R v B

[1995] QCA 231

IN THE COURT OF APPEAL	[1995] QCA 231
SUPREME COURT OF QUEENSLAND

C.A. No. 551 of 1994.

Brisbane

[R v. B]

T H E Q U E E N

v.

B

(Applicant)

____________________________________________________________________

McPherson J.A.
Pincus J.A.

de Jersey J.

Judgment delivered 09/06/1995

Joint reasons for judgment of McPherson J.A. and de Jersey J., separate concurring
reasons of Pincus J.A.

____________________________________________________________________

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.
APPEAL ALLOWED TO THE EXTENT THAT THE RECORD OF THE SUBJECT
CONVICTIONS BE DELETED.

____________________________________________________________________

CATCHWORDS:  CRIMINAL LAW - sentence - whether recording of conviction under the Juvenile Justice Act 1992 was a discretionary matter or an automatic consequence of the orders for detention and immediate release - whether to exercise discretion - seriousness of offence, youth of applicant, no prior criminal convictions, co-operation with police, guilty plea, unsettled childhood.

Ss. 120, 121, 124, 125 Juvenile Justice Act 1992.

Counsel:	Mr S Hamlyn-Harris for the applicant. Ms L Clare for the respondent.
Solicitors:	Legal Aid Office for the applicant. Director of Prosecutions for the respondent.

Hearing date:04/04/1995.

JOINT REASONS FOR JUDGMENT - McPHERSON JA and de JERSEY J

Judgment delivered 09/06/1995

The applicant is a 15 year old boy. When he was aged 14,

he committed three offences: breaking, entering and stealing at

a school tuckshop, armed robbery of a store while in company and with violence, and receiving cigarettes. His mother brought the offences to the notice of the police, which led to his being charged and pleading "guilty".

The learned District Court Judge sentenced him to 18 months

detention, with an immediate release order to run for three

months. He made those orders under the Juvenile Justice Act
1992.

The breaking, entering and stealing involved the applicant and two other persons breaking into the tuckshop of a school by smashing a window. They also damaged the front door. They stole products worth about $50. The complainants of the armed robbery were a married couple who operated a convenience store at Toowoomba. They were about to close the store when the applicant and another person, Joseph Tapau entered the shop. They were wearing balaclavas they had made from old clothes.

Tapau was armed with a .22 rifle and the applicant with a 10 cm

knife. They told the female complainant to get down on to her

knees, whereupon the applicant tied her hands behind her back

with electrical cable as he held the knife in one hand, close to her shoulder. Tapau told the male complainant to put money into

a bag, as he held the gun to the male complainant's head. The gun was in fact not loaded and there was no ammunition for it.

They stole $379. The receiving charge relates to 10 packets of cigarettes found by the police in the applicant's room. He admitted having received them from Tapau, who had told them that they were the result of a break-in of a service station which he

and two others had committed.

The armed robbery in particular was a very serious offence, amply warranting those orders, to which there has been no challenge. The indictment does however show that convictions were recorded, and the basis of the application is that the convictions should not have been recorded.

It is necessary to identify now the provisions of the

Juvenile Justice Act 1992 which in this case regulated the

recording of convictions. That is necessary in order to determine whether the recording of convictions was a

discretionary matter, or an automatic consequence of the orders

for detention and immediate release.

Section 121(3) of that Act provides that "in relation to a serious offence that is a life offence", the Court may order up to 10 years detention. Armed robbery in company with violence

is such an offence. But the learned Judge did not order the

18 months detention alone. He added an immediate release order.

That suggests that he may have been proceeding under
s.120(1)(f)(ii), which empowers the Court to order up to two

years detention "with or without an immediate release order",

provided however that s.121 "does not apply". While these

orders could have been made under s.121 - because that section applies to serious, life offences, because the term of detention is less than 14 years, and because s.176 gives the general power

to add an immediate release order - s.121(4) provides some basis

for questioning whether the learned Judge should be taken to
have proceeded under s.121.

Section 121(4) provides that s.121 "does not limit a court's power to make an order under s.120". Because the orders made here, detention for less than two years coupled with an immediate release order, are such as are provided for

specifically in s.120(1)(f)(ii), whereas s.121(3) makes specific reference only to detention for periods up to 10 years or 14 years, we consider that the learned Judge should be taken to

have made his orders "under" (cf. s.121(4)) the previous

section, 120(1)(f)(ii), and that that being so, one should conclude that s.121 "does not apply", in terms of s.120(1)(f)(ii).

As mentioned earlier, it has been necessary to identify the section under which the Judge proceeded for this reason. Section 124(4) provides that "if the Court makes an order under

s.121 ... and the order is not allowed under s.120 ... a conviction is taken to be recorded". (The order made here, being for detention less than two years, was "allowed" under

s.120.) We would read the word "taken" as equivalent to "deemed". On the other hand s.124(3) provides that "if a Court makes an order under s.120(1)(c) to (f) ... the Court may order that a conviction be recorded". In other words, the Court there

has a discretion. We consider that that was the situation here.

Our conclusion that the Judge should be taken to have

proceeded under s.120 fits in with the position established by

s.124. That provides in subs.(1) that prima facie a conviction is not to be recorded against a child offender. The section

goes on to deal with particular situations. Referring to s.120, for orders made under subs.(1)(a) or (b), no conviction may be

recorded: s.124(2). For orders under s.120(1)(c) to (f) a conviction may be recorded: s.124(3). Referring then to s.121, s.124(4) provides that "if a Court makes an order under s.121 ... and the order is not allowed under s.120 ... a conviction is taken to be recorded." In other words, if the Court imposes a

penalty within the more stringent range provided for by s.121, a

conviction is deemed to have been recorded. We say the more stringent penalty provided for by that section because the order made, in order to attract the automatic recording of a conviction, must not have been "allowed" under s.120. Now if an order were made for detention for, say, less than 10 years, in the case of a serious and life offence otherwise coming under

s.121(3), and that were regarded as an order "under s.121", then s.124 would be left making no provision for the discretionary recording of a conviction. That circumstance would favour then the construction that these subject orders should be taken to have been made "under" s.120(1)(f), in the terms of s.124(3), so

that the Court did indeed have a discretion to record a

conviction. Otherwise one would be left with the unlikely result that a conviction would not automatically be recorded - s.124(4) not applying - and there would be no discretion to record a conviction specifically granted by the legislation, notwithstanding that such a discretion is granted for orders under s.120(1)(c) to (f), encompassing orders of comparable severity to the ones made here.

In summary, s.121, as relevant to this case, gives the

Court power to impose detention orders for substantial periods

for serious offences which are life offences. But the Court may nevertheless choose to make orders under the more general sentencing provision, s.120. Proceeding under that section more substantially limits the period of any detention order, and specifically authorises the court's adding an immediate release order (although it should be noted that that power is engrafted on to s.121 in any event by s.176). If the Court makes an order under s.121 which is beyond the range permitted by s.120, in the case of a serious and life offence, then a conviction is deemed to have been recorded. If however, the Court makes the less

severe orders provided for by s.120, then the Court has a

discretion whether or not to record a conviction.

In this case, one should therefore proceed on the basis

that the recording of convictions was a discretionary matter.

Was the discretion exercised? The existence and exercise of the

discretion were not raised in submissions before the learned

Judge, and he himself made no reference to them in what he said.

There is no basis for concluding that the Judge turned his mind

to the question at all. It may well be, then, that the entry on

the indictment was made by a court officer in circumstances

where the Judge had not dealt with the issue in court. In these circumstances, the only basis on which we should safely proceed is that the discretion was not exercised. The recording of

convictions must therefore be set aside and we should ourselves
now exercise the discretion.

While the nature of the armed robbery, which was a very serious offence, weighs in favour of recording a conviction, the very young age of the applicant at the time of the offences weighs much more heavily the other way. It helps to note s.29 of the Criminal Code, which provides in substance that a person under 15 years of age is prima facie not criminally responsible, in the absence of proof that he had the capacity to know he

ought not do the relevant act. The applicant's pleas of guilty were of course an admission of criminal responsibility, but at 14 years, his social, moral and emotional development obviously

could not be considered to be complete. One should also note s.124(1) of the Juvenile Justice Act, which proceeds from the primary position that a conviction is not to be recorded against

a child offender. The applicant had no prior criminal convictions, pleaded guilty on an ex officio indictment, fully cooperated with the police from the outset, and has had the disadvantage of an unsettled childhood affected by many family

problems. Taking account of all of those matters and the others

to which s.125 refers, especially the impact of recording

convictions on his prospects of rehabilitation and employment,

We would not in this case order that convictions be recorded.

We would allow the application to the extent of deleting

the recording of the subject convictions.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 09/06/1995

I have had the advantage of reading the joint reasons of McPherson J.A. and de Jersey J. I have found the wording of the relevant provisions, namely ss. 120, 121 and 124(4) of the Juvenile Justice Act 1992, puzzling. The language of the last mentioned provision is particularly odd, but what the drafter seems to have had in mind is an order made under s. 121 which could not have been made under s. 120; assuming that is the right interpretation, then the judge had a discretion to exercise with respect to the recording of convictions. The orders made by the judge as set out at p. 12 of the record make no mention of this subject and it seems probable that the entry of a record of the convictions was simply an administrative error.

I agree with McPherson J.A. and de Jersey J. that this is not a case in which convictions should be recorded and concur in the order their Honours propose.