R v MDD

Case [2021] QCA 235

SUPREME COURT OF QUEENSLAND

CITATION:

R v MDD [2021] QCA 235

PARTIES:

R
v
MDD
(applicant)

FILE NO/S:

CA No 300 of 2020
DC No 49 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court of Queensland at Rockhampton and Brisbane – Date of Sentence: 30 October 2020 (Clarke DCJ)

DELIVERED ON:

2 November 2021

DELIVERED AT:

Brisbane

HEARING DATE:

9 June 2021

JUDGES:

Fraser and McMurdo JJA and Henry J

ORDERS:

1.   Grant leave to appeal.

2.   Allow the appeal.

3.   Set aside the order made in the Childrens Court on 30 October 2020 that a conviction be recorded for the offence charged by indictment 49/20.

4.   Order that no conviction be recorded for that offence.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant is a juvenile convicted of one count of attempted robbery with wounding – where the applicant was sentenced to a period of detention – where a conviction was recorded – where the sentencing judge did not expressly have regard to the factors listed in s 184(1)(c) of the Youth Justice Act 1992 (Qld) in his reasons – where the sentencing judge discussed the factors in s 184(1)(c) during the sentence hearing – whether the sentencing judge had regard to those factors – whether the sentencing judge erred in his consideration of those factors

CRIMINAL LAW – SENTENCING ORDERS – DISCRETION TO RECORD CONVICTION – RELEVANT CONSIDERATIONS – where the applicant is a juvenile convicted of one count of attempted robbery with wounding – where the applicant had an extensive criminal history – whether a conviction should be recorded

Youth Justice Act 1992 (Qld), s 183, s 184

R v B[1995] QCA 231, cited
R v Briese; Ex Parte Attorney General (Qld) [1998] 1 Qd R 487; [1997] QCA 10, considered
R v DBU[2021] QCA 51, considered
R v Hyatt[2011] QCA 55, considered
R v JAB (2020) 4 QR 588; [2020] QCA 124, cited
R v JO [2008] QCA 260, considered
R v KU & Ors; Ex parte Attorney-General (Qld) [2011] 1 Qd R 439; [2008] QCA 154, cited
R v L [2000] QCA 448, cited
R v Robertson (2017) 268 A Crim R 240; [2017] QCA 164, cited
R v SCU[2017] QCA 198, considered

COUNSEL:

J Trevino QC, with M Benn, for the applicant
N Rees for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  I agree with the reasons for judgment given by McMurdo JA.

  2. McMURDO JA:  On 30 October 2020, the applicant was sentenced in the Childrens Court on one count of attempted robbery with wounding to a period of 20 months’ detention, with release after serving 10 months.  A conviction was recorded.  This application for leave to appeal challenges only the recording of the conviction.

  3. The applicant was…

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Details
AGLC
R v MDD [2021] QCA 235
Case
[2021] QCA 235
Decision Date

CaseChat Overview and Summary

The case of R v MDD involves an appeal by a juvenile against a sentence of detention, and a conviction for attempted robbery with wounding. The applicant argued that the sentencing judge had failed to properly consider the statutory criteria outlined in section 184(1)(c) of the Youth Justice Act 1992 (Qld), which requires consideration of the impact of recording a conviction on the child’s chances of rehabilitation and employment. The appeal raises the questions of whether the judge had regard to these factors and whether any failure to do so constituted an error warranting the grant of leave to appeal.

The court was required to determine whether the sentencing judge had properly considered the statutory criteria outlined in section 184(1)(c) of the Youth Justice Act. The applicant contended that the sentencing judge did not expressly consider the impact of recording a conviction on the applicant's employment prospects and rehabilitation, despite discussing these factors during the sentence hearing. The court had to assess whether the judge's comments during the hearing were sufficient to satisfy the statutory requirement. Additionally, the court had to consider whether the failure to properly consider the statutory criteria constituted an error warranting the grant of leave to appeal.

The court concluded that the sentencing judge did not expressly consider the statutory criteria in the reasons provided for sentencing, and thus did not have regard to the impact of recording a conviction on the applicant's employment prospects and rehabilitation. The court held that this constituted an error warranting the grant of leave to appeal. However, upon considering whether the appeal should be allowed, the court found that the considerations favouring the recording of a conviction substantially outweighed those against it, given the nature of the offence and the applicant’s criminal history. Therefore, the court dismissed the appeal and upheld the decision to record a conviction.

ORDERS:
1. Grant leave to appeal.
2. Appeal dismissed.
3. Set aside the order made in the Childrens Court on 30 October 2020 that a conviction be recorded for the offence charged by indictment 49/20.
4. Order that no conviction be recorded for that offence.

Orders

Orders of the court

1. Grant leave to appeal.

2. Allow the appeal.

3. Set aside the order made in the Childrens Court on 30 October 2020 that a conviction be recorded for the offence charged by indictment 49/20.

4. Order that no conviction be recorded for that offence.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In such circumstances it cannot be inferred the learned sentencing judge did have regard, as s 184 required, to the considerations in s 184(1)(c). The failure to have regard to that consideration was an error and at least justifies a grant of leave.Conclusion Having concluded leave to appeal should be granted, the question of whether the appeal should in turn be granted turns upon whether this Court concludes that in the event of it exercising the sentencing discretion afresh it would order that no conviction be recorded. As already explained, the collective force of the considerations favouring the recording of a conviction so substantially outweigh the considerations favouring the non-recording of a conviction as to compel the conclusion that a conviction should be recorded. Were this court sentencing afresh it should not order any differently than the learned sentencing judge did. There is thus no purpose to be served by allowing the appeal. I would order:1. Application for leave to appeal granted.2. Appeal dismissed.

Ratio Decidendi

Legal Principle Established

Section 184 of the Act provides as follows:“Considerations whether or not to record conviction (1)In considering whether or not to record a conviction, a court must have regard to all 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.(3)A finding of guilt against a child for an offence without the recording of a conviction stops a subsequent proceeding against the child for the same offence as if a conviction had been recorded.” The applicant’s argument is that the judge did not consider the matters in s 184(1)(c). As appears in the passage set out at [12], there was no consideration of those matters in the judge’s sentencing reasons. It is suggested for the respondent, however, that those things were considered, and that this appears from a passage in the transcript of the hearing. At the hearing, which was a week earlier than the decision, in response to a submission made by the applicant’s then counsel that a conviction might affect the applicant’s prospects of employment, the judge said:“Yes, well, just on that point though, when there’s no specificity at all about what work he wants to do. And with all due respect, and not being disrespectful for one moment, but having regard to his level of function, one would expect that the employment that he would be able to avail himself of would be employment that would not ordinarily be compromised by the recording of a conviction, would it? I mean, in the community, there are a vast number of people who have convictions who work in various pursuits, because they’re not disqualified from doing that work because of their past history.” In the normal course, especially where the decision has been reserved, it is to be expected that a sentencing judge will reveal all of their reasoning for the sentence then being imposed, rather than leaving it to the parties to identify some of it in something said by the judge in the course of the argument.[1] In this case, let it be accepted that the judge’s thinking, as to the effect of recording a conviction upon the applicant’s rehabilitation and employment prospects, was unchanged when he made the order. If so, however, the judge erred.[1]See R v Hyatt [2011] QCA 55 at [13] per Wilson AJA, at [15] per Lyons SJA; R v Robertson (2017) 268 A Crim R 240 at 248-249; [2017] QCA 164 at [38]-[40] per Philippides JA. Section 184(1)(c) requires a court to have regard to the impact the recording of a conviction will have on the child’s chances of finding or retaining employment. What the judge appeared to say, in the passage from the hearing which I have set out, was that given the applicant’s disadvantages in any labour market, resulting from his intellectual disability and his poor education, the applicant would not be further disadvantaged if an actual or potential employer knew of this conviction. With respect, that cannot be accepted. There is no basis to suppose that a potential employer of the applicant would be unaffected by the knowledge that the applicant had committed a serious offence such as this one. And the disadvantage to a child offender, from the recording of the conviction, would be expected to be greater for a person with relatively few employment opportunities than for someone with an education and without an intellectual disability. It follows that if the judge did give consideration to the matters in s 184(1)(c), he reached a factual conclusion on those matters which was not open, and he thereby erred in the exercise of his discretion in ordering that the conviction be recorded.