CAK v Director of Public Prosecutions [2022] QChC 31

CHILDRENS COURT OF QUEENSLAND CITATION: CAK v Director of Public Prosecutions [2022] QChC 31 PARTIES: CAK (Applicant) v DIRECTOR OF PUBLIC PROSECUTIONS (Respondent) FILE NO/S: CCJ 371/22 DIVISION: Childrens Court of Queensland PROCEEDING: Sentence Review Application ORIGINATING COURT: Townsville Children’s Court DELIVERED ON: 8 November 2022 (delivered ex tempore) DELIVERED AT: Brisbane HEARING DATE: 8 November 2022 JUDGE: Dearden DCJ ORDER: (1) Application for sentence review granted. (2) Discharge the restorative justice order made on 2 September 2022 at the Townsville Childrens Court. (3) Substitute an order for a court diversion referral pursuant to Youth Justice Act s 164. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the applicant was sentenced to a restorative justice order pursuant to section 175(1)(db) of the Youth Justice Act 1992 (Qld) – where the applicant had no criminal history – where the applicant was 12 years of age at the time of the offending – where the defence counsel submitted for a court diversion as an appropriate sentence – whether insufficient weight was put on the applicant’s age – whether insufficient consideration was given to imposing a court diversion referral LEGISLATION Youth Justice Act 1992 (Qld) ss 4, 118, 121, 122, 154, 162, 163, 164, 175, sch 4 Criminal Code 1899 (Qld) s 29 -- 1 of 6 -- 2 CASES O v Commissioner of Police [2018] QCHC 8 R v PBD [2019] QCA 59 COUNSEL: D Hurda for the applicant N Hopper 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 for sentence review by the applicant, CAK, in respect of one charge of threatening violence on which she was sentenced at the Townsville Childrens Court on 2 September 2022. The sentence imposed was a restorative justice order, and that, as I understand it, was a sentence imposed pursuant to Youth Justice Act 1992 (Qld) (‘YJA’) section 175(1)(db). [2] The applicant’s outline provides an overview of the facts which can be recited as follows:– “On Wednesday the 31st day of August 2022 at approximately 1.40 pm, the defendant had a verbal argument with the victim inside Choice Discount Store after the defendant had attempted to steal property. The defendant walked out of the store and continued the verbal altercation with the victim. The defendant stated to the victim, “I’ll fucking stab you, bitch”, before lunging towards the victim and producing a pair of scissors from her pocket, making a “stabbing” movement towards the victim’s face. This caused the victim to lean back away from the defendant to avoid being stabbed with the scissors. The defendant then left the scene on foot and entered Willows Shopping Centre. A short time later, police arrested the defendant outside of Willows Shopping Centre. A search of the defendant was conducted, and a pair of monochrome metal scissors were found in the defendant’s right- hand shorts pocket. The defendant was transported to Kirwan Police Station.”1 [3] The outline notes that at the time of the sentence, the applicant was 12 years old, and had no criminal history.2 1 Exhibit 1 [3]. 2 Exhibit 1 [4]. -- 2 of 6 -- 3 [4] The application for sentence review was filed on 23 September 2022 and the restorative justice order was stayed.3 [5] The applicant was born on 21 September 2009, aged 12 at the offence and sentence, subsequently has turned 13. She lives in Townsville, is Aboriginal, disengaged from schooling and at the time of sentence, had no formal criminal history.4 [6] The prosecutor made no submissions on penalty; the applicant’s lawyer submitted a restorative justice process by way of court diversion was appropriate, and neither the prosecutor nor the applicant’s counsel specifically referred to the YJA section 162(1) requirement for the magistrate to consider a referral to the Chief Executive for a restorative justice process rather than proceeding to sentence. The sentence as indicated was in fact imposed by way of a restorative justice order made under YJA section 175(1)(db).5 The Law – Sentence Reviews [7] This court sitting as a Childrens Court judge may review a sentence order made by a magistrate,6 which review is by way of rehearing on the merits,7 and the applicant is not required to demonstrate error by a sentencing magistrate. The sentence review must be conducted expeditiously and with as little formality as possible.8 [8] In deciding the review, this court may have regard to the record for the Childrens Court Magistrate and any further submissions and evidence by way of affidavit or otherwise.9 The restorative justice order is a community-based order,10 and as indicated, the order has been stayed until the end of this review.11 Grounds [9] The grounds on which the review is sought are as follows: – 3 Exhibit 1 [7]. 4 Exhibit 1 [8] – [10]. 5 Exhibit 1 [11] – [14]. 6 Youth Justice Act 1992 (Qld) s 118 (‘YJA’). 7 YJA s 122(1). 8 YJA s 122(3). 9 YJA s 122(2). 10 YJA s 4; sch 4. 11 YJA s 121(3). -- 3 of 6 -- 4 (1) Insufficient weight was placed on CAK’s young age and absence of criminal history; and (2) there was insufficient consideration given to a court diversion referral. [10] The applicant submits that the YJA provides that a court must have regard to particular sentencing principles and considerations when sentencing a child, including: (1) The seriousness of the offence/s; (2) The child’s previous offending history; (3) Presence of any aggravating or mitigating factor concerning the child; (4) A sentence imposed upon the child had has not been completed; and (5) A child’s age is a mitigating factor.12 [11] The applicant’s counsel stresses that the magistrate was made aware in submissions that the applicant was 12 years old, a particularly young age it is submitted for this jurisdiction in which there is a presumption of a lack of criminal responsibility and this,13 particularly in the context of a lack of criminal history, should have been regarded as a significant mitigating factor in her favour. [12] YJA section 162(1) provides: – “If a child enters a plea of guilty for an offence in a proceeding before a court, the court must consider referring the offence to the chief executive for a restorative justice process instead of sentencing the child (my underlining).”14 [13] Failing to consider a referral of an offence to a restorative justice process is an error of law.15 [14] The court is obliged to consider the following factors in deciding whether to refer an offence for a restorative justice process, being: – (1) The nature of the offence; (2) The harm suffered by anyone because of the offence; and 12 Exhibit 1 [19]; YA s 150. 13 Criminal Code 1899 (Qld) s 29(2). 14 YJA s 162(1). 15 R v PBD [2019] QCA 59 [29]–[32]. -- 4 of 6 -- 5 (3) Whether the interests of the community and the child were served by referring the offence to a restorative justice process. [15] If the court considers it appropriate, it may refer the offence for a court diversion referral.16 Critically, if the referral is made and a restorative justice process is completed, the relevant offence does not form part of the child’s criminal history.17 [16] It is open, as has occurred here, for a child to be sentenced to a restorative justice order (rather than a court diversion referral) but this is a supervised order,18 and the relevant offence or offences form part of the child’s criminal history.19 [17] Critically, YJA section 164 effectively confirms that the court diversion referral option (as opposed to a restorative justice order) is an “off ramp” from the criminal justice system and the matter will only come back into the criminal justice system if the chief executive returns the referral or the child has failed to comply with their agreement.20 [18] Richards DCJ stressed in O v Commissioner of Police [2018] QCHC 8,21 the rehabilitative aspect of the sentencing process when sentencing a child, especially a child who has had no previous contact with the courts. [19] Youth Justice Principles 5 and 8 are also of course clearly relevant, as is Youth Justice Principle 9 and with respect, although I note the respondent submits that it was open to the learned magistrate, who effectively considered the issues under section 163(2) but declined to impose an order of restorative justice diversion, as opposed to a restorative justice order under section 175(1)(db), it seems to me that this is almost precisely the profile of the youthful offender and the nature of a relatively low-level offence for which the provisions of sections 162 and 164 of the YJA were designed. [20] The matters that the applicant’s counsel stresses includes the young age of the applicant (12 at the time of offending); her complete lack of criminal history; the nature of the offence which is punishable by a maximum of two years for an adult; the interests of the community in diverting a child by way of a restorative justice 16 YJA ss 163(1)(d)(ii), 164. 17 YJA s 154(1), (3). 18 YJA s 175(1)(db). 19 YJA s 154(1). 20 YJA 164. 21 O v Commissioner of Police [2018] QCHC 8 [10]. -- 5 of 6 -- 6 process rather than dealing with the child by way of the community-based order context of a restorative justice order under YJA section 175(1)(db); and in that way meeting the objectives in respect of children being dealt with under the YJA, as identified in principles 5, 8, and 9. [21] With respect, I consider those submissions to be completely persuasive. As indicated, it seems to me the “off ramp” provided by a restorative justice diversion is precisely what is required in this matter and although it’s not necessary for error to be shown, it’s my clear view that the learned magistrate erred in the exercise of his discretion in failing to utilise the provisions of YJA sections 162 and 164 and order a restorative justice referral, rather than a restorative justice order. Orders [22] Accordingly, I make the following orders: (1) Application for sentence review granted. (2) Discharge the restorative justice order made on 2 September 2022 at the Townsville Childrens Court. (3) Substitute an order for a court diversion referral pursuant to Youth Justice Act s 164. -- 6 of 6 --