R v Marsh

[1995] QCA 241

[1995] QCA 241

COURT OF APPEAL

PINCUS JA
de JERSEY J
AMBROSE J

CA No 111 of 1995

THE QUEEN

v

M  Applicant

BRISBANE

DATE 26/04/95

JUDGMENT

PINCUS JA:  This is an application for leave to appeal against sentence by a youth who has been sentenced to five years imprisonment for a number of offences of dishonesty.  The applicant was born on 21 December 1975 and all but four of the offences were committed after he turned 17.

As to those four offences, it may be that an error was made, in that perhaps it was overlooked that section 105 of the Juvenile Justice Act 1992 provides that certain consequences ensue when proceedings have been begun against an offender within the period set out in s 105(2)(b). It seems that this needs to be given attention.

The details of the case do not need to be mentioned further because it is conceded that an error was made, of an important kind. It was put before the Judge that on 12 November 1992 the applicant was sentenced to a period of care and control for robbery in company with personal violence. It is agreed by counsel, and appears to me to be correct, that the course taken, of placing that matter before the Court, was prohibited by section 114(1) of the Juvenile Justice Act 1992. That provides that:

"In a proceeding against an adult for an offence, there must not be admitted against the adult evidence that the adult was found guilty as a child of an offence if a conviction was not recorded."

The steps which were taken on 12 November 1992 were, it appears, taken under section 62(1)(k) of the Children's Services Act and no conviction was or could have been recorded under the provision.

Counsel who have appeared before us, Mr Rafter and Mr Clark, have concurred in the view that the matter should be remitted for re-sentencing and that seems the appropriate course.  It is desirable, however, to make one or two other comments.

The applicant had not been sent to prison before this occasion, when he was sentenced to five years imprisonment.  The offences were committed when he was 16 and 17 years of age.  He was 19 at the time of sentencing.  The sentencing of a teenager to prison for the first time is very serious and must be done on appropriate information.  It has to be said here that neither side took any real trouble about providing the Judge with information, appropriate or otherwise.  As an example of the care with which the matter was handled, the Judge was informed, apparently incorrectly, that the applicant had been arrested in respect of certain offences in 1994, these being offences before the Court, whereas in fact he was apparently arrested in 1993.  No-one bothered to get any information as to what had happened when the applicant was placed under care and control; in general the Judge was given very slim and scanty information on which to sentence.  One hopes that this is not repeated when the matter goes back.

It is appreciated that at times resources are short and time is short but when one looks at the size of this record and the very important consequence which has ensued from it, it is obvious that a proper job was not done by the parties' representatives, before the primary Judge.

I think the orders should be that the application be granted, the appeal allowed, the sentences imposed below set aside, and the applicant remanded in custody and re-sentenced.  As a matter of principle, and certainly with no reflection at all upon the learned primary Judge, for whom I have the greatest respect, in a case of this sort it is desirable that the re-sentencing be done by another Judge.

de JERSEY J:  I agree.

AMBROSE J:  I agree.

PINCUS JA:  Those will be the orders.