R v FAY - [2020] QCA 154

SUPREME COURT OF QUEENSLAND

CITATION:

R v FAY [2020] QCA 154

PARTIES:

R
v
FAY
(applicant)

FILE NO/S:

CA No 124 of 2019
DC No 457 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Brisbane – Date of Sentence: 2 May 2019 (Farr SC DCJ)

DELIVERED EX TEMPORE ON:

23 July 2020

DELIVERED AT:

Brisbane

HEARING DATE:

23 July 2020

JUDGES:

Fraser and Philippides JJA and Davis J

ORDERS:

1.   Grant the application for leave to appeal.

2.   Allow the appeal.

3.   Set aside the recording of the conviction.

4.   Order that no conviction be recorded.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant is a child – where the applicant pleaded guilty to one count of armed robbery in company – where the applicant was sentenced to a period of detention of eight months with an order that he be released immediately, after serving 140 days on remand, and on conditional release for three months – where a conviction was recorded – where the applicant seeks leave to appeal the recording of a conviction on the ground that the sentencing judge failed to take into account relevant considerations – where the primary reasons given for the recording of a conviction were the seriousness of the charge and the applicant’s criminal history – where the sentencing judge failed to consider relevant countervailing factors and the pre-sentence report – where regard must be had to all the relevant circumstances – whether the sentencing discretion miscarried

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – DISCRETION TO RECORD CONVICTION – RELEVANT CONSIDERATIONS – where the applicant is a child – where the applicant pleaded guilty to one count of armed robbery in company – where the applicant was sentenced to a period of detention of eight months with an order that he be released immediately, after serving 140 days on remand, and on conditional release for three months – where a conviction was recorded – where the starting point is that no conviction be recorded – where all the circumstances of the case must be considered – where the applicant was deemed suitable for supervision – where prospects of rehabilitation remained – whether the conviction should be recorded

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

R v DAU; Ex parte Attorney-General (Qld)[2009] QCA 244, cited
R v KU; Ex parte Attorney-General (Qld) (No 2) [2011] 1 Qd R 439; [2008] QCA 154, cited
R v MBQ; Ex parte Attorney-General (Qld)[2012] QCA 202, cited
R v SCU[2017] QCA 198, followed

COUNSEL:

A Hoare for the applicant
C Wallis for the respondent

SOLICITORS:

Kilroy & Callaghan Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

DAVIS J: The applicant is a child who applies for leave to appeal against a sentence imposed upon him for one count of armed…

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 FAY

Details

AGLC: R v Fay [2020] QCA 154
Case: [2020] QCA 154
Decision Date: 23 July 2020

CaseChat Overview and Summary

The case before the court involved an appeal by the applicant, who was a child, against the recording of a conviction following a guilty plea to one count of armed robbery in company. The applicant had been sentenced to a period of detention of eight months with an order for immediate release after serving 140 days on remand, and a conditional release for three months. The primary issue for the court was whether the sentencing judge erred in failing to take into account relevant considerations, specifically countervailing factors and the pre-sentence report, when deciding to record a conviction. The applicant argued that the judge had miscarried in the exercise of the sentencing discretion by focusing primarily on the seriousness of the charge and the applicant's criminal history, without adequately considering other mitigating factors.

The court was required to determine whether the sentencing judge had correctly exercised the discretion to record a conviction, given the starting point that no conviction should be recorded unless all circumstances of the case were considered. The court noted that the applicant was deemed suitable for supervision and had prospects of rehabilitation, which are significant mitigating factors. The court recognised that the sentencing judge had not considered these countervailing factors and the pre-sentence report, which contained information that could have influenced the decision on recording a conviction. The court concluded that the judge's failure to consider all relevant circumstances amounted to an error in the exercise of the sentencing discretion.

Upon finding that the sentencing judge had acted on the wrong principle by not considering all relevant factors, the court granted the application for leave to appeal. The court allowed the appeal, set aside the recording of the conviction, and ordered that no conviction be recorded. This decision underscored the importance of considering all relevant circumstances, including countervailing factors and the pre-sentence report, when exercising the discretion to record a conviction, particularly in cases involving children.

Orders

Orders of the court

1. Grant the application for leave to appeal.

2. Allow the appeal.

3. Set aside the recording of the conviction.

4. Order that no conviction be recorded.

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 FAY [2020] QCA 154
PARTIES:	R v FAY (applicant)
FILE NO/S:	CA No 124 of 2019 DC No 457 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Brisbane – Date of Sentence: 2 May 2019 (Farr SC DCJ)
DELIVERED EX TEMPORE ON:	23 July 2020
DELIVERED AT:	Brisbane
HEARING DATE:	23 July 2020
JUDGES:	Fraser and Philippides JJA and Davis J
ORDERS:	1. Grant the application for leave to appeal. 2. Allow the appeal. 3. Set aside the recording of the conviction. 4. Order that no conviction be recorded.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant is a child – where the applicant pleaded guilty to one count of armed robbery in company – where the applicant was sentenced to a period of detention of eight months with an order that he be released immediately, after serving 140 days on remand, and on conditional release for three months – where a conviction was recorded – where the applicant seeks leave to appeal the recording of a conviction on the ground that the sentencing judge failed to take into account relevant considerations – where the primary reasons given for the recording of a conviction were the seriousness of the charge and the applicant’s criminal history – where the sentencing judge failed to consider relevant countervailing factors and the pre-sentence report – where regard must be had to all the relevant circumstances – whether the sentencing discretion miscarried CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – DISCRETION TO RECORD CONVICTION – RELEVANT CONSIDERATIONS – where the applicant is a child – where the applicant pleaded guilty to one count of armed robbery in company – where the applicant was sentenced to a period of detention of eight months with an order that he be released immediately, after serving 140 days on remand, and on conditional release for three months – where a conviction was recorded – where the starting point is that no conviction be recorded – where all the circumstances of the case must be considered – where the applicant was deemed suitable for supervision – where prospects of rehabilitation remained – whether the conviction should be recorded Youth Justice Act 1992 (Qld), s 183, s 184 R v DAU; Ex parte Attorney-General (Qld)[2009] QCA 244, cited R v KU; Ex parte Attorney-General (Qld) (No 2) [2011] 1 Qd R 439; [2008] QCA 154, cited R v MBQ; Ex parte Attorney-General (Qld)[2012] QCA 202, cited R v SCU[2017] QCA 198, followed
COUNSEL:	A Hoare for the applicant C Wallis for the respondent
SOLICITORS:	Kilroy & Callaghan Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent