Rigby v KS - [2022] NTSC 33

CITATION:Rigby v KS [2022] NTSC 33
PARTIES:RIGBY, Kerry Leanne
v

KS

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from YOUTH JUSTICE COURT exercising Territory jurisdiction
FILE NO:LCA 33 of 2021 (22019808)
DELIVERED:  27 April 2022
HEARING DATE:  18 February 2022
JUDGMENT OF:  Brownhill J
CATCHWORDS:

CRIME - Appeal and review - Appeal from Youth Justice Court to Supreme Court - Appeal against sentence – Manifest inadequacy alleged due to failure by sentencing judge to record a conviction – Application of the Criminal Records (Spent Convictions) Act 1992 (NT) – Sentencing judge had discretion to not impose a conviction – Whether discretion was duly exercised by taking into account all relevant factors including the age of the offender, seriousness of the offending, public interest in knowing about the conviction and the inference of adverse consequences to the offender of recording a conviction – Decision not to record a conviction not clearly unreasonable or plainly unjust – Appeal dismissed.

AK v The Queen [2021] NTCCA 4; Arnott v Blitner [2020] NTSC 63; Carnese v The Queen [2009] NTCCA 8; Court v Magtibay [2019] NTSC 12; DD v Cahill [2009] NTSC 62; DN v Burns [2020] NTSC 12; Hales v Adams [2005] NTSC 86; House v The King (1936) 55 CLR 499; JKL v The Queen [2011] NTCCA 7; ON v Lyons [2016] NTSC 47; Politis v Commissioner of Taxation (Cth) [1988] FCA 446; Rigby v Benfell [2020] NTCA 9; The Queen v BCO [2016] 1 Qd R 290; The Queen v Bonney [2022] NTCCA 3; The Queen v Briese; ex parte Attorney-General (Qld) (1997) 92 A Crim R 75; The Queen v Cay; Ex parte Attorney-General (Qld) (2005) 158 A Crim R 488; The Queen v Goodwin [2003] NTCCA 9; The Queen v JHW [2021] NTSCFC 1; The Queen v JO [2008] QCA 260; The Queen v KU; Ex parte Attorney-General (Qld) (No 2) [2011] 1 Qd R 439; The Queen v McInerney (1986) 42 SASR 111; The Queen v Mossman (2017) 322 FLR 303; The Queen v Yunupingu [2007] NTSC 41; Thyer v Whittington [2017] NTSC 66; Verity v SB [2011] NTSC 26, referred to.

Criminal Code Act 1983 (NT) s 181, 188, 192, 211
Criminal Records (Spent Convictions) Act 1992 (NT) s 3, 5, 6, 7, 11, 12, 13
Local Court (Criminal Procedure) Act 1923 (NT)
Sentencing Act 1995 (NT) 4, 8
Youth Justice Act 2005 (NT) s 4, 6, 52, 81, 83, 144, 136
REPRESENTATION:
Counsel:
Appellant:D Castor
Respondent:  J Stuchbery
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  Northern Territory Legal Aid Commission
Judgment category classification:    B
Judgment ID Number:  Bro2204
Number of pages:  32

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Rigby v KS [2022] NTSC 33

No. LCA 33 of 2021 (22019808)
BETWEEN:

KERRY LEANNE RIGBY
Appellant

AND:

KS
Respondent

CORAM: BROWNHILL J
REASONS FOR DECISION
(Delivered 27 April 2022)

The issue in this appeal is whether the Youth Justice Court’s failure to impose a conviction when sentencing a youth to 12 months’ detention for an aggravated indecent assault of a woman, which was characterised by the Court as at the high end of that type of offending, rendered the sentence manifestly inadequate.
On 23 July 2021, in the Youth Justice Court, the respondent pleaded guilty to a charge that, contrary to s 188(1) and (2)(a), (b), (k) and (m) of the Criminal Code Act 1983 (NT) (‘Criminal Code’), on 18 June 2020, he unlawfully assaulted a woman (‘the victim’) with the circumstances of aggravation that the victim suffered harm, that she was a female and the respondent was a male, that she was indecently assaulted, and that she was threatened with an offensive weapon, namely, a knife.
The particulars of the assault are that the victim was walking on a footpath, the respondent followed her and approached her from behind. Without warning and to her surprise, he took hold of her shoulder and held a 20 cm blunt knife to her throat and pulled her backwards down an embankment. She fell over at the bottom of the embankment, but took hold of the knife the respondent was holding, attempting to protect herself. The victim and the respondent struggled with the knife. She pleaded with him to stop. He made a jabbing motion towards her with the knife and tried to push the knife into her abdomen. She held onto the knife blade and refused to let go. She was kneeling on the ground and the respondent was standing over her. She offered him money, her phone and other things she had on her person. The respondent said to her ‘you’re mine’. She thought she was going to be sexually assaulted. He held the knife in one hand and used his other hand to push her head into his groin area so her face was pressed against his fly. He pulled her hair. The respondent wrestled the victim to the ground and forced the knife above her head, with her continuing to hold the blade to prevent herself from being stabbed. Her arms were pulled behind her head. The respondent pressed his foot into her back and tried to wrestle the knife from her grip. The victim’s phone fell from her bra and she was able to dial 000. When the respondent heard the call dispatcher’s voice, he stopped what he was doing and let go of the knife. He picked up three cigarettes that had fallen from her bra, said ‘thanks for the smokes’ and left. As a result of holding the knife, the victim suffered abrasions to the palms of her hands and pain to her arms, body and back.
At the time of the offending, the respondent was 17 years old and on bail in relation to other charges. At the time of sentencing, the respondent was 18 years old. The Youth Justice Court’s jurisdiction extends to all charges in respect of summary or indictable offences allegedly committed by a youth[1] and is not affected if the alleged offender has subsequently turned 18 years of age.[2]
The sentencing judge found that the assault was ‘at the high end’ of seriousness for offending of this kind. He found that the respondent was ‘callous and indifferent to’ the victim’s suffering, and showed ‘absolutely no pity whatsoever for’ the victim and no remorse. He also found that the offending was premeditated and ‘must have been terrifying for’ the victim.[3]
The sentencing judge also found that the respondent has a very low cognitive ability in executive functioning, a history of cannabis and volatile substance abuse, had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), and was prescribed medication for that as well as antipsychotic medication, which was given ‘in a haphazard fashion’ as his mother did not assist in his taking medication. The sentencing judge also found that the respondent had a ‘very difficult childhood’, grew up in ‘a household of domestic violence’, was at times neglected, and came from a ‘very underprivileged background’.
On 5 August 2021, the sentencing judge imposed a sentence of 12 months’ detention, backdated to 4 October 2020 and suspended immediately on conditions that the respondent be supervised and be subject to conditions as to residence, abstinence from alcohol and drugs, submission to alcohol and drug testing as directed, participation in assessment, counselling or treatment if directed, and submission to a curfew and electronic monitoring if directed, all for a period of 12 months from the date of sentence. The sentencing judge declined to impose a conviction, referring in particular to ‘the principles of the Youth Justice Act’ and ‘the appalling background [the respondent] has had in his life, much of it beyond his control’.
Pursuant to s 144 of the Youth Justice Act 2005 (NT) (‘Youth Justice Act’), the appellant appealed against the sentencing judge’s failure to record a conviction. The provisions of the Local Court (Criminal Procedure) Act 1923 (NT) apply to appeals from the Youth Justice Court (s 144(3)).
Appeal ground: Sentence without conviction manifestly inadequate
The appellant’s appeal ground was that the sentence was manifestly inadequate in the absence of a conviction, given a number of matters relating to the nature of the offending and the respondent. No issue was taken with the other aspects of the sentence.

Legal principles: prosecution appeals against sentence

The considerations governing Crown appeals against sentence are well-established.[4] Those considerations apply equally to appeals of this nature from the Local Court to the Supreme Court.[5] It follows from s 144 of the Youth Justice Act that they apply equally to appeals of this nature from the Youth Justice Court. I repeat those principles here for ease of reference.
Such appeals against sentence should be a rarity brought only to establish some matter of principle. Manifest inadequacy in a sentence amounts to an error of principle which the prosecution is entitled to have the appeal court correct. The presumption is that there is no error. It is incumbent on the appellant to show that the sentence was clearly and obviously, and not just arguably, inadequate.
The sentencing discretion of judges should not be unduly circumscribed, recognising a place for the exercise of mercy and leniency in the exercise of that discretion. The proper role for prosecution appeals is to establish and maintain adequate standards of punishment for crime, to correct idiosyncratic views of individual judges as to particular types of crimes, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.
The principles in House v The King[6] apply to the determination of manifest inadequacy. It is not enough that the appeal court judge would have imposed a different sentence. It must appear that some error has been made in exercising the sentencing discretion. Relevantly, if, on the facts, the sentence is unreasonable or plainly unjust, the appeal court may infer that in some way there has been a failure to properly exercise the sentencing discretion, by some misapplication of principle or by giving undue weight to some of the facts, even though the nature of the error is not apparent from the sentencing remarks.
The appeal court must consider all matters that are relevant to fixing the sentence. Both the circumstances of the offending and the personal circumstances of the offender are important elements in the determination of manifest inadequacy.
Even where manifest inadequacy is found, the Court retains a residual discretion as to whether the respondent should be resentenced.
Further, an appeal court should approach the task of reading reasons at first instance ‘sensibly and in a balanced way, not reading passages from the reasons for decision in isolation from others to which they may be related or taking particular passages out of context of the reasons as a whole’.[7]

Legal principles: discretion to impose a conviction on a youth
Nature and effect of a conviction

The recording of a conviction is a formal and solemn act marking the court’s and society’s disapproval of a defendant’s wrongdoing.[8] It is a component of the sentence and to be given weight in determining whether or not the sentence is proportionate to the offence.[9]
In the context of adult offenders, it has been held as follows:[10]
The more serious or blatant an offence, the less proportionate it is for the Court of Summary Jurisdiction to decline to record a conviction. Mature age offenders who have led previously blameless lives may benefit from an exercise of the discretion not to record a conviction. The discretion may also be exercised in an offender’s favour where the offender has no previous convictions, or where the offending related to ill health or where it would, in itself, be a significant additional penalty for a first offender. On the other hand, the recording of a conviction may be necessary where the offender is of mature age and deterrence is being given weight, especially in relation to breaches of regulatory or social legislation.
In the context of youth offenders, it has been held that, given the possible future impact of a conviction on the ability of a person to obtain employment, on their dealings with licensing authorities, government departments and insurers, and on their ability to travel to some countries, even for a young child, the prospect of adverse consequences is real, and the recording of a conviction is a significant act of legal and social censure.[11] It has also been held that there is a clear benefit to an offender if a court does not record a conviction, and there is a risk of future injustice or disadvantage if a court does record a conviction.[12]
As the Queensland Court of Appeal held in The Queen v Briese; ex parte Attorney General (Qld):[13]
It is reasonable to think that this power [not to convict] has been given to the courts because it has been realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished into the future well after appropriate punishment has been received. This potential oppression may stand in the way of rehabilitation, and it may be thought to be a reasonable tool that has been given to the courts to avoid undue oppression.

Effect of s 136 of the Youth Justice Act
The effect of a conviction upon a youth needs to be considered in light of s 136 of the Youth Justice Act. Section 136(1) provides that, if a court finds a youth guilty of an offence but does not record a conviction, no evidence or mention of the offence may be made to, nor may the offence be taken into account by, a court other than the Youth Justice Court. That provision does not apply if the offence was committed after the youth turned 15 years of age (s 136(2)).
The failure to record a conviction may, therefore, impact on the information provided to courts other than the Youth Justice Court if dealing with the offender for future offending, including the Supreme Court.[14]
In the present case, s 136(1) has no operation because the offence was committed when the respondent was 17 years old.
Effect of the Criminal Records (Spent Convictions) Act 1992 (NT)
The effect of a conviction upon a youth needs to be considered in light of the provisions of the Criminal Records (Spent Convictions) Act 1992 (NT) (‘Spent Convictions Act’). Its long title is ‘An Act to facilitate the more effective rehabilitation of certain offenders by providing that, in certain circumstances, their criminal records relating to relatively minor offences may be spent and not form part of their criminal history, and for related purposes’.
Part 3 of the Spent Convictions Act prescribes the effect of ‘spent records’. A ‘spent record’ is a ‘spent conviction’; a ‘criminal record’, including in respect of a quashed conviction or an offence given an unconditional pardon; or a charge not proceeded with or withdrawn (s 3(1)). A ‘spent conviction’ is a ‘criminal record’ which is spent in accordance with Part 2 (s 3(1)). A ‘criminal record’ includes a conviction, a finding that an offence is proved without the court proceeding to conviction, and a finding or order under Part 6 of the Youth Justice Act (which provides for the sentencing options of the Youth Justice Court and the Supreme Court) (s 3(1)). Thus, both a conviction and a finding that an offence is proved without recording a conviction are ‘criminal records’ which can be or become ‘spent convictions’ under Part 2, and which may or may not be subject to the disclosure limitations in Part 3.
There are various means in Part 2 by which a conviction and a finding that an offence is proved without recording a conviction are or can become ‘spent convictions’.[15]
For a youth, a finding or order made under s 83 of the Youth Justice Act (effectively all sentencing options, including detention or imprisonment) other than dismissing the charge or discharging the youth without penalty, without the court proceeding to conviction, is a spent conviction: (a) immediately after the period specified in the sentencing order expires, if the person subject to it has by then complied with all its requirements; or (b) before that time, on compliance with and completion of all obligations under the sentencing order (s 7(3)). This does not apply to ‘sexual offences’ (s 5).[16]
If a conviction is recorded by the Youth Justice Court, the record of it will be a spent conviction at the end of five years after the date of conviction during which the offender has not been convicted of an offence punishable by imprisonment or has not served a sentence of imprisonment (s 6(2)). Again, this does not apply to ‘sexual offences’ (s 5). Further, this does not apply to convictions where a sentence of imprisonment for more than six months was imposed (s 6(1)).
A conviction or a finding of guilt without conviction, i.e. a ‘criminal record’, for a sexual offence is not and does not become a ‘spent conviction’ and, consequently, does not become a ‘spent record’ (ss 5(a), 7). A conviction of an offence in respect of which a sentence of imprisonment for more than six months was imposed (whether or not the sentence was suspended) is not and does not become a ‘spent conviction’ and, consequently, does not become a ‘spent record’ (s 6(1)).
A person is not required to disclose their own spent record (s 11(a)). A question about, or a reference in the application to a person of a provision of an Act or instrument to, a person’s convictions, criminal history or criminal record is taken not to refer to a spent record (s 11(b), (c)(i)). A reference to a person’s character or fitness is not to be taken as permitting or requiring a spent record to be taken into account (s 11(c)(ii)).
Further, a person with access to records kept by or on behalf of a public authority,[17] which includes spent records, who discloses a spent record, or information relating thereto, without the consent of the person to whom the record relates is guilty of an offence (s 12(1)). A person who knows, or should reasonably be expected to know, that a record is a spent record and who discloses it, or information relating thereto, without the consent of the person to whom it relates is guilty of an offence (s 12(2)). A person who takes into account a spent record for a purpose not authorised by or under an Act is guilty of an offence (s 13).
The Commissioner of Police and a law enforcement agency[18] may disclose a spent conviction to certain agencies or persons, or a court, for the purpose of (as applicable) a criminal investigation, the prosecution of an offence or the making of submissions on sentencing in respect of an offence (s 12(3), (4), (5)).
Further, the provisions permitting and requiring a person not to disclose a spent record do not apply in relation to spent convictions and: (i) applications for appointment as a Judge or a justice of the peace; (ii) applications for employment as a police officer; (iii) applications for employment or appointment in firefighting or fire prevention (for arson); (iv) firearms licensing (for violent offences); and (v) considering suitability as a juror (s 15). Nor do those provisions apply to applications for: (i) appointment or employment to do work involving the care, instruction or supervision of vulnerable persons; (ii) clearance to provide services or supports to participants in the National Disability Insurance Scheme; (iii) employment as a correctional services officer, a public sector employee, an official visitor, or a volunteer; and (iv) appointment or employment as the Independent Commissioner Against Corruption or their staff (s 15A).
Consequently, for an offence that is not a sexual offence (such as the offence committed by the respondent) dealt with by the Youth Justice Court:
(a)without proceeding to conviction, a person is not required to disclose about themselves the finding that the offence was proved and another person may not disclose it about them, save for the purposes of a criminal investigation, prosecution or making of submissions on sentencing, and for the specified types of appointment, employment or licensing applications; or
(b)by recording a conviction:
(i) if the penalty imposed is a sentence of imprisonment or detention of less than six months, the constraints on disclosure will only apply after five years from, essentially, the end of the period of the sentencing order, if no further offending punishable by imprisonment has occurred; and
(ii) if the penalty imposed is a sentence of imprisonment or detention of six months or more, the constraints on disclosure will not apply at all.

For an offence that is a sexual offence, the constraints on disclosure will not apply at all.
Two things follow from these provisions. The first is that, while the potential adverse consequences from the recording of a conviction by the Youth Justice Court referred to in paragraph [19] above might be removed after five years, depending on the nature of the offence, the punishment imposed and reoffending (save in the circumstances comprising exceptions to the constraints on disclosure), those potential adverse consequences do otherwise exist.
The second is that, where a conviction is not recorded by the Youth Justice Court, that is capable of having ‘considerable effect in the community’ and ‘considerable ramifications of a public nature’ because there may be persons who may have an interest in knowing ‘the truth in such matters’, i.e. that a youth has been found to have committed an offence (e.g., potential employers, insurers, government departments) and, in essence, the provisions of the Spent Convictions Act give ‘an offender a right to conceal the truth, and it might be said, to lie about what has happened in a criminal court’.[19]
The same observation applies to the effect of s 136 of the Youth Justice Act, at least for courts dealing with offending committed after a youth has become an adult.
This public interest in the recording of a conviction will be addressed further below.
Youth Justice Court – the starting point?
The sentencing options available to the Youth Justice Court are set out in s 83(1) of the Youth Justice Act. Those options, including detention or imprisonment, are available whether or not the Court proceeds to conviction. That led Barr J to conclude, in Verity v SB (at [31]-[36]), that the Youth Justice Act gives effect to the desirability of avoiding the social prejudice and potential oppression occasioned to young people by the recording of a conviction; and that the Youth Justice Act enables the Youth Justice Court to reconcile, in a way not possible in the case of adult offenders, the principle of holding the offender accountable and imposing condign punishment on the one hand, and the rehabilitation principle of enabling the offender to move on after being punished without a conviction to hinder full re-integration into the community, on the other. His Honour concluded that, rather than asking why a conviction should not be recorded, the Youth Justice Court might well ask itself why a conviction should be recorded.
Counsel for the appellant accepted, correctly, that the effect of these principles is that a higher threshold will exist for a youth offender than an adult offender before it can be said to be manifestly inadequate not to record a conviction.
Relevant considerations for youth offenders
Section 4 of the Youth Justice Act sets out the general principles of youth justice, which are to be taken into account in the administration of the Act generally, extending to the exercise of the judicial function as well as the performance of functions by police, community youth justice officers and detention centre staff.[20] The application of those principles, together with other relevant considerations, requires a balancing exercise with reference to the particular task to be performed, and there will sometimes be a tension between the achievement and service of the interests of the youth, any victim of the youth’s offending and the interests of the community.[21] The rights of victims and the purpose of community protection will not necessarily be subjugated to the interests of the youth.[22] Generally, the interests of the community will be served by the successful rehabilitation of an offender, but the community interest and the interests of a youth offender are not necessarily co-extensive.[23]
Those general principles in s 4 of the Youth Justice Act are then given specific application to the exercise of the judicial function by s 81 of the Act.[24] The youthfulness of an offender will usually form a valid ground for extending leniency and adopting a therapeutic approach to sentencing. Young offenders are usually less culpable due to immaturity and the fact that they have not fully developed a capacity to control impulsive behaviour. Rehabilitation is usually a far more important consideration than punishment and deterrence when dealing with youthful offenders, particularly first offenders. However, this does not mean that rehabilitation will necessarily be the ‘paramount’ sentencing consideration in all cases because the Youth Justice Act is not based on a ‘welfare model of justice’, but balances: the principles of due legal process, accountability for behaviour, proportionality of sentence, minimising formal intervention, and opening possibilities of restorative justice, with its provisions ‘tipped towards individual responsibility, accountability and protecting the community’.[25]
Aside from the general principles and considerations applicable to youths set out in ss 4 and 81 of the Youth Justice Act, there is no express indication of the considerations applicable to the exercise of the discretion to impose a conviction.
By contrast, s 8 of the Sentencing Act 1995 (NT), which by s 4 does not apply to the Youth Justice Court, provides that, in deciding whether or not to record a conviction, a court must have regard to the circumstances of the case, including:
(a)the character, antecedents, age, health or mental condition of the offender;
(b)the extent, if any, to which the offence is of a trivial nature; and
(c)the extent, if any, to which the offence was committed under extenuating circumstances.
In determining whether to impose a conviction on a youth, all of the relevant surrounding circumstances must be considered, including factors of the kind identified in s 8 of the Sentencing Act.[26] Principles associated with the relevant considerations which arose in relation to this appeal are considered below.
Relevant consideration – age of offender
As regards the age of the youth, that is clearly a relevant consideration. All other things being equal, and generally speaking, the younger the youth, the heavier their age weighs against recording a conviction. In DD v Cahill, Riley J held (at [17]) that the deterrent aspect of imposing a conviction was likely to be of little weight for an offender who was 12 years old and not readily able to appreciate the significance of such a punishment.
Relevant consideration – seriousness of the offending
As regards the seriousness of the offending, in DD v Cahill, Riley J acknowledged (at [17]) that the recording of a conviction may be necessary in cases where a very young offender has committed quite serious offences or a crime of a particular character. This is consistent with the observations of the Court of Criminal Appeal, about sentencing generally, in The Queen v Goodwin,[27] to the effect that it is well established that if a young offender commits a criminal offence like an adult, then that justifies sentencing them in a fashion more akin to an adult because, where crimes of considerable gravity are committed, the protective function of the criminal court would cease to operate unless denunciation, general deterrence and retribution are significant sentencing considerations, even in respect of youths.
In Goodwin, the Court held that the offence of sexual intercourse without consent (digital/vaginal, penile/oral and penile/vaginal intercourse) was ‘by its nature an adult crime’. In JKL v The Queen,[28] the Court held that the offence of aggravated robbery of a motor vehicle whilst armed with two knives was ‘a crime of considerable gravity’ committed like an adult, which justified the sentencing judge sentencing the appellant in a fashion akin to an adult. In AK v The Queen, ‘adult-like’ aspects of the offending included that the offence was the aggravated robbery of a service station, in company, at night, with use of a weapon, with some pre-meditation and planning. However, there were other ‘child-like’ aspects of that offending which led the Court to conclude that it was not appropriate to sentence the youth under the provisions of the Sentencing Act alone. In KU; Ex parte Attorney-General (Qld),[29] the Queensland Court of Appeal held that the recording of a conviction for the offence of rape of a 10 year old girl by a group of youths aged between 13 and 15 was ‘the irreducible minimum level of denunciation required by an offence of this gravity’.
The respondent argued that, in cases of ‘heinous’ offending, where the principles of denunciation, general and personal deterrence and community protection displace the leniency ordinarily afforded to youth offenders as the paramount sentencing principle, it may be expected that a conviction would be recorded. So much may be accepted. However, it does not follow that a conviction should not be recorded when the offending is not ‘heinous’ or ‘of considerable gravity’. To so conclude would be to confine the inquiry, or at least to give too much weight, to the seriousness of the offending, rather than taking into account all of the relevant surrounding circumstances, and balancing the interests of the youth offender against the interests of the victims and the community, and the public ramifications of denying information about the offending to persons who may have an interest in knowing about it.
Relevant consideration – the public interest in knowing ‘the truth’
As set out in paragraph [37] above, a relevant consideration in the exercise of the discretion is the public interest in recording a conviction as a formal public record of the finding of guilt and the availability to the public of that information.
It should be noted that the observations set out in that paragraph, from the decision in Briese, were made in the context of a young, but adult, offender. It has been held that this public interest factor has less significance in respect of a youth offender than an adult offender.
In The Queen v JO,[30] Holmes JA (Mackenzie and Douglas JJ agreeing) held (at [12]) that the question of whether there is sufficient reason to contemplate subsequently denying persons with an otherwise legitimate interest in knowing of the offender’s true circumstances, does not assume the same importance in the case of youth offenders. Different considerations were held to apply in deciding whether to record a conviction for a youth offender from those in the case of adult offenders, with the expressed difference being that the legislation operating in Queensland proceeded from the primary position that a conviction is not to be recorded against a youth offender.
It may be noted that that primary position is not expressed in the Youth Justice Act. Nevertheless, Barr J’s approach in Verity v SB referred to in paragraph [40] above reflects something akin to that position.
Inference of adverse consequences for youths?
Counsel for the respondent argued, in reliance on The Queen v BCO,[31] that the presumption in sentencing youths is that imposing a conviction will adversely impact upon an offender’s prospects of rehabilitation. The case involved an offender who was almost 16 years old. He pleaded guilty to a count of penile/oral rape and a count of aggravated indecent treatment of a child, which comprised of rubbing the child’s vagina with his fingers. The child was four years old. The offender was sentenced to two years’ probation with a condition that he complete a program to address sexual offending. A conviction was recorded for the rape charge, but not the indecent treatment charge. The offender sought to appeal the sentence for the rape charge, and one of the grounds of appeal was that the sentencing judge assumed that the recording of a conviction would not adversely impact on either the offender’s rehabilitation or his prospects of obtaining employment. The sentencing judge had observed that there was no suggestion that the recording of a conviction would impact adversely on the offender’s rehabilitation or prospects of obtaining employment. Mullins J (McMurdo P and Morrison JA agreeing) held (at [23]) that the sentencing judge had made an error in sentencing by assuming the offender’s rehabilitation or prospects of obtaining employment would not be adversely affected by the recording of a conviction. Her Honour held:
The authorities … strongly support, as the starting point for a youth of the applicant’s age being sentenced under the [equivalent of the Youth Justice Act], the inference that the recording of a conviction would have an adverse impact on the youth in respect of prospects for rehabilitation and employment. There was nothing in the circumstances applying to the applicant that justified the assumption that was made by the sentencing judge that the applicant would not be so affected by the recording of a conviction.
The rationale for such an inference is that, for youths, there is often uncertainty about their future direction in life, and their lifestyle and probable employment opportunities are less predictable than for an adult offender, making it more difficult to predict with a reasonable degree of confidence what the impact of recording a conviction on the youth’s life will be.[32]
In Rigby v Benfell,[33] the Court of Criminal Appeal upheld an appeal from a decision of a single Judge of the Supreme Court who had upheld an appeal from the Local Court recording a conviction for medium-range drink driving for an adult offender. The Local Court recorded a conviction because there was insufficient evidence to establish that a conviction would have a specific detrimental impact on the offender’s career as a commercial pilot. The Supreme Court upheld the appeal, overturning the conviction on the basis that the Local Court had erred in rejecting the submission that the conviction could have an impact on the offender’s future career, and in looking for evidence that it would actually have that impact.
The Court of Criminal Appeal held (at [31]) that, where an assertion of particular or specific detriment from the recording of a conviction is made by an offender, the onus is on the offender to prove that matter on the balance of probabilities. That was said to be no more than a specific application of the general rule that a sentencing judge may not take facts into account for sentencing purposes in a way that is adverse to an offender, unless those facts have been established beyond reasonable doubt, and, contrastingly, the offender bears the burden of proving, on the balance of probabilities, matters which are submitted in his or her favour. The Court also held (at [33]) that the sentencing exercise is always undertaken with regard to the impact that recording a conviction may have on the offender’s economic and social well-being in a general sense, but the onus remains on the offender to establish any specific or particular impact asserted. The Court held (at [40]-[41]) that the sentencing judge’s approach was correct and orthodox, namely, to accept the possibility of some prejudicial impact on the offender’s career prospects in a general sense, to decline to find the specific impact asserted (a loss of employment opportunities as a commercial pilot) in the absence of evidence to establish that impact, and to conclude that the general deleterious effect did not warrant the exercise of the discretion not to record a conviction in that case.
The proposition expressed in The Queen v BCO, that there is an inference that the recording of a conviction would (as opposed to could) have an adverse impact on a youth’s prospects for rehabilitation and employment, does not appear to have been followed or expressed in those terms in subsequent decisions. Understood in light of the general rule referred to in Rigby v Benfell, it appears to be little more than acceptance of the general deleterious effect which the imposition of a conviction may have on an offender’s prospects for employment or rehabilitation, which a court should accept in respect of offenders generally, and, consistent with the principles and approach referred to in paragraphs [19] and [34] above, should accept with some greater weight in relation to youth offenders because of the rationale referred to in paragraph [56] above.
That inference does not intrude on the requirement for the offender to establish, by evidence, any specific or particular adverse effect from the imposition of a conviction. Nor does it require the Crown to rebut the inference with evidence to the contrary. It simply requires the Youth Justice Court to take into account the possible adverse impacts of recording a conviction on a youth’s future prospects for employment and other rehabilitation, bearing in mind the uncertainties about their future directions in life and future employment opportunities.
I accept, as counsel for the respondent submitted, that where a youth has had a disadvantaged upbringing or otherwise has limited prospects of future employment, the court may be moved to ensure to the greatest extent possible the preservation of all possible future employment opportunities, and this would be a factor weighing against the recording of a conviction.[34]
Consideration of the present case
The respondent was 17 years old when he committed the offending, approximately 3 ½ months before he turned 18.
The offending was of some gravity, comprising an unlawful assault with the circumstances of aggravation that the victim suffered harm, was a female and the respondent a male, was indecently assaulted, and was threatened with a weapon, namely, a knife. The sentencing judge placed it at the high end of offending of this kind. The maximum penalty for the offending was imprisonment for five years. In that sense, it was far less serious than offences such as sexual intercourse or performing an act of gross indecency without consent (being life or 14 years imprisonment: s 192, Criminal Code), causing serious harm (being 14 years imprisonment: s 181, Criminal Code) or robbery (being 14 years to life imprisonment: s 211, Criminal Code).
Despite that the offending had a sexual component in that the victim was indecently assaulted, the conduct involved was not of the same degree of seriousness as the conduct involved in the cases referred to in paragraph [49] above. On the other hand, there is little about the offending which could reasonably be characterised as ‘child-like’, except perhaps for the way the offending behaviour ceased, and the absence of any attempt to conceal identity. Rather, there were a number of ‘adult-like’ features, namely, an element of pre-meditation in that the respondent followed the victim down the track for some way, the use of the knife, including holding it at the victim’s throat and jabbing it towards her stomach, and the indecent element of pushing the victim’s head into his groin area, pressing her face against his zipper and telling the victim, ‘You’re mine’.
The respondent was on bail when he committed the offending, which aggravates its seriousness.
The respondent was not a first offender. While he had some eight prior instances of offending involving largely property damage, unlawful entry and stealing, for which no convictions had been recorded, he had only one prior instance of violent offending, namely, an aggravated assault, committed against his then domestic partner. No conviction was recorded and he was sentenced to two months’ detention. He had no prior history for sexual offending.
The respondent’s personal circumstances included that he had a deprived upbringing and had been the subject of numerous notifications to child protection authorities from about the age of two years old, including for neglect, inadequate supervision, substance abuse and domestic violence. He was diagnosed with ADHD at the age of 12, but adherence to medication was sporadic because of his mother’s ambivalence to its necessity. Substance abuse was a normalised feature of his upbringing, leading to the consumption of cannabis, alcohol and volatile substances from the age of 12. That substance misuse had a detrimental effect on his mental health and led to the emergence of a possible psychotic illness. He had a limited education and that ceased when he was in Grade 8. Cognitive testing showed marked deficits in all areas, with scores in the extremely low range across numerous domains including executive functioning, which gave rise to limited insight, poor impulse control and a lack of ability in planning and organisation.

For the reasons referred to in paragraph [16] above, it cannot be accepted that the sentencing judge focussed only or with too much weight upon the respondent’s personal characteristics because that was all he referred to when dealing with the issue of recording a conviction. These were not the only matters referred to in sentencing and it cannot be assumed from the failure to mention all the other matters again that the sentencing judge did not take them into account when deciding not to record a conviction.
Those personal characteristics mean that general deterrence assumes significantly less weight in the sentencing process than it otherwise would. They also mean that recording a conviction is quite unlikely to have had any significant impact by way of personal deterrence.
It must be accepted that: (a) recording a conviction may adversely impact on the ability of the respondent to obtain employment, on his dealings with licensing authorities, government departments and insurers, and on his ability to travel to some countries; (b) the prospect of adverse consequences is real; and (c) the recording of a conviction is a significant act of legal and social censure. Further, there is a clear benefit to the respondent if a conviction is not recorded, and there is a risk of future disadvantage if a conviction is recorded.
The sentencing judge assessed the respondent’s prospects of rehabilitation as poor. Counsel for the appellant argued that this made it more imperative that a conviction be recorded to afford protection to the community. While formal notification of his offending in the form of a conviction might alert some public authorities or members of the public to the risk of his re-offending in the future, and have some benefit to the public interest in that way, that benefit is, to a significant degree, counter-balanced by the public interest in preserving, to the greatest extent possible, the respondent’s opportunities for rehabilitation by way of employment, further education, housing and community supports.
The discretion whether or not to record a conviction is broad and all relevant matters are to be taken into account. The relevant considerations in this case pull in different directions and there is obvious tension between the needs of the youth, the rights of the victim and the interests of the community. The matters which pull in favour of recording a conviction are not of such weight as against the other matters that the failure to record a conviction can be said to be clearly, and not just arguably, unreasonable or plainly unjust. The sentence is not manifestly inadequate.

Disposition

The appellant’s ground of appeal has not been made out. The appeal is dismissed.

-----------------------------------

[1] Youth Justice Act 2005 (NT) (‘Youth Justice Act’) s 52(1)(a). In the Youth Justice Act, ‘[i]f the context requires’, the term ‘youth’ means a person who committed an offence as a youth but has since turned 18 years of age (s 6(2)).

[2] Youth Justice Act, s 52(3).

[3] Although not referred to in the sentencing remarks, the victim impact statement (Exhibit 2) indicated that the victim had ongoing anxiety, fear, insomnia, mood swings and nightmares about the incident.

[4] See The Queen v Bonney [2022] NTCCA 3 at [30] per Kelly, Blokland and Brownhill JJ, quoting from Arnott v Blitner [2020] NTSC 63 at [75] per Kelly J. See also The Queen v Mossman (2017) 322 FLR 303 at 305-308 per Grant CJ, Southwood and Hiley JJ.

[5] Court v Magtibay [2019] NTSC 12 at [3] per Grant CJ

[6] House v The King (1936) 55 CLR 499 at 503-504.

[7] Thyer v Whittington [2017] NTSC 66 at [23] per Grant CJ, citing Politis v Commissioner of Taxation (Cth) [1988] FCA 446, and applying the observations to the reasons of the Local Court.

[8] Carnese v The Queen [2009] NTCCA 8 (‘Carnese’) at [16] per Mildren, Thomas and Riley JJ, citing The Queen v McInerney (1986) 42 SASR 111 at 124 per Cox J.

[9] Carnese at [17], citing Hales v Adams [2005] NTSC 86 at [17] per Southwood J.

[10] Ibid.

[11] DD v Cahill [2009] NTSC 62 (‘DD v Cahill’) at [15]-[16] per Riley J.

[12] Verity v SB [2011] NTSC 26 (‘Verity v SB’) at [30] per Barr J.

[13] The Queen v Briese; ex parte Attorney-General (Qld) (‘Briese’) (1997) 92 A Crim R 75 at 79 per Thomas and White JJ.

[14] See The Queen v JHW [2021] NTSCFC 1 per Grant CJ, Southwood and Kelly JJ.

[15] Given that this appeal concerns a disposition by the Youth Justice Court, I have not included reference to s 6A, which deals with offences committed by an offender under the age of 18 dealt with by a court other than the Youth Justice Court.

[16] The term ‘sexual offence’ refers to offences against Div 2 of Part V of the Criminal Code (i.e. ss 125B – 140, 188(2)(k), 192, 192B or 201), prescribed offences and various types of complicity and inchoate offences relating to such offences (s 3(1)). No offences are prescribed for this purpose by the Criminal Records (Spent Convictions) Regulations 1993 (NT).

[17] The term ‘public authority’ refers to a local government council or public authority constituted by or under an Act of the Territory, the Commonwealth or a State or other Territory of the Commonwealth; a government department or a statutory body or agency representing the Crown in any of its capacities; and includes a law enforcement agency and a person performing the functions and exercising the powers on behalf of such a body (s 3(1)).

[18] The term ‘law enforcement agency’ refers to the Police Force of the Northern Territory; the Australian Federal Police or the police force of a State or another Territory of the Commonwealth; the Australian Crime Commission; the Attorney-General for the Territory, the Commonwealth, a State or another Territory of the Commonwealth; persons employed in the agency primarily responsible for law and the administration of justice, being persons whose primary function is the institution or conduct of proceedings for offences; the Office of the Director of Public Prosecutions for the Commonwealth, the Territory, a State or another Territory of the Commonwealth; the Director of Public Prosecutions for the same jurisdictions; a Crown Prosecutor; a person permitted to practice as a legal practitioner to the extent engaged by the Crown to prosecute an offence; the Independent Commissioner Against Corruption; a person performing functions and exercising the powers on behalf of a law enforcement agency; and a prescribed person or body (s 3(1)). The police force of New Zealand, INTERPOL and the United Kingdom Criminal Records Bureau are prescribed law enforcement agencies (r 2, Criminal Records (Spent Convictions) Regulations 1993 (NT)).

[19] Briese at 491 per Thomas and White JJ.

[20] DN v Burns [2020] NTSC 12 (‘DN v Burns’) at [38] per Grant CJ.

[21] Ibid at [39].

[22] Ibid.

[23] Ibid.

[24] Ibid at [40].

[25] Ibid at [41], citing The Queen v Yunupingu [2007] NTSC 41 at [35] per Southwood J.

[26] DD v Cahill at [14] per Riley J; Verity v SB at [28]-[29], [36] per Barr J; ON v Lyons [2016] NTSC 47 at [21] per Hiley J.

[27] The Queen v Goodwin [2003] NTCCA 9 (‘Goodwin’) at [11] per Angel ACJ, Mildren J and Priestley AJ. See also AK v The Queen [2021] NTCCA 4 at [41]-[42] per Blokland, Barr and Brownhill JJ.

[28] JKL v The Queen [2011] NTCCA 7 at [33], [35] per Southwood J and Martin AJ (Kelly J agreeing).

[29] The Queen v KU; Ex parte Attorney-General (Qld) (No 2) [2011] 1 Qd R 439 at [214] per the Court.

[30] The Queen v JO [2008] QCA 260.

[31] The Queen v BCO [2016] 1 Qd R 290 (‘BCO’).

[32] See The Queen v Cay; Ex parte Attorney-General (Qld) (2005) 158 A Crim R 488 at [74]-[75] per Mackenzie J, cited in BCO at [22].

[33] Rigby v Benfell [2020] NTCA 9.

[34] See, for example, The Queen v JO [2008] QCA 260 at [19] per Holmes JA (Mackenzie and Douglas JJ agreeing).