BKI v Director of Public Prosecutions [2022] QChC 17

CHILDRENS COURT OF QUEENSLAND CITATION: BKI v Director of Public Prosecutions [2022] QChC 17 PARTIES: BKI (Applicant) v DIRECTOR OF PUBLIC PROSECUTIONS (Respondent) FILE NO/S: CCJ 69/22 DIVISION: Childrens Court of Queensland PROCEEDING: Sentence Review Application ORIGINATING COURT: Mareeba Children’s Court DELIVERED ON: 20 April 2022 (delivered ex tempore) DELIVERED AT: Brisbane HEARING DATE: 20 April 2022 JUDGE: Dearden DCJ ORDER: (1) The sentence imposed in respect of one by enter premises and commit indictable offence by break (15/8/21) and one by enter premises and commit indicatable offence (15/8/21) at the Children’s Court Mareeba on 17 December 2021 be set aside; and (2) Pursuant to YJA ss 162, 163(1) & 164 – without making a sentence order, order that the applicant be referred to a restorative justice process in respect of the charges, the subject of the application for sentence review. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the applicant was convicted and sentenced to 100 hours of community service to be completed within 12 months and a 12 month probation order with two special conditions – where the application was out of time – where the applicant submits that the combined -- 1 of 8 -- 2 order of community service and probation was manifestly excessive – whether the order was manifestly excessive LEGISLATION Youth Justice Act 1992 (Qld) ss 118, 122, 150, 162, 163, 164, 262 COUNSEL: L Fabian for the applicant S Knight 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 BKI. On 17 December 2021, the applicant child was convicted and sentenced in the Children’s Court at Mareeba in respect of the following offences: (1) enter premises and commit indictable offence by break (15/8/21); and (2) enter premises and to commit indictable offence (15/8/21). [2] The applicant child was sentenced to a combined order of 100 hours community service (to be completed within 12 months) and a 12 month probation order, which had two additional special conditions:-1 (a) a curfew from 6 pm to 6 am until 16 March 2022 unless with his mother, a police officer, a Youth Justice officer or a person approved by Youth Justice; and (b) attendance and participation in training or counselling to develop a sense of personal responsibility and moral reason, must participate in sporting or other activities appropriate to develop prosocial attitudes and self-worth, and must attend education sessions as directed by the Chief Executive. [3] The application for a review of the sentence was filed on 2 March 2022, and was out of time by 32 business days. The period of time in which to file that application was 1 Exhibit 1 – Outline of Submissions on behalf of the child [1]-[2]. -- 2 of 8 -- 3 extended to 4 March 2022 by order of Allen QC DCJ on 4 March 2022, and the probation and community service orders were stayed. The applicant had completed 78 days probation and had completed 13.7 hours of the community service.2 [4] The applicant’s antecedents and the circumstances of the offences have been helpfully outlined by the applicant’s counsel and I adopt and read into the record that summary as follows:-3 “Antecedents of child 7. The applicant child was born on 3 September 2005. 8. He was 15 years, 11 months of age at the time of his offences and was 16 years, three months old at the time of sentence. 9. The applicant child’s lawyer made the following submissions about the child’s antecedents: (a) His parent separated at quite an early age and he reside with his mother in the Tablelands; (b) He attended Atherton High until about year 9 when his attendance waned, and he should’ve been in year 10 but had stopped going to school; (c) He was not working but was hoping to get a trade as an electrician, and “did a year of BPG”; (d) The applicant child’s mother had indicate that at the start of 2021, some destabilisation occurred when his father tried to re-establish contact with him in quite invasive ways, and [the] applicant child had started going out and drinking; (e) There was extensive cooperation by the applicant child in terms of his admissions, and the evidentiary basis appeared to be mostly based on the applicant child’s admissions; (f) He had been compliant with stringent bail conditions for quite a long time, which included a curfew condition he had been subject to for four months; (g) The offending was unsophisticated and spontaneous; 2 Exhibit 2 – Outline of Submissions on behalf of the respondent [4.3], [5.2]. 3 Exhibit 1 – Outline of Submissions on behalf of the child [7]-[12]. -- 3 of 8 -- 4 (h) The applicant child and his mother were not able to pay a restitution order, and that could be considered an aggravating feature; (i) A probation order was the appropriate sentence, and this could be increased in length having regard to the fact the complainants could not be compensated. 10. The Youth Justice representative made the following submissions about the applicant child: (a) The applicant child had advised he was remorseful for his offending behaviour; (b) He had been subject to bail with a curfew and his mother had grounded him and removed privileges (c) The applicant child did not wish to participate in a restorative justice process. 11. The applicant child’s admissible history at the sentence consisted of a single entry from 12 January 2021 in the Atherton Children’s Court where he was reprimanded for three charges of trespass. Circumstances of the Offences 12. The following is a summary of the facts of the offences: Date Charge Allegation 15/08/2021 Enter premise and to commit indictable offence by break; At about 2 am the child and a co- offender entered a pizza shop in Atherton by forcing open a security screen and opening two louvres. The offenders spread flour on the floor, removed drinks from the fridge and tipped over a commercial dough mixer inside the entry point, causing it to become damaged beyond repair. The child [was] interviewed and made admissions to committing the offences on 25 August 2021. The child admitted he was at a party and met a person he knows as “David”. Together they went to the pizza shop where the child was a lookout outside while his -- 4 of 8 -- 5 co-offender broke into look for money and property to take, but they did not get anything. 15/08/2021 Enter premises and commit indictable offence. The child then stated he and his co-offender went to the Atherton RSL and broke in. The child and co-offender then entered the Atherton RSL about at 2:12 am by damaging a lock on a door. They located a safe in the office and a key attached to the bottom and stole cash. Two cash registers were opened, and the cords were cut to one register and the register stolen but this did not contain cash. A total of $4705 in cash, two mobile phones and a cash register were taken. The child admitted they broke into the RSL by smashing a window with a hammer his co- offender had. The child made admissions to locating the key to the safe and taking a money box containing [an] unknown amount of cash, opening a register, and to his co-offender stealing another cash register with unknown money inside. They disposed of the items in the nearby creek and took the money. They went to Cairns by bus and used some money on clothing and food. The child also used some of the money to purchase items on his Xbox account. The child admitted he knew it was wrong and that he could be punished. The total loss to the complainants was $9103.30. -- 5 of 8 -- 6 The law – sentencing reviews [5] The Youth Justice Act 1992 (Qld) (‘YJA’) section 118 gives a Children’s Court judge the power to review a sentence order of a Children’s Court magistrate. That review is to be conducted as a rehearing on the merits which should be conducted expeditiously and with as little formality as possible.4 [6] In conducting that review, the court can have regard to the record of the Children’s Court proceeding and any further submissions and evidence by way of affidavit or otherwise.5 The court, of course, must take into account the sentencing principles contained within YJA section 150. The court is obliged to consider restorative justice under YJA section 262 if a child enters a plea of guilty to an offence. The powers of the court to make a restorative justice referral are contained in YJA section 163. Grounds of Review [7] It is submitted on behalf of the applicant that the learned magistrate imposed a sentence that was excessive in all the circumstances by imposing a combined order of 12 months’ probation with special conditions, in combination with a 100 hour community service order. Discussion [8] The submissions on behalf of the applicant is that on a rehearing of the matter, and in the light of further evidence (the child’s willingness now to participate in a restorative justice process which he was not prepared to do at the time of the sentence), then the appropriate penalty on a rehearing is to set aside the original penalty and to order a restorative justice court diversion.6 [9] Realistically and appropriately, the respondent concedes that the application should be granted and submits either for a restorative justice process, or a reduced period of probation with no conviction recorded.7 4 Youth Justice Act 1992 (Qld) s 122(1), (3) (‘YJA’). 5 YJA s 122(2). 6 Exhibit 1 – Outline of Submissions on behalf of the child [22]. 7 Exhibit 2 – Outline of Submissions on behalf of the respondent [1.1]-[1.3]. -- 6 of 8 -- 7 [10] As the applicant’s counsel identifies in written submissions, the child was almost 16 at the time of the offending, had a criminal history with three offences of trespass for which no conviction had been recorded and reprimand imposed, and in that context, the 12 months’ probation and 100 hours community, with a special condition for a curfew as part of the probation, was excessive in all of the circumstances, and in particular the curfew was imposed without the parties being asked for submissions, and although the child queried the curfew during sentencing, the response by the magistrate that the matter would be adjourned to obtain a pre-sentence report (with an implication that another alternative might be considered) meant that the child accepted the curfew as a condition of the probation order. [11] As previously indicated, the child was not willing to participate in a restorative justice process at the time of the sentence, but is now willing to participate and has been deemed suitable.8 [12] The submission is that given the applicant’s age, expression of remorse and admissions, lack of significant criminal history, nature of the offending, the compliance with the curfew whilst on bail and the probation order and the completion of 13.75 hours of community service, that the application should be granted, and that the appropriate way to deal with the matter is to proceed by way of a restorative justice diversion pursuant to YJA sections 162, 163(1) and 164. [13] As already indicated, the respondent submits as its primary submission given the willingness of the applicant to now participate in a restorative just referral and the respondent’s concession that the combined community service and probation order was excessive, that a restorative justice diversion is the appropriate outcome. [14] Accordingly, the application for sentence review should be granted and orders made that the sentence originally imposed be set aside and that the applicant be referred to a restorative justice process. 8 Affidavit of Lauren Fabian affirmed 2 March 2022 [6e]; MFI A. -- 7 of 8 -- 8 Orders [15] I order as follows: (1) The sentence imposed in respect of one by enter premises and commit indictable offence by break (15/8/21) and one by enter premises and commit indicatable offence (15/8/21) at the Children’s Court Mareeba on 17 December 2021 be set aside; and (2) Pursuant to YJA ss 162, 163(1) & 164 – without making a sentence order, order that the applicant be referred to a restorative justice process in respect of the charges, the subject of the application for sentence review. -- 8 of 8 --