CBN v Director of Public Prosecutions [2023] QChC 31

CHILDRENS COURT OF QUEENSLAND CITATION: CBN v Director of Public Prosecutions [2023] QChC 31 PARTIES: CBN (applicant) v DIRECTOR OF PUBLIC PROSECUTIONS (respondent) FILE NO: CCJ 316/23 DIVISION: Childrens Court of Queensland PROCEEDING: Sentence Review Application ORIGINATING COURT: Atherton Children’s Court DELIVERED ON: 4 September 2023 (delivered ex tempore) DELIVERED AT: Brisbane HEARING DATE: 4 September 2023 JUDGE: Dearden DCJ ORDER: (1) Application for sentence review granted. (2) Discharge the order for nine months’ detention to be served by way of a six-month conditional release order imposed at the Atherton Childrens Court on 25 July 2023 in respect of the 10 offences subject of this application for sentence review. (3) Substitute an order that in respect of the unlawful use of a motor vehicle offence (12.03.2023) that there be a court diversion referral to a restorative justice process pursuant to YJA s 163. (4) In respect of the remaining nine offences the subject of the application for sentence review, that there be an order for probation for a period of nine months. (5) No convictions are recorded in respect of any of the offences subject of the application for sentence review. -- 1 of 7 -- 2 CATCHWORDS: CRIMINAL LAW – SENTENCING JUVENILES – APPEAL AGAINST SENTENCE – where the applicant child was sentenced to a 9 month detention order to be served by way of a 6 month conditional release order in respect of 10 offences – where the applicant child had spent a substantial period of time on remand – where the applicant child showed genuine remorse and insight into his offending - where the applicants representatives submitted for a probation order –- whether the sentence was excessive LEGISLATION: Youth Justice Act 1992 (Qld) ss 118, 122, 123, 150, 162, 163, 164 COUNSEL: N Douglas for the applicant N Phillips for the respondent SOLICITORS: Legal Aid Queensland for the applicant Office of the Director of Public Prosecutions for the respondent Introduction [2] This is an application for sentence review in respect of a sentence imposed on the applicant child at the Mareeba Childrens Court on 11 July 2023 in respect of the following offences: 1 x stealing (07.12.2022) 1 x commit public nuisance (12.11.2022) 2 x assault occasioning bodily harm, in company (31.01.2023) 1 x unlawful use of a motor vehicle (12.03.2023) 3 x enter premises and commit indicatable offence by break (26.03.2023; 27.03.2023) 2 x enter premises with intent (23.03.2023; 28.03.2023) Background [3] The background to the matter is set out in the exhibit 1.1 [4] The matter was adjourned for sentence before the Atherton Childrens Court, and a pre-sentence report was ordered on 25 July 2023. Bail was granted on 14 July 2023. 1 Exhibit 1 – Outline of submissions on behalf of the applicant child, [2]–[4]. -- 2 of 7 -- 3 [5] The sentence on 25 July 2023 was a nine-month detention order to be served by way of a six-month conditional release order with respect to all 10 offences. An application for sentence review was then filed in this court on 27 July 2023. The Law [6] A Childrens Court judge may review a sentence order made by a Childrens Court magistrate.2 [7] The review is a rehearing on the merits;3 and the Childrens Court judge may have regard to the proceedings before the Childrens Court magistrate and further submissions and evidence by way of affidavit or otherwise.4 The review must be conducted expeditiously and with as little formality as possible.5 [8] The Childrens Court judge on reviewing a sentence order may confirm, vary or discharge the order and substitute another order within the jurisdiction of the Childrens Court magistrate to make;6 and can make any other order a Childrens Court magistrate could have made with the sentence order as confirmed, varied or substituted.7 [9] A court imposing a sentence on a juvenile must take into account the sentencing principles contained in YJA s 150, as well as general sentencing principles and the youth justice principles contained in YJA schedule 1.8 [10] The sentence review process is a rehearing on the merits, and it is not necessary to demonstrate error.9 2 Youth Justice Act 1992 (Qld) (‘YJA’) s 118. 3 YJA s.122(1). 4 YJA s 122(2). 5 YJA s 122(3). 6 YJA s 123(1). 7 YJA s 123(2). 8 YJA ss 150 (1) & (2); sch 1. 9 See for example R v JM [2013] QChC 11, [9]. -- 3 of 7 -- 4 [11] The court has the power to refer an offence to the chief executive for a court diversion restorative justice process,10 and the court must consider such a referral when a child enters a plea to an offence.11 A failure to consider such a referral is an error of law.12 [12] The facts in respect of the 10 offences are concerning and as would be apparent, indicate offences of violence as well as offences of property in the context of a four- page juvenile criminal history. [13] The applicant’s legal representative identified particular matters in quite lengthy submissions, including that the applicant was 14-15 years old at the time of the offending, had grown up in both Mareeba and Atherton with his parents and siblings, had lived at home with his mother following his parents’ separation in 2022 but maintained full support from his father who had attended court for the sentence, was seeking to re-engage with educational programs, had made extremely positive steps while in custody at the Cleveland Youth Detention Centre for a period of 108 days, and had been part of the Gold Star program, wanted to engage in employment in the future, but also wished to continue educational studies, was genuinely remorseful and provided a letter of apology,13 had had a traumatic upbringing, including family members passing away while he was in custody and he had been unable to take part in “sorry business” with his family, and had suffered minor injuries as the result of the unlawful use of a motor vehicle offence, when the vehicle crashed, and it was identified that he was not the driver. [14] The prosecution on sentence did not make any submissions as to penalty, and the applicant’s legal representative submitted that a restorative justice referral should be made in respect of the unlawful use of a motor vehicle offence, and a six to nine- month probation order made in respect of the remaining offences, relying substantially on the period of 108 days of detention spent (relatively briefly in the Mareeba and Cairns watch-house) and the balance at the Cleveland Youth Detention Centre. 10 YJA ss 163 & 164. 11 YJA s 162. 12 R v PBD [2019] QCA 59, [29]-[32]; CAK v DPP [2020] QChC 31, [13]. 13 Exhibit NED6 – Affidavit of Nicholas Douglas, affirmed 4 September 2023. -- 4 of 7 -- 5 [15] The applicant had been generally compliant with his reporting conditions on a conditional bail program and had completed 40 hours of the previous community service order.14 [16] Although it is unnecessary to demonstrate error on the part of the magistrate, it is quite clear in my view that the magistrate has failed to properly consider other sentence order alternatives other than a detention order, has failed (as the applicant submitted) to place sufficient weight on the applicant’s age, the fitting proportion between the offence and the sentence, the substantial period of time spent on remand, and the principle that detention (even served as a conditional release order) should be imposed only as a last resort. [17] In my view, quite clearly, the penalty imposed, although imposed in the context of serious offending, failed to be proportionate to the nature of the offences and the imposition of a detention order in this context was a very substantial penalty, particularly taking account of the time already served in detention. [18] That time in detention clearly received insufficient weight from the learned magistrate, who relevantly referred to it as a “...short period of time” which, in the circumstances, was an unfortunate comment in the context of a child who was relevantly 14-15 at the time of offending and 15 at the time of sentence. [19] The sentencing remarks of the learned magistrate did not appear to indicate compliance with YJA s 150(e) which requires that a detention order should be imposed only as a last resort and for the shortest appropriate period.15 [20] The magistrate also appears not to have placed appropriate weight on the applicant’s letter of apology, the pre-sentence report which indicates significant insight into his offending and the consequences of his behaviour, and the applicant’s willingness to take part in a restorative justice process with the complainant in relation to the unlawful use of a motor vehicle offence. The applicant was also prepared and willing to fully engage in programs offered to him by Youth Justice, and the pre-sentence 14 Exhibit 1 – Outline of submissions on behalf of the applicant child, [11]–[16]. 15 See R v SCU [2017] QCA 198 [55]-[56]. -- 5 of 7 -- 6 report identified the lack of prosocial relationships and institutions in the child’s life as a contributing factor to his offending. [21] I also note that the decision by the learned magistrate to order that the nine months’ detention be served by way of a six-month conditional release order (clearly a sentence imposed in light of the March amendments to the Youth Justice Act) was of itself disproportionate in that a conditional release order in that context would have been for two-thirds of the detention order, and effectively would have been between the conditional release order and the periods spent in actual detention, an overall period in excess of the nine months’ detention. Although more considered decisions on the period of conditional release to be ordered in respect of periods of detention await other more suitable vehicles for examination, this, in my view, was a concerning aspect of the magistrate’s sentence. [22] Frankly and appropriately, the respondent concedes that the original sentence was excessive and considers that the original sentence should be substituted with a 12- month probation order, although in oral exchange with Ms Phillips who appears for the respondent, it was conceded that that could be a little lower in the context of the period spent in actual detention. [23] In all of the circumstances, I consider that the applicant has clearly demonstrated that the sentence is not proportionate to the admittedly serious offending that the applicant was involved in, failed to recognise the age of the applicant at the relative time (14- 15 years), very clearly failed to take account of the contents of the pre-sentence report, failed to recognise the applicant’s insight into his offending, his willingness to engage in respect of a restorative justice process in relation to the unlawful use of a motor vehicle, and has (Mr Douglas advised me from the bar table) continued to engage appropriately in the conditional release order pending the resolution of this application for sentence review. Orders [24] I make the following orders: (1) Application for sentence review granted. -- 6 of 7 -- 7 (2) Discharge the order for nine months’ detention to be served by way of a six- month conditional release order imposed at the Atherton Childrens Court on 25 July 2023 in respect of the 10 offences subject of this application for sentence review. (3) Substitute an order that in respect of the unlawful use of a motor vehicle offence (12.03.2023) that there be a court diversion referral to a restorative justice process pursuant to YJA s 163. (4) In respect of the remaining nine offences the subject of the application for sentence review, that there be an order for probation for a period of nine months. (5) No convictions are recorded in respect of any of the offences subject of the application for sentence review. -- 7 of 7 --