IN THE SUPREME COURT OF QUEENSLAND O.S.C. No. 25 of 1982 FULL COURT

Transcription

1 IN THE SUPREME COURT OF QUEENSLAND O.S.C. No. 25 of 1982 BEFORE: FULL COURT Mr. Justice Andrews S.P.J. Mr. Justice Dunn Mr. Justice Macrossan BRISBANE, 1 FEBRUARY 1983 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.) STEPHEN WILLIAM GOLLSCHEWSKI v. BEM JOHN SCHELTS Ex parte: BEM JOHN SCHELTS ORDER MR. JUSTICE ANDREWS: The Court will not dispose of the matter at once but we would like to put to you the possibility that we would regard the order with the statement by the stipendiary magistrate as an order and were we to put aside that order or to consider that it ought to be put aside we would want to hear some submissions on what substitute orders ought to be made and we would also think it appropriate that some consideration be given overnight by counsel to the making of submissions and what submissions should be made on the influence of the passage of time upon the position generally and whether or

2 not in fact he can be regarded as having been under the care and control of the Director of Children's Services; the effect that it has had on any order that is made or any order that we might make. MR. JUSTICE DUNN: Yes, I agree. It may be that he has been under the care and control of the Director, even though the Director has not been active in exercising care. I would certainly like some assistance in that regard, speaking for myself. MR. JUSTICE ANDREWS: We make it clear, of course, that we have not disposed of the matter; nor have we done anything that asks for submissions along certain lines IN THE SUPREME COURT OF QUEENSLAND O.S.C. No. 25 of 1982 BEFORE: FULL COURT Mr. Justice Andrews S.P.J. Mr. Justice Dunn Mr. Justice Macrossan BRISBANE, 2 FEBRUARY 1983 BETWEEN: (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.) STEPHEN WILLIAM GOLLSCHEWSKI -v-

3 BEN JOHN SCHELTS Ex parte: BEN JOHN SCHELTS JUDGMENT MR. JUSTICE ANDREWS: In these matters, the appellant was aged 14 years and 11 months at the time of committing the relevant offences which were, on the one hand, that on the 25th day of July, 1982, at Dalby, whilst the concentration of alcohol in his blood was 100 milligrams of alcohol per 100 millilitres of blood, he did drive a motor vehicle on a road namely Rochedale Street, Dalby; and, on the other hand, that on the same day and at the same place he drove the said motor vehicle not being at that time the holder of a driver's licence authorising him to drive a vehicle on that road. Having pleaded guilty, he was duly convicted in respect of each offence, and as to the former he was convicted and committed to the care and control of the Director of Children's Services for a period of two months. The stipendiary magistrate said that in arriving at that period, it was his intention that the defendant child spend that time in an institution. As to the second of the two matters, he was convicted and committed to the care and control of the Director of Children's Services for a period of two weeks. In arriving at that period, it was stated to be the stipendiary magistrate's intention that he be placed in an institution for the term. He appeared in the Court on 26 July 1982 when he was convicted, as I have said, in the company of his mother, according to the affidavit of Barbara Joan Flynn, a child care officer employed by the Department of Children's Services as an acting senior child care officer with the Court Services. The records of the department showed that the appellant had not been charged or brought before the Children's Court in relation to any offence prior to 26 July Miss Flynn said that an application by police for an order for care and control under s. 60 of the

4 Children's Services Act had been made on 11 June 1982 at the Children's Court at Gympie, but this order ultimately, on further material, proved to be a nullity. According to that material, the appellant's parents had divorced and at the time when the offence was committed he was resident with his mother having previously resided with his father in what appears, according to the material, to have been unsatisfactory circumstances. At the time of the commission of the offence, he was living with his mother. Miss Flynn's opinion, which represents the opinion of the Director of Children's Services, was that having regard to the applicant's history and problems because of a breakdown of his parents' marriage, it is not appropriate that he be held in an institution, and that to hold him in an institution would have a detrimental effect on the prospect of his remaining out of trouble in the future. The material further relates that the statement of the stipendiary magistrate, that he intended the applicant to spend the period of the care and control orders in an institution run by the director, was regarded by the director as tantamount to a direction that the applicant should not be released under the powers vested in him by virtue of the relevant section of the Children's Services Act, and that he was not prepared to place the applicant in the custody of his mother until the magistrate's order had been reviewed, or until an order was made that he be placed in his mother's custody pending determination of an appeal. Inquiries by Miss Flynn would indicate that the department's representative in the relevant area had not been informed of the arrest or appearance in court of the appellant, and no representative of the department was present at the time when he was dealt with. In my opinion, the orders of the stipendiary magistrate should be regarded as including his expression of intention. Were he making a recommendation, for example, in respect of parole in an appropriate case, that would be part of his order; that has been well held. The Director of

5 Children's Services, to whose care and control a child is committed, has an unfettered discretion subject to the Children's Services Act as to whether a child is to be kept in custody at any time. His powers are set out in s. 65 of the Act, and indicate that he has a very wide discretion. He is not bound in this regard by recommendations of the sentencing court, although in the proper exercise of the powers within his discretion, he would always regard it as relevant and deserving of weight. Here the director's view, as expressed by Barbara Joan Flynn, is to the effect that confinement would be clearly detrimental and would serve no purpose of sufficient benefit to the community to justify it. The director has said that the wording of the order is such that he regards it as tantamount to a direction to take the appellant into custody. This he may not do as it amounts to a fettering of his discretion which is contrary to the provisions and purposes of the Children's Services Act. It was, however, reasonable for him to interpret the order as purporting to require him to confine the appellant. I think the order, interpreting it as I have indicated, was beyond the power of the sentencing court, and I would set it aside. This should not be regarded as holding that recommendations as to confinement or otherwise should not be made by a sentencing court, or be given weight by the director in a proper exercise of his discretion. The circumstances here are unusual, and my observations are intended to apply to the facts of the matter. I am aware that the Magistrates Court is required to deal with very many cases of great variety. It is a very busy Court. Nevertheless, in dealing with offenders who are children or who, though responsible as adults are quite young, it is desirable to seek reports from the department or, where appropriate, from a probation officer in order that the Court may be more fully informed of matters relevant to questions of probation or parole, and whether young people are to be the subjects of custodial orders. There was no officer of the department present, as I have

6 said, although the appellant had previously been the subject of the application to which I have referred. The circumstances surrounding the commission of the offences indicate that they were reasonably serious. The manner of his driving, while subject to a.1 per cent concentration of alcohol in his blood, was very irresponsible, even alarming. Enough of his background is contained in the material before the Court below, and, indeed, before this Court to persuade me that he should be under the care and control of the director for a period of 18 months. However, I would not make a recommendation on the subject of confinement or otherwise in this case. At this stage, there are reasons for thinking on the material before us, that it would be to his advantage to place him in the custody of his mother while under the care and control of the director, at least for the time being. The director's discretion is quite wide, as I have said, and the appellant is now only 15 years of age. His background appears insecure. His parents' marriage has foundered, and his offences demonstrate a lack of parental care. It is my view that he should be dealt with under s. 62(1)(k) of the Children's Services Act, and that a conviction should not be recorded against him. He is very young, and it cannot be said that he has any criminal history as a child. I would, speaking for myself, make no order as to costs. I think that, although, as I have said the director's interpretation of the order was quite reasonable, a careful examination of the position would have indicated to him that he was not bound by what was tantamount to a direction as to confinement. I would, as I say, make no order as to costs. I have another further to say. MR. JUSTICE DUNN: I agree with the reason of my brother the presiding judge. I do not wish to add anything.

7 MR. JUSTICE MACROSSAN: I also agree. MR. JUSTICE ANDREWS: In each case the appeal is allowed; the Court orders that the order of the Magistrates Court be set aside, and that the appellant be committed to the care and control of the Director of Children's Services for a period of 18 months. No order as to costs