DSN v Office of the Director of Public Prosecutions (No.2) [2020] QChC 29

CHILDRENS COURT OF QUEENSLAND CITATION: DSN v Office of the Director of Public Prosecutions (No.2) [2020] QChC 29 PARTIES: DSN (Applicant) v OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS (Respondent) FILE NO: 221/2020 DIVISION: Childrens Court of Queensland PROCEEDING: Appellate ORIGINATING COURT: Cairns Childrens Court DELIVERED ON: 3 September 2020 DELIVERED AT: Brisbane HEARING DATE: 31 July 2020 JUDGE: Richards P ORDER: 1. The application for sentence review to be heard out of time be allowed. 2. The sentence is set aside. 3. The sentence of detention is set aside and an order for 12 months’ probation on the standard conditions is substituted. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the applicant seeks an extension of time for sentence review - where the sentence review application was made out of time – where the child had not been advised of his option to apply for a sentence review or that his review had merit – where the Crown does not oppose the application CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the child was 13 years old at the time of offending and sentence – where the child was sentenced in relation to a number of property offences and two charges of common assault – where the child was sentenced to 70 days detention and a 12 month probation order – where no convictions were recorded - where at the time of sentence the child was subject to a 12 month probation order and two 10 hour graffiti removal orders – where the child had spent 70 days in detention – where the child has no history of violent -- 1 of 6 -- 2 offending – where a pre-sentence report was ordered – whether the report detailed that the child was developing empathy - where the learned Magistrate indicated there was no other sentence option other than detention – where the learned Magistrate should have taken the time spent in custody by the child into account rather than impose a detention order Cases R v RBB [2019] QCA 277 R v SCU [2017] QCA 198 COUNSEL: Mr J O’Donnell for the Applicant Ms C Nicola for the Respondent SOLICITORS: Legal Aid Queensland for the Applicant Office of the Director of Public Prosecutions for the Respondent [1] This is an application for an extension of time for a sentence review to be heard out of time. The application for the extension of time is not opposed. The child was unaware that he was able to review his sentence and given the fact that he was 13 years of age at the time and the Crown does not oppose the extension of time, it is appropriate to grant that extension of time. [2] The child was convicted and sentenced on 24 April 2020 in relation to a number of property offences and two charges of common assault. At the time of sentence he was subject to a 12 month probation order and two 10 hour graffiti removal orders. He had spent 70 days in detention. Circumstances of offences [3] On 27 November 2019, 30 November 2019, 7 December 2019, 10 December 2019 and 14 December 2019, the applicant was a passenger in stolen vehicles. [4] On the last occasion the co-offender who was driving the vehicle lost control of the vehicle at a roundabout and hit the gutter and a light pole and they decamped on foot. [5] On 20 January 2020, a person leaving a restaurant in Cairns returned to their vehicle and saw a juvenile loitering amongst parked vehicles. The victim challenged the child asking what he was doing and took a photo of him. The child called out for assistance and this applicant and another entered the car park and stood with him. The victim -- 2 of 6 -- 2 took further photographs so this child spat in his face. He also threw rocks at the victim’s vehicle. As a result of that the victim chased the children and they armed themselves with tree branches and surrounded him, striking him several times causing lacerations and contusions. Members of the public came to the victim’s aid and they ran away (common assault, wilful damage, assault occasioning bodily harm whilst armed in company). [6] On 23 January 2020, a house was broken into and property including car keys, wallet and ID cards were stolen as well as a car. The car was then seen at a service station where petrol was pumped into it without paying. This applicant was the driver of the vehicle (burglary and commit an indictable offence, unlawful use of a motor vehicle, stealing). [7] On 25 January 2020, the child was a passenger in a stolen vehicle (unlawful use of a motor vehicle). [8] On 28 January 2020, a group of six children were walking along the street towards the victim’s property, one tried to open the door and was unsuccessful (attempted burglary and commit indictable offence). [9] On 16 February 2020, a number of children approached a closed garage door to a house, opened the roller door and located a vehicle, they entered the vehicle and conducted a search. Four offenders were disturbed committing a similar offence a short distance away and they were found and arrested by police, this child was one of those offenders (enter premises with intent to commit an indictable offence x 2). [10] On 19 February 2020, a vehicle was stolen and this child was a passenger in that vehicle. [11] On 20 February 2020, this child and co-offenders entered a house in Gordonvale and a backpack was stolen. A Mitsubishi Triton was also stolen from a residence at Edge Hill and police saw this child running from that vehicle in the early hours of the morning (burglary and commit indictable offence, unlawful use of motor vehicle). [12] On 21 February 2020, he was seen at Stockland in Cairns, having been banned (trespass), on that day he also had entered the residence in Edge Hill and stole car keys (burglary and commit indictable offence). -- 3 of 6 -- 3 [13] On 22 February 2020, offenders gained entry to an address at Parramatta Park, took vehicle keys, cigarettes and $20 cash and also stole the car from the address (burglary and commit indictable offence and unlawful use of a motor vehicle). [14] On 23 February 2020, they also gained entry to an address at Redlynch and stole car keys and a wallet and a Landcruiser which they then drove away (burglary and commit indictable offence, unlawful use of a motor vehicle). [15] The child was 13 years of age at the time of the offences and 13 at the time of sentence. He has a relevant criminal history for similar offending. He has no history for violent offending. A pre-sentence report was prepared for this young man. [16] The report indicated that there has been a significant shift in his attitude since the offending. He had previously been limited in his ability to understand the perspective of his victims, however his parents and other siblings have been threatened at the family home after his home address was published on social media and he further stated that he’d also been informed there were children crying inside one of the houses that he’d burgled. He indicated that learning of the emotional harm he has caused has made him think more broadly about the impact of his offending and his parents commented on their experience and confirmed that his attitude had changed after those events. He is therefore developing empathy for the victims of his offending. It was assessed that this was a significant consequence experienced by him for his offending. [17] The offending in December largely consisted of him being a passenger in vehicles. The more serious offending in January involved him being part of a group involved in stealing motor vehicles and breaking into houses. He had on those occasions sometimes been driving the car. The inherent danger of a 13 year child driving a stolen vehicle cannot be understated. [18] At the time of sentence he had spent 70 days in pre-sentence custody. He was a youthful offender. He had spent a significant amount of time in custody and he had suffered some extra curial punishment as a result of members of the public going to his family’s house. The defence submitted that, taking into account the 70 days detention, a lengthy period of probation would be appropriate. -- 4 of 6 -- 4 [19] In sentencing the child, the Magistrate indicated that she took into account his plea of guilty and the time in custody. The Magistrate said that:1 “I have considered all other available sentences for the remaining 24 matters. I have taken into account the desirability of not holding children in detention and the special considerations that a non- custodial order is better than detention in promoting your ability to re- integrate to the community and that a detention order should only be imposed as a last resort and for the shortest period appropriate. I am satisfied there is no other sentence other than detention that is appropriate. I order that you be detained for a period of 70 days, but I declare the whole of the 70 days that you have been held in pre- sentence detention is time served on this sentence.” [20] Her Honour then went on to make a 12 month probation order in relation to other offences. [21] It is conceded by the Crown that there was an error of the law in imposing a detention order on this child given that he had spent 70 days in custody awaiting sentence. In R v RBB [2019] QCA 277, the court considered the imposition of a term of detention on a young man in circumstances where he pleaded guilty to attempted robbery in company, grievous bodily harm and robbery in company with personal violence, Mullins AJA as she then was, noted at para [22]: “[22] Apart from the guidance found at paragraph [81] of SCU, Sofronoff P (with whom Morrison and McMurdo JJA agreed) in SCU dealt with the structure of the Act, its purposes and how that is reflected in a requirement for a sentencing judge to be satisfied positively that none of the sentencing options that do not involve detention would be likely to serve their intended purpose of prevention of reoffending before imposing the final alternative of detention: SCU at [53]-[57]. Sofronoff P explained at [84]: ‘The injunction in the Act that detention is to be regarded as a sentence of last resort, is to be imposed only when the court is positively satisfied that there is no other possible alternative, is, therefore, not merely a platitude or a bromide. It is an emphatic parliamentary order enacted with express deliberation.’ Sofronoff P noted at [85] that s 208 of the Act prescribes a process of reasoning for the purpose of a sentencing judge making a detention order after considering all other available sentences, taking into account the desirability of not holding a child in detention, and being satisfied that no sentence other than 1 Decision T3, l 15. -- 5 of 6 -- 5 detention is appropriate in the circumstances of the case. Sofronoff P then concluded at [86]: ‘A sentencing judge is obliged, therefore, to comply with s 208 and to explain that compliance in the sentencing remarks.’” [22] Mullins AJA then went on to note that even though their remarks were lengthy and detailed the sentencing Judge overlooked the obligation described in R v SCU2 which had its genesis in s 208 and s 219 of the Act. [23] A similar situation arises in this case. The Magistrate indicated that there was no other option other than a detention order in this case, without giving any consideration to a conditional release order. The reason for that was because the child had already spent the time in detention that the Magistrate decided was appropriate. It is difficult to see what the utility or practical purpose of imposing that time in detention in the sentence was when it would have been open for the magistrate to take that time into account when imposing a sentence. [24] If the Magistrate indeed felt that a sentence of detention was the only appropriate sentence, then the obligation was to consider whether a conditional release order was appropriate. [25] The Magistrate was clearly in error. The appropriate way to take into account the time already served in detention is to note it in the sentence and then sentence accordingly. Given the time he spent in detention, his young age and his developing empathy, a term of probation was the appropriate sentence in this case. [26] The sentence is set aside. The sentence of detention is set aside and an order for 12 months’ probation on the standard conditions is substituted. 2 [2017] QCA 198. -- 6 of 6 --