R v TX

Case [2011] QCA 68 15 April 2011

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SUPREME COURT OF QUEENSLAND

CITATION:

R v TX [2011] QCA 68

PARTIES:

R
v
TX
(applicant)

FILE NO:

CA No 282 of 2010
DC No 87 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Brisbane

DELIVERED ON:

15 April 2011

DELIVERED AT:

Brisbane

HEARING DATE:

5 April 2011

JUDGES:

Muir JA, Margaret Wilson AJA and Peter Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDERS:

The application for leave to appeal be granted;1.

The appeal be allowed; and2.

That the order at first instance recording a conviction be set aside3.   .

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – DISCRETION TO RECORD CONVICTION – RELEVANT CONSIDERATIONS – where applicant pleaded guilty to one count of dangerous operation of a vehicle causing grievous bodily harm to another under s 328A Criminal Code 1899 (Qld) – where applicant aged 16 years at the time of the offence – where decision whether to record a conviction against applicant governed by s 183 and s 184 Youth Justice Act 1992 (Qld) – whether sentencing judge erred in recording a conviction

CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – FACTUAL BASIS FOR SENTENCE – GENERALLY – where applicant pleaded guilty to one count of dangerous operation of a vehicle causing grievous bodily harm to another under s 328A Criminal Code 1899 (Qld) – where circumstances of aggravation not charged in the indictment – where circumstance of aggravation relied on by sentencing judge – whether sentencing judge erred in recording a conviction

Criminal Code 1899 (Qld), s 328A, s 564
Youth Justice Act 1992 (Qld), s 183, s 184

R v Briese, ex-parte Attorney-General [1998] 1 Qd R 487; [1997] QCA 10, considered
R v T [1998] QCA 456, considered
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31, applied

COUNSEL:

R East for the applicant
V Loury for the respondent

SOLICITORS:

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

MUIR JA: For the reasons given by Peter Lyons J, I would order that:

(a) The application for leave to appeal be granted;

(b) The appeal be allowed; and

(c) The order at first instance recording a conviction be set aside.

MARGARET WILSON AJA: For the reasons given by Peter Lyons J, the order at first instance recording a conviction should be set aside. I agree with the orders proposed by Muir JA.

PETER LYONS J: On 29 October 2010, the applicant was sentenced on his plea of guilty on one count of dangerously operating a motor vehicle. He applies for leave in respect of one order only, namely the recording of a conviction.

Background

The count recorded in the indictment was based on s 328A of the Criminal Code 1899 (Qld) (Criminal Code). It included one circumstance of aggravation, that being causing grievous bodily harm to another person.

At…

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 TX

Details

AGLC: R v TX [2011] QCA 68
Case: [2011] QCA 68
Decision Date: 15 April 2011

CaseChat Overview and Summary

The applicant, a minor, appealed against the decision of a sentencing judge to record a conviction against them for a dangerous operation of a vehicle causing grievous bodily harm, as per section 328A of the Criminal Code 1899 (Qld). The appeal was heard in the Queensland Court of Appeal, where the applicant argued that the sentencing judge had erred in recording a conviction, both in the discretion exercised and in the consideration of aggravating circumstances.

The legal issues for the court to determine were whether the sentencing judge appropriately exercised their discretion under sections 183 and 184 of the Youth Justice Act 1992 (Qld) when deciding to record a conviction, and whether the sentencing judge correctly considered the aggravating circumstances in the sentencing process. The court examined whether the sentencing judge erred in law by relying on circumstances of aggravation that were not charged in the indictment but were used to enhance the sentence.

The court found that the sentencing judge did indeed err in exercising their discretion to record a conviction. The court held that the sentencing judge did not adequately consider the relevant legislative provisions governing the recording of convictions for minors. Furthermore, the court concluded that the sentencing judge incorrectly considered the circumstances of aggravation, as they were not part of the indictment and thus could not be relied upon to increase the severity of the sentence. These errors amounted to a misdirection by the sentencing judge.

The appeal was allowed, the order recording the conviction was set aside, and leave to appeal was granted. The case was remitted to the sentencing court for reconsideration in light of the court's findings.

Orders

Orders of the court

The application for leave to appeal be granted;1.

The appeal be allowed; and2.

That the order at first instance recording a conviction be set aside3. .

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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Citations

R v TX [2011] QCA 68

Most Recent Citation

R v Rao and BCR and BCS; Ex parte [2014] QCA 7

Cases Citing This Decision

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

…e recorded against a child”.[56] The primary contention is 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].…
R v HCN [2023] QCA 97
Citation 2 (Para 14)

…inst a child in sentencing under the Youth Justice Act – ss 183 and 184 of that Act and R v TX .[4] [3](1936) 55 CLR 499, 504-505. [4][2011] QCA 68; [2011] 2 Qd R 247.…
R v VHW [2019] QChC 26
Citation 3 (Para 1)

…ns on behalf of the child: R v L [2000] QCA 448; R v Cay, Gersch and Schell; ex parte Attorney-General [2005] QCA 467; R v SCU [2017] QCA 198; R v TX [2011] QCA 68; R v BCN [2013] QCA 226; and R v PBE [2019] QCA 185.…
R v LAL [2018] QCA 179
Citation 4 (Para 28)

…ll the case.[50] [50]Sections 183 and 184 YJA : R v B [1995] QCA 321; R v JO [2008] QCA 260; R v SBP [2009] QCA 408; R v SBR [2010] QCA 94 and R v TX [2011] QCA 68.…
Iau v The Queen [2018] QChC 10
Citation 5 (Para 1)

…ollowing decisions which confirm these observations, namely: R v L [2000] QCA 448; R v Cay and others [2005] QCA 467 , R v SCU [2017] QCA 198, R v TX [2011] QCA 68 and R v BCN [2013] QCA 226.…
R v RAO and BCR and BCS; Ex parte [2014] QCA 7
Citation 6 (Para 1)

…a conviction is not to be recorded against a child. In this appeal, the appellant does not challenge that exposition of the approach to be taken. [21][2011] QCA 68; [2011] 2 Qd. R. 247. [22]At [33], Muir JA and Wilson AJA concurring.…
R v KM [2013] QChC 13
Citation 7 (Para 1)

…It is clear from decisions of the Court of Appeal, such as R v TX [2011] QCA 68, that the primary position is that convictions should not be recorded against child offenders. The magistrate’s sentencing remarks do not indicate why it was decided that convictions should be recorded in respect of the offences of b…
R v JM [2013] QChC 11
Citation 8 (Para 1)

…a conviction should not be recorded against a child. The decisions of the Court of Appeal in R v JO [2008] QCA 260, R v SBR [2010] QCA 94, and R v TX [2011] QCA 68 at paragraph 33, show that the prima facie, or primary position, is that a conviction should not be recorded against a child. As I have mentioned, th…
R v Med [2012] QChC 14
Citation 9

…R v B [1995] QCA 231, cited. R v C and M [2000] 1 Qd R 636, cited. R v Cay & Ors [2005] QCA 467, applied. R v L [2008] QCA 448, applied. R v TX [2011] QCA 68, applied. COUNSEL: R. Smith for the applicant. S. Francis for the respondent. SOLICITORS: Legal Aid (Queensland) for the applicant. Director of Public Pros…
The Queen v ACD [2012] QChC 13
Citation 10

…As has been pointed out recently, in the Queen v. TX [2011] QCA 68, "Even where a serious offence is involved, the prima facie position under the Youth Justice Act is that a conviction is not to be recorded against a child". The Court of Appeal said, "The statutory position is consistent with the Court's general…
Klji v Commissioner of Queensland Police Service [2011] QChC 24
Citation 11 (Para 1)

…The Crown concedes that in accordance with the judgment of the Court of Appeal in the R v TX [2011] QCA 68, that the prima facie position is that convictions ought not to have been recorded. In the circumstances, I accept that convictions ought not to have been recorded.…

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Cases Cited

R v WAJ [2010] QCA 87
Citation 1 (Para 1)

…ot been identified in the indictment. Reference was also made to the applicant’s participation in YJC, a matter favourable to the applicant. [6][2010] QCA 87 at [14]-[15].…
R v SBP [2009] QCA 408
Citation 2 (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 Gai; ex parte [2009] QCA 298
Citation 3 (Para 1)

…to sentencing in Queensland in R v Boney, ex parte Attorney-General, [10] and in R v GAI; ex parte Attorney-General. [11] [10][1986] 1 Qd R 190. [11][2009] QCA 298.…
R v T [1998] QCA 456
Citation 4 (Para 1)

…ther 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 Briese; ex parte Attorney-General [1997] QCA 10
Citation 5

…d), s 328A, s 564 Youth Justice Act 1992 (Qld), s 183, s 184 R v Briese, ex-parte Attorney-General [1998] 1 Qd R 487; [1997] QCA 10, considered R v T [1998] QCA 456, considered The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31, applied COUNSEL: R East for the applicant V Loury for the respondent SOLICITORS…
R v B [1995] QCA 231
Citation 6 (Para 1)

…he case of a serious offence 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 De Simoni [1981] HCA 31
Citation 7

…998] 1 Qd R 487; [1997] QCA 10, considered R v T [1998] QCA 456, considered The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31, applied COUNSEL: R East for the applicant V Loury for the respondent SOLICITORS: Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respond…

Legislation Cited

Youth Justice Act 1992 (Qld) 183
2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
1 mention (from Para 1)

CITATION:	R v TX [2011] QCA 68
PARTIES:	R v TX (applicant)
FILE NO:	CA No 282 of 2010 DC No 87 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Childrens Court at Brisbane
DELIVERED ON:	15 April 2011
DELIVERED AT:	Brisbane
HEARING DATE:	5 April 2011
JUDGES:	Muir JA, Margaret Wilson AJA and Peter Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDERS:	The application for leave to appeal be granted;1. The appeal be allowed; and2. That the order at first instance recording a conviction be set aside3. .
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – DISCRETION TO RECORD CONVICTION – RELEVANT CONSIDERATIONS – where applicant pleaded guilty to one count of dangerous operation of a vehicle causing grievous bodily harm to another under s 328A Criminal Code 1899 (Qld) – where applicant aged 16 years at the time of the offence – where decision whether to record a conviction against applicant governed by s 183 and s 184 Youth Justice Act 1992 (Qld) – whether sentencing judge erred in recording a conviction CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – FACTUAL BASIS FOR SENTENCE – GENERALLY – where applicant pleaded guilty to one count of dangerous operation of a vehicle causing grievous bodily harm to another under s 328A Criminal Code 1899 (Qld) – where circumstances of aggravation not charged in the indictment – where circumstance of aggravation relied on by sentencing judge – whether sentencing judge erred in recording a conviction Criminal Code 1899 (Qld), s 328A, s 564 Youth Justice Act 1992 (Qld), s 183, s 184 R v Briese, ex-parte Attorney-General [1998] 1 Qd R 487; [1997] QCA 10, considered R v T [1998] QCA 456, considered The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31, applied
COUNSEL:	R East for the applicant V Loury for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent