R v WCF

[2024] QCA 148

SUPREME COURT OF QUEENSLAND

CITATION:

R v WCF [2024] QCA 148

PARTIES:

R
v
WCF
(applicant)

FILE NO/S:

CA No 42 of 2024
CA No 43 of 2024
DC No 551 of 2023
DC No 544 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 27 February 2024 (Moynihan KC DCJ)

DELIVERED ON:

16 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

12 July 2024

JUDGES:

Dalton and Boddice JJA and Davis J

ORDER:

The application for leave to appeal against sentence is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant juvenile was sentenced to an effective head sentence of 9 months’ detention, immediately suspended on a 6 month conditional release order, in respect of seven offences contained in two separate indictments – where it was ordered that convictions be recorded in respect of each offence – whether the recording of the convictions on all counts, rendered the sentences manifestly excessive

Youth Justice Act 1992 (Qld)

COUNSEL:

C O’Connor for the applicant
S J Gallagher for the respondent

SOLICITORS:

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

1. DALTON JA:  I agree with the order proposed by Boddice JA and with his reasons.

2. BODDICE JA:  On 27 February 2024, the applicant was sentenced in the Childrens Court of Queensland, to an effective head sentence of 9 months’ detention, immediately suspended on a 6 month conditional release order, in respect of seven offences contained in two separate indictments.  It was ordered that convictions be recorded in respect of each offence.

3. The applicant seeks leave to appeal the sentences on the ground that the recording of the convictions on all counts, rendered the sentences manifestly excessive.

4. The applicant was aged 15 years old at the time of the offences and aged 16 years old at sentence.  She had been held in pre-sentence custody for 36 days, after which she had been released, subject to a conditional bail program.

5. The applicant had a relevant criminal history, having been convicted of offences involving dishonesty, unlawful use of a motor vehicle, aggravated violence, burglary, dangerous operation of a vehicle and attempted armed robbery, as well as various lesser offences.  She had been the recipient of three probation orders prior to the imposition of these sentences.

6. The applicant’s offending involved a course of conduct committed on one day.

7. The most serious offence committed was the offence of robbery in company.  That involved the applicant, with two co-offenders, all of whom were armed, assaulting an Uber driver who had driven them to their point of destination.  A co-offender held a knife to the driver’s throat and demanded the car.  The applicant also used a knife in a stabbing motion towards the driver, causing small cuts to his hands.  The vehicle was taken from the driver and used to commit the remaining offences.

8. Those offences involved unlawfully using a motor vehicle in the night, in company, three offences of fraud and one offence of robbery in company.  The offences of fraud involved stealing petrol for use in the vehicle, which was unlawfully used to transport the applicant and her co-offender.  Whilst using it, the applicant and the co-offender approached a 14 year old complainant on the street, before grabbing her hair and punching her in the face, causing a bruise and stealing her phone.

   Sentence hearing

9. The prosecutor tendered the applicant’s criminal history, as well as sentencing remarks relevant to previous sentences, for offences on that history.  Relevantly, they included previous offending for attempting to rob a delivery driver, whilst in company and armed with a knife, as well as two prior assault entries involving an assault on a 12 year old complainant and a month later, an assault on a 15 year old complainant.

10. The prosecutor also relied on a pre-sentence report which recorded a dismissive attitude to offending and mixed efforts whilst subject to previous probation orders.  The report writer also referred to the applicant demonstrating poor insight and callous disregard for her victims and of having advised that she considered detention not a deterrent, as the detention centre was a “luxury”.

11. The prosecutor accepted that there were features of the pre-sentence report, indicating a history of bullying having been experienced by the applicant and recording a recent change in attitude towards participation in community based sentencing orders.

12. Defence counsel submitted that there were a number of features in the applicant’s favour.  There was an explanation for her offending behaviour, including the bullying she had previously experienced, her more recent family support, as well as her aspirations for the future.  Particular reference was made to the recent express change in attitude, consistent with the development of insight into her offending and the consequence on the driver.

13. In respect of the recording of convictions, defence counsel submitted that convictions ought not to be recorded, having regard to the consequence on the applicant’s future prospects, including employment prospects.  The prosecutor specifically submitted that recording of convictions were not sought by the prosecution, notwithstanding that the present offending had been committed whilst subject to probation.

    Sentencing remarks

14. The sentencing judge referred to the circumstances of the offence, noting that both complainants had been adversely affected and suffered harm as a result of the applicant’s offending and referred to the applicant’s relevant criminal history and the cooperation shown by her pleas of guilty.

15. The sentencing judge recorded the findings of the pre-sentence report, noting that the applicant had experienced a dysfunctional childhood and that the report writer considered that factors contributing to her offending included rejection of parental supervision and boundary setting, disengagement from daily structured activities, including education, and gravitation towards negative peers and development of criminal identity.

16. The sentencing judge recorded that the applicant had been held in pre-sentence custody for 36 days and thereafter had been subject to a conditional bail program.  Further, the applicant had engaged in some courses whilst in detention and was currently enrolled in an alternative form of schooling.  She was now living with her parents, who were supportive.  The sentencing judge also recorded that the applicant had not shown much remorse or empathy for her victims and that there was a real risk of re-offending in the future.

17. Finally, the sentencing judge said:[1]

    “And in relation to recording a conviction, I have balanced the nature of the offending, including some involving extremely serious actual violence to members of the community, your age and extensive history of serious offending, including violence, and that you have continued to offend while on probation, your express lack of remorse and intention to do it again, and the impact the recording of a conviction will have on your rehabilitation generally or finding or obtaining employment in circumstances where at this stage, it looks likely that you will seek employment in the hospitality industry.”

    [1]AB/45.

    Consideration

18. The applicant submits that a recording of a conviction, whilst discretionary, required the Court to have regard to all of the circumstances of the case, including the nature of the offence, the child’s age and any previous convictions and the impact the recording of the conviction will have on the child’s chances of rehabilitation generally, or finding or retaining employment.

19. The applicant submitted that whilst the applicant’s age and previous criminal history were relevant and a number of the offences were serious, the recording of convictions rendered the sentences manifestly excessive, having regard to the fact that the applicant was 15 years 10 months of age at the time of the offences and on no prior occasion had had a conviction recorded and had positive prospects of rehabilitation, given recent positive changes in attitude and engagement with interventions, as well as expressed aspirations for future employment in the hospitality industry.

20. Whilst there were features which could be said to support the exercise of a discretion not to record convictions, for what was serious offending committed whilst subject to probation orders for earlier offending, there is no basis to conclude that the sentencing judge undertook the exercise of determining whether to record convictions, other than in accordance with the requirements of the Youth Justice Act 1992.

21. As the applicant fairly conceded, whether or not to record convictions was a finely balanced decision.  Nothing in the sentencing remarks supports a conclusion that there was a misapplication of principle in the exercise of that discretion.  There is also no basis to conclude that the recording of convictions rendered the sentences imposed plainly unreasonable or unjust.

    Order

22. I would order:

    1.The application for leave to appeal against sentence be dismissed.

23. DAVIS J:  I agree with Boddice JA and the reasons provided by his Honour.