The Queen v RC

[2012] QChC 5

[2012] QChC 5

CHILDRENS COURT OF QUEENSLAND

JUDGE DICK SC

Indictment No 359 of 2011

THE QUEEN

v.

RC

BRISBANE

..DATE 24/02/2012

ORDER

HER HONOUR:  This is an application for a review of a sentence imposed at the Childrens Court, Cunnamulla, on the 16th of November 2001.  On that date the applicant was sentenced to four months' detention and convictions were recorded for offences of one enter dwelling and commit indictable offence; one unlawful use of a motor vehicle, one for commit public nuisance and one possession of implements.  These offences occurred over a relatively short period of about a month.

He was also subject, at that time, to three months' conditional release order which was revoked and he was ordered to serve three months in detention.

He, at the time, was 16 years' of age.  He had prior criminal history, primarily, for property and nuisance offending.  He had been given sentencing options other than detention up to this time including conditional release orders and probation.

The short point on the application is that the Magistrate recorded convictions and submissions were not sought from the defence counsel and no discussion took place at the time as to the matter in which the Magistrate should exercise his discretion in respect of recording convictions.

The Act, and, in particular, section 183(1) of the Justice Act states that the prima facie position is that convictions should not be recorded against a child unless a Court considers the matters in section 184 of the Act.  It is not necessary on the sentence review to prove that the Magistrate was in error but it is passably clear that it is difficult to say the Court considered those matters.

In the matter of DRH and Others, CSM No 16 of 2000, his Honour, Judge Robertson, sitting then as President of the Childrens Court cited with approval two Court of Appeal authorities in relation to the issue and in that judgment he said, "As I've noted the sentencing Court has discretion to record or not record a conviction unless section 124(2) and (4) applies to the particular order.  If the issue is not the subject of a submission and the Magistrate records a conviction without providing counsel with the opportunity to make submissions, the appeal reviewing Court will proceed on the basis that the discretion's not exercised and will interfere with a sentence".

I have considered, in this case, the age of the applicant, the nature of the offending, his previous criminal history and the impact that the recording of a conviction would have on his rehabilitation. 

I doubt whether one was, in fact, made but I say if there was an order made by the Magistrate the sentence will stand except that there will be no convictions recorded.

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