R v Fam - [2017] QCA 64

[2017] QCA 64

COURT OF APPEAL

PHILIPPIDES JA
DOUGLAS J
APPLEGARTH J

CA No 306 of 2016
DC No 10 of 2016
DC No 13 of 2016

THE QUEEN

FAM Applicant

BRISBANE

THURSDAY, 13 APRIL 2017

JUDGMENT

PHILIPPIDES JA: The application before the Court is for leave to appeal against sentence. The only identified error concerns the recording of convictions in relation to the offences where detention orders were made. The absence of any sentencing remarks by the sentencing judge expressly directed to the discretion of whether or not to record a conviction, or, indeed, to s 184 of the Youth Justice Act, being the relevant provision, is such that it is appropriate to proceed on the footing that the discretion to record convictions miscarried.

In those circumstances, it is appropriate for this Court to exercise that discretion afresh. As was noted in Cunningham [2014] QCA 88, the Court is slow to record a conviction. Section 184 sets out the considerations relevant in deciding whether or not to record a conviction as including the nature of the offence, the child’s age and previous convictions, if any, the impact the recording of a conviction will have on the child’s chances of rehabilitation generally or finding or retaining employment. The relevant principles are set out in length in the decision of Cunningham.

In the present case, the nature of the offences in respect of which detention orders were made were serious matters of offending, in particular, the offence of arson. The repetitive use and driving of vehicles whilst unlicensed is also significant in this regard. The offending represented a concerted course of conduct on the part of the applicant in disregard of Court orders, and despite repeated contact with the authorities.

The applicant’s age is, of course, relevant, as is his disadvantaged background, and efforts to remove himself from an unsavoury group of peers. All of that is pertinent to rehabilitation generally. It can be assumed that the recording of a conviction will have a negative impact, in many cases, on employment. However, it is unlikely to have a deleterious impact on an offer of assistance with employment from the applicant’s brother. There was no evidence before the Court of any other particular employment offers which the applicant would not be able to take up if a conviction were recorded.

Exercising the discretion afresh, in relation to the recording of convictions, I would take the same approach that the sentencing judge did and would record convictions in relation to offences where detention orders were made. In the circumstances, I would grant the application for leave to dismiss the appeal.

DOUGLAS J: I agree with the reasons of the learned presiding judge and with the orders proposed. I merely wish to say, in addition, that the learned sentencing judge, when exercising his discretion to impose detention orders on the applicant in respect of certain of the offences, addressed a number of issues also relevant to the discretion to record…

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 Fam

Details

AGLC: R v Fam [2017] QCA 64
Case: [2017] QCA 64
Decision Date: 13 APRIL 2017

CaseChat Overview and Summary

In the matter of R v Fam, the applicant sought leave to appeal against the sentence imposed by the Children's Court. The primary issue before the Queensland Court of Appeal was whether the sentencing judge properly exercised the discretion to record convictions in relation to the offences where detention orders were made. The Court was required to determine if the absence of explicit sentencing remarks concerning the discretion to record convictions, and the failure to reference section 184 of the Youth Justice Act, resulted in a miscarriage of the discretion.

The Court of Appeal found that the discretion to record convictions had indeed miscarried due to the lack of explicit sentencing remarks. The Court proceeded to exercise the discretion afresh, considering the nature of the offences, the applicant's age, previous convictions, and the impact of recording a conviction on his chances of rehabilitation and employment. The Court held that the serious nature of the offences, including arson and repeated driving while unlicensed, combined with the applicant's age and disadvantaged background, justified recording convictions. The Court noted that while recording a conviction could negatively impact employment opportunities, there was no specific evidence that it would have a greater effect on the applicant than on any other 16-year-old.

The Court of Appeal concluded that the sentencing judge's approach was appropriate, and thus granted the application for leave to dismiss the appeal. The Court ordered that the application for leave be granted and that the appeal be dismissed.

Orders