The Queen v G

[2000] QCA 208

[2000] QCA 208
COURT OF APPEAL

McMURDO P
WHITE J
DUTNEY J

[R v G]

CA No 59 of 2000

THE QUEEN

v.

G  Applicant

BRISBANE

..DATE 30/05/2000

JUDGMENT

DUTNEY J:  The applicant was convicted by a jury of assault occasioning bodily harm on 23 February 2000.  The offence occurred on 25 November 1998 when the applicant was a
16 year old school student.  He threw a rock at a teacher.  The teacher was supervising a group of students who had been playing tennis.  A group of six had been running around after sport had finished.  The teacher directed the students to sit down.  The applicant responded in a rude way and then threw a rock at the teacher.

The rock was bigger than a golf ball but smaller than a tennis ball.  The applicant drew his hand behind his head and aimed it before throwing it.  The teacher saw the rock coming, turned his head and was struck in the back of the head.  He was knocked unconscious and awoke in hospital.  He was concussed; he vomited; he had headaches for up to two weeks afterwards and he required two days off work and a weekend to recover.

At the trial the applicant defended the charge by contesting identification.  He displayed no apparent remorse.  He was sentenced to two years probation and ordered to perform
200 hours of community service and a conviction was recorded.

The applicant had little previous criminal history, none of it relevant, and was sentenced as a juvenile. Section 124, subsection 3 of the Juvenile Justice Act 1992 permits the recording of a conviction where the offender is sentenced to probation or community service. A decision to record a conviction must have regard to the matters set out in section 125.

In R v. T, Court of Appeal, No 253 of 1998, 18 September 1998 unreported, this Court allowed an appeal against the recording of a conviction in relation to a series of offences including dangerous driving causing grievous bodily harm.  Justice of Appeal McPherson, with whom President McMurdo and Justice Shepherdson agree, said at page 5:

"My personal inclination is to say that Courts generally ought not to be quick to record convictions in the case of serious offences committed by children that are substantially the produce of criminal negligence arising from lack of mature foresight or judgment rather than from malice or conscious wrongdoing, but even that statement, it must be admitted, is no more than a generalisation that will inevitably give way to the particular circumstances of the case in question."

This offence seems to me to be one of malicious or conscious wrongdoing although largely brought about by immaturity.  Assaults by students against teachers are particularly serious.  Teachers are, quite rightly, prevented these days from aggressive behaviour towards students even in response to quite severe provocation.

Conversely it is appropriate that those who perpetrate serious assaults on teachers should be firmly dealt with.  While in many cases a conviction might not be recorded, I do not think it can be said that in the case of a boy who was 16 at the time of the commission of the offence and who has expressed no remorse whatsoever, the recording of a conviction is outside the range of a proper sentencing discretion.

This is particularly so here where it was not suggested at the time of sentencing that a conviction would inhibit rehabilitation or hinder employment.  The community orders are not attacked, but are in any case not inappropriate.  I would dismiss the application.

McMURDO P:  I agree with the order proposed and with the reasons of Justice Dutney.  I would only add the following brief comment.  The offence was a most serious one.  The applicant was 16 years old.  He showed no remorse.  There was no early plea of guilty. 

The conviction was for an offence of assault occasioning bodily harm, not for an offence of dishonesty.  There was nothing placed before the sentencing Judge to suggest that the conviction would have any significant effect on his rehabilitation.

In those circumstances, for the reasons given by Justice Dutney, the sentencing discretion was quite properly exercised.  I too would refuse the application.

WHITE J:  I agree with the orders proposed for the reasons given by Justice Dutney and the President.

McMURDO P:  The order is the application for leave to appeal against sentence is refused.

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