R v JAB

Case [2020] QCA 124

SUPREME COURT OF QUEENSLAND

CITATION:

R v JAB [2020] QCA 124

PARTIES:

R
v
JAB
(applicant)

FILE NO/S:

CA No 299 of 2019
DC No 33 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Townsville – Date of Sentence: 6 August 2019 (Clare SC DCJ)

DELIVERED ON:

9 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

13 May 2020

JUDGES:

Sofronoff P and Boddice and Ryan JJ

ORDERS:

1.   The application for leave to appeal against sentence is granted.

2.   The appeal against sentence is allowed.

3.   The sentence imposed in respect of Count 1 is set aside, to the extent that no conviction is recorded, but otherwise confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to one count of attempted armed robbery (Count 1) and one count of unlawfully using a motor vehicle (Count 2) – where the applicant was ordered to be detained for six months for Count 1, with that period of detention being suspended immediately – where a conviction was recorded on Count 1 – where the applicant was ordered to be released under the supervision of the chief executive for a period of two years and disqualified from holding or obtaining a driver licence for six months for Count 2 – where a conviction was not recorded on Count 2 – where the applicant seeks leave to appeal the sentence for Count 1 on the ground that the sentencing Judge erred in failing to invite submissions from the applicant’s counsel as to whether a conviction ought to be recorded – where the prosecutor made submissions in relation to the issue of recording a conviction but defence counsel did not – where the prosecutor expressly acknowledged the consequences the recording of a conviction may have on the applicant’s future employment opportunities – whether the recording of the conviction breached the principles of natural justice – whether the sentencing discretion miscarried

Youth Justice Act 1992 (Qld), s 176(2), s 183, s 184, s 220, s 221

R v Cunningham[2005] QCA 321, cited
R v Dodd[2010] QCA 31, cited
Re Hamilton; Re Forrest [1981] AC 1038; [1981] 2 All ER 711, cited
R v Kitson[2008] QCA 86, cited
R v Moodie[1999] QCA 125, cited
R v Robertson (2017) 268 A Crim R 240; [2017] QCA 164, distinguished
R v SCU[2017] QCA 198, applied

COUNSEL:

N A Bennett for the applicant
A Walklate for the respondent

SOLICITORS:

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

  1. THE COURT:  On 28 June 2019, the applicant pleaded guilty to two offences in the Childrens Court of Queensland at Townsville.  The first offence was attempted armed robbery.  The second offence was unlawfully using a motor vehicle.  Both were committed on 27 October 2018.

  2. On 6 August 2019, the applicant was ordered to…

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Details
AGLC
R v JAB [2020] QCA 124
Case
[2020] QCA 124
Decision Date

CaseChat Overview and Summary

The applicant, born on 1 February 2002 and aged 17 at the time of sentencing, sought leave to appeal against his sentence for one count of attempted armed robbery (Count 1) and one count of unlawfully using a motor vehicle (Count 2). He pleaded guilty to these offences which occurred when he was 16 years old. The applicant had a prior criminal history which included multiple property offences and breaches of court orders, for which no convictions had been recorded. In respect of Count 1, the applicant was sentenced to six months detention, suspended immediately, and a conviction was recorded. For Count 2, he was ordered to be released under supervision for two years and disqualified from holding or obtaining a driver's licence for six months, with no conviction recorded.

The primary legal issues for the court to decide were whether the sentencing Judge erred in not inviting submissions from the applicant's counsel as to whether a conviction ought to be recorded for Count 1 and whether the recording of a conviction rendered the sentence manifestly excessive. The applicant contended that the failure to invite submissions from his counsel regarding the recording of a conviction for Count 1 breached the principles of natural justice. The respondent argued that the sentencing Judge had considered the relevant factors and that the recording of a conviction did not render the sentence manifestly excessive.

The court found that while the principle of natural justice required adequate notice and an opportunity to be heard, it did not oblige a sentencing judge to set out every possible alternative in sentencing a defendant. Unless the judge was considering imposing a sentence that was unusual or an additional penalty which was unusual, there was no obligation on the judge to advise counsel of that possible outcome. The court held that the sentencing Judge did not err in failing to invite submissions from the applicant's counsel as to whether a conviction ought to be recorded, as it was not considered an unusual or additional penalty. However, the court found that the recording of a conviction for Count 1 rendered the sentence manifestly excessive, as it did not align with the principles of natural justice.

The court granted the application for leave to appeal against sentence and allowed the appeal. The sentence imposed in respect of Count 1 was set aside to the extent that no conviction is recorded, but otherwise confirmed.

Orders

Orders of the court

1. The application for leave to appeal against sentence is granted.

2. The appeal against sentence is allowed.

3. The sentence imposed in respect of Count 1 is set aside, to the extent that no conviction is recorded, but otherwise confirmed.

Background

Background to the litigation

The applicant seeks leave to appeal the sentence for the count of attempted armed robbery. He relies on two grounds, should leave be granted:(1)The learned sentencing Judge erred in failing to invite submissions from the applicant’s counsel as to whether a conviction ought to be recorded.(2)The recording of a conviction rendered the sentence manifestly excessive.Background The applicant was born on 1 February 2002. He was aged 16 years at the time of the offences and 17 years at sentence. The applicant had a relevant criminal history. It included multiple property and other offences when he was aged 15 years. The applicant had previously been placed on probation and ordered to perform community service. He had been dealt with for a breach of the probation order. On each of his previous appearances, no conviction had been recorded.Offences The attempted armed robbery offence occurred after the applicant failed to pay for a taxi ride provided by the complainant, a 31 year old taxi driver. The applicant repeatedly punched the complainant to his face, causing pain to the mouth and nose. As a consequence, the complainant lost control of the taxi, which rolled onto a fence causing damage to the fence and the taxi. At that point, the applicant ordered the complainant out of the taxi, directing that he leave his bag or the applicant would “pull the gun out”. The offence of unlawfully using a motor vehicle involved the applicant driving away in the taxi. The applicant was apprehended by police soon after these events. A police vehicle and the taxi were damaged during the applicant’s apprehension.Sentence hearing At the sentence hearing, the prosecutor submitted that, having regard to the applicant’s previous history of entering houses, stealing property, unlawfully using motor vehicles and past breaches of Court orders, the applicant demonstrated a lack of insight into his offending and disregard for past Court orders. It was submitted it would be beneficial for the applicant to be further supervised, given that a pre-sentence report identified anger and alcohol use as risk factors. The prosecutor submitted that, having regard to the serious nature of the offending and the applicant’s past criminal history, and even allowing for the early pleas of guilty, albeit in the face of a strong Crown case, the applicant should be sentenced to a detention order for the attempted armed robbery, but that order could be mitigated by a conditional release order pursuant to sections 220 and 221 of the Act. It was submitted probation ought to be imposed for the count of unlawfully using a motor vehicle as it would provide further supervision beyond the period of the conditional release order. In respect of the recording of a conviction, the prosecutor submitted:“… your Honour has to have regard to section 184 and the factors set out in that section, including the nature of the offence, his age and prior convictions, the impact it would have on his rehabilitation and finding or retaining employment. In my submission, this is a serious example of violence showing escalation in offending, and the defendant is now 17 and a-half with a lengthy criminal history. This may be, hopefully, one of the last times he appears before the [Childrens] Court. However, it is accepted that there may be some impact on him obtaining employment if a conviction were recorded.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The respondent submits the recording of a conviction in respect of Count 1 did not render the sentence manifestly excessive. The sentencing Judge plainly had reference to the relevant factors in the exercise of the discretion. There was no evidence that the recording of a conviction would impact on the applicant’s rehabilitation generally or on finding or retaining employment. The applicant had a significant past criminal history, including noncompliance with previous Court orders. The offence of attempted armed robbery was planned, violent and committed against a vulnerable complainant. The recording of a conviction for the offence of attempted armed robbery fell within a proper exercise of the sentencing discretion.Consideration A principle of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against that person.[1][1]Re Hamilton; Re Forrest [1981] AC 1038 at 1045. This principle has been adopted by this Court to set aside sentences imposed without first inviting submissions as to matters such as licence disqualification,[2] a later than legislatively provided for parole release date,[3] the declaration of a serious violent offence,[4] or the recording of a conviction where reasons were not given and submissions were not invited before the recording of that conviction.[5][2]R v Cunningham [2005] QCA 321 at 5.[3]R v Kitson [2008] QCA 86 at [21].[4]R v Moodie [1999] QCA 125 at 5.[5]R v Dodd [2010] QCA 31 at [13]. That principle does not oblige a sentencing Judge to set out each and every alternative available in sentencing a defendant. As Atkinson J observed in R v Robertson:[6]“Counsel who appear before judges on sentences are expected to know the provisions of Queensland’s sentencing law and to make relevant submissions.Unless the judge is considering imposing a sentence which may be considered unusual or an additional penalty which is unusual, there is no obligation upon a sentencing judge to advise counsel of the sentence that may be imposed and to seek specific submissions on that.” (footnotes omitted).[6](2017) 268 A Crim R 240 at [55] – [56]. Whether a sentencing Judge’s sentence may be considered unusual or involving an additional penalty will depend upon the circumstances of a particular case. A sentence would not normally be considered unusual or an additional penalty if its content can properly be said to have fallen within the contemplation of the parties, having regard to the issues in dispute at sentence and the submissions made by the parties at that sentence hearing. As Atkinson J said in R v Robertson in the passage above, unless a judge is considering imposing a sentence which may be considered “unusual or an additional penalty which is unusual”, there is no obligation upon the judge to advise counsel of that possible outcome. The reason why that is so is twofold. First, as her Honour said, judges make decisions upon the basis that counsel who appear before them know the law that bears directly upon the case at hand. Judges are entitled to act upon the footing that, if a particular order ought to reasonably be within the parties’ contemplation having regard to the circumstances of a case, then the silence of counsel upon that issue can be taken by the judge to be the result of a professional judgment that there was nothing useful for counsel to say about it. Second, judges do not expect, and do not want, counsel to make submissions about orders that are evidently not going to be made and counsel should not waste time making them.