ECH v Commissioner of Queensland Police Service [2012] QChC 1

CHILDRENS COURT OF QUEENSLAND CITATION: ECH v Commissioner of Queensland Police Service [2012] QChC 1 PARTIES: ECH (applicant) v Commissioner of Queensland Police Service (respondent) FILE NO/S: No 329 of 2011 PROCEEDING: Application for Sentence Review ORIGINATING COURT: Childrens Court, Mareeba DELIVERED ON: 9 January 2012 DELIVERED AT: Brisbane HEARING DATE: 9 January 2012 JUDGE: Rafter SC DCJ ORDER: Vary the probation order made by the Children’s Court at Mareeba on 9 September 2011 by: 1. Substituting the period of 3 months for the period of 12 months; 2. Deleting the residential condition (h). CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING JUVENILES – SENTENCE REVIEW – where the applicant pleaded guilty to seven property related offences – where the applicant’s sentence review pursuant to s 118 Youth Justice Act 1992 challenges the order of probation imposed – where the applicant was 12 years old – whether reprimand or good behaviour order more appropriate – whether period of probation should be reduced. Youth Justice Act 1992 (Qld), ss 118, 121 (3) and 122 COUNSEL: C. A. Nelson for the applicant. J. P. Dias for the respondent. SOLICITORS: Legal Aid Queensland for the applicant. Director of Public Prosecutions (Queensland) for the respondent. -- 1 of 5 -- 2 [1] HIS HONOUR: On the 9th of September 2011, in the Mareeba Childrens Court, the applicant pleaded guilty to a total of seven offences. There were two charges of entering premises and stealing having gained entry by a break, two charges of entering premises and stealing, one charge of entering premises with intent to commit an indictable offence, one charge of burglary and commit an indictable offence and one charge of stealing. [2] Convictions were not recorded in respect of any of the offences. In respect of six of the offences, the applicant was placed on 12 months' probation. [3] In respect of the other offence, which was charge 5, namely entering a golf club and stealing alcohol, having gained entry by a break, there was an indefinite referral order for a youth justice conference. [4] On 31 October 2011, the applicant filed an application for sentence review to be heard out of time. On 3 November 2011, leave was granted for the application to be heard out of time. By virtue of section 121(3) Youth Justice Act 1992, the order made on 3 November 2011 had the effect of staying the probation order until the end of the review. Therefore the applicant has served about eight weeks on probation. [5] The applicant was 12 years old at the time of the offences. He was 12 years old when sentenced. He is now 13 years old. He had no prior history. [6] However, he refused to attend the youth justice conference, resulting in the offence at the golf club being returned to Court. He faced that charge and other charges in the Cairns Magistrates Court on 4 January 2012. The other offences dealt with on that date were stealing, committed on the 30th of November 2011, entering -- 2 of 5 -- 3 premises and committing an indictable offence, also committed on the 30th of November 2011, unlawful use of a motor vehicle, committed on the 7th of December 2011, and unlawful use of a motor vehicle committed on the 19th of December 2011. There were also two failures to appear in accordance with bail undertakings, each committed on the 6th of December 2011. [6] In respect of the property-related offences, the applicant was placed on 12 months' probation. In respect of the bail undertaking offences, he was reprimanded. [7] The applicant had an earlier appearance in the Mareeba Childrens Court on 24 October 2011. That appearance related to shoplifting and possession of a knife in a public place. Those offences occurred in mid-September 2011. He was reprimanded in respect of those matters. [8] The circumstances of the offences the subject of the application for sentence review are that the applicant and two juvenile co-offenders entered four cars and stole items such as cigarettes, money, clothing, keys and a toolbox. They also entered a shed at the back of a house and took a scooter. They also stole a baseball bat from Sports North in Mareeba. I have already mentioned the offence at the golf club, which involved the theft of alcohol. [9] Ms Nelson for the applicant submitted that the applicant should have been reprimanded or placed on a good behaviour order. Ms Dias for the Crown concedes that the length of the probation order was excessive and should be reduced to three months. [10] In addition, Ms Nelson submitted that if the probation order remained in place, the residential condition should be deleted. -- 3 of 5 -- 4 [11] The nature of an application for sentence review is outlined in section 122 of the Act. The review must be by way of rehearing on the merits. The Court is to have regard to the record of proceedings before the Childrens Court Magistrate, and any further submissions and evidence by way of affidavit or otherwise. [12] Ms Nelson for the applicant relied in particular on the principles of youth justice, the fact that the applicant had no prior history and the fact that the offences were not serious. She drew attention to the fact that the child's age is a mitigating factor, and that the rehabilitation of a child is greatly assisted by the child's family and opportunities to engage in educational programs and employment. [13] Also, a child who has no apparent family support or opportunities to engage in educational programs and employment should not receive a more severe sentence because of the lack of support or opportunity. It is not necessary for the applicant to demonstrate error on the part of the sentencing Magistrate. [14] Ms Nelson also pointed out that the police gave consideration to cautioning the applicant, but decided not to do so because of his attitude during the police interview. I observe that his negative attitude remained, which is indicated by his unwillingness to engage in the youth justice conference, which the Magistrate specifically told him was designed to illustrate to him the consequences of his offences upon others. It is regrettable that he didn't take part in the youth justice conference, because I consider that it would have been worthwhile. [15] There was no submission before the Magistrate by the applicant's legal representative that he should be reprimanded or placed on a good behaviour order. That, of course, does not preclude such orders being made at this stage. -- 4 of 5 -- 5 [16] The material placed before the Court without objection indicates that since the applicant's appearance in the Mareeba Childrens Court on the 9th of September 2011, he has continued to reoffend. Indeed, the offences dealt with on 24 October 2011 occurred only shortly after his first appearance, and the offences dealt with on the 4th of January 2012 indicate that he has committed offences after the probation order has been made, even though the effect of the order was stayed by reason of the order made in this Court on 3 November 2011. [17] In all the circumstances, I consider that a short period of probation is appropriate. I accept the submission made by Ms Dias for the Crown that the appropriate period in the circumstances, given the applicant's youth and lack of prior history, is three months. [18] I'll therefore make the following order: I vary the probation order made in the Childrens Court at Mareeba on 9 September 2011 by: (1) Substituting the period of three months for the period of 12 months; and (2) Deleting the residential condition (h). -- 5 of 5 --