R v FAY

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.