R v JAB

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.