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.

1. 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. 

1. 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. 

1. In respect of those offences, convictions were recorded and the applicant was sentenced to detention for four months to be served by way of a conditional release order.  In respect of the other ten offences, which consisted of six charges of unlawful use of a motor vehicle, one charge of burglary, one charge of entering a dwelling house and committing an indictable offence, one charge of entering premises and committing an indictable offence, entering premises and committing an indictable offence by breaking, and one charge of trespass.  The magistrate did not record convictions and sentenced the applicant to 12 months probation and 30 hours community service. 

1. The applicant had previously appeared before the Mackay Childrens Court in respect of property offences on 19 August 2010 and 15 December 2010.  It is clear from the sentencing remarks that the magistrate considered the fact that the applicant continued to re-offend as being very serious. 

1. The applicant was 14 when he committed the offences.  He is now 16 years old.  The facts in relation to the matters are as follows.  In respect of the unlawful use offence on 11 April 2011, the applicant took a car from an address at Sarina and the vehicle was later found abandoned.  On 14 May 2011, he entered a house and stole cigarettes and car keys and then took a car.  On 15 May 2011, he stole a quantity of alcohol.  At the time of committing the offences, the applicant was on probation and subject to a community service order.  Also, in respect of the offences, the applicant was on bail for the other matters.  Since his appearance in the Mackay Childrens Court on 30 June 2011, the applicant has had a number of further appearances in respect of a variety of matters.  He has appeared in the Mackay Childrens Court on 19 October 2011, 8 February 2012, 13 June 2012, 25 July 2012 and 3 October 2012.  Convictions were not recorded against him in respect of the matters dealt with on those occasions.

1. The applicant now challenges the recording of convictions in respect of the four offences that I have mentioned. The factors that must be considered in deciding whether or not convictions should be recorded are set out in section 184(1) Youth Justice Act 1992.  That provision states that: 

   (1)   In considering whether or not to record a conviction, a court must have regard to all the circumstances of the case, including –

   (a)    the nature of the offence;  and

   (b)   the child’s age and any previous convictions;  and

   (c)    the impact the recording of a conviction will have on the child’s chances of –

   (i)rehabilitation generally;  or

   (ii)finding or retaining employment.

1. It is clear from decisions of the Court of Appeal, such as R v TX [2011] QCA 68, that the primary position is that convictions should not be recorded against child offenders. The magistrate’s sentencing remarks do not indicate why it was decided that convictions should be recorded in respect of the offences of burglary, unlawful use of a motor vehicle and stealing. In the circumstances of the case, I am of the view that convictions should not have been recorded. I would therefore make the following 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; and

   3)   Instead, order that convictions not be recorded.