CHILDRENS COURT OF QUEENSLAND

CITATION:	R v GWD [2019] QChC 23	
PARTIES:	R
v
GWD  
(Applicant)	
FILE NO/S:	165/2019	
DIVISION:	Appellate	
PROCEEDING:	Sentence review	
ORIGINATING COURT:	Proserpine Children’s Court	
DELIVERED ON:	27 May 2019 (delivered ex tempore)	
DELIVERED AT:	Brisbane Childrens Court	
HEARING DATE:	27 May 2019	
JUDGE:	Dearden DCJ	
ORDER:	(1)	Application for sentence review granted.
(2)	Set aside the sentence imposed by the learned acting Children’s Court magistrate at Proserpine Children’s Court on 25 March 2019 in respect of the following charges: 
a.	Dangerous operation of a motor vehicle (21/1/2019);
b.	Unlawful use of a motor vehicle (21/1/2019); and
c.	Stealing (25/1/2019).
(3)	Pursuant to Youth Justice Act 1992 (Qld) s 162(1), s 163(1), and s 164, without making a sentence order, order that the applicant be referred to a restorative justice process in respect of the charges the subject of the application for sentence review.	
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES - application for sentence review – where the applicant had previously been sentenced to six months’ probation with no conviction recorded for three offences – where the learned sentencing magistrate failed to give any consideration to a restorative justice referral – where circumstances of aggravation were raised in sentence to which the applicant did not plead – whether six months’ probation was excessive in the circumstances   	
LEGISLATION:	Criminal Code Act 1899 (Qld) Sch 1, s 328A(1), s 398, s 408A(1)(a)

Youth Justice Act 1992 (Qld) s 118, s 122(1), s 150, s 162(1), s 163, s 164 
	
CASES:	MLN v The Queen [2018] QChC 32
R v De Simoni (1981) 147 CLR 383
R v PBD [2019] QCA 59	
COUNSEL:	D Law (sol) for the applicant
S Sherrie (sol) for the respondent	
SOLICITORS:	Legal Aid Queensland for the applicant
Office of the Director of Public Prosecutions for the respondent	
[1]	HIS HONOUR:   This is an application for sentence review by GWD, in respect of the following offences:  
(1)	dangerous operation of a motor vehicle; 
(2)	unlawful use of a motor vehicle; and
(3)	stealing.  
[2]	At the same time, the applicant was also dealt with for the following charges:  
(1)	failure to comply with conditions of a class-C license; and 
(2)	fail to display L-plates. 
[3]	The sentence took place at the Proserpine Childrens Court before an acting learned magistrate on 25 March 2019, and the child was sentenced to six months’ probation with no conviction recorded.  The application for sentence review was filed on 8 April 2019.
[4]	The child was born on 21 January 2002, was 17 years old at the time of the offences and at sentence, and (critically) had no criminal history whatsoever.
[5]	The six month probation order was imposed in respect of the indictable offences the subject of the sentence review, and in respect of the two traffic matters, the applicant was disqualified from holding or obtaining a driver’s licence for six months, reprimanded but not otherwise dealt with, and that matter is not the subject of this review. 

Circumstances of the Offences

(1)	 Stealing (25/1/2019)
[6]	The child along with some other young people entered a room at Magnums Backpacker Hostel in Proserpine.  He went through some luggage and stole $300.

(2)	Unlawful use of a motor vehicle;  dangerous driving;  failing to display L-plates;  failing to comply with condition of a class-C licence (21/1/2019) 
[7]	The applicant drove a car owned by his friend’s mother without permission, and drove in a dangerous manner.  His friend, who was allowed to drive the car, was in the car at the time.  It is alleged that when he was driving, he reached speeds of approximately 140 kilometres per hour.  There were four other people in the vehicle at the time including his sister.

The Law – Sentence Reviews:  the provisions of Youth Justice Act 1992 (Qld) (‘YJA’) 
[8]	Section 118 of the YJA provides that a Childrens Court judge may review the sentence order of a Childrens Court Magistrate.  This review is to be conducted as a re-hearing on the merits, should be conducted expeditiously, and with as little formality as possible.  In deciding the review, the court can have regard to the record of the Childrens Court proceeding, as well as any further submissions and evidence by way of affidavit or otherwise.

The Law – Sentencing Children 
[9]	In imposing a sentence, a Childrens Court must take into account the sentencing principles contained within YJA s 150.

Grounds of Review
[10]	The applicant submits that the sentence order imposed was excessive in the circumstances, relying on two particulars:  –

(1)	It is submitted that the magistrate did not place sufficient weight on the plea of guilty, the applicant’s lack of criminal history and the requirement to consider referring the matter to a restorative justice conference.
(2)	No objection was raised to the prosecutor outlining aggravating circumstances which were not charged, and to which the applicant child did not enter a plea of guilty.

Discussion
[11]	The applicant submits (and I accept) that:
The conduct of the matter was unusual and proceeded in a manner which did not allow the applicant child’s lawyer to be properly instructed.  
[12]	With respect, that submission understates the concerning way in which this sentence process went off the rails.  
[13]	As appears from the transcript, the matter had been adjourned from a previous appearance, the applicant’s then solicitor (not the solicitor on this sentence review before me), had made a submission to the prosecution which apparently had been rejected, and was on the phone conducting the plea from some other place (unclear from the transcript), but clearly without any written instructions for a plea of guilty and (inferentially) not in a position to have, prior to the sentence process proceeding, identified with prosecution the basis on which the plea was to proceed.  
[14]	This was, with the greatest of respect, a most unsatisfactory process, and should not have been permitted either by the defence solicitor, nor the learned acting sentencing magistrate.  Although I accept there is often pressure for sentences to proceed promptly, and it is clear that the applicant was anxious to have the sentence go forward, those considerations should not overwhelm both appropriate and prudent practice by defence lawyers, prosecutors and magistrates.
[15]	It is further submitted by the applicant that it is difficult to determine from the transcript, the basis on which the pleas were accepted, which in my view, again, is an apt comment, given the difficulties that I have just outlined and which are apparent from the transcript.
[16]	In particular, it is submitted that there were two significant errors during the sentencing proceedings:  –
(1)	The learned acting sentencing magistrate did not give appropriate consideration [in fact, gave no consideration] to referring the applicant child to a restorative justice process as required by s 162 of the Youth Justice Act; and
(2)	The applicant child entered his plea of guilty to a charge of dangerous operation of a motor vehicle simpliciter (with no objection taken by the prosecutor).  Following that, there was no objection by the applicant child’s solicitor to the prosecutor raising facts at the sentence which amounted to circumstances of aggravation which had not been charged and, relevantly, to which the child had not entered a plea.
[17]	Although error does not need to be determined before a reviewing court can interfere in the magistrate’s decision, it is quite clear in this case that the sentencing proceedings proceeded on an erroneous basis (as much is appropriately and frankly conceded by the respondent) and the sentencing process should begin afresh.
[18]	In respect of the failure to consider a referral to a restorative justice process, I refer to my discussion on this issue in respect of the mandatory requirements of YJA s 162(1) in MLN v The Queen [2018] QChC 32, [7] – [17].  In that case, a restorative justice referral was specifically raised by defence counsel and addressed by the Youth Justice representative.  In this sentence reviewed before me now, neither the defence solicitor, the prosecutor nor the Youth Justice representative raised the issue of the mandatory consideration of a restorative justice referral, and the learned acting sentencing magistrate appears, in that context, neither to have been alerted to, nor aware of the obligation of the court to consider a restorative justice referral.  The views I expressed in that decision have now been endorsed by the Court of Appeal, which notes the mandatory provisions of YJA s 162(1) in R v PBD [2019] QCA 59, [29] per Sofronoff P.  
[19]	As previously identified, the review, in the light of the sentencing error in particular, is to be conducted as a rehearing on the merits, with the benefit of the further information provided by Mr Law in his affidavit sworn 23 May 2019.
[20]	It is apparent that the applicant was 17 at the time of his sentence, had no criminal history, attends [school details redacted] and is currently in year 12.
[21]	The applicant plays a variety of sports [identifying details redacted] in local teams.  
[22]	The applicant has been identified as an emerging leader at his school [identifying details redacted], where he has now achieved one of the highest awards that his school offers.  The applicant plans to attend university next year and to study to be a physiotherapist.
[23]	The applicant instructs his solicitors that his mother was extremely upset when she discovered his offending, and as a result he was not allowed to leave the house except to attend sport training and school.  He was not allowed to have friends at the house, his phone privileges were removed, and he was required to undertake additional chores.
[24]	The applicant is willing to attend a restorative justice conference, and I see no impediment on the matter before me (cognisant of the issues raised by the respondent at Exhibit 3, [5] and [6]), to a restorative justice referral.
[25]	It is clear then, that the sentencing proceedings fell into error, the applicant child should be sentenced afresh, and in the context of the matters that I’ve outlined above and the matters that were placed before the learned acting sentencing magistrate at the time of sentence, this is a young person with excellent prospects of rehabilitation, with a clear goal to further a career in a profession in which a criminal history will undoubtedly cause significant difficulties, and accordingly, should be referred to a restorative justice conference pursuant to YJA s 163.
[26]	I make the following orders:  

(1)	Application for sentence review granted.
(2)	Set aside the sentence imposed by the learned acting Children’s Court magistrate at Proserpine Children’s Court on 25 March 2019 in respect of the following charges: 
a.	Dangerous operation of a motor vehicle (21/1/2019);
b.	Unlawful use of a motor vehicle (21/1/2019); and
c.	Stealing (25/1/2019).
(3)	Pursuant to YJA s 162(1), s 163(1), s 164 – without making a sentence order, order that the applicant be referred to a restorative justice process in respect of the charges the subject of the application for sentence review.