CHILDRENS COURT OF QUEENSLAND

CITATION:	JSK v Office of the Director of Public Prosecutions (Qld)
[2023] QChC 12	
PARTIES:	JSK
(applicant)
v
OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS (QLD)
(respondent)	
FILE NO:	219/2023	
DIVISION:	Childrens Court of Queensland	
PROCEEDING:	Sentence Review	
ORIGINATING COURT:	Childrens Court	
DELIVERED ON:	4 August 2023	
DELIVERED AT:	Brisbane	
HEARING DATE:	31 July 2023	
JUDGE:	Richards P	
ORDER:	The application is granted. The sentence is set aside and the child is ordered to participate in a restorative justice process pursuant to s175 of the Youth Justice Act 1992 (Qld).	
CATCHWORDS:	CRIMINAL LAW – SENTENCE – APPEAL AGAINST
SENTENCE – where the child applicant was guilty of assault occasioning bodily harm whilst in company and sentenced to nine months probation – where the child applicant had no previous convictions – where the sentencing magistrate did not explain the conditions of a probation order - whether the sentencing magistrate meaningfully considered the restorative justice process when sentencing the child	
LEGISLATION:	Youth Justice Act 1992 (Qld) s 194, s 175	
CASES:	R v CCO [2020] QCA 231	
COUNSEL:	M Lyons for the applicant M Hickey for the respondent	
SOLICITORS:	Legal Aid Queensland for the applicant
Office of the Director of Public Prosecutions for the respondent	

Introduction

At about 4.18pm on 6 February 2023, there was a group of male and female juveniles on the outside area of the food court at the Sunshine Coast Plaza. One of the females approached another and started pushing her and the complainant in this matter stepped between them to prevent the altercation. The applicant child then ran into the group, pushing other people out of his way and he launched at the complainant and attempted to strike him around the head with his elbow. The complainant tried to walk away from the applicant child however he followed him and punched him in the face and they continued to throw punches. A scuffle occurred with further punches being thrown. The applicant child also kneed the complainant a number of times in the stomach and groin area. He was then pushed back against a wall. The applicant child’s friends pulled him away and he walked off. The complainant sustained a small cut on his nose, swelling to his face and hand and a bruise on his neck.

As a result of this offence, the applicant child was charged with assault occasioning bodily harm whilst in company. He pleaded guilty on 5 April 2023 and was sentenced to nine months probation.

The applicant child had no previous convictions. He pleaded on the basis that he acted excessively in the circumstances. The offending was serious however there was an element of a misunderstanding of the nature of the actions of the complainant. The applicant child did not see the initial approach of his friend towards the other female. When he turned around he saw the complainant pushing his co-accused, thought she was being assaulted and therefore became involved in the fight. He accepts that he took the matter too far. When he was arrested he spent a number of hours in the watchhouse.

He was 15 at the time of the offending. He entered an early plea of guilty. He lives at home with his mother and sister and was at the time of the offence attending [redacted] school. As a result of this offending, his enrolment was cancelled and he had difficulty finding alternative methods of education although is now attending [redacted] Flexi School five days a week. He was also grounded for two months and his phone was taken off him for two weeks.

It is submitted on behalf of the applicant that the Magistrate failed to meaningfully consider the restorative justice process when sentencing the child. The prosecutor submitted that whilst his Honour had to consider restorative justice that a probation order was more appropriate given the injuries involved, the accompanying nature of the assault and prevalence of the offending. Neither Youth Justice nor the defence provided information to the Magistrate on the applicant’s attitude towards restorative justice nor what type of programmes could be put around the restorative justice order.

The Magistrate was referred to a case of The Queen v JM [2013] QChC 11. That was a case of a child who had a minor criminal history and was sentenced in relation to a charge of assault occasioning bodily harm in company. On that occasion, the assault involved deliberately setting up the complainant by luring to him to a remote area at night pretending to be a female. When he entered into the prearranged carpark area he was approached by two male persons and punched causing him to fall to the ground. He was then punched and kicked, his chest was stomped on, and he became unconscious. He was taken to hospital after being rescued by two passers-by and treated for injuries including bruising, abrasions, scratches to the body, face and head. That child was slightly older, 16 years at time of sentence and he was placed on 12 months probation.

The Magistrate, in imposing the order, did not explain the conditions order to the child or ask the child if he was willing to comply an order. Section 194 of the Youth Justice Act provides:
“A court may make a probation order against a child only if the child indicates willingness to comply with the order.”

In this sentence, the child was not asked if he was willing to comply with the order. Further, there was no time period set for the child to report in person to the Chief Executive. At the end of sentencing the child the Magistrate simply said:
“It’s a nine month probation order. Conviction is not recorded. RJ considered. 150 principles considered.”1
It is hard to see how restorative justice was properly considered when the Magistrate was not told whether the victim was willing to participate, whether the child was willing participate or whether the child was suitable to participate in restorative

1	Exhibit MAL-5, page 6 ll 38-40.

justice. Simply saying “RJ considered” does not show a consideration of that provision of the Act. Furthermore, it is hard to see what benefit the child could have received from probation that was over and above the benefit he would receive from participating in restorative justice. As was noted by the Court of Appeal in R v CCO [2020] QCA 231, most of the features which would benefit a child such as this in probation are also available through the restorative justice process. At paragraphs
to [18] of the judgment it was noted:

“[16] The only difference in the sections’ requirements is that, on the one hand, s 192B requires the child to participate in a restorative justice process as directed and to perform his or her obligations under a restorative justice agreement made in consequence of that participation and, on the other hand, s 193 requires that the child must satisfactorily attend programmes as directed.
A child’s participation in a restorative justice process, as required by a restorative justice order, involves attending a conference, which sch 4 Youth Justice Act defines as meaning a conference under pt 3 div 2 of the Act. The object of that division, pursuant to s 33, is to allow the defendant child and other concerned persons to consider or deal with the offence “in a way that benefits all concerned”. Such a conference is to involve a degree of victim participation, even if only representatively, for example by a representative of an organisation advocating on behalf of victims of crime – see s 35(1)(b)(iii) (the complainant’s reticence to attend such a conference in this case would therefore not be a disqualifying obstacle). The conference is directed towards making a conference agreement, per s 35(3), in which the child undertakes to address the harm caused by the child committing the offence, per s 36(1)(b). Such an agreement might potentially include an agreement to attend a programme of a kind which a child could potentially also be directed to attend under a probation order.
In the present case the offending, while serious, was an isolated instance of immature recklessness. There was obvious merit in the child being forced to meaningfully confront the grave consequences of his recklessness via the restorative justice process. It is not apparent how a probation order was additionally apt to the circumstances. The applicant child was a first offender with good support. The offending had no connection with some broader issue, such as drug abuse, a psychological problem or a drift into repetitive offending, of the kind which often prompts the making of a probation order on sentence.”

Here the child had acted without thought in a serious manner and overacted to a significant degree, however, there is no suggestion that this was part of an ongoing pattern of behaviour or that he had other issues that needed long term supervision. The offending clearly involved immaturity and impulsivity and a restorative justice process would provide an environment for the child to express his remorse and confront the consequences of his actions.

It is conceded by the Crown in all of the circumstances that the sentence was manifestly excessive and that a restorative justice process was appropriate. The only question is whether this should be a diversionary restorative justice process or a sentence under s 175. Given that this is serious offending committed in company in a public place it is more appropriate for the order to be made under s175 of the Act.

ORDER

The application is granted. The sentence is set aside and the child is ordered to participate in a restorative justice process pursuant to s175 of the Youth Justice Act 1992 (Qld).