R v Lovett (a pseudonym)

[2021] QCA 46

SUPREME COURT OF QUEENSLAND

CITATION:	R v Lovett (a pseudonym) [2021] QCA 46
PARTIES:	R v LOVETT (a pseudonym) (applicant)
FILE NO/S:	CA No 149 of 2020 DC No 3 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Bundaberg – Date of Sentence: 17 July 2020 (Clare SC DCJ)
DELIVERED EX TEMPORE ON:	16 March 2021
DELIVERED AT:	Brisbane
HEARING DATE:	16 March 2021
JUDGES:	Sofronoff P and Morrison JA and Davis J
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 a juvenile and convicted of armed robbery in company – where the applicant was sentenced to a period of detention of 15 months with a conviction recorded – where the applicant refused to accept responsibility for the offence and had a relevant lengthy criminal history – whether the recording of a conviction rendered the sentence manifestly excessive
COUNSEL:	V Trafford-Walker for the applicant A Nikolic for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

1. SOFRONOFF P:  The applicant pleaded not guilty to a charge of armed robbery in company.  Clare DCJ found him guilty.  The applicant accosted a boy on the street, brandished a knife at him, and stole the boy’s bicycle.  The bicycle has not been recovered.

2. The victim of this frightening robbery has said that he now has trouble sleeping and is worried that he might see the applicant again when he himself is alone.  He is frightened about what the applicant might do to him.  None of that is surprising.

3. A pre-sentence report does not explain the applicant’s criminal propensity.  He is said to have had an uneventful childhood with no significant trauma.  He was brought up by his mother.  It is said that after his grandfather died in 2016, the applicant’s behaviour began to deteriorate.  He became disruptive in class and fought with other pupils.  He stayed away from school.  His mother found herself unable to enforce any boundaries upon him.  The applicant would search through his mother’s cupboards and drawers in attempts to find items of value to steal.  His mother became frightened of him.  Still, the applicant continued to believe that it was his mother’s duty to support and protect him, despite the fact that he sometimes bullied and intimidated her and stole her property.

4. Inevitably, the applicant began to associate with similarly criminally minded young people.  He began to use drugs, including methylamphetamine.

5. The author of the pre-sentence report says that the applicant fails to understand the seriousness of his offending and the harm that his actions cause to others.  The applicant admitted that he usually offends for personal gain.

6. The applicant has failed to accept responsibility for the offence.  He maintains that he was not present at the time of the offence of which he was found guilty.

7. The applicant has a lengthy criminal history.  In July 2017, he was found guilty of unauthorised dealing with shop goods, trespass and possession of a knife in a public place.  In October 2017 he was found guilty of common assault, burglary and wilful exposure.  In November 2017 he was found guilty of wilful damage and entering premises to commit an indictable offence and committing an indictable offence therein.  In the same month he was found guilty of further offences of entering premises and committing an indictable offence.  No convictions were recorded for any of these offences.  For the first series of offences involving assault, burglary and trespass, the applicant was placed on probation for six months.  Within four days he committed the next series of offences.  He was then placed on probation for 12 months.  Within the 12 month period of probation, he committed numerous further offences of the same kind, as well as an offence of assault occasioning bodily harm whilst armed and in company.  Convictions were not recorded for any of these offences.  He was ordered to perform community service and placed on probation once again for 12 months.

8. He continued to commit further offences involving burglary and stealing and in April 2019 he was dealt with for multiple burglary and stealing offences.  He was sentenced to detention for six months to be served by way of a conditional release order.  Within a month he had breached that order and was ordered to serve the period of detention that had been imposed.  Upon his release in August 2019 he immediately committed further similar offences.  He was sentenced to detention for four months.  Upon his release, he committed two stealing offences and an offence of obstructing a police officer.  For that final series of offences, he was placed on probation for six months.  A week after he was dealt with by the Court in that way, he committed the current offences.

9. Clare DCJ ordered that the applicant be detained for 15 months, with release after serving 70 per cent of that period.  Her Honour recorded a conviction.  She was aware that there was a presumption against the recording of a conviction.  The applicant now seeks leave to appeal his sentence insofar as a conviction was recorded.  He submits that the recording of a conviction was the result of an error in the exercise of discretion.  Alternatively, he submits that an error must be inferred in the exercise of discretion because the sentence is manifestly excessive.  The applicant submits that it should be inferred from her Honour’s sentencing remarks that her Honour wrongly:

   “…reasoned that, because the applicant had not rehabilitated to date, this more strongly suggested the need to record a conviction.”

10. The applicant further submits that it should be inferred from her Honour’s sentencing remarks that her Honour thought that, because the applicant’s rehabilitation may still take some time to achieve, it was appropriate to record a conviction.  The applicant submits that this approach is inconsistent with R v PBE.[1]

    [1][2019] QCA 185.

11. In that case, the main ground of appeal related to the sentencing judge’s erroneous view that the fact that periods of detention were called for as part of the sentence militated in favour of recording of a conviction.  That was held to be wrong.

12. Another ground that was raised was that the judge thought it was significant that the applicant had presently poor prospects of rehabilitation, while acknowledging that the applicant’s future chances of rehabilitation might be affected by the recording of convictions.  Their Honours held that a delay in the applicant’s rehabilitation did not render the effect of the recording of convictions upon his prospects of rehabilitation irrelevant, and that to think otherwise was in error.

13. There is no principle established by that case.  It was a case that dealt with a particular error.

14. In this case, her Honour Judge Clare took into account the objective circumstances of this offence, which were serious.  Her Honour also took into account the applicant’s poor criminal history, as well as his persistent disregard of supervisory orders.  She correctly observed that the applicant faces further serious problems as a result of his use of methylamphetamine.  Her Honour observed that the use of drugs by him “has become worse, not better”.  Her Honour also took into account the applicant’s total failure to take responsibility for his behaviour.

15. In short, as her Honour concluded, there had been no progress made under any order that had been made to this point and the applicant’s reoffending had been persistent.  That offending now includes two instances of using a knife to threaten a child.

16. The applicant’s past record of offending, including with the use of a weapon, his current lack of insight, and his use of dangerous drugs, as well as the absence of any indication that the applicant will take it upon himself to change his behaviour, means that his prospects of rehabilitation generally are poor.

17. The recording of a conviction can, of course, stand in the way of rehabilitation because it may have to be disclosed to a prospective employer or a government authority.  On the other hand, the fact that a person has committed a very serious offence is something that may be necessary or legitimate for an employer or a government authority to know.  The community may be better served by such knowledge.  When the prospects of rehabilitation are poor, as they are in this case, the risk that the recording of a conviction might prejudice future employment or career prospects diminishes and correspondingly, the balance turns in favour of recording of a conviction.

18. Her Honour Judge Clare appreciated these considerations and accordingly took into account the applicant’s poor criminal history and his poor prospects of rehabilitation as relevant factors.  For these reasons, there was no error in her Honour’s exercise of discretion.

19. I would refuse leave to appeal.

20. MORRISON JA:  I agree.

21. DAVIS J:  I would refuse leave for the reasons given by the President.