R v KM - [2013] QChC 13

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v KM [2013] QChC 13

PARTIES:

R

(respondent)

v

KM

(applicant)

FILE NO/S:

No 119 of 2013

PROCEEDING:

Application for Sentence Review

ORIGINATING COURT:

Childrens Court, Brisbane

DELIVERED ON:

13 May 2013 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

13 May 2013

JUDGE:

Rafter SC DCJ

ORDERS:

1.    Extend the time for filing the application for review to 8 April 2013.

2.    Vary the order made by the Childrens Court at Mackay on 30 June 2011 by deleting the order recording convictions.

3.    Instead, order that convictions not be recorded.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING JUVENILES – SENTENCE REVIEW – where the limitation period for filing an application for review had expired – where the applicant sought leave for sentence review to be heard out of time – whether there was merit in the sentence review

CRIMINAL LAW – SENTENCE – SENTENCING JUVENILES – SENTENCE REVIEW – where the applicant pleaded guilty to a total of 14 offences in June 2011 – where the sentence review was only in relation to four of those charges – where the application for sentence review challenges the order recording convictions – where the applicant was 14 years old when sentenced – where the applicant has a criminal history involving two property offences – where the applicant has not previously had a conviction recorded against him – where the applicant has had a number of further appearances in the Childrens Court in respect of a variety of matters – where convictions were not recorded against the applicant in respect of any of those matters – whether convictions should not be recorded.

Youth Justice Act 1992 (Qld), ss 119(2)(b), 122, 123(1), 183 and 184

COUNSEL:

D. J. Law (solicitor) for the applicant

P. Price for the respondent.

SOLICITORS:

Legal Aid Queensland for the applicant.

P. Price of the Director of Public Prosecutions (Queensland) for the respondent.

HIS HONOUR: The applicant seeks an extension of time within which to make application for the review of a sentence imposed in the Mackay Childrens Court on 30 June 2011. An application for sentence review must be made within 28 days after the sentence order is made or within a later period that may be allowed by a Childrens Court judge. Although there is no material before the court explaining the delay, Mr Law for the applicant submitted that the matter came to the attention of the Legal Aid Office when other matters were being considered.

On 30 June 2011 the applicant pleaded guilty to a total of 14 offences. The matters the subject of this application for review are burglary and committing an indictable offence committed on 14 May 2011, unlawful use of a motor vehicle committed on 14 May 2011, stealing committed on 15 May 2011 and unlawful use of a motor vehicle committed on 11 April 2011.

In respect of those offences, convictions were recorded and the applicant was sentenced to detention for four months to be served…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v KM

Details

AGLC: R v KM [2013] QChC 13
Case: [2013] QChC 13
Decision Date: 13 May 2013 (ex tempore)

CaseChat Overview and Summary

The matter before the court involved an application for sentence review in relation to offences committed by a juvenile. The applicant, who was 14 years old at the time of sentencing, pleaded guilty to 14 offences in June 2011. However, the application for sentence review was only in relation to four of those charges. The applicant sought to challenge the order recording convictions and argued that convictions should not be recorded.

The legal issues before the court were whether there was merit in the sentence review and whether leave should be granted for the application to be heard out of time, given that the limitation period for filing an application for review had expired. The court had to consider the age of the applicant at the time of sentencing, the applicant’s criminal history, and the fact that no convictions were recorded against the applicant in relation to any of his subsequent appearances in the Children’s Court.

The court found that there was merit in the sentence review and granted leave for the application to be heard out of time. The court considered that the applicant’s age at the time of sentencing and the fact that no convictions were recorded against him in relation to any of his subsequent appearances in the Children’s Court were relevant factors in determining whether convictions should be recorded. The court varied the order made by the Children’s Court by deleting the order recording convictions and instead ordered that convictions not be recorded.

The court extended the time for filing the application for review to 8 April 2013 and varied the order made by the Children’s Court by deleting the order recording convictions. The court ordered that convictions not be recorded in relation to the four charges in question.

Orders

Orders of the court

1. Extend the time for filing the application for review to 8 April 2013.

2. Vary the order made by the Childrens Court at Mackay on 30 June 2011 by deleting the order recording convictions.

3. Instead, order that convictions not be recorded.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v KM [2013] QChC 13
PARTIES:	R (respondent) v KM (applicant)
FILE NO/S:	No 119 of 2013
PROCEEDING:	Application for Sentence Review
ORIGINATING COURT:	Childrens Court, Brisbane
DELIVERED ON:	13 May 2013 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	13 May 2013
JUDGE:	Rafter SC DCJ
ORDERS:	1. Extend the time for filing the application for review to 8 April 2013. 2. Vary the order made by the Childrens Court at Mackay on 30 June 2011 by deleting the order recording convictions. 3. Instead, order that convictions not be recorded.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING JUVENILES – SENTENCE REVIEW – where the limitation period for filing an application for review had expired – where the applicant sought leave for sentence review to be heard out of time – whether there was merit in the sentence review CRIMINAL LAW – SENTENCE – SENTENCING JUVENILES – SENTENCE REVIEW – where the applicant pleaded guilty to a total of 14 offences in June 2011 – where the sentence review was only in relation to four of those charges – where the application for sentence review challenges the order recording convictions – where the applicant was 14 years old when sentenced – where the applicant has a criminal history involving two property offences – where the applicant has not previously had a conviction recorded against him – where the applicant has had a number of further appearances in the Childrens Court in respect of a variety of matters – where convictions were not recorded against the applicant in respect of any of those matters – whether convictions should not be recorded. Youth Justice Act 1992 (Qld), ss 119(2)(b), 122, 123(1), 183 and 184
COUNSEL:	D. J. Law (solicitor) for the applicant P. Price for the respondent.
SOLICITORS:	Legal Aid Queensland for the applicant. P. Price of the Director of Public Prosecutions (Queensland) for the respondent.