The Queen v CF

[2012] QChC 29

[2012] QChC 29

CHILDRENS COURT OF QUEENSLAND

JUDGE SAMIOS

THE QUEEN

v.

CF

BRISBANE

..DATE 12/10/2012

ORDER

RESTRICTED ACCESS TRANSCRIPT

HIS HONOUR:  The application before me is for the review of a sentence imposed by the learned Magistrate at Caboolture Childrens Court on 14 October 2011.

On that occasion, the applicant was sentenced to 60 hours' community service for one count of stealing and one count of trespass.  Convictions were recorded.

The application is out of time.  However, if the application is heard, the applicant seeks a review of the recording of the convictions.

The respondent, the Office of the Director of Prosecutions, accepts that the application should be heard out of time.  It is clear that there is no prejudice to the respondent and the concession is rightly made that the application should be heard out of time.  I propose to hear the application and I allow it to be brought out of time.

However, the respondent submits that the recording of the conviction should stay against the applicant.  Principally, what is shown is that he has had a number of orders in his criminal history and notwithstanding those orders having been made by the Magistrate, he has committed offences very soon after those orders have been made.

The applicant was born on 25 March 1996.  He was 15 years of age at the time he committed the offences, the subject of this application.

The facts, basically, behind the offending is that the applicant, with another person, went into a Cash Converters store.  The applicant looked around before picking up a guitar and then ran out of the store without making any attempt to pay for the guitar.  The property was located and returned to the store.

The second offence, the trespass offence, occurred on an occasion when the applicant appears to have wanted to avoid the police.  He then ran into a yard and hid behind a fence.  As has been pointed out on the hearing of this application today by Ms Smith who appears for the applicant, in relation to the stealing offence, the property was recovered and in relation to the trespass offence, there was no violence or loss of property involved.

Turning to the applicant's criminal history which is exhibited to the affidavits filed in support of the application, it can be seen he has been in trouble before and, as I have said, the Magistrates have tried to impose penalties to ensure the applicant mended his ways.  It is correct he was on a probation order when he committed these offences of the stealing and trespass, and he is also the subject of a 40 hour community service order which had been imposed on 29 April 2011.  I should have pointed out that the stealing offence was committed on 6 May 2011 and the trespass offence on 30 July 2011.

When the matter came on before the learned Magistrate, he had the applicant's criminal history, the facts were also put before him, and it was clear that the guitar had been returned and that the trespass was not suggested to be serious.

What is also clear though is that the learned Magistrate did not invite any submissions about the recording of a conviction and no submissions were made by the applicant's representative.

Judge Robertson in the matter of DRH, in the matter of BES and in the matter of TKL, application numbers 81 of 2000, 94 of 2000 and 98 of 2000, judgment delivered 13 April 2000, said, "As I have noted, a sentencing Court has a discretion to record or not record a conviction under section 124(2) or (4) applies to the particular order.  If the issue is not the subject of submissions and the Magistrate records a conviction without providing counsel an opportunity to make submissions, the appeal or reviewing Court will proceed on the basis that the discretion was not exercised and will interfere with the sentence."

It seems to me that is the approach that should be adopted in the present matter.  In addition, it is my view on this review that the offending on its own, and even in the context of previous offending by the applicant, did not call for the recording of convictions.  In my opinion, these offences were not of a kind, nor were they committed in the context of a criminal history that would warrant the community having to known that the applicant had offended in this way.

In addition, in this matter, it is to be noted that subsequently the Toowoomba Childrens Court on 19 April 2012 and 23 April 2012 did not record convictions for other offences committed by the applicant.

There is no doubt a point will be reached where a youthful offender will have convictions recorded against him or her.  However, that depends on the circumstances.  The present matter is not a matter of circumstances which would justify the recording of convictions on 14 October 2011 by the learned Magistrate.

Therefore, the sentence is reviewed and the convictions in relation to the applicant's sentence on 14 October 2011 is set aside.  I should say for completeness, the recording of the convictions that occurred on that date are set aside.

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