DRJ v Commissioner of Police [2014] QDC 305

DISTRICT COURT OF QUEENSLAND CITATION: DRJ v Commissioner of Police [2014] QDC 305 (delivered ex tempore) PARTIES: DRJ (appellant) v Commissioner of Police (respondent) FILE NO: 3142/14 DIVISION: Appellant PROCEEDING: Appeal ORIGINATING COURT: Childrens Magistrates Court at Mount Isa DELIVERED ON: 27 November 2014 DELIVERED AT: Brisbane HEARING DATE: 27 November 2014 JUDGE: Kingham DCJ ORDER: 1. Appeal allowed. 2. Sentences set aside where Intensive Supervision Order was imposed. 3. Probation order of 12 months imposed in its place. Convictions not recorded. CATCHWORDS: APPEAL – APPEAL AGAINST SENTENCE – PRE- CONDITIONS TO MAKING AN INTENTIVE SUPERVISION ORDER – where the learned Magistrate imposed an Intensive Supervision Order for a period of six months for a range of property and violent offences – where the appellant argued the sentence was manifestly excessive – where the appellant argued that the learned Magistrate erred by failing to consider whether other sentence orders have not or a unlikely to stop the child from committing further offences – where the respondent conceded that the learned magistrate did not expressly consider this – where it was found that the learned Magistrate did not have regard to all matters required to – where the appeal was allowed – where the appellant was sentenced to a 12 month probation order APPEAL – APPEAL AGAINST SENTENCE – INTENSIVE -- 1 of 4 -- 2 SUPERVISION ORDER – where the appellant argued that it was inappropriate for the learned Magistrate to impose an Intensive Supervision Order as a first time penalty – where it was concluded that an Intensive Supervision Order could be open for a first time penalty APPEAL – APPEAL AGAINST SENTENCE – where the respondent argued that, at sentence, the appellant’s legal representative welcomed the sentence – where the appellant argued that little weight could be placed on this as the appellant in this matter did not have the same capacity to give instructions as would an adult – where it was concluded that it was open to the court to place less weight on the conduct of the representative as an indication of the client’s instructions in the circumstances of this case COUNSEL: Mr D Law for the appellant Mr M Spencer for the respondent SOLICITORS: Legal Aid Queensland for the appellant Queensland Police Service for the respondent [1] HER HONOUR: This is an appeal by DRJ against part of the sentence imposed on him in the Mount Isa Children’s Court on the 16th of July 2014. He seeks to appeal against the sentence of a six month Intensive Supervision Order, which attached to two counts of unlawful possession of property suspected of being stolen, one count of attempted stealing, two counts of assault or obstruct police, one count of stealing, one count of serious assault, one count of wilful damage of police property and one count of wilful damage. The basis for the appeal is that DRJ argues it is manifestly excessive to impose an Intensive Supervision Order for those offences: given the nature of those offences; the lack of any prior criminal history; the association of his offending with what appears to have been a very regular, perhaps daily sniffing habit; and his disengagement from school; and, also his age. [2] The principles that apply on an appeal against the exercise of discretion, which is what is involved in a sentencing hearing, are well-established. It is not enough that I might consider that if I had been in the position of the sentencing Judge, I might have taken a different course. There must be some error made in exercising the discretion. A discretion may be reviewed and the appellate Court may impose its own sentence if the Judge at first instance acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect them, mistook the facts or did not take into account some material consideration. Sometimes, error will not be manifest except by the result which is, on the facts, unreasonable or plainly unjust. Those principles are derived from House v The King (1936) HCA 40. [3] Here, the appeal is brought on the grounds that it is manifestly excessive. In fact, a particular error is also pointed to: failure to comply with the requirements of Section 203 of the Youth Justice Act. That section, headed Pre-Conditions to Making of Intensive Supervision Order, starts in subsection (1) with these words: A Court may make an intensive supervision order for a child only if – -- 2 of 4 -- 3 [4] The subparagraphs enumerate what the sentencing Judge must consider. [5] The particular error relied upon is that his Honour failed to have regard to the consideration that’s set out in section 203 subsection (1) subsection (c)(iv): whether other sentence orders have not or are unlikely to stop the child from committing further offences. Mr Spencer, for the respondent to the appeal, has conceded quite properly, on my reading of the transcript, that his Honour did not expressly consider whether other sentence orders were unlikely to stop DRJ from committing further offences. [6] I should note at this stage that, as is my custom, I’ve had regard not just to the transcript of the sentencing remarks but also to the sentencing hearing itself to see whether his Honour did advert to that issue. I am confident that Mr Spencer’s concession is a proper one. Mr Law, for the appellant, submitted that an Intensive Supervision Order is inappropriate for a first penalty. He referred to the second reading speech for the introduction of the ISO through the Juvenile Justice Amendment Bill 2002. On the 19th of June 2002, the then Minister, the Honourable Judy Spence stated: “This order will be reserved for those children whose behaviour has put them at risk of a sentence of detention and will be made only after a pre- sentence report is provided to a Court outlining what will be provided and required under the order.” [7] The terms of Section 203 itself are consistent with the expression of intention in that second reading speech. However, in my view, this does not mean that an ISO could not be imposed as the first sentence for a child of this age, although the circumstances in which that is likely to be open are relatively limited. But it is certainly open given 203(1)(c)(iv), that a Court could conclude that other sentence orders are unlikely to stop a child from committing further offences, simply because of the nature of the offences that are then being dealt with. [8] The respondent to the appeal referred to the role played by the representative for the appellant at sentence and noted that the sentencing option adopted by his Honour was embraced as an appropriate one by DRJ’s representative. Certainly, that is true. I have considered the authority that I was referred to by Mr Spencer: R v Walsh [2008] QCA 391. At [23], Keane JA, as he then was, said this: “The imposition of a just sentence is, of course, the responsibility of the sentencing Judge, but where the sentence which is imposed accords with the position taken by the offender before the sentencing Judge, the contention that leave to appeal should be granted because the sentence is manifestly excessive is difficult to sustain.” [9] I accept, however, the argument put to me by Mr Law that I should bear in mind when considering that principle in the Childrens Court, that the appellant here was a 12 year old indigenous child who, at the time, was a regular sniffer. The degree to which regard should be had to the instructions assumed to have been given to counsel when dealing with a defendant in those circumstances, I accept, is different to the way in which the Court should approach sentence where there is an adult offender who does not labour under any particular impairment. In any case, I consider that the error in the sentencing hearing did infect the ultimate sentence. -- 3 of 4 -- 4 [10] The failure by his Honour to have regard to all the matters that he was required to, pursuant to Section 203, means that the appeal must be allowed. I will set aside the sentence imposed by his Honour to the extent that it relates to the Intensive Supervision Order only. I have considered the material placed before his Honour in relation to those nine offences, I believe it is, that the ISO were attached to. I consider an appropriate sentence for those offences is a probation order for the same period as was imposed for the other offences. I make that decision, taking into account the following factors. This was an 11 to 12 year old child; all of these offences occurred in May of 2014, which would have made him – can you assist me with that, Mr Law? How old would he have been? I don't have his date of birth at the moment. 14 to 19 May. [11] MR LAW: Yes. He would have been 11, your Honour. [12] HER HONOUR: All right. Thank you. So at the time of these nine offences, he was an 11 year old boy with no criminal history. His offending was largely related to his sniffing, his problems with his relationship with his mother, and his disengagement from school and his involvement in a negative peer group who were known to the police to engage in sniffing. The most serious offence is the serious assault of the police officer, but I accept, again, Mr Law’s submission that this assault does not involve that element of contempt that is often seen, for example, in a case of a spitting at a police officer. This was throwing a bottle containing petrol that he had been sniffing at the officer as the child was seeking to escape detention or arrest. [13] As set out in the pre-sentence report, given the guidance and programs that would be made available under the Intensive Supervision Order could also be available to DRJ on a probation order, and given the probation order has the benefit of a longer period of supervision, it seems to me that a 12 month probation order for a first offender is more appropriate. [14] I have also had regard to the fact that DRJ did continue to offend whilst he was on conditional bail. As far as I could make out from the material before me, none of the offences that I am dealing with were committed whilst he was on a conditional bail program. But if I’m wrong in that, it does not change my view as to what the appropriate order is in any case. Throughout the offending period from the March until July, I think it was, of 2014, the factors that contributed to DRJ’s offending did not change. That is, he was abusing volatile substances. He was sniffing. He was still associating with the peer group who were substance sniffers. He was not engaging in education and was still experiencing difficulties in his relationship with his mother and was not accepting the boundaries that she was seeking to impose on him. So convictions will not be recorded for those nine offences, and DRJ will be subject to a 12 month probation order on all those offences. -- 4 of 4 --