R v GBJ

[2022] QCA 52

SUPREME COURT OF QUEENSLAND

CITATION:

R v GBJ [2022] QCA 52

PARTIES:

R
v
GBJ
(applicant)

FILE NO/S:

CA No 95 of 2021
DC No 3 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Rockhampton – Date of Sentence: 1 September 2020 (Clare SC DCJ)

DELIVERED ON:

14 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

26 November 2021

JUDGES:

Fraser and McMurdo JJA and Boddice J

ORDERS:

1.   Leave to appeal against sentence granted.

2.   Appeal allowed.

3.   The sentence below be set aside, to the extent that it be ordered that no conviction be recorded, but not otherwise.

CATCHWORDS:

CRIMINAL LAW – SENTENCING ORDERS – DISCRETION TO RECORD CONVICTION – RELEVANT CONSIDERATIONS – where the applicant pleaded guilty in the Childrens Court to one count of armed robbery, in company, with personal violence – where the applicant was sentenced to 12 months’ detention and a restorative justice order in respect of that offence – where the applicant was ordered to be released after serving 70 per cent of that sentence, with a conviction recorded – where on the same date the applicant was sentenced in respect of 42 unrelated offences – where for these offences the applicant was sentenced to probation for a period of two years, with convictions not being recorded – where the applicant had only recently turned 14 years of age and, whilst he had reoffended while subject to Court orders, the applicant had not previously had a conviction recorded against him – whether the nature of the offence, while serious, did not of itself warrant the recording of a conviction – whether the recording of a conviction would have a general impact on the applicant’s chances of finding or retaining employment – whether the applicant had poor prospects of rehabilitation – whether the recording of the conviction rendered the sentence manifestly excessive

Youth Justice Act 1992 (Qld), s 184

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
R v FAY[2020] QCA 154, cited
R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited

COUNSEL:

C J Lovel for the applicant
S L Dennis for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. FRASER JA:  I agree with the reasons for judgment of Boddice J and the orders proposed by his Honour.

2. McMURDO JA:  I agree with Boddice J.

3. BODDICE J:  On 26 February 2020, the applicant pleaded guilty, in the Childrens Court at Rockhampton, to one count of armed robbery, in company, with personal violence.

4. On 1 September 2020, the applicant was sentenced to 12 months’ detention and a restorative justice order in respect of that offence.  The applicant was ordered to be released after serving 70 per cent of that sentence.  A conviction was recorded.  285 days pre-sentence detention were declared as time served in respect of the sentence.

5. On the same date, the applicant was sentenced in respect of 42 unrelated offences.  In respect of those offences, the applicant was sentenced to probation for a period of two years.  Convictions were not recorded in relation to those offences.

6. The applicant seeks leave to appeal his sentence for the offence of armed robbery, in company, with personal violence.

7. The sole ground of appeal, should leave be granted, is that the recording of a conviction rendered the sentence manifestly excessive.

   Background

8. The applicant was born on 29 May 2005.  The offence was committed by him on 23 June 2019.  Accordingly, he had just turned 14 at the time of the offence.  He was aged 15 years at sentence.

9. The offence was committed in the evening of 23 June 2019.   Initially, the applicant remained outside while the applicant’s four co-offenders entered a convenience store staffed by a 17 year old complainant and a 50 year old complainant.

10. After entering the store, two of the co-offenders armed themselves with brooms from the back of the store, disconnecting the broom heads.  The 17 year old complainant was attacked with the broom handles from either side, while another co-offender walked behind and filled her arms with cigarette packets.

11. During the attack, the applicant entered the store, armed with a large tree branch.  He swung it at the complainants.  Shortly afterwards, all offenders fled the store.

12. The 17 year old complainant sustained marks to his chest and a laceration to his wrist.  The stolen cigarettes were valued at $526.74.

    Co-offenders’ sentences

13. Each of the co-offenders had been sentenced in relation to the offence, by the time of the applicant’s sentence.

14. One, a 13 year old with a past criminal history, was sentenced to a restorative justice order with no conviction recorded.  That person was sentenced on the basis they had acted as a lookout.

15. A second female aged 13 years with no criminal history, who was sentenced for an additional attempted robbery and 31 other offences, was sentenced to 510 days’ detention, being the time served to date, with no conviction recorded.  She was sentenced on the basis she had the most serious involvement, being the one who inflicted the violence.

16. A third female, aged 14 years with a prior criminal history, had offended whilst on parole and was also sentenced in relation to an additional attempted robbery, was sentenced to 18 months’ probation with no conviction recorded.

17. A fourth female, aged 15 years with a lengthy criminal history, including a previous robbery conviction, and offending in breach of a probation order, was sentenced to six months’ detention, to be served by way of conditional release order, with no conviction recorded.

    Sentence hearing

18. A six page criminal history was tendered at the sentence hearing.  It recorded that the applicant had commenced offending when aged 12 years.  There were numerous entries for dishonesty and public order offences.  On no occasion had the applicant had convictions recorded.

19. Relevantly, the criminal history recorded that, on 22 May 2019, the applicant was sentenced for various offences including an offence of attempted armed robbery in company.  On that occasion, the male complainant had been confronted in the early hours of the morning by a group of co-offenders pulling knives on him.  The applicant, who had served 179 days in pre-sentence detention, was sentenced to nine months’ detention, to be served by way of a conditional release order.  He was also sentenced to a good behaviour order in relation to other unrelated offences.

20. The offence the subject of this application was committed during the currency of the conditional release order and good behaviour order, as well as an earlier 12 month probation order, imposed on 9 July 2018.

21. The conditional release order was the subject of a successful variation application by the Department of Youth Justice on 19 November 2019, when the order was revoked.

22. Two pre-sentence reports were also tendered at the sentence hearing.  Relevantly, they recorded that the applicant had spent 285 days in pre-sentence detention; and had completed a 65 hour community service order, imposed on 9 July 2018.  The applicant was also recorded as having been exposed to violence, substance use and rejection during his formative years and was, at the time of the offending, disengaged from education and transient between family members, without a primary caregiver.  The report identified that the applicant accepted the complainants would have been scared and angry, but observed the applicant had expressed a low level of victim empathy, which was attributed to limited exposure to pro-social modelling during his formative years and anti-social peer associations.

    Sentencing remarks

23. The sentencing Judge observed that, whilst the applicant was only 15, he had committed multiple serious offences over an extended period of time.  Further, the offence had been committed whilst he was subject to Court orders and bail.

24. The sentencing Judge also observed that, at the time of the offence, the applicant was part of a group living in a criminal lifestyle.

25. As to the circumstances of the offence, the sentencing Judge observed that, whilst the applicant had not struck either complainant, he had armed himself with a branch and had swung at the two complainants.

26. The sentencing Judge recorded that detention was a last resort but found that the applicant’s offending was persistent and serious, with the most serious incident, the robbery, being organised and involving the use of makeshift weapons, with some gratuitous violence.

27. The sentencing Judge accepted that how the co-offenders had been treated was important but observed there were differences.  Some had pleaded guilty at an earlier stage.  Further, the co-offender who had actually struck blows that injured the 17 year old complainant pleaded guilty to a lesser number of offences and had evidence of positive signs of rehabilitation.  The applicant, however, had shown a strong resistance to change, had a history of hurting people by taking their property, as well as past violence, and had offended whilst on a conditional release order.

28. The sentencing Judge accepted that the applicant had pleaded guilty and had had a difficult earlier life, but observed that previous detention had not stopped the applicant from further offending, with the applicant quickly reoffending after release.  There was also evidence of a lack of interest in school, that the applicant had ignored the terms of his conditional bail, and that the applicant was refusing to accept rules and boundaries or supervision.  There was little evidence that the applicant thought about anyone but himself.

29. Before imposing sentence, the sentencing Judge said:

    “I understand that the general position is a conviction should not be recorded in respect of a juvenile offender.  But the legislation confers a discretion in the court in an appropriate case.  The relevant considerations on that question must include the nature of the offending as well as the age of the offender and previous convictions, together with the impact that recording a conviction may have.  It must be accepted that the recording of a conviction for [the applicant] will be an obstacle in the future, to finding a job, but – apart from the general disadvantage, there is no additional circumstances placed before me to indicate that it would have any more specific burden for [the applicant] and his aspirations for the future.

    None of your co-offenders have had a conviction recorded against them in relation to the robbery.  At the same time, none of them have shown the same degree of consistent contempt for the law as you.”

    Applicant’s submissions

30. The applicant submits that in respect of a juvenile, the starting point is that no conviction is to be recorded and, before a conviction is recorded, a sentencing Judge must be satisfied positively that the proper exercise of the discretion favours the recording of a conviction.

31. In the applicant’s case, the offending was not so inherently serious that a conviction should be recorded; none of the applicant’s co-offenders had a conviction recorded.  Further, the recording of a conviction generally would have adverse consequences for the applicant’s future rehabilitation and prospects of finding or retaining employment.  There was no obligation to lead evidence of a specific impact upon the applicant. 

    Respondent’s submissions

32. The respondent submits that the sentencing Judge recognised the primary position that a conviction was not to be recorded, identified the relevant considerations for the exercise of the discretion and specifically considered the applicant’s prospects of rehabilitation in exercising the discretion to record a conviction.

33. The respondent submits that, having regard to the recidivist nature of the applicant’s offending over an extended period of time, including an escalation in the offending whilst subject to Court orders and on bail, and after previous periods of detention, together with his refusal to engage in educational opportunities and programs, the recording of a conviction was not manifestly excessive.

34. Further, the respondent submits that no issue of parity arises as there were matters of distinction in the personal circumstances of the co-offenders, including a lack of persistence in reoffending.

    Consideration

35. Absent specific error, a sentence will only be set aside on the ground of manifest excess if circumstances as a whole support a conclusion that the sentence imposed is “unreasonable or plainly unjust” thereby evidencing that there must have been some unidentifiable failure to properly exercise the sentencing discretion.[1]

    [1]House v The King (1936) 55 CLR 499 at 504-505.

36. Such a conclusion arises only if “having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle”.[2]

    [2]R v Pham (2015) 256 CLR 550 at [28].

37. The starting point under the Youth Justice Act 1992 (Qld) is that no conviction is recorded against a juvenile.[3]  In exercising a discretion to record a conviction, regard must be had to all of the circumstances of the case, including the nature of the offence, the applicant’s age and any previous convictions and the impact of the recording of a conviction on the applicant’s chances of rehabilitation generally or of finding or retaining employment.[4]

    [3]R v FAY [2020] QCA 154 at [12].

    [4]Youth Justice Act 1992, s 184(i).

38. Those factors, having regard to all of the circumstances, support a conclusion that the recording of a conviction in respect of the applicant’s offending involved a misapplication of sentencing principles.

39. First, the applicant had only recently turned 14 years of age and, whilst he had reoffended while subject to Court orders, the applicant had not previously had a conviction recorded against him.

40. Second, the nature of the offence, while serious, did not of itself warrant the recording of a conviction.  None of the co-offenders had a conviction recorded for the offence.

41. Third, recording of a conviction would have a general impact on the applicant’s chances of finding or retaining employment.  That there was no evidence of a specific impact was unsurprising.  The applicant was only 15 years of age at sentence and was poorly engaged educationally.

42. Finally, whilst the applicant had engaged poorly in respect of programs and other efforts of rehabilitation, there was no finding that the applicant had poor prospects of rehabilitation.

    Conclusions

43. The recording of a conviction, in the circumstances, rendered the applicant’s sentence manifestly excessive.

44. I would order:

    1.Leave to appeal against sentence be granted.

    2.The appeal be allowed.

    3.The sentence below be set aside, to the extent that it be ordered that no conviction be recorded, but not otherwise.