R v LAL

Case [2018] QCA 179

SUPREME COURT OF QUEENSLAND

CITATION:

R v LAL [2018] QCA 179

PARTIES:

R
v
LAL
(applicant)

FILE NO/S:

CA No 12 of 2018
DC No 1994 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 12 December 2017 (Farr SC DCJ)

DELIVERED ON:

3 August 2018

DELIVERED AT:

Brisbane

HEARING DATE:

20 June 2018

JUDGES:

Sofronoff P and Crow and Ryan JJ

ORDERS:

1.   The application for leave to appeal is granted.

2.   The appeal is allowed.

3.   The sentences imposed at first instance are set aside.

4.   In lieu thereof, the applicant is to be released upon his entering into a recognisance, in the sum of $500, on the condition that he be of good behaviour and appear for conviction and sentence if called upon at any time during the next two months.

5.   No convictions are recorded.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was convicted, after a trial, of two offences of indecent treatment of a child under 12 – where the offences were committed when the applicant was a child but he was convicted as an adult – where the applicant was sentenced to imprisonment for four months for count 1 and nine months for count 2, to be served concurrently, wholly suspended, for an operational period of nine months – where those sentences carried convictions – where counsel for the applicant submitted that the applicant should have been sentenced to a period of probation to allow for an order that no convictions be recorded – whether the sentence was manifestly excessive

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – SENTENCING AS ADULT OR CHILD AND IMPRISONMENT – where the applicant was a juvenile of 15 years and seven months when he offended – where the applicant was convicted and sentenced 17 years later – where s 144 of the Youth Justice Act 1992 required the Court to have regard to the sentence that might have been imposed on the applicant if he had been sentenced as a child – where neither the prosecutor nor defence counsel referred the learned trial judge to examples of children sentenced as children, for like offending – where neither counsel referred the learned trial judge to the relevant principles contained in sections 4 and 109 of the Juvenile Justice Act 1992, which would have applied had the applicant been sentenced as a child, including that detention was a last resort – whether sentence, especially recording convictions, was manifestly excessive

Youth Justice Act 1992 (Qld), s 140, s 144

R v BCO [2016] 1 Qd R 290; [2013] QCA 328, considered
R v Briese; Ex parte Attorney-General (Qld) [1998] 1 Qd R 487; [1997] QCA 10, considered
R v Cay, Gersch and Schell; Ex parte Attorney-General (Qld) (2005) 158 A Crim R 488; [2005] QCA 467, considered
R v JO

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Details
AGLC
R v LAL [2018] QCA 179
Case
[2018] QCA 179
Decision Date

CaseChat Overview and Summary

The applicant sought leave to appeal against the sentences imposed upon him by the District Court of Queensland, which were two counts of indecent treatment of a child under 12. The applicant had committed the offences when he was a child, aged about 15 years and seven months, but was convicted and sentenced as an adult. He was sentenced to imprisonment for four months for count 1 and nine months for count 2, to be served concurrently, wholly suspended, for an operational period of nine months, with both sentences carrying convictions. The applicant sought in lieu of the sentences, the penalty sought at first instance of probation with no convictions recorded.

The court was required to determine whether the sentence was manifestly excessive and whether the court should have considered sentencing the applicant as a child. The court was required to consider section 144 of the Youth Justice Act 1992, which required the Court to have regard to the sentence that might have been imposed on the applicant if he had been sentenced as a child. The court was also required to consider the principles contained in sections 4 and 109 of the Juvenile Justice Act 1992, which would have applied had the applicant been sentenced as a child, including that detention was a last resort.

The court found that the sentence was manifestly excessive and that the court should have considered sentencing the applicant as a child. The court found that the applicant's age at the time of the offence and the impact of recording a conviction on his chances of rehabilitation and finding or retaining employment were relevant considerations. The court found that the sentences imposed were manifestly excessive because they did not reflect the primary position that a conviction is not to be recorded against a child offender. The court found that the applicant's age at the time of the offence and the impact of recording a conviction on his chances of rehabilitation and finding or retaining employment were relevant considerations.

The application for leave to appeal was granted, and the appeal was allowed. The sentences imposed at first instance were set aside. In lieu thereof, the applicant was to be released upon his entering into a recognisance, in the sum of $500, on the condition that he be of good behaviour and appear for conviction and sentence if called upon at any time during the next two months. No convictions were recorded.

Orders

Orders of the court

1. The application for leave to appeal is granted.

2. The appeal is allowed.

3. The sentences imposed at first instance are set aside.

4. In lieu thereof, the applicant is to be released upon his entering into a recognisance, in the sum of $500, on the condition that he be of good behaviour and appear for conviction and sentence if called upon at any time during the next two months.

5. No convictions are recorded.

Background

Background to the litigation

The applicant applied for leave to appeal against the sentences imposed upon him, seeking in lieu thereof the penalty sought at first instance of probation with no convictions recorded.Facts When the offences were committed (around November/December 2000), the applicant was aged about 15 years and seven months.[1] The complainant was his friend’s little sister. She was about six years younger than the applicant.[1]Record book, 26, 7. The offences were committed within moments of each other, on a backyard trampoline. The complainant said that the applicant called her over to the trampoline to “show [her] something”:[2]“… I was sitting on the trampoline facing the pool, and he pulled my dress up and my underwear down to about halfway down my thighs, and he took a single finger and he put it between the outer lips of my vagina … and he pulled his finger from … the bottom to the top, and then he said “Does that feel nice?” and I didn’t – I couldn’t – I didn’t say anything but I shook my head and I went to – to pull my dress back down, and then he put his hands – he stopped me from pulling my dress back down, and he put his hands on my shoulders and pushed me back so I was lying on my back on the trampoline with my legs still out in front of me and my dress still up, and my underwear still down. And he said “My sister likes it when I do this,” and then he moved so that his was more in between my legs and he, with a similar action, licked – like, used his tongue just the once from the – from the bottom to the top and he said “Did you like that?” and I just shook my head and went to pull my dress down again, and that time, he didn’t stop me and I pulled my dress down and pulled my underwear up and hopped off the trampoline and went inside.”[2]Trial transcript 1-7, 5 – 20. During a pretext call, on 29 September 2015, the complainant told the applicant that she wanted to have “a quick chat about um that thing that happened when we were kids … the thing that happened on the trampoline out the back of my place when we were kids?” The applicant said he thought he remembered.[3][3]Transcript of pre-text call, p 10, 10 – 20. He also said that –·“something” had occurred to him when he was “really young” and as a result, he guessed he “experimented” with a lot of kids at a “really really young age” because he had not processed what had happened to him;[4]·he “obviously” had to apologise for “that” happening;[5]·he behaved (as a child) in a sexual/inappropriate way with other children;[6]·a “long time later”, he realised it was “inappropriate”;[7]·he stopped when he was 14 or 15,[8] or “like even thirteen, fourteen”;[9]·he was 23 or 24 when he appreciated that something had happened to him;[10]·he was “really sorry” if “that” “upset” the complainant – there was no justification for it;[11]·he hoped he did not “fuck [her] up”;[12]·when it happened it was impulsive;[13] and·the person who abused him (his cousin) was “a complete adult”.[14][4]Ibid, p 12, 58 – p 13, 3.[5]Ibid, p 13, 10 – 11.[6]Ibid: He made statements to this effect throughout the call, e.g. at page 14, 37 – 40.[7]Ibid, p 13, 20 – 25.[8]Ibid, p 14, 20.[9]Ibid, p 18, 40 – 42.[10]Ibid, p 14, 21- 22.[11]Ibid, p 14, 30 – 33.[12]Ibid, p 14, 56.[13]Ibid, p 20, 32.[14]Ibid, p 22, 12 – 14.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Considerations to which a court must have had regard were set out in section 125:“125 Considerations whether or not to record conviction(1)In considering whether or not to record a conviction, a court must have regard to all of 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.(2)Except as otherwise provided by this or another Act, a finding of guilt without the recording of a conviction is not taken to be a conviction for any purpose.” R v JO[51] is but one illustration of the approach to be taken in the exercise of the discretion to record, or not record, a conviction against a child – namely, conscious of the primary position that no conviction is to be recorded and giving (where appropriate) precedence to a child’s rehabilitation.[51][2008] QCA 260. JO was 13 years old when he offended and 14 at sentence. With a knife in one hand, and masturbating with the other, he woke his 17 year old sister and demanded sex, threatening to kill her. Eventually, she got the knife from him and ran. He followed her. She told him to leave her alone and ran to a neighbour. He was sentenced at first instance to three years’ probation and a conviction was recorded. He successfully appealed against the recording of the conviction. Counsel for the Crown argued, at the appeal, that the circumstances of the offence were so serious that the community’s interest in knowing the truth about the applicant’s background warranted the recording of the conviction. If a conviction were not recorded, she argued, any Court sentencing the applicant as an adult could not be informed of the prior offence. Counsel referred to the question posed by the Chief Justice in R v Cay, Gersch and Schell; Ex parte Attorney-General (Qld):[52]“is there sufficient reason to contemplate subsequently denying persons, with an otherwise legitimate interest in knowing the truth, knowledge of the offender’s true circumstances?”and submitted that it should be answered in the negative.[52][2005] QCA 467, [11]. Holmes JA (as her Honour then was)[53] did not think that the Cay question assumed the same importance in the case of juvenile offenders.[54] Her Honour referred to the observations of the President in R v L:[55]“The exercise of discretion as to whether or not to record a conviction under the Juvenile Justice Act 1992 involves somewhat different considerations from those for adult offenders under the Penalties and Sentences Act 1992. See sections 3, 9 and 23 of that Act and compare sections 3, 4, 109, 124 and 125 of the Juvenile Justice Act 1992. Unlike the position for adult offenders, section 124(1) of the Juvenile Justice Act 1992 proceeds from the primary position that a conviction is not to be recorded against a child offender”: see R v [B], CA No 551 of 1994, 9 June 1995.”[53]With whom Mackenzie AJA and Douglas J agreed.[54]JO, op cit, at [12].[55][2000] QCA 448.