The Queen v ACD

[2012] QChC 13

[2012] QChC 13

CHILDRENS COURT OF QUEENSLAND

JUDGE SAMIOS

Indictment No 361 of 2011
Indictment No 368 of 2011
Indictment No 369 of 2011

THE QUEEN

v.

ACD

BRISBANE

..DATE 22/03/2012

ORDER

HIS HONOUR:  There are three applications to review sentences before me.  The sentences were imposed by the learned Magistrate constituting the Mareeba Childrens Court.  They are respectively, 5 July 2010 and 11 April 2011 and 10 October 2011.

The applicant was born on the 21st of March 1996.  Therefore, he was 14 years of age on the 21st of March 2010.  Therefore, he was 14 when dealt with by the learned Magistrate on the 5th of July 2010.  He turned 15 on the 21st of March 2011 and was, therefore, 15 when the learned Magistrate dealt with him on the 11th of April 2011 and on the 10th of October 2011.

The review, in relation to the sentence, imposed on the 5th of July 2010, is with respect to the recording of a conviction with respect to the offences dealt with on that date by the learned Magistrate.  As far as the applicant's history is concerned, he had appeared before the Court on the 10th of November 2009 for an assault or obstruct police offence.  On that occasion, no conviction was recorded and he was admitted to nine months' probation.

He again appeared before the Court on the 30th of November 2009 for a stealing offence.  No conviction was recorded and he was admitted to 12 months' probation on that occasion.

Then, on the 7th of December 2009, he appeared before the Court for a trespass offence and six committing public nuisance offences.  On all charges, no conviction was recorded and he was admitted to 12 months' probation.

Then, on the 15th of March 2010, he appeared before the Court.  On this occasion, it was for an offence of unlawfully remaining in or on a building or structure.  On this occasion, no conviction was recorded and community service was ordered of 60 hours to be completed in 12 months.

Then, he came before the learned Magistrate on the 5th of July 2010.  On this occasion, it was for a number of offences including entering premises with intent to commit an indictable offence on three occasions and an attempt to enter premises and then, another two enter premises and commit an indictable offence by break and an offence of stealing. 

On this occasion, he was sentenced to terms of detention to be served by way of a conditional release order.  A conviction was recorded on a number of the offences.  The learned Magistrate had a young person who was committing offences. 

As I can see now from the material before me, the applicant had an unstable background.  His mother was not caring for him.  There was some dispute as to who his father was.  He was placed with a cultural grandmother.  Then, he was placed with another cultural grandmother.  His carers who were the grandparents had passed away.  And then, he was placed with kinfolk for about 12 months.  The circumstances, therefore, are not surprising that the applicant might be committing offences.
Nevertheless, with respect to the recording of a conviction which is what this application is about, section 183 subsection (1) of the Youth Justice Act provides that "Other than under this section, a conviction is not to be recorded against a child who is found guilty of an offence". Of course, if a Court makes an order under section 175 subsection (1)(c) to (g) or 176, "The Court may order that a conviction be recorded or decide that a conviction not be recorded".

Then, reference must be made to section 184 which provides that "In considering whether or not to record a conviction, a Court must have regard to all the circumstances of the case including the nature of the offence and the child's age and any previous convictions and the impact the recording of a conviction will have on the child's chances of rehabilitation, generally or finding or retaining employment".  Those considerations must be borne in mind and that committing offences is but only one relevant circumstance. 

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 reluctance to record a conviction against a child, even for serious offences where they are substantially the product of criminal negligence rather than of malice or conscious wrongdoing"; of course, that case is distinguishable from the present case because it involved a 16 year old child who had pleaded guilty to a count of dangerously operating a motor vehicle with a circumstance of aggravation, namely, causing grievous bodily harm.

Nevertheless, I would consider the offence of dangerous operation of a motor vehicle with a circumstance of aggravation causing grievous bodily harm to be more serious than a property offence. 

It could also be seen from the material before me that the applicant made admissions to the police when interviewed about these offences and he even made admissions that led to the police having evidence against him which they would not have otherwise had. 

In all the circumstances, I come to the view that the applicant's favourable factors here included his plea of guilty and cooperation with the administration of justice; that he was very young being 14 years of age and had a limited criminal history. 

In those circumstances, bearing in mind the requirements of the Act and the prima facie position, convictions should not have been recorded against him on the 5th of July 2010.  I, therefore, order that in relation to the convictions recorded on that occasion that those convictions be deleted and that no conviction be recorded.

With regard to the applicant though, it is clear that he came before the Court again on the 11th of April 2011.  On this occasion, he had committed further offences of a like kind or that is, at least, one offence for which a conviction was recorded, namely, an entering premises and committing an indictable offence.  He was dealt with, on that occasion, for breaches of the probation order and community service order. 

The learned Magistrate imposed periods of nine months, six months and six months' detention respectively.  With respect to the breaches, he did not record convictions but did record a conviction in relation to the enter premises and commit an indictable offence by break offence. 

Although the applicant offended again, in my opinion, no conviction should have been recorded again against the applicant.  While it is correct to say that not only is the applicant's interests relevant on sentencing, the community has a right for protection and re-offending does not give one confidence that a person, in the applicant's position, is rehabilitating themselves with the assistance of the community's resources.

Nevertheless, the circumstances, in my opinion, did not exist to record a conviction on this occasion.  There is no application, in this instance, to review the sentences imposed in terms of the detention.  It is the conviction that was recorded that is applied for to be reviewed.  I, therefore, review that in this application and order that the recording of a conviction be vacated and that there be no conviction recorded with respect to the offences dealt with by the learned Magistrate on the 11th of April 2011.

Now, of course, the applicant continued to commit offences and came before the learned Magistrate on the 10th of October 2011.  On this occasion, the offences were two counts of entering premises and committing an indictable offence and two counts of stealing.  On these occasions, the applicant and co-offenders opened the door to a car by reaching through an open window and stole two items of clothing.  The applicant made admissions in a police interview. 

Again, with respect to the next offence, the applicant and co-offender smashed and removed louvre windows at the Mareeba Golf Club and stole four bottles of spirits.  Again, the applicant made admissions in a police interview.  With respect to the two stealing charges, the applicant and an adult co-offender stole two laptop computers, a wallet, an MP3 player, a digital camera, a knife and a backpack from the table at a riverside caravan park.  The laptop was located by police during a search and the police were advised that it was sold by the applicant. 

By now, of course, the applicant was 15 years of age and was committing offences and demonstrating resistance to community-based orders.  The pre-sentence report, before the learned Magistrate, did not give the learned Magistrate confidence regarding the applicant.  Nevertheless, the applicant had expressed a willingness to comply with a conditional release order.  These proceedings before me have followed an application made to his Honour Judge Shanahan on the 9th of December 2011 to stay the detention order which was imposed by the learned Magistrate on this occasion of the 10th of October 2011; that is, the learned Magistrate imposed nine months' detention with the consequence that the applicant would be released after serving 70 per cent and he did not record convictions on this occasion.

The application to review the sentence is on the basis that the nine months' detention is excessive and that a conditional release order would now be appropriate, in view of the fact that the applicant has been doing very well on his conditional bail, following his Honour Judge Shanahan's staying of the detention order on the 9th of December 2011.

Again, of course, the community's interest is relevant to be weighed again the applicant's interests.  The applicant has clearly breached previous orders and committed offences of dishonesty.  It can be argued he has squandered opportunities provided to him to remain supervised in the community under community-based orders.  He's continued to associate with like-minded peers rather than avail himself of the assistance offered by Youth Justice.  He has previously refused to comply with proposed conditions of a conditional bail program.    

When committing the four offences that the learned Magistrate dealt with him on the 10th of October 2011, he had been the subject of a supervised release order, having been sentenced to nine months' detention on the 11th April 2011.  He was released on a supervised release order on the 11th of July 2011.  He had been released less than one month at the time of committing the stealing offences. 

He had also been granted bail for two charges of stealing, on the 29th of August 2011, with a residency and curfew condition.  He was the subject of this bail at the time of committing the two offences of entering premises on 4 September 2011 and those offences were committed during the period of his curfew.

The respondent also submits he has been twice previously sentenced to terms of detention for similar offending. 

I have to say though that I am of the opinion that the initial period of nine months' detention imposed on 11 April 2011 was too high. 

Section 150 of the Youth Justice Act refers to the sentencing principles and subsection (2a) provides that "A detention order should be imposed only as a last resort and for the shortest appropriate period". I do not think the nine months was for shortest appropriate period.

The consequence has been that a level was set by which the applicant was judged with respect to future offending.  In my opinion, the nine months' detention imposed on the 10th of October 2011 was too high. 
Bearing in mind, his pleas of guilty and cooperation with the administration of justice and his very difficult background, I do not accept that detention was appropriate, certainly not of nine months' duration.  I have to confess though, I do have the benefit of the knowledge now that he has been performing well on his conditional bail program since the stay was granted by his Honour Judge Shanahan on 9 December 2011. 

I have come to the view, on this review which does not require me to find error on the part of the learned Magistrate that there should be a review of the sentence of nine months' detention.  There should be no conviction recorded; that the nine months' detention should be vacated and in lieu thereof, I order that the applicant be detained for three months.  I further order that the period of detention be suspended immediately and he be released immediately from detention and that he participate in a program as directed the Chief Executive for the next three months and abstain from violation of the law during the program period.

There will be in relation to the applicant, a declaration by me that the 94 days that has already been served be deemed time already served under the sentence. So, that's the days that'll be declared for him, 94 days from 6 September 2011 to 9 December 2011.

‑‑‑‑‑