R v H

[1999] QCA 509

99.509

COURT OF APPEAL
de JERSEY CJ
DAVIES JA

PINCUS JA

CA No 257 of 1999
THE QUEEN
v.

H	(Applicant/Appellant)
BRISBANE ..DATE 03/12/99
JUDGMENT

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DAVIES JA: The applicant child pleaded guilty in the
District Court at Brisbane on 24 May last on six counts of
breaking, entering and stealing, all committed between June
and August 1998. All except one of them the applicant
committed with another child who had been sentenced shortly
before the applicant was. A total of $2,500.00 worth of
property was stolen or damaged.

The applicant was identified shortly after the commission of one of the offences, was then interviewed by the police and admitted his involvement. He was sentenced to probation for two years, a conviction was recorded and it was further ordered that compensation in the sum of $905.00 be paid to the Registrar of the District Court to be forwarded to the victims of his offences. That order for compensation was imposed as a condition of the probation.

Two complaints are made about that sentence. The first is against the recording of the conviction, the second is against a compensation order being imposed as a condition of the probation order.

In both cases it is submitted that the order lacked parity with those imposed on the other offender, whom I have just mentioned. The second one of them, it was submitted, could not be or ought not to be imposed as a condition of the probation order.

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It is difficult to see how any distinction on the evidence
and findings of the learned sentencing judge could be made
between the applicant and his co-offender or at least one
which is adverse to the applicant.

They committed five of the offences together and each committed a separate but similar offence. Each had previously been before the Children's Court in respect of an offence and placed on probation.

The applicant was placed on probation for six months on 6 November 1997 for an offence of house breaking and stealing.

No conviction was recorded and he was ordered to pay $105.00 restitution. The other offender had a slightly worse criminal history; breaking and entering in 1997, unlawful use or possession of a motor vehicle in 1997, unauthorised dealing with shop goods in 1998 and entering premises to commit an indictable offence also in 1998. He was still on probation in respect of the last of these offences when he committed the subject offences.

It is true that the learned sentencing judge in the present case had a discretion whether or not to record a conviction against the applicant. On the other hand, however, to do so would result in a sentence which, in my view, lacked parity with the sentence imposed on his co-offender.

An order for compensation had also been made in respect of the co-offender but it had not been imposed as a condition

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of his probation. Section 192 of the Juvenile Justice Act
provides specifically for restitution and compensation
orders in addition to the sentence imposed.

Pursuant to s.132, the section pursuant to which the learned sentencing judge imposed the order here, a probation order may contain a condition which the court considers necessary or desirable for preventing a repetition of the offence or the commission of other offences. That section, however, should be contrasted with s.94 of the Penalties and Sentences Act. See in particular sub-section 1(b) and (c).

It may be doubted whether, pursuant to s.132, an order may be made for restitution and compensation as a condition of the probation order, but it is unnecessary in my view for the purposes of this appeal, to decide that question. In order to achieve parity it would, in my view, be better if the order for compensation were made pursuant to s.192.

I would therefore grant the application and allow the appeal only to the extent of deleting the order that a conviction is recorded and that the order for compensation be made a condition of the probation.

THE CHIEF JUSTICE: I agree.

DAVIES JA: I would order that the order made by the learned sentencing judge below be amended by deleting the order that compensation be made a condition of the probation and making

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an order for compensation pursuant to s.192 of the Juvenile
Justice Act, in the same terms as the order made by the

learned sentencing judge.

THE CHIEF JUSTICE: Yes, I agree with that.

PINCUS JA: I agree.

THE CHIEF JUSTICE: Those are the orders.

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