offending unless those with responsibility for caring for Jack dramatically improve his care.
Offending
- [4]Jack pleaded guilty to the following offences:
Date | Offence(s) |
14 July 2024 | Public Nuisance: Jack, with another person, caused a public nuisance on a train. Jack’s part in the offending was to verbally abuse and woman and a girl, including saying, “be quiet or speak English”. |
Date | Offence(s) |
20 July 2024 | Enter dwelling and commit & unlawful possession of a handgun: During daylight hours, Jack and an associate (also a child) broke into a house while the occupants were out. They noticed a gun safe and noticed keys nearby. They took a handgun and four ammunition magazines (no bullets) from the gunsafe. The offence was reported to police at around 2pm on 20 July 2024. There was CCTV of the offenders. On 21 July 2024 Jack handed one of the stolen magazines to a worker at the residential accommodation (‘resi’) where Jack was being housed by Child Safety. He also told the worker that he had thrown a second magazine over the fence into a neighbour’s garden. That second magazine was then retrieved. The police were contacted and on 22 July 2024 conducted a search of Jack’s resi and spoke to Jack. Police were aware that Jack had been spending time at a friend’s home and simultaneously searched that friend’s home and found the gun and remaining magazines. Although the gun was at the friend’s house, that friend was not the person who had committed the Enter Dwelling with Jack. That means that, of the two people who committed the Enter Dwelling, Jack was the offender who retained the gun. |
- [5]The theft of the handgun appears to have been opportunistic. There is no evidence that Jack or his co-offender knew that any weapon was in the particular dwelling when they entered. An unusual feature in this case is that Jack surrendered the magazines to a staff member at the resi. This is a substantial feature in mitigation, but it also raises the important question of whether prison/detention has any deterrent value where Jack is concerned.
- [6]There is evidence, discussed below, that Jack struggles greatly unless he is surrounded by predictability, structure and routine. There is evidence in the pre-sentence report (‘PSR’) that Jack says he offended in order to go back to detention (prison) and Jack has also said this in relation to earlier offending. These statements by Jack are not supported by the fact that this Enter Dwelling was not a convenient offence to commit, i.e. not committed anywhere near where Jack lived or frequented of the fact that it was committed with another person.[1]
- [7]The question as to Jack’s specific motivation need not be resolved but it confirms a broader view, also supported by his disability and his rates of offending, that detention (or the threat of detention), of whatever length, is no deterrent to Jack.
- [8]An important feature of the offending is that immediately before this offending Jack had spent 46 days in detention. The public nuisance offence was committed two days after he was released and the enter dwelling, etc, only 8 days after release. He was remanded in custody after committing the enter dwelling. He was also on a probation order at the time he committed these offences.
Jack’s upbringing and circumstances
- [9]Jack is having a difficult start in life:
- a)Jack’s mother drank to excess during while she was pregnant with him resulting in permanent damage to his intellectual functioning.
- b)He was removed from his mother’s care and into the care of the State at two days old because of concerns of neglect, family violence and substance abuse within his mother’s home.[2]
- c)When he was two months old Jack was placed with foster carers approved by the State, however they relinquished care of him when he was 10 years old.
- d)Jack had always been aware of his biological family and some attempts were made to ‘reintroduce’ Jack to his family after he was relinquished, but these were unsuccessful.
- e)Jack’s biological mother died two years ago and Jack is said to continue to struggle with grief since that time.
- f)Jack continues to have a relationship with an older brother and excellent work has been done by one of his Child Safety workers to maintain that relationship, despite Jack’s frequent moves and imprisonment.
- g)Jack has had no stability in his placement since going back into the full-time care of the State. Only rarely does Jack have the level of care that he requires, though when he does he presents as a dramatically lower risk of reoffending.
Jack’s disability
- [10]Jack has been assessed as having the following:[3]
- a)Foetal Alcohol Spectrum Disorder
- b)Autism Spectrum Disorder (Level 2)
- c)Intellectual Disability
- d)Anxiety
- e)Depression
- f)Dysregulated mood disorder
- [11]Jack has had an NDIS package since September 2022. It is hard to discern, given his intellectual disability must have been present at birth, why it took until 3 years from the time he returned to the fulltime care of the State for this package to be in place.
- [12]During his current period of imprisonment, Jack’s medication was reviewed and he was taken off an anti-convulsant medication, sodium valproate, because it can cause aggression, hyperactivity and behavioural disturbance. Jack had been on sodium valproate since 2019, around the time he came back into the full-time care of the State.
Impact of Jack’s disabilities
- [13]Jack has a therapist/counsellor, Mr Plaice[4], who has established a good rapport with Jack and has continued to work with him, including while Jack was imprisoned. Some information from Mr Plaice’s assessment is contained in the PSR. Importantly, Mr Plaice notes:
- a)Jack’s poor communication skills and his intellectual impairment limit his ability to understand what behaviour is in his interests and what is not.
- b)Jack only has a limited capacity to distinguish between good people and bad people, good peers and bad peers.
- c)Jack spends so much time imprisoned that he can’t realistically develop this discernment because he is so rarely in the company of good peers.
- d)Rather than being driven by greed or addiction, Jacks offending is driven, at least in large part, by his desire to make social connections with the only peers realistically available to him, other young offenders.
- e)More generally, Jack’s disabilities mean that he struggles to cope in the world.
- f)Jack can cope where there is predictability, structure and routine.
- g)For this reason, detention isn’t much of a deterrent for Jack because it is somewhere he knows he can find predictability, structure and routine and, as noted above, there is a possibility that Jack commits some offences so that he will be sent to detention.
- h)Jack is at risk of institutionalisation, that is, developing a personality that will never be able to successfully live outside a detention/institutional setting.
Jack’s recent history of offending, imprisonment and ‘placement’
- [14]It is apparent that despite his disability Jack is capable of being in the community without offending. I conducted an analysis of Jack’s offending and detention history of the past 12 months. Generally speaking, Jack offends almost immediately on release from detention and, again, almost immediately his offending reaches a level that requires him to be refused bail.
Days in custody prior to release | Date of sentence | Days until first offence of any kind | Days until bail refused |
83 | 24/11/23 | 1 | 3 |
50 | 16/1/24 | 20 | 56 |
72 | 3/5/24[5] | 1 | 4 |
46 | 12/7/24 | 2 | 9 |
35 | 26/8/24 (most recent release) |
- [15]Jack’s performance in the community after he was released in January this year was extraordinary given speed at which he usually reoffends and returns to detention. It turns out that from January to March 2024 Jack was living in specialised care facility where he had a carer to child ratio of 2:1 at all times. Nothing like that had been available to Jack before or since in timeframes noted above.[6] It seems that whether or not Jack reoffends depends largely on the care he receives in the community and not on any sentences imposed on him.
- [16]On the day of Jack’s sentence for these matters Child Safety advised that specialist 2:1 placement was not available and, in fact, there was no specific placement at all planned for Jack were he to be released that day. The unit within Child Safety with responsibility for placement, the ‘Placement Services Unit’ (‘PSU”) had not provided any ‘update’ to the Child Safety officers who were looking after Jack and present at Court to support him.
- [17]It is quite clear that with appropriate support Jack is quite capable of creating a tolerable future for himself but without that support he will continue on a sad merry-go-round of offending, incarceration and hopelessness.
- [18]It is unclear to me that the residential placement system as it currently exists in Queensland is a viable way to care appropriately for vulnerable children. I have previously received sworn evidence that no data is available to Child Safety on residential placements’ ability to care for children or reduce their offending.[7]
- [19]Similarly, the information provided to me by Child Safety in this sentence suggests that the resi system rarely, if ever, creates anything like a placement that gives a sense of security to a child because:
- a)Placements are contracted out to various organisations and are ‘opened’ and ‘closed’ on an ad hoc basis.
- b)Staff are rotated between homes and across various shifts.
- c)A child’s placement will usually be ‘closed’ if the child is absent for more than a few days, for example goes to detention or stays with friends or family.
- d)Even if a child does remain in his or her placement, long stays in a particular placement are usually measured in weeks and months and not years.[8]
- e)As a result of the systems features, there is limited opportunity for a child/staff member to form a trusting relationship. If positive relationships form it is likely to be despite rather than because of the system’s design.
- f)The system, in its current form, effectively prevents the “predictability, structure and routine” that Jack needs.
Sentence
- [20]The principles of the YJ Act apply including the sentencing principles at s 150.[9] It seems to me that the most important of these in this case are:
- a)Jack’s criminal history is extensive.[10]
- b)It appears that he has been going to detention for property offences since, at least, he was 13 years of age.[11]
- c)On most occasions Jack reoffends almost immediately upon release.
- d)s 150(1)(ea) requires me to specifically take into account the hardship any sentence will have on Jack because of his disability.
- e)s 150(1)(ga)(iii) requires me to have specific regard to the fact that Jack has a history of being abused and victimised.[12]
- f)Principle 1 of the YJ principles looms large in this sentence, that is, that the community should be protected from offences and, in particular, high-risk offenders.
- g)Principles 9(b), 9(c) and 17 direct me to sentence Jack in a way that, generally speaking, promotes his well-being. Unfortunately, in my view Jack’s cognitive limitations are such that there is limited prospect that Jack could meaningfully participate in standard youth justice orders such as probation, community service or conditional release orders or benefit from those orders.
- [21]On one view, my real task is to decide what sentence, in all the circumstances, is appropriate to impose on this intellectually disabled child in order to protect the community from the offences he may commit in the future.
- [22]Unfortunately, the things that can protect the community from the offences Jack may commit in the future are, with one exception, not things that I can impose by way of sentence. The meaningful things that could protect the community from Jack committing offences in the future include:
- A placement that will provide Jack with long-term “predictability, structure and routine.”
- Jack having pro-social adults or children in his life for long enough to enable Jack to develop pro-social skills, including the ability to work out whether particular people in his life will make his better or worse[13].
- The absence of sodium valproate from his system may improve his conduct, generally.
- Access to therapists on an intensive and continuous basis so that meaningful therapeutic relationships can be developed.
- [23]As discussed above, the prospect of detention does not deter Jack from offending[14] and there is evidence that Jack is not receiving meaningful therapy while in detention.[15] Detention then, in Jack’s case, can serve only one legitimate sentencing purpose, incapacitation. By incapacitation I mean, removing Jack from society for a period of time, so that he cannot commit offences for that period. In that way the community is temporarily protected from Jack’s offending.[16] Any period of incarceration to ‘incapacitate’ Jack cannot be longer than is proportionate for the offences he committed.[17] This is likely to be a ‘less than optimal’ way of dealing with the challenging behaviours of an intellectually disabled child.
- [24]The question then is how long a fair sentence of detention for the purposes of incapacitation should be for Jack’s offending, in all the circumstances of this case. The appropriate length of incapacitation for an intellectually disabled child is a difficult sentence to calculate and one that might fluctuate (within reason) depending on how robust the arrangements are for his care on release, that is a child who is cared for in a way that will prevent offending does not need to be incapacitated by detention.
- [25]When the matter came on for sentence on Friday, 16 August 2024 Jack had served 25 days detention but there was no placement lined up for him. For that reason, a sentence requiring only 25 days detention would have meant that Jack was an extreme risk of reoffending. Similarly, I was asked by Child Safety to avoid releasing Jack on a Friday due to limited services being available over the weekend.
- [26]On 16 August 2024, I adjourned proceedings to Monday, 26 August 2024 and I indicated that Jack would be released on that date and appropriate arrangements needed to be made. In the circumstances of this case the just incapacitation of Jack could not extend beyond a sentence of 70 days detention with release after 50% (35 days) no matter how poor the arrangements for his release might be. That is the sentence I imposed.[18]
Footnotes
[1]Presumably, this co-offender wasn’t eager to go back to detention.
[2]I note I do not have Jack’s child protection file. This information was provided to me through submissions (oral and written) and the PSR.
[3]See Department of Youth Justice prepared ‘pre-sentence report’. I was provided with two, a more detailed report dated 3 July 2024 which had been prepared for his sentence on 12 July 2024 and a helpful shorter update dated 14 August 2004.
[4]A pseudonym.
[5]Jack was also sentenced for an old offence in the CCQ in March 2024 but he appears to have been in the community at the time of sentence and no time in detention was specifically referable to that offence only.
[6]Of note, there is no correlation between the length of the sentences imposed on Jack and speed/severity with which he reoffends.
[7]Mary Boland (a pseudonym) v Director of Child Protection Litigation [2023] QChCM 6 at [36] & [37].
[8]Of course, because of the absence in data discussed in Mary Boland there is no way of knowing for sure. This absence of data is curious in circumstances where the National Standard requires data on stability in Out of Home care to be measured see
https://www.dss.gov.au/sites/default/files/documents/pac_national_standard.pdf & https://www.aihw.gov.au/reports/child-protection/child-protection-australia-2021-22/contents/indicators/national-standards-for-out-of-home-care-indicators
[9]I note the requirements to consider restorative justice, including diversion but Jack’s various disabilities suggest that neither he nor the victims of these offences would benefit from such an order.
[10]S 150(e)
[11]Jack’s printed criminal history, like most juvenile offenders’, does not specifically state the dates he has been in detention. I note that on 3 February 2023 he was sentences to 3 months’ probation for extensive property offending, with the last offence being on 26 December 2022. This strongly suggests he was in detention from late December 2022 until his sentence on 3 February 2023.
[12]The matters that lead to his being placed in the care of the State.
[13]See discussion of Mr Plaice, Jack’s counsellor, above.
[14]More general deterrence remains relevant in this sentence, though given Jack’s peculiar circumstances and the impulsivity of young offenders, general deterrence has limited relevance in this sentence.
[15]There is disagreement between NDIS providers and Youth Justice about who has responsibility for a child’s care once they land in detention.
[16]I am conscious that detention for the purposes of incapacitation is otherwise not likely to protect the community as it fails to deal with the underlying cause of Jack’s offending.
[17]Veen v R (No. 2) [1988] HCA 14 at [8]
[18]Release at 50% was justified by the exceptional circumstances of Jack’s disability and the fact that his offending is inversely proportional to quality of his care.