The chief judge of the Childrens Court has overturned licence disqualifications served up by magistrates to two children.
They included a 17-year-old provisional licence holder caught drink driving shortly after eating a meat dish marinated “in overproof rum”.
In a separate case, the judge returned the licence of a 17-year-old boy arrested during a random breath test more than 36 hours after he was encouraged by friends to smoke some marijuana at a school graduation party.
Queensland Childrens Court President Deborah Richards has published three decisions in which children – all aged 17 – appealed against motor offence penalties imposed by magistrates presiding in the Maroochydore Childrens Court.
In the first case, a 17-year-old provisional (P1) licence holder –identified as MK –pleaded guilty on 9 March 2022 to a charge of driving a motor vehicle over the zero-alcohol limit, but under the general blood alcohol content limit of 0.05. As a result, the magistrate ordered a reprimand and a mandatory three-month licence disqualification.
However, lawyers for MK argued the sentence was manifestly excessive and submitted that the charge should have been dismissed under section 24A of the Youth Justice Act 1992.
Judge Richards, in her five-page written decision, said: “At 5.05pm on 27 December 2021, police intercepted a black Ford Ranger at Teewah Beach (on the Sunshine Coast).
“On the day in question, (MK) and his friends were camping at Rainbow Beach. They travelled up to Noosa and set up camp. They had cooked a meal, a brisket on the barbecue.
“At around 5pm they ate the brisket, which had been marinated in overproof rum. (MK) didn’t realise before he started eating it that this was the case, and he didn’t realise that it would affect his ability to drive the vehicle.
“He was pulled over by police approximately 45 minutes after eating the brisket. When he was pulled over by police, he indicated that he hadn’t been drinking until his friend reminded him about the brisket. In relation to the driving itself, there was nothing dangerous about the driving that aggravated the sentence.”
Judge Richards granted MK’s application against the manifestly excessive penalty by dismissing the charge and referring the matter to resolution via the restorative justice process.
In a second case, a 17-year-old provisional licence holder – identified as NIGHT – had his licence disqualified for three months after pleading guilty to a charge of driving while a relevant drug – namely delta-9-tetrhydrocannabinol (cannabis) – in the Maroochydore Childrens Court on 9 February 2022.
Judge Richards said: “(NIGHT) was 17 years old. He had no criminal or traffic history. He had recently completed year 12 at Nambour State High and lived at home with his father and younger sister.
“(NIGHT’s) mother had passed away at age four, and he had been raised by his father since that time. He had been employed since he was 15 years of age, and at the time of the sentence, he held down two jobs where he worked between 30 and 35 hours each week. His employment includes shifts finishing at 11:00pm. He also assisted with picking up and dropping off his younger sister to school. His sister now has to walk 3km each way to get to school.
“At the original hearing of this matter, a letter was tendered under the hand of (NIGHT’s) father which indicated that the child is not a drug or alcohol user, that on the day of graduation he had … attended a graduation party where he had been encouraged to smoke a joint.
“(NIGHT) called his father and asked him to come and pick him up because he didn’t like the feeling. It was the first time he had smoked marijuana and the first time that he had contacted his father in circumstances of that kind. His father’s employment was in the emergency department of the Nambour and Sunshine Coast University Hospital, so there had been many discussions within the family about the effects of drugs.
“His father told him that he was not to drive for 24 hours as the drugs could show up in his system and he followed that advice.
“On 13 November 2021 he was on his way home after working a seven-hour shift when he was pulled over by police for a random breath test and was tested by police 36 hours after smoking the joint at the party. He was found to still have marijuana in his system.
Judge Richards, who subsequently dismissed NIGHT’s charge and the licence suspension, said it was hard to imagine a more suitable case than NIGHT’s for a diversionary restorative justice order.
“This particular young man who, having consumed an illegal substance in circumstances where he was in a moment of weakness tempted, phoned his father so that he did not drive home, and sought his father’s assistance,” Judge Richards said.
“(NIGHT) then followed his father’s advice by not driving for the required period that his father advised. That mistake of fact does not excuse his behaviour but it does show that he followed advice and chose not to drive. He was not driving erratically.
“He had significant need for his license including assisting his younger sister. He entered an early plea showing remorse. He was the perfect example of a child who should have been given a chance to be diverted away from the criminal justice system.”
In a third case from the Maroochydore Childrens Court, Judge Richards dismissed a similar application for diversion for a 17-year-old woman, saying: “given the presence of two different drugs in (WEB’s) system, the fact that she drove the next morning (according to her interview with the police) and the fact that she was speeding either at the time or on the same day, this was not an appropriate manner for a section 24A dismissal of charges and the order imposed by the sentencing Magistrate was appropriate.
“The application is dismissed.”