R v BCN

[2013] QCA 226

SUPREME COURT OF QUEENSLAND

CITATION:

R v BCN [2013] QCA 226

PARTIES:

R
v
BCN
(applicant)

FILE NO/S:

CA No 84 of 2013
CCJ No 4 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Southport

DELIVERED ON:

20 August 2013

DELIVERED AT:

Brisbane

HEARING DATE:

8 August 2013

JUDGES:

Gotterson and Morrison JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Leave to appeal is granted.1.   

Allow the appeal to the extent of setting aside the order that convictions be recorded.2.   

No convictions be recorded in respect of each of the offences to which the applicant pleaded guilty on 20 February 2013.3.   

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to a number of offences committed over a period of months – where the applicant was 16 at the time of commission of all of the offences – where the appellant was sentenced to detention, probation and community service – where the sentencing judge ordered that convictions be recorded in respect of each offence – where the applicant contends the sentencing judge did not have proper regard to the impact on the applicant’s chances of rehabilitation and finding and retaining employment when ordering the recording of the convictions – whether the sentencing judge had proper regard to factors under s 184 Youth Justice Act 1992 (Qld) – whether the exercise of the sentencing judge’s discretion miscarried – whether the applicant’s sentence should be interfered with

Youth Justice Act 1992 (Qld), s 183, s 184(1)

R v JO[2008] QCA 260, cited
R v SBR[2010] QCA 94, cited

COUNSEL:

F Richards for the applicant
S P Vasta for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. GOTTERSON JA:  I agree with the orders proposed by Boddice J and with the reasons given by his Honour.

1. MORRISON JA:  I have had the advantage of reading the reasons of Boddice J.  With the addition of one matter, I am in agreement with those reasons.

1. The applicant was given the benefit of orders for suspended detention, probation and community service.  One cannot assume that he will necessarily reoffend as an adult.  If he does not, but a conviction is nonetheless imposed, then the benefit of those orders will be, at least to a substantial extent, denied to the applicant.  No appeal has been brought by the respondent from those orders.  Accordingly, we must proceed on the basis that the respondent accepts that they are an appropriate form of punishment.  It does not seem to me to be correct, in the particular circumstances of this case, to include the recording of a conviction which would take away the benefit which those orders have given.

1. Subject to what I have said, I agree with the orders proposed by Boddice J and with the reasons given by his Honour.

1. BODDICE J:  The applicant seeks leave to appeal a sentence imposed upon him on 5 April 2013 following pleas of guilty, in the Childrens Court at Southport on 20 February 2013, to four offences of wilful damage, one offence of unlawfully using a motor vehicle, one offence of attempted entry of premises with intent to commit an indictable offence, two offences of entering premises with an intent to commit an indictable offence and three offences of breaking and entering premises and stealing.

1. The applicant was sentenced to 12 months detention, suspended immediately under a three month conditional release order, and two years probation.  He was also ordered to serve 200 hours community service.  Convictions were recorded in respect of each of those offences.

1. The applicant does not seek leave to appeal against the sentences of detention, probation and community service.  His application relates to the recording of convictions in respect of each of those offences.

1. The applicant contends the recording of convictions renders the sentences manifestly excessive in all the circumstances. The applicant further contends the sentencing discretion miscarried because the sentencing judge did not have regard to, or gave insufficient weight to, s 184(1) of the Youth Justice Act 1992 (“the Act”).

Background

1. The applicant was born on 13 July 1995.  The offences were committed between 16 December 2011 and 8 April 2012.  Accordingly, the applicant was 16 years of age at the time of commission of all of the offences.

1. The applicant pleaded guilty to the offences on 20 February 2013.  He was sentenced on 5 April 2013.  At that time he was 17 years of age.

1. The applicant had no prior criminal history as a juvenile.  He had, however, committed three minor offences whilst on bail for these offences.  In respect of those offences he had been placed on a recognisance and/or fined.  No convictions were recorded in respect of any of those offences.

Offences

1. Count 1 was an offence of wilful damage committed between 16 December 2011 and 20 December 2011.  The applicant found a microwave outside Kingston State High School and damaged it by throwing it on the ground.

1. Count 2 was the offence of unlawfully using a motor vehicle.  It was committed on 23 December 2011.  The applicant, in company with two other people, stole an unlocked motor vehicle from the driveway of a residence at Browns Plains.  The steering column casing was removed and the car was started with a screwdriver.

1. Count 3 was the offence of attempted entry of premises with intent to commit an indictable offence.  It was committed on 19 January 2012.  The applicant, in company with another, attempted to steal a motor vehicle from a shopping centre car park at Browns Plains.  The applicant fled due to activation of the car alarm.

1. Count 4 was a further offence of wilful damage.  Counts 4 to 11 inclusive were all committed on 8 April 2012.  The applicant and two others drove to a shopping centre at Helensvale where the applicant and a co-offender used hammers to smash a glass panel next to some sliding doors.  Count 5 was an offence of entering premises with intent to commit an indictable offence.  The applicant and his co-offender entered the shopping centre through the broken panel intending to steal jewellery from a store inside the centre.

1. Count 6 was an offence of breaking and entering premises and stealing.  It was committed at the same shopping centre as counts 4 and 5.  The applicant and his co-offender attempted to break into a jewellery store through a roller door.  When that was unsuccessful, they smashed a glass display cabinet and took jewellery.  Over $28,000 worth of jewellery was stolen, with less than $1,000 being subsequently recovered.

1. Count 7 was a further offence of entering premises with intent to commit an indictable offence.  After leaving the shopping centre at Helensvale, the applicant and his co-offenders drove to a shopping centre at Burleigh Heads which they entered through an open door intending to break into another jewellery store.  They were interrupted by a security officer and fled.

1. Count 8 was a further offence of breaking and entering premises and stealing.  After committing count 7, the applicant and his co-offender used a hammer to break a glass window and enter a food store at Helensvale.  They first unsuccessfully attempted to break into a safe before taking the safe away.  They subsequently broke into it.  They stole over $1,000.

1. Count 9 was an offence of wilful damage.  Count 10 was a further offence of breaking and entering premises and stealing.  Both were committed after the count 8.  The applicant and his co-offender used a hammer to break into a convenience store at Helensvale.  They unsuccessfully attempted to break into an ATM and a cigarette cabinet.  The applicant’s co-offender then reversed a motor vehicle inside the store in an attempt to dislodge and steal the ATM.  They were unsuccessful and left the premises.  The amount of property stolen could not be determined due to the extent of damage to the premises and stock.

1. Count 11 was an offence of wilful damage.  After the commission of counts 9 and 10, the applicant’s co-offender damaged several glass panels and the metal framework of a neighbouring food store.  Some $2,000 worth of damage was caused in this incident.

1. The applicant was intercepted by police on 17 April 2012.  He agreed to participate in an interview with police where he admitted all offences.  He also identified his co-offender.

Sentence hearing

1. After outlining the nature and circumstances of the offences, and the sentencing options available to the sentencing judge, the prosecutor contended that given the number of offences, and their seriousness, convictions should be recorded.

1. Defence counsel submitted no convictions should be recorded having regard to the applicant’s age at the time of the offences, his lack of criminal history and the circumstances existing in his life at that time.  Those circumstances included a difficult family situation, disengagement from school and negative peer influences.  It was submitted the applicant’s circumstances had changed since the offences.  His family life had stabilised and he now lived with his sister and her partner who were said to be positive influences.  The applicant was also actively looking for work.

1. In sentencing the applicant, the sentencing judge noted the offences were serious offences, which had caused significant loss and damage to innocent people and companies, with no real prospect of any compensation or restitution being paid by the applicant.

1. In respect of the recording of convictions, the sentencing judge said:

“The Crown asked me to record convictions.  Your counsel submitted that I should not do so.  I recognise that the general rule involving juveniles is that convictions should not be recorded, but in your case I propose to record convictions for these offences.  The number of offences involved, the seriousness of the offending and the fact that you have commenced to offend – that is to commit offences as an adult whilst on bail for the present offences, and if you are going to continue to commit offences as an adult, I consider that the Court which deals with you should be aware of your previous criminal history as a juvenile.”

Submissions

1. The applicant submitted the sentencing discretion miscarried because the sentencing judge, in recording convictions, did not have regard to the impact of recording convictions on the applicant’s chances of rehabilitation generally, and of finding and retaining employment specifically. Those were factors s 184(1) of the Act specifically requires a court to take into account.

1. The applicant further submitted the sentencing judge, in observing that if the applicant was going to commit offences as an adult, the court dealing with him should be aware of his previous criminal history as a juvenile, made an assumption the applicant will re-offend.  Such an approach has been disapproved by this Court in the past.[1]

   [1]R v JO [2008] QCA 260 at [13].

1. The applicant submitted when proper regard is had to the consequences of recording convictions to rehabilitation generally, and the prospects of employment specifically, a proper exercise of the sentencing discretion would lead to no convictions being recorded for these offences.  The applicant’s capacity to find and retain work was already compromised by his limited educational achievements, and by speech and language difficulties.  The applicant is in receipt of a part disability pension as a consequence of these difficulties.  Further, the applicant had good prospects of rehabilitation.  He was actively seeking work, having previously been offered, but subsequently lost, an apprenticeship.

1. The respondent conceded the sentencing judge did not specifically take into account the impact a recording of a conviction would have on the applicant’s prospects of finding or retaining employment, one of the requirements specifically to be considered under s 184 of the Act. However, the respondent submitted this error would not cause the court to interfere with the sentencing discretion as the sentencing judge expressly noted that ordinarily a conviction should not be recorded in the applicant’s circumstances. That acknowledgement encompassed, in practical terms, the matters to be considered under s 184 of the Act.

1. The respondent submitted the sentencing judge’s reference to concerns that an adult sentencing court ought to have access to details of these offences must be viewed against the background of the seriousness of the applicant’s offending conduct.  The offences were committed over a number of months.  In respect of the bulk of the offences, they were committed in the early hours of 8 April 2012 and involved targeting four different retail premises, including using the technique of ram-raiding one of those premises.  They involved a large cost to the community.  The applicant had also committed three further separate offences whilst on bail for these offences.

1. Further, the respondent submitted that even if there was an error in the exercise of the discretion by the sentencing judge, this Court, in exercising that discretion afresh, would still record convictions for the offences on 8 April 2012.  At the hearing, the respondent conceded, quite fairly, that having been given the benefit of suspended detention, probation and community service, the recording of convictions would be detrimental on the applicant if he completed these orders satisfactorily.

Discussion

1. Section 184 of the Act requires a court, when considering whether or not to record a conviction, to have regard to all of the circumstances of the case, including the impact the recording of a conviction will have on the child offender’s chances of rehabilitation generally, or finding and retaining employment.

1. That specific requirement arises in circumstances where the Act expressly provides that a conviction is not otherwise to be recorded against a child who is found guilty of an offence.[2]  The combination of these provisions means the “primary position”, in relation to the recording of a conviction, is that a conviction not be recorded.[3]

   [2]Act, s 183.

   [3]R v SBR [2010] QCA 94 at [15], citing R v JO [2008] QCA 260 at [12]; [16].

1. Whilst the sentencing judge recognised the general rule involving juveniles is that a conviction should not be recorded, that reference was simply an acknowledgement of the “primary position” in respect of juveniles.  It does not follow that in making that observation the sentencing judge had regard to the impact the recording of a conviction would have on the applicant’s chances of rehabilitation generally, or finding or retaining employment.

1. The absence of any reference to those considerations, coupled with the specific reference to the consideration that any court dealing with the applicant as an adult should be aware of his previous criminal history as a juvenile can lead to only one reasonable conclusion.  The sentencing judge focused on the seriousness of the offending, and gave no weight, or insufficient weight, to the impact the recording of a conviction would have on the applicant’s chances of rehabilitation generally or finding or retaining employment.  By failing to give due and proper weight to that necessary consideration the exercise of the sentencing judge’s discretion miscarried.  That discretion must be re-exercised by this court.

1. In re-exercising that discretion, the undoubted seriousness of the applicant’s offending conduct, particularly on the evening of 8 April 2012, must be balanced against his age at the time of that offending conduct, his personal circumstances, the fact that he had no prior history, and his prospects of rehabilitation and employment in the future.

1. Whilst the applicant’s offending behaviour involved persistent acts of criminality, with a consequence of substantial property damage and loss to members of the community, that criminality is properly to be viewed as conduct engaged in as a child at a time when he had a lack of support and was subject to adverse peer pressure.

1. Further, the material placed before the sentencing judge indicated the applicant had limited education, and had learning disabilities.  His prospects of finding and retaining employment would be adversely affected by those circumstances.  The recording of convictions would also adversely impact on the chances of finding and retaining employment, and on his prospects of rehabilitation generally.

1. After giving due and proper weight to the matters referred to in s 184 of the Act, and in particular the impact of the recording of any convictions on the applicant’s ability to find and retain employment, I would exercise the discretion not to record convictions in the present case.

1. I would grant leave to appeal, and allow the appeal to the extent of setting aside the order that convictions be recorded.  I would order no convictions be recorded in respect of each of the offences to which the applicant pleaded guilty on 20 February 2013.