AJS v Commissioner of Queensland Police Service [2011] QChC 11

CHILDRENS COURT OF QUEENSLAND CITATION: AJS v Commissioner of Queensland Police Service [2011] QChC 11 PARTIES: AJS (applicant) v Commissioner of Queensland Police Service (respondent) FILE NO/S: No 41 of 2011 PROCEEDING: Application for Sentence Review ORIGINATING COURT: Childrens Court, Toowoomba DELIVERED ON: 2 September 2011 (ex tempore) DELIVERED AT: Toowoomba HEARING DATE: 2 September 2011 JUDGE: Judge Rafter SC ORDER: 1. Set aside the sentences of 12 months detention imposed by the Childrens Court at Toowoomba on 9 June 2011 in respect of five charges of burglary and committing an indictable offence. 2. Instead, order that in respect of each of those charges that the applicant be released under the supervision of the Chief Executive for 12 months and he must comply with the requirements set out in section 193 of the Youth Justice Act 1992 and report to the Chief Executive within one business day of his release from detention. Convictions are not recorded. 3. Otherwise confirm the orders made by the Childrens Court at Toowoomba on 9 June 2011. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING JUVENILES – SENTENCE REVIEW – where the applicant on 9 June 2011 pleaded guilty to 12 offences including five charges of burglary and committing an indictable offence – where the applicant was sentenced to 12 months detention in respect of each charge of burglary and committing an indictable offence – where the applicant’s sentence review pursuant to s 118 Youth Justice Act 1992 challenges the order of 12 months detention – where the 12 month detention order was ordered to be served concurrently with a sentence imposed on 18 March 2011 – where the sentence imposed on 18 March 2011 was 12 months detention with the -- 1 of 8 -- 2 [1] HIS HONOUR: On the 18th of March 2011 in the Childrens Court of Queensland at Toowoomba the applicant pleaded guilty to charges of burglary and stealing, burglary by breaking in the night while armed and in company, stealing and two charges of assault occasioning bodily harm while armed. [2] The overall sentence imposed was 12 months detention and the applicant was required to serve 70 per cent of the sentence. requirement that the applicant serve 70 percent of the sentence – where the applicant submitted that the Childrens Court Magistrate made a factual error – where the factual error was considered to be irrelevant – where the applicant submitted that the Childrens Court Magistrate failed to apply the totality principle – where the totality principle argument was rejected – where the applicant submitted that the Childrens Court Magistrate failed to explain the sentence imposed on 9 June 2011 to the applicant – where the Childrens Court Magistrate’s failure to explain the sentence must be seen in the context that the applicant was already serving a 12 month sentence of detention – where an important change in the applicant’s circumstances justified the sentence review of 12 months detention - where the important change in the applicant’s circumstances was the applicant’s willingness to comply with community based orders Youth Justice Act 1992 (Qld), ss 118, 150(1) (i), 158, 158(2) 184(1), 276B R v KAC [2010] QCA 39, cited Mill v The Queen (1988) 166 CLR 59, cited R v Nuttall ex parte Attorney-General [2011] QCA 120, cited COUNSEL: P. Stainton solicitor for the applicant. D. De Leon solicitor or the respondent SOLICITORS: Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent -- 2 of 8 -- 3 [3] On the 9th of June 2011 the applicant pleaded guilty to 12 offences before a Childrens Court Magistrate at Toowoomba. The charges were unlawful use of a motor vehicle, stealing, unauthorised dealing with shop goods, possession of tainted property, possession of utensils used in connection with a drug offence, possession of a dangerous drug, unlicensed driving and five charges of burglary and committing an indictable offence. [4] In respect of the unauthorised dealing with shop goods, the applicant was reprimanded. In respect of the drug charges he was sentenced to one month detention. In respect of the unlawful use of a motor vehicle, the stealing offences and possession of tainted property, he was sentenced to three months detention. In respect of each charge of burglary and committing an indictable offence, he was sentenced to 12 months detention. It was ordered that he serve 70 per cent of the period. The sentences were ordered to be served concurrently with the sentence imposed by the Childrens Court of Queensland on 18 March 2011. Convictions were not recorded. [5] The overall effect of the 12 month sentences imposed on 9 June 2011 was to extend the applicant’s release date by about three months. Under the sentence imposed on 18 March 2011 the applicant would have been released on 27 November 2011. However, the imposition of the 12 month sentence on 9 June 2011 would result in him being released on 17 February 2012. [6] The applicant is 17 years old now. He will turn 18 in November. There was an application made before the Childrens Court Magistrate under section 276B of the Youth Justice Act 1992 because the applicant's period of detention would not expire until after he turned 18. The Magistrate declined to make a transfer order so the applicant will serve his sentence in a juvenile detention centre. -- 3 of 8 -- 4 [7] The applicant has applied for a review of the sentences of 12 months detention imposed by the Childrens Court Magistrate. There is no challenge to the other orders and sentences. [8] The applicant submits that the Childrens Court Magistrate made a factual error with respect to the date of the offences dealt with in the Childrens Court of Queensland on 18 March 2011. It is submitted that his Honour wrongly stated that the offences occurred on 25 March 2010, prior to the offences before the Childrens Court Magistrate. This was in fact erroneous because those offences were committed on 23 May 2010 whereas the present burglary offences were committed on 16, 18 and 19 May 2010. [9] However, I note that neither party has listened to the recording of the proceedings before the Childrens Court Magistrate. All parties have been content to proceed upon the transcript. It is my experience that from time to time the transcripts contain errors. So it would be prudent, in my view, where errors are asserted that the parties take the trouble to actually listen to the recording itself. [10] However, in the context of the Magistrate's remarks it seems reasonably possible that the Magistrate did indeed make the error that is suggested. The Magistrate said, "It has not been lost to me that you did receive that period of 12 months on the 18th of March 2011 for offences prior to these dates and that was the 25th of March, and I note what Mr Stainton says, the entering the dwelling where those two persons were assaulted, and there was assault occasioning bodily harm, are very serious in themselves, but I am sorry I am not with him in so far as that these matters would have been dealt with at the same time that you may have received nothing further." -- 4 of 8 -- 5 [11] It is also contended that the Childrens Court Magistrate failed to apply the totality principle of sentencing to be found in the judgment of the High Court in Mill v. The Queen (1988) 166 CLR 59. It was also submitted that the sentencing Court is required by section 150(1)(i) to have regard to a sentence imposed on a child that has not been completed. It was also submitted that the Childrens Court Magistrate failed to explain the sentence to the applicant as required by section 158 of the Youth Justice Act 1992. [12] As to the factual error, I have already set out the Magistrate's remarks. As I have mentioned, neither party has listened to the recording itself but I will proceed on the footing that there was indeed an error. The Magistrate was provided with the correct date of the offences dealt with in the Childrens Court of Queensland which, as I said, was 23 May 2010. [13] A factual error of itself does not necessitate resentencing an appellant: see R v. KAC [2010] QCA 39 at paragraphs 17 to 18. In the present case the factual error is of no significance. The recitation of facts by the police prosecutor show that the applicant was spoken to by the police on 26 April 2010. He was evidently released on bail and he continued offending. Moreover, it seems that his first appearance in the Childrens Court was on 17 May 2010, so the offences dealt with in the Childrens Court of Queensland occurred only a short time after that. [14] As I have said, in my view, if the Magistrate did make the factual error suggested it is of no consequence in the circumstances. [15] As to the totality principle, this requires that the sentence imposed properly reflects the overall criminality. In R v. Nuttall ex parte Attorney-General [2011] QCA 120 the Court discussed the totality principle at paragraphs 75 and -- 5 of 8 -- 6 76. Muir JA said at paragraph 76, "Counsel for the appellant pointed to the observation of McMurdo P in R v. Daswani [2005] QCA 167 at para 12 that: 'Whether sentences are imposed concurrently or cumulatively, the primary consideration is that the effective punishment imposed adequately reflects the seriousness of the criminal conduct. It is not the law that if one crime is committed another crime of the same sort can be committed with little or no increase in punishment.'" [16] In my view the Childrens Court Magistrate had appropriate regard to the totality principle of sentencing. I would reject the argument for the applicant that the Magistrate failed to have proper regard to that principle. [17] As to the failure to explain the sentence it should be borne in mind that the applicant was already serving a 12 month sentence of detention of which he was required to serve 70 per cent. The Childrens Court Magistrate's reasons must be seen in that context. [18] It was not suggested by the experienced solicitor who appeared before the Childrens Court Magistrate that there was any inadequacy in that regard. Moreover the Court is entitled under section 158(2) to direct that an appropriate person explain the purpose and effect of the order and the consequences of failing to comply with it to the child. [19] Although there was no significant error in the proceedings before the Childrens Court Magistrate I am of the view that there has been an important change in circumstances which justifies a review of the sentences of 12 months detention. That is that, whereas the applicant previously was unwilling to comply with community based orders he has now reflected on that and would be willing to comply with a probation order. -- 6 of 8 -- 7 [20] I think that that is an important development and for that reason I have decided that in respect of each of the charges of burglary and committing an indictable offence the applicant should be afforded the opportunity of serving a period of 12 months probation which is the maximum period available to the Childrens Court Magistrate. However, such orders cannot be made without the consent of the offender. [21] I will now read out the conditions of the probation order to the applicant and then ascertain whether or not he consents to a 12 months probation order. These would be the conditions of probation: 1. You must report in person to the Chief Executive within one business day after you're released from detention; 2. You must abstain from violation of the law; 3. You must satisfactorily attend programs as directed by the Chief Executive; 4. You must comply with every reasonable direction of the Chief Executive; 5. You must report and receive visits as directed by the Chief Executive; 6. You or a parent must notify the Chief Executive within two business days of any change of address, employment or school; and 7. You must not leave or stay out of Queensland during the probation period without the prior approval of the Chief Executive. [22] The purpose of the probation order is that you will be supervised in the community following your release from detention. The 12 month period of probation will commence today. If you breach any of the conditions of probation you can be punished for that and you can be resentenced. Also, the order can be amended or revoked on application by you or the Chief Executive or the Director of Public Prosecutions. -- 7 of 8 -- 8 AJS, do you understand the conditions of probation? CHILD: Yes. HIS HONOUR: Do you consent to a probation order for 12 months on those conditions? CHILD: Yes. HIS HONOUR: All right. I therefore make the following orders: 1. I set aside the sentences of 12 months detention imposed by the Childrens Court at Toowoomba on 9 June 2011 in respect of five charges of burglary and committing an indictable offence; 2. Instead, I order that in respect of each of those charges that the applicant be released under the supervision of the Chief Executive for 12 months and he must comply with the requirements set out in section 193 of the Youth Justice Act and report to the Chief Executive within one business day of his release from detention. Convictions are not recorded; and 3. Otherwise confirm the orders made by the Childrens Court at Toowoomba on 9 June 2011. -- 8 of 8 --