Doolan v Commissioner of Police [2014] QChC 9

CHILDRENS COURT OF QUEENSLAND CITATION: Doolan v Commissioner of Police [2014] QChC 9 PARTIES: JAI DOOLAN (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: 1401/14 DIVISION: Appeal Division PROCEEDING: Appeal pursuant to s 222 of the Justices Act 1886 (Qld) ORIGINATING COURT: Woorabinda Childrens Court DELIVERED ON: 23 July 2014 DELIVERED AT: Brisbane HEARING DATE: 18 June 2014 and 3 July 2014 JUDGE: Martin SC, DCJ ORDER: 1. Appeal allowed. 2. Each of the sentence orders for detention made on 7 April 2014 is set aside. 3. The order of the learned magistrate discharging the community service orders, is set aside. 4. The appellant is resentenced as follows: (a) In relation to each of the two charges of enter premises and commit indictable offence by break, the charge of enter premises and commit indictable offence and the charge of attempted unlawful use of a motor vehicle, all dealt with on 7 April 2014, order the appellant be detained for a period of four months. (b) All sentences of detention are to be served concurrently. (c) Further order that these orders for detention be immediately suspended and a conditional release order is made that the appellant be immediately released from detention. (d) The conditional release order shall contain the requirement that the appellant participate as -- 1 of 12 -- 2 directed by the Chief Executive in the programme identified in annexure “D” to the pre-sentence report dated 1 April 2014 for a period of three months and the conditional release order shall contain the usual requirements set out in s 221 (1) (b) of the Youth Justice Act 1992 (Qld). (e) Convictions are not recorded. (f) Application for publication prohibition order pursuant to s 299A Youth Justice Act 1992 (Qld) refused. CATCHWORDS: CRIMINAL LAW- SENTENCING- JUVENILES- SENTENCING ORDERS- where juvenile ordered to serve actual detention- where demonstrable errors in the exercise of the sentencing discretion- where absence of consideration of a viable sentencing option- sentences at large- resentenced Justices Act 1886 (Qld) Youth Justices Act 1992 (Qld) Allesch v Maunz (2000) 203 CLR 172 House v The King (1936) 55 CLR 499 Lahey v Sanderson [1959] Tas. S.R. 17 R v Price [1978] Qd. R. 68 R v Taylor and Napatali [1999] QCA 323 COUNSEL: Mr Lodziak for the appellant Ms Honkisz for the respondent SOLICITORS: Legal Aid Queensland for the appellant Office of the Director of Public Prosecutions for the respondent [1] This is an appeal pursuant to s 222 of the Justices Act 1886 (Qld). The appeal is against the sentences imposed in the Woorabinda Childrens Court on 7 April 2014. [2] On 30 October 2013, the appellant pleaded guilty to 11 offences as follows: • six charges of entering premises and committing an indictable offence by breaking; -- 2 of 12 -- 3 • one charge of burglary and committing an indictable offence; • one charge of unlawful use of a motor vehicle; • one charge of wilful damage; • one charge of wilful damage without consent and causing a loss of $250 or less; • one charge of trespass. [3] The offence of trespass was committed on 19 October 2013 and in respect of this offence, the appellant was convicted and not further punished. The other offences were committed in November 2012 and September and October 2013. In respect of those offences, the appellant was ordered to perform 100 hours community service. Convictions were not recorded. [4] On 13 January 2014, the appellant pleaded guilty to one charge of burglary with intent at night and by breaking. This offence was committed on 10 November 2013, only 10 days after being sentenced on 30 October 2013. The appellant was ordered to perform an additional 33 hours community service. A conviction was not recorded. [5] On 10 March 2014, the appellant pleaded guilty to four offences committed on 17 February 2014: • two charges of entering premises and committing an indictable offence by breaking; -- 3 of 12 -- 4 • one charge of entering premises and committing an indictable offence; • one charge of attempted unlawful use of a motor vehicle. In addition, the appellant pleaded guilty on that occasion to three summary offences committed on 6 March 2014. In relation to each of the summary offences the appellant was ultimately convicted and not further punished. [6] On 10 March 2014, the learned magistrate ordered that a presentence report be prepared in relation to the appellant. The sentence was then adjourned to 7 April 2014. [7] On 7 April 2014, in relation to each of the indictable offences committed on 17 February 2014, the learned magistrate sentenced the appellant to four months detention, to serve 70 per cent of that period. Further, the community service orders made on 30 October 2013 and 13 January 2014 were discharged because of the breaches resulting from the further offending. The appellant was then resentenced in respect of each of the offences, the subject of community service orders, to four months detention, to serve 70 per cent of that period. Convictions were not recorded. [8] The appeal is against all of the sentences of four months detention imposed on 7 April 2014. [9] Pursuant to s 223 of the Justices Act 1886 (Qld), subject to leave being given to adduce additional evidence, an appeal under s 222 is by way of rehearing on the evidence given in the proceeding before the magistrate. -- 4 of 12 -- 5 [10] In an appeal by way of rehearing, “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all of the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error…”.1 [11] In House v The King, the majority judgment referred to the manner in which an appeal against an exercise of discretion should be determined: “…It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for so doing. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”2 [12] The respondent concedes that an error was made by the learned magistrate in resentencing the appellant to four months detention in relation to the regulatory offence of wilful damage to property without consent causing a loss of $250 or less. That order, of course, cannot stand. [13] However, the respondent submits that the remaining sentences imposed were open and appropriate. The respondent submitted that given the extent and frequency of reoffending by the appellant, the magistrate was entitled to form the view that further community based orders were not appropriate nor was an order for suspended imprisonment with a conditional release order. 1 Allesch v Maunz (2000) 203 CLR 172 at 180. 2 (1936) 55 CLR 499 at 504-505. -- 5 of 12 -- 6 [14] Plainly, the learned magistrate was acutely aware of the recent amendments to the Youth Justice Act 1992 (Qld) (the Act) whereby the principle that detention was a sentence of last resort, was removed.3 However, importantly, in so doing, the legislature did not amend s 150 of the Act. Section 150(1) provides that in sentencing a child for an offence, a court must have regard to, inter alia, the special conditions stated in subsection (2). Those special conditions include, relevantly to this matter, the following: “(a) a child's age is a mitigating factor in determining whether or not to impose a penalty, and the nature of a penalty imposed; and (b) a non-custodial order is better than detention in promoting a child’s ability to reintegrate into the community; and (c) the rehabilitation of a child found guilty of an offence is greatly assisted by - (i) the child’s family; and (ii) opportunities to engage in educational programmes and employment…” [15] Unsurprisingly, the Explanatory Notes to the Amending Bill include this statement: “Following their removal,” (a reference to removing the last resort principle) “the court will continue to be required to have regard to other existing statutory principles…”. Later in the Notes, this was stated: “The intended effect of these amendments is to hold young offenders to account for their actions by permitting the Childrens Court to properly consider detention as a realistically available sentence and to impose a sentence of detention even though a less restrictive sentence may also have been appropriate in the circumstances. …” [16] In relation to the second quotation above, it must be remembered that a sentence of detention includes an order for suspended detention. Consequently, prior to the amendments, the courts could not order suspended detention with a conditional release order unless satisfied that detention was the only appropriate sentence. It would be quite wrong to think that the legislature, by the recent amendments, 3 Sentencing submissions p 3 L 40. -- 6 of 12 -- 7 intended to open the floodgates to actual detention. As the Explanatory Notes make clear, it did not so intend. [17] Importantly, nothing in the Act in any way detracts from the fundamental, common- sense recognition of sentencing courts “that imprisonment is likely to expose a youth to corrupting influences and to confirm him in criminal ways, thus defeating the very purpose of the punishment imposed”. Nothing in the Act detracts from the severe warning given by Lord Goddard when Lord Chief Justice of England that “a judge or magistrate who sends the young man to prison for the first time takes upon himself a grave responsibility”. (See the full passage in Lahey v Sanderson [1959] Tas. S.R. 17 by Chief Justice of Tasmania, Sir Stanley Burbury. This passage has been approved by the Queensland Court of Appeal. See, for example, R v Price [1978] Qd. R. 68 at 70 and 71 and R v Taylor and Napatali [1999] QCA 323). [18] At first instance, Ms Martin appeared on behalf of the appellant. The following exchange took place between Ms Martin and the learned magistrate: “Ms Martin: I was proceeding to the question, obviously, of a conditional release order, and the reason for that is that it would be a period of detention, but of course, it’s like being on parole. He simply has to abide by all rules… Bench: I don’t think three months is sufficient. Ms Martin: … its far more structured. Bench: Three months is not enough. You can’t – nothing is achieved in three months and it’s not, in my view, a sufficient deterrent or punishment. For this sort of offence, this is just appalling. Ms Martin: That is my submission in relation to it, your Honour.” -- 7 of 12 -- 8 [19] In my respectful opinion, the learned magistrate fell into obvious error in the exercise of his sentencing discretion. The magistrate erroneously approached Ms Martin’s suggested sentencing option as if the deterrence and punishment in such an option was only to be found in the conditional release order. Of course, the deterrence and punishment lies in the order for detention as well as the conditional release order. A period of actual detention would hang over the head of the appellant for the duration of the conditional release order. And, as Ms Martin attempted to point out, it would be similar to the appellant being placed on parole. Should he fail to comply with the conditions in s 221 of the Act, which includes not only participating in the conditional release programme but also abstaining from violation of the law, he would expect the order of detention to take effect (See s 246 of the Act). [20] Further, in my view, the learned magistrate failed to give proper consideration to the sentencing option proposed. The learned magistrate seemed to dismiss the notion of a conditional release programme as a waste of time, not only in this case, but generally. However, as s 219 of the Act states, a conditional release order enables the release of the child into “a structured programme with strict conditions”. The proposed programme in this case is annexure “D” to the pre-sentence report. One has only to read attachment “D” to appreciate that an excellent, intensive programme was proposed. The educational, vocational, work and re-integrative activities for the appellant are all identified. The programme ensures that the appellant not only attends school but also makes reparation to the community. Other supervised activities identified in the programme provide him with important life skills. Counselling and other interventions to address his offending are also set out in the programme. -- 8 of 12 -- 9 [21] It is true that the conditional release programme runs for a maximum period of three months. However, I disagree entirely with the learned magistrate’s opinion that nothing can be achieved in three months, especially in the context of the intensive, structured programme identified in annexure “D”. Of course, it is not for magistrates or judges to purport to determine which legislative provisions have merit and which do not. Magistrates and judges cannot ignore the legislature’s determination that suspended detention with a conditional release order for a maximum period of three months, is a viable and appropriate sentencing option. We are all bound to give consideration and effect to all of the provisions of the Act. In any event, it seems that the learned magistrate overlooked the availability of a lengthier period of supervision by making a probation order in relation to one or more of the offences to run beyond the expiry of the conditional release order. It is noted that at the time of sentence the appellant had never been given the opportunity of a probation order nor a conditional release order. [22] In relation to the resentencing of the appellant for the offences resulting in community service orders on 30 October 2013 and 13 January 2014, the learned magistrate erred in plainly failing to take into account that the appellant had completed 89.5 hours of the total of 133 hours ordered (83.5 hours were completed at the time the pre-sentence report was created and a further 6 hours completed before resentencing on 7 April 2014). [23] For the reasons expressed above, the sentencing discretion at first instance miscarried. The sentences are at large. The appellant suffered 18 days detention before being granted bail pending this appeal. Without objection, this Court was informed that whilst on bail the appellant committed a minor offence to which he -- 9 of 12 -- 10 pleaded guilty, resulting in the making of a probation order for 12 months. The order will not expire until May 2015. [24] I take into account that the appellant was only 13 and 14 years at the time of committing the relevant offences. Nonetheless, he has a not insignificant criminal history for one so young. I also take into account the appellant’s pleas of guilty to all of the offences. The material before me suggests that the appellant has displayed some insight into the seriousness of the offences and, consequently, some remorse. In any event, the pleas of guilty have saved the State time and money and that is in his favour. [25] Both personal and general deterrence are important factors in the determination of penalty. Given the appellant’s young age, rehabilitation is also highly relevant. [26] I take into account that the appellant now falls to be sentenced on the basis that he has suffered 18 days actual detention. [27] The pre-sentence report notes that the requirements and conditions of a conditional release order have been fully explained to the appellant and he has indicated an understanding of the conditions and the consequences of non-compliance. The appellant has indicated that he would be willing to comply with a conditional release order. [28] The appeal is allowed. Each of the sentence orders for detention made on 7 April 2014 are set aside. The order of the learned magistrate discharging the community service orders, is set aside. -- 10 of 12 -- 11 [29] In all the circumstances, in relation to each of the four offences committed on 17 February 2014 to which the appellant pleaded guilty on 10 March 2014, namely: (a) Enter premises and commit indictable offence by break; (b) Enter premises and commit indictable offence by break; (c) Enter premises and commit indictable offence; (d) Attempted unlawful use of a motor vehicle, I order that the appellant be detained for a period of four months. All sentences of detention are to be served concurrently. I further order that the orders for detention be immediately suspended and I make a conditional release order that the appellant be immediately released from detention. The conditional release order shall contain the requirement that the appellant participate as directed by the Chief Executive in the programme identified in annexure “D” to the pre-sentence report dated 1 April 2014 for a period of three months and the conditional release order shall contain the usual requirements set out in s 221 (1) (b) of the Act. Convictions are not recorded. [30] The effect of the orders is that the community service orders made by the learned magistrate on 30 October 2013 and 13 January 2014 will continue. Whilst the conditional release order is in force for three months, there is in existence a probation order which will run well beyond the expiration of the conditional release order until May 2015. The upshot is that the effective sentence imposed by this -- 11 of 12 -- 12 Court is a heavy one. The appellant has suffered 18 days actual incarceration and is now subject to the conditional release programme with strict and onerous conditions. Failure to comply will likely result in his serving the period of detention ordered. In addition, the appellant is obliged to complete the hours of community service ordered. [31] The period of 18 days is declared as time served under the sentences imposed. [32] Application is made under s 299A of the Act for a publication prohibition order. I have had regard to all relevant matters in s 299A (4). It is a relevant matter that the appellant is young. However, the appellant has been persistent in his offending and the community is entitled to be protected from him. The community should know to be alert to the appellant’s conduct. I am also of the view that the shame of publication may assist rehabilitation. Whilst not a determining factor in this application, I think it is also relevant that a publication prohibition order was not made at first instance. If a publication prohibition order were made in relation to these proceedings, the appellant would not get the benefit of a favourable judgment publicising the errors which resulted in the heavy sentences imposed at first instance. The application is refused. -- 12 of 12 --