JCM v Director of Public Prosecutions

[2011] QChC 22

CHILDRENS COURT OF QUEENSLAND

CITATION:

JCM v Director of Public Prosecutions [2011] QChC 22

PARTIES:

JCM

(Applicant)

v

Director of Public Prosecutions
(Respondent)

FILE NO:

No 91 of 2011
No 92 of 2011
No 93 of 2011
No 94 of 2011

PROCEEDING:

Application for Sentence Review

ORIGINATING COURT:

Childrens Court, Kingaroy

DELIVERED ON:

25 August, 2011 (ex tempore)

DELIVERED AT:

Childrens Court, Brisbane

HEARING DATE:

25 August, 2011

JUDGE:

Dearden DCJ

ORDER:

(1) Leave granted for an extension of time.

(2)  Application for sentence review granted. The orders in respect of all matters on 11 May 2009, 15 January 2010, 16 April 2010, and 27 May 2010 are varied to the extent only that where the order "conviction recorded" appears in respect of any of those matters, the words "no conviction recorded" shall be substituted.

CATCHWORDS:

CRIMINAL LAW - SENTENCE - SENTENCING JUVENILES - APPLICATION FOR SENTENCE REVIEW - where convictions recoreded by the learned Childrens Court magistrate - where no evidence called or heard regarding the recording of convictions - where authority suggests that no convictions recordeed is a default position in juvenile matters - where recording a conviction is a substantial and detrimental step - where a greater degree of tolerance afforded to juvenile offenders - where the learned Childrens Court magistrate should have called for submissions regarding recording of convictions - where this failure to hear or call submissions amounted to an error of law - where ordered varied to substitute "conviction recorded" with "no conviction recorded"

COUNSEL:

Mr D. Law (solicitor) for the applicant

Ms E. Shaw (solicitor) for the respondent  

SOLICITORS:

Legal Aid Queensland, solicitors for the applicant

Director of Public Prosecutions for the respondent

HIS HONOUR:  [1] This is an application for sentence review by the applicant, JCM.  The sentence review is sought in respect of sentences for a range of offences dealt with by the learned magistrate at Kingaroy on 11 May 2009, 15 January 2010, 16 April 2010 and 27 May 2010.  I note for the record that the outline of submissions on behalf of the respondent, Director of Public Prosecutions, at page 3, sets out a table in respect of all of the relevant matters and I acknowledge the assistance of that table.

[2] It is clear from the transcript of the proceedings (those proceedings which have been able to be supplied) that on each occasion that the learned magistrate at Kingaroy dealt with the defendant/appellant, he did not call for nor consider any submissions in respect of the issue as to whether or not convictions should be recorded.

[3] I note as an aside that even in a busy court, the lawyer appearing for a defendant, and particularly for a juvenile defendant, should independently raise that issue, regardless of whether the magistrate adverts to it, but that may well be the insight of hindsight. 

[4] What is clear is that the learned magistrate has recorded convictions in respect of all of those matters where the sentences occurred on 11 May 2009, and 15 January, 16 April and 27 May 2010.  There is clear authority, firstly, that the default position is that convictions should not be recorded for juveniles.  Secondly, that the recording of a conviction for a juvenile is a substantial and detrimental step, particularly with respect to their rehabilitation.  Thirdly, the degree of tolerance, if I can put it that way, to ongoing offending, must be a more significant degree of tolerance when dealing with juveniles as opposed to dealing with adults where fairly shortly into an adult's criminal history, particularly if the offences are moderately serious, the option of not recording a conviction will ordinarily disappear as a practical reality.

[5] The application for sentence review is confined to the issue as to whether convictions should have been recorded for any or all of the relevant offences that I've identified on the specific dates.  In my view, it's clear that the learned magistrate fell into sentencing error in not calling for submissions and then considering them in respect of the issue of recording a conviction.  For that reason alone (even though on a sentence review all matters are to be considered afresh), it's clear that that process should have been followed.

[6] Had that process been followed and the learned magistrate turned his mind to the issue, it's clear to me that he should have, after deliberation, not recorded convictions on any of

these matters.  I note also that the applicant is now 17, so essentially these matters are the last of his juvenile history.  It would be most unfortunate, even though there are a disturbing number of offences, if he were to go into his adult life with convictions recorded for this large number of offences.

[7] In all of the circumstances then, I grant leave for an extension of time where it's necessary in any matter where the sentence review is out of time, and the application for sentence review is granted.  The orders in respect of all of the matters on each of those dates (11 May 2009, 15 January 2010, 16 April 2010, and 27 May 2010) are varied to the extent only that where the order "conviction recorded" appears in respect of any of those matters, the words "no conviction recorded" shall be substituted as an order in respect of each of the individual offences as identified on page 3 of Exhibit 2 (the prosecution/respondent outline).

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