R v BCO - [2013] QCA 328

SUPREME COURT OF QUEENSLAND

CITATION:

R v BCO [2013] QCA 328

PARTIES:

R
v
BCO
(applicant)

FILE NO/S:

CA No 145 of 2013
DC No 15 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Townsville

DELIVERED ON:

1 November 2013

DELIVERED AT:

Brisbane

HEARING DATE:

18 October 2013

JUDGES:

Margaret McMurdo P, Morrison JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for leave to appeal against sentence granted.

2. Appeal against sentence allowed.

3. The sentence is varied to the extent only of setting aside the order recording a conviction on count 1 and substituting the order that no conviction is recorded on count 1.

CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where applicant pleaded guilty to one count of rape and one count of indecent treatment of a child under 16 with a circumstance of aggravation – where the applicant was 15 years 11 months’ old at the time of offending – where the applicant was sentenced to two years’ probation pursuant to s 176(1) of the Youth Justice Act 1992 (Qld) – where a conviction was recorded for the count of rape, but not the other count – where the sentencing judge assumed the recording of the conviction would not adversely impact the applicant or his employment prospects – whether the sentencing judge erred in acting on that assumption – where discretion to record or not record a conviction to be exercised afresh – whether the balance of the factors favours recording a conviction

Youth Justice Act 1992 (Qld), s 176, s 183, s 184

R v Cay; ex parte Attorney-General (Qld) (2005) 158 A Crim R 488; [2005] QCA 467, cited
R v SBR[2010] QCA 94, cited
R v SBY[2013] QCA 50, cited

COUNSEL:

M J Copley QC for the applicant (pro bono)
P J McCarthy for the respondent

SOLICITORS:

Aboriginal & Torres Strait Islander Legal Service (Queensland) for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: I agree with Mullins J’s reasons for granting this application for leave to appeal against sentence and allowing the appeal to the extent of setting aside the order recording a conviction on count 1 and substituting the order that no conviction is recorded on count 1.

MORRISON JA: I have had the advantage of reading the reasons of Mullins J. I agree with those reasons and the orders proposed by her Honour.

MULLINS J: The applicant pleaded guilty to one count of rape (count 1) committed on 19 June 2011 when he was almost 15 years 11 months old and one count of indecent treatment of a child under 16 with a circumstance of aggravation (count 2) committed at the same time. On 12 April 2013 he was sentenced to two years’ probation pursuant to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v BCO

Details

AGLC: R v BCO [2013] QCA 328
Case: [2013] QCA 328
Decision Date: 1 November 2013

CaseChat Overview and Summary

The case of R v BCO involved the applicant who had pleaded guilty to one count of rape and one count of indecent treatment of a child under 16 with a circumstance of aggravation. The applicant was 15 years 11 months old at the time of the offending. The sentencing judge imposed a sentence of two years’ probation under section 176(1) of the Youth Justice Act 1992 (Qld) and recorded a conviction for the count of rape but not for the other count. The applicant subsequently appealed against the sentence, arguing that the sentencing judge erred in assuming that the recording of a conviction would not adversely impact the applicant's employment prospects.

The court was required to determine whether the sentencing judge erred in making the assumption and whether the discretion to record or not record a conviction should be exercised afresh. The court also had to consider whether the balance of factors favoured recording a conviction on count 1. The court found that the sentencing judge did err in acting on the assumption and that the discretion to record or not record a conviction should be exercised afresh. The court further found that the balance of the factors favoured not recording a conviction on count 1.

Accordingly, the court granted the application for leave to appeal against sentence, allowed the appeal against sentence, and varied the sentence to the extent only of setting aside the order recording a conviction on count 1 and substituting the order that no conviction is recorded on count 1. This decision highlights the importance of carefully considering the impact of recording a conviction on a young offender's future prospects and the need for sentencing judges to exercise their discretion with care.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal against sentence allowed.

3. The sentence is varied to the extent only of setting aside the order recording a conviction on count 1 and substituting the order that no conviction is recorded on count 1.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v BCO [2013] QCA 328
PARTIES:	R v BCO (applicant)
FILE NO/S:	CA No 145 of 2013 DC No 15 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Townsville
DELIVERED ON:	1 November 2013
DELIVERED AT:	Brisbane
HEARING DATE:	18 October 2013
JUDGES:	Margaret McMurdo P, Morrison JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence granted. 2. Appeal against sentence allowed. 3. The sentence is varied to the extent only of setting aside the order recording a conviction on count 1 and substituting the order that no conviction is recorded on count 1.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where applicant pleaded guilty to one count of rape and one count of indecent treatment of a child under 16 with a circumstance of aggravation – where the applicant was 15 years 11 months’ old at the time of offending – where the applicant was sentenced to two years’ probation pursuant to s 176(1) of the Youth Justice Act 1992 (Qld) – where a conviction was recorded for the count of rape, but not the other count – where the sentencing judge assumed the recording of the conviction would not adversely impact the applicant or his employment prospects – whether the sentencing judge erred in acting on that assumption – where discretion to record or not record a conviction to be exercised afresh – whether the balance of the factors favours recording a conviction Youth Justice Act 1992 (Qld), s 176, s 183, s 184 R v Cay; ex parte Attorney-General (Qld) (2005) 158 A Crim R 488; [2005] QCA 467, cited R v SBR[2010] QCA 94, cited R v SBY[2013] QCA 50, cited
COUNSEL:	M J Copley QC for the applicant (pro bono) P J McCarthy for the respondent
SOLICITORS:	Aboriginal & Torres Strait Islander Legal Service (Queensland) for the applicant Director of Public Prosecutions (Queensland) for the respondent