CHILDRENS COURT OF QUEENSLAND

CITATION:	RSS v Director of Public Prosecutions [2022] QChC 29	
PARTIES:	RSS
(Applicant)
v
DIRECTOR OF PUBLIC PROSECUTIONS
(Respondent)
	
FILE NO/S:	CCJ 253/22	
DIVISION:	Childrens Court of Queensland	
PROCEEDING:	Sentence Review Application	
ORIGINATING COURT:	Gladstone Children’s Court	
DELIVERED ON:	15 September 2022 (delivered ex tempore)	
DELIVERED AT:	Brisbane	
HEARING DATE:	15 September 2022	
JUDGE:	Dearden DCJ	
ORDER:	(1)	Application for sentence review granted.
(2)	Order the sentence imposed on 22 June 2022 be set aside.
(3)	Pursuant to Youth Justice Act 1992 (Qld) ss 162, 163(1) and 164, without making a sentence order, order that the applicant be referred to a restorative justice process for all charges.
	
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE –SENTENCING JUVENILES – where the applicant was sentenced to a six month probation order and a restorative justice order – where the magistrate had regard to inadmissible evidence – whether the inadmissible evidence was considered – whether the combined order was excessive in the circumstances 	
LEGISLATION	Youth Justice Act 1992 (Qld) ss 118, 122, 150, 162, 163, 164, 175	
COUNSEL:	L Fabian for the applicant
A Changuion (solicitor) 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, RSS, in respect of the following offences: 
3 x assaults occasioning bodily harm whilst armed / in company (18/6/2021, 2x 27/2/2022);
5 x enter dwelling and commit indictable offence (3/2/2021, 11/2/2021, 11/2/2021, 22/3/2021, 23/3/2021, 19/2/2022);
1 x enter premises and commit indictable offence (22/3/2021);
1x attempted to enter dwelling and commit indictable offence (22/3/2021);
1 x stealing (11/2/2021);
1 x wilful damage (22/3/2021);
1 x enter premises and commit indictable offence by break (27/2/2022);
1 x possess utensils or pipes etc that had been used (1/3/2022).
[2]	On the 22nd of June 2022, the applicant was sentenced to a six-month probation order and a restorative justice order at the Gladstone Childrens Court.
Background
[3]	The applicant’s antecedents and circumstances are helpfully summarized in the outline of submissions for the child.
[4]	The child was born on 18 January 2007 and was aged between 14 years and 15 years one month, at the time of the offences.  And 15 years five months at the time of sentence.  
[5]	The child’s legal representative made the following submissions on sentence including the child’s age (14 years); the fact that the child had been subject to bail on a conditional bail program since December 2021, which included various curfews; the fact that the child had been remanded in custody in October 2021; granted bail in December 2021; and again remanded in custody in February 2022; spending a total of 157 days in custody.
[6]	The child’s lawyer explained the offending only by reason of the child’s association with offending peers and the consumption of illicit substances, including that at the time of the offending in February the child had been up for eight days straight because he was on drugs.  The child had been released from custody in May 2022, did not want to go back to detention, and was fully compliant with bail conditions.  Although not then studying, the child was hopeful to return to school and wanted to obtain employment in the retail industry and was interested in football.
[7]	The submission was made that the period of custody should be taken into account, that a restorative justice order should be imposed, and that a probation order should not be imposed given the period spent in custody, but the child did consent to such an order being made.
[8]	The prosecutor identified the very serious nature of the offending, the very serious consequences for the victims, and submitted that restorative justice was not appropriate, although asking the court to take into account the time spent in detention and sought a conditional release order to see the child further supervised.
[9]	The youth justice representative submitted that the child was willing to comply with all orders, again noted the time spent in custody (157 days) which was declarable and confirmed the child’s compliance on a conditional bail program granted on 18 May 2022.
[10]	The pre-sentence report identified the following further matters, highlighted by the applicant’s legal representative in this application, which include that the child was subject to a long-term guardianship order with the Department of Child Safety; had previously been on a long-term foster placement but had lost both foster parents in close succession (them having passed away) which resulted in the child and his siblings being separated in different care arrangements; the child had returned to Gladstone in 2020, after previously being placed in kinship care in Innisfail, and had placed with an older sister, but was no longer able to reside with that sibling and was placed in a residential placement.  
[11]	The child’s offending began when he moved to Gladstone, and the pro-criminal friends and family members appeared to have been the influences on his criminal offending, as well as his pro-criminal attitude and his exposure to those anti-social family and peers and had been using methylamphetamine and cannabis while offending which impacted the child’s decision-making ability and impulse control.  
[12]	The child was only able to reflect at a basic level on the impacts of his behaviour, lacked an appropriate level of remorse and understanding of his behaviours, and demonstrated a minimal ability to empathise with victims.  As at sentence, the child was currently residing at a child safety approved residential placement with 24-hour youth worker support and supervision, had been attending high school but was suspended due to the matters proceeding through court, was seeking to enrol in an alternative education facility and was engaged with forensic child and youth mental health services.  The child was willing to comply with all community-based orders including restorative justice.
[13]	The circumstances of the offending are particularly serious and are set out in annexure 1 to exhibit 1.  The facts are voluminous and for the purpose of these reasons won’t be read into the record, other than to make these observations.  That the offences involved were dwellings were entered, the theft of alcohol, property, jewellery, cash, included confrontation with victims, in one instance the theft of $20,000.00 worth of jewellery as well as alcohol, graffiti being spray-painted on items during an enter dwelling offence as well as, again, the theft of a very large value of jewellery ($8,000.00), one attempted enter dwelling, a serious assault occasioning bodily harm in company, enter dwelling offences occurring while victims were at the residence, and a substantial involvement, being armed and engaging in two assaults occasioning bodily harm while armed in company, causing some reasonably substantial injuries to the victim, as well as being involved in an enter premises in that particular event, finally ending with the child being found in possession of a utensil that had been used to smoke methylamphetamine.
[14]	Critically, the child had no criminal history at the time of sentence. 
[15]	Sentence reviews proceed pursuant to Youth Justice Act 1992 (Qld) (‘YJA’), with the review to be conducted as a re-hearing on the merits, to be conducted expeditiously and with as little formality as possible, and in doing so the court can have regard to the record of the Childrens Court proceeding and any further submissions and evidence by way of affidavit or otherwise. 
[16]	The court is of course required to take into account the sentencing principles pursuant to YJA section 150. 
[17]	There is a specific obligation on the court to consider a restorative justice referral pursuant to YJA section 162 where a child has entered a plea of guilty and the powers are contained in YJA section 163. 
Grounds of Review
[18]	The submission in this matter is that the sentencing schedule to which the magistrate had regard contained a number of items that were inadmissible, including:
(a)	A summary of the child’s caution history including the offences and dates of previous cautions; and
(b)	Offences for which the child was subject to bail.
[19]	It’s further submitted that the combined sentence order imposed was excessive in the circumstances, and that the learned magistrate did not place sufficient weight on the significant period of 157 days in pre-sentence detention.
[20]	The learned sentencing magistrate was not directed to the inadmissible matters (the caution history and the bail offences) but it’s not clear on the record as to what, if any, extent the learned magistrate had regard to those matters.
[21]	In any event, as identified, even if that did not necessarily lead to error, the imposition of the six-month probation order and a restorative justice referral pursuant to section 175(1)(db) is submitted to be excessive, in the context of the 157 days spent in pre-sentence detention, in the context of a child who had pleaded guilty and had not otherwise been dealt with before the court.
[22]	In particular, the learned magistrate did not, as was required, consider a referral to a restorative justice process, instead of sentencing the child (as required pursuant to YJA section 162). 
[23]	The respondent submits that the record does not reveal that the magistrate had any specific regard to the inadmissible items contained in the sentencing schedule, and submits that the sentence was not manifestly excessive.  The respondent concedes that the magistrate was not directed to the mandatory requirement to consider a referral to a restorative justice process, instead of sentencing the child (and exercising the power to refer to the child to a restorative justice order pursuant to section 175(1)(db).
[24]	The respondent correctly identifies the very serious nature of the offending including three offences involving unprovoked violence against victims, the stealing of jewellery in excess of $20,000.00 (I note that one offence involved $20,000.00 and another involved $8,000.00 worth of jewellery), identifies also the escalation of the applicant’s offending over the offending period, and was subject to bail when five of the offences were committed. 
[25]	The submission is made that a restorative justice order would be insufficient as an outcome, given those aggravating features whilst the respondent correctly notes that the significance of the 157 days in detention which is also noted by the learned sentencing magistrates.
Discussion 
[26]	It has been identified repeatedly in respect of applications for sentence review that although it is not necessary to demonstrate error for a sentencing review application to succeed, where error is shown then it is appropriate for this court to reach its own conclusion about the appropriate penalty. 
[27]	The applicant makes the appropriate concession that the offending was serious but then submits (correctly in my view) that despite the serious nature of the offending and the circumstances in which it has occurred including the commission of offences while on bail, that must be balanced against the fact that this is the first sentencing process in which the child (who was 14 for effectively nearly all of the offending) has faced, and that the combination of a six-month probation order together with a restorative justice order under section 175(1)(db) is an excessive penalty, particularly given the failure by the magistrate to consider the alternative of a referral to a restorative justice process pursuant to section 162 of the YJA.
[28]	The applicant through his counsel also stresses the subsequent positive compliance with the conditional bail program, the applicant’s residence at a supported and supervised placement, and the prospects that that clearly indicates for a non-offending outcome (subject of course to the completion of the processes in respect of his current offences).
[29]	Although I accept that there are matters which are arguable on both sides of this application, it is clear in my view that the learned magistrate has failed to appropriately consider the restorative justice referral, has had inadmissible material placed before him (the caution history and details in respect of the offences for which the applicant was on bail), and although noting the period of 157 days in pre-sentence custody, has failed to give appropriate effect to that in the penalty imposed at the sentence on 22 June 2022.
[30]	In my view, given those circumstances, it is appropriate to grant the application to set aside the sentence imposed and to proceed by way of a restorative justice process pursuant to YJA section 162.
Orders
[31]	The formal orders are as follows:
(1)	Application for sentence review granted.
(2)	Order the sentence imposed on 22 June 2022 be set aside.
(3)	Pursuant to Youth Justice Act 1992 (Qld) ss 162, 163(1) and 164, without making a sentence order, order that the applicant be referred to a restorative justice process for all charges.