CHILDRENS COURT OF QUEENSLAND

CITATION:	PK v Office of the Director of Public Prosecutions (Qld)
[2023] QChC 14	
PARTIES:	PK
(applicant)
v
OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS (QLD)
(respondent)	
FILE NO:	219/23	
DIVISION:	Childrens Court of Queensland	
PROCEEDING:	Application for Sentence Review	
ORIGINATING COURT:	Aurukun Childrens Court	
DELIVERED ON:	4 August 2023	
DELIVERED AT:	Brisbane	
HEARING DATE:	31 July 2023	
JUDGE:	Richards P	
ORDER:	The sentence in relation to the two charges of break and enter premises with intent to commit an indictable offence on 18 December 2022 and attempted unlawful use of a motor vehicle are set aside and are referred by way of diversion to restorative justice.	
CATCHWORDS:	CRIMINAL LAW – SENTENCE – APPEAL AGAINST
SENTENCE – where the child applicant pleaded guilty to twelve offences –where the child applicant was 14 years with no criminal history at the time of the offending – where six of the offences were committed on breach of bail – whether the sentencing magistrate placed sufficient weight on the child applicant’s young age, guilty plea, criminal history and co- operation with the administration of justice
LIMITATION OF ACTIONS – EXTENSION OF TIME –
where the application was lodged out of time – whether an extension of time should be granted	
LEGISLATION:	Youth Justice Act 1992 (Qld) s 119, s 164	
CASES:	Queen v PW [2005] QCA 177	
COUNSEL:	N Honnef for the applicant
M Bros-Wilshire for the respondent	

SOLICITORS:	Legal Aid Queensland for the applicant
Office of the Director of Public Prosecutions for the respondent	

Introduction

The applicant child was sentenced on 18 January 2023 in relation to a number of offences. In relation to the offences of unregulated high-risk activity and wilful damage, he was diverted to restorative justice. In relation to the other offences, 20 hours of community service was ordered.

On 18 December 2022 at approximately 5.00 am, he with five to eight others attended an address at Bowenda Drive, Aurukun. They gained entry to the premises by smashing a glass door and destroyed multiple items of furniture in the dwelling. Upon exiting they began pulling CCTV cameras out of the walls surrounding the house as well as damaging floodlights. The group then walked to another unit on the premises, again smashing the door, gaining entry into the property and destroyed multiple items. They then walked to a secure garage, gained access to that garage, smashed the window of a land cruiser in the garage and attempted to unsuccessfully hotwire that car. Approximately an hour later they were seen walking up Kang Kang Road and the child applicant was throwing rocks at CCTV cameras. He climbed onto the roof of the Council building and threw a rock directly at the CCTV camera smashing it.

As a result of that behaviour, he was charged with unregulated high-risk activities, two charges of wilful damage, two charges of enter a dwelling and commit indictable offence and one charge of attempted unlawful use of a motor vehicle.

He was located on 19 December, arrested and released on bail.

On 30 December 2022 shortly after midnight he was at [redacted] Street at an unoccupied house with a number of young people where property was damaged. He was at that stage in breach of curfew. He made admissions that he was in the house with a group of others and they ran off when the police arrived. He was given two flares from a person who had broken into other premises and was aware that they were stolen. When he was arrested on 1 January, he was found to be in possession of a multitool and a shifting spanner and a metal cone piece. The cone piece had been used.

These events resulted in charges of enter premises with intent, receiving tainted property, possession of utensils or pipes for use and possession of implements used in relation to particular offences.

Finally, on 2 January 2023 a group of children entered the Island & Cape Supermarket and took some cigarettes and the child was seen loading cigarettes into bags before stealing them. On 8 January shortly after 9.00 pm a group went to the front door of the Arukun Police Station. They were trying to buy some items from the vending machine, but the front door of the station was locked. They then walked around to the side gate of the station and stole some cartons of soft drink stored on a pallet. This resulted in charges of enter premises and commit an indictable offence by break and enter premises and commit an indictable offence.

The sentence hearing

The applicant child was 14 years old at the time of the offending with no criminal history.

The child had gone into the house but had not damaged any of the property in the houses and was not involved in any of the damage of the car. It was submitted that he had trouble setting appropriate boundaries with his peers and all the offending was done with a group of other boys.

He was assessed as suitable for both restorative justice and community service. The Magistrate dismissed imposing a period of probation given his lack of history and his involvement in the offences.

The community justice group indicated that the child was subject to a long-term child safety order. He had been with foster parents in Aurukun for quite some years until about nine or 10 months ago when he self-placed back to his father’s family. The foster parent’s home was stable, but he was no longer living there. It was indicated that he had aspirations to play professional sport and the justice group indicated that they would encourage him and his family to come to them for help.

In sentencing the child, the learned Magistrate decided that it was appropriate for the child to do some community work. He decided it was appropriate to put something back into the community as well order that the child be diverted to restorative justice.

Extension of time

The appeal is lodged out of time. The child was referred to Legal Aid recently and an appeal was lodged. There is no prejudice shown by the Crown in relation to an extension of time and I am inclined, given that the child is only 14 years of age, to grant the extension of time in relation to this appeal.

Submissions

It was submitted on behalf of the child that the learned Magistrate placed insufficient weight on his young age, his early plea of guilty, his lack of criminal history and his co-operation with the administration of justice. It was submitted on his behalf that the child was regretful and remorseful for his behaviour. He wanted to apologise to the victims of the offences and he understood that associating with his peers led to the offending.

It was submitted that his co-operation with the administration of justice by way of admissions was underplayed at the sentence by his representatives. He made full and frank admissions to all of the offences except for the offences on 18 December and his admissions included identifying himself in a still capture from CCTV footage and explaining his involvement in the offences.

The applicant’s representative relies on the Queen v PW [2005] QCA 177 where Keane JA, as his Honour then was, noted that an unusually high level of cooperation was indicative of real remorse and justified a view that he had shown a determination to control his behaviour. It is true that he made admissions in this case. However, enough of the offending was captured on CCTV footage to identify the applicant child as in the group and therefore the case was nonetheless a strong one.

It is true that the child was without a criminal history. However, it is also true that the child was arrested on 18 December and released on bail with a curfew on 19 December. He then committed further offences on 30 December again, was arrested on 1 January in relation to the offences of the 30 December, and committed further offences on 2 January and 8 January, so his cooperation was tempered by his bail breaches and committing further offences. In those circumstances it is difficult to argue that the minimum period of community service was not within an appropriate sentencing range.

I accept however that there is no logical reason for the diversionary referral to not to include all of the offences were committed on 18 December. Those offences were the first in time, were not committed on bail and in company with others by a child with no criminal history at the time.

The review is allowed to the extent that all of the offences committed on 18 December should be dealt with by way of a diversionary restorative justice referral.

ORDER

The sentence in relation to the two charges of break and enter premises with intent to commit an indictable offence on 18 December 2022 and attempted unlawful use of a motor vehicle are set aside and are referred by way of diversion to restorative justice.