AGC v Commissioner of Police [2017] QChC 2

CHILDREN’S COURT OF QUEENSLAND CITATION: AGC v Commissioner of Police [2017] QChC 2 PARTIES: AGC (Applicant) v COMMISSIONER OF POLICE (Respondent) FILE NO/S: 14/17 DIVISION: Childrens Court PROCEEDING: Sentence Review ORIGINATING COURT: Childrens Court DELIVERED ON: 20 April 2017 (delivered ex tempore) DELIVERED AT: Brisbane HEARING DATE: 20 April 2017 JUDGE: Dearden DCJ CATCHWORDS: LEGISLATION: APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – application for a sentence review under s. 119 of the Youth Justice Act 1992 – whether the sentence imposed by the learned sentencing magistrate is excessive Youth Justice Act 1992, ss 118, 119 COUNSEL: L Barnes for the applicant A Nikolic for the respondent SOLICITORS: Legal Aid Queensland for the applicant Office of the Director of the Public Prosecutions for the respondent [1] HIS HONOUR: This is an application for sentence review. Pursuant to sections 118 and 119 of the Youth Justice Act 1992, the application is the exercise of an unfettered discretion by this court in reviewing the record of the Childrens Court Magistrate in respect of the sentence imposed. [2] The learned sentencing magistrate sentenced the applicant on 11 January 2017 to nine months’ probation with no conviction recorded in respect of one charge of assault or obstruct police, which occurred on 29 September 2016. As is clear from the material, it was in fact an offence of “obstruct police” and, contrary to the learned sentencing magistrate’s assessment of it, it was in fact a relatively minor example of what is, in context, very clearly, a relatively minor offence in the calendar of criminal offending. -- 1 of 3 -- [3] The submission is that the nine month sentence is clearly disproportionate, given the circumstances of the offending. Those circumstances are briefly summarised by the applicant’s counsel, Ms Barnes, in her outline of submissions at paragraph 7.2 in these terms: At about 5.30 pm the applicant child and co-offenders (seven in total) were attending a party. Police arrived and observed juveniles and adults intoxicated. Liquor items were located on the floor in a doorway. An emergent search was declared. The application child was seen to come out of a bathroom. Police were attempting to gather all persons present in the living room. The applicant child and co-offenders were not cooperating and warned. [Were warned they were obstructing police.] Two co-offenders have attempted to intimidate the police officer and liaison officer. All people then ran from the address with all the remaining liquor items. The applicant child left with the group. (Outline of submissions on behalf of the child (exhibit 2) para 7.2). [4] The applicant child was subject to both a community order and probation at the time of the sentence and was, it appears, proceeding well in respect of both orders. The applicant, through his counsel, acknowledged that “by running away from the police” his “behaviour was extremely dumb” (Transcript 1-3). [5] The alternative submission was made that a fine could be imposed. There was no submission before the learned sentencing magistrate in the terms that have been placed before this court, but in my view that is no bar to the sentence review proceedings. [6] The learned sentencing magistrate accurately identified concerning aspects of the offending, noting (the sentence took place in Woorabinda) that, “It is a dry community here, and when you run off like that it stops the police from being able to do their job.” However, as I have indicated in these remarks, the learned sentencing magistrate’s characterisation of it being “quite a serious example of obstructing police” (Decision p.2) does overstate the seriousness of this relatively minor example of a relatively minor offence. [7] The learned magistrate clearly considered both community service (which was precluded by the applicant’s work commitments), and a fine (which he considered was precluded by the applicant’s limited means and youth), but then proceeded to make a probation order for a period of nine months, which in my clear view, was an error, being disproportionate to the seriousness of the offence and the context in which it was committed. [8] In all of the circumstances, I consider that the application should be granted and the original sentence set aside. I make the following orders: (1) Application for sentence review granted; (2) Set aside the nine months order for probation with no conviction recorded; -- 2 of 3 -- (3) Impose a good behaviour order for a period of six months pursuant to section 188 of the Youth Justice Act 1992. That will be subject to a condition that “the child abstains from violation of the law for a period of six months”. -- 3 of 3 --