The Queen v Sac

[2013] QChC 8

[2013] QChC 8

CHILDRENS COURT OF QUEENSLAND

JUDGE DICK SC

THE QUEEN

v.

SAC

BRISBANE

..DATE 08/02/2013

JUDGMENT

HER HONOUR:  This is an application by SAC.  There are three applications for sentence review before me and she seeks a review out of time against the recording of convictions at the sentences.

Leave needs to be given to hear the applications out of time, but the prosecution have not argued that I should not hear them.

It appears that she is not aware that convictions had been recorded, nor received advice about the right to review the matters.

There appears to be no material prejudice suffered by the respondent and therefore I will grant leave to hear each of the applications out of time.

The sentences sought to be reviewed occurred on the 26th of July 2010, the 4th of May 2011 and the 16th of November 2011.

The applicant had a relevant criminal history at the time of each sentence, but until these convictions were recorded she had not previously had convictions recorded against her.

Her age at the time of the sentences was of significance.  She was 13 years old at the time of the offences for which she was convicted on the 26th of July 2010 and 14 at the sentence and by the time of the last sentence on the 16th of November 2011 she was 15 at the time of that offending and at the sentence.

She was born on the 8th of June 1996.  She is presently 16 years of age.

When the applicant came before the Murgon Childrens Court on the days mentioned she had previously been before the Court on numerous occasions for offences of a similar nature to some of those that are sought to be reviewed.  She had had the benefit of community based orders, including probation and community service.  She also on two occasions had been subjected to a conditional release order. 

That, of course, must be balanced against her youth and her family circumstances, which I am informed include the fact that she is the subject of child safety intervention as a result of her exposure to domestic violence and physical harm.  Her offending has also resulted from her use of illicit substances.

Having balanced those considerations, but with the exception of the assault occasioning bodily harm on the 26th of July 2010, convictions should not have been recorded in relation to the remaining offences and I think that is a fair assessment.

So it falls to me really to consider the matter of the assault occasioning bodily harm.  It is described by the prosecution as an unprovoked attack on another female youth which involved the applicant grabbing the victim's hair, punching her to the face and kneeing her to the stomach and continuing the attack when the complainant started to walk away.
The applicant's lawyers say that the assault appears to have been the result of misplaced family loyalty because of conflict between the parties' families.  It is not the worse type of this offending that one sees in these courts.

There is some difficulty that the Magistrate did not provide any reasons for recording that conviction against her.  The applicant's legal representatives did not make submissions in relation to the recording of convictions and the applicant has referred to the decision in the matter of DRH and the matter of BES and the matter of TKL, an unreported judgment of the Childrens Court of Queensland No 16 of 2000, where his Honour Judge Robertson noted, "If the issue is not the subject of submissions then 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."

The applicant does not have to demonstrate any error on the part of the Magistrate because this is a review process, but the words from that judgment are applicable here.

The defence say that the default position is that a conviction should not be recorded.  Another way of putting it is that a conviction should not be recorded unless there is a good reason to do so.  That offence for which the prosecution ask for a conviction to be recorded occurred when the child was 13.  I think that is the most significant feature in the balancing process.

The applications for review are successful in each case and in each case no conviction should be recorded.

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