CHILDRENS COURT OF QUEENSLAND

CITATION:	R v Samuel (a pseudonym) [2020] QChC 43	
PARTIES:	SAMUEL (a pseudonym)
(Applicant )
v
OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS
(Respondent)	
FILE NO/S:	348/20
	
DIVISION:	Criminal 	
PROCEEDING:	Sentence review	
ORIGINATING COURT:	Cairns Childrens Court	
DELIVERED ON:	3 December 2020	
DELIVERED AT:	Brisbane	
HEARING DATE:	25 November 2020	
JUDGES:	Richards P	
ORDER:	The Application be dismissed.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the child was sentenced to six offences – where the child was sentenced to 3 months detention to be served by way of conditional release order for 3 months – where the child was 13 years old at the time of the offences and 14 years old at the time of sentence – where the child was subject to various orders at the time of offending – where the child had a lengthy and relevant criminal history – where a pre-sentence report was prepared – where the pre-sentence report indicated the child was intoxicated at the time of offending and did not wish to discuss the impact of the offending on the victims – where the child committed the offences 9 days after being placed on a 12 month probation order - whether the learned Magistrate placed undue weight on the child’s criminal history as opposed to the actual offending – whether the learned Magistrate placed insufficient weight on the period of remand – whether the sentence imposed by the Magistrate was manifestly excessive	
LEGISLATION:	s150 of the Youth Justice Act 1992 (Qld)	
CASES:	The Queen v SCU [2017] QCA 198
R v RBB [2019] QCA 277

DSN v Office of the Director of Public Prosecutions [2020] QChC 28

DSN v the Office of the Director of Public Prosecutions No. 2 [2020] QChC 29	
SOLICITORS:	Ms L Maleckas, Office of the Director of Public Prosecutions Queensland for the respondent
Ms R Cavalli, Legal Aid for the applicant

[1]	The applicant was convicted on 4 September 2020 and sentenced on 16 September 2020 to three months’ detention to be served by way of a conditional release order for three months.  No conviction was recorded.  He had pleaded guilty to three charges of unlawfully using a motor vehicle, two charges of driving without a license and entering a dwelling and commit an indictable offence.  He had served 28 days on remand.  
[2]	The circumstances of the offences are that on 16 August 2020 he was a passenger in a stolen vehicle (unlawful use of a motor vehicle) then later that day he drove that vehicle before being dropped off (unlawful use of a motor vehicle).  He was in the car for about 30 to 45 minutes (unlawful use a motor vehicle, unlicensed driving).  On 19 August 2020 he entered a home through the rear sliding door and stole car keys.  He and another child then left the unit, entered the car with the keys and he drove it away (enter dwelling and commit indictable offence, unlawful use of a motor vehicle, unlicensed driving).
[3]	The child was 13 years of age at the time of the offence and 14 at the time of sentence.  He had spent his 14th birthday in detention.  He was subject at the time to a 10-hour graffiti removal order, 12 month probation order, three month probation order and a further 12 month probation order.  He had not completed any of the graffiti removal order at the time of sentence but this was primarily due to a combination of him being on remand and COVID.  There was varied success with the three probation orders.  Sentencing submissions made by both parties at the time of sentence were that a conditional release order was the appropriate sentence.
[4]	The pre-sentence report indicated that he was intoxicated during the commission of the offences.  He would not discuss the impacts the offences may have had on victims and said he had no memory of the events due to his intoxication.  The court noted he had been remanded for a significant portion of 2020 overall.  There was ongoing engagement with like-minded peers in custody and in the community which may serve to normalise his anti-social attitudes.  During his detention he had missed his grandmother’s funeral and it was assessed that his remand period was a significant consequence of his offending.  He said he was eager to re-engage in education and had volunteered to relocate during the upcoming school holidays and to be re-enrolled in school or an alternate education facility upon his return.  He had been referred to participate in the On Country Camp for his age group.  He and his family were being supported by various well-being programs. 
[5]	The child had often lived between his mother and father who were in separate households and had very different parenting styles.  However, during the offending the child’s parents were living together with all of their children and the child would often feel bored and leave to visit friends for multiple nights at a time.  It was submitted that his offending was motivated by response of his peer group and was evidenced by the fact that the offending was often posted on the internet.  At the sentence hearing it was intended that he would relocate with his mother to another location and attend school there.  He was willing to participate in restorative justice.  He had indicated his plea at the earliest opportunity.  He had made full admissions.
[6]	It was submitted at the review that the learned sentencing Magistrate placed excessive weight on the child’s criminal history which spanned seven pages.  He committed these offences nine days after being placed on a 12 month probation order.  The Magistrate was concerned about a 13 year old driving a car, particularly when he had never held a license and he was drinking on and off during that time as well.  He was also a drug taker during this time.  
[7]	It was submitted that considerations of his criminal history should not overwhelm other considerations and that the Magistrate placed insufficient weight on the period of remand (28 days).  The learned Magistrate did take into account that he had suffered additional punishment namely spending his 14th birthday in detention and his grandmother’s passing.
[8]	In The Queen v SCU [2017] QCA 198, [57] Sofronoff P noted that:
“the Act requires a judge to be satisfied positively, for reasons that he or she must state, that none of the course of action that do not involve incarceration would be likely to serve their intended purpose, which is the prevention of re-offending, before imposing the final alternative, that of incarceration.”
[9]	It was submitted that taking into account the 28 days on remand, the child’s age, early plea of guilty and full and frank admissions to the offences and additional punishment, the child had not reached the sentence of  last resort.  It was submitted that he should have been sentenced a restorative justice order.
[10]	The Crown does not oppose the setting aside of the sentence of detention.  The Crown submits that neither the offences nor the applicant’s criminal history supported a sentence of actual detention and that such an order would not have likely been made had the child not spent a considerable time in pre-sentence custody.  
[11]	It was submitted that the learned magistrate did not identify a sufficient basis for concluding that a detention order was the only available sentencing option.  The Crown submits that the learned Magistrate was not assisted by both parties supporting a term of three months detention to be served by way of a conditional release order.  The Magistrate referred to detention as a last resort and observed that the case was so serious that a message needed to be sent that this behaviour cannot be continued where public safety is endangered.  
[12]	 The Crown relied on the Court of Appeal decisions of The Queen v SCU [2017] QCA 198 and R v RBB [2019] QCA 277 stating in their submissions:
“In the decisions of R v SCU [2017] QCA 198 and R v RBB [2019] QCA 277 the Court of Appeal stated that in order to comply with the requirement of s 208 of the Youth Justice Act, courts must expressly identify their reasons for imposing detention orders in favour of all other available sentencing options.  Therefore, even in circumstances where sentencing remarks are described as ‘lengthy and detailed’ if there is a failure to engage in the other identified sentencing options then the sentence would be said to have erred.”
[13]	 Despite his very young age, Samuel has a significant and relevant criminal history beginning on 9 January 2019 at 12 years of age with enter premises and commit an indictable offence for which he received a reprimand.  He received probation on 26 April 2019 and a court diversion referral and reprimand on 22 May 2019.  On 19 November 2019 a restorative justice order was imposed.  There were further appearances on 27 November 2019, 16 December 2019, 26 April 2020, 12 June 2020 and 7 August 2020 before this appearance on 16 September 2020.  He had previously received probation on four different occasions.  He had received restorative justice orders, graffiti removal orders and reprimands.  The offending related primarily to property offences namely entering premises and unlawful use of motor vehicles.
[14]	It was submitted at the hearing that this period in custody had been particularly tough for him because of the loss of his grandmother and his birthday. 
[15]	This particular child has been subject to two earlier sentence reviews (DSN v Office of the Director of Public Prosecutions and DSN v Office of Director of Public Prosecutions (No. 2)).  In DSN v Office of the Director of Public Prosecutions [2020]QChC 28 it was noted that he had spent 88 days in detention and that the offending was fairly prolific.  In DSN v the Office of the Director of Public Prosecutions No. 2 [2020] QChC 29 the child had spent 70 days in pre-sentence custody at the time of his sentence in April 2020.  The presentence report noted that he had had a significant shift in his attitude since the offending.  This was because his address had been published on social media and there had been adverse effects on his family from that. It was said that he was developing empathy for the victims of his offending. 
[16]	 That empathy seems to have dissipated by the 11th May 2020 when he recommenced offending with more motor vehicle offences. That offending persisted through June and July.   These offences were committed only nine days after he was placed on his final probation order despite having spent 28 days in detention before being sentenced. 
[17]	 It is true to note that a court should impose detention only as a last resort, particularly where the child was under 14 years at the time of committing the offence.  However, the seriousness of the offences has to be judged in light of the fact that the offending is persistent and similar.  The criticism of the Magistrate is that she placed undue weight on his criminal history and that the offending itself did not demand a term of imprisonment.  The offending by itself would never call for a term of detention, even a conditional release order.  However, in these circumstances where the child has a seven-page criminal history, where he offended immediately after being placed on probation and despite spending long periods in detention, there comes the time when the only appropriate sentence is one of detention. 
[18]	Whilst a sentence of detention is always a sentence of last resort the court must have regard to all of the sentencing principles in s 150 of the Youth Justice Act and the general principles of sentencing in particular the balance needed between rehabilitation of the child and the need for personal deterrence. The child’s criminal history and his history of time spent on remand demonstrates that periods of probation were not serving as a deterrent for him, nor were periods of actual incarceration. The Magistrate chose to impose a short period of detention to be served as a conditional release order to allow the child to receive an intense period of supervision in the hope of turning his offending around. The failure of other orders meant that the sentence was justified in all the circumstances.   
[19]	The intensive nature of the conditional release order was such that it remained the only appropriate sentence in these unusual circumstances and in my view the application should be dismissed.