R v SBP

Case [2009] QCA 408 24 December 2009

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SUPREME COURT OF QUEENSLAND

CITATION:

R v SBP [2009] QCA 408

PARTIES:

R
v
SBP
(applicant)

FILE NO/S:

CA No 258 of 2009
DC No 21 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

24 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

26 November 2009

JUDGES:

McMurdo P and Atkinson and A Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The application for leave to appeal against sentence is granted.

Appeal allowed, only to the extent of deleting that part of the sentence which records a conviction, and instead ordering that no conviction is recorded.2.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – the applicant pleaded guilty to one count of attempted rape – the complainant was seven and the applicant was 15 at the time of the offence – the applicant was sentenced under Juvenile Justice Act 1992 (Qld) – the applicant was sentenced to three years probation and a conviction was recorded – the primary judge did not consider all of the factors under s 184 Juvenile Justice Act before recording a conviction – whether the primary judge erred in recording a conviction

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – the applicant had no previous criminal history, came from a disadvantaged and dysfunctional background and had been a victim of sexual abuse himself – the recording of a conviction would place considerable handicap on the applicant's rehabilitation – whether recording a conviction was manifestly excessive

Child Protection (Offender Reporting) Act 2004 (Qld), s 5(1), s 5(2), s 9, s 14, s 18, s 19, s 20, s 21, s 22, s 24, s 37
Juvenile Justice Act 1992 (Qld), s 183, s 184, s 185, s 208, s 245(1)(d)(ii)
Penalties and Sentences Act 1992 (Qld), s 3, s 9, s 12

R v B [1995] QCA 231, cited
R v Cay, Gersch and Schell; ex parte A-G (Qld) (2005) 158 A Crim R 488; [2005] QCA 467, cited
R v DJL, unreported, Britton SC DCJ, Children's Court Qld, No CC17 of 2006, 5 December 2006, considered
R v JO [2008] QCA 260, cited
R v KU & Ors; ex parte A-G (Qld) [2008] QCA 154, considered
R v L [2000] QCA 448, cited

COUNSEL:

J M Sharp for the applicant
M B Lehane for the respondent

SOLICITORS:

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

McMURDO P: The applicant pleaded guilty on 1 June 2009 in Cairns to one count of attempted rape on 8 June 2008. He was 15 at the time of the offence and 16 at sentence, and so was sentenced under the Juvenile Justice Act 1992 (Qld). A pre‑sentence report and related…

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 SBP

Details

AGLC: R v SBP [2009] QCA 408
Case: [2009] QCA 408
Decision Date: 24 December 2009

CaseChat Overview and Summary

In the matter of R v SBP, the appellant contested the sentence imposed by the primary judge following a guilty plea to one count of attempted rape. The victim was a seven-year-old child, and the appellant was 15 at the time of the offence. The appellant was sentenced under the provisions of the Juvenile Justice Act 1992 (Qld), receiving a sentence of three years probation with the additional imposition of a recorded conviction. The appellant sought to appeal against the sentence, arguing that the primary judge had failed to consider all relevant factors under section 184 of the Juvenile Justice Act before recording a conviction. Furthermore, the appellant contended that the recording of a conviction was manifestly excessive given the circumstances, including the appellant's disadvantaged background, lack of criminal history, and personal experiences of sexual abuse.

The legal issues before the court were whether the primary judge erred in not considering all relevant factors under section 184 of the Juvenile Justice Act before recording a conviction and whether the recording of a conviction was manifestly excessive. The court examined the principles governing the imposition of a recorded conviction under the Juvenile Justice Act, emphasising the importance of rehabilitation and the unique circumstances of the appellant. The court considered the appellant's background, lack of prior criminal history, and the potential impact of a recorded conviction on the appellant's future rehabilitation and reintegration into society. The court found that the primary judge had indeed failed to consider all relevant factors before recording a conviction and that, in the circumstances, the recording of a conviction was manifestly excessive.

The court granted the application for leave to appeal against the sentence, allowing the appeal only to the extent of deleting the part of the sentence which records a conviction, and ordering that no conviction is recorded. This decision reflects a balanced approach, taking into account the principles of rehabilitation and the unique circumstances of the appellant, while also ensuring that the sentence imposed aligns with the statutory framework and the specific context of the offence. The court's ruling underscores the importance of considering all relevant factors and the potential long-term consequences of sentencing decisions in juvenile justice matters.

Orders

Orders of the court

1. The application for leave to appeal against sentence is granted.

Appeal allowed, only to the extent of deleting that part of the sentence which records a conviction, and instead ordering that no conviction is recorded.2.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v SBP [2009] QCA 408

Most Recent Citation

R v WAJ [2010] QCA 87

Cases Citing This Decision

R v BZZ & AZY; Ex parte [2025] QCA 89
Citation 1 (Para 15)

…that such a proposition is not supported by the express words of s 183(1). [56] R v TX [2011] QCA 68 at [33] citing R v B [1995] QCA 231; R v SBP [2009] QCA 408 at [21]; R v WAJ [2010] QCA 87 at [14].…
Campbell v LOR [2024] QMC 18
Citation 2 (Para 1)

…mmensurate to the seriousness of all these consequences for LOR if an Order is made.[21] [18] R v Bunton [2019] QCA 214 at [30], citing R v SBP [2009] QCA 408 at [20] and R v Rogers [2013] QCA 192 at [40]. [19] Child Protection Act (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 50. [20] R v…
R v Nona [2022] QCA 26
Citation 3 (Para 3)

…ision because the impact of recording a conviction is a relevant consideration in exercising the discretion whether to record a conviction. [13][2009] QCA 408. [14][2010] QCA 94. [15](2013) 231 A Crim R 290. [16][2019] 2 Qd R 115. [17][2019] QCA 214.…
R v Rodgers [2021] QCA 97
Citation 4 (Para 10)

…at any breach of the offender’s obligations renders that person potentially liable to five years’ imprisonment.[5] [3][2019] QCA 214. [4] R v SBP [2009] QCA 408 at [20] per McMurdo P (Atkinson and Lyons JJ agreeing); R v Rogers (2013) 231 A Crim R 290 at 297; [2013] QCA 192 at [40] per Henry J (Holmes and Fraser…
R v DBU [2021] QCA 51
Citation 5 (Para 4)

…cPherson JA and de Jersey J (Pincus JA agreeing); R v JO [2008] QCA 260 at [12], [16] per Holmes JA (Mackenzie AJA and Douglas J agreeing); R v SBP [2009] QCA 408 at [21] per McMurdo P (Atkinson and Lyons JJ agreeing); R v SBR [2010] QCA 94 at [15] per Muir JA (McMurdo P and Holmes JA agreeing) ; R v SCU [2017] Q…
R v ZB [2021] QCA 9
Citation 6 (Para 1)

…s that the applicant would be under that regime during the period of his probation, and for another three years beyond then. [15] R v SBP [2009] QCA 408 at [20]; R v Rogers (2013) 231 A Crim R 290; [2013] QCA 192 at [40]; R v Bunton [2019] QCA 214 at [30]. [16][2019] QCA 214 at [29].…
MSE v Office of the Director of Public Prosecutions [2020] QChC 22
Citation 7 (Para 14)

…cise of discretion is in favour of recording a conviction …” [4] [2017] QCA 198. [5] R v B [1995] QCA 231; R v JO [2008] QCA 260; R v SBP [2009] QCA 408; R v SBR [2010] QCA 94.…
DMS v Commissioner of Police [2020] QDC 345
Citation 8

…n [2007] QCA 224 R v Brieze ex-parte AG Queensland [1998] 1 Qd R 487 R v Bunton [2019] QCA 214. R v Rogers [2013] QCA 192 R v SBP [2009] QCA 408 R v LAL [2018] QCA 179 COUNSEL: M. McMillan (solicitor) for the appellant M. Mitchell for the respondent SOLICITORS: McMillan Criminal Law for the appellant Office of th…
R v DBR [2019] QCA 218
Citation 9 (Para 20)

…ered. Specific reference was made to R v SBQ [7] and R v BCO .[8] [4]Sentencing Remarks, Children’s Court, Qld, 18 September 2014, Harrison DCJ. [5][2009] QCA 408. [6][2018] QCA 179. [7][2010] QCA 89. [8][2013] QCA 328.…
R v Bunton [2019] QCA 214
Citation 10 (Para 30)

…fact that any breach of the obligations renders the applicant potentially liable to five years’ imprisonment: s 36(1)(a) and s 50. [23] R v SBP [2009] QCA 408 at [20], R v Rogers [2013] QCA 192 at [40]; see also R v LAL [2018] QCA 179 at [104].…
R v LAL [2018] QCA 179
Citation 11 (Para 28)

…imposed and the prima facie position under s 184 of the Juvenile Justice Act 1992 would have been that a conviction was not to be recorded: R v SBP [2009] QCA 408 at [21]; R v B [1995] QCA 231. As the trial judge observed it was of considerable concern that the appellant had made a deliberate effort to get sexual…
R v SCU [2017] QCA 198
Citation 12 (Para 2)

…in a rape case in which a two year period of detention had been ordered. [18] R v B [1995] QCA 231; R v JO [2008] QCA 260; R v SBP [2009] QCA 408; R v SBR [2010] QCA 94. [19] R v KU & Ors; Ex parte Attorney-General (Qld) (No 2) [2008] QCA 154. [20] supra, at [14]. [21] R v MBQ; ex parte Attorney-General (Qld) [2…
R v Cunningham [2014] QCA 88
Citation 13 (Para 21)

…exercise of that discretion. The prima facie position under these provisions is that a conviction is not to be recorded against a child: R v SBP [2009] QCA 408 at [21]; R v B [1995] QCA 231. Section 184(1) provides that in considering whether or not to record a conviction a court must have regard to all the circ…
R v TX [2011] QCA 68
Citation 14 (Para 1)

…ence which is substantially the product of criminal negligence, rather than of malice or conscious wrongdoing.[14] [13] R v B [1995] QCA 231; R v SBP [2009] QCA 408 at [21]; R v WAJ [2010] QCA 87 at [14]. [14] R v T [1998] QCA 456.…
R v SBQ [2010] QCA 89
Citation 15 (Para 1)

…n imposed and the prima facie position under s 184 of the Juvenile Justice Act 1992 would have been that a conviction was not to be recorded: R v SBP [2009] QCA 408 at [21]; R v B [1995] QCA 231. As the trial judge observed it was of considerable concern that the appellant had made a deliberate effort to get sexu…
R v WAJ [2010] QCA 87
Citation 16 (Para 1)

…he exercise of that discretion. The prima facie position under these provisions is that a conviction is not to be recorded against a child: R v SBP [2009] QCA 408 at [21]; R v B [1995] QCA 231. Section 184(1) provides that in considering whether or not to record a conviction a court must have regard to all the ci…

See all citing cases →

Cases Cited

R v JO [2008] QCA 260
Citation 1 (Para 1)

…d s 12 Penalties and Sentences Act , and s 2, s 3, s 184 and s 185 and Sch 1 Juvenile Justice Act and R v L [7] and R v JO .[8] [7][2000] QCA 448. [8][2008] QCA 260 at [12], [21], [22].…
R v KU; ex parte Attorney-General (No 2) [2008] QCA 154
Citation 2 (Para 1)

…nctioning and some minor criminal history, but not for sexual offences. He was placed on two years probation without a conviction being recorded. [12][2008] QCA 154 at [209]-[211]. [13]Unreported, Britton SC DCJ, Children's Court Qld, No CC17 of 2006, 5 December 2006 (anonymised by this Court), R v KU & Ors; ex p…
R v Cay, Gersch and Schell; ex parte [2005] QCA 467
Citation 3 (Para 1)

…s an adult could not be informed of the prior offence: see R v Cay, Gersch and Schell; ex parte A-G (Qld) .[11] That is a relevant consideration. [11][2005] QCA 467.…
R v L [2000] QCA 448
Citation 4 (Para 1)

…ld): cf s 3, s 9 and s 12 Penalties and Sentences Act , and s 2, s 3, s 184 and s 185 and Sch 1 Juvenile Justice Act and R v L [7] and R v JO .[8] [7][2000] QCA 448. [8][2008] QCA 260 at [12], [21], [22].…
R v B [1995] QCA 231
Citation 5 (Para 1)

…d in not also considering the impact of a recorded conviction on the applicant's rehabilitation generally or in finding or retaining employment. [6][1995] QCA 231, McPherson JA and de Jersey J (as he then was).…

Legislation Cited

Child Protection (Offender Reporting) Act 2004 (Qld) 37, 5(1)
4 mentions (from Para 1)
Juvenile Justice Act 1992 (Qld) 183
2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld) 3
2 mentions (from Para 1)

CITATION:	R v SBP [2009] QCA 408
PARTIES:	R v SBP (applicant)
FILE NO/S:	CA No 258 of 2009 DC No 21 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	24 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	26 November 2009
JUDGES:	McMurdo P and Atkinson and A Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal against sentence is granted. Appeal allowed, only to the extent of deleting that part of the sentence which records a conviction, and instead ordering that no conviction is recorded.2.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – the applicant pleaded guilty to one count of attempted rape – the complainant was seven and the applicant was 15 at the time of the offence – the applicant was sentenced under Juvenile Justice Act 1992 (Qld) – the applicant was sentenced to three years probation and a conviction was recorded – the primary judge did not consider all of the factors under s 184 Juvenile Justice Act before recording a conviction – whether the primary judge erred in recording a conviction CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – the applicant had no previous criminal history, came from a disadvantaged and dysfunctional background and had been a victim of sexual abuse himself – the recording of a conviction would place considerable handicap on the applicant's rehabilitation – whether recording a conviction was manifestly excessive Child Protection (Offender Reporting) Act 2004 (Qld), s 5(1), s 5(2), s 9, s 14, s 18, s 19, s 20, s 21, s 22, s 24, s 37 Juvenile Justice Act 1992 (Qld), s 183, s 184, s 185, s 208, s 245(1)(d)(ii) Penalties and Sentences Act 1992 (Qld), s 3, s 9, s 12 R v B [1995] QCA 231, cited R v Cay, Gersch and Schell; ex parte A-G (Qld) (2005) 158 A Crim R 488; [2005] QCA 467, cited R v DJL, unreported, Britton SC DCJ, Children's Court Qld, No CC17 of 2006, 5 December 2006, considered R v JO [2008] QCA 260, cited R v KU & Ors; ex parte A-G (Qld) [2008] QCA 154, considered R v L [2000] QCA 448, cited
COUNSEL:	J M Sharp for the applicant M B Lehane for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent