EW v QPS[2015] QDC 308

DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant juvenile EW was sentenced in the Magistrates Court in Townsville on 10 June 2015 in respect of a number of property related offences and a breach of a Boot Camp (Vehicle Offence) Order. She has appealed on the ground that the sentence was manifestly excessive. The appellant (Date of Birth 06 February 2001) was aged 14 years when sentenced.

Jurisdiction

2. [2]
   Pursuant to section 117 of the Youth Justice Act 1992 (“Youth Justice Act”), the appellant juvenile (“the appellant”) must appeal to a Children’s Court judge and the orders of the magistrate are taken to be an order on a complaint for an offence. I have jurisdiction to hear and determine this appeal.

The sentence

3. [3]
   The only issue in this appeal is the sentence imposed on the breach of a three month Boot Camp (Vehicle Offence) order [section 246AA Youth Justice Act 1992] (“the BC order”) made on 28 January 2015.

4. [4]
   The BC order was revoked by his Honour in the Magistrates Court and the appellant was resentenced to detention for two months with release after serving 70% of that period. No conviction was recorded. She served 29 days of detention before being released on bail pending the determination of this appeal. The unserved balance of 70% of the detention is 13 days. The unserved balance of the full period of detention is 31 days.

5. [5]
   The appellant had been charged with further property offending during the period of the BC order. She was also sentenced for those matters on 10 June 2015, but those sentences are no longer the subject of this appeal.

The submissions to the magistrate

6. [6]
   The solicitor representing the appellant in the Magistrates Court (Mr Gill) had sought a further opportunity for the appellant to satisfy the requirements of the BC order. When it was apparent that the magistrate intended to revoke the order and resentence the appellant in another way, the solicitor’s submissions advocated a non-custodial sentence (for example, a Conditional Release Order, if a period of detention was being contemplated).

7. [7]
   The police prosecutor had submitted that the BC order should be revoked.

The SYBC programme

8. [8]
   I should say something about orders of the nature of what has become known as the Sentence Youth Boot Camp (“SYBC”) programme.

9. [9]
   Boot Camp orders are an option in lieu of detention, although there are circumstances where they are mandatory. They are community based orders in effect. There are two distinct and different orders: a Boot Camp order (section 226A Youth Justice Act) and a Boot Camp (Vehicle Offence) order (section 206A Youth Justice Act).  This appeal involves an order made under section 206A Youth Justice Act.

10. [10]
    The SYBC programme has been concluded by the Queensland Government. The last sentencing date to the SYBC programme was 21 August 2015 and the SYBC programme closed on or about 27 October 2015, with the young people remaining subject to BC orders being transitioned to Youth Justice to complete their BC order.

Grounds of appeal

11. [11]
    The grounds of appeal are that the magistrate erred by imposing a sentence that was manifestly excessive. The grounds are as follows:

1. (a)
   failure to take into account the fact that the defendant child had not been sentenced to any form of detention order or community-based order by way of probation or community service;

2. (b)
   failure to consider s 150(2)(b) of the Youth Justice Act, which dictates that a non-custodial order is better than detention in promoting a child’s ability to               reintegrate into the community; and

3. (c)
   failure to consider s 150(2)(c) of the Youth Justice Act which dictates that the rehabilitation of a child found guilty of an offence is greatly assisted by –

 (i)  the child’s family; and

2. (ii)
   opportunity to engage in education programmes and employment.

The appeal process

12. [12]
    An appeal to this Court under s 222 of the Justices Act 1886 (“Justices Act”) is by way of re-hearing on the original evidence given in the proceeding in the Magistrates Court: section 223 Justices Act. 

13. [13]
    Sentencing is a discretionary exercise by a Judge or magistrate (unless there is a specific sentence or sentence regime mandated by legislation). A decision to make a detention order for a juvenile is a discretionary decision.

14. [14]
    The manner in which an appeal against an exercise of discretion is governed by established principles: House v The King (1936) 55 CLR 499, at 504-505; and Hughes v Hopwood (1950) QWN 21, where Macrossan CJ (at 31) wrote that an appeal court is not entitled to interfere with the decision appealed from “unless it can find that the sentence is manifestly excessive or that there are some circumstances which show that the magistrate acted under misapprehension of fact or in some wrong principle in awarding a sentence.”

Magistrate’s decision

15. [15]
    His Honour was not much impressed with the appellant, although on any objective view her conduct was not remarkable or exceptional in one’s experience in the Youth Justice regime. In the course of his sentencing remarks, he said the following:

“The community bends over backwards to give young people chances. But how many chances can I give you?  You have had, as I have said, two Boot Camp Orders. This will be your third one. And I think I would be remiss in circumstances where Boot Camp Orders have provided you with opportunities to integrate properly into society, not to send you to detention here today. And that’s what I am going to do. I revoke the Boot Camp Orders and I bear in mind, of course, the relevant sentencing principles, as I said so clearly. I don’t make this decision lightly to send you to Cleveland but I don’t see my way clear. This community is bleeding. People are hurting. People are hurting because people are just nicking – taking things that belong to other people. Go and get your own stuff. Save up for a bike and ride a bike like we all did when we were young.”

16. [16]
    It will be apparent from what follows that the ‘chances’ that this young appellant had been given had not included probation or community service.

17. [17]
    It seems the reference by the magistrate to “integration” was a reference to the opportunities twice previously given, but not taken up by the appellant, to re-join mainstream community through participation in two BC orders. His Honour seemed to consider that detention would offer the same opportunity, because he was of the view that the components of a Conditional Release Order and a BC order were the same. However, the sentence he imposed did not include a Conditional Release Order.

Analysis

18. [18]
    The breach was constituted by failures to report and attend programmes as directed on seven occasions in two periods between 02 March 2015 and 10 April 2015: that is, in a period of five weeks.

19. [19]
    The appellant is young. The previous BC orders were mandatory sentences because she was a recidivous motor vehicle offender, in terms of the provisions of the Youth Justice Act. She had not previously been sentenced to detention. She had not received any other form of supervised community based order: that is, one that did not involve any compulsory residential component. 

20. [20]
    This was the thrust of the submission made to the magistrate by Mr Gill and it was iterated in the primary submission made to me on the appeal. Mr Gill focused his submission before me on rehabilitation, in the context that rehabilitation in the community by appropriate orders was ignored by the magistrate who he said had given too much weight to deterrence and punishment. The respondent simply referred to the appellant having in fact been given community based orders (through the BC order programme) and that she had failed to comply with those and had also committed further offences. The thrust of Mr Gill’s submissions were that with respect to rehabilitation it was best achieved by community based orders being imposed rather than detention.

21. [21]
    I was provided with two pre-sentence reports which had been prepared for the matters dealt with in January 2015 (Report dated 27 January 2015) and for the subject matter in June 2015 (Report 09 June 2015).

22. [22]
    In the earlier of those reports, the author summarised the factors contributing to offending in the following way:

“It is assessed that [EW’s] transience in the absence of supervision, coupled with her engagement with a negative peer group has contributed to her increase in anti-social behaviours. Because of [EW’s] attachment to a negative peer group she has adopted their pro-criminal attitudes normalising anti-social behaviour which has ultimately led to the commission of the offence before the Court.”

23. [23]
    In the second of the reports the same author made the following observations with respect to the factors contributing to offending. She said the following:

“In 2013 the family relocated to Townsville after spending significant periods of time between New South Wales and Queensland. It was at this time that [EW’s] grandparents separated and [her grandmother] feels that this significantly impacted [EW] as [her grandfather] was the only stable role model [EW] has in her life”;

and

“It is the author’s assessment that [EW’s] significant loss of connection with her grandfather and mother has resulted in a removal of her attachment and connectedness to her family and has led [EW] to look for those relationships amongst her peers.”

24. [24]
    Significantly, the following was reported by the author:

“During the two month remand period [EW] has been subject to bail with a curfew and residential conditions which has restricted her movements.  Both [EW] and [her grandmother] stated that this was a significant consequence for them as they felt isolated living in Deeragun.”

[Deeragun is a north western suburb of Townsville].

25. [25]
    In the report sentencing options were discussed in the customary way, including the following observations made with respect to the BC order:

“At the time of the offences, [EW] was subject to a three month Boot Camp (Vehicle Offence) Order. [EW] had completed the residential phase of the Order and was in the process of completing the community supervision phase. Due to non-compliance of the statutory requirements of the [BC order] made on 28 January 2015, the Department made application for contravention of the Order. The [BC order] is listed for sentencing in the Townsville Children’s Court on 10 June 2015. 

Prior to her disengagement with the [BC order], [EW] was engaging in weekly reporting sessions with her Youth Justice Case worker to address her offending behaviour and monitor her Order compliance. During reporting sessions [EW] engaged in the Changing Habits and Reaching Targets (CHART programme), and has completed the first three modules of the programme which address Mapping My Offending, Motivation to Change and Thinking and Offending.  [EW] will be required to re-engage with the CHART programme and based on her offending behaviours, the identified modules she will be required to complete post-sentence include, Problem Solving, Healthy Relationships, Motor Vehicle and Education Work.

EW has not spent any time remanded in custody in relation to the offences before the Court.”

The meaning of “excessive”

26. [26]
    For a sentence to be “excessive” it must be “beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness”: R v Morse (1979) 23 SASR 98; R v Lamass (1981) 5A Crim. R 230; R v McIntosh [1923] StR Qd 278; Lowe v The Queen (1984) 154 CLR 606.

Discussion

27. [27]
    A reading of the pre-sentence reports reveal that the appellant had in fact engaged with Youth Justice in the post-residential phase of the BC order. Her non-compliance was over a space of five weeks and she was then, it seems to me peremptorily charged with a breach of the BC order. I tis not for me to question whether that was an appropriate response, but the magistrate was not dealing with a recalcitrant youthful offender who had ignored the opportunities provided by the BC order. Quite to the contrary, she had engaged but failed in the course of that engagement. That is not surprising when, upon a reading of the pre-sentence reports, one understands her background and the factors influencing her offending behaviour and appreciates in a holistic sense her age of 14 years and the immaturity and lack of wisdom that young people of that age more often than not are influenced by.

28. [28]
    I would not have sentenced the appellant to detention. She was only 14 years of age. Her social and cultural problems are shared by many young people, particularly indigenous juveniles.

29. [29]
    However, what I just said is not the ‘test’ on an appeal. Whilst detention may have been open to be imposed, despite the appellant’s age and because she had not complied completely with the programmes offered in the post-residential stages of the BC orders and those BC orders having some similarity with alternative community orders. However, I consider detention per se was more punitive than rehabilitative in its custodial stage (70% of the term of detention, followed by a Supervised Release Order) and insufficient regard was given to an order that kept the appellant in the community with family and professional support.

30. [30]
    I consider that the magistrate’s sentencing discretion miscarried. He seems to me to have paid lip service to the imperative in the Youth Justice Act that places rehabilitation at the forefront of the sentencing principles. His observations in making his decision (to which I have referred, infra) may show a degree of exasperation, perhaps even expressed on behalf of the “community”, but do not demonstrate the objectivity demanded by the task of a Judicial Officer dealing with young juveniles in the court system where behaviour is motivated primarily by social, familial and cultural factors, in what is admittedly a difficult jurisdiction for any judicial officer to preside in. An order for detention was beyond the appropriate range of sentencing in the circumstances of this case.

Short custodial orders

31. [31]
    The appellant had previously completed a residential period of a BC order. She was required to serve 42 days (70%) of the two month Detention Order. As I have observed, she has served 29 days.

32. [32]
    Short periods of incarceration are generally undesirable: R v C [1996] QCA 234: the Court of Appeal was required to consider whether detention for the juvenile in that case was appropriate. He was 14 years of age, the offences involved drugs and he had a record of previous property offending and had offended whilst on bail. He had been sentenced to four months of detention with a requirement to serve 50% of that period. He suffered from health issues including ADH. 

33. [33]
    A sentence of a term of detention should not be imposed unless it is appropriate in all of the circumstances of the case. With respect to short periods of incarceration (with respect to imprisonment but equally applicable to detention) Thomas & Davies JJA in R v Hamilton (2000) QCA 286 wrote:

“The period of one month’s actual custody, which is extremely short, was imposed by the learned sentencing judge ‘to get home to the prisoner and as a matter of protection for the public, he needs to have a better appreciation of the danger of driving in the way that he has in the past.’

His Honour’s reference to the driving was a reference not only to the driving in this case but to the speeding offence shortly after the commission of this offence. He had earlier described his decision to impose imprisonment as a need to give the applicant ‘a short sharp lesson’. Clearly that could have been the only purpose of such a short term of imprisonment. It would be most unlikely to have any rehabilitative effect.”

34. [34]
    The Court allowed the appeal and imposed a sentence of imprisonment for twelve months to be served by way of intensive correction in the community, in lieu of a sentence of imprisonment with time to serve and an operational period. Their Honours wrote:

“The need of the community to see this applicant appropriately punished and others deterred the public advantage, as well as that of the applicant, in best achieving his rehabilitation – the need to bring some discipline into his life – can best be achieved, in our opinion by a sentence of imprisonment to be imposed by way of Intensive Correction Order.”

35. [35]
    The appellant has not previously had the benefit of probation and such an order would permit her to remain in the community in a supervised and supported way and allow the prospect of her resuming attendance at school within the community.

36. [36]
    The appellant’s juvenile history includes two charges of unlawful use of a motor vehicle, committed on or about 20 January 2014, when she would have been just short of her 13^th birthday. It was followed by a series of offences, including unlawful use of motor vehicles, dealt with on 21 May 2014 and then the offences dealt with on 28 January 2015 which involved two unlawful use of motor vehicles and a trespass. That juvenile history is not at all remarkable in the context of juvenile criminal histories generally and would not ordinarily create the imperative to impose a sentence of detention on someone so young.

Errors in the juvenile criminal history

37. [37]
    The police prosecutor informed his Honour that there were errors in the recording of the juvenile history. In respect of the offences dealt with on 21 May 2014 and 28 January 2015, in the Magistrates Court at Townsville where BC orders were made, the criminal history incorrectly records those sentences as follows:

38. [38]
    BC orders, of either kind, are not orders for detention. Whilst they may have a residential component they are community based orders. It is incorrect to refer to them as being orders that involve “detention.”

39. [39]
    Despite the SYBC programme having been concluded by Queensland Government initiative, juvenile criminal histories remain extant. The error may not be confined to this matter and if it is not then there is a need to ensure such records are corrected. How that might be achieved is a matter for the relevant responsible authority.

Powers on appeal

40. [40]
    I may confirm, set aside or vary the orders made by the magistrate or make any other order I consider just: s 225 Justices Act.

Conclusion

41. [41]
    The magistrate was in error in placing too much weight on the punitive and deterrent aspects of sentencing and to little weight on the rehabilitative aspect.

42. [42]
    It was not a simple task for his Honour. The appellant had failed to attend appointments and programmes. She had committed further offences. However, the breach event was over a very short period and followed the completion of a residential component of the BC order and a period of compliance with it. She was 14 years of age. Her offending was at the cusp of her attaining the age of 13 years. The pre-sentence reports do not suggest that rehabilitation is not an achievable outcome.

43. [43]
    The sentence of detention was manifestly excessive in all the circumstances. Hence it is necessary that I re-sentence the appellant.

Resolution

44. [44]
    I consider that a release on a Probation Order is appropriate, because the appellant has served 29 days of detention. In any other circumstance, a Conditional Release Order could have been appropriate but I no longer consider that it is, the appellant having served one half of the term of detention.

45. [45]
    In my view, a period of three months’ supervision is desirable and that can now be achieved by a Probation Order made for that term.

46. [46]
    However, I will hear the parties further as to sentence if either or both wish to make any submission about what I am proposing. The appellant should appear for resentence in any event, since she must consent to any Probation Order and has not had such an order explained to her previously by a judicial officer.

47. [47]
    The bail undertaking of the appellant is enlarged until the resentencing is concluded.

ORDERS