NKJK v Commissioner of Police
[2014] QDC 304
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- NKJK v Commissioner of Police[2014] QDC 304
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NKJK v Commissioner of Police[2014] QDC 304
NKJK v Commissioner of Police[2014] QDC 304
DISTRICT COURT OF QUEENSLAND
CITATION: | NKJK v Commissioner of Police [2014] QDC 304 (delivered ex tempore) |
PARTIES: | NKJK (appellant) v Commissioner of Police (respondent) |
FILE NO: | 3815/14 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Childrens Magistrates Court at Atherton |
DELIVERED ON: | 25 November 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 November 2014 |
JUDGE: | Kingham DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – APPEAL AGAINST SENTENCE – DETENTION – where appellant argued that the learned Magistrate wrongly concluded that there was no other option but to impose detention – where the appellant argued that the learned Magistrate wrongly concluded that the appellant had received no benefit from previous orders – where it was found no error was made. APPEAL – APPEAL AGAINST SENTENCE – MANIFESTLY EXCESSIVE – where the appellant argued that the sentence was disproportionate to the facts of the offence – where it was concluded that given the appellant’s criminal history, number of offences, and circumstances in which some offence were committed, no error in the exercise of discretion was made. APPEAL – APPEAL AGAINST SENTENCE – PLEAS OF GUILTY – Section 150(1)(a) Youth Justice Act – where the learned Magistrate did not state how the appellant’s pleas of guilty were taken into account – where found that this amounted to an error of law – where appeal allowed – where sentences of 3 months detention released under Conditional release Order of three months were set aside – where appellant re-sentenced to nine months probation and 40 hours of community service for those offences. |
COUNSEL: | D Law for the appellant J Craven for the respondent |
SOLICITORS: | Legal Aid Queensland for the appellant Queensland Police Service for the respondent |
- [1]HER HONOUR: This is an appeal against the following sentence imposed by his Honour Magistrate Priestly in the Atherton Magistrates Court on the 9th of September 2014. The sentence was three months detention released under a conditional release order of three months for the following offences: one of enter premises and commit an indictable offence, two wilful damage, one wilful damage to an educational institution, two stealing, one possess tainted property, one common assault. No convictions were recorded. There were other charges dealt with on that day but no complaint is made about the sentence in relation to them.
- [2]The Crown accepts the summary of facts for these offences set out in the appellant’s submissions. I also have the police brief material before me. The Crown opposes the appeal arguing the learned Magistrate did not err and that his sentence was not manifestly excessive.
- [3]Before turning to the appeal, I should announce that I will make a publication prohibition order for any details that would identify the appellant pursuant to section 299A. The Crown did not oppose my making that order. The appellant is still very young. In my view, it is appropriate to make it.
- [4]I’ll start with the principles on appeal. The manner in which an appeal against an exercise of discretion, as this is, being a sentence, should be determined by well-established principles. Firstly, it’s not enough that the judge composing the appellate court considers that if they had been in the position of the primary judge they would have taken a different course. It must appear there is some error that has been made in the exercise of discretion.
- [5]Secondly, the determination, the sentence, should be reviewed, and the court may exercise its own discretion, if the judge acts upon a wrong principle, if the judge allows extraneous or irrelevant matters to guide or affect their decision, if the judge mistakes the facts, or the judge does not take into account some material consideration. Sometimes error will not be manifest except by a result which is on the facts unreasonable or plainly unjust, in which case, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. These principles are derived from House v The King [1936] QCA 40.
- [6]The appellant alleged a number of errors, many of which I consider are not errors in the sense that they would allow the court to intervene. Rather, they amount to arguments that too little or not enough weight was placed on identified factors. Submissions about the weight given to the appellant’s age, his history, the personal factors that contributed to his offending, and his placement on a therapeutic child protection placement all fall into that category.
- [7]As the Court of Appeal stated in R v Lawley [2007] QCA 243, it is not a sufficient basis for this court to intervene that this court might have struck a different balance between the competing considerations which had to be weighed in the exercise of the discretion.
- [8]However, reliance was placed on other factors that may well constitute errors. And I have identified three in the submissions.
- [9]Firstly, that the learned Magistrate wrongly concluded that he had no other option but to impose detention and that the appellant had received no benefit from previous orders. So those are put forward, I would say, as examples of factual or legal conclusions that he did not have a foundation to make, or were erroneous.
- [10]Secondly, that the sentence was disproportionate to the facts of the offence.
- [11]Thirdly, that it’s difficult to determine what, if any, benefit the appellant received for his pleas of guilty.
- [12]Dealing with the first, the erroneous conclusions relied upon. On one view, the remarks that were made by the learned magistrate during the sentencing hearing and in the sentencing remarks might be taken to indicate that he had made those positive findings that are complained of. However, I think that is an unfair reading of his observations when viewed in the context of the discussions during the hearing as well as his statements on sentence. I took his Honour’s comments – the ones I was taken to – to be ones where he identified the progression of the appellant through different levels of intensity of supervision; particularly given the nature of his child protection placement itself was quite interventionist. In my view, his Honour did have a basis for his observation that the appellant might not consider a probation order a consequence. Certainly during the sentencing hearing itself he articulated his concerns about community based orders not providing sufficient, immediate consequence for breach. I might differ from his Honour’s view of the history for this particular child, but that does not mean that he has erred in any way.
- [13]The second ground is that the sentence was disproportionate to the facts of the offence. I must say, I don’t consider the sentence is so unreasonable or plainly unjust that it allows me to infer that there has been a failure to properly exercise his Honour’s discretion. There were factors that meant a sentence of detention was open to be served by way of a CRO, something that was recognised by the appellant’s representative at the hearing. Those factors include these. Firstly, his past history of a range of property offences and one of assault occasioning bodily harm while armed. He committed seven offences over eight months between May 2012 and January 2013.
- [14]Secondly, he was being dealt with for 12 offences, five of which were committed whilst on bail. He had two overnight stays in the watch house during his offending period. And the last offences were committed after arraignment on the rest of them, and a presentence report was in the course of being prepared.
- [15]Thirdly, the offences range in seriousness. I accept the submission that most are at the lower end for their type, and some could have been dealt with on less serious charges. However, one of the wilful damage claims does involve damage of nearly $1,000. Although the common assault might occur relatively frequently in the context of care placements, that does not mean it is trivial, although, I accept that the actual assault involved was certainly at the lower end.
- [16]His Honour clearly articulated his reasoning that intensive supervision under a CRO with the consequence of detention if the appellant breached it might attract his attention better than other options. On the facts, I could not find that that sentence is manifestly excessive.
- [17]That leaves the third ground, relating to the benefit given to the appellant for his pleas of guilty. Although this ground was not stated as strongly as this in the submissions, it is implicit in this ground that the learned magistrate failed to specifically explain how the plea of guilty was taken into account. That is a requirement of section 13 of the Penalties and Sentences Act. Section 13(5) provides that a sentence is not invalid merely for failure to comply with that requirement. There is no equivalent provision in the Youth Justice Act. However, Section 150(1)(a) provides that the Court must have regard to the general principles applying to the sentencing of all persons.
- [18]In R v Woods [2004] QCA 204, Jerrard JA, with whom Justices Atkinson and Phillipedes agreed, said Section 13 is a statutory expression of the common law principle and that stating and explaining how a plea of guilty has been taken into account is an essential part of the transparency of the sentencing process.[1] Failure to do so is considered an error of law.
- [19]It is important on an appeal to have regard to the circumstances of the court at first instance. The Magistrates Court is a high volume jurisdiction. Matters are determined without the luxury of time to hone reasons. Sentencing remarks should be read with that in mind. In my view, the observations made by the sentencing judge during the sentencing hearing should be considered as well. Just because specific reference has not been made to some factor does not mean it was not considered on sentence.
- [20]In this case, however, I must respectfully observe that although the learned magistrate noted that the appellant had pleaded guilty, he did not state how he had taken that into account on sentence. There was nothing in the sentencing hearing, either, that would assist to discern how it was taken into account. I find this amounts to an error of law.
- [21]Given that error has been established, it falls to me to re-sentence the appellant. I’ve already noted the aggravating features of his offending. Against that are the following factors: he pleaded guilty to a large number of offences and saved considerable time and expense; some of the charges are based on admissions he volunteered during his police interview; some of the offending is at the very lowest end; and, I note the wilful damage involving the carrot patch and the stealing and possess tainted property might have been charged as less serious offences.
- [22]He is still a very young person, only 13. He was not on a supervised order when he offended, although he was on bail and had entered pleas to some when others were committed. He had managed to stay out of trouble for, on my reckoning, about 15 and a half months between his latest offence in January 2013 and his earliest offences for this sentence, which were on 26 April 2014. He served an intensive supervision order of six months in that time, but his good behaviour extended for many months afterwards.
- [23]Although his offending is ongoing, it could not be argued that it is escalating in seriousness. Indeed, some of the offences he was dealt with for in January 2013 are more serious, such as burglary and commit indictable offence and unlawful use of a motor vehicle. His behaviour has been linked to emotional dysfunction arising from his upbringing, justifying a 24-hour supervised therapeutic residential care placement, a factor that does suggest some moderation might be in order. His offending was also in a context of negative peer association and substance misuse.
- [24]The CRO imposed by his Honour provides intense supervision, but only for a limited period. Given the issues that this child is dealing with, a longer period of supervision seems more appropriate if rehabilitation is given prominence, which, in my view, it must be, given the circumstances of this case.
- [25]The pre-sentence report before his Honour helpfully observed that many of the interventions Youth Justice would offer under a CRO could also be provided under a probation order. Apart from the period of supervision, then, the difference between the two was the consequence for breach.
- [26]I respectfully agree with his Honour’s view that the appellant needed to see some consequence for breach of any court order. However, there is a consequence for a breach of community-based orders, if they are brought to the court, whether it is punishment for the breach or, more seriously, resentencing. I differ from his Honour in his conclusion that only a CRO would provide sufficient disincentive to further offending.
- [27]Had I sentenced this child at first instance, looking at his offending globally and taking into account all those factors I’ve mentioned, I would have imposed a nine month probation order and 40 hours of community service. His personal factors, including the pleas of guilty, would have been reflected in the decision to impose a community-based order rather than one with a consequence of detention if breached. Prospects of rehabilitation are not remote given his age, his acceptance of responsibility by pleading guilty, and his satisfactory completion of the ISO, followed by a not insignificant period of non-offending when judged from his age and personal circumstances.
- [28]However, I am conscious that the appellant has now served two months on his conditional release order. Before I conclude the sentence in this case, it seems to me that I need to hear from Ms Hawkins, who is here from Youth Justice, as to any information she is able to give me about the appellant’s performance on the CRO, how much is left to run, etcetera. Then I will announce the sentence that I will impose, taking those factors into account.
- [29]…
- [30]Having heard the extent of the engagement on the CRO, I think the sentence that I announced of nine months of probation and 40 hours of community service is still the appropriate sentence to impose. Certainly the appellant has done a victim empathy program and has reported over a period of three weeks, but it seems to me that he was very much in the start-up phase and he had not yet engaged in the sort of counselling that had been identified as appropriate and necessary.
- [31]So taking that into account, I will set aside the sentence imposed on the 9th of September 2014 in relation to those offences to which the three months detention by way of CRO sentence applied to, and instead, I will impose a period of nine months of probation and 40 hours of community service, both programs being ones that the appellant had indicated he was willing to enter into when the pre-sentence report was prepared.
- [32]I will not impose any special conditions on the probation order, but I would request Ms Hawkins to convey to the relevant case worker the view I take that, as well as the other therapeutic assistance he is getting through his residential care placement, real consideration is given to how his substance abuse or misuse, whatever you want to call it, might be dealt with during the course of the probation.
Footnotes
[1] At [8]-[10].