The Queen v FMC

[2012] QChC 35

[2012] QChC 35

CHILDRENS COURT OF QUEENSLAND

JUDGE DICK SC

THE QUEEN

v.

FMC

BRISBANE

..DATE 12/11/2012

..DAY 1

ORDER

HER HONOUR:  This is, firstly, an application for the sentence review in respect of FMC to be heard out of time.

Section 119(2)(b) of the Youth Justice Act 1992 provides that an application for review must be made within 28 days after the sentence order is made or within a later period that may, at any time, be allowed by a Childrens Court Judge.

The sentence which is sought to be reviewed occurred on the 20th of September 2011 and obviously, no application was made within the 28 day prescribed period.  This is explained in this way.  The applicant had not received any advice about the reviewing of the recording of his conviction, prior to his initial contact with the Legal Aid Office on the 27th of July 2012.  On the 14th of August 2012, he provided written instructions to review the sentence and then, some time was taken to get the paperwork. 

It is submitted there is no material prejudice suffered by the respondent in hearing this matter out of time and I gather from the submissions that there is no argument about that.  In those circumstances, the applicant is granted leave to have the sentence review heard out of time.

The only question which arises on the sentence review is whether the recording of convictions for the offences is appropriate.  The applicant does not have to demonstrate any error on the part of a Magistrate because a sentence review is a re-hearing, however, both parties agree that no reasons were given for the recording of convictions nor were any submissions called for in respect of that matter.

The sentence related to a number of wilful damage by graffiti and unlawful use of a motor vehicle, burglary and stealing, enter premises and stealing, one count of enter dwelling with intent and an attempted stealing.  The offences all occurred in the year of 2011.  As I understand it, at the time of the offences, the applicant was 14 then and was 15 at the time of the sentence. He is 16 now.

The offences, although spread over some months and although repetitive and although some of the offences breached previous orders, none involved violence. 

The Youth Justice Act proceeds from the primary position that a conviction ought not to be recorded against a child and in deciding to do so the Court must have regard to all the circumstances of the case including the nature of the offence, the child's age and any previous convictions. In this case, the applicant had a relatively minor criminal history, at the time he committed these offences.

The other matter to be taken into account is the impact recording a conviction will have on a child's chances of rehabilitation, generally or finding or retaining employment. 

It is impossible to say the Magistrate considered those things because he or she did not call for submissions on the matter and the legal representatives did not make submissions in relation to the matter.

Cases on the point have indicated that in the absence of remarks expressly directed to the exercise of the discretion as to whether or not to record conviction, in the absence of such remarks, it is appropriate to proceed on the footing that the discretion miscarried and must be exercised to refresh.

In this case, the respondent does not oppose the application because the Magistrate did not appear to have exercised his discretion and because of the applicant's youth, his limited criminal history, the fact that he not had previously a conviction recorded against him that the offences were not of such a nature that they warranted a conviction and his prospects of rehabilitation. 

In those circumstances, the application should be granted and a conviction against the applicant, recorded on the 20th of September 2011, is set aside. 

HER HONOUR:  Otherwise the sentence remains intact.

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