BYS v Director of Public Prosecutions [2021] QChC 24

CHILDRENS COURT OF QUEENSLAND CITATION: BYS v Director of Public Prosecutions [2021] QChC 24 PARTIES: BYS (Applicant) v DIRECTOR OF PUBLIC PROSECUTIONS (Respondent) FILE NO/S: 130 of 2021 DIVISION: Childrens Court of Queensland PROCEEDING: Sentence Review Application ORIGINATING COURT: Atherton Childrens Magistrates Court DELIVERED ON: 25 May 2021 (delivered ex tempore) DELIVERED AT: Brisbane HEARING DATE: 25 May 2021 JUDGE: Dearden DCJ ORDER: 1. The out of time application be allowed. 2. The application for a sentence review be granted. 3. The sentence of a 12 month probation order (in respect of all offences except fail to comply with a COVID-19 public health direction) be discharged and the reprimand (in respect of the fail to comply with a COVID-19 public health direction) also be discharged. 4. The applicant should be subject to a court diversion referral pursuant to YJA s 164 in respect of all of the offences before the court. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the child was sentenced to a 12 month probation order for various offences including stealing, trespass, failure to appear, enter premises and commit indictable offence and burglary and commit indictable offence; and reprimanded for a single charge of failure to comply with a public health direction – where the child was 13 years at the time of the offences and 14 at the time of sentence – where the child had a minor criminal history – where the applicant applies a week out of time – where the respondent concedes that the leave to consider the application out of time should be granted – where the applicant submits, and the respondent -- 1 of 4 -- 2 concedes, that the learned magistrate failed to give consideration to restorative justice as required by the Act, and that the 12 month probation order was excessive in the circumstances – whether the sentence imposed was excessive in the circumstances Youth Justice Act 1992 (Qld) ss 118, 119(2)(b), 122, 150, 162, 164 COUNSEL: J O'Donnell for the applicant MK Parfitt 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 a sentence review by the child BYS. The application for sentence review and an application for extension of time were filed on 6 April 2021 in respect of a plea of guilty and sentence which occurred on 2 March 2021. The application is therefore out of time given Youth Justice Act 1992 (Qld) (‘YJA’) s 119(2)(b) which provides that the application must be made within 28 days or within such further time as is allowed by a Childrens Court judge. [2] The application is a week out of time and I am satisfied that the explanation provided and summarised in the material (exhibit 1, paragraph 2.5-2.7) adequately explains the delay and given also that the respondent does not oppose an extension of time in the interests of justice, it’s appropriate to grant the application for an extension of time to hear the application for sentence review. [3] The applicant pleaded guilty to the following eight charges: (1) Stealing (12 April 2020). (2) Trespass (29 April 2020). (3) Trespass (29 April 2020). (4) Failure to appear in court (16 February 2021). (5) Failing to comply with public health direction (12 April 2020). (6) Burglary and commit indictable offence (28 April 2020). (7) Enter premises and commit indictable offence (28 April 2020). (8) Trespass (12 April 2020) (exhibit 1, para 3.1; exhibit 2). [4] The circumstances of the offending are addressed in some detail in the applicant’s outline (exhibit 1, para 6) and it is sufficient to say that the bulk of the substantive offending occurred over a short period of time while the child was residing in -- 2 of 4 -- 3 Blackwater. The offences of trespass were relevantly minor, the stealing was a number of beer bottles from inside a fridge, the failing to comply with the public health direction involved the child being found at an address at a pre-arranged party, presumably in breach of the relevant COVID directions at the time, another trespass involved the child going to an unoccupied house, and the most serious of the offences, the burglary involved the taking of a bike from underneath a residence which belonged to a former friend of the applicant, and the enter premises involved entering a motor vehicle and stealing coins to the value of $2. [5] The child made admissions and was cooperative. The child was on a good behaviour order at the time of the offending (except for a failure to appear which occurred on 16 February 2021 and that seems to have arisen out of confusion). [6] The learned magistrate sentenced the child to a reprimand for the failure to comply with public health direction (the magistrate was incorrectly told that the penalty was only a fine) and a 12 month probation order for all other offences. The law – sentence reviews [7] Sentence reviews proceed pursuant to YJA s 118; are a rehearing on the merits (YJA s 122(1)); should be conducted expeditiously and with as little formality as possible (YJA s 122(3)); and this court can have regard to the record of the Childrens Court as well as further submissions and evidence by way of affidavit or otherwise. [8] The court is required to take into account the sentencing principles under YJA s 150. Discussion [9] The submission is that the learned sentencing magistrate failed to give consideration to restorative justice as required by the Youth Justice Act, and that the 12 month probation order was excessive in the circumstances, with insufficient weight placed on the child’s limited criminal history, the child’s young age at the time (the child was 13 years at the time of the offending and 14 years at sentence), the fitting proportion between the sentence and the offending (the offences were, in each case, relatively low level examples of offending) and the period of almost a year without offending between the offences and the sentence date. [10] It is submitted that the need for ongoing supervision is minimal and the applicant was highly cooperative with police and expressed a willingness to participate in a restorative justice process. [11] The applicant has clarified that the matter could proceed under a court diversion referral pursuant to YJA s 164 in respect of all of the offences. [12] The respondent concedes that leave should be granted to consider the application out of time; concedes that the magistrate failed to consider a restorative justice process as required by YJA s 162; concedes the sentence was excessive; but submits in contrast that the court should resentence the applicant to six months probation or in the alternative (but this is a secondary submission), a restorative justice order. -- 3 of 4 -- 4 Conclusion [13] In my view, the learned sentencing magistrate has clearly failed to give appropriate weight to the child’s age; the relatively minor criminal history at the time (albeit that the child was on a good behaviour order at the time of the offending); the lack of reoffending in almost a year between the dates of the offences and sentencing (therefore failing to give weight to the need for ongoing supervision); and failing to appropriately recognise the applicant’s cooperation and the change of circumstances by the child’s change of address and in particular had moved a substantial distance from the location of the original offences. Orders [14] In all of the circumstances, it’s clear that the application to proceed out of time should be allowed, and that the application for sentence review should be granted. I make the following orders: (1) The out of time application be allowed. (2) The application for a sentence review be granted. (3) The sentence of a 12 month probation order (in respect of all offences except fail to comply with a COVID-19 public health direction) be discharged and the reprimand (in respect of the fail to comply with a COVID-19 public health direction) also be discharged. (4) The applicant should be subject to a court diversion referral pursuant to YJA s 164 in respect of all of the offences before the court. -- 4 of 4 --