BDA v Director of Public Prosecutions [2023] QChC 34

CHILDRENS COURT OF QUEENSLAND CITATION: BDA v Director of Public Prosecutions [2023] QChC 34 PARTIES: BDA (applicant) v DIRECTOR OF PUBLIC PROSECUTIONS (respondent) FILE NO/S: CCJ 27/23 DIVISION: Childrens Court of Queensland PROCEEDING: Sentence Review Application ORIGINATING COURT: Pine Rivers Childrens Court DELIVERED ON: 8 March 2023 (delivered ex tempore) DELIVERED AT: Brisbane HEARING DATE: 8 March 2023 JUDGE: Dearden DCJ ORDER: (1) Application for sentence review granted; (2) Order the 12-month probation order imposed at the Childrens Court at Pine Rivers on 12 December 2022 be discharged; and (3) Substitute a good behaviour order of three months pursuant to YJA s 175(1)(b) in respect of all offences the subject of this application for sentence review. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – APPLICANT OUT OF TIME TO MAKE APPLICATION – where the applicant child was sentenced to 12 months probation in respect of 35 charges – whether the sentence was manifestly excessive – whether insufficient weight was given to the applicant’s young age, lack of criminal history and personal circumstances - where the applicant child was 11 at the time of offending – where the applicant child had spent 15 days in detention Youth Justice Act 1992 (Qld) ss 118, 119, 122, 123, 150, 175 -- 1 of 15 -- 2 COUNSEL: A Acreman for the applicant AR Hall for the respondent SOLICITORS: Legal Aid Queensland for the applicant Office of the Director of Public Prosecutions for the respondent Introduction [1] This is an application to extend time for a sentence review arising out of sentences imposed at the Pine Rivers Childrens Court on 12 December 2022 in respect of charges which will be set out shortly, and if that application is successful (I note that it is not opposed by the respondent), then an application for sentence review in respect of those same charges. [2] The sentence imposed at the Pine Rivers Childrens Court was a sentence of 12 months’ probation in respect of 35 charges, with no conviction recorded. Those charges are as follows: Date of Offence Place of Offence Offence 06/03/2022 Rothwell Enter premises and commit indictable offence by break 06/03/2022 Rothwell Enter premises and commit indictable offence by break 09/03/2022 North Lakes Unlawful use of motor vehicle, aircraft, or vessel – use 06/03/2022 Rothwell Stealing 13/03/2022 Deception Bay Stealing 15/03/2022 North Lakes Enter premises and commit indictable offence 15/03/2022 North Lakes Enter premises and commit indictable offence 15/03/2022 North Lakes Enter premises and commit indictable offence 8/03/2022 Brisbane City Wilful damage 25/04/2022 Caboolture Stealing 28/04/2022 Brisbane City Stealing 01/05/2022 Caboolture Common Assault 28/07/2022 Caboolture South Stealing 16/05/2022 Caboolture South Stealing 01/08/2022 Morayfield Stealing 02/08/2022 Morayfield Stealing 08/08/2022 Morayfield Stealing -- 2 of 15 -- 3 24/08/2022 Morayfield Stealing 23/08/2022 Morayfield Stealing 25/08/2022 Morayfield Stealing 27/08/2022 Morayfield Stealing 29/08/2022 Morayfield Stealing 11/08/2022 Caboolture South Stealing 06/06/2022 Mount Ommaney Common Assault Between 22/09/2022 and 25/09/2022 Caboolture South Unlawful use of motor vehicles, aircraft, or vessel – use 05/10/2022 Caboolture South Enter premises with intent 29/08/2022 Morayfield Enter premises and commit indictable offence by break 28/10/2022 Bray Park Stealing 30/10/2022 Bray Park Stealing 13/04/2022 Brisbane City Stealing 31/10/2022 Bray Park Stealing 01/11/2022 Bray Park Stealing 31/10/2022 Bray Park Stealing 05/11/2022 Strathpine Stealing 31/10/2022 Bray Park Stealing The law – application to extend time for sentence review [3] Youth Justice Act 1992 (Qld) (YJA) s 119(2) provides: An application must be made within 28 days after the sentence order is made or within a later period that may at any time be allowed by the Childrens Court Judge. [4] The applicant’s outline in respect of the application to extend time to file the application for sentence review acknowledges that the test is similar to that in R v Tait [1998] QCA 304, with the court being required to consider the length of the delay, an explanation for it, and whether it is in the interests of justice to grant the extension.1 That process may involve some assessment of whether the appeal seems to be a viable appeal. [5] As the outline identifies, Legal Aid Queensland only became aware of the sentencing outcome in respect of this matter on 4 January 2023, arising out of the sentence imposed on 12 December 2022. Steps were then taken to request that Youth Justice 1 Exhibit 4 – Outline of submissions on behalf of the applicant (extension of time). -- 3 of 15 -- 4 speak to the applicant, instructions were received by Legal Aid Queensland on 10 January 2023 to investigate the merit in respect of the review, the request for Legal Aid funding was approved on 31 January 2023, the file was allocated on 2 February 2023, and the application for sentence review and an application to extend time were sent on 3 February 2023 and filed on 6 February 2023. [6] The application is therefore four weeks out of time. The applicant submits that the delay was not attributable to the applicant, there was no material prejudice suffered by the respondent, and that the sentence review has merit. 2 [7] The respondent, appropriately in my view, concedes that the sentence review itself has merit, notes that the respondent would not be prejudiced by allowing the application to proceed out of time, and acknowledges that it is in the interests of justice to allow the application for an extension of time for sentence review.3 [8] It is clear, in my view, that there is substantial merit in the substantive review. The respondent acknowledges that no material prejudice has been suffered. It is clear that the delay in filing the application is not attributable in any way to the applicant, but rather to the Legal Aid processes that are obviously necessary for matters such as this to be brought to this court, and accordingly, it is appropriate to bring the application to extend time for sentence review. Accordingly, the applicant is granted an extension of time to file for sentence review to 6 February 2023. The law – sentence review [9] A Children’s Court judge may review a sentence order made by a Children’s Court magistrate.4 [10] The review is a rehearing on the merits;5 and the Children’s Court judge may have regard to the proceedings before the Children’s Court magistrate and further 2 Exhibit 4 – Outline of submissions on behalf of the applicant (extension of time), [4] – [12]. 3 Exhibit 6 – Outline of submissions on behalf of the respondent, [7]. 4 YJA s 118. 5 YJA s 122(1). -- 4 of 15 -- 5 submissions in evidence by way of affidavit or otherwise.6 The review must be conducted expeditiously and with as little formality as possible.7 [11] The Children’s Court judge, on reviewing a sentence order, may confirm, vary or discharge the order and substitute another order within the jurisdiction of the Children’s Court magistrate to make;8 and can make any other order a Children’s Court magistrate could have made with the sentence order as confirmed, varied or substituted.9 [12] 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 1.10 [13] The sentence review process is a rehearing on the merits, and it is not necessary to demonstrate error (see, for example, R v JAM [2013] QChC 11, [9]; R v MKH [2014] QChC 3, p.2; KLP v R [2017] QChC 5, [3]; MOJ v R [2019] QChC 45, [7]; RSS v R [2022] QChC 29, [26]). Background [14] The applicant has helpfully summarised the extensive detail of the offending and the appearance in the Pine Rivers Children’s Court as follows:11 4. On 12 December 2022, the applicant was convicted and sentenced before the Pine Rivers Children’s Court to a probation order [of] 12 months for the offences in the table below. The facts of the charges were not read into the record, rather a schedule was admitted and marked exhibit 1. Date Place Charge Summary of Facts 06/03/2022 Rothwell Enter premises and commit indictable offence by break CCTV that entry was gained to “sip n dip” by the applicant and his brothers using keys taken from a 6 YJA s 122(2). 7 YJA s 122(3). 8 YJA s 123(1). 9 YJA s 123(2). 10 YJA ss 150(1) & (2); sch 1. 11 Exhibit 5 – Outline of submissions on behalf of the applicant child, [4] – [9]. -- 5 of 15 -- 6 lockbox. A Bluetooth speaker valued at $250 and a mobile telephone valued at $90 were taken. 06/03/2022 Rothwell Enter premises and commit indictable offence by break Entry was gained to “Kindred Property” by the applicant and his brother using keys taken from a lock box. Keys were taken with a replacement value of $500. Keys were later found in the possession of the brother. 09/03/2022 North Lakes Unlawful use of motor vehicles, aircraft or vessels/used A black Mitsubishi Lancer is taken from an address at Little Burk North Lakes on 7 March 2022. On 9 March 2022, the vehicle was located on North Lakes Drive with damage to a rear windscreen. The police dog squad trapped the applicant and two of his brothers to Memorial Drive and Gregor Street West North Lakes. The applicant and his brothers made admissions to entering the car by smashing the back windscreen with a hammer. They found the keys in the glovebox and took turns driving. While one of his brothers was driving the car, damage was caused, rendering it inoperable. The car and keys were disposed of. 06/03/2022 Rothwell Stealing CCTV showed the applicant attending the Caltex Service Station at Rothwell with another person on a scooter. He tampers with a petrol bowser, spilling a small amount of fuel. He then opens a compartment under the petrol bowser and steals a fire extinguisher valued at $250. 13/03/2022 Deception Bay Stealing CCTV footage shows the applicant enter the Liberty Service Station at Deception Bay. Another person hands him 2 cans of Rexona deodorant and 4 V energy drinks valued at $33.97. He leaves the shop without paying for the items. 15/03/2022 North Lakes Enter premises and commit an indictable offence CCTV shows the applicant entering the McDonald’s in the food court at North Lakes shopping centre. He goes to the back of the store and urinates on a pallet of hamburger buns before trying to enter a manager’s office with another -- 6 of 15 -- 7 person. The nine crates of hamburger buns were valued at $200. 15/03/2022 North Lakes Enter premises and commit indictable offence CCTV shows the applicant entering the KFC in the food court at North Lakes Shopping Centre. He jumps the front counter and spills and spreads sauces and liquids on the counter before stealing a donation box. 15/03/2022 North Lakes Enter premises and commit indictable offence CCTV shows the applicant entering the Donut King in the food court at North Lakes Shopping Centre. He climbed over the front counter with another person keeping watch. He rummaged through a register and steals Fly-Buy cards and an iPhone. He is seen to return later; at which time, he steals an iPhone charger and two bottles of Coca-Cola. 08/03/2022 Brisbane City Wilful damage The applicant had been released to the care of his Child Safety carers but then ran away in the company of his brother and entered the King George Square carpark. The traffic cones and a sign are thrown around. His brother is seen to spread hand sanitiser across the floor of the bus terminal and lights it. The dispenser melts. The applicant does nothing to stop his brother or remove himself. He is actively involved in throwing things. 25/04/2022 Caboolture Stealing The applicant enters the Spa store at Caboolture in the company of another person. They steal several cans of deodorant. The applicant takes one can. 28/04/2022 Brisbane City Stealing CCTV footage shows three people enter the Million Life store in the Myer Centre. The applicant acts as a lookout when a laptop is stolen from a handbag. The applicant as lookout. 01/05/2022 Caboolture Common assault The applicant attends the Spa store at Caboolture and is told to leave. The complainant then feels spit from the applicant hit his arm. -- 7 of 15 -- 8 28/07/2022 Caboolture South Stealing The applicant was with two other people. All three were asked to leave the store and all three stole an unknown quantity of chocolates before leaving. 16/05/2022 Caboolture South Stealing The applicant attends Coles Express at Caboolture, on two occasions however is not let into the store. On a third occasion he enters the store and steals food and drinks. No quantum is provided. 01/08/2022 Morayfield Stealing The applicant and two others entered Fresh & Save Morayfield where they stole health and beauty items by putting them down their pants and leaving the store without paying. No quantum is provided. 02/08/2022 Morayfield Stealing The applicant and two others entered Fresh & Save Morayfield where they stole various items before leaving the store without paying. No quantum is provided. 08/08/2022 Morayfield Stealing The applicant and two others entered Fresh & Save Morayfield where they stole various items, including meat, before leaving the store without paying. No quantum is provided. 24/08/2022 Morayfield Stealing The applicant in the company of another entered Fresh and Save Morayfield where they stole various food and drink items valued at $20.55 23/08/2022 Morayfield Stealing The applicant in the company of another entered Fresh & Save Morayfield where they stole energy drinks valued at $13.77. 25/08/2022 Morayfield Stealing The applicant entered Fresh & Save Morayfield where he tried to steal a hot chicken but did steal other food items such as sausage rolls and drinks valued at $7.98. 27/08/2022 Morayfield Stealing -- 8 of 15 -- 9 The applicant entered Fresh & Save Morayfield where he stole food and drinks valued at $17.82. 29/08/2022 Caboolture South Stealing The applicant in the company of two others entered BWS Market Plaza where they stole a 660 ml Woodstock & Cola and a 640 ml Bundaberg Rum & Cola. 11/08/2022 Caboolture South Stealing The applicant in the company of another entered BWS Market Plaza where he stole a 700 ml bottle of vodka. 06/06/2022 Mount Ommaney Common assault The applicant was on a Brisbane Bus Lines bus at Mount Ommaney with others. The victim child was also a passenger. The applicant and others threw a gardening glove at the victim and hit him on the back of the head. The victim threw the glove back. Another person threw it again, missing the victim. The victim throws it back again, saying, “Piss off”. The bus stopped at which time the applicant strikes the victim on the left side of the face with his fist. The victim tries to hit back with a glancing blow somewhere on the applicant’s body. The victim took a photograph of the group. Between 22/09/2022 and 25/09/2022 Caboolture South Unlawful use of motor vehicles, aircraft or vessels – use A white Hyundai Tucson was taken during a burglary. The vehicle was later recovered at Caboolture. Fingerprints inside a doorframe were identified as belonging to the applicant. He made admissions to being a passenger in the vehicle. 05/10/2022 Caboolture South Enter premises with intent Pams Affordable Gifts in Morayfield sell items including e-cigarettes. Three people are seen to arrive in a white sedan before reversing the vehicle into the front entrance of the premises causing the entire front wall to be damaged. Entry was gained and property, including e-cigarettes, was stolen. The applicant made admissions to police that he used an axe to smash windows to get in and steal cigarettes and e-cigarettes. 29/08/2022 Morayfield Enter premises and commit indictable offence by break -- 9 of 15 -- 10 A white Corolla was entered by a back window being smashed. Keys were taken from inside the vehicle. The applicant made admissions. 28/10/2022 Bray Park Stealing CCTV shows two people enter Freechoice Tobacco at Bray Park where they steal five jet lights with a total value of $50. Police identify ABB in the facts. 30/10/2022 Bray Park Stealing CCTV shows a male and female people enter Freechoice Tobacco Bray Park where the male steals five jet lighters and the female steals one jet lighter valued at $11. Police identify ABB in the facts. 13/04/2022 Brisbane City Stealing Applicant enters the 7/11 store in Brisbane City in the company of another person. They each steal a can of Red Bull valued at $4.45 each. 31/10/2022 Bray Park Stealing CCTV shows the applicant in the company of another person entering the 7/11 at Bray Park. They steal milk drinks, lollies and chips valued at $70. 01/11/2022 Bray Park Stealing CCTV footage shows the applicant in the company of another enter the 7/11 at Bray Park. They are each seen to grab a jet lighter before leaving the store without paying. Facts quantify the items as valued at $136. 31/10/2022 Bray Park Stealing CCTV shows the applicant in the company of another entering the Freechoice Tobacconist at Kensington. They each steal a jet lighter valued at $10. 05/11/2022 Strathpine Stealing CCTV footage shows the applicant in the company of two others enter the BWS at Strathpine. They steal a 10-pack of Vodka Cruisers and a 6-pack of Woodstock cans. Total value of $73.50. 31/10/2022 Bray Park Stealing -- 10 of 15 -- 11 CCTV shows the applicant in the company of another entering the Freechoice Tobacconist at Bray Park. They each steal jet lighters with a total value of $100. 5. The applicant had no criminal history at the time of sentence. 6. The applicant had spent 12 days in pre-sentence custody [it should be noted that this was incorrect, and the actual time spent in pre-sentence custody was 15 days]. 7. The applicant had been subject to a conditional bail program prior to sentence. 8. The prosecution confirmed a submission of 12 months’ probation and further submitted for community service as a personal deterrent. 9. The legal representative for the applicant did not oppose a probation order of 12 months duration but did not make direct submissions on duration. [15] The reference in exhibit 5 – Outline of submissions on behalf of the applicant child [4] to “ABB” is drawn from the schedule of facts tendered at the sentence before the learned magistrate on 12 December 2022 at the Pine Rivers Childrens Court, but it is common ground between the applicant and the respondent that the reference is, in fact to the applicant BDA. The applicant’s antecedents [16] The applicant’s outline helpfully summarises the applicant’s antecedents as follows:12 10. The applicant is a 12-year-old Aboriginal boy, born on 14 August 2010. He was 12 at the time of sentence and 11 at the time of a lot of the offending. 11. The applicant came into the care of the Department of Children, Youth Justice and Multicultural Affairs (the Department) on interim orders in March 2011 when he was a baby due to concerns regarding neglect and exposure to parental domestic violence, drug use, criminal conduct and mental health concerns. He has been subject to a long-term guardianship child protection order since July 2014. 12. The applicant has experienced at least 56 different placements, some with siblings, and at times he self-placed with his mother who was living rough and then later in a house at Morayfield. 13. A comprehensive mental health, fitness and soundness assessment court liaison service report (CLS Report) was prepared for court and admitted and marked 12 Exhibit 5 – Outline of submissions on behalf of the applicant child, [10]-[17]. -- 11 of 15 -- 12 as exhibit 2. This report detailed the applicant’s antecedents and his presentation and diagnosis at the time of offending and sentence. 14. The report speaks to: a. the applicant’s involvement with Child Safety, including placement instability and trauma; b. the applicant’s limited educational experience; c. the applicant’s psychiatric history with Evolve Therapeutic Services in relation to significant behavioural issues, diagnosis of attention- deficit hyperactivity disorder (ADHD) and reactive attachment disorder of childhood (RAD); d. the applicant’s cultural connection and engagement with the Kabul Justice Program. 15. The applicant and his brother currently reside together in a residential placement with care providers “One MOP” at the Sunshine Coast. This arrangement has a very heavy focus on culture and connecting the applicant with other young indigenous men. 16. The applicant has not attended school since grade 5 and has remained completely disengaged from education, however, enrolment at Arethusa College on the Sunshine Coast is being pursued. 17. Monthly stakeholder meetings are held to discuss the applicant’s care. Representatives from the Department of Child Safety and Youth Justice (Caboolture and Caloundra), Education Queensland and One MOP participate (citations omitted). Grounds of review [17] The grounds of review are identified as follows: –13 23. It is submitted that the sentence order imposed was manifestly excessive in circumstances where: a. insufficient weight was given to the applicant’s very young age and lack of criminal history and his personal circumstances; b. the nature of the offending renders a 12 months’ probation order disproportionate; c. the sentence imposed failed to give adequate recognition to time spent remanded in custody and participation in a conditional bail program prior to sentence. 13 Exhibit 5 – Outline of submissions on behalf of the applicant child, [23]. -- 12 of 15 -- 13 [18] The applicant in submissions identifies, in particular, the applicant’s age as a mitigating factor (12 years of age at sentence and 11 years of age at the time of much of the offending) and noted that the learned magistrate expressed concern concerning the applicant’s age and understanding, and noted also the contents of the report, which was admitted in the proceeding. When the applicant came before the court, he had no criminal history. It is submitted that the applicant’s age, lack of history and personal circumstances, although discussed, were not directly referred to as mitigating factors in the sentence, and those matters alone should have been a significant mitigating factor.14 [19] In respect of the sentence of 12 months’ probation, the applicant’s submissions identify that there was a serious aspect in respect of some of the offences, but many of them were low level and minor, a fact recognised by the learned magistrate. The prosecutor submitted for 12 months’ probation, and the applicant’s legal representative did not, in words, oppose that submission. [20] The applicant relies on the decision in Veen [No. 2] v The Queen [1988] 164 CLR 465, 472-473, which establishes the principle of proportionality. It is submitted that the learned magistrate placed excessive weight on the frequency of the charges, the impact on the community and on educating the applicant.15 [21] It is also submitted that the learned magistrate failed to give adequate recognition to the time period spent in custody (now identified as 15 days), as well as compliance with a conditional bail program prior to sentence, which, in the context of the 12 months’ probation which was imposed, represented no mitigation of that sentence in the light of either the period in detention or the compliance, at least “done reasonably well” with the conditional bail program.16 [22] The respondent identifies that the learned magistrate acknowledged that the applicant child was unwilling to engage in restorative justice conferencing,17 and further identifies that the sentence imposed of 12 months’ probation was manifestly 14 Exhibit 5 – Outline of submissions on behalf of the applicant child, [24] – [30]. 15 Exhibit 5 – Outline of submissions on behalf of the applicant child, [31] – [36]. 16 Exhibit 5 – Outline of submissions on behalf of the applicant child, [37] – [44]. 17 Exhibit 6 – Outline of submissions on behalf of the respondent, [20]. -- 13 of 15 -- 14 excessive in all of the circumstances, noting that reprimands imposed on 10 of the offences for which the applicant was originally sentenced gave no real benefit for the time spent in custody and the time subject to a conditional bail program.18 [23] It should also be noted that the probation order in this matter has not been stayed, and I am advised by counsel for the respondent that the applicant has now spent a period of two months and 27 days since sentence on probation, and as previously identified, spent 15 days in pre-sentence custody prior to sentence. [24] In all of the circumstances, it is, in my view, clear that the learned magistrate has fallen into error in imposing a sentence of 12 months’ probation in respect of the 35 offences the subject of this application for sentence review. The court is then placed in a situation of having to decide how to appropriately recognise the matters that have been outlined, in particular the age of the applicant at the relevant time (11-12 years old), the lack of criminal history at the time and in particular the serving of 15 days of pre-sentence detention and completing two months and 27 days of probation since sentence on 12 December 2022, which was not stayed. [25] In all of the circumstances, I consider that the appropriate starting point would have been a probation order, perhaps in the range of four to six months at worst, for the applicant, and, in the current circumstances, the appropriate way to recognise that which cannot be turned back, is to impose a good behaviour order (a non-supervisory order) and recognise the detention and supervision subsequent to sentence, as well as the compliance with the conditional bail program. Orders [26] Accordingly, I order as below. (1) Application for sentence review granted; (2) Order the 12-month probation order imposed at the Childrens Court at Pine Rivers on 12 December 2022 be discharged; and 18 Exhibit 6 – Outline of submissions on behalf of the respondent, [23], [25] & [26]. -- 14 of 15 -- 15 (3) Substitute a good behaviour order of three months pursuant to YJA s 175(1)(b) in respect of all offences the subject of this application for sentence review. -- 15 of 15 --