CHILDRENS COURT OF QUEENSLAND

CITATION:	HBB v Director of Public Prosecutions [2022] QChC 27	
PARTIES:	HBB
(Applicant)
v
DIRECTOR OF PUBLIC PROSECUTIONS
(Respondent)
	
FILE NO/S:	302 of 2022	
DIVISION:	Childrens Court of Queensland	
PROCEEDING:	Sentence Review Application	
ORIGINATING COURT:	Rockhampton Childrens Court	
DELIVERED ON:	15 September 2022 (delivered ex tempore)	
DELIVERED AT:	Brisbane	
HEARING DATE:	15 September 2022	
JUDGE:	Dearden DCJ	
ORDER:	1.	The 100-hour community service order component of the dual order imposed at the Rockhampton Childrens Court on 19 July 2022 in respect of all 17 charges be set aside. 
2.	The sentence is otherwise affirmed.  
3.	No convictions are recorded.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE –SENTENCING JUVENILES – where the applicant was sentenced to a dual order of 12 months’ probation and 100 hours community service – where no convictions were recorded where the application was not opposed – whether the sentence imposed was manifestly excessive	
LEGISLATION	Youth Justice Act 1992 (Qld) ss 118, 122, 150	
CASES	R v SCU [2017] QCA 198	
COUNSEL:	D Illife for the applicant
L Maleckas 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 sentence review by the applicant HBB in respect of the sentence imposed on the following matters:
Date Of Offence	Place Of Offence	Offence	
11.05.22	Norman Gardens	Receiving tainted property	
11.05.22	Gracemere	Unlawful use of a motor vehicle	
29.05.22	Norman Gardens	Enter premises and commit indictable offence	
29.05.22	Rockhampton	Unlawful use of a motor vehicle	
30.05.22	Kawana	Attempted enter dwelling with intent at night	
05.06.22	Kawana	Enter dwelling and commit indictable offence	
05.06.22	Kawana	Unlawful use of a motor vehicle	
06.06.22	Rockhampton	Unlawful use of a motor vehicle	
06.06.22	Cooee Bay	Unlawful use of a motor vehicle	
06.06.22	Yeppoon	Stealing	
06.06.22	Yeppoon	Driving without a licence	
07.06.22	Mulambin	Enter dwelling and commit indictable offence	
07.06.22	Mulambin	Enter premises with intent	
26.05.22	Norman Gardens	Unlawful use of a motor vehicle	
06.06.22	Norman Gardens	Enter dwelling and commit indictable	
06.06.22	Rockhampton	Receiving tainted property	
07.06.22	Mulambin	Enter premises and commit indictable offence	
Grounds
[2]	The applicant seeks the sentence review on the grounds that the sentence was excessive.
[3]	The child was sentenced at the Rockhampton Childrens Court on 19 July 2022 and was sentenced to a dual order of 12 months’ probation and 100 hours community service, with no convictions recorded.
[4]	It is convenient to state at this point that both the applicant and the respondent agree that the imposition of the 100 hours of community service renders the sentence imposed excessive and consequently the application for a sentence review is not opposed by the respondent.
Antecedents	
[5]	The applicant’s material helpfully summarises the applicant’s antecedents. In summary, the child was born on 30 July 2015, and was 16 at the time of the offending and sentence.  The child had relevant criminal history that was before the court.
[6]	The child was subject to orders of probation, good behaviour and restorative justice at the time the offences were committed.
[7]	At sentence, the child’s lawyer made the following submissions including that the child was well supported by his grandparents, and his grandfather was present at sentencing, had spent 50 days in custody, had engaged in exercise and expressed an interest in carpentry and metalwork while in custody and as at sentence had been approaching three weeks of “gold” behaviour in custody.
[8]	A consequence of the child’s offending has been his ostracisation from his family.  The child has diagnoses of speech and language disorder and ADHD, was immature for his age, and struggled with insight into his offending behaviour.  
[9]	The child has goals including re-engaging in education and getting his licence, and it was submitted that a lengthy period of probation would not assist and the submission was made on behalf of the application for a period of community service to show the consequences of the offending and to allow continued supervision.  The concession was made that a combined community service and probation order could be made.
[10]	Youth Justice submitted that the court could impose up to 200 hours of community service if the young person was over the age of 15. 
[11]	A pre-sentence report and addendums outline the further following relevant matters.  These include:  factors contributing to the offending including rejection of parental rules and boundaries, disengagement from education, negative peer associations, mental health diagnosis and speech/language difficulties; the placement in a youth shelter after the child was not allowed to reside with his grandparents; some immature understanding of the consequences of the offending, being raised by his grandparents since the death of his mother aged two, a failure to recognise the stress of his conduct and behaviour on his grandparents and a consequent breakdown of that relationship; the diagnoses of ADHD, ADD and speech and language disorder, with further cognitive testing to be undertaken to establish if other intellectual behavioural issues were diagnosed; the achievement of three weeks of “gold” behaviour in detention, and referrals to integrated case management program and to Carinity Flexible Learning Facility.  The child did not consent to a restorative justice order.
[12]	The circumstances of the offending are set out in detail at exhibit 1. The receiving charge related to the receipt of stolen car keys; the child and co-offenders attended a service station with the stolen vehicle which was taken using stolen car keys; items were stolen from McDonalds including handbag, wallets, iPhone, gold ring, bankcards, house keys, and garage door remote; that theft then enabled the unlawful use of that complainant’s vehicle from the McDonald’s car park.
[13]	The attempted entering of a dwelling on 30 May 2022 occurred when the child entered a patio area but noticed CCTV cameras and left; on 5 June the child attended the complainant’s dwelling and stole keys to a Mitsubishi Challenger which was then unlawfully used; this vehicle was seen driving to a Yeppoon petrol station filling with fuel and driving off.  On 6 June, a Range Rover was unlawfully used and the child and co-offenders took photographs of themselves in that vehicle; the child was driving without a licence (a vehicle that had been stolen earlier, a Mitsubishi ASX), that vehicle had been stolen which is the stealing offence 6.6.22.  On 7 June 2022, the child and co-offenders entered the dwelling and stole various items including car keys, and returned to the same residence some four and a-half hours later but when confronted by the complainant ran off.  The applicant was captured on video on 26 May 2022 driving a vehicle which had been previously stolen.  On 6 June 2022, the applicant entered the complainant’s dwelling and stole shoes, numerous keys, cigarettes and office keys.  The applicant received tainted property from that offence and then on 7 June 2022 entered a vehicle and searched the glovebox and stole a set of keys.
The Law - Sentence Reviews
[14]	A Childrens Court judge has the jurisdiction to review the sentence order of a Childrens Court magistrate, which review must be by way of rehearing on the merits, that rehearing to be conducted expeditiously and with as little formality as possible.  In conducting the review the court must have regard to the record of proceeding before the Childrens Court magistrate and any further submissions and evidence by way of affidavit or otherwise.
The Law - Sentencing Children
[15]	This court is guided by the provisions of section 150, as is the Childrens Court conducted before a magistrate.  The guidance on the approach to sentencing children is identified by Sofronoff P in R v SCU [2017] QCA 198.  
[16]	As indicated, it is submitted that the learned magistrate failed to place sufficient weight on the 50 days of pre-sentence custody when combining a 100-hour community service order together with the 12-month probation order, which is not the subject of this application for review.  
[17]	The applicant identifies and concedes that the criminal history was relevant and that he was subject to supervised orders at the time of the offending, but had served 50 days in pre-sentence custody, including three days in the watchhouse, had developed some insight, had pleaded guilty at an early opportunity, and although the learned sentencing magistrate identified that the matter was a plea of guilty, this was not obviously reflected in the sentence imposed, nor was the diagnoses of ADHD and other difficulties.  
[18]	The failure to recognise, in particular, the pre-sentence custody along with the other matters identified, it is submitted (and the respondent as previously identified concedes) supports granting the application. 
[19]	In all of the circumstances, the appropriate moderation of the sentence to reflect the pre-sentence custody, the need for supervision, and imposing a suitable and proportionate punishment, is to set aside the 100-hour community service component of the sentence.  
[20]	As is clear from these reasons, the application for sentence review should be granted.
Orders
[21]	I make the following orders:  
(1)	The 100-hour community service order component of the dual order imposed at the Rockhampton Childrens Court on 19 July 2022 in respect of all 17 charges be set aside.
(2)	The sentence is otherwise affirmed.  
(3)	No convictions are recorded.