DSN v Office of the Director of Public Prosecutions [2020] QChC 28

CHILDRENS COURT OF QUEENSLAND CITATION: DSN v Office of the Director of Public Prosecutions [2020] QChC 28 PARTIES: DSN (Applicant) v OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS (Respondent) FILE NO: 220/2020 DIVISION: Childrens Court PROCEEDING: Sentence Review 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 child should be formally reprimanded in relation to the offences. 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 12 years old at the time of offending and 13 years old at the time of sentence – where the child was sentenced for multiple offences – where the child was sentenced to an 88 day detention order, a reprimand, a restorative justice order and a graffiti removal order – where the child was subject to a 12 month probation order at the time of sentence – where at the time of sentence the child had spent 88 days in pre-sentence custody – where one of the principles of the Youth Justice Act stipulates that a sentence of detention should only be given to a child as a last -- 1 of 5 -- 2 resort - whether the learned Magistrate gave adequate reasons to impose a sentence of detention – whether the learned Magistrate should have exercised their discretion in favour of a community based order - whether the sentence imposed by the learned Magistrate was manifestly excessive Cases R v SCU [2017] QCA 198 COUNSEL: J O’Donnell for the Applicant C Nicola for the Respondent SOLICITORS: Legal Aid Queensland for the Applicant Office of the Director of Public Prosecutions for the Respondent [1] On 19 June 2019, the applicant was sentenced for offences that were committed between 16 May and 18 October 2019. He was sentenced to an 88 day detention order, a reprimand, a restorative justice order and a graffiti removal order. Convictions were not recorded. At the time of the sentence he was subject to a 12 month probation order. [2] The application is out of time. The child did not know that he was able to review his sentence or that his review had merit. The application for extension of time is not opposed by the Crown and given that the child was 12 years old at the time of offences and 13 years old at the time of sentence, it is appropriate that the extension of time be granted. Circumstances of the offence [3] On 16 May 2019, the child attended a Tourist House shop in Cairns and took a lighter from the display at the front counter (stealing). On 5 June 2019, he took an iPhone from a table at a restaurant (stealing). On 9 June 2019, he entered the side door of a restaurant in Cairns and took four bottles of spirits with others, on that same day he tagged the side of a ramp of a car park in the shopping centre in Cairns “KAS” (enter premises and commit indictable offence by break and wilful damage by graffiti). On 11 June 2019, he etched “KAS” with a lighter on a bus stop (wilful damage). -- 2 of 5 -- 2 On 16 June 2019, he wrote “KAS” on the concrete floor area of the football club (wilful damage by graffiti). On 20 June 2019, he wrote “KAS” on the ramp of a car park (wilful damage by graffiti), on that same day he and others stole portable phone chargers and lollies from Big W (unlawful possession of suspected stolen property). On 26 June 2019, he took some soft drinks from a fridge behind the counter of a restaurant (enter premises and commit indictable offence). On 29 June 2019, he and seven co-offenders went into a business and stole four pendants (stealing). On 15 July 2019, he tagged “KAS” at an address in Earlville (wilful damage by graffiti). On 20 July 2019, a Westpac debit card was stolen from a car, that card was used to make five transactions totalling $61.70 at Nightowl in Earlville, then to make three further transactions: $37.50 at Coles Express Woree, nine taxi fares totalling $221.60 and McDonalds at a total of $38.20 (fraud x 4). On 29 July 2019, he tagged “KAS” on a wall at a car park (wilful damage by graffiti), on that same day he was charged with trespass for being on that property. On 9 August 2019, he was in Kmart when he lit a cigarette, threw it on the ground and urinated on the cigarette and urinated on clothing (wilful damage). On 14 August 2019, he was inside a Honda Accord vehicle that had been stolen (unlawful use of a motor vehicle). On 17 August 2019, he was in an alleyway between two businesses and making noise in the yard (trespass). When police arrived he ran away (obstruct police). On 18 October 2019, he was a passenger in a vehicle that was stolen (unlawful use of a motor vehicle) and he stole fuel to fill that vehicle (stealing). [4] At the time of the sentence he’d spent 88 days in pre-sentence custody. -- 3 of 5 -- 3 [5] A pre-sentence report was prepared in relation to the applicant, it noted that he was second eldest of a sibling group of six, that there had been a history of instability within the home due to the volatile relationship between the parents. He had spent time living between two households with competing parenting styles, namely strict versus relaxed. Both parents have tried to control his behaviour at home, but find it difficult to keep him at home. [6] The parents were concerned about his group of friends. There had been multiple attempts to engage him in education in 2019, but there was limited success in that and he was disengaged from education pro-social activities. He was assessed as having a fair understanding of the negative impacts his actions had on individuals, although he struggles to understand where the victim is not an individual. The report indicated he lacked maturity and he had spent time in the Cairns watch house and he found that very difficult. Whilst on remand, he had participated in educational and recreational activities and it had motivated him to re-engage with Cairns State High School. [7] At the sentence it was submitted that he should be released from custody today, because he had served 88 days in detention. [8] The Magistrate in imposing the sentence that she did noted that he was still very young; 13 years of age and that he came from a good family. She noted that detention was really a big step to take and that should only happen if it was really the only option. She said she accepted the submission that detention was warranted in this case to act as a strong reminder of how serious his position had become. [9] She then imposed reprimands in relation to the trespassing offences, graffiti removal orders in relation to the graffiti offences, a restorative justice order in relation to an unlawful use of motor vehicle on 18 October and then 88 days detention in relation to the other offences. [10] The offences for which detention was imposed were largely minor stealing offences and some opportunistic entering offences to steal. The child had a one page criminal history. All the offences were committed in 2019, except for one on 28 December 2018. When regard is had to the provisions of the Youth Justice Act, in particular the principle of detention as a sentence of last resort, it is difficult to see what factors -- 4 of 5 -- 4 justified the making of a detention order in this case particularly given the very young age of the child. Detailed reasons were not given to justify this decision. [11] The Magistrate was not assisted by the applicant’s solicitor who conceded a period of detention was warranted for this young man. It is clear that the Magistrate did not properly consider the provisions of the Youth Justice Act mandating that all options be considered before imposing a sentence of detention and even then, that a conditional release order should be considered.1 The fact that the child had already spent 88 days in detention meant that the Magistrate’s sentencing discretion should have been exercised in favour of a community based order. It is not a proper application of the sentencing principles outlined in the Youth Justice Act to impose the amount of time that a child has spent in custody as the sentence simply because that time has already been served. [12] The Crown concedes that the sentence imposed was excessive in the circumstances and that the Magistrate did not place sufficient weight on the principle that detention is the sentence of last resort. The nature and seriousness of the offences and the child’s criminal history, together with his age do not support a sentence of actual detention. [13] I agree that the sentence is excessive and should be set aside and instead, given the length of time that has now passed in relation to the sentence and the amount of time the child spent in pre-sentence custody, that the child should be formally reprimanded in relation to these offences. 1 R v SCU [2017] QCA 198 at 55-57. -- 5 of 5 --