The Queen v RBF
[2022] QCA 33
•11 MARCH 2022
[2022] QCA 33
COURT OF APPEAL
FRASER JA
MULLINS JA
DAVIS J
DC No 293 of 2021
DC No 339 of 2021
DC No 384 of 2021
THE QUEEN
v
RBF Applicant
BRISBANE
FRIDAY, 11 MARCH 2022
JUDGMENT
FRASER JA: Yes. The court is in a position to give its judgment. I will ask Davis J to give his reasons first.
DAVIS J: The applicant pleaded guilty to three counts on two indictments and two summary charges. Those offences were one count of going armed so as to cause fear, one of attempted armed robbery in company, one of armed robbery in company, one of unlawful use of a motor vehicle and a failure to appear in accordance with a bail undertaking.
The first in time to occur was the count of going armed so as to cause fear. That occurred on 10 April 2021. The applicant was in the Queen Street Mall with other youths. A fight broke out not involving him. He was in possession of a kitchen knife which he produced and pointed at one of the males who had been involved in the fight. The applicant took no part in the fight and walked away.
The attempted armed robbery in company occurred on 15 April 2021. The applicant, another child and a youth aged 19 were in Albert Street in the city. They approached a man who was sitting on a bench. The applicant produced the kitchen knife which had been the subject of the charge of going armed so as to cause fear, and he demanded that the man give him his car keys. There was a confrontation but no violence, and the complainant did not deliver the keys.
The next offence was the first of the summary offences, namely, unlawful use of a motor vehicle. On 30 May 2021 the applicant and two others were detected in a stolen car. The applicant was arrested and bailed to appear on 2 June 2021 in the Southport Magistrates Court. He failed to do so, and that constitutes the second summary charge.
The final offence was committed on 11 June 2021 and is the charge of armed robbery in company. The applicant with two others approached a man in King George Square. The applicant threatened him with a screwdriver and pushed it into the complainant’s chest. That was done in a threatening way rather than in an attempt to stab the complainant. Under threat, the complainant removed the contents of his wallet and bag and handed the wallet, the bag and his scarf to the applicant and his co-offenders.
The applicant pleaded guilty in the Childrens Court to all five offences. He was sentenced as follows.
Going armed so as to cause fear on 10 April 2021: three months detention.
Attempted armed robbery on 15 April 2021: 12 months detention.
Unlawful use of a motor vehicle on 30 May 2021: six months detention.
Failure to appear in accordance with a bail undertaking on 2 June 2021: a reprimand order.
Armed robbery in company on 11 June 2021: 18 months detention.
A period of 122 days pre-sentence custody was declared as time served on the sentences, and he was ordered to be released after serving 50 per cent of the effective head sentence of 18 months detention. No convictions were recorded except in relation to the offence of 11 June 2021, being armed robbery in company. The applicant does not complain about the sentences, except in relation to the recording of a conviction on that single count.
The applicant was born on 13 August 2004. He was 16 years of age during the current offending. He has a juvenile criminal history which commences in the Beenleigh Childrens Court on 15 January 2018 when he was convicted of an offence of wilful damage committed on 10 September 2017 when he was just 13. His juvenile criminal history contains a range of offences, being minor drug offences, offences of dishonesty and motor vehicle offences.
Of particular relevance are convictions in the Beenleigh Childrens Court on 3 December 2018 and again on 16 December 2019. The 2018 convictions included three counts of armed robbery in company with personal violence, one count of armed robbery in company and one count of robbery. He also pleaded guilty to charges of unlawful use of a motor vehicle and dangerous operation of a motor vehicle. He was sentenced to detention of 18 months. The 2019 convictions included two counts of armed robbery in company with actual violence and counts of unlawful use of motor vehicles. The last of those offences was committed in June 2019. He was sentenced to detention of 15 months.
The learned sentencing judge who imposed the present sentences mentioned in his sentencing remarks the prior convictions and various other matters which aggravated the offending. His Honour mentioned two specific mitigating circumstances. They were:
“A good friend of yours passed away as a result of a knife wound, and you must have been deeply affected by that.”
And:
“Whilst in custody, you have used your time productively, and you have indicated to the author of the pre-sentence report that you are willing to see a psychologist. You have been a positive influence on your peers in custody.”
The applicant’s friend died on 8 April 2021, only two days before the first of the current offences were committed. The pre-sentence report said this:
“The following factors are assessed as contributing to [the applicant’s] offending:
· Impact of grief and loss resulting from the death of a friend
· Peer group reflecting pro-criminal values and suspected substance use;
· Use of violence as a maladaptive problem-solving strategy
· Lack of engagement in pro-social structured activities.”
And later in the report:
“It is noted that the first offence before the court occurred on 10 April 2021 and all offences occurred in the Brisbane central business district. Prior to this, Youth Justice records show that the applicant had no recorded offending behaviour since June 2019. It is therefore assessed that the applicant’s offending was precipitated by the loss of his friend and subsequent inadequate strategies to cope with this loss.”
Also in the report were the following observations:
Prior to the offending, the applicant had been attending school but stopped after the death of his friend.
The applicant’s experience of grief increased his vulnerability to relapsing to maladaptive coping strategies.
The applicant’s behaviour in detention has been positive.
The applicant has participated in various programs.
Further treatment is recommended.
The sentencing judge dealt with the question of recording a conviction in this way:
“In my view, having regard to the factors in section 184 of the Youth Justice Act, which are: the nature of the offences, your age and any previous convictions; and the impact of recording a conviction on your chances of rehabilitation generally; or your chances of finding or retaining employment, it is appropriate to record a conviction for the armed robbery in company offence. In respect of the other offences, convictions will not be recorded.”
In R v SCU [2017] QCA 198, McMurdo JA, with whom Morrison JA agreed, in considering s 184, was prepared to draw an inference that the recording of a conviction for a serious offence would detrimentally affect a child’s prospects of rehabilitation and retaining employment, even in the absence of specific evidence of actual opportunities lost. I draw such an inference here. The applicant is reaching adulthood.
In my view, there is evidence of rehabilitation occurring since 2019. The expert evidence available to the sentencing judge was to the effect that the applicant’s grief in losing a friend in violent circumstances was a catalyst to the relapse and consequent offending which occurred. It is easy to accept that such a loss would impact heavily upon a child. Here the offending was causally linked to that loss in the way I have described. There is also evidence of the rehabilitative efforts made by the applicant while in detention. In those circumstances, in my view, the discretion to record a conviction miscarried and the sentence was thereby rendered manifestly excessive.
I would grant leave to appeal and allow the appeal to the extent of quashing the decision to record a conviction on the offence of armed robbery in company, and I would order that no conviction be recorded.
FRASER JA: I agree.
MULLINS JA: I agree.
FRASER JA: The order of the court is that the application for leave to appeal is allowed. The appeal is allowed, and the orders made below are varied by ordering that, instead of a conviction being recorded for the offence of armed robbery in company, no conviction be recorded. Adjourn the court.
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