DNY v Director of Public Prosecutions [2021] QChC 48

CHILDRENS COURT OF QUEENSLAND CITATION: DNY v Director of Public Prosecutions [2021] QChC 48 PARTIES: DNY (Applicant) v DIRECTOR OF PUBLIC PROSECUTIONS (Respondent) FILE NO/S: 252 of 2021 DIVISION: Childrens Court of Queensland PROCEEDING: Sentence Review Application ORIGINATING COURT: Redcliffe Childrens Court DELIVERED ON: 30 August 2021 (delivered ex tempore) DELIVERED AT: Brisbane HEARING DATE: 30 August 2021 JUDGE: Dearden DCJ ORDER: 1. Application for sentence review granted. 2. Set aside the sentence of detention (to be served by a conditional release order) imposed by the learned sentencing magistrate at the Redcliffe Children’s Court on 30 June 2021. 3. Substitute an order that the applicant be sentenced to a single sentence of nine months probation in respect of all the offences the subject of the application for sentence review. Order that no convictions be recorded in respect of those offences. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the child was sentenced to a four month detention ordered to be served by way of a three month conditional release order for various weapon, violence and property related offences – where the child was aged between 12 and 13 years at the time of the offending – where the child had a relevant criminal history – where the child had spent 50 days in pre-sentence custody – where the child had a prejudicial upbringing – whether there was a denial of fairness procedural fairness by prejudgment – whether the sentence imposed was excessive in the circumstances Youth Justice Act 1992 (Qld) ss 118, 122, 150, 207 -- 1 of 10 -- 2 EH v QPS; GS v QPS [2020] QDC 205 HGT v Queensland Police Service [2021] QDC 186 R v SCU [2017] QCA 198 COUNSEL: E Thambyah for the applicant K Goyen 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, DNY, in respect of a sentence imposed at the Redcliffe Childrens Court on 30 June 2021. The sentence was imposed in respect of the following matters:- 1x unlawful use of motor vehicles, aircraft or vessels – used (between 19/3/2021 and 22/3/2021). 1x enter dwelling and commit indictable offence (21/3/2021). 1x attempted unlawful use of motor vehicles, aircraft or vessel – used (21/3/2021). 1x going armed so as to cause fear (12/5/2021). 1x threatening violence – discharged firearms or other act (12/5/2021). 1x aggravated assault occasioning bodily harm (12/5/2021). 1x affray (12/5/2021). [2] The pleas of guilty were entered on 28 May 2021, and a presentence report was ordered (exhibit 1 – affidavit of Katelyn Goyen) affirmed 27 August 2021, exhibit KJG-3 (appeal exhibit 2). [3] The child received a conditional release order in respect of the offences of unlawful use of a motor vehicle, attempted unlawful use of a motor vehicle, burglary, affray, going armed so as to cause fear, threatening violence and assault occasioning bodily harm. The facts of that offending have been helpfully summarised by the applicant at exhibit 1 [43]: Date Offence Summary Between 19 March 2021 and 22 March 2021 Unlawful use of a motor vehicle On 20 March [2021] unknown offenders have entered the victim’s property, have stolen the keys to a silver Hyundai Elantra and have stolen the vehicle. This vehicle was used in the below offences and the child was detected leaving this stolen vehicle. -- 2 of 10 -- 3 21 March 2021 Attempted unlawful use of a motor vehicle Burglary and commit indictable offence On 21 March 2021 at approximately 1 am, offenders have entered [address redacted] Indooroopilly by pushing open a flyscreen on a closed and locked door to unlock the front door from the inside. The child’s co-accused have entered the house and the child has remained outside. The co-accused have stolen a set of car keys to the victim’s BMW and have used the keys to enter the car but were disturbed by the victims. The applicant and co- accused have fled in a stolen silver Hyundai. Offenders have been identified through CCTV. The child and his co-accused were located at Bardon by police who observed them exiting the stolen silver Hyundai. Police have used the dog squad to track the applicant from the car. 12 May 2021 Affray Going armed so as to cause fear Threatening violence – discharge firearms or other act Aggravated assault occasioning bodily harm At about 5.20 pm, the victim was working as a security guard as a shopping centre in Deception Bay. The applicant and his co-accused have entered the centre and a co-accused has removed his shirt, squeezing water out of his shirt onto the floor. The victim has told the co-accused to put his shirt on and the co-accused has yelled: Indian cunt, motherfucker. The victim repeated that request, and the co-accused asked the applicant child: Give me the knife, I’m going to stab the cunt. The applicant has handed the co-accused a large flick knife. The co-accused raised the knife towards the victim and said: I’m going to stab you, you racist cunt. And advanced towards the victim, lunging forward and making a stabbing motion. The victim has retreated and picked up a chair, swinging it at the co-accused. The co-accused has hit the victim’s left middle finger with the knife causing a small cut. The victim disarmed the co-accused and was attempting to restrain him when the applicant and other co-accused have moved towards the victim, and the applicant has punched the victim in the head causing swelling. During the altercation, members of the public were screaming and attempting to assist the victim. The offenders were located outside the shopping precinct and arrested. There was CCTV of the incident. -- 3 of 10 -- 4 [4] The sentence imposed which is the subject of this review was a four month detention ordered to be served by way of a three month conditional release order, which included a condition that the child must not leave his residence between the hours of 7 pm and 6 am unless in the company of a parent or guardian or person authorised by the chief executive. There was also a sentence imposed on the same date for a further offence of stealing, for which a reprimand was ordered but is not the subject of this application, which was filed on 5 July 2021. The law – sentence reviews [5] A Childrens Court judge may review the sentence or order of a Childrens Court magistrate (Youth Justice Act 1992 (“YJA”)) s.118. A review is to be conducted as a rehearing on the merits (YJA s.122(1)). That review should be conducted expeditiously and with as little formality as possible. In deciding the review, this court can have regard to a record of the Childrens Court proceeding and any further submissions and evidence by way of affidavit or otherwise. The law – sentencing children [6] A court sentencing a child must take into account the sentencing principles contained within YJA s.150. [7] In R v SCU [2017] QCA 198, [53], Sofronoff P stated: The effect of the provisions of the Youth Justice Act that I have referred to is that the Act is emphatic about the requirement that a court give consideration to all statutory factors relevant to a particular case itself in the ordinary way, before deciding upon an appropriate sentence to be imposed upon a child. At the forefront of the strictures imposed by the Act is the obligation of a court to consider all other options that are reasonably available before imposing a sentence of detention. [8] Sofronoff P also stated at [55]: In the sentencing of a child it is vital that a sentencing judge not permit aggravating circumstances to overshadow considerations that are peculiar to the situation of children. One of these considerations is the short life history to which a judge can have regard in assessing likely reoffending and, by contrast, the large unknown future that awaits children. [9] Sofronoff P also observed at [85]-[86] in respect of YJA s.207: Section 208 prescribes a process of reasoning for this purpose. It states: “A court may make a detention order against a child only if the court, after— (a) considering all other available sentences; and -- 4 of 10 -- 5 (b) taking into account the desirability of not holding a child in detention; is satisfied that no other sentence is appropriate in the circumstances of the case.” A sentencing judge is obliged, therefore, to comply with s 208 and to explain that compliance in the sentencing remarks. [10] The grounds for review are that it is submitted that the sentence order imposed was excessive in the circumstances. In addition, after my associate, upon perusal of the file by me, forwarded my recent decision in HGT v Queensland Police Service [2021] QDC 186 and the further decisions cited in that decision of EH v QPS; GS v QPS [2020] QDC 205, both the applicant (and the respondent) identify and acknowledge that there was an error of procedural fairness in that the learned sentencing magistrate, in an exchange which occurs during the course of submissions on the sentence, has clearly pre-judged the outcome and indicated the order that he intended to make without hearing in any way from the applicant’s lawyer. Subsequently, although that lawyer did make relatively brief submissions, the sentence that the learned magistrate indicated was to be imposed was the sentence that was actually ordered in this matter. Antecedents of the child [11] The background of the child is helpfully summarised by the applicant at exhibit 1 (outline of submissions for the child) [15]-[18] in the following terms:- [15] The child was born on [date redacted] 2008. [16] He was between 12 and 11 months old and 13 years and one month old at the time of the offending. [17] The presentence report [exhibit KJG-6 – affidavit of Katelyn Goyen affirmed 27 August 2021, pp 1-8 (appeal exhibit 2)] outlined the following matters:- (a) The child is Aboriginal. (b) The child’s involvement with the Department of Child Safety commenced when it was approximately one year old. The concerns outlined were recurrent domestic violence, substance abuse, parental attachment disruption, parental ill mental health, inadequate supervision, neglect and physical abuse. (c) The child’s parents separated when he was three years old. (d) After his parent’s separation, the child remained in the care of his father. However, due to his father’s substance abuse issues, the child was primarily raised by his paternal grandmother. (e) In March 2021, the child relocated to Brisbane to reside with his mother and maternal grandmother. Whilst his mother and grandmother have attempted to create boundaries and -- 5 of 10 -- 6 implement consequences, due to the child’s adverse childhood experiences and lack of stable care providers, he is not accustomed to rules, boundaries and appropriate consequences. (f) At the time of the offences, the child’s whereabouts were unknown, and the child was spending time with peers who were involved in offending to avoid the rules and boundaries of the family home. (g) The child’s engagement in education has been negatively impacted by his high level of transience. His school records reflect a low level of achievement, and in 2015, a guidance officer assessed him as having possible learning difficulties. (h) School behavioural records suggest he displayed challenging behaviours within the schooling environment and in 2019, he was diagnosed with ADHD. He was prescribed medication to improve his symptoms but was not taking this at the time of the offences. (i) The child has been subjected to significant physical and emotional bullying by peers since a young age. He expressed he has difficulties saying no to his peers and has a tendency to follow their directions without consideration for the consequences. (j) The child’s poor engagement in education since relocating to Brisbane predisposed him to connect with like-minded peers, who have also disengaged from pro-social settings. (k) The child reported early experimentation with cannabis with his peers and he reported using cannabis to address the symptoms of ADHD. His early exposure to adverse childhood events and vulnerability due to his age is assessed to have made him more susceptible to associating with antisocial peers and utilising illicit substances. (l) The child’s paternal grandmother passed while he was in custody. His paternal grandmother played a prominent role in his upbringing, and he found it difficult to be separated from his family during this time. (m) The child is enrolled at [name redacted] High School and a flexible timetable has been developed to support his re- engagement. (n) The child is willing to participate in all sentencing options available to the court. [18] The pre-sentence report states the child had spent 37 days remanded in custody in relation to the offences. However, by the time of sentencing, the child had spent 50 days in custody. This is -- 6 of 10 -- 7 acknowledged by the sentencing magistrate, who declared the 50 days of pre-sentence custody. [12] In respect of the ground that the sentence order was excessive, the applicant in written submissions identifies the following: …it is submitted that the magistrate did not place sufficient weight on: (a) the significant period of 50 days in pre-sentence custody, at the time of sentence; (b) the child’s young age; (c) the availability of alternative sentencing options in lieu of a detention order; (d) the sentencing principles of the Act, particularly that a detention order should only be imposed as a last resort and for the shortest possible period. (Appeal exhibit 1 – outline of submissions for the child, [32]) [13] The respondent’s helpful submissions identify that the detention order, albeit to be served by way of a conditional release order, was excessive in all of the circumstances (appeal exhibit 3 [22]) and also acknowledges and submits that there was a failure to properly consider all other sentencing options available to the applicant child in the circumstances (appeal exhibit 3 [23]). In particular, the respondent submits that there was a failure, pursuant to the provisions of YJA s.150(2), to properly take the provisions of that section into account and in doing so, has effectively failed to comply with the obligation to impose a detention order as a last resort for the shortest appropriate period (appeal exhibit 3 [24]). [14] The applicant in oral submissions from his counsel, Ms Goyen, and the respondent, in very helpful and appropriate written submissions, both identify and rely on the exchange which took place between the learned magistrate and the applicant’s legal representative prior to the sentence being imposed. [15] It is useful to briefly quote that exchange, because it raises the obvious concern to which both the applicant and the respondent have turned their attention. [16] After hearing the prosecutor’s submissions, the learned sentencing magistrate, prior to hearing from the applicant’s lawyer, stated the following: …I’m intending to sentence him [the applicant] to four months detention; make one order for all offences other than that stealing, where I deal with it by way of a reprimand, given that that wasn’t the subject of the pre-sentence report. I intend to do that for the following reasons. This is very serious and concerning offending. It’s violent offending, so far as the incidents that occurred at Deception Bay on the 12th of May [sic]. The unlawful use of a motor vehicle, the burglary and the like occurred days after he was dealt with in the Rockhampton Magistrates Court [sic]. -- 7 of 10 -- 8 I don’t see any utility in ordering any further community-based orders, particularly given the nature and seriousness of these charges, the ongoing recidivism of your client. There’s a persistent pattern of offending. I’m of the view that, notwithstanding the somewhat limited entries in his history, it has reached the stage where a detention order is appropriate. I’ve taken into account the pre-sentence report. I intend [sic] to detain him, as I said, and make one order for four months, no convictions recorded. (Appeal exhibit 2 – affidavit of Kaitlin Goyen affirmed 27 August 2021, exhibit KJG-1, pp1-8 l40-1-9 l6) [17] There was then an exchange with the prosecutor about the amount of declarable time that was applicable to the applicant. The learned magistrate then said: I intend to order that the detention order be immediately suspended and that he be released on a condition release order for a period of three months and comply with conditional release conditions. I’ll take your submissions. [That last sentence addressed to defence counsel inviting submissions on a sentencing decision which, from both the language of the learned sentencing magistrate and the outcome, appeared to have been written in concrete]. (Appeal exhibit 2 – affidavit of Kaitlin Goyen affirmed 27 August 2021, exhibit KJG-1, p1-9 ll 20-23) [18] The respondent’s submissions on appeal (appeal exhibit 3 [29]) neatly identify the error that the learned magistrate fell into in these terms: [29] The respondent submits that the exchange between the learned magistrate and the applicant’s legal representative demonstrated that his Honour had prejudged the matter. In ruling out other sentencing options before hearing submissions from the applicant’s representative and Youth Justice, the learned magistrate erred by unduly fettering his sentence discretion. [EH v QPS; GS v QPS [2020] QDC 205, [17], cited in HGT v Queensland Police Service [2021] QDC 186, [28]]. [19] The respondent goes on in her subsequent written submissions (appeal exhibit 3 – outline of submissions on behalf of the respondent Crown [30]-[31]) as follows: [30] Like the magistrate at first instance in HGT v Queensland Police Service [2021] QDC 186, [30], the learned magistrate also demonstrated an implacably fixed view prior to hearing any submissions from the applicant’s legal representative. When the applicant’s legal representative made submissions on a period of probation, the learned magistrate interrupted him and quickly dismissed that submission. The respondent submits that the learned magistrate could not be swayed from an order of detention. -- 8 of 10 -- 9 [31] In line with the recent District Court decisions of HGT v Queensland Police Service and EH v QPS; GS v GPS, the respondent submits that this demonstrated a reasonable apprehension of pre-judgment which was a denial of procedural fairness and subsequently [sic] an error of law. [20] I have no difficulty in accepting what is effectively a joint submission from both the applicant and the respondent that, firstly, there was a denial of procedural fairness by prejudgment (I note in passing that an error is not necessary to sustain an application for sentence review, but error is clearly demonstrated in this particular matter). [21] And further, that in pre-judging the matter, as the learned magistrate did, and moving immediately to a detention order, albeit to be served by a three month conditional release order, the learned magistrate failed to consider all of the other alternatives (in particular, community based orders); failed to give any adequate recognition of the 50 days served is pre-sentence custody; and in particular failed to acknowledge the child’s very young age (the very end of his 12th year and the very start of his 13th year of life) and the child’s relatively limited criminal history at the time; and importantly, of course, that a sentence of detention should only be imposed as a last resort. [22] The magistrate was, of course, appropriately concerned about the seriousness of the offending, and the fact that it occurred such a short period after the child’s previous appearance in a court, but it appears that these factors have overwhelmed the learned magistrate’s consideration of the other matters which I’ve identified and which clearly were relevant in considering the appropriate outcome in this particular matter. [23] Both the applicant’s counsel, and the respondent’s counsel, in the circumstances, balancing the issues of the seriousness of the offending and the return to that offending so soon after appearing in court, against the period in pre-sentence custody, the child’s antecedents, particularly the young age and the very challenging circumstances of that young life, and of course the principle of detention as a last resort, submit for a sentence of probation (considering all other potential penalties in accordance with the provisions of YJA) at nine to 12 months, which of course, as the applicant submits, and the respondent’s counsel agrees, will provide support and supervision to the child for a considerable period upon his release. [24] In all of the circumstances, giving some significant weight to the period of custody that the child had served, which was the equivalent of a sentence in excess of three months, it seems to me appropriate (despite the seriousness of the offending) to mitigate the period of probation to a period of nine months. Orders [25] I make the following orders: (1) Application for sentence review granted. (2) Set aside the sentence of detention (to be served by a conditional release order) imposed by the learned sentencing magistrate at the Redcliffe Children’s Court on 30 June 2021. -- 9 of 10 -- 10 (3) Substitute an order that the applicant be sentenced to a single sentence of nine months probation in respect of all the offences the subject of the application for sentence review. Order that no convictions be recorded in respect of those offences. -- 10 of 10 --