CHILDRENS COURT OF QUEENSLAND

CITATION:	R v Patricia (a pseudonym) [2020] QChC 42	
PARTIES:	PATRICIA (a pseudonym)
(Applicant)
v
OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS
(Respondent)	
FILE NO:	356/2020
	
DIVISION:	Childrens Court	
PROCEEDING:	Sentence Review	
ORIGINATING COURT:
	Mackay Childrens Court	
DELIVERED ON:	3 December 2020	
DELIVERED AT:	Brisbane	
HEARING DATE:	24 November 2020	
JUDGE:	Richards P	
ORDER:	1.	Application allowed.
2.	The sentence and conviction are set aside.
3.	The child is sentenced to a restorative justice order pursuant to s 175 of the Youth Justice Act 1992 (Qld).	
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the child was sentenced for one offence - where the child was sentenced to a three month detention order to be served by way of conditional release order – where a conviction was recorded – where the child had been in the care of the Department since early childhood – where a pre-sentence report had been prepared – where the pre-sentence report detailed the child had significant mental health issues and had difficulty controlling her emotions – where the pre-sentence report determined the child had remorse for her offending – where the child had some history of violence - whether the sentence imposed by the Magistrate was manifestly excessive – whether the recording of a conviction was adequate in the circumstances	
LEGISLATION:	s 175 of the Youth Justice Act.	
COUNSEL:	Mr J O’Donnell for the applicant
Ms E McPhie for the respondent	
SOLICITORS:	Legal Aid Office of Queensland for the applicant
Office of the Director of Public Prosecutions for the respondent

Introduction
[1]	The applicant pleaded guilty to a charge of assault occasioning bodily harm and was sentenced on 18 September 2020 to a three month detention order to be served by way of a conditional release order.  A conviction was recorded.  
[2]	The facts of the matter are that the complainant was an ex co-tenant of the child.  At 2.20 pm on 13 July she saw the complainant and she asked her to come back to her unit to pick up the belongings that she had left behind.  The complainant later attended the dwelling and an argument developed about the complainant leaving a mess at her address. As the argument developed, the child struck the complainant in the face with a closed fist around seven times.  This caused pain and discomfort and a bloody nose.  She made full admissions and pleaded guilty.  She said she regretted hitting the victim.
[3]	The complainant had been allowing her animals to defecate on the floor of the shared unit and would use the child’s belongings to clean it up.  There was a discussion about the disrespect the complainant had showed towards the living arrangements but also about the child throwing away some of the complainant’s pot plants.
[4]	The child had significant mental health issues and was being supported by the National Disability Insurance Scheme.  She was regularly attending the Horizon Club House and one of the interventions proposed was an anger management and guilty emotions treatment program.  She was willing to undertake those programs and it also seemed that she was repairing some of her fractured family relationships.
[5]	In deciding to impose a period of detention, the learned Magistrate indicated that he was concerned that she had a long history of violence and it was not a matter in which rehabilitation was of great concern to him because of her age. 
[6]	 In sentencing the complainant the Magistrate took into account her pleas.  He had regard to the presentence report but noted that she had a long history of violence.  She had previously had probation on more than one occasion and community service on more than one occasion.  He recorded a conviction, he said, because the number of violent matters in her history and the fact that she was now close to 18 when she committed the offence and her efforts at rehabilitation did not seem to have any effect.
[7]	The pre-sentence report prepared on her behalf noted that she had been diagnosed with emotionally unstable personality disorder, borderline type and reactive attachment disorder.  These conditions were characterised by acting impulsively and explosively without consideration of consequences, unhealthy peer connections and participating in delinquent or antisocial behaviour.  It was assessed that she displayed a considerable level of regret concerning her offending.  
[8]	She has been in the care of the Department since early childhood.  She was currently working with the counsellor at Child Youth Mental Health Services.  She wanted to go to TAFE to obtain an apprenticeship and had an induction interview set for 18 September 2020.
[9]	It is true that she had previous convictions for assault/obstruct police and common assault.  However, the most serious offence was a serious assault in 2016 so her history consisted of fairly minor offences.  She was not in breach of any orders at the time.  
[10]	The Crown concedes that the sentence is manifestly excessive and submits that a probation order coupled with a restorative justice order is appropriate.  Given her age and the circumstances of the offence it is my view that it is not necessary to impose both a probation order and a restorative justice order.  She has indicated that she is remorseful and she has difficulty controlling her actions.  A restorative justice order would be a sufficient and appropriate order in this case and I make that order pursuant to s 175 of the Youth Justice Act 1992 (Qld).