CHILDRENS COURT OF QUEENSLAND

CITATION:	BER v Director of Public Prosecutions [2021] QChC 17	
PARTIES:	BER
(Applicant)
v
DIRECTOR OF PUBLIC PROSECUTIONS
(Respondent)	
FILE NO:	14 of 21	
DIVISION:	Childrens Court of Queensland	
PROCEEDING:	Sentence Review Application	
ORIGINATING COURT:	Beenleigh Children’s Magistrates Court	
DELIVERED ON:	24 February 2021 (delivered ex tempore)	
DELIVERED AT:	Brisbane 	
HEARING DATE:	24 February 2021 	
JUDGE:	Dearden DCJ	
ORDER:	1.	Application for sentence review granted;  
2.	Set aside the order for three months detention in respect of the 11 offences for which the applicant child was sentenced on 18 December 2020 at the Beenleigh Children’s Court.
3.	Substitute an order for 50 hours community service.
4.	No conviction be recorded in respect of each of the 11 offences.  	
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE –SENTENCING JUVENILES – where the child was sentenced to a three-month detention ordered to be served by way of a conditional release order for various unlawful use of motor vehicle and property related offences – where the child was 14 at the time of the offence – where the child had a short relevant criminal history – where the child had served 44 days of detention by way of conditional release order at sentence – whether the sentence imposed was excessive in the circumstances 	
LEGISLATION:	Youth Justice Act 1992 (Qld) ss 118, 150, 162, 195, 208	
CASES:	R v SCU [2017] QCA 198	
COUNSEL:	A Davie for the applicant 
JH Daniels for the respondent 	
SOLICITORS:	Legal Aid Queensland for the applicant 
Office of the Director of Public Prosecutions for the respondent 	

Introduction
[1]	This is an application for a sentence review by the juvenile BER in respect of a sentence imposed at the Beenleigh Children’s Court before a learned acting magistrate on 18 December 2020. A plea of guilty was entered on 30 November 2020 and a pre-sentence report was prepared.  The offences to which the sentence applied (a three-month detention ordered to be served by way of a conditional release order) were 11 in total, and are as follows:- 
Date:  18/10/2020
Offence:  Stealing
Place:  Crestmead/Browns Plains

Date:  18/10/2020
Offence:  Unlawful use of a motor vehicle, aircraft or vessels – use
Place:  Crestmead

Date:  20/10/2020
Offence:  Unlawful possession of a motor vehicle, aircraft or vessel with intent to permanently deprive
Place:  Park Ridge

Date:  24/10/2020
Offence:  Unlawful use of motor vehicle, aircraft or vessels – use
Place:  Browns Plains

Date:  28/10/2020
Offence:  Unlawful possession of a motor vehicle, aircraft or vessel with intent to permanently deprive
Place:  Logan Central/Woolloongabba

Date:  28/10/2020
Offence:  Receiving tainted property
Place: Woolloongabba

Date:  28/10/2020
Offence:  Possess utensils or pipes etc for use
Place:  Logan Central

Date:  28/10/2020
Offence:  Receiving tainted property
Place:  West End

Date:  28/10/2020
Offence:  Fraud/dishonest application of property of another
Place:  Milton/West End

Date:  11/10/2020
Offence:  Enter dwelling commit indictable offence
Place:  Everton Park

Date:  11/10/2020
Offence:  Unlawful use of a motor vehicle, aircraft or vessels – use
Place:  Everton Park
[2]	The applicant’s counsel summarises the offences as being mainly “charges of unlawful use of a motor vehicle (use or permanently drive) and involved the child being seen in and/or located near stolen vehicles with the keys.  The period of his offending was short, and in some cases, the only evidence comprised of videos taken by the child in the vehicles.” (Exhibit 1 p.1)
[3]	The relevant antecedents set out by the applicant’s counsel at exhibit 1 in these terms:-
“4.1 The child was born on 13 April 2006.
4.2 He was 14 years of age at the time of his offence and was 14 years old at the time of sentence.
4.3 The child had a relevant criminal history at the time of sentence.
4.4 The child has not [ever] been sentenced to a community service order.
4.5 The child has never been subject to a detention order.
4.6 He was subject to the following orders (both at sentence and at the time of the commission of the offences):
4.6.1 Six-month probation order imposed on the 28th of August 2020;
4.6.2. A restorative justice order with a 12-month probation order imposed on the 16th of October 2020.”
[4]	Relevantly, the child had been in detention for 44 days as at the date of the sentence of three-month detention to be served by way of a conditional release order, and a conviction was not recorded. (Exhibit 1 para 5.)
The law – sentence reviews 
[5]	A children’s court judge may review the sentence of a children’s court magistrate pursuant to Youth Justice Act 1992 (Qld) (‘YJA’) s. 118.  That review is to be conducted as a rehearing on the merits, and should be conducted expeditiously with as little formality as possible.  The court can have regard to the record of the children’s court proceeding in any further submissions and evidence by way of affidavit or otherwise.
[6]	I note in this particular matter, for example, that I’ve been provided with a further affidavit by the respondent with an updated criminal history and a verdict and judgment record for further offending by the applicant.
[7]	In sentencing a juvenile, the court is required to take into account the sentencing principles in YJA s. 150.  The court is particularly guided by the decision of R v SCU [2017] QCA 198 at para 53 (per Sofronoff P).  In particular the approach is further clarified at paragraphs 84-86 and it requires the court to step through other  alternatives in considering those alternatives before deciding that detention, which is a sentence of last resort, is the appropriate penalty.
Discussion
[8]	In this particular case, the applicant had a very short criminal history, the offending (apart from the offence of enter dwelling and commit and indictable offence) was relatively low level, and there were significant issues identified in respect of the child’s problems with led to the offending.
[9]	For reasons which are not clear, the lawyer who appeared on the sentence for the child conceded the submission that a conditional release order was appropriate.
[10]	The point that’s made by the applicant’s counsel on this appeal (it was not the child’s lawyer at first instance) is that a three month detention order, served by way of a conditional release order, where 44 days had already been spent in detention, effectively gave no credit whatsoever to the detention that had been served, and in any event, was a sentence arrived at (detention) without other alternatives having been appropriately considered.
[11]	The learned sentencing magistrate’s sentencing remarks are brief and unhelpful at indicating the process that the learned sentencing magistrate stepped through in order to arrive as they did with a detention order (albeit to be served by way of a conditional release order).
[12]	It’s also stressed that the child was 14 at offending and at sentence, with a criminal history that was at that stage barely nine months old and it appears that the age of the child, the supervision that was being provided by probation (albeit that it hadn’t had much time to work given that the child had been in detention) and the alternative sentencing options had not been appropriately considered.
[13]	I note that the respondent very frankly concedes that there was a failure to appropriately consider a restorative justice process pursuant to YJA s. 162, and a failure to consider detention (even served by way of a conditional release order) as a sentence of last resort (YJA s. 208 and see R v SCU [2017] QCA 198).
[14]	The respondent also identifies (correctly) the failure to identify either in the sentencing remarks or during the course of submissions during the hearing why other sentencing options were deemed inappropriate.  The respondent also and frankly (and quite appropriately) notes the lack of proportionality between the sentence and the offences (YJA s. 150(k)).
[15]	The submission on behalf of the applicant is that the detention order to be served by way of a conditional release order be set aside and that a sentence of 50 hours community service by substituted.
[16]	The respondent has raised the issues of s. 195 in terms of informed consent and suitability as well as the availability of community service of a suitable nature.
[17]	The applicant’s counsel has given an undertaking to explain the conditions of a community service order, and the representative of youth justice appearing at this sentence has indicated that youth justice will ensure that community service of a suitable nature can be provided to the child.  In all of the circumstances, I’m satisfied then that the preconditions of s. 195 have been satisfied by the combination of the pre-sentence report provided at the sentence which occurred on 18 December 2020, and the information/undertaking that have been provided to me from the bar table.
Orders
[18]	In all of the circumstances, I make the following orders:  
(1)	Application for sentence review granted;  
(2)	Set aside the order for three months detention in respect of the 11 offences for which the applicant child was sentenced on 18 December 2020 at the Beenleigh Children’s Court.
(3)	Substitute an order for 50 hours community service.
(4)	No conviction be recorded in respect of each of the 11 offences.