TMS v Fleming

[2010] QDC 380

[2010] QDC 380

TMS	Appellant
And CONST J C FLEMING WARWICK ..DATE 08/09/2010	Respondent

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE R JONES

ORDER defendant in the Magistrates Court in Warwick, whom I will refer to hereafter as TMS.

On 14 November 2009 TMS was involved in an assault. I will come to the details of that offence in a moment. TMS was convicted and was sentenced to undertake six months' probation and was ordered to pay $200 in compensation and a conviction was recorded. She was 15 at the time.

The sole ground of this appeal is that a conviction should not have been recorded.

Ordinarily the discretion of the trial Judge in fixing a sentence is a wide one and the usual principles are that a sentence will only be interfered with if it has been shown that some error has been made in the exercise of the discretion which usually involves the decision maker acting on a wrong principle or allowing extraneous or irrelevant matters to be taken into account or not taking into account relevant matters.

Here it was quite properly, in my respectful view, conceded by Ms Klemm, appearing for the respondent, that the magistrate did not refer to accepted principle that the primary or starting position in respect of juvenile offenders is that a conviction should not be recorded.

In the light of that acknowledgement the appeal proceeded on the basis that the most appropriate way of dealing with this matter was for me to, in effect, sentence afresh. 2 ORDER

Consistent with Court principles concerning the discretion of a sentencing Judge, to which I have already referred, in Ms Klemm's outline of argument reference is made to that discretion at page 4. However, in circumstances such as this that usually wide discretion is fettered by legislation and, in particular, the Youth Justice Act of 1992.

Pursuant to section 183 subsection 1 it prescribes that, "Other than under this section a conviction is not to be recorded against a child who is found guilty of an offence."

However, in subsection 3 it is made clear that, "Notwithstanding the operation of subsection 1 the Court retains a discretion to record a conviction where it considers it justified."

In the Court of Appeal decision of the Queen and SBR 210 QCA 94 at paragraph 15 it was said in the judgment of Justice Muir of the Court of Appeal, with the President and Justice Holmes agreeing that, "It may be seen from section 183 and section 184 that the 'primary position' in relation to recording of a conviction was that a conviction not be recorded." Within that quote there is a footnote reference to an earlier decision of the Court of Appeal in the Queen and JO 2008 QCA 260. In the Queen and JO, Justice Holmes, with Justices Mackenzie and Douglas agreeing, after referring to an even earlier decision of the Court of Appeal in the Queen and L 2000 QCA 448, her Honour, at paragaph 12, cited with approval the earlier decision of the president which also referred to, "The primary position being that a conviction ought not be recorded against a child offender." 3 ORDER

It is obvious that the otherwise wide discretion has to be exercised in the light of the intentions of parliament.

Now, returning then to the circumstances of this case. At the time the offence occurred TMS was 15 years of age. She was at a party. There is no direct evidence of her being affected by either alcohol or other substances. Notwithstanding what I

have just said I note in the outline of Mr Davies reference to
her weaving her way through a group of persons where she
tripped and spilt a drink on the complainant. So it may, in
fact, be that some alcohol might have been involved, but I do
not consider that to be a relevant consideration, in any
event.

As a consequence of her spilling a drink on the complainant the complainant pushed TMS away and thereafter an altercation developed where there was some punches thrown, including punches to the victim's face.

Not content with that TMS then returned and began assaulting the victim again.

Some 15 minutes after that event TMS then approached the victim for a third time and at this stage the victim was sitting on the ground and TMS proceeded to kick her in the

face, stomach and ribs. statement it would appear that some evidence was before the magistrate as it was identified that the victim suffered a swollen right eye and a cut under the left eye which required stitches and otherwise was scratched and bruised. Also, hair had been removed as a result of hair pulling during the fight. 4 ORDER

The attack was properly characterised by Mr Davies as being a vicious and prolonged one resulting in significant bodily harm being inflicted.

Also of relevance is that TMS at the time had a previous conviction only some five to six months earlier involving another offence of assault occasioning bodily harm where she had been sentenced to three months' probation. That probation had been completed and that order had expired only some two months prior to the subject offence.

On the face of it the violence involved in this instance, coupled with the previous conviction for a similar offence, might, prima facie, suggest that the decision to record a conviction would have been justified.

However, it is clear that the scheme provided in sections 183 and 184 of the Youth Justice Act identifies that the primary position is that a conviction ought not be recorded.

The question therefore is whether or not those two that the circumstances of the offence and TMS's previous history, is not sufficient to upset that primary position. 5 ORDER

circumstances, to which I have referred, are sufficient to
upset that so-called primary position.
In the case of the Queen and SBR the offences involved, of
particular relevance, one count of rape. In that case
the complainant was the appellant's sister. The offender in
that case was aged about 15 at the time of the rape.

The rape was a digital rape of his sister who was at the time only 8 or 9 years of age. In that case it was considered relevant by the Court of Appeal that a presentence report recorded that the offences appeared to be primarily experimental and opportunistic acts which occurred when the appellant was able to be alone with the victim without supervision. The appellant was also reported to have experienced factors in his childhood and adolescent years that had contributed to his offending behaviour, including ineffective adult supervision, problematic adolescent/parent conflict issues and exposure to inappropriate childhood experiences.

Notwithstanding the seriousness of the offences and, in particular, the charge of rape, there, after reviewing a number of previous decisions of the Court of Appeal, the appeal against the conviction being recorded was allowed.

In the other case to which I have already referred, the Queen
and JO, an extensive review of the authorities was
carried out by her Honour Justice Holmes. Of significance
here is that it is clear that the fact that a previous
criminal history exists is not necessarily reason to upset the
primary principle of not recording a conviction even in
circumstances where the previous conviction is of a similar
character. Reference ismade in the Queen and JO to a decision
of the Court of Appeal in the Queen and B 2003 QCA 24. At
paragraph 17 of the decision of her Honour Justice Holmes it
was identified that in the Queen and B - the applicant was a
very young child aged 13 years of age, and had a substantial
criminal history. Notwithstanding that substantial criminal
history the appeal against the recording of a conviction was
allowed. 6 ORDER

I was also referred to a decision of his Honour Judge Griffin in the case of the Queen and A, D, B and C. That case involved a particularly repugnant assault against a severely impaired victim. The assault involved four youths, in effect, ganging up on this unfortunate victim. Relevantly, in that case, the juvenile also had previous convictions recorded against him. No conviction was recorded.

In addition to her age it has also been submitted, - and I accept - that TMS now has a more stable family life, she has completed grade 10 since the time of the offence, has started working and works to this time as a trainee with Kentucky Fried chicken and has ambition to be a hairdresser. She has also left the social group that she was mixing with at the time the offences occurred, was willing to pay compensation and has not been involved in any criminal activity since this offence was committed. 7 ORDER

Having regard to the principles cited in the cases to which reason to have a conviction recorded for the purpose of giving persons with a legitimate interest in knowing, knowledge of the offender's true circumstances. That reference comes from a decision of his Honour the Chief Justice in the Queen and Cay and others 2005 QCA.

For the reasons given the appeal is allowed. The order of the extent of setting aside the recording of a conviction.

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8   ORDER