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Judge overturns decision to detain NQ child offender exposed to life of trauma

A judge has overturned a magistrate’s decision to incarcerate a child exposed to childhood trauma, parental domestic violence and familial substance and alcohol abuse.

The child had accumulated an extensive “nine-page juvenile criminal history” by the age of 13.

Brisbane Childrens Court Judge Ian Dearden, in a decision published yesterday, revealed the child, identified as MIA’, was sentenced to six months’ detention by the Innisfail Childrens Magistrates Court for 34 criminal offences –including burglary, public nuisance, unlawful use of a motor vehicle and property-related offences – throughout 2018 up to October last year.

Lawyers for MIA on 24 May applied to the Childrens Court for a review of the child’s sentence on the grounds the “learned sentencing magistrate failed to comply with Section 208 of the Youth Justice Act (YJA) in articulating why a detention order, being the order of last resort, was the only appropriate order”.

It was argued the sentencing magistrate had also erred in failing to appropriately take into account the age of the child and the declarable presentence custody that the child was subject to.

The court was told MIA been spent 131 days in detention at the time he was sentenced in Innisfail, almost 90km south of Cairns, on 5 January.

Judge Dearden, in his written five-page decision, noted: “(MIA) has a nine-page juvenile criminal history commencing in December 2017 … (and) reveals a pattern of similar offending committed consistently … from the time of his 10th birthday.”

“(MIA) has been reprimanded, sentenced to an intensive supervision order, and has been sentenced to increasing periods of probation. (He) was also sentenced to a restorative justice order.

“(He) consistently committed further similar offences throughout his periods of probation and while on bail. On 3 April 2020, (MIA) was sentenced to a period of nine months’ probation. All of the 2020 offences were committed during that period of probation.

“As well as reoffending (MIA) failed to comply consistently with the conditions of his probation orders. (The Department of) Youth Justice advised the sentencing magistrate at the first instance that as of November 2020 (MIA) had ‘reported as directed a total of 19 out of 41 times’.”

However, Judge Dearden also revealed to the trauma MIA had been exposed to throughout childhood.

Referring to submissions accepted by the Office of the Director of Public Prosecutions, Judge Dearden said: “(MIA) has been exposed to childhood trauma, parental domestic violence and familial substance and alcohol abuse that has significantly impacted his emotional regulation and diminished his ability for consequential thinking.

“At the time of the offences, (MIA) was not engaged with schooling and was consuming alcohol and smoking cannabis. (He) stated that he committed the offences … for financial gain in order to obtain more cannabis and alcohol for himself and his peer group.”

Judge Dearden, in allowing the review, set aside the sentences imposed by the magistrate and substituted it with six months’ probation, 50 hours community service and a reprimand.

In arriving at his decision, Judge Dearden said: “It is understandable that the learned magistrate was unimpressed, to say the least, with (MIA’s) performance on probation and of course faced with a child who not prepared to engage in restorative justice, with a court diversion or otherwise.

“But, the step from that situation to concluding that there was no sentence other than detention that was appropriate or available is non-compliant with YJA (s208).”

Read the decision.

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