CHILDRENS COURT OF QUEENSLAND

CITATION:	R v NMQ [2019] QChC 6	
PARTIES:	R
v
NMQ 
(applicant)
	
FILE NO/S:	09/2019	
DIVISION:	Appellate	
PROCEEDING:	Sentence Review	
ORIGINATING COURT:	Childrens Court of Queensland	
DELIVERED ON:	5 April 2019	
DELIVERED AT:	Brisbane 	
HEARING DATE:	7 March 2019	
JUDGE:	President Richards DCJ	
ORDER:	Application for sentence review granted. Sentence of 12 months detention imposed at Mareeba Childrens Court on 21 December 2018 set aside. Sentence relating to breach of probation/community service order is set aside. The child is sentenced to: 
1.	9 months detention for the offences of entering dwelling and committing indictable offence (4 charges)
2.	6 months detention for the offence of entering premises with intent
3.	3 months detention for the offences of trespass (2 charges), possessing dangerous drugs and possessing utensils or pipes that had been used
4.	Breach proved for breach of probation/community service. Order set aside. Resentenced to 3 months detention on all charges
5.	Order that the child be released from detention after serving 50 percent of the time in detention.	
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – SPECIAL CIRCUMSTANCES FOR RELEASE FROM DETENTION – SENTENCE MANIFESTLY EXCESSIVE – where the applicant child plead guilty – where a 12 month detention order was imposed with release after serving 70 percent with no conviction recorded –  where the offences were committed whilst the applicant child was subject to a probation/ community service order and a detention order served by way of conditional release order – where the child demonstrated repeated non-compliance with community based orders –  where the Youth Justice Act stipulates that detention should only be imposed as a last resort and for the shortest appropriate time – whether special circumstances existed  warranting a reduction of time served in detention
	
COUNSEL:	R. Gill for the applicant child 
T. L. Little for the respondent	
SOLICITORS:

	Legal Aid Queensland for the applicant
Office of the Director of Public Prosecutions for the respondent	
[1]	The applicant child was charged with nine offences: four of entering a dwelling and committing an indictable offence, one of entering a premises with intent, two trespass, one possession of dangerous drugs, one possession of utensils or pipes that had been used.  All offences occurred on 25 October 2018.  At the time of the offending he was on a combined probation/ community service order for offences of enter premises of commit an indictable offence by break, five offences of fraud and one of stealing which occurred on 7 June and 14 June 2018. He was also subject to a conditional release order.  
[2]	He pleaded guilty on 21 December 2018 and was sentenced to 12 months detention with release after serving 70 per cent on the substantive offences, the combined probation/ community service order was revoked and he was resentenced to 12 months detention order with release after serving 70 per cent, and the conditional release order was revoked and he was ordered to serve the nine month detention order.  All periods of detention were to be served concurrently. No conviction was recorded.
FACTS ON SENTENCE
[3]	In relation to the offences of 25 October 2018 the child, in the early hours of the morning, went from house to house in Lavender Crescent at Atherton looking to get into houses and steal. He succeeded at some and at others was deterred by security measures.  He entered 5 Lavender Crescent after four louvres were removed and several car keys and a garage remote control were taken.  The child made admissions and gave police information regarding the location of a key.  At another residence he entered a backdoor and walked into a bedroom and took a mobile phone.  He again made admissions to police and the phone was recovered.  At another premises a vehicle was entered and the glovebox searched. He was the lookout and nothing was taken. He went into a house through a rear sliding door and took $85.00.   At two residences he wandered into the yard but went no further.  At Cooper Street a rear door of the house was unlocked and a mobile phone taken.  The phone was returned.  When he was located he had two bongs and one gram of cannabis in his possession.  He was lookout on three occasions.
[4]	The child was fourteen years of age at the time of the offending and at the time of sentence.  He had a disturbing criminal history for one so young.  He has had three probation orders, three community service orders, two graffiti removal orders, one restorative justice order and two conditional release orders.  His history consists predominantly of crimes against property, fraud and stealing.
[5]	He was born in Atherton.  His parents separated when he was eight months old and he resided with his mother thereafter.  He was three years old when his father passed away.  In 2004 there were a number of child concern reports about him including domestic violence within the home and concerns for his physical and emotional safety  and significant potential for direct harm through violence perpetrated by his mother.  It was arranged that he would live with his aunty, Sandra Smith. He was there for four weeks and then he was placed back with his mother.  This was unsuccessful and he was placed in his aunt’s permanent care.  The aunty has had significant challenges in disciplining and controlling him.
[6]	At the time of sentencing the child had 57 days in pre-sentence custody.  At the hearing of the sentence the representative from the Department of Youth Justice Services indicated that his compliance with previous orders was very poor.  Various agencies had attempted to engage him in community service but he could either not be located or was refusing to participate in activities.  His aunty was in contact with Youth Justice on a regular basis to express her concerns relating to his non-compliance not only with household rules but with the conditions of his orders.  He completed 1 out of 70 hours of community service order and whilst on community service activities his behaviour has been disruptive and he has failed to follow the directions of youth workers.  He was described as apathetic and dismissive despite attempts to provide support and encouragement to complete his orders.  In summary the child has made it impossible for the department to recommend community based orders or for the court to impose community based orders given his level of non-compliance and reoffending.
SUBMISSIONS
[7]	The application for sentence review is made on the basis that the order imposed was excessive in respect of the length of the detention orders as well as the release date which was set.  This is principally based on a submission that the magistrate did not place sufficient weight on the child’s age, his cooperation with police and the principle that detention should only be imposed for the shortest appropriate period.
[8]	This argument can be broken into two separate phases of the sentencing.  Firstly, in relation to the substantive offences, it is submitted that regard needs to be had to the age of the child at the time, his extensive cooperation with the police, the fact that he aided in the recovery and return of much of the victims’ property, the fact that the offending was over one night and essentially involved wandering into the houses of one street in Atherton.
[9]	It was conceded that whilst detention was within range, the offending itself did not represent serious examples of the type of offences for which he was charged.  The magistrate rightfully took into account his previous convictions and his attitude to community based orders in imposing the sentence however, the sentence, it was submitted, indicates that he was overwhelmed by those two factors.
[10]	The crown on the other hand submits that the applicant has demonstrated a flagrant disregard for previous community based orders by committing further offences whilst subject to the orders.  His performance was particularly poor despite being provided with extensive assistance.  It is submitted that the learned magistrate took into account the special considerations that are set out in s 150(2) of the Youth Justice Act 1992 (particularly that a non-custodial order is better than a detention order, and that it should only be imposed as a last resort for the shortest appropriate period), and that he appropriately exercised his discretion in imposing a 12 month detention order with release after 70 per cent.  He did not find any special circumstances to reduce the period of detention to be served.
[11]	The magistrate in sentencing the applicant child stated:
“Your attitude regrettably has been very very poor, your non-compliance is so severe that I believe today that I have absolutely no alternative but to consider further detention orders for you.” 
He said further:
“You have entered a plea of guilty to the charges and of course I take that into account.  I have taken into account the nature of the offence, your criminal history, the fact that you should be held accountable and accept responsibility for your offending behaviour.  I notice the pre-sentence report in fact also tells me that you have shown limited remorse and insight into your offending in regard to harm caused to the victims of your crimes, and that’s what they are.” 
[12]	It was submitted on behalf of the crown that the magistrate considered whether there were special circumstances that warranted an order for release at something less than 70% but he did not find any such circumstances.
[13]	If the magistrate did consider whether there were no special circumstances, there is nothing in the transcript that demonstrates his reasons for so deciding. The verdict and judgment record notes as follows:
“Detention – conviction not recorded.  Order that the offender be detained for a period of 12 months on each offence.  Detention orders to be served concurrently as there were special circumstances in the child’s case it is ordered that the child be released from custody after serving 70 per cent of the detention order.”
I assume that this is a mistaken entry, however, it is the only mention of special circumstances in the record.
DISCUSSION
[14]	There is no doubt that the child has a serious criminal history for like offending.  He does not get the benefit of being a youthful first offender and he offended whilst he was on court orders which is clearly a significant circumstance of aggravation.  However, the comments in Veen (No.2) are pertinent in this case:
“The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences.”
[15]	In relation to the primary offences the child was the lookout on occasions, one of the entering premises involved a car and nothing was taken and two of the offences involved simply going into a yard. The child was sentenced to the maximum penalty for the latter 2 offences. In relation to the drug offences, it is unlikely that an adult offender would have been sentenced to 12 months custody for possession of a small amount of cannabis and the equipment to smoke it.  The child made full admissions and most of the property was recovered.  There was no property damaged. In these circumstances, even in light of his previous history, detention was a significant punishment for a fourteen year old boy.
[16]	In relation to the offences for which he was on probation, that offending was fairly minor.  He opened the door of an unlocked car in a driveway and took items from a wallet including $7.00 and two debits cards.  He used the debit cards on four occasions but then returned the cards to the next door neighbour’s verandah.
[17]	 Section 245(1)(d) of the Youth Justice Act 1992 outlines the court’s power on breach of community based order other than a conditional release order to:
“(ii) Discharge the order and resentence the child for the offence for which the order was made as if the child had just been found guilty before the court of that offence.”
[18]	Given the opportunistic nature of the offending and the return of the debit cards to the neighbours unit, it is difficult to see how a sentence of 12 months detention was appropriate for that offending.  The learned magistrate has imposed the same sentence for all the offences before him, however, in imposing a sentence of 12 months detention for each of the offences without declaring that it was a global sentence, he did not properly reflect the criminality of all of the offences. 
[19]	The learned magistrate also took into account the fact that the child was in breach of a conditional release order, he found that breach proved and imposed the whole of the conditional release order.  The order had been in place for 23 days.  It was suspended once he was remanded in custody on 25 October 2018.  His general compliance with the court orders was described as minimal although the learned magistrate did not indicate in his sentence that he considered that the order had not been complied with at all.  He did not take into account any of the period that he had served in the community and imposed the whole of the nine months.  Given that his compliance was said to be minimal that was within the sentencing discretion however, it nonetheless stands to be noted that he did not reduce the period of detention at all although almost a third of the conditional release order had been passed in the community.  
SPECIAL CIRCUMSTANCES
[20]	During the hearing of this appeal I asked for further submissions on what constituted special circumstances in relation to release on detention.  
[21]	There is little judicial consideration on the subject, however, the importance The relevant principles were discussed in R v SCU  Sofronoff P noted:
“The fundamental proposition contained in the Act is of course that a child should be detained in custody for an offence only as a last resort and only for the least time that can be justified.  The Act states as its first youth justice principle that the community should be protected from offences.  Section 151(d) requires that the court have regard to the nature and seriousness of the offence.  Otherwise the Act emphasises considerations that, when they exist, would tend to be factors in mitigation of a sentence.  This emphasis on the child’s future at the expense of aggravating factors is understandable because judges need little reminder to take into account aggravating factors.  Too often they are very plain and painful to see.  Yet in the sentencing of a child it is marginal that a sentencing judge not permit aggravating circumstances to overshadow considerations that are peculiar to the situations of children.  One of these considerations is the short life history to which a judge can have regard in assessing likely reoffending and, by contrast, the large and unknown future that awaits children […]

The “so many different possibilities … [that] might happen in the future” of a child are the reason why the Act makes it an imperative for a court to have regard to considerations which merely may have a beneficial effect upon a young offender. The statutory factors assume that, generally, youthful offending can be curtailed as a child matures. They assume that, generally, the betterment of a child’s social attitudes will result from the embracing of the offending child by his or her parents, brothers and sisters and the community. The Act assumes that maturation will generally have a positive effect upon character.”
[22]	SCU demonstrates that the considerations governing the sentencing of children focus squarely on a consideration that young minds can develop and mature in ways that can be responsive to programs and assistance and therefore rehabilitation should be at the forefront of any sentence. 
[23]	In R v S   the court noted that youth, difficult background and early pleas of guilty are factors to be considered in deciding special circumstances.  In R v KAL it was accepted that these were factors, however, the court noted that the presence of these factors didn’t necessarily mean that the release had to be reduced from 70 percent.  R v SCR demonstrates that the personal circumstances of the child and early pleas can result in special circumstances even where very serious offending occurs. The offences in SCR were committed over a 13 month period and he committed a substantial amount of offences.  He pleaded guilty to 54 offences and a further 65 offences were taken into account.  There was significant property damage and assaults on officers within the detention facility.  He broke into more than 22 homes and 17 vehicles were stolen.  He had an extensive criminal history and had spent the majority of his teenage years incarcerated.  He had previously been sentenced on ten different occasions in relation to about 146 offences.  In that case special circumstances were found to exist to reduce the detention from 70 per cent to 60 per cent.  The special circumstances in that case were found to be that he had been institutionalised at a very young age and his cooperation with law enforcement. 
[24]	In this case we have a fourteen year old boy who had never been sentenced to a period of actual detention before.  He had cooperated extensively with the police, made full admissions and he helped the police recover property.  The offences themselves were at the lower end of offending and there is no doubt, although he was a child who had much to learn about obedience to court orders, maturity was a factor in his behaviour. He pleaded guilty of all of the offences. 
[25]	The magistrate did not ask for any submissions on whether there were special circumstances in this case, nor did he give any reasons for deciding that they did not exist in this case. In my view for the reasons above, it is a case where special circumstances exist. 
CONCLUSION
[26]	Given the age of the child and the nature of the offending the sentence of 12 months detention was excessive. In relation to the offences of 25 October the sentence of 12 months detention should be set aside and the following orders imposed:
Enter dwelling and commit indictable offence ( 4 charges) – 9 months detention
Enter premises with intent – 6 months detention
Trespass ( 2 charges), possessing dangerous drugs, possessing utensils or pipes that had been used – 3 months detention
In relation to the breach of probation/ community service – the sentence is set aside and the following orders imposed -  breach proved, orders set aside, in relation to each of the offences 3 months detention
Order that the child be released from detention after serving 50 percent of the time in detention.