CHILDRENS COURT OF QUEENSLAND

CITATION:	R v WAL  [2020] QChC 33	
PARTIES:	R

v

WAL
(the Applicant)
	
FILE NO:	322 of 2020
	
DIVISION:	Childrens Court	
PROCEEDING:	Sentence Review	
ORIGINATING COURT:
	Childrens Court of Queensland	
DELIVERED ON:	13 November 2020	
DELIVERED AT:	Brisbane	
HEARING DATE:	11 November 2020	
JUDGE:	Richards P	
ORDER:	1.	Appeal allowed.
2.	The sentence is set aside.
3.	The Chief Executive refer the offence for a restorative justice process pursuant to s 163 and s 164 of the Youth Justice Act 1992 (Qld).	
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVINILES – where the child was sentenced to three offences – where the child was 13 years old at the time of offending and at the time of sentence – where the child had no criminal history – where the child has had a curfew imposed by her mother since the offending and has removed herself from the co-offenders – where the child was sentenced to a restorative justice order – where it was assumed the restorative justice order was made pursuant to s 175 of the Youth Justice Act 1992 (Qld) - whether the Magistrate adequately considered a pre-sentence referral pursuant to s 162 of the Youth Justice Act 1992 (Qld) – whether the matter should be referred to the Chief Executive pursuant to s 163 and s 164 of the Youth Justice Act 1992 (Qld) instead of sentencing the child	
LEGISLATION:	ss 162, 163, 164, 175 Youth Justice Act 1992 (Qld)	
COUNSEL:	Ms L Fabian for the applicant

C Whelan for the respondent	
SOLICITORS:	Legal Aid for the Applicant

Office of the Director of Public Prosecutions for the Respondent	
Introduction
[1]	On 5 August 2020, the applicant child was sentenced in relation to a charge of enter a premises and commit an indictable offence by break on 29 March 2020, possession by night instrument of house breaking on 7 March 2020 and stealing on 29 February 2020.
[2]	She was sentenced to a restorative justice order for all the offences and no convictions were recorded. Although it was not stated anywhere on the record, it is assumed that the order was made pursuant to s 175 of the Youth Justice Act 1992 (Qld).
[3]	The stealing involved the child stealing food and drink from a service station. On 7 March she was found with a pair of multigrips at 2am in the morning and on 29 March she was in a group of children that broke into a Dominos store at Aitkenvale by smashing the glass section of a door. Three children entered the store and four remained outside. It is not clear from the facts whether she entered the store or whether she remained outside. The child was 13 at the time of the offences and at the time of sentence. She lived with her mother and at the time of offending was not attending school although attempts were being made to enrol her in further schooling with the Department’s assistance. She had no criminal history. 
[4]	It was submitted on her behalf that a restorative justice order was appropriate and it is submitted on her behalf at this review that a diversionary restorative justice referral is the appropriate order.
[5]	Submissions were made on behalf of the child that she was highly embarrassed as a result of having to appear in court. She was raised by her mother with limited contact with her father. Since the offending she has been house bound and she has removed herself from her co offenders. 
[6]	It was conceded by the Crown that the Magistrate did not have regard to s 162 of the Youth Justice Act 1992 (Qld) and did not consider referring her instead of sentencing her. However, the Crown submits that the order of a restorative justice order under s 175 of the Act is effectively the same as a referral and should therefore remain regardless of the error made by the learned Magistrate. 
[7]	In this case the child was very young, 13 years of age, she had no criminal history and had not been before the court previously. She did offend on three separate occasions however one of those offences was effectively a shoplifting offence. In relation to the more serious offence of breaking into the Domino’s Pizza establishment is unclear whether she actually entered the establishment or was merely a party to the offence. 
[8]	In those circumstances, given the fact that her mother had effectively imposed a curfew on her since the offending and she was responding to that well, there was no reason not to refer the matter to restorative justice under s 163 and 164 of the Youth Justice Act 1992 (Qld).
[9]	The sentence is set aside and in lieu of sentencing the child the court orders the Chief Executive to refer the offence for a restorative justice process.