Queensland’s Childrens Court chief has criticised submissions that led a North Queensland magistrate into error in the sentencing of 15-year-old first nations passenger in a stolen car in April.
The child – identified by the pseudonym Sarah – was sentenced to 40 hours’ community service after pleading guilty to a charge of unlawful use of a motor vehicle in the Townsville Childrens Court on 28 April 2021.
Queensland Childrens Court President Deborah Richards, in a just published finding, said: “This is yet another example of the Magistrate being led into error by a failure of the defence, the prosecutor and Youth Justice to assist the Magistrate by directing him to the requirements of the Youth Justice Act.”
Judge Richards said Section 162 of the Youth Justice Act required that a restorative justice order must be considered when sentencing a child.
“There was no mention of this requirement during the sentencing process,” Judge Richards said. “(Sarah) was sentenced on 28 April 2021 in the Townsville Childrens Court having pleaded guilty to charges of unlawful use of a motor vehicle and stealing.
“He was sentenced to 40 hours’ community service and convictions were not recorded. He has appealed against this sentence.”
Judge Richards said Sarah’s appeal was not contested by the prosecution, who conceded the magistrate erred in failing to consider referring the applicant to the Chief Executive for a diversionary restorative justice process.
However, her Honour gave a unique insight into the type of offender who regularly appear before the court.
“The circumstances of the offences relate to the child being approached by people in a stolen vehicle,” Judge Richards said. “He called out to those people thinking he knew them. The vehicle stopped and he got in. The vehicle then drove to a fuel station where he put fuel into the vehicle without paying. He knew that the vehicle was stolen.
“He was 15 at the time of the commission of the offence and at sentence. He had a single page criminal history with offences comprising public nuisance, trespass, obstruct police on 10 February 2021 for which he was reprimanded, trespass, unauthorised stealing of shop goods and possession of a knife offences on 22 and 25 February 2021 for which he was sentenced to a good behaviour bond and then on 1 March 2021 an offence of trespass for which he was reprimanded.
“At sentence the prosecution submitted that probation or community service would be appropriate. The defence outlined his background, namely that he was living with friends. He was disengaged from education, however had been employed the day before treelopping and was seeking to maintain some further employment in that area.
He has been diagnosed with ADHD, Autism level 2 and a Conduct Disorder, however, did not take treatment or medication. It was submitted that a community based order would be appropriate.”
Judge Richards said this was “yet another example of the magistrate being led into error by a failure of the defence, the prosecutor and Youth Justice to assist the Magistrate by directing him to the requirements of the Act”.
Section 162 of the Youth Justice Act requires that a restorative justice order must be considered when sentencing a child. There was no mention of this requirement during the sentencing process.
Judge Richards found Sarah was a child with mental health issues. His participation in the offending was as a passenger. He was not involved in, or present at, the theft of the vehicle.
Judge Richards substituted the original order with one for a diversionary restorative justice process.
Read the decision.