A judge has reduced the sentences handed to four children by North Queensland magistrates, including a 12-month probation order given to a 14-year-old who breached a COVID-19 health direction by attending a party.
Brisbane Childrens Court Judge Ian Dearden, in four separate decisions published on Friday 16 July, reduced all of the sentences imposed by magistrates at Townsville (two cases), Mossman and Atherton against children aged between 12 and 14 for 85 offences such as multiple car thefts, break and enters, stealing, assaults, wilful damage and fare evasion.
The decisions come a week after QLS Proctor reported on Judge Dearden’s comments regarding the “substantial lack of understanding” shown by a North Queensland magistrate sentencing, and the lawyer representing, a traumatised 13-year-old boy who spent almost two months in detention awaiting sentence.
In the latest four cases involving children identified as BYS, REC, WEN and MEA, Judge Dearden granted applications to reduce punishment meted out during reviews of their respective cases – including one in which a magistrate failed to take into account the 117days (almost four months) one child had spent in dentition before being sentenced.
In the case of 14-year-old BYS, a 12-month probation order made in the Atherton Childrens Magistrates Court in March 2021 for eight offences including stealing, burglary and failing to comply with COVID-19 restrictions was substituted with a reprimand and a court diversion referral under the Youth Justice Act (1982).
REC, a 14-year-old girl with a “very minor” criminal history, had her 12-month probation sentence imposed by a Townsville Childrens Court magistrate on 25 March halved to six months for 28 offences, including 16 counts of unlawful use of a motor vehicle.
Judge Dearden noted that, at the time of sentencing REC, the magistrate had failed to take into account the fact the child had spent 23 days in detention while awaiting sentencing.
“In short … (REC) had served almost 50 percent of (a) six-week detention order in circumstances where it is submitted (by her legal representative), and I accept … would indicate actual detention would not have been open as a sentence of last resort for a child of this age for these offences,” he said.
“(The prosecution also) acknowledges and accepts the (magistrate’s) error in respect of the failure to take into account the 23 days pre-sentence detention.”
REC’s reviewed sentence also included a referral of three of offences to be resolved by way of restorative justice court diversion.
In the third case, a 13-year-old child called WEN who spent 117-days in presentence custody on 39 charges, including 16 for car theft, had his six-month probation order substituted with a nine-month good behaviour order.
“The submission here (in WEN) is … that the learned (Townsville) magistrate placed insufficient weight on the time that child had spent in detention,” Judge Dearden said.
“The learned magistrate appears to have failed to appreciate the significance of 117 days (almost four months) of pre-sentence custody, for offending which would not otherwise have brought a detention order under almost any circumstances.”
He said a good behaviour order was appropriate in WEN’s case to give “credit” for what was “effectively, the custodial component of an eight-month detention order” in pre-sentence custody at the time of sentencing by the magistrate.
“I am persuaded that the learned magistrate fell into error … although error is not necessarily required in matters such as these.”
In the fourth matter, a 14-year-old child identified as MEA had her sentence of 12-months’ probation and 100 hours’ unpaid community service imposed by a Mossman Childrens Court magistrate substituted with a four-month probation order.
Judge Dearden noted MEA had no criminal history when convicted of six counts of wilful damage, three of common assault and one of stealing on 10 March.
“The circumstances of (MEA) are profoundly troubling,” he said. “She is an Indigenous child, has been in the care of Child Safety since she was 18 months old (she in now 14); is disconnected from family and community, which is a clear source of distress … (with) two of the wilful damages charges occurring at her residential placement after she was told she couldn’t speak to her family.
“She has a history of substance misuse and chroming and had been detoxing during the offending periods.
“The child has been voluntarily engaging with a member of the remote alcohol drug intervention outcomes service operated under the umbrella of the Mossman Elders Justice Group where she is ‘slowly just surely’ addressing her identified needs.
“It appears that in (MEA’s case)… the learned magistrate has imposed sentence at the top end of both applicable range for probation and community service orders, which is completely disproportionate to the gravity of the offences, particularly in the context of a troubled child subject to placement with the Department of Child Safety who is struggling with anger, frustration, detoxing, has no criminal history and, conversely, is starting to engage with support, particularly a culturally appropriate mode of support through the community justice group.
“”In the circumstances of this child … a significantly shorter period of probation … will enable supervision of the child and an overview of what seems to be quite good progress that’s been made recently.”
Last week, QLS Proctor reported on the case of a child, identified as JOH, who 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 September last year.
Read the individual decisions: BYS, REC, WEN and MEA.
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