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Issue 81 - Dec 2017
What the President Said Print E-mail

president_intro.jpgA review of R v SCU [2017] QCA 198

In Woorabinda there once existed a vacant green-coloured building. Locals called it the ‘Shrek building’, but there is nothing to suggest they bore any great affection for it. The building was used only to store old Council records and by children who would smoke, drink, sniff glue and light small fires there.

The building was destroyed by fire in the early hours of 10 January 2016. A boy was charged and convicted of the offence. He applied to appeal his sentence and R v SCU [2017] QCA 198 is the result.

This decision, in particular the judgment of the His Honour Justice Sofronoff, President of the Court of Appeal, traverses the principles and practice relevant to sentencing children. It is a salutary reminder of the burden upon Judicial Officers sentencing children, and the special duty of prosecutors and defence counsel to assist the court. It warns of the danger that merely disapproving and emotional submissions pose to the hard, logical and reasoned task of sentencing.

The decision reemphasises that sentencing children is a different and distinct process from sentencing adults. The facts of the offending and the circumstances of the offender must be assessed through the particular prism of the characteristics, the hope and the promise unique to young offenders.

This review will summarise the facts of the offending and the circumstances of the applicant. It will relate where the Court of Appeal found that the sentencing court went wrong, but most importantly it seeks to identify and describe the important principles and practice relevant to sentencing children.

The offence, the applicant and his circumstances

The offences

The applicant, a 15 year old Aboriginal boy, was found guilty by a jury of:

  1. Stealing a leaf blower;
  2. Attempting to enter with intent to commit an indictable offence; and,
  3. Wilfully and unlawfully setting fire to a building.

The arson of the ‘Shrek building’ was plainly the most serious offence. The building was remote from dwellings and no lives were at risk. However, it was insured for a fixed sum of $565,000, although its character and state at the time suggested a building of lesser real value.

The applicant ran from the fire, denied responsibility when interviewed, was chaged and found guilty by a jury.

The applicant

In applicant’s criminal history records sporadic offences from the age of 12. The circumstances of these were not examined in any detail at sentence, however, half were committed when he was under 14 and only one when he was subject to probation. None were indictable and only one, assaulting a police officer, was serious. The President concluded that ‘The offences that he had committed in the past do not themselves indicate a proclivity in the applicant to commit serious offences or that he has any dangerous tendencies – or, at least, any tendencies that cannot be curbed by appropriate guidance and counselling.’ [1]

The pre-sentence report described the applicant as a ‘follower’ whose offending resulted from keeping company with ‘a number of peers’ who engaged in substance misuse and offending. He was not a habitual substance abuser, had successfully completed community service obligations and had participated well in ‘life skills’ sessions, the ‘Reconnect’ program and Conditional Bail Program.

Though his early education had been difficult, attending 10 schools from the age of eight until this offending, the President concluded ‘… his successful completion of community service and of probation itself each time it was ordered suggest that he is also apt to follow virtuous examples as well as vicious ones if given the opportunity.’ [2]

The applicant’s family support

His family was supportive. Among other things, they moved home from Woorabinda to Rockhampton while he was on conditional bail there and travelled a further 270 kilometres to Emerald for his sentencing.

The pre-sentence report

The report detailed the above circumstances. It noted that the applicant declined to engage in a ‘CHART’ program when offered to him, portrayed himself as the victim and evaded responsibility for his actions. Oral evidence at sentence was that the disinclination of young offenders to participate in the ‘CHART’ program was common because ‘we’re challenging their thoughts, their actions, their behaviours.’ Notwithstanding these matters, the report writer opined that the applicant was suitable for conditional release, an appropriate program was available and the applicant was willing to comply.

The comprehensive program was detailed and explained. The President determined that ‘The sum total of these activities would be expected to keep a boy like the applicant busy and engaged, physically and mentally, leaving no room for any desire to seek self-made destructive entertainments on the weekend nights.’ [3]

The Woorabinda Community Justice Group

The Justice Group report spoke to the applicant’s parents’ support of him and the fact he had already endured extra-currial punishment by being excluded from his community of Woorabinda. The Group hoped for a sentence that would return the applicant to the community.

The report’s author, Davina Tilberoo, was available to speak to the report, but was not called upon to do so. The President said ‘This opinion, expressed by persons who have special local knowledge and whose appointment to the Group carries with it the trust of their community, should be given great weight. Of course, these expressions of views also have a statutory imprimatur.’ [4]

Support of the applicant by Reconnect Youth Services

The applicant tendered a letter from the program coordinator of Reconnect Youth Services, Michelle Richards. The organisation’s support services to young Aboriginal and Torres Strait Islanders includes programs to address recidivism. The applicant, a past participant in the service’s programs, asked to be referred there again after committing these offences. This happened.

Ms Richards detailed the programs and their purpose, and confirmed the applicant had good family support and was eager and willing to engage in programs if released. She expressed what the President called an important opinion: ‘Considering [the applicant’s] successful participation with our service in the past, I am confident that he would continue to move forward in his efforts to improve his circumstances and future opportunities.’ [5]

The applicant wanted to work and had been offered work by an uncle who had a fencing company. In addition, the applicant was a talented rugby league player and his father had signed him to play in the local team in 2017.

The approaches of prosecution and defence

The Prosecution

The prosecutor said the applicant’s criminal history demonstrated his obvious propensity for antisocial and criminal behaviour and accords with his blatant disregard for people, property and authority. The prosecutor referred to sentences from four previous cases and concluded ‘no other sentence is appropriate but detention.’ [6]

The Defence

Defence counsel sought to distinguish the cases referred to by the prosecutor. He submitted on the content and significance of the pre-sentence report, the Justice Group’s submission, the submission from Youth Justice that a conditional release order was appropriate and Ms Richardson’s opinion that the applicant would benefit from the programs offered. [7]

He submitted on the Youth Justice Principles. He referred to the applicant’s time in detention to date, his previous good performance on conditional bail, his proven parental support and the risk to that relationship if he were detained. He referred to the culturally appropriate supportive programs in which the applicant had engaged and was willing to continue to engage. These had ‘a particular focus on men’s business and the culturally appropriate transition to manhood which does not result in further contact with the criminal justice system.’ He submitted for a sentence of about 18 months detention with conditional release and two years’ probation. [8]

 The sentence

The learned trial judge imposed a sentence of three months detention for stealing, one month for attempted entering and two years for arson, all to be served concurrently. He ordered the applicant be released after serving 50 per cent of his detention. [9]

The judge considered recording a conviction, concluding ‘It’s a prima facie position that a conviction is not to be recorded against a child, but I think having regard to the egregiousness of the offending, this is an instance where detention having been [sic] warranted, it is appropriate to record convictions.’  [10]

 The relevant legislation

The Youth Justice Act 1992 (the Act)

The Act applied to the applicant’s sentencing. Section 134 provides that a child is to be treated as a child under the Act. Pursuant to s 149(1) a child must be sentenced under Part 7 of the Act. Part 7 includes s 150 which requires a sentencing court to have regard to certain matters including the Youth Justice Principles in Schedule 1 of the Act. Principles relevant to the applicant are:

‘8. A child who commits an offence should be-

(a) held accountable and encouraged to accept responsibility for the offending behaviour; and

(b) dealt with in a way that will give the child the opportunity to develop in responsible, beneficial and socially acceptable ways; and

(c) dealt with in a way that strengthens the child’s family.

...

10. A parent of a child should be encouraged to fulfil the parent’s responsibility for the care and supervision of the child, and supported in the parent’s efforts to fulfil this responsibility.

12. A person making a decision relating to a child under this Act should consider the child’s age, maturity and, where appropriate, cultural and religious beliefs and practices.

13. If practicable, a child of Aboriginal or Torres Strait Islander background should be dealt with in a way that involves the child’s community.

16. A child should be dealt with under this Act in a way that allows the child to be reintegrated into the community.

17. A child should be detained in custody for an offence, whether on arrest or sentence, only as a last resort and for the least amount of time that is justified in the circumstances.’

Section 150 requires a sentencing court to have regard to the nature and seriousness of the offence, the child’s previous offending and any pre-sentence report.

It also provides that a court must have regard to the special considerations stated in subsection (2). These are, relevantly:

‘(a) a child’s age is a mitigating factor in determining whether or not to impose a penalty, and the nature of the penalty imposed; and

(b) a non-custodial order is better than detention in promoting a child’s ability to reintegrate into the community; and

(c) the rehabilitation of a child found guilty of an offence is greatly assisted by-

(i) the child’s family; and

(ii) opportunities to engage in educational programs and employment; and

(e) a detention order should be imposed only as a last resort and for the shortest appropriate period.’

Also, s 150(1)(g) requires a court to have regard to submissions made by a representative of a community justice group. A ‘community justice group’ is a group established by regulation made under s 18 of the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984.

Principles

skate.jpgThe President concluded:

‘The effect of the provisions of the Youth Justice Act that I have referred to is that the Act is emphatic about the requirement that a court give consideration to all statutory factors relevant to a particular case, as well as the facts of the case itself in the ordinary way, before deciding upon an appropriate sentence to be imposed upon a child. At the forefront of the strictures imposed by the Act is the obligation of a court to consider all other options that are reasonably available before imposing a sentence of detention. Even at that point, a court must consider whether a conditional release order can properly be put to one side in favour of actual immediate detention of a child.’ [11]

Referring to the relevant provisions of the Act the President made the following observations:

  1. a child offender should be detained in custody only as a last resort and for the least time justified;
  2. the first Youth Justice Principle is that the community be protected from offences;
  3. Section 150(1)(d) requires the court to have regard to the nature and seriousness of the offence;
  4. otherwise, the Act emphasises considerations that, when they exist, would tend to mitigate sentence.

The President opined that the emphasis on mitigation is appropriate because judges need little reminder to take into account aggravating features. ‘Too often, they are very plain and painful to see.’

He noted that aggravating features should not be permitted to overshadow considerations peculiar to children. ‘One of these considerations is the short life history to which a judge can have regard in assessing likely reoffending and, by contrast, the large unknown future that awaits children.’ [12]

He noted ‘The statutory factors assume that, generally, youthful offending can be curtailed as a child matures. They assume that generally, the betterment of a child’s social attitudes will result from the embracing of the offending child by his or her parents, brothers and sisters and the community. The Act assumes that maturation will generally have a positive effect upon character.’

Programs to address a child’s behavioural issues are more likely to work when home and family support the process. With respect to sentencing Aboriginal children, a Community Justice Group has special knowledge of the community it serves and for that reason the Act compels a sentencing judge to have regard to their submissions. [13]

‘The Act requires a judge to be satisfied positively, for reasons that he or she must state, that none of the courses of action that do not involve incarceration would be likely to serve their intended purpose, which is the prevention of re-offending, before imposing the final alternative, that of incarceration.’ Even then, a judge must consider the possibility of conditional release. This option presupposes the availability of suitable programs to change a child’s offensive behaviours and attitudes. Section 221(2) confers discretion to impose conditions necessary to prevent reoffending.

The statute imposes ‘a heavy burden upon a court, by a process of exhaustive reasoning, to eliminate all the options offered by the Act before making a detention order. Correlatively, the Act also casts a burden upon the party advocating for a detention order to demonstrate, by comprehensive argument dealing with all relevant materials, why the last resort constitutes the only possible action.’ [14]

Errors of principle and the required approach

The errors of principle

The President identified a number of errors in the learned sentencing judge’s remarks.

His Honour erred in the view that the Act ‘does permit me to treat you more leniently than you would be if you were an adult’, when in fact the Act requires the judge to do so. Further the Act provides greater sentencing options than available to adult offenders, reduces maximum sentences and conditions the exercise of sentencing powers. [15]

His Honour erred by proceeding on the basis that case authority and the gravity of the offending obliged him to impose a sentence of detention and that ‘ordinarily’ that would be for a term of two to three years. The President analysed the cases and concluded that the cases were not factually comparable to the applicant’s situation, and even if they were their disparate outcomes did not demonstrate that the applicant would ‘ordinarily’ face detention of two to three years. [16]

Further, the cases were not of the kind that gave rise to a binding sentencing principle, but were no more than cases decided on their particular facts. They certainly did not lay down a principle that arson was so ‘egregious’ that its gravity ‘overwhelmed’ matters going to rehabilitation. [17]

Nor did the cases justify the view that the ‘community would be justifiably outranged at the prospect of an offender … serving a short period which could be the subject of the conditional release order.’ Conditional release orders were made in two of the cases and, in the applicant’s case, the community view reflected in the Community Justice Group’s submissions supported immediate release. [18]

The required approach

The President concluded:

‘[81] It is incumbent upon a judge, who is considering imposing a sentence of detention, to give consideration, based on the materials before the court, as to whether a conditional release order would be adequate to serve all the purposes of punishment. This would have to involve a consideration of the facts and opinions contained in relevant reports of the nature and content of the ‘structured program’ in which the child would be released and the nature and possible effectiveness of the conditions that could be imposed to prevent reoffending.

[83] If a conditional release order could be made that would serve the purposes of preventing reoffending and the development of the child into a law abiding adult, then detention could only be justified if the requirement to deter others from committing similar crimes or the retributive element of sentencing, or both of these together, outweigh the otherwise overwhelming weight the Act says that a court must give to the aspects of personal deterrence and rehabilitation.’

The s 208 injunction that detention is a sentence of last resort, ‘… to be imposed only when the court is positively satisfied that there is no other possible alternative, is therefore, not merely a platitude or a bromide.’ A judge sentencing a child must comply with the section and explain this in the sentencing remarks. [19]

In the end, the President determined the sentence should be set aside.

Recording a conviction

While part of the sentence, the decision to record a conviction or not requires separate consideration. A conviction can only be recorded pursuant to s 183 and s 184. Section 184 (1) provides that the court must have regard to all the circumstances of the case including:

(a) the nature of the offence, and

(b) the child’s age and any previous convictions, and

(c) the impact the recording of a conviction will have on the child’s chances of –

(i) rehabilitation generally; or

(ii) finding or retaining employment.

The President observed that Queensland Court of Appeal cases emphasise that the starting premise is that convictions not be recorded against children. The President observed that ‘Like the principles that constrain the exercise of the sentencing discretion, the discretion to record a conviction emphasises the special considerations that inherently apply to the situation of a child but that are usually immaterial to the position of adults.’ [20]

The errors

Turning to the applicant’s case, the President concluded that the learned sentencing judge had erred in several ways. [21]

The learned judge focused upon the ‘egregiousness of the offending’: itself a conclusion and one unsupported by any apparent reasoning.

The judge characterised the case as one ‘where detention having been warranted’: a matter that without some reasoning, is not relevant to the exercise of the discretion. The fact that detention is imposed, does not of itself justify the recording of a conviction;

The judge failed to consider the requirements of s 184.

His reasoning with respect to the arson does not explain the recording of convictions for the other less serious offences.

The learned judge failed to adequately give reasons for his decision.

The President concluded that the discretion to record a conviction miscarried and the conviction should be set aside.

The outcome

The President, along with Morrison JA agreed with the sentence proposed by McMurdo JA. McMurdo JA ordered that the applicant’s sentence be set aside and settled upon a sentence of 12 months’ detention. He said, ‘Under that sentence, the applicant would be entitled to be released already, with the Chief Executive at the same time making a supervised release order under s 228(1).’

What the President said: some statements of principle and practice

The President, by reference to law, principle and fact, detailed his reasons for setting aside the applicant’s sentence and agreeing with the sentence proposed by McMurdo JA. In doing so, he articulated some important principles applicable to sentencing children. The principles go to the heart of why it is that child offenders are dealt with differently from adult offenders.

The President disagreed with the prosecutor’s description of the applicant as a boy with an ‘obvious propensity for antisocial behaviours’ that ‘accord with his blatant disregard for other people’s property and people and authority’. Even if true, those matters only raise the issue of how the propensities might be reduced or reformed. He eschewed the use of such language in sentencing proceedings, concluding ‘Dyslogistic and emotional expressions rarely assist a court because they do not aid clear reasoning. They distract a decision maker from the actual issues that must be considered.’ [22]

It is precisely for the purpose of ameliorating such traits in childhood, and preventing or minimising their manifestation in adulthood, that the Act mandates that every other option be ruled out before detention is imposed. ‘Detention is a punishment that might well, as the learned judge recognised, result in a child being exposed to experiences that may wreck and disfigure a child’s transition to adulthood.’ [23]

While lack of insight in an adult offender can be a significant aggravating feature, the same can not automatically be said of a child offender. ‘In the case of a child, it is a factor that must be considered with an offender’s age, actual maturity, education, intelligence and social setting.’ [24]

The President acknowledged that assessing a child’s character and predicting and addressing the future risk of reoffending is not easy. A sentencing judge’s task might be aided by paying careful attention to both the breadth and the detail of the evidence before the court. Referring to the applicant, he said, ‘… while the actual contents of his own mind and imaginings are not known directly, they can be inferred from their effect upon those who have spent time with him, by reason of their relationship to him or by reason of their professional obligation to understand his predicament.’ [25]

In this context the President concluded that the opinion of a Community Justice Group is a matter of great weight. Section 150(1)(g) of the Act requires a court to have regard to it and Justice Principle 13 reinforces the importance of the groups views. [26]

Finally the President recognised that not all relevant matters are before a court in the form of oral or written submissions or other documents. Referring to the various oral and written submissions in this case, he said ‘To these independent submissions must be added the silent submissions that the applicant’s parents made by their support of their son after he was charged and also be their attendance at court for sentence. … Moral support of this kind also comes from the applicant’s uncle, with a promise of employment. It is axiomatic that a home, a strong family bond and honourable work are among the most powerful factors against reoffending.’ [27]

Conclusion

In the end, this case is not noteworthy so much for the fact it records a sentencing process that required correction, as it is for the fact it revisits and reemphasises the law, principles and process relevant to sentencing children. It is an important reminder that all of these are rooted in one simple fact: that whatever they may have done, children are at the beginning of their life-journey and not the end of it.

 

Franklin Richards

*Franklin Richards is a Legal Aid Queensland in-house barrister based in Townsville. He was admitted to the bar in 1997 and has worked in private practice, with the Aboriginal and Torres Strait Islander Legal Service and the Qld ODPP.



[1] Paragraph [16]

[2] Paragraph [19]

[3] Paragraph [23]

[4] Paragraph [26]

[5] Paragraph [29]

[6] Paragraphs [31] and [33]

[7] Paragraph [37]

[8] Paragraphs [38]-[41]

[9] Paragraph [42]

[10] Paragraph [43]

[11] Paragraph [53]

[12] Paragraph [55]

[13] Paragraph [56]

[14] Paragraph [57]

[15] Paragraph [67]

[16] Paragraph [76]

[17] Paragraphs [77], [78] and [80]

[18] Paragraph [79]

[19] Paragraphs [84]-[86]

[20] Paragraph [94]

[21] Paragraphs [97]-[102]

[22] Paragraph [106]

[23] Paragraph [107]

[24] Paragraph [110]

[25] Paragraph [112]

[26] Paragraph [113]

[27] Paragraph [123]


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