R v F

[2018] QChC 6

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v F [2018] QChC 6

PARTIES:

The Queen

v

F

(Applicant)

FILE NO/S:

208/17

DIVISION:

Appellate

PROCEEDING:

Application for Sentence Review

ORIGINATING COURT:

Childrens Court Mareeba

DELIVERED ON:

29 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

26 March 2018

JUDGE:

Richards CCJ

ORDER:

Appeal allowed. Recording of convictions set aside. No convictions recorded

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GENERALLY – where applicant was convicted and convictions were recorded – where the Magistrate did not consider the rehabilitative aspect of sentencing before recording a conviction – whether the conviction should be set aside.

SOLICITORS:

D Law instructed by Legal Aid Queensland for the applicant

C L Barron instructed by the Office of the Director of Public Prosecutions for the respondent.

1. The applicant child was sentenced on 3 October 2017. He received six months detention with a conditional release order for three months on two charges one of burglary with intent to commit an indictable offence, and one of entering a dwelling with intent by break at night.  Convictions were recorded in relation to both of the charges. At the time of sentence he had spent 28 days in pre-sentence custody.  The applicant appeals against the recording of the convictions on the basis that the Magistrate did not place sufficient weight on the rehabilitative aspect of the sentencing process. 

1. The applicant was sixteen years of age at the time of the offences and he had a three page criminal history including numerous offences of a like nature.  He was at the time subject to two community based orders: one of 100 hours community service and one combined order of 100 hours community service with twelve months’ probation.

1. The offences themselves were not as serious as many that come before the court.  On the 5 August 2017 he entered his neighbour’s house via an open rear window and took $40.00 in coins.  When he was arrested he returned the container with the coins to the police and made admissions.  On the 1 September 2017 he entered the garage area of a house when the complainant’s adult daughter looked through a window and recognised him. He attempted to hide but then jumped through an open window at the other end of the garage and ran away.  He pleaded guilty to the offences.  A pre-sentence report indicates that he has had a deprived childhood in that he was given up at an early age by his mother, his mother died suddenly when he was twelve years of age which affected him and the family who was looking after him, and he had unresolved grief issues.  He was disengaged from schooling at the time. He had however completed a large portion of his community service in fairly quick time and he was more than half way through his second order of community service.

1. A sentence review is a rehearing on the merits of the case. The starting position in relation to the Youth Justice Act 1992 is that a conviction should not be recorded against a child. When deciding whether to record a conviction the court must have regard to all the circumstances of the case including the nature of the offence, the child’s age, any previous convictions, and the impact the recording of a conviction will have on a child’s chances of rehabilitation generally or finding or retaining employment. 

1. In The Queen v SCU [2017] QCA 198 McMurdo J stated:[1]

“The impact of the recording of a conviction necessarily involves a degree of speculation.  Nevertheless, the likelihood that the recording of a conviction, especially for an offence as serious as arson, would detrimentally affect his rehabilitation and his finding or retaining employment is undoubtedly high.  Clearly there is a connection between his chances of finding or retaining employment and his chances of rehabilitation.  It is unnecessary to consider particular types of work in which the applicant might be affected; the conviction for arson, without an appreciation of the mitigating circumstances of the applicant’s case, would deter many an employer.

I agree with the sentencing judge that this was a serious offence, even when committed by a 15 year old. It is also relevant that he had offended previously. But balancing the relevant considerations, in my view, the likely impact upon his future employment and his rehabilitation, from the recording of the convictions, could be so serious that the convictions should not be recorded.” 

[1] At paras 162 and 163

1. Offending of this nature is always regarded as serious particularly in light of this child’s criminal history. The Magistrate correctly identified these aggravating factors. However, they did not involve allegations of violence or sexual conduct which might warrant convictions being recorded for the safety of the community.  The offending was opportunistic and he quickly desisted when he was seen by the complainant’s daughter in the second offence.  In the deciding to record a conviction the learned Magistrate indicated:[2] 

“Now ordinarily there’s much better of course not to record criminal convictions against young people because, as Mr Anderson has said, you have your whole life ahead of you and the recording of criminal convictions can have a severe impact on you.  I need to weigh that up when I look at the provisions of section 184 against the expectation of the community and of course the fact that the penalty should act as some sort of deterrent to you.  I think in circumstances where you’ve had so many chances as you’ve been given to you and the manner that I’ve referred to that one of these offences were committed and you were charged and you committed the other offence.  When I weigh up those things set out in section 184 I think it has come to the point where a period of detention should be imposed upon you and that a conviction should be recorded against you.”

[2] Decision  P2 l36

1. Despite the realisation that a recording of criminal conviction for dishonesty could have an enormous impact on him, the Magistrate decided that the penalty should act as some sort of deterrent and recording a conviction would do that.   In my view it is difficult to see how the recording of a conviction would deter a child from committing further offences although it will no doubt deter employers from employing him.  The fact that a conviction has been recorded may mean that he is further isolated from positive influences in the community and pushed further towards undesirable elements within society. 

1. In those circumstances it appears to me that convictions should not have been recorded and I would allow the application and order that the convictions be set aside.