R v Laz
[2023] QCA 46
•21 March 2023
SUPREME COURT OF QUEENSLAND
CITATION:
R v LAZ [2023] QCA 46
PARTIES:
R
v
LAZ
(applicant)FILE NO/S:
CA No 304 of 2021
DC No 59 of 2020
DC No 61 of 2020DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
Childrens Court at Townsville – Date of Sentence: 5 November 2020 (Lynham DCJ)
DELIVERED ON:
21 March 2023
DELIVERED AT:
Brisbane
HEARING DATE:
7 March 2023
JUDGES:
Bond JA and Gotterson AJA and Boddice AJA
ORDER:
Leave to appeal refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his own plea of guilty to one count of armed robbery, in company – where the applicant was 17 and seven months at the time of the offence – where the applicant was sentenced under the Youth Justice Act 1992 (Qld) to two years detention, a restorative order was made and a conviction recorded for the offence – where the applicant had been previously sentenced for five counts of robbery and expressed similar remorse at the time of that sentence – whether the recording of a conviction was manifestly excessive
Youth Justice Act 1992 (Qld), s 184
COUNSEL:
C R Smith for the applicant
S L Dennis for the respondentSOLICITORS:
Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent
BOND JA: I agree with the reasons for judgment of Boddice AJA and with the order proposed by his Honour.
GOTTERSON AJA: I agree with the order proposed by Boddice AJA and with his Honour’s reasons for it.
BODDICE AJA: On 2 October 2020, the applicant pleaded guilty, in the Childrens Court at Townsville, to one count of armed robbery, in company. The offence was committed on 5 March 2020, when the applicant was aged 17 years, seven months.
On 5 November 2020, the applicant was sentenced to two years detention for the offence. It was ordered he be released after serving 55 per cent of that detention, a restorative justice order was made, and a conviction recorded for the offence.
The applicant seeks leave to appeal his sentence. The sole ground, should leave be given, is that the recording of a conviction rendered the sentence manifestly excessive.
New evidence
At the hearing before this Court, the applicant sought and was granted leave to adduce new evidence on the basis that it would become relevant in the event the appeal was allowed, and the sentencing discretion was to be exercised afresh. As will appear, it is unnecessary to refer to that evidence.
Offence
The offence was committed by the applicant and a co-accused late one evening. Both entered a petrol station armed with knives and wearing bandanas. Both were carrying shopping bags. The co-accused wore gloves. The applicant had one glove.
Present in the petrol station was the complainant, an employee of the petrol station, and two customers. The applicant made threats and kicked a toilet door, behind which one customer was hiding. He demanded the complainant tell him where the safe was and that she fill his bag with cigarettes. The applicant and his co-accused unsuccessfully tried to open the safe. They were successful in stealing money from two cash registers. At one point, the applicant threatened to smash the complainant’s telephone.
The applicant and his co-accused left the petrol station with an estimated $1,200 in cash. They also left with cigarettes and the complainant’s mobile phone and wallet.
The applicant and his co-accused were located by police days later. They were found in possession of property taken during the robbery. They also had clothing matching that worn at the time of the robbery.
Sentencing remarks
At the time of sentence, the applicant had served 243 days in detention.
The sentencing judge noted the serious nature of the armed robbery in company and the applicant’s “short, very serious criminal history”. The sentencing judge recorded that the applicant had had numerous previous sentencing opportunities, and that the pre-sentence report recorded that the applicant had pro-criminal attitudes, his mixing with antisocial peers and continued substance use.
The sentencing judge noted that the applicant claimed remorse, but observed that the applicant had expressed similar remorse and insight at the time of being sentenced for robberies in 2018. The sentencing judge, therefore, did not place much weight on the applicant’s letter or a reference from his grandfather.
The sentencing judge did accept that the applicant had been using his time in detention to engage in education and courses, and that he had demonstrated good behaviour consistent with moving in the right direction in a structured environment. The sentencing judge also recorded that having regard to the applicant’s age, there were potential detrimental consequences if he was to be transferred to an adult prison.
Notwithstanding those detrimental consequences, the sentencing judge determined that detention was the only appropriate sentence, given the serious nature of the offending and the applicant’s prior criminal history.
The sentencing judge ordered, in the exercise of his discretion, that a conviction be recorded. In doing so, the sentencing judge said he had had regard to section 184 of the Youth Justice Act 1992 (Qld). However, the armed robbery was a serious example of that type of offending. The applicant, being 17 years and seven months of age, did not have the benefit of extreme youth; and had a relevant criminal history, having been previously sentenced for robbery offences.
The sentencing judge accepted that the recording of a conviction would have an impact on the applicant’s rehabilitation, observing that the pre‑sentence report referred to the ongoing efforts towards rehabilitation, and that the applicant had a letter of employment and aspirations to join the army, although, there was nothing in writing to confirm the prerequisites for being able to join the army.
The sentencing judge concluded:
“…your offending was of such serious gravity in combination with your criminal history in which you have previously been dealt with for offences of armed robbery, that it is only appropriate that my discretion be exercised in a way that a conviction be recorded for the armed robbery offence.”
Submissions
The applicant submits that the sentencing judge improperly discounted the applicant’s prospects of rehabilitation and demonstrated goal setting, instead, placing emphasis on the applicant’s 2018 sentence for five counts of robbery and the opportunity afforded at that time to not record convictions. The applicant submits that in focusing on the 2018 sentence, the sentencing judge failed to consider the gap in serious offending or the relapse into drug use, which the applicant had addressed in custody.
The respondent submits that the sentence was not manifestly excessive. The recording of a conviction did not support a conclusion that the sentence was “unreasonable or plainly unjust”.
The respondent submits that the sentencing judge properly had regard to the considerations set out in section 184 of the Act, including the nature of the offence, the applicant’s age and any previous convictions, and the impact of a recording of a conviction on the applicant’s prospects of rehabilitation generally or of finding and retaining employment. Further, the sentencing judge properly recognised that the primary position was that a conviction not be recorded.
Consideration
In recording a conviction, the sentencing judge carefully considered each of the relevant factors set out in section 184 of the Act. Having done so, it was within a sound exercise of the discretion, to record a conviction.
The applicant had committed a very serious armed robbery, whilst in company, some months from him turning 18. He had a criminal history which included convictions for robbery. His time in detention, otherwise used wisely, had not dispelled his criminal attitudes.
Whilst it is true that the sentencing judge placed emphasis on the applicant’s prior offending in 2018, and the opportunity afforded at that time in not recording convictions, those circumstances did not overwhelm a consideration of those mitigating circumstances in support of not recording a conviction.
The sentencing judge carefully considered the aggravating factors against the mitigating factors, including that the applicant had undertaken courses and education, had demonstrated good behaviour whilst in detention and was moving in the right direction in that structured environment. Further, the sentencing judge had regard to the consequence of the recording of a conviction, on the applicant’s prospects of rehabilitation and future employment opportunities.
Conclusion
The recording of a conviction, for what was a serious example of armed robbery in company by an offender, but months before his 18th birthday, with a relevant criminal history for robbery offences, does not evidence any misapplication of principle or render the sentence plainly unreasonable or unjust.
The sentence imposed was not manifestly excessive.
Order
I would order that leave to appeal be refused.
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