EKJ v Office of the Director of Public Prosecutions [2020] QChC 21

CHILDRENS COURT OF QUEENSLAND CITATION: EKJ v Office of the Director of Public Prosecutions [2020] QChC 21 PARTIES: EKJ (applicant) v OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS (respondent) FILE NO/S: 185/2020 DIVISION: Childrens Court PROCEEDING: Sentence Review ORIGINATING COURT: Townsville Childrens Court DELIVERED ON: 13 August 2020 DELIVERED AT: Brisbane HEARING DATE: 29 July 2020 JUDGE: Richards P ORDER: 1. Application is allowed. 2. The sentence of detention is set aside. 3. The applicant child is sentenced to a nine month probation order on the usual conditions. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the child was sentenced to multiple offences – where the child was 14 years old at the time of committing the offences – where the learned Magistrate sentenced the child to a nine month probation order and three months detention to be served by way of a conditional release order – where detention was imposed in relation to a charge of dangerous operation of a motor vehicle - where a presentence report was ordered in relation to this matter – where the child had a history of family instability - where the child was in the care of the Department of Child Safety at the time of sentence – where the child had no previous convictions for motor vehicle offences – where the learned Magistrate noted the need for general deterrence in Townsville regarding motor vehicle offences – where the learned Magistrate was not provided with any statistics about the prevalence of that type of offending in Townsville or other districts – whether detention was the appropriate sentence when other options had not been fully explored -- 1 of 8 -- 2 Legislation s 150 Youth Justice Act 1992 (Qld) Cases R v Patrick (a pseudonym) Ex-parte Attorney-General Queensland [2020] QCA 51 R v SCU [2017] QCA 198 SOLICITORS: Ms C Hollett for the applicant instructed by Legal Aid Queensland Mr T O’Brien for the respondent instructed by the Office of the Director of Public prosecutions. Introduction [1] The child pleaded guilty in the Townsville Childrens Court to multiple charges including a charge of dangerous operation of a motor vehicle on 8 March 2020. In relation to that charge he was sentenced to three months’ detention to be served by way of a conditional release order. In relation to the remaining charges he was placed on a nine month probation order. No convictions were recorded in relation to any of the offences. The applicant is seeking to have that detention order set aside and a probation order substituted. The Crown opposes the application. The offending On 2 November 2019, the child was having an argument with his aunt when she grabbed scissors to scare him, he told her he would murder her and get a knife to stab her. He then walked into the house toward the kitchen. The aunt followed and grabbed his shirt, the shirt ripped and the child continued to the kitchen. The aunt told him to leave or she would call triple zero. He then threw mangoes towards the aunt and told her he felt like killing her. When the aunt was on the phone to triple zero, he punched her on the chest and back causing her to fall to the ground and continued to punch her while she was on the ground. On 18 February 2020, the child threw an object at a television during an argument with his grandmother, causing wilful damage. -- 2 of 8 -- 2 On 22 February, he walked into the garage area of a unit and attempted to open the drivers’ side door of the vehicle (entering dwelling without consent of owner in lawful occupation). He then walked through the hedges at the back of a unit and put a hole in an external security screen. He put his hand through the hole and tried to open the main door lock (attempted enter dwelling with intent). He then attempted to enter a unit by burning a hole in the screen and trying to force a door open (attempted enter dwelling with intent). On 7 March 2020, he was with another person when he walked through the side gate of a unit they tried to gain entry through a front screen door before turning and walking away (enter dwelling without consent of owner in lawful occupation). He and 2 others later entered a daycare business by smashing a side window. They pulled CCTV from the wall, searched the office and removed a key to a minivan. They attempted to open the front door from inside but were unsuccessful. They exited through the broken window (enter premises and commit indictable offence). They then used those keys to steal a minivan. The child was driving the vehicle (unlawful use of a motor vehicle). He did not have a license (drive without a license). Whilst driving the minivan police activated lights and sirens to intercept the vehicle. It accelerated away, police reached a top speed of 94 kilometres per hour before they terminated the chase. The van changed lanes and crossed onto the wrong side of the road into oncoming traffic and continued accelerating before turning right into another street (evasion offence). The child drove the minivan to Coles Express and stole $39.00 worth of diesel (stealing). At 8.27 am, the child drove along the Bruce Highway at 100 kilometres per hour in a manner that caused other motorists to take evasive action and call triple zero (dangerous operation of a motor vehicle) On 26 March, the child was found to have scissors with cannabis residue in his bag (possession of property suspected of having been used in connection with the commission of a drug offence). At about 11.20 pm he had gardening gloves in his pockets and a pair of multi grips in the waistband of his shorts (possession by night instrument of a housebreaking). [2] He was 14 years of age at the time of the offences. At the time of sentence his mother was in custody in Townsville Women’s Correction Centre. He has never met his father. -- 3 of 8 -- 3 [3] The child had a criminal history involving mostly property offences. He had been placed on probation in October of 2019 for eight months for property offences and was on probation at the time of sentence. [4] A presentence report was ordered in relation to this matter. The child was placed with relatives as an infant and the mother was in and out of his life sporadically. She spent various periods in custody during his childhood. He was raised by his grandfather and aunt until his aunt passed away at age seven when he began residing then with his grandmother. He had witnessed the heart attack suffered by his aunt and his mother believed that this was a very traumatic experience for him. His mother indicated that whilst in the care of his grandfather and aunty, that they used excessive discipline methods. [5] There was an extensive child protection history relating to this child. There had been notifications regarding allegations of neglect, exposure to domestic violence, emotional harm and physical abuse. [6] In late 2019, the child returned to RIW after residing in KJQ for two years. He then had a period of instability moving between the care of relatives in PHF and on RIW between October 2019, until February 2020. He moved to Townsville because there was no one left on RIW willing to care for him. Police records detail an incident on Christmas day where he spent approximately eight hours with the RIW Police as no family were willing to have him in their care. He had presented at RIW Police station with physical injuries and reported he had been assaulted by his uncles. At the time of sentence he was in the care of the Department of Child Safety residing in a residential facility. He exhibited a lack of attachment and connection to family. [7] He was a frequent user of cannabis, and commits offences to obtain money to obtain cannabis and food. At the time of obtaining the report, the child was unable to demonstrate any empathy or remorse for his behaviour when discussing the offences against relatives. He has not had contact with these family members since the incidents and does not care about the loss of those relationships. He was, however, able to identify and demonstrate some understanding of the impact his offending may have had on the victims that were unknown to him, although he did attempt to justify his behaviour. -- 4 of 8 -- 4 [8] At the time of the sentence, the prosecutor submitted that he had shown a disregard for orders of the Court. The Magistrate was concerned that the child was a young man, unlicensed, driving on a highway at 100 kilometres per hour and swerving over the road, forcing other motorists to take evasive action and forcing them off the road. Ultimately, the minivan that he was driving was seen on fire, and that, of course, was a danger to the public. [9] The Magistrate observed that he was in conflict with his family and that he had difficulties controlling his emotions when events escalated within the family unit. His attitude towards the victims shows a lack of maturity that one might expect in a 14 year old boy. At the time of sentence he had expressed a hope to return to school and football. He had spent four days in the watch house and a total of 22 days in custody. [10] In relation to the theft and driving of the minivan the magistrate concluded that they were very serious offences. He indicated that he would have otherwise imposed a more significant penalty except for the child pleading guilty at an early stage and his age. He noted that the time in custody must have been a pretty confronting experience given his age and the fact that up until six months ago he had not been in any trouble at all. He was feeling safer and more settled in the Department of Child Safety’s accommodation. [11] In deciding to place the child on a detention order His Honour noted1: “When it otherwise comes to sentencing you, I acknowledge what is said in s 150 of the Youth Justice Act. I act to impose a sentence on you today that is going to punish you for what you have done and one that might try and stop you and other young people from engaging in this type of conduct. I accept there might be a limited need for personal deterrence. There is, though, a need for general deterrence, particularly in relation to motor vehicle offending, given the prevalence of that type of offending here in Townsville, which I can attest to you based on the number of young people I sentence for offending of that nature. And I think I need to send a strong message to other members of the community, particularly young people like you, that it is not acceptable to be involved in offending like this – and I am talking specifically about offending involving stolen motor vehicles and then dangerously operating them on a highway at speed causing other vehicles to take evasive action.” 1 Decision T1-6. -- 5 of 8 -- 5 [12] The child had no previous convictions for motor vehicle offences, either driving or stealing so there was no element of habituality in this offence. The court was not provided with any statistics about the prevalence of that type of offending in Townsville or other districts; particularly offending involving stolen motor vehicles and then dangerously operating them on a highway at speed causing other vehicles to take evasive action. Whilst the magistrate no doubt was experienced in dealing with juveniles in the area, there is a danger in taking judicial notice of the prevalence in offending based on personal experience. [13] The speed at which the child was driving was within the speed limit, it was the factor of a 14 year old unlicensed driver swerving all over the road that made the driving dangerous. The child at the time was going through a period of significant instability and that has settled to a degree now that the Department has taken over his care. The magistrate signalled his intention to impose detention but the question remains whether the offending was so serious given his age, circumstances and history, that a sentence of last resort was appropriate. In R v SCU2 it was noted: “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, as well as the facts of the 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 the court to consider all other options that are reasonably available before imposing a sentence of detention. Even at that point, a court must consider whether a conditional release order can probably be put to one side in favour of actual immediate detention of a child. These are simply the requirements of common sense in the application of life experience when considering the problems posed by children who commit offences. Whatever might be the grave consequences of imprisonment for an adult who commits an offence such as arson, the consequences of incarceration for a child are likely to be more far-reaching because it is experienced at the start of a life, more severe because the effect of separation from home, from parents and loved ones are more likely to have potential for harm rather than good, by reason of bad associations made within a detention centre and the harsh experiences encountered there.” [14] This particular child had received one probation order and one community service order at the time of sentence. He had a very difficult home life and was finally settled 2 R v SCU [2017] QCA 198 at p53-54. -- 6 of 8 -- 6 in more supportive circumstances with Child Safety. He indicated he felt safer there. The driving, whilst dangerous and serious, was ameliorated by the fact that he had had spent 22 days in custody with 4 of those days in a watch house. He was still very young and a period of probation would provide further support for him. [15] In my view, His Honour proceeded on an erroneous basis by assuming that detention was the only appropriate sentence when other options had not been fully explored at this stage. The driving itself was not so serious that detention was inevitable. His circumstances did not dictate that this was the only appropriate sentence. [16] The Crown submits that the case of the R v Patrick (a pseudonym) Ex-parte Attorney- General Queensland [2020] QCA 51 is authority for the proposition that the court must have equal regard to all the factors in s 150 of the Youth Justice Act including aggravating factors. I accept that all the factors in S150 of the Act including factors that aggravate the sentence must be considered in sentencing a juvenile however it cannot overwhelm the overall scheme of the Act which is to treat a child with a view to their future and to apply the principle that a sentence of detention is the sentence of last resort. [17] The President in Patrick’s case observed that the aggravating factors really reflect the relevance in the sentencing process of the interests of the community and the interests of those who have been directly affected by the offence. The seriousness of that case is instructive of the importance of balance in the sentencing process particularly when dealing with a 14 year old. [18] Patrick was 16 years old and caused extensive and permanent injury to a serving member of the police force. Those injuries were caused as a result of his intention to escape arrest. The maximum sentence for his offending was 10 years detention. The maximum sentence in this case was two and a half years. The court noted the aggravating factors in that case were that grievous bodily harm was done to a police officer in order to evade arrest and secondly that the actual grievous bodily harm inflicted was permanent and so severe. In this case, although by good luck rather than good management, there were no injuries suffered to anyone and no intent to cause injury to anyone. Those are significant points of difference. -- 7 of 8 -- 7 [19] At the end of the day I find myself in agreement with the applicant that a sentence of detention should not have been imposed in this case. The application is allowed, the sentence of detention is set aside. The applicant is sentenced to a nine month probation order on the usual conditions. -- 8 of 8 --