R v R and K - [2000] QCA 490

[2000] QCA 490

COURT OF APPEAL
McPHERSON JA
WILLIAMS J
DOUGLAS J
CA No 198 of 2000
CA No 199 of 2000
THE QUEEN
v.
R and K Applicants
BRISBANE
..DATE 28/11/2000
JUDGMENT

McPHERSON JA: These are applications for leave to appeal, or to extend the time for doing so, by two 11 and 12 year old boys against sentences imposed on them in the District Court at Dalby on 16 May 2000. They pleaded guilty to numerous charges of breaking and entering, stealing, unlawful use and so on, committed during a period from about May to August 1999.
The sentence imposed on each of them was probation for two years with convictions to be recorded. The applicants' complaint before us is limited to the orders directing convictions to be recorded.
The targets of the offences were places or things like clubs, shops, hotels, a pharmacy, a supermarket, women's handbags at a bowls club and such like. There were many offences but few, if any, involved articles of much value. No acts of physical violence to the person were committed, except in two instances in which K pulled other boys off their bicycles and punched them. There does not appear to have been any particular criminal motive for these actions, apart from some kind of misplaced bravado or boyish aggression.
What I have said in this regard is subject to an exception in the case again of K involving a count of attempted armed robbery. The brief resume of it in the record is to the effect that, at about 9.30 p.m. on the day of the offence, the complainant was sitting in his cab outside the Metway Arcade in Cunningham Street, Dalby. The complainant was approached by the prisoner, who had a track suit wrapped around his face, and was holding a house brick above his head. He said to the complainant, "Give me all your money." The complainant refused, and the prisoner said, "Give me that wallet there or I'll bash your brains out with this brick." The complainant, not surprisingly, drove off in his taxi leaving the applicant behind, presumably still holding the brick.
That is potentially an offence of a serious kind but it looks like a pretty childish or amateurish attempt to carry it out and one might have some hesitation accepting that he really had it in mind to perform a robbery.
There is said to be some evidence to suggest that the applicant R had come under the influence of K at the time of these offences and that, since he stopped associating or doing things with him in this way, R's conduct and his grades at school have greatly improved. R had, however, a not inconsiderable record of prior offences himself, most of the same general kind, committed in 1998, and his offending on that occasion cannot readily be overlooked. K had committed some similar offences in June 1999, so that neither of them was a complete stranger to offending behaviour of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v R and K

Details

AGLC: R v R and K [2000] QCA 490
Case: [2000] QCA 490
Decision Date: 28 November 2000

CaseChat Overview and Summary

In this case, the applicants, two young boys aged 11 and 12, appealed against the sentences imposed on them in the District Court at Dalby. The boys had pleaded guilty to numerous charges including breaking and entering, stealing, and unlawful use, committed between May and August 1999. The sentence imposed on each of them was probation for two years with convictions to be recorded. The applicants' complaint was limited to the orders directing convictions to be recorded. The offences involved places or things like clubs, shops, hotels, a pharmacy, a supermarket, and women's handbags at a bowls club, with few if any involving articles of significant value. There were no acts of physical violence except in two instances where one boy pulled other boys off their bicycles and punched them. The court considered whether the discretion exercised in recording convictions was appropriate, particularly in light of the young age of the offenders and the potential for rehabilitation.

The court examined whether the sentencing judge exercised her discretion appropriately in ordering convictions to be recorded. Recording a conviction is generally a matter for judicial discretion and is not readily interfered with on appeal. The court considered the statutory provisions under the Juvenile Justice Act and previous case law, which suggest that in the case of children, a conviction should not ordinarily be recorded, particularly for relatively petty offences. The court also noted the prospect of rehabilitation as a compelling factor under the Act. The court found that the sentencing judge did not provide reasons for recording convictions and it was not easy to infer why she did so, suggesting that the discretion on this aspect of the sentencing process had miscarried.

The court concluded that the discretion exercised in ordering convictions to be recorded must have miscarried. The court allowed the appeals to the extent of setting aside the orders that convictions be recorded in the case of each applicant. The court granted leave to appeal along with any necessary extensions of time or applying for it. The judges emphasised the extreme youth of the offenders and the potential for rehabilitation, despite their previous offending behaviour. The court ordered that the convictions should not be recorded.

Orders