R v M & C

[2001] QCA 5

[2001] QCA 5

COURT OF APPEAL

McMURDO P THOMAS JA MULLINS J

CA No 288 of 2000 CA No 293 of 2000

THE QUEEN

v.

M

and

C	Applicants
BRISBANE ..DATE 31/01/2001
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THOMAS JA: The appellants were convicted of armed robbery in company. They were 16 at the time of the offence and are now 17. They are entitled to the benefit of being dealt with under the Juvenile Justice Act 1992.

The applicants robbed an ice cream shop on the evening of
20 March 2000. They disguised themselves to the extent that M
wore sunglasses and a cap while C wore a beanie. They changed
their clothes before and after the offence. M was armed with a
toy pistol which he described as a replica but which the
evidence suggests was probably not a true replica. A statement
was made by M during the robbery that C had a knife but it is

not suggested that C was actually in possession of any weapon.

The sole employee in the shop was only 15 years old and was
described by the learned sentencing Judge as a soft target. The
applicants looked at displays for several minutes during which
the employee asked them if they needed assistance. Eventually
M lifted up his shirt exposing the handle of the toy pistol.
The complainant thought it appeared "slightly plastic" but
could not be sure whether or not it was an actual weapon. M
said, "Mate, I've got a gun and my mate's got a knife. Get the
money out of the till." The employee placed all available
notes into a bag. M told him to wait four or five minutes
before calling the police. The applicants then left. $235 was
the sum taken.

They went to a unit owned by a friend and admitted that they had held up the store. Police attended later that night and

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located the prisoners who returned $160 of the stolen money.

The missing $70 seems to have been spent on marijuana.

The applicants cooperated fully by making admissions, attending
the scene, locating the discarded clothing and taking part in
electronically recorded interviews. They pleaded guilty on
committal. Each applicant was ordered to serve three years
probation to perform 200 hours community service and to pay
$37.50 in compensation. It was an automatic consequence of
such an order that convictions be recorded: Juvenile Justice
Act, sections 121(1)(a) and 124(4).

As I understand the submissions of counsel for the applicants, the primary concern in the appeal relates to the recording of convictions. Under the above sections the automatic consequence of an order which includes probation for three years is the recording of a conviction.

The Court's discretion to direct that no conviction be recorded could only arise if, in so far as the sentence includes a probation order, the period of probation is two years or less.

THE PRESIDENT: I have just taken the liberty of interrupting
Justice Thomas's reasons because something occurred to me that
I wish to at least clarify before the completion of reasons in
this matter. These applicants were sentenced under section 121
of the Juvenile Justice Act, which allows the child to be

placed on probation or a detention order.

There is no provision under that section for community service,
which is under section 120. I am just wondering whether the
sentence that was imposed was lawful but - I have just been
referred to section 5, okay, which section 5 clarifies it.
Yes, thank you for that. Yes. Sorry to interrupt.
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THOMAS JA: The real issue is whether the sentence is overall manifestly excessive. This includes consideration of the question whether, in the circumstances, it is undesirable that these juvenile offenders should, at this stage, suffer the disadvantage of having a criminal record through the recording of a conviction.

Circumstances urged in favour of the applicants include the fact that there was no actual violence. No victim impact statement was presented. The applicants cooperated fully and did not reveal any cynical attitudes that is sometimes present in these cases. The pre-sentence reports suggest that both applicants were significantly remorseful. In addition to the combination of sentences imposed each applicant had served six days in pre-sentence custody and this was described as having had a salutary effect upon them.

The learned sentencing Judge rightly noted that although the offence was sufficiently serious to warrant a significant period of detention, the youth of the applicants and the approach required to be taken by the Juvenile Justice Act made a non-custodial order preferable. At the same time his Honour noted that the offence was not a spur of the moment matter and that there was an element of pre-planning.

Both applicants had some previous history, although in C's case this was very limited. It consisted of wilful damage committed some three years previously, when he was 13 years old.

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M, however, had been before Courts on three previous occasions, namely in 1998, 1999 and 2000 for unauthorised dealing, breach of bail, entering a dwelling and stealing. The offences, however, do not appear to have been serious and they resulted respectively in a bond, a fine and two reprimands.

At the time of the present offence M was subject to a conditional bail program. He stated that he committed the offence because he needed money to travel to New South Wales to organise a job as a concreter. It is fair to say the previous histories are relatively minor and contain no offences of violence.

Both have been dealt with in the same way, although it would seem that M played the greater role in the commission of the offence and he has a more relevant criminal history. The question arises whether there should be any differentiation in the sentences. Mr Moynihan, who appears for both applicants, points out that M appears to have had the more troubled adolescent history of the two and that a reference from an employer was tendered on his behalf during the hearing. Further, he seems to have reasonable work prospects. Furthermore, the evidence suggesting possible impact from the recording of a conviction was suggested in his pre-sentence report and the evidence is silent in relation to any possible effect upon C.

On the whole it seems to be appropriate that the sentences to

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be imposed should not differentiate between them, although, as
I have mentioned, there is some arguable basis for
differentiation. It was not suggested below that different
sentences should result and I do not understand it to have been
submitted that this should now happen by counsel upon appeal.

I find the present matter a finely balanced one. Counsel for the Crown, Mr Rutledge, has suggested that the present sentence is appropriate and that three years probation has the advantage of a longer period of supervision and that such a period of supervision is desirable. He points out that C committed this offence only two days short of his 17th birthday and that M committed it only two months short of his 17th birthday. They were, therefore, not far short of the legal obligation to be dealt with as adults. Further, M was on bail at the time.

It does not seem to have been urged below that the sentence should be framed overall so as to permit a declaration to be made that no conviction be recorded. As I discern the proceedings below the object of the exercise was to avoid a detention order. The end question is whether the sentence that was imposed was manifestly excessive.

There are a number of decisions of this Court which reveal a
fairly clear tendency in favour of framing sentences in
relation to juveniles that will avoid the mandatory recording
of a conviction if the overall sentence can appropriately be so
framed. Cases where this tendency may be noted include The
Queen v. H, CA 51 of 2000, 25 May 2000; The Queen v.
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Buttenshaw, CA 203 of 1997, 27 June 1997; The Queen v. Beutel, CA 551 of 1994, 9 June 1995; The Queen v. Armstrong, CA 294 of 1998, 6 November 1998.

I do not propose to discuss the circumstances of those particular cases, although I think it fair to say that the circumstances of the present offence and the relevant antecedents are not very different from some examples where the Court saw fit to impose sentences of that kind.

It does not follow, however, that this must happen in every case. It may well be that a better order in the present case would have been for a two year period of probation, accompanied by a declaration that no conviction be recorded, but the evidence in this case is not strong enough to require such an order to be made. As already indicated no attempt was made below to present evidence capable of supporting the present submission.

It seems to me that the present case is a classic example where a sentencing discretion was open to the sentencing Judge within a range that would permit him to proceed as he did or to make a slightly less severe order.

I cannot say that the order that was made in each instance was excessive or manifestly excessive. Accordingly I do not think that we have the jurisdiction to intervene. I would accordingly refuse the application.

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THE PRESIDENT: I agree. I too would stress that a sentence under section 120 of the Juvenile Justice Act 1992 of two years probation and a 200 hour community service order, without the recording of a conviction, would have been appropriate in all the circumstances of this case but, like Justice Thomas, I am not persuaded that the sentence imposed under section 121 of the Juvenile Justice Act 1992 of three years probation and 200 hours community service with the mandatory recording of a conviction was manifestly excessive. I agree that the applications should be refused.

MULLINS J: I agree that having regard to all the relevant factors, including the importance of rehabilitation of juvenile offenders, the sentences imposed on the applicants were not manifestly excessive.

THE PRESIDENT: The orders are the applications are refused.

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