ARR v Commissioner of Police [2020] QChC 8

CHILDRENS COURT OF QUEENSLAND CITATION: ARR v The Commissioner of Police [2020] QChC 8 PARTIES: ARR (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: 19/3993 DIVISION: Childrens Court PROCEEDING: Appeal ORIGINATING COURT: Childrens Court at Roma DELIVERED ON: 7 February 2020 DELIVERED AT: Brisbane HEARING DATE: 28 January 2020 JUDGE: Dearden DCJ ORDER: (1) Appeal against conviction (charge 2) refused. (2) Appeal against sentence (charges 1, 2, 3 & 4) granted. (3) Set aside sentences in respect of each of charges 1, 2, 3 & 4 imposed at the Roma Childrens Court on 15 October 2019. (4) Substitute the following sentences: 1. enter dwelling and commit indictable offence – 5.08.2019 – six months detention to be served by way of a three month conditional release order; 2. enter dwelling with intent by break at night in company – 5.08.2019 – 12 months probation; 3. trespass – entering or remaining in yard or place for business – 5.08.2019 – reprimanded; and 4. contravene direction or requirement – 1.08.2019 – reprimanded. CATCHWORDS: CRIMINAL LAW – PLEAS – PLEA OF GUILTY – PLEA OF GUILTY ENTERED ERRONEOUSLY – application for -- 1 of 11 -- 2 LEGISLTION: CASES: COUNSEL: SOLICITORS: appeal against conviction and against sentence – where the appellant was sentenced to six months detention to serve 50% and 12 months probation – where the appellant has a background of family trauma, inadequate supervision and permissive parenting, a lack of pro-social structured activities, substance misuse and pro-criminal peer associations – where the appellant has spent 53 days in detention – whether the appeal is incompetent – where the penalty imposed is not available as a sentencing option at law – whether the sentence was disproportionate to the offending Criminal Code Act 1899 (Qld) Judicial Review Act 1991 (Qld) Justices Act 1886 (Qld) Youth Justice Act 1992 (Qld) Ajax v Bird [2010] QCA 2 Dore & Ors v Penny [2005] QCA 150 Long v Spivey [2004] QCA 118 Meissner (1995) 184 CLR 132 NJM v Commissioner of Police [2017] QChC 4 O v Commissioner of Police [2018] QChC 8 Phillips v Spencer & Anor [2005] QCA 317 R v SCU [2017] QCA 198 Veen v R (No. 2) (1988) 164 CLR 465 H Robertson for the appellant E S McPhie (sol) for the respondent Legal Aid Queensland for the appellant Office of the Director of Public Prosecutions for the respondent Introduction [1] The appellant, ARR, appeals from the sentences imposed at the Roma Childrens Court on 15 October 2019 in respect of the following matters:- (1) enter dwelling and commit indictable offence (5/8/2019); (2) enter dwelling with intent by break at night in company (5/8/2019); (3) trespass – entering or remaining in yard or place for business (5/8/2019); and (4) contravene direction or requirement (1/8/2019). [2] In respect of charges 1 and 2, the appellant was sentenced to six months’ detention to serve 50% and 12 months probation, and in respect of charges 3 and 4, the appellant was “convicted and not further punished”.0 F 1 1 Exhibit E-2, Affidavit of Loren Fabian affirmed 9 December 2019, pp 2-3. -- 2 of 11 -- 3 Overview [3] The appellant’s Outline of Submissions conveniently summarises the factual background in the following terms:- “1. On 23 September 2019, the appellant pleaded guilty in the Childrens Court at Roma to four offences. A Pre-sentence Report was ordered, the appellant’s bail was revoked and he was remanded in detention. 2. On 15 October 2019, the appellant appeared in the Childrens Court at Roma and was sentenced by [the learned magistrate], as follows: Charge/date Facts Sentence Enter dwelling and commit indictable offence - 5.08.2019 Acted as lookout when co-accused attended complainant’s address at 9.30 pm and entered through external bathroom door by force. Co-offenders stole mobile phone and $650 cash from wallets and coin bowl. Entered after co- accused and stole two bottles of liquor. 6 months’ detention to serve 50%. 12 months probation. Enter dwelling with intent by break at night in company – 5.08.2019 Attended complainant’s residential address at 9.10 pm with others and attempted to break into dwelling in several places. Opened several doors but was prevented from access due to security screens installed behind external doors. 6 months’ detention to serve 50%. 12 months probation. Trespass – entering or remaining [in] yard or place for business – 5.08.2019 Entered a Motel at 9.45 pm via front driveway and through to rear where he jumped the fence. Convicted and not further punished. Contravene direction or requirement– 1.08.2019 Failed to comply to attend drug diversion on 1 August 2019. Convicted and not further punished. -- 3 of 11 -- 4 3. The appellant was 16 years old and at the time of sentence, the appellant had served twenty two (22) days in pre-sentence detention. 4. The appellant criminal history included entries for trespassing, burglary, stealing, public nuisance and assault or obstruct police. The offending occurred while he was subject to a supervised release order. 5. A pre-sentence report was prepared for the sentence which outlined that: 5.1 The appellant had been exposed to severe domestic violence and alcohol abuse by his parents; 5.2 He witnessed his mother stab her partner which resulted in her incarceration for the charge of grievous bodily harm; 5.3 He had smoked cannabis since he was 13 years old and had recently commenced smoking methylamphetamine on his release from detention; 5.4 He identifies as Aboriginal from the Cunnamulla Bidjarra tribe; 5.5 The offending occurred while he was intoxicated and was committed in order to obtain more alcohol; 5.6 The appellant expressed remorse for the offending; 5.7 He had a strong desire to obtain employment and was willing to engage in interventions to address his substance abuse; 5.8 He was assessed as suitable and willing to engage in probation, restorative justice, community service and a conditional release order. 6. On 15 November 2019, the appellant was granted bail pending the hearing of this appeal. He had served thirty one (31) days of the sentence.”1 F 2 The law – appeals [4] This appeal proceeds pursuant to Justices Act 1886 (Qld) s 222 which relevantly provides: “22Appeal to a single judge (1) If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge. (2) However, the following exceptions apply— 2 Exhibit 3 – Outline of Submissions on behalf of Appellant – paragraphs 1-6. -- 4 of 11 -- 5 (a) a person may not appeal under this section against a conviction or order made in a summary way under the Criminal Code, section 651; (b) if the order the subject of the proposed appeal is an order of justices dealing summarily with an indictable offence, a complainant aggrieved by the decision may appeal under this section only against sentence or an order for costs; (c) if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate. Youth Justice Act 1992 (Qld) (YJA) s 117 provides:- “117 Appeals under Justices Act 1886, pt 9, div 1 (1) The Justices Act 1886, part 9, division 1, applies in relation to an order made by justices dealing summarily with a child charged with an offence subject to subsections (2) to (4). (2) To appeal under the division, an aggrieved person must appeal to the Childrens Court judge. (3) All relevant references to a District Court judge are taken for the purpose to be references to the Childrens Court judge. (4) A District Court judge does not have jurisdiction to hear and decide the appeal”. Grounds of Appeal [5] The appellant’s grounds of appeal are as follows:- “The appellant’s plea of guilty was entered erroneously as to the facts of charge 2 of 4 as the facts of charge 2 of 4 were not made out at law; That the learned magistrate imposed a sentence option that was not available on charges 3 and 4 of 4; and In all the circumstances, the sentence was manifestly excessive.”2 F 3 Ground of Appeal – plea of guilty entered erroneously [6] The appellant was arraigned at the Roma Childrens Court on 23 September 2019 in the following exchange, as follows:- “BENCH: Thank you. Stand up please ARR. You are charged on the 5th day of August 2019 at Roma, you entered the dwelling of one LVV and stole a mobile phone and alcohol. How do you plead: guilty or not guilty? DEFENDANT: Guilty. 3 Notice of Appeal to a Childrens Court Judge filed 7 November 2019. -- 5 of 11 -- 6 BENCH: Guilty. Further that on the 5th day of August 2019 at Roma, you entered the dwelling of one TBE with intent to commit an indictable offence of the dwelling. The entry was by means of a break. It was committed in the night, and you were in company with other unknown persons. How do you plead? DEFENDANT: Guilty BENCH: Further, that on the 5th day of August 2019 at Roma, you unlawfully entered a place used for business [indistinct] how do you plead? DEFENDANT: Guilty BENCH: Further, that on the 1st day of August 2019, you contravened a direction or requirement. How do you plead? DEFENDANT: Guilty BENCH: All those pleas of guilty are of your own free will? DEFENDANT: Yeah. BENCH: Has anyone of authority or police officer told you you must plead guilty? DEFENDANT: No.”3F 4 [7] The learned sentencing magistrate ordered the preparation of a pre-sentence report, and the sentence proceeded at the Roma Childrens Court on 15 October 2019. [8] Relevantly, the facts of charge 2 (enter dwelling with intent by break at night in company – 5.08.2019) were read into the record by the prosecutor as follows: “On the 5th day of August at approximately – 5 th August 2019 at approximately 9.10 pm, ARR attended the victim TBE’s residential address in the company of others where he attempted to break into the dwelling via several points of entry. ARR approached the front door and attempted to open the door using the door knob, however was then disturbed by the victim that hurt (sic) him and subsequently [indistinct] from the address. When questioned about this, he made full admissions to attempting to gain entry to the dwelling before being disturbed by the owner, and declined to name persons who also were involved.”4F 5 [9] It should be noted that the appellant’s legal representative made no submissions during the sentencing process as to the facts of any of the charges, including charge 4 Exhibit C-2, Affidavit of Loren Fabian affirmed 9 December 2019, T 1-3 l 19 – T 1-4 l 1. 5 Exhibit D-2, Affidavit Loren Fabian affirmed 9 December 2019 – T1-3, ll 25-32. -- 6 of 11 -- 7 2. No issue was raised as to any disconnect between the charges to which the applicant pleaded guilty and the facts as read into the record by the prosecution. [10] The submission on behalf of the appellant is that at law, the appellant cannot be guilty of burglary because it was apparent that the dwelling was not actually entered. Taken at its highest, it is submitted that the facts give rise to the charge of attempted burglary.5 F 6 [11] The appellant argues that the plea of guilty was entered in error, and consequently the conviction for this charge should be set aside and in lieu, the appellant charged with attempted burglary, a charge to which the appellant’s counsel, Ms Robertson indicated that he would plead guilty.6 F 7 [12] The clear language of Justices Act s 222(2)(c) provides:- “If a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.” [13] In Long v Spivey [2004] QCA 118, Davies JA stated: “[21] A court is entitled to act on a plea of guilty ‘when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea.’ [Meissner v The Queen (1995) 184 CLR 132, 141]. A plea of guilty will not ordinarily be set aside unless ‘the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence.’ [Meissner v The Queen (1995) 184 CLR 132, 157]. [22] What appears on its face to have been a plea of guilty to an offence will be shown, in reality, not to have been such a plea only if … it was not entered by the accused in the exercise of a free choice. It does not matter why he exercised it in that way for, as Dawson J pointed out in [Meissner (1995) 184 CLR 132, 157] a person may do so ‘for all manner of reasons: for example to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty.’ In my opinion it has not been shown by any of the material adduced by the respondent that he did not enter a plea of guilty to the offence of assaulting a police officer in the exercise of a free choice.” [14] Williams JA, who agreed with the reasons of Davies JA in Long v Spivey7F 8 noted at [33]: “The present case is to be distinguished from that where a defendant seeks to set aside a plea on the ground that a miscarriage of justice occurred. In that situation the onus is on the defendant to establish on the balance of probabilities that such a miscarriage has occurred; Boag 6 Exhibit 3 – Outline of Submissions on behalf of appellant, para 14. 7 Appeal transcript T 1-6 ll 21-31. 8 [2004] QCA 118. -- 7 of 11 -- 8 (1994) 73 A Crim R 35. It must also be remembered, as stated by Brennan, Toohey and McHugh JJ in Meissner (1995) 184 CLR 132 at 141, that necessarily there ‘is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.’ That is because of the considerations enumerated by Dawson J in the passage from his judgment in Meissner quoted by Davies JA.” [15] In Dore & Ors v Penny [2005] QCA 150, Williams JA at p. 2 stated: “In Long v Spivey I did refer to the circumstances that since the repeal of section 209 of the Justices Act the remedy available to a person who pleaded guilty and wished to submit that the plea of guilty was to an offence which was not known to the law or was a plea that was not freely and voluntarily made is pursuant to part 5 of the Judicial Review Act 1991.” [16] McMurdo P observed in Phillips v Spencer & Anor [2005] QCA 317, [21]: “An applicant who seeks to set aside a plea of guilty in the Magistrates Court has the option of applying under Part 5 of the Judicial Review Act 1991 (Qld), or alternatively could apply under Justices Act s 147A(2) within 28 days after the conviction or such further time as is allowed.” [17] In Ajax v Bird [2010] QCA 2, [4] Fraser JA explicitly identified that:- “It is quite clear that where a defendant enters an unequivocal plea of guilty that person has no right of appeal against conviction under s 222 of the Justices Act 1886,” and cited with approval Long v Spivey [2004] QCA 118, Dore & ors v Penny [2005] QCA 150 and Phillips v Spencer & anor [2005] QCA 317. [18] With respect, on the material before me, the plea of guilty entered (albeit by a juvenile) on 23 September 2019 was unequivocal; there was no issue taken with the entering of that plea when the fact were read into the record by the prosecution and the appellant was sentenced on 15 October 2019; and there is nothing in the affidavits filed on the applicant’s behalf in this court that provides any factual basis to assert that the entry of the plea was equivocal. 8F 9 Notably, there is no affidavit from the applicant. [19] It follows that, despite the facts read into the record on 15 October 2019, the applicant has unequivocally entered a plea of guilty, the sentence has proceeded on that basis, there has been no application either under Part 5 of the Judicial Review Act 1991 to quash the conviction, nor any application in the Magistrates Court to set aside the conviction pursuant to Justices Act s 147A. In my view, the appeal, to the extent that it seeks to set aside the plea of guilty entered to the charge of enter dwelling with intent by break at night in company – 5.08.2019, is incompetent, and the appeal against conviction in respect of charge 2 should be dismissed. 9 Affidavit of Loren Fabian affirmed 12 November 2019; Affidavit of Loren Fabian affirmed 9 December 2019. -- 8 of 11 -- 9 Ground of appeal – Magistrate imposed sentence not available at law [20] In respect of the charges of trespass (charge 3) and contravene direction or requirement of police (charge 4), the learned magistrate ordered that the defendant be “convicted and not further punished”. That penalty is not available as a sentencing option under the YJA. 9F 10 Both the appellant and respondent are in agreement that the imposition of that penalty for each of those two offences is clearly an error by the learned sentencing magistrate, and that the order should in each case be set aside and instead the appellant reprimanded for each of those offences, pursuant to YJA s 175(1)(a). Ground of appeal – sentences excessive [21] The appellant submits that even if the appellant’s appeal against conviction on the charge of enter dwelling with intent by break at night in company 5.08.2019 is refused, the sentence imposed for charges 1 and 2 was excessive for the following reasons: (1) the learned magistrate placed too much emphasis on the appellant’s criminal history and imposed a sentence that was disproportionate to the subject offences; and (2) wrongfully concluded that detention was the only appropriate sentence. [22] The sentence imposed in respect of charges 1 and 2 (six months detention at 50% combined with a probation order of 12 months) was the maximum available for a sentence utilising that construction.10F 11 [23] The appellant relies on a passage from Veen v R (No. 2) (1988) 164 CLR 465, 477 where Mason CJ, Brennan, Dawson and Toohey JJ stated: “…the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences.” [24] The appellant relies further on Principle 18 of Schedule 1 of the YJA which provides:- “A child should be detained in custody for an offence, whether on arrest or sentence, only as a last resort and for the least time that is justified in the circumstances.” [25] YJA s 208 provides:- Detention must be only appropriate sentence A court may make a detention order against a child only if the court, after— (a) considering all other available sentences; and (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. 10 11 NJM v Commissioner of Police [2017] QChC 4, [6]; O v Commissioner of Police [2018] QChC 8 [4]. YJA s 180. -- 9 of 11 -- 10 [26] In R v SCU [2017] QCA 198, Sofronoff P at [53] 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 a 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 properly be put to one side in favour of actual immediate detention of a child.” [27] The appellant concedes that he has a lengthy criminal history which includes similar offending. 11 F 12 [28] The respondent summarizes that criminal history as follows: (a) 12 convictions for trespass - 2016 (x 2); 2017 (x 1); 2018 (x 9) (b) Four convictions for commit public nuisance – 2016 (x 2); 2017 (x 1); 2018 (x 1) (c) One conviction for each stealing and unauthorised dealing of shop goods in 2016 (d) Three convictions for assault or obstruct police officer in 2016, 2018 and 2019 (e) Two convictions for wilful damage in 2018 (f) A conviction for receiving tainted property in 2018 (g) A conviction for attempt to enter premises with intent to commit in 2018 (h) Two convictions for enter premises with intent to commit indictable offence in 201912F 13 The appellant has previously been subject to two probation orders, four community service orders and two conditional release orders, and has been resentenced in respect of each of those orders (except for two community based orders imposed in 2016) for either non-compliance or reoffending. The appellant was on a supervised release order for enter premises with intent to commit an indictable offence when he committed the offences the subject of this appeal. [29] The respondent submits that the appellant’s history of failing to successfully complete or comply with community based orders entitled the learned magistrate to conclude that detention was the only appropriate sentence, and relies on R v L [2000] QCA 427 and R v NMQ [2019] QChC 6 to support the sentence imposed by the learned sentencing magistrate. Conclusions [30] It is clear that the imposition by the learned magistrate of the penalty of “convicted and not further punished” for each of the offences of trespass (charge 3) and contravening a direction requirement (charge 4) must be set aside. In that context this court can and should revisit the sentences imposed on charges 1 and 2. 12 Exhibit A-2, Affidavit of Loren Fabian affirmed 9 December 2019. 13 Supervised Order History, Annexure B, Pre-sentence Report dated 4 October 2019 – Exhibit D, Affidavit of Loren Fabian affirmed 12 November 2019. -- 10 of 11 -- 11 [31] In my view, by imposing a combined detention and probation order at the maximum for both components of such a combined order (albeit that the detention component was to be served at 50%), the learned magistrate fell into error, by imposing a sentence that was disproportionate to the offending, and failed to consider an alternative, but more proportionate, penalty, which would be the imposition of a sentence of six months detention in respect of charge 1, which involved the actual entry of a dwelling to be served by way of a three month conditional release order, and a sentence of 12 months probation in respect of charge 2, which, on the facts submitted by the prosecutor at the sentence, at best constituted a technical break and enter at night in company. Such a penalty would in my view be proportionate, would recognize matters raised in mitigation including that the appellant is an Aboriginal child, has spent (as of this appeal) 53 days in detention, entered pleas of guilty, was significantly involved in the offending but, made full admissions in his record of interview, and has the personal circumstances which are referred to in the pre- sentence report and includes a background of family trauma, inadequate supervision and permissive parenting, a lack of pro-social structured activities, substance misuse and pro-criminal peer associations.13F 14 Conclusion [32] In the circumstances, the appeal against conviction (charge 2) should be refused, the appeal in respect of sentence (charges 1, 2, 3 & 4) allowed, the sentences imposed in respect of each of charges 1, 2, 3 & 4 set aside, and the following sentences imposed: 1. enter dwelling and commit indictable offence – 5.08.2019 – six months detention to be served by way of a three month conditional release order; 2. enter dwelling with intent by break at night in company – 5.08.2019 – 12 months probation; 3. trespass – entering or remaining in yard or place for business – 5.08.2019 – reprimanded; and 4. contravene direction requirement – 1.08.2019 – reprimanded. 14 Exhibit D, Affidavit of Loren Fabian affirmed 12 December 2019 p.4. -- 11 of 11 --