Commissioner of Police v Leo Horan (a pseudonym) [2022] QChCM 2

MAGISTRATES COURT OF QUEENSLAND CITATION: PARTIES: FILE NO: PROCEEDING: JURISDICTION: DELIVERED ON: DELIVERED AT: HEARING DATE: MAGISTRATE: APPEARANCES: Commissioner of Police v Leo Horan (a pseudonym) [2022] QChCM 2 COMMISSIONER OF POLICE v LEO HORAN (a pseudonym) Mount Isa CCM 6/22 Sentence Children’s Court Ex tempore, 25 January 2022 Mount Isa 25 January 2022 E. Mac Giolla Ri Sgt Cooper, QPS, Prosecution Mr Honnef, ATSILS for Mr Horan Ms Douglas, Youth Justice Ex tempore [1] This is a sentence for Leo Horan. Leo has pleaded guilty to three offences on the 3rd of January 2022, which involve entering and an attempted unlawful use and bodily harm. The original allegation delayed sentence proceedings somewhat, but that has now been resolved, and the facts suggest that the real criminality in that offence was the attempt the use the car and, when confronted, not desisting as he should have and intervening when there was some interaction between the complainant in that matter and his co-accused or, at least, another young offender who was attempting to do the -- 1 of 8 -- same things as Leo was. I have had regard to the fact that that complainant was injured and has suffered some discomfort on an ongoing basis. [2] A further offence was on the 10 th of January 2022, when he committed a serious assault by spitting at an officer at a Youth Detention Centre. There will be more about that Youth Detention Centre later in these reasons. His first offence in time was on the 20 th of December 2021, that is a mere six days after he had been released from a Youth Detention Centre having served 214 days, on my count. He was released on a supervised release order. It seems that Leo has real difficulties in abstaining from offending. The reasons for that are set out quite clearly in a pre- sentence report which is exhibit 4 in these proceedings. [3] He has a Youth Justice history that started at 11. He been on six probation orders; two community service orders and one ISO (which is an order that is only given to children under 13); eight detention orders: including three CROs and three on which he was placed on a supervised release order. He has had a total of 19 admissions to Youth Detention. At the time of these offences, he was on a supervised release order, which would have been for 107 days between the 14th of December 2021 to the 30th of March 2022. There was also a CRO in existence because although the CRO had been imposed in July 2021 it was paused or suspended while he was in detention and would have started up again on his release and been in effect until the 18 th of February 2022. He has had a restorative justice order as well in the past. [4] The factors contributing to the offending are his lack of attachment to positive adult role models, grief, loss and exposure to domestic violence. He has parents who drank too much and he has a cognitive impairment and a speech and language delay. He associates with negative peer groups because he can form bonds with them and he is not entirely capable of doing more prosocial activities because of his impairments and because of his association with these peers, it’s a vicious circle. [5] The explanation for his offending, at least as set out in the PSR, is that he was looking for cigarettes or cannabis or ways of making money for those things, when he bumped into other people. He says that the offending was not his idea. That doesn’t apply to the offending at the Youth Detention Centre. He is described as having limited empathy or capacity to demonstrate remorse, but, within those confines, I accept that he has demonstrated some remorse and I accept Mr Honnef’s submissions insofar as they do not cut across those findings in the report and the PSR. [6] He has spent 21 days in detention. He has engaged with Mona, who have an on- country program, but that program is on hold at the moment because of the COVID situation. He is currently being assessed for the NDIS. He is the youngest of six and he lives with his mother, who has dialled in for today’s proceedings. [7] His first interaction with Child Safety was when he was one year old and that was in relation to domestic violence and substance abuse and emotional and physical harm. His mother was very young when she had him and had no support and was herself a victim. In more recent times, he has been scared of being at home and he self-placed outside his home. He finds connecting with people difficult and he has a limited -- 2 of 8 -- number of people around him providing a good example and, in the absence of connections with positive people, he has replaced those with connections with the peers with whom he has committed these offences. [8] I understand from the material and from Mr Honnef’s submissions that he was well behaved until he was 12 years of age. There was a death of an aunt in 2016 and the death of a sister around the same time. [9] Life for Leo is substantially more difficult than it is for other people of his age within this community. I notice that Queensland Police Service have reported over 100 street checks of Leo and I cannot make a positive finding as to the effect that might have had on Leo and I decline to make a finding that those street checks were inappropriate in the absence of further evidence, but it does seem to me that in the life of a young person, that would be a very unpleasant experience and he would certainly feel some kind of labelling, if not a profound labelling by the attention that he was receiving from police. I will leave that matter there. [10] I have had regard to the submissions of Sergeant Cooper for the Queensland Police Service. I have had regard to the AGW v Commissioner for Police [2016] QChC 9 and Judge Shanahan. I’ve had regard to the decision of the President in R v SCU [2017] QCA 198; the decision of HCG [2021] QCA 200; and the decision of BCI [2012] QCA 253. I have had regard to the Youth Justice principles. I have had regard to whether I should impose a restorative justice order, and I decline to do so because I am not satisfied that he has the capacity to meaningfully enter into that type of arrangement. [11] I have had regard as I said, to the Youth Justice principles and note that among the Youth Justice principles are the principle that the community should be protected from offences and, in particular, recidivist high-risk offenders and Leo, unfortunately, falls squarely into that category. But also the principle that the Youth Justice system should uphold the rights of children, keep them safe and promote their physical and mental wellbeing. I note further the principle that:- Programs and services established under this Act for children should be culturally appropriate, promote their health and self-respect, foster their sense of responsibility, encourage attitudes and development of skills that will help children to develop their potential as members of society. That was principle 15. I also have particular regard to principle 18, that: A child should be detained in custody for an offence, whether on arrest, remand or sentence, only as a last resort and for the least time that is justified in the circumstances. Principle 19: A child detained in custody should only be held in a facility suitable for children. -- 3 of 8 -- Principle 20: While a child is in detention, contacts should be fostered between the child and the community. And 21: A child who is detained in a detention centre under this Act should be provided with a safe and stable living environment and should be helped to maintain relationships with the child’s family and community. That’s (a) and (b), (c): Should be consulted about, and allowed to take part in making, decisions affecting the child’s life (having regard to the child’s age or ability to understand), particularly decisions about the child’s participation in programs at the detention centre; and contact with the child’s family, the child’s health; and the child’s schooling. [12] I note those, in particular, because of exhibit 5 that has been handed up in these proceedings, that is, an email from Andrew Ross, who is described as the Development, Sports and Recreation coordinator at the Youth Detention Centre [where Leo was held on remand]. I will make this an exhibit and I will publish this exhibit with my reasons when they are published to the court’s website. It is a document that records and expands on a discussion between Mr Ross and Mr Honnef, that is, Mr Horan’s lawyer: Where I have indicated accommodation sections are in night mode, this means that the young people do not leave their cells. Night mode occurs where we have significant staff shortages and cannot safely bring young people out for daily routine. When in night mode, young people are provided with basic and safe resources to utilise, such as colouring in, find-a-word, puzzles, art and craft activities, trivia, literacy and numeracy activities. Where I have indicated, the accommodation sections are in continuous cell occupancy, that means that the young people are permitted outside of their cell on a rotational basis, usually four at a time, but are still confined to their accommodation sections, ie, they do not exit to go to programs. When in continuous cell occupancy they are able to utilise the lounge, dining area to socialise with staff and peers, participate in activities and/or utilise the [enclosed but outdoor] area for some outdoor fitness-based activities. On most occasions, accommodation sections in COO are provided with the opportunity to engage in at least one structured facilitated program, for example, a fitness-based challenge, craft activity, literacy or numeracy, which is led by a program delivery officer. [13] As I understand that paragraph, it means that in a unit usually the size of 10-plus children, only four children at a time would be allowed out of the unit, meaning that -- 4 of 8 -- the opportunities described in that paragraph must be divided by at least two or possibly three in terms of the time available to each individual child. [14] Leo was remanded in custody on the 4 January 2022 and must have spent at least some time in the watch-house because he didn’t arrive at Cleveland Youth Detention Centre until the 12th of January. Since that time, so for 13 days, he has been placed in a particular unit. On the 12th it was in COO. On the 13th – I cannot decide whether children were allowed out of the unit at that time on that description. On the 14th, it was it night mode. On the 15th, the children have access to the gym and the back oval. On the 16th, they had access to the back oval. On the 17th, there was continuous cell occupancy. [15] On the 18th, there was time to go to school and sports. On the 19th, it was in night mode. On the 20th, it was it night mode. I do not have any information between the 20th and the – and today’s date, the 25th. Mr Horan is only recorded as having attended one program during the entire time at the detention centre and that was a health and physical education activity program on the 18th of January 2022. It is not difficult to see from that how principles of Youth Justice are not being adhered to at this Youth Detention Centre at the moment. [16] I have had regard to Leo’s extensive criminal history. It suffices to say that since 2016, he has been committing very serious criminal offences, mostly property offences, but with some aspect of violence on occasion, for example, there is a robbery, although he does not seem to have any offences of “straight violence”, if I can call it that. [17] I note that the offence of serious assault at the Youth Detention Centre was committed on the 3rd of October 2021, a time that I am advised by Youth Justice, lockdowns including the continuous cell occupancy or the night mode had commenced. I make no particular findings as to the appropriateness or otherwise of the conduct of the officers at the time, but I have to see it in the context of a 16 year old man – 16 year old person with intellectual disability in a confined space, and I do find this is a matter in mitigation and I take it into account in that regard. So in relation to that offence, I will impose no penalty, because that is prior to his sentence in December and, as such, totality suggests that he would not have received any more than the 214 days detention than he already served because of that additional offence. [18] In terms of disposing with the matter, it seems to me that in the ordinary course of events, I will be sentencing Leo to a period of six months detention and require him to serve at least 50 per cent, perhaps more than that, but in the circumstances where he has endured detention where there has been ongoing periods of time where he has literally not been allowed out of his cell for 24 hours at a time and where, when he is let out, it is often simply four at a time for limited times during the day into the day area of his unit. I have visited [this particular] Youth Detention Centre, the cells are perhaps, in the ordinary course of events, one could describe them as towards the minimum of what might be acceptable for a child, and I find the same in relation to the day area of the unit. -- 5 of 8 -- [19] In those circumstances, balancing the need for the community’s protection with the other principles in the Youth Justice Act, I find that it would be inappropriate to require him to serve any longer. [20] I accept that it is not for me, as a judicial officer, to decide what the appropriate type of accommodation is [this particular] Youth Detention Centre, or any youth detention centre, but I am concerned that [this] Detention Centre is falling below the standards it ordinarily operates at, and those standards must already be seen, I would say, as the bare minimum of what might be acceptable in a civilised society, are now falling short of that. My reasons should not be understood to say that children cannot be sentenced to detention at [this] Youth Detention Centre as it is, but I have regard to the circumstances there in making my decision here, which is that, I will attach the main penalty to the unlawful use on 20 December 2021, the most serious offence, because it was committed so soon after being released from detention. [21] You are sentenced to three months detention to be served by way of a conditional release order for three months. And for the remaining offences, you are sentenced to six months probation. I have taken into account the 21 days that you have already served. No convictions are recorded. -- 6 of 8 -- -- 7 of 8 -- -- 8 of 8 --