A Brisbane judge has highlighted a “substantial lack of understanding’’ by a magistrate sentencing, and lawyer representing, a deeply traumatised 13-year-old North Queensland boy who spent 60 days languishing in pre-sentence detention.
The child, identified as JOH, was sentenced by a Mareeba Childrens Court magistrate to one year’s probation, 90 hours community service and 10 hours graffiti removal after pleading guilty to 44 offences on 25 Septembe last year.
Brisbane Childrens Court Judge Ian Dearden, in a decision published on Monday 5 July, noted JOH had been incarcerated almost two months before he was sentenced, despite having no previous criminal history and having experienced a “deeply troubling up-bringing which included trauma, abandonment and domestic violence”.
“In short, there appeared to be a substantial lack of understanding by both the defence solicitor and the learned magistrate about the significant matters in a pre-sentence report for a child of an indigenous background,” he said.
The comments came as lawyers for JOH successfully applied for a review of his sentence, resulting in the 12-month probation and 90 hours community service orders being set aside and substituted with a six-month probation order.
The court was told JOH had been in detention on remand for almost two months when he was sentenced for a myriad of offences including multiple break and enters, wilful damage, car theft, burglary, graffiti and being a public nuisance.
“Without traversing all of the details of the appearance at which the learned magistrates ordered the sentence, it appear that the child was not well serviced by his legal representative who failed to approach the proceedings as a plea in mitigation,” Judge Dearden said.
“And, in fact, appears (the child’s lawyer) highlighted aspects of a (court-ordered) pre-sentence report which were not in the child’s favour, failed to identify mitigating aspects of the … report, and made submissions that appear to have no sensible basis for a defence lawyer making a plea in mitigation.”
Judge Dearden said the sentencing magistrate, in their remarks, focused only on the child’s lack of remorse and understanding about the impact of his offending on the community.
“But (it) appears (the magistrate) placed little or no weight on (JOH’s) lack of criminal history, importantly, the fact that the offences occurred at the age of 12 through 13, for a child from a hugely disadvantaged background with clear, obvious difficulties and, of course, who had just spent 60 days in pre-sentence custody,” he said.
“The learned magistrate’s sentencing remarks also appear to rely, in part … on the ‘extremely poor parenting’, as the magistrate described it, which with respect, seems to be blaming the child for matters that are and were completely out of his control.”
Judge Dearden said in all the circumstances the appropriate sentence was six months’ probation.
However, he made no order regarding the 10-hour graffiti removal sanction imposed by the magistrate.
Read the decision.