RDL v The Queen

[2013] QChC 17

CHILDRENS COURT OF QUEENSLAND

CITATION:

RDL  v The Queen [2013] QChC 17

PARTIES:

RDL

(Applicant)

v

The Queen

(Respondent)

FILE NO/S:

CCJ 8/13

DIVISION:

Criminal

PROCEEDING:

Sentence Reviews

ORIGINATING COURT:

Magistrates Court of Caboolture

DELIVERED ON:

19 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

19 April 2013

JUDGE:

Farr SC DCJ

ORDER:

The application to file the review application out of time is allowed.

The application for sentence review is dismissed.

CATCHWORDS:

APPLICATION FOR SENTENCE REVIEW – Childrens Court of Queensland – Youth Justice Act 1992 (Qld) – section 119 – section 121 – application for sentence review out of time – where application to file out of time is allowed – where application for sentence review is dismissed - where applicant submits recording of convictions inconsistent with rehabilitative penalty imposed – where lengthy criminal history and serious nature of offending indicated recording of convictions appropriate - where applicant has since been charged with a number of further serious offences

SOLICITORS:

D Law for the applicant

B J Jackson for the respondent

HIS HONOUR: This is an application to file a sentence review out of time, as well as an application for a sentence review, each application being issued pursuant to sections 119 and 121 of the Youth Justice Act of 1992. There is no opposition to the application seeking leave to file the review application out of time and, in those circumstances, I will accordingly, grant that leave.

Insofar as the application for sentence to review is concerned, it relates to the recording of convictions that were imposed by the Magistrate at the Caboolture Children’s Court on 23 November 2012 in relation to 13 offences, involving dangerous operation of a motor vehicle with a circumstance of aggravation, dangerous operation of a motor vehicle, three unlawful use of motor vehicles, two failing to stop motor vehicles, four stealing charges and two wilful damage offences. 

The offences were committed between 15 July 2012 and 24 September 2012.  At the time of the commission of those offences, the applicant was on bail for an offence of wilful damage, that offence having taken place on 15 July 2012.  He was sentenced to 12 months probation and 100 hours of community service in relation to these offences and, as I indicated, the application does not relate to that part of the sentence, but rather the recording of convictions for each of the offences. 

The applicant was 15 years old at the time of the commission of those offences and at the time of his sentence.  He has since turned 16.  He has a concerning and lengthy criminal history dating back to July 2010 when he was 14 years of age and his offending is predominantly dishonesty and property related.  He had previously been given the opportunity of community-based orders, including probation and community service, although he has breached some of those orders in the past.  In fact, the offences the subject of this review were committed in breach of a probation order that was imposed for offences of a roughly similar nature. 

It has been submitted on the applicant’s behalf that the imposition of the recording of convictions is somewhat inconsistent with the rehabilitative penalty that was imposed, that is probation and community service, and authorities have been cited in

support of that submission.  Since the time of the preparation of that submission, however, facts have somewhat changed a little in that the applicant has been charged with a number of further serious offences involving the use of weapons and the use of violence.

The applicant submits that his rehabilitation is still the predominant, consideration and that the learned Magistrate erred in the recording of convictions for these offences.  Reference is made to the fact that the legal representative appearing on behalf of the applicant in the Magistrates Court was interrupted in the course of making submissions as to why no conviction should be recorded and was not given the opportunity to continue with those submissions.  The interruption certainly occurred by the Magistrate simply asking what was the relevant section in the legislation, but I note that the legal representative did not return to the topic, although he had ample opportunity to do so.  It is not that he was prevented from making such a submission, but he, for whatever reason, decided not to continue with submissions to that effect or to continue them further, at least.

The rehabilitation of the applicant, no doubt, is important for both him and for the community at large.  But given his criminal history, - which is, as I have said, lengthy and concerning - and given the serious nature of the offences that are the subject of this application and that he was 15 years of age at the time of the commission of the offences, my immediate impression was that this was an appropriate matter to record convictions, taking into account the need for the consideration of the community’s protection to be assessed and acknowledged and ensuring that the applicant is held accountable for having committed criminal offences and may assist in the encouragement of him to accept responsibility for his offending behaviour.  Any suggestion of his full admissions to these offences as offering some type of indication that he has seen the light and has commenced his own rehabilitation is, perhaps, overcome by these allegations of more recent and very serious offending, which tends to suggest that there is a lack of rehabilitation and perhaps a lack of insight into his offending behaviour, and as I understand it, if convicted would demonstrate an alarming escalation in his offending conduct.  In

those circumstances, the applicant’s legal representative has been hamstrung considerably in presenting to the court a persuasive argument as to why this court should intervene in the order of the court below.

I have mentioned that in my view the Magistrate was not in error when he recorded convictions, insofar as not giving the legal representative the opportunity to make submissions on that topic.  I note that in a review application error is not necessarily required before this court can intervene, but, nevertheless, it would be certainly a relevant consideration if error was demonstrated, but no error has been demonstrated here. 

In my view, the applicant’s offending history taken into account, when considered together with his serious offending in relation to these offences and his apparent lack of demonstrating any willingness to assist in his own prospects of rehabilitation, warrant the course that the Magistrate took, and that is to record convictions for these offences.  Accordingly, the application is dismissed.