RSR v. The Queen
[2007] QDC 254
•6 August 2007
CHILDRENS COURT OF QUEENSLAND
CITATION:
RSR v Crown [2007] QDC 254
PARTIES:
RSR
(Applicant)
V
CROWN
(Respondent)
FILE NO/S:
42 of 2007
DIVISION:
Criminal
PROCEEDING:
Application
ORIGINATING COURT:
Childrens Court of Queensland at Beenleigh
DELIVERED ON:
6 August 2007
DELIVERED AT:
Beenleigh
HEARING DATE:
6 August 2007
JUDGE:
Dearden DCJ
ORDER:
Application for sentence review granted
CATCHWORDS:
APPLICATION FOR SENTENCE REVIEW – where the applicant was convicted of counts of unlawful use of a motor vehicle, enter premises with intent, stealing and wilful damage, a total of 23 charges – where the learned Magistrate recorded convictions in respect of each of the charges – where the applicant had no prior or subsequent criminal history and was aged between 12 and 14 years at the time of the offences – whether the sentence imposed was manifestly excessive
Juvenile Justice Act 1992 (Qld) ss 118, 122(1), 122(2)
COUNSEL:
Mr D. Caughlin for the applicant
Mr P. McCarthy for the respondent
SOLICITORS:
Legal Aid Queensland for the applicant
Director of Public Prosecutions for the respondent
HIS HONOUR: This is an application for sentence review by the applicant RSR.
The applicant was sentenced in the Childrens Court at Beenleigh on 16 January 2007 in respect of the following matters (and received the following penalties as indicated):
Unlawful use of a motor vehicle - 100 hours' community service - conviction recorded.
Enter premises with intent - 100 hours' community service - conviction recorded.
Stealing - 100 hours' community service - conviction recorded.
Enter premises with intent - 100 hours' community service - conviction recorded.
Stealing - 100 hours' community service - conviction recorded.
Wilful damage - 100 hours' community service - conviction recorded.
Unlawful use of a motor vehicle - 100 hours' community service - conviction recorded.
Enter premises with intent - 12 months' probation - conviction recorded.
Stealing - 12 months' probation - conviction recorded.
10.Enter premises with intent - 12 months' probation - conviction recorded.
11.Stealing - 12 months' probation - conviction recorded.
12.Enter premises with intent - 12 months' probation - conviction recorded.
13.Stealing - 12 months' probation - conviction recorded.
14.Enter premises with intent - 12 months' probation - conviction recorded.
15.Enter premises with intent - 12 months' probation - conviction recorded.
16.Enter premises with intent - 12 months' probation - conviction recorded.
17.Stealing - 12 months' probation - conviction recorded.
18.Enter premises with intent - 12 months' probation - conviction recorded.
19.Unlawful use of a motor vehicle - 12 months' probation - conviction recorded.
20.Enter premises with intent - 12 months' probation - conviction recorded.
21.Stealing - 12 months' probation - conviction recorded.
22.Enter premises with intent - 12 months' probation - conviction recorded.
23.Stealing - 12 months' probation - conviction recorded.
The Law
The relevant law which applies is that a Childrens Court Judge has the power, upon application, to review a sentence of a Childrens Court Magistrate (JJA s.118). Such a re-hearing proceeds on the merits (JJA s.122(1)) based on the record before the Childrens Court Magistrate as well as further submissions and evidence which may be placed before this Court (JJA s.122(2)).
Application
The applicant submits that the sentences were manifestly excessive only in respect of the issue of the recording of convictions by the learned sentencing Childrens Court Magistrate in respect of each of the charges.
The Prosecutor, Mr McCarthy, on behalf of the respondent, concedes, very fairly in my view, that no convictions should have been recorded in the circumstances. That is an entirely appropriate concession given the applicant has no prior or subsequent criminal history and was aged between 12 and 14 years at the time of the offences.
It is clear, in my view, that, to the extent of recording convictions, the learned sentencing Childrens Court Magistrate was in error in the exercise of his discretion in respect of the recording of those convictions, and accordingly, in my view, the sentence was "manifestly excessive" to the extent of the recording of convictions.
Order
Accordingly I grant the application and in respect of each of the sentences imposed I set aside the order that convictions be recorded and substitute orders that no convictions be recorded in respect of each and every charge, the subject of this application.
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