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R v SCU

 

[2017] QCA 198

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v SCU [2017] QCA 198

PARTIES:

R
v
SCU
(applicant)

FILE NO/S:

CA No 14 of 2017

DC No 17 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Rockhampton – Date of Sentence: 17 January 2017 (Burnett DCJ)

DELIVERED ON:

8 September 2017

DELIVERED AT:

Brisbane

HEARING DATE:

18 May 2017

JUDGES:

Sofronoff P and Morrison and McMurdo JJA

ORDERS:

  1. Leave to appeal granted.
  2. Set aside the order that convictions of the three offences on the indictment be recorded, and substitute an order that the convictions not be recorded.
  3. Set aside the sentence for count 3 on the indictment and substitute a sentence that the applicant be detained for a period of 12 months, commencing on 29 November 2016.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was found guilty of stealing, attempting to enter premises with intent and wilfully and unlawfully setting fire to a building – where the applicant was sentenced to a head sentence of two years’ imprisonment – where the applicant is to be released after serving 50 per cent of his sentence – where the applicant is a 17 year old Aboriginal child with a history of committing minor offences – where the primary court received reports from a community justice group and a youth service recommending that the applicant be released from custody – whether the sentencing judge gave adequate weight to these reports and the circumstances of the applicant as required by the Youth Justice Act – where the Youth Justice Act stipulates that detention should only be imposed as a last resort – whether it was appropriate to incarcerate the applicant

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the sentencing judge recorded a conviction against the applicant – where the Youth Justice Act requires the court to consider the circumstances of the offender when determining whether to record a conviction – whether it was appropriate to record a conviction against the applicant

Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 (Qld), s 19

Youth Justice Act 1992 (Qld), s 150, s 176, s 183, s 184, s 208, s 219, s 220, s 221, s 223, s 227(2)

Youth Justice and Other Legislation Amendment Act 2014 (Qld), s 9, s 12, s 25

Youth Justice and Other Legislation Amendment Act (No 1) 2016 (Qld), s 16, s 26, s 56

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, followed

Police v Cadd (1997) 69 SASR 150; [1997] SASC 6187, followed

R v AAL [2010] QCA 146, distinguished

R v BCI [2012] QCA 253, distinguished

R v C [2001] QCA 552, distinguished

R v DAU; Ex parte Attorney-General (Qld) [2009] QCA 244, considered

R v HBE [2011] QCA 378, distinguished

R v KU; Ex parte Attorney-General (Qld)(No 2) [2011] 1 Qd R 439; [2008] QCA 154, considered

R v MBQ; Ex parte Attorney-General (Qld) [2012] QCA 202, considered

COUNSEL:

D R Kinsella for the applicant

J A Geary for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  The applicant was found guilty by a jury after pleading not guilty to three counts as follows:
    1. Stealing a leaf blower;
    2. Attempting to enter premises with intent to commit an indictable offence;
    3. Wilfully and unlawfully setting fire to a building.
  2. The learned trial judge ordered:
  1.  Three months detention on count 1;
  1.  One month detention on count 2;
  1.  Two years detention on count 3;
  1.  That the applicant be released upon serving 50 per cent of his sentence;
  1.  Declared 50 days pre-sentence custody as time served;
  1.  All sentences to be served concurrently.
  1. The applicant is an Aboriginal boy who, at the time of these offences, was aged 15.  He lived at Woorabinda, an Aboriginal community near Rockhampton.  In the early morning hours of 10 January 2016, the applicant was in company with a number of other boys in the streets of Woorabinda.
  2. Evidence was given by several of the boys who saw the offence being committed.  There was a building at Woorabinda which the locals called the “Shrek building” because of its green colour.  It was vacant but was being used for storing old records of the Woorabinda Council.  It was frequented by children, who would enter it to smoke, sniff glue, drink alcohol and to light small fires.  One character witness on sentence said that there was a fear in the community that these activities might cause the building to burn down one day.
  3. The applicant decided on 10 January 2016 to light a piece of old clothing and to throw it into the Shrek building.  This set fire to the building.  The applicant then threw into the blaze a small gas cylinder of the kind used in portable camping stoves.  The fire took hold and the building was destroyed.  There was some damage to an adjacent building but the Shrek building was remote from residences and there was no risk of harm to people living in Woorabinda.  There was evidence that an insurer paid out on a policy in the sum of $565,000.  That sum seems excessive having regard the photographic and other evidence about the character and state of the building and it may be explained by the existence of a policy for a fixed sum that had no regard to the actual value of the destroyed property.  In any case, there has been a loss in that amount.
  4. The applicant ran away as soon as the fire went out of control.  He hid.  Other boys implicated him and he was interviewed by police.  He denied starting the fire.  He was charged and pleaded not guilty and was found guilty by a jury.
  5. The applicant has a previous criminal history which is, unfortunately, typical of many boys in his situation.
  6. In August 2012, when he was 12 years old, he was found guilty of two offences of entering premises with intent, one offence of trespass and one offence of endangering a vehicle by throwing an object.  These offences had been committed when he was only 11; on the same day he was found guilty of being in possession of a knife in a public place, an offence committed just after he had turned 12.  He was placed on probation for eight months and no conviction was recorded.
  7. On 7 July 2013, after his term of probation had ended, he committed a public nuisance and was found guilty on 17 July and placed on a four month good behaviour bond.  No conviction was recorded.
  8. On 16 May 2014, the applicant wilfully damaged police property and endangered a vehicle by throwing an object.  He was found guilty of these offences on 2 July 2014 and ordered to perform 20 hours of community service which were to be completed within three months.  No conviction was recorded.
  9. On 18 October 2014, he entered premises with intent, committed a public nuisance and assaulted a police officer.  On 1 November 2014 he committed two separate offences of wilful damage and entered premises with intent.  He was found guilty of these offences on 18 May 2015 and was placed on probation for four months.  No convictions were recorded.
  10. On 3 October 2015 he was found in unlawful possession of stolen property and found guilty on 21 October 2015.  The property was two bicycle wheels.  He was placed on probation for six months and no conviction was recorded.
  11. Finally, on 12 December 2015 he committed a public nuisance and was found guilty on 27 April 2016 after the commission of the present offences.  He was placed on probation for six months, was ordered to perform 20 hours of community service within 12 months and no conviction was recorded.
  12. This criminal history of a boy who became a teenager was not examined in detail at sentencing.  The particular circumstances of the applicant’s offending are, therefore, largely unknown.  The learned trial judge did observe that the first offence committed by the applicant, when he was 12, involved throwing paint inside somebody’s house.  Other offences involved throwing rocks at police cars.  The learned judge described the offending as “little more than significant street offending” and I would only cavil at the use of the word “significant”.  However, a few conclusions can be drawn from his record.
  13. Half of the offences were committed before the applicant had turned 14.  Only one of the 16 offences, the last one, a minor offence of committing a public nuisance, was committed while he was on probation.  None of them was an indictable offence and, but for the offence of assaulting a police officer, none of them was serious.  As to the assault, it is not possible to know how serious an assault by a 14 year old boy upon a police officer can be, but the penalty of probation ordered upon all six charges dealt with on the same day suggests strongly that the assault was not a serious one.  With only two exceptions, all of the offences were committed on a Friday, a Saturday or a Sunday.
  14. The offences that he had committed in the past do not themselves indicate a proclivity in the applicant to commit serious offences or that he has any dangerous tendencies – or, at least, any tendencies that cannot be curbed by appropriate guidance and counselling.  Rather, they seem to be offences committed by him when in company with his peers in the streets of Woorabinda on weekends when they were allowed to run free, sometimes in the dark, with nothing better to do and without adult restraint.
  15. The pre-sentence report confirmed that his offending had been the result of keeping company with “a number of peers” who engaged in substance misuse and offending behaviour.  He is described in this respect as a follower.  His pre-sentence report records his successful completion of his community service obligations.  On each occasion upon which he was required to engage in a “CHART” program he declined to do so.  However no breaches of orders were ever recorded.  In oral submissions to the sentencing judge, the representative of Youth Justice, under whose aegis the pre-sentence report was written, said that the disinclination of young offenders to participate in CHART was common “with just about all young offenders because we’re challenging their thoughts, their actions, their behaviour”.  He said that this disinclination to participate was not unique to the applicant but was common.  Having regard to the assessment of the applicant as a follower, and as lacking insight, this failure is neither surprising nor unexpected.  On the other hand, he had participated well in “life skills” sessions with the “Reconnect” program, to which I will refer later, and completed his community service obligations otherwise.
  16. The report states that he is not a habitual substance abuser although he has smoked marijuana in the past.
  17. His earliest attempts at education have been difficult.  From the age of eight until the date of these offences he had attended 10 different schools.  However, his successful completion of community service and of probation itself each time it was ordered suggests that he is also apt to follow virtuous examples as well as vicious ones if given the opportunity.  In addition, according to the pre-sentence report, while on bail for the current offences, the applicant participated well in a Conditional Bail Program in what, with a single episode of lapsing, was described as at a “high level” and “exceptional”.  This too implies strongly his amenability to instruction and to learning as he matures.
  18. The applicant lived with his parents in Woorabinda and, from time to time, with his grandmother in Rockhampton.  He was an active and talented participant in the local football team.  His family was supportive of him.  Their support was evidenced not least by their willingness to transplant their home from their community at Woorabinda to Rockhampton to be with him while on bail for these offences and in the event he is released.  It is also shown by their attendance at sentencing in the District Court at Emerald, which is 270 kilometres away from Rockhampton.  The sentencing was also attended by “senior and respected family members”.
  19. At the time of trial and the writing of the pre-sentence report, the applicant remained prone to portray himself as the victim and sought to evade responsibility for his own actions.  He was said to have an “egocentric view of [his] offending”.  Otherwise, the author of the pre-sentence report expressed the opinion that the applicant was suitable to be released upon a conditional release order and that an appropriate program was available.  This program was explained.  It would have required the applicant to attend on three days a week to engage in structured physical and cultural activities.  It would also require the applicant to engage in unpaid community work in the area of Rockhampton.  These commitments would total 18 hours a week.  The report considered that the support he could expect from his family would be strong.  The report identified a variety of programs and other engagements in which the applicant would engage if released and which would be of benefit to his development.
  20. In addition, he would be provided with activities from which he could learn vocational skills, such as cooking, fishing, woodwork and minor mechanical repairs.  The applicant has expressed interest in artistic pursuits and an opportunity to engage in painting and sculpture would be available.
  21. The sum total of these activities would be expected to keep a boy like the applicant busy and engaged, physically and mentally, leaving no room for any desire to seek self-made destructive entertainments on weekend nights.
  22. The report assessed him as suitable to be released on a conditional release order and stated that the conditions of such a release had been explained to the applicant and that he had said he would be willing to comply.
  23. The Woorabinda Community Justice Group furnished an opinion to assist the Court in sentencing the applicant.  Its Co-ordinator, Davina Tilberoo, said that the Group hoped that a sentence would see the applicant released back into the community.  She informed the Court that the applicant’s offending had resulted in his exclusion from Woorabinda and that this too constituted a punishment, as indeed exile from home would to anybody but particularly to a boy.  The applicant’s parents had moved to Rockhampton from Woorabinda to support the applicant.  The view of the Community Justice Group was that it hoped that the applicant would be released upon being sentenced so that he could return to his family.
  24. This opinion, expressed by persons who have special local knowledge and whose appointment to the Group carries with it the trust of their community, should be given great weight.  Of course, these expressions of views also have a statutory imprimatur as I explain below.  The author the Justice Group’s submission, Ms Tilberoo, made herself available by phone to be questioned or to speak to the report that she had submitted, an invitation that was not taken up.
  25. The applicant also tendered a letter from Michelle Richards, the Program Coordinator of Reconnect Youth Services.  This service supports young Aboriginal and Torres Strait Islander persons aged 12 to 18.  The service supports, among others, young offenders.  For this purpose it provides programs to address the risk of recidivism in a variety of ways.  The applicant had been a regular participant in the service’s programs from 2013 to 2015 while he lived in Rockhampton.  In January 2016, after the commission of the offences, he asked to be referred back to the service and this happened.  He became a willing participant.  The service offered to provide the applicant, if he were released, with support to return to school, and other programs to assist him.  The nature of these programs was explained at length and in detail in Ms Richard’s submission.  Among other things, the programs aim to increase the self-esteem and confidence of its participants.  This is achieved in a variety of ways that involve children participating in activities that develop their sense of responsibility, develop positive relationships and to honour and respect their cultural heritage.  The operators of the program assist in getting the participants into such pursuits as would deflect them from harmful activities, including music, sport and art.  The operators of the program work together with Youth Justice in pursuing these aims.  The program seeks to support and encourage participants to maintain schooling.  They work one on one with their participants.
  26. Ms Richards informed the Court that the applicant was eager and willing to engage in these ways and that he could be accommodated if released.  She pointed out that the applicant’s parents had relocated to Rockhampton to be with their son and to support him.  She said that they “had been pro-active in seeking relevant family support” and Reconnect has assisted them in that respect.  Ms Richards said that the applicant would be given “intensive coordinated case management in collaboration with Youth Justice Services”.  The service had worked with the applicant previously and knew him.
  27. She expressed this important opinion: “Considering [the applicant’s] successful participation with our service in the past, I am confident that he would continue to move forward in his efforts to improve his circumstances and future opportunities”.
  28. The applicant had also expressed a desire to commence employment.  His uncle, HW, has a fencing company that has a contract with the Woorabinda Pastoral Company and has offered to employ the applicant.  His father, an A grade rugby league player with the local team had signed up his son, himself a talented player, to play in the 2017 season.
  29. The prosecutor described the applicant’s criminal history as one “filled with offences which show his obvious propensity for antisocial and criminal behaviours”.  These offences were said to “accord with his blatant disregard for other people’s property and people and authority”.  In my respectful opinion, these were overstatements that were not justified by the facts.
  30. The prosecutor submitted:

“He again refused to participate in the programs which were designed to reduce his re-offending.  The details of the other programs which were part of that order are detailed in the pre-sentence report and so is his performance.”

  1. The prosecutor submitted that “no other sentence is appropriate but detention”.
  2. This last submission was based upon previous sentences imposed in four cases to which the learned judge was referred.  I will deal with these below.
  3. Although the prosecutor was invited by the judge to address him about the content of the pre-sentence report, she declined to do so and rested her case upon the proposition that “the only available option to you today is to order detention, nothing less than that” and that there was “nothing … to suggest that immediate release order is appropriate and in line with any Court of Appeal decisions that you will see today”.
  4. The applicant’s counsel was invited by the judge to address him about the authorities that the prosecutor had cited.  His Honour said that “the reality is all the cases talk to a sentence in the order of two to three years”.
  5. Counsel made submissions about the four cases cited by the prosecutor, seeking to distinguish them.  He made submissions about the content and significance of the pre-sentence report, the submission from the Community Justice Group, the submission made by Youth Justice to the effect that a conditional release order was apt and the view of Ms Richardson of Reconnect that the applicant would have ongoing benefit from the programs offered.
  6. He then made submissions relevant to the applicable Youth Justice Principles.  He submitted that the applicant’s period in detention after being found guilty and his good performance while previously on conditional bail demonstrated that further detention was not imperative, particularly having regard to the promise of suitable programs.  He referred to the strength of the applicant’s proven parental support since the commission of the offences as showing their ability to establish suitable boundaries for their son.  He adverted to the barrier between the applicant and his mother and father that would arise if he were detained.
  7. Importantly, counsel referred his Honour to the cultural implications affecting his client and the way that the applicant had already undertaken successfully programs based upon his cultural background and the applicant’s willingness to continue to do so “with a particular focus on men’s business and the culturally appropriate transition to manhood which does not result in further contact with the criminal justice system”.
  8. Counsel submitted that the appropriate order was a sentence of about 18 months’ detention with a conditional release and a period of two years’ probation.
  9. A representative of Youth Justice who appeared at the sentence hearing had submitted that if the applicant were to be removed from Woorabinda to Rockhampton, as he had been since the charges were laid, he was at less risk of re-offending because of his separation from the circumstances that gave rise to opportunities to offend.  His Honour appeared to accept that submission.
  10. The learned trial judge then sentenced the applicant to a term of detention of three months on the stealing charge, one month on the attempted entering charge and two years on the arson charge.  His Honour ordered that the applicant be released upon serving 50 per cent of his detention.  All sentences were to be served concurrently.
  11. His Honour had not adverted to the exercise of discretion conferred by s 183 of the Youth Justice Act whether to record a conviction.  The representative of Youth Justice pointed out this omission to the judge.

“[YOUTH JUSTICE REPRESENTATIVE]: Your Honour, have you given consideration to convictions?

[HIS HONOUR]: Thank you for reminding me of that.  I have considered convictions, and again while I’m conscious of the authorities that speak of convictions, in particular the decision R v RAO, I’ve come to the view that it is appropriate in this case to record convictions, having regard to the egregiousness of the offending.  I’m conscious that, of course, often times it would not be – or that the – I should say the Youth Justice Act does require a more lenient treatment, but I think in this instance – and – sorry, I should say – I’ll withdraw that.  I’ll start again.  In – it’s R v TX I was thinking of.  It’s a prima facie position that a conviction is not to be recorded against a child, but I think having regard to the egregiousness of the offending, this is an instance where detention having being [sic] warranted, it is appropriate to record convictions.  Any further matters?”  [citations omitted]

  1. The Youth Justice Act 1992 applied to the sentencing of the applicant.  Pursuant to s 134, a child who commits an offence must be treated as a child under the Act.  Section 149(1) requires a child to be sentenced only under the provisions of Part 7 of the Act.  Section 150, which is contained in Part 7, provides that in sentencing a child a court must have regard to certain matters; one of these is the Youth Justice Principles contained in Schedule 1 of the Act.  Relevantly, the principles provide:

8. A child who commits an offence should be

  1.  held accountable and encouraged to accept responsibility for the offending behaviour; and
  1.  dealt with in a way that will give the child the opportunity to develop in responsible, beneficial and socially acceptable ways; and
  1.  dealt with in a way that strengthens the child’s family.

10.A parent of a child should be encouraged to fulfil the parent’s responsibility for the care and supervision of the child, and supported in the parent’s efforts to fulfil this responsibility.

12.A person making a decision relating to a child under this Act should consider the child’s age, maturity and, where appropriate, cultural and religious beliefs and practices.

13.If practicable, a child of Aboriginal or Torres Strait Islander background should be dealt with in a way that involves the child’s community.

16.A child should be dealt with under this Act in a way that allows the child to be reintegrated into the community.

17.A child should be detained in custody for an offence, whether on arrest or sentence, only as a last resort and for the least time that is justified in the circumstances.”

  1. Section 150 requires a court that is sentencing a child to have regard to the nature and seriousness of the offence, the child’s previous offending history and any information in a pre-sentence report.
  2. Section 150 also provides that, in sentencing a child, a court must have regard to the “special considerations stated in subsection (2)”.  These provide, relevantly:

“(2) Special considerations are that-

  1.  a child’s age is a mitigating factor in determining whether or not to impose a penalty, and the nature of a penalty imposed; and
  1.  a non-custodial order is better than detention in promoting a child’s ability to reintegrate into the community; and
  1.  the rehabilitation of a child found guilty of an offence is greatly assisted by-
  1. the child’s family; and
  2. opportunities to engage in educational programs and employment; and
  1.  ...
  1.  a detention order should be imposed only as a last resort and for the shortest appropriate period.”
  1. If the child is an Aboriginal person, s 150(1)(g) requires a court to have regard to any submissions made by a representative of a community justice group in the child’s community that are relevant to the child’s relationship to the community, to cultural considerations or to considerations relating to programs established for offenders in which the community justice group participates.
  2. A “community justice group” is a body established by regulation made under s 18 of the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 .  The Woorabinda Community Justice Group is such a group and, pursuant to s 19 of the latter Act, one of its statutory functions is to take part in sentencing as provided for in the Youth Justice Act 1992 .  It also has the function of supporting offenders.  The Co-ordinator of a group is appointed by the group and has statutory functions under s 22(3) of the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984.  Section 150(1)(g) of the Youth Justice Act envisages that the group may take part in sentencing by providing a submission to the court.
  3. Section 176 provides that if a child is found guilty, by a court constituted by a judge, of an offence that would render an adult liable to imprisonment for life, as the applicant was in this case,[1] then the court may order the child to be placed on probation for no longer than three years or make a detention order.  Such a detention order for a “life offence” may be made for a period no longer than 10 years (other than in certain cases not presently material).  A detention order may be made with a “conditional release order”.
  4. Section 219 provides that a conditional release order provides an option “instead of detention” by allowing the court to release a child immediately into a structured program with strict conditions.  Section 220 authorises a court making a detention order against a child to suspend the order and to make a “conditional release order” that the child be released immediately from detention.  Pursuant to s 221, such an order must require the child to participate in a program for a period of no more than three months as directed by the chief executive.  If the court makes such an order, it must explain the reasons for making the order in its written reasons.
  5. Under s 223, a pre-sentence report made under the Act for the purposes of sentencing must include comments about the suitability of the child for release under a conditional release order and must include comments about whether an appropriate program is available for the child.
  6. Otherwise, upon making a detention order, s 227(2) authorises a court to make an order that the child be released from detention after serving at least 50 per cent but less than 70 per cent of the period of detention if the court considers that there are “special circumstances”.  Under s 227(1), absent such an order, a child will be released from detention in any event upon serving 70 per cent of the detention.
  7. The effect of the provisions of the Youth Justice Act that I have referred to is that the Act is emphatic about the requirement that a court give consideration to all statutory factors relevant to a particular case, as well as the facts of the case itself in the ordinary way, before deciding upon an appropriate sentence to be imposed upon a child.  At the forefront of the strictures imposed by the Act is the obligation of a court to consider all other options that are reasonably available before imposing a sentence of detention.  Even at that point, a court must consider whether a conditional release order can properly be put to one side in favour of actual immediate detention of a child.
  8. These are simply the requirements of common sense and the application of life experience when considering the problems posed by children who commit offences.  Whatever might be the grave consequences of imprisonment for an adult who commits an offence such as arson, the consequences of incarceration for a child are likely to be more far-reaching because it is experienced at the start of a life, more severe because of the effect of separation from home, from parents and loved ones and more likely to have potential for harm rather than good, by reason of bad associations made within a detention centre and the harsh experiences encountered there.
  9. The fundamental proposition contained in the Act is, of course, that a child should be detained in custody for an offence only as a last resort and only for the least time that can be justified.  The Act states as its first Youth Justice Principle that the community should be protected from offences.  Section 150(1)(d) requires that the court have regard to the nature and seriousness of the offence.  Otherwise, the Act emphasises considerations that, when they exist, would tend to be factors in mitigation of a sentence.  This emphasis on the child’s future at the expense of aggravating factors is understandable because judges need little reminder to take into account aggravating factors.  Too often, they are very plain and painful to see.  Yet, in the sentencing of a child it is vital that a sentencing judge not permit aggravating circumstances to overshadow considerations that are peculiar to the situation of children.  One of these considerations is the short life history to which a judge can have regard in assessing likely reoffending and, by contrast, the large unknown future that awaits children.  It was for this reason, for example, that in the context of the propriety of judges making recommendations that a child offender be released or not be released when eligible for parole, that in a case in the New South Wales Court of Appeal, Gleeson CJ said:

With respect to the learned sentencing judge, however, I have a problem concerning his recommendation that the appellants should never be released.  Counsel were agreed that this would have no legal effect if and when an application to fix a determinate sentence is made.  There does not appear to have been any statutory basis for the making of the “recommendation”, nor, for that matter, does there seem to be any statutory basis for appealing against it.  Even so, I think it appropriate to express the view that, especially where the offender is a young person, and there are so many different possibilities as to what might happen in the future, it is normally not appropriate for a sentencing judge to seek to anticipate decisions that might fall to be made by other persons, and in other proceedings, or under other legislation, over the ensuing decades.  For that reason, I should indicate that I do not support the recommendation made by Newman J.  This is not intended to be a recommendation by me that either appellant should be released at some time in the future.  It is simply intended as an expression of my view that the making of any recommendation on that subject in these circumstances is not appropriate”.[2]

  1. The “so many different possibilities … [that] might happen in the future” of a child are the reason why the Act makes it an imperative for a court to have regard to considerations which merely may have a beneficial effect upon a young offender.  The statutory factors assume that, generally, youthful offending can be curtailed as a child matures.  They assume that, generally, the betterment of a child’s social attitudes will result from the embracing of the offending child by his or her parents, brothers and sisters and the community.  The Act assumes that maturation will generally have a positive effect upon character.  The statutory process for sentencing children takes for granted that, whenever programs for behaviour modification are necessary, that such programs are much more likely to have their intended effect if delivered while the child is also supported by home and family.  The statute is premised upon the special knowledge that a Community Justice Group has in respect of the Aboriginal community that it serves.  For that reason, the statute compels a judge to have regard to any submissions made on behalf of such a body.  In this context, “have regard to” means to read, understand and consider in combination with all other factors.
  2. The Act requires a judge to be satisfied positively, for reasons that he or she must state, that none of the courses of action that do not involve incarceration would be likely to serve their intended purpose, which is the prevention of re-offending, before imposing the final alternative, that of incarceration.  And even then, a judge is bound to consider whether it might be enough to order detention with conditional release, an order that presupposes the existence of satisfactory programs to modify a child’s behaviour and attitudes.  Section 219 expressly provides that the power to make such an order is “to provide for an option instead of the detention of a child”.  This option is premised upon the child’s willingness to participate in a conditional release program.[3]  Section 221(2) confers upon a court a discretion to impose any conditions it thinks are necessary for the prevention of reoffending.  This discretion is only fettered by a requirement in s 221(4) that such conditions must relate to the offence for which the detention order is made.  This is merely declaratory for any discretionary power is limited to the purposes for which it has been conferred, in this case the purpose expressed in s 221(2).  The wide liberty for a court to fashion conditions for this purpose, as “an option instead of detention of a child”, conferred by the terms of a statute which enjoins courts to order actual detention of a child “only as a last resort” casts a heavy burden upon a court, by a process of exhaustive reasoning, to eliminate all the options offered by the Act before making a detention order.  Correlatively, the Act also casts a burden upon the party advocating for a detention order to demonstrate, by comprehensive argument dealing with all relevant materials, why the last resort constitutes the only possible option.
  3. The learned judge then began his sentencing remarks by saying:

“The law quite sensibly recognises that sentences involving periods of detention should be imposed as a matter of last resort and where they have to be imposed should be for the shortest possible time.  The offending, however, in this instance is very serious.  It cannot be overlooked that you burnt down a building.  The loss, which was indemnified by the insurer, was in the order of about $560,000.  It is a significant amount of money, and respectfully to your counsel’s submissions, it, I think, reflects in broad terms the value of the structure which was destroyed by this arson.

In sentencing you today, I am conscious that the Youth Justice Act does permit me to treat you more leniently than you would be if you were an adult and, of course, the focus of any order imposed is one that would be directed more to rehabilitation than punishment.  But, as I say, the offending here is egregious, and those factors cannot overwhelm the seriousness of the offence of which you were convicted.”

  1. The learned trial judge assessed the applicant’s criminal history as not one containing serious offences.  He also accepted that the offence had been committed while he was in company with others and that, to an extent, he was acting under the influence of the crowd that was “up to mischief”.  His Honour accepted that the applicant was young and immature and was “something of a follower”.
  2. His Honour referred in passing to the availability of probation, community service and conditional release with associated programs as available sentencing options.  He mentioned the risk that detention would expose this boy to “a serious risk of educating you in other criminal activity”.  His Honour considered that the risk created by the applicant’s being exposed to people who might educate him in other criminal activity was one that was “always evident” and one that the applicant had been exposed to anyway when he had been undertaking programs as part of probation.  His Honour thought that that risk had to be “tempered and measured” against the education that the applicant would get in detention and the rehabilitative programs in which he would engage while incarcerated.
  3. His Honour then said:

“Can I say that I have given particular consideration to the prospect of a conditional release order, which could have seen you released today.  But I think, respectfully, that such an order would have been disproportionate, having regard to the gravity of the offending.  That ordinarily, you have a head sentence in the order of two to three years.  I think the community would be justifiably outraged at the prospect of an offender effectively just serving a short period which would be the subject of the conditional release orders.  I also gave very serious consideration to a detention probation order, but I’m afraid I have little faith in the prospect of probation as being as of much assistance in terms of post-release supervision, having regard to your failure on previous occasions to cooperate with the probation authorities.  When you are released, there will be supervision of you and you will understand that you are at risk of being returned to detention in the event that you do not cooperate with the release conditions.  I’m afraid, SCU, your behaviour to date and your performance to date in respect of other probation orders has led me to form that view.

Now, the only other matter I wish to address is the 50 per cent completion.  In determining that you should serve 50 per cent rather than the statutory 70 per cent of the two-year detention period, I’ve taken into consideration particularly the more onerous bail conditions that you served for a period of over 300 days prior to the trial on this matter.  I think – and I accept the submissions made by your counsel that 320 days would constitute special circumstances for the purposes of [section 227(2)].  Upon that basis, I accede to that submission.  Are there any other matters?”  [citations omitted]

  1. His Honour referred in detail to facts from which he concluded that the applicant had failed to show any remorse for his conduct.  He then observed that the applicant’s criminal history was not overly serious but that it showed that he had “not managed to take advantage of the opportunities of probation as they were offered”.  His Honour said that it was the applicant’s “continued failure to take advantage of those opportunities” that, in his Honour’s view, put the applicant “in the position where [his Honour felt] the only appropriate order to be made” was the order for two years’ detention.  His Honour said that if “there had been some glimmer of hope evident from positive participation in probation” he “may have had a different view today”.  His Honour observed that the applicant’s parents had “been engaged” and that “You are no doubt a great disappointment to them”.
  2. His Honour addressed the submissions that the applicant’s counsel had made.  It is necessary to set them out fully:

“I’m also mindful that there are certain cultural aspects relevant to sentence that has to be imposed, and I’ve taken into consideration the matters addressed by both Ms Richards in her report in exhibit 27, and in particular the views of the local community justice group as expressed by Ms Toolbaroo in her letter, exhibit 28.

For your benefit Mr Marinac has only addressed the relevant sentencing principles and those matters which are required to be considered under the charter of Youth Justice Principles.  I’m going to touch upon them very quickly.  It’s clear that you must be held accountable and encouraged to accept responsibility for this behaviour.  But you equally must be given the opportunity to develop in a responsible, beneficial and socially acceptable way, and of course dealt with in a way that strengthens your family.  But you have to balance each of those matters as all is considered up against other elements of sentencing relevant to your situation.  I’m also mindful of the need to encourage the fulfilment of the parents’ responsibility, and I think that they’ve done all they can here and that, of course, an element of separation will assist them.  I’m mindful also of your age, and in particular the timeframe for a sentence that will be appropriate to your sense of time.  I think that is important for a young man of 16.  I’m conscious of your maturity and your age and your cultural beliefs and Practices, and, of course, your [I]ndigenous background and how your sentence will impact in respect of those matters.

I’m also mindful of the need to assist in your reintegration into the community, and of course to ensure that the sentence – that does involve detention – is one only of a last resort and for the least time that can be justified in the circumstances. However, you heard the debate this morning about what other courts have done in cases like this.  In my view, it seems that a sentence of detention is a sentence which is appropriate – that is no other sentence but detention is appropriate, having regard to the egregiousness of the offending.  In particular, I’m mindful of the quantum of damage involved – that is, the nature of the structure that was burnt – and the element of premeditation, both elements which I think distinguish this case from many of the other cases that were placed before me.”

  1. The learned trial judge, as I have said, sentenced the applicant to three months’ detention on count 1, stealing, one month’s detention on count 2, attempted entering with intent and two years’ detention on the arson charge.  His Honour found that the applicant’s compliance with bail conditions for over 300 days since offending constituted special circumstances justifying an order that he be released after serving 50 per cent of his term of detention.
  2. The applicant applied for leave to appeal against his sentence upon the sole ground that his sentence was manifestly excessive.  His application was confined to a challenge to the correctness of his Honour’s decision to record convictions.  After the hearing of the appeal, the Court invited the parties to make submissions about whether the sentence of two years’ detention that his Honour had imposed for the arson offence had been premised upon the proposition that a head sentence of two to three years was the “norm” and, if so, whether that proposition was correct.  The Court received written submissions from the parties.  The applicant submitted that the sentence had indeed been based upon such a proposition which was incorrect.  The respondent submitted that the sentence had not been based upon such a foundation and that, in any event, the sentence was supported by the cases that had been cited to the learned judge.  The applicant submitted that the appropriate order was one for a period of 18 months’ detention with release after serving nine months.
  3. His Honour’s remarks reveal several errors of law.
  4. Contrary to his Honour’s statement that the Act “does permit me to treat you more leniently than you would be if you were an adult”, the Act does not “permit” a judge to treat a child more leniently than an adult; it requires the judge to do so Consistently with that requirement, the Act extends the range of sentencing options in the case of children beyond what is available to a court sentencing an adult.  It also reduces the maximum sentences for offences and conditions the exercise of sentencing powers in a way unknown when sentencing adults.
  5. In my respectful opinion his Honour also erred by proceeding from the premise that case authority obliged him to impose a sentence of detention because of the gravity of the offending and that “ordinarily” the detention would be for a period of two to three years.  This view of the effect of authority appears to have emanated because of his Honour’s acceptance of the prosecutor’s submissions, related above.  He thought that the four decisions of the Court of Appeal upon which she relied “support[ed] [the prosecutor’s] submission that no other sentence is appropriate but detention”.  The prosecutor also submitted that there was “absolutely nothing … to suggest that [an] immediate release order is appropriate and in line with any of the Court of Appeal decisions that you will see today”.  In the course of the applicant’s counsel’s submissions, his Honour observed, consistently with his acceptance of the prosecutor’s proposition about the binding effect of the cases she had cited, that “the reality is all the cases talk to a sentence in the order of two to three years detention”.
  6. The first of these cases was R v BCI .[4]  This case concerned a 16 year old offender who, in company with an adult, burglarised a residence.  The adult offender stole the resident’s car and the applicant helped to burn the car.  He was charged with offences associated with this episode including arson.  He had a previous history of burglary offences.  He was ordered to be detained for 12 months with release after serving 60 per cent of that period.  On appeal he argued for release after serving 50 per cent.  Section 227(2) empowers a court to order a release after a child serves 50 per cent of a period of detention but only if there are “special circumstances”.  Not surprisingly, this Court did not disturb the sentence.
  7. The personal circumstances of the applicant in BCI , the circumstances of his offending and the issue that the Court had to consider were not similar to the issues for consideration in the applicant’s case.  The applicant in BCI was not said to be Aboriginal or to have been living in an Aboriginal community, his criminal history was entirely different and was much more serious.  No urgings had been made on his behalf that his prospects of rehabilitation within the community were good.  He did not have the evident support of his family and his community.  The case was concerned with a reduction in the period of release only from 60 per cent to 50 per cent, a matter that was affected by the provisions of s 227(2).  In fact, the only thing that the two cases have in common is that they both happened to concern a boy who had been found guilty of arson.
  8. The second case put before the learned judge was R v AAL .[5]  It is enough to state the facts of the case to demonstrate its irrelevance to any presently material issues.  The applicant was a 15 year old boy.  Although the offence the subject of the application was a fire that had not been set deliberately, the applicant was a boy who had a history of fire-setting.  In fact, he was on probation for lighting an unauthorised fire when he committed the offence in question, arson constituted by the destruction by fire of a valuable warehouse in Townsville.  The loss of property caused by the applicant was said to be in the order $3,000,000.  While awaiting sentence for this offence, he committed wilful damage by again setting a fire.
  9. R v C,[6] the third case drawn to his Honour’s attention, is similarly unhelpful.  The child in question had been dealt with, relevantly, for two offences of arson committed on different occasions.  The applicant had been a resident of Boys’ Town from the age of 10.  He was 14 when he committed the first arson by setting fire to a sofa in a room used as a communal lounge because he was resentful at the way somebody had treated him.  He regretted that impulse and tried to stop the fire but the building was destroyed.  While on bail for this offence, he and another child stole fuel canisters and set fire to a rubbish bin, a tree and a car.  The sentencing judge regarded the commission of the second arson while on bail for the first as the significant feature of the case.  The pre-sentence report disclosed that the applicant was suffering from “Klinefelter’s syndrome”.  This disorder results in learning and behavioural difficulties, including poor impulse control and lack of insight.  The sentence of detention was set aside.
  10. The final case to which his Honour was referred was R v HBE ,[7] a case about an Aboriginal boy, aged 13, who lived on Palm Island.  He had been associating with other young people who roamed the streets at night.  He and a group of his peers had broken into the local service station from which they stole cigarette lighters, food and drink.  They entered a Council building and the applicant began to play with the cigarette lighters.  In this way, recklessly but unintentionally, he set fire to the building which was destroyed.  Some months later he committed two offences of burglary.  He had only one prior offence in his history for shoplifting.  The sentenced imposed at first instance, one of six months detention for the arson offence, was set aside and replaced with a sentence of detention for the 69 days he had served.  Otherwise, he was placed on probation and ordered to perform community service.
  11. None of these cases can assist in the determination of the present case.  They certainly do not constitute a basis upon which to conclude that children who commit arson ought ordinarily be ordered to serve a period of detention.  The last two cases were against the prosecutor’s submission.
  12. The sentences in the four cases varied.  In BCI the sentence was one of 12 months detention with release after serving 60 per cent.  In AAL the sentence was three years detention with 50 per cent to be served.  In C the sentence was detention for 18 months with immediate release, a sentence that was set aside.  In HBE the sentence was 69 days (the time already served of an original sentence of six months).
  13. Consequently, even if the cases cited were really comparable in their facts to the present case, they did not demonstrate that the applicant would “ordinarily” face a sentence of between two to three years detention.  Even if the facts in those cases resulted in the respective offenders being ordered to serve two to three years detention, they would not have bound his Honour to impose a sentence of the same kind for two reasons.
  14. First, a sentence imposed in a particular case creates no binding precedent.  What may give rise to a precedent is a statement of principles that affect how the discretion should be exercised.[8]  Such a case was Police v Cadd .[9]  In that case the Full Court of South Australia laid down that in cases of offenders convicted of driving while disqualified, a sentence of imprisonment should be imposed “in the ordinary case of contumacious offending by a first offender” although the circumstances of a particular case may dictate some less severe punishment.[10]  This proposition was explained by reference to the fact that the offence of driving while disqualified eroded disqualification as a means of punishment, particularly because the offence would probably only be detected if the driver attracted the attention of police for some other reason.[11]
  15. None of the cases cited by the prosecutor and which were evidently relied upon by his Honour to support the sentence which he imposed established any such principle.  They were cases decided on their facts and nothing more.
  16. More importantly, they did not justify his Honour’s view that the “community would be justifiably outraged at the prospect of an offender effectively just serving a short period which could be the subject of the conditional release orders”.  A conditional release order was in fact made in two of the four cases.  Nor did the facts of this case justify his Honour’s opinion about the community’s probable outrage if the applicant were released.  On the contrary, to the extent that the community’s opinion was known, it was contained in the submission of the Community Justice Group, whose coordinator was willing to back up the submission orally if required, that the community expected and hoped that the applicant would be released immediately.
  17. None of the cases laid down any principle that arson was an offence that was so “egregious” that its gravity “overwhelmed” factors concerning rehabilitation.  In the case of a child sentenced under the provisions of the Youth Justice Act such a conclusion could only be reached after the particular facts of the case had been examined in detail against the requirements of the Act.  This is not a simple task but it is what the Act requires a judge to do.  It was not done in this case.
  18. It is incumbent upon a judge, who is considering imposing a sentence of detention, to give consideration, based on the materials before the court, as to whether a conditional release order would be adequate to serve all of the purposes of punishment.  This would have to involve a consideration of the facts and opinions contained in relevant reports of the nature and content of the “structured program” in which the child would be released and the nature and possible effectiveness of the conditions that could be imposed to prevent reoffending.
  19. The consideration of the adequacy of conditions to prevent reoffending is a familiar task that judges commonly have to undertake.  It is performed when considering whether to grant bail[12] and also when a court is considering whether to make an order under the Dangerous Prisoners (Sexual Offenders) Act 2003.[13]  Not infrequently, bail applications resolve into debate about whether particular conditions would or would not be likely to ensure that a person will not reoffend.
  20. If a conditional release order could be made that would serve the purposes of preventing reoffending and the development of the child into a law abiding adult, then detention could only be justified if the requirement to deter others from committing similar crimes or the retributive element of sentencing, or both of these together, outweigh the otherwise overwhelming weight which the Act says that a court must give to the aspects of personal deterrence and rehabilitation.
  21. It will be recalled that s 150(2)(e), s 208 and Youth Justice Principle 17 had been contained in the Act in its original form.[14]  These provisions, in the form into which they had evolved in the renamed Youth Justice Act, were repealed by the Youth Justice and Other Legislation Amendment Act 2014 . [15]  They were reinserted by the Youth Justice and Other Legislation Amendment Act (No. 1) 2016 . [16]  The injunction in the Act that detention is to be regarded as a sentence of last resort, to be imposed only when the court is positively satisfied that there is no other possible alternative, is, therefore, not merely a platitude or a bromide.  It is an emphatic parliamentary order enacted with express deliberation.
  22. Section 208 prescribes a process of reasoning for this purposes.  It states:

“A court may make a detention order against a child only if the court, after—

  1.  considering all other available sentences; and
  1.  taking into account the desirability of not holding a child in detention;

is satisfied that no other sentence is appropriate in the circumstances of the case.”

  1. A sentencing judge is obliged, therefore, to comply with s 208 and to explain that compliance in the sentencing remarks.
  2. This was a case in which the authors of the pre-sentence report, the members of the Woorabinda Community Justice Group, the Co-ordinator of Reconnect and the applicant’s parents were unanimous in asserting their opinion for reasons that were explained that a sentence that did not involve actual incarceration would conform to the requirements of the Act.  The factual bases for these opinions were not challenged by the prosecution by any evidence or by cross-examination although the parents were present in court, the coordinator of the Community Justice Group had made herself available by phone and the representative of Youth Justice was at the bar table.  The opinions and the facts which supported those opinions concerned matters which the Act stated were the predominant considerations for the court and which the court was obliged by statute to consider when exercising the sentencing discretion.  Whether the proposed option of a sentence of detention with conditional release would or would not be right as the final option before ordering actual detention was a matter that s 208 requires a judge to consider and which the general law requires be explained in adequate detail in a judge’s reasons.  They were not.
  3. The commission of the offence of arson may or may not call for imprisonment or detention.  An act of arson may endanger life or it may not.  It may cause the destruction of property, or it may endanger other property, of great value or of little value.  It may be committed recklessly, deliberately or foolishly.  It may be committed by a child or by an adult.  But, if it is committed by a child, its commission will invoke the application of the Youth Justice Act to the exclusion of other processes of sentencing.  All of those considerations, and other possibilities, may render an act of arson egregious or not and may or may not tend towards detention having to be imposed.
  4. However, it is of no use for the purposes of reasoning towards a sentence to describe the commission of the offence as “egregious” or “grave”.  These are merely catchwords and are not an aid to legal analysis.
  5. These errors of principle mean that the sentence must therefore be set aside and the discretion considered afresh.  In my view, his Honour also made several errors of fact.  These are more conveniently dealt with in the course of my reasons to explain the sentence that I think should be imposed.
  6. I turn to consider the question of conviction.
  7. Sections 183 and 184 provide as follows:

183 Recording of conviction

  1. Other than under this section, a conviction is not to be recorded against a child who is found guilty of an offence.
  2. If a court makes an order under section 175(1)(a) or (b), a conviction must not be recorded.
  3. If a court makes an order under section 175(1)(c) to (g) or 176 or 176A, the court may order that a conviction be recorded or decide that a conviction not be recorded.

184 Considerations whether or not to record conviction

  1. In considering whether or not to record a conviction, a court must have regard to all the circumstances of the case, including—
  1.  the nature of the offence; and
  1.  the child’s age and any previous convictions; and
  1.  the impact the recording of a conviction will have on the child’s chances of—
  1. rehabilitation generally; or
  2. finding or retaining employment.
  1. Except as otherwise provided by this or another Act, a finding of guilt without the recording of a conviction is not taken to be a conviction for any purpose.
  2. A finding of guilt against a child for an offence without the recording of a conviction stops a subsequent proceeding against the child for the same offence as if a conviction had been recorded.”
  1. Whether or not to record a conviction against a child is a separate matter that has to be considered.  While part of a sentence, a conviction can only be recorded pursuant to s 183 and then only after the court has had regard to all the circumstances of the case including three matters that are expressly stated:[17]
  1.  the nature of the offence; and
  1.  the child’s age and any previous convictions; and
  1.  the impact the recording of a conviction will have on the child’s chances of–
  1. rehabilitation generally; or
  2. finding or retaining employment.
  1. In the circumstances of this case, one of arson, the statute confers a discretion upon a court whether or not to record a conviction.  Like the principles that constrain the exercise of the sentencing discretion, the discretion to record a conviction emphasises the special considerations that inherently apply to the situation of a child but that are usually immaterial to the position of adults.  Predominantly, apart from the nature of the offence and the other circumstances of the case, which are objective past matters that must be given due weight, the other factors look to the child’s possible future.  Sections 184(1)(b) and 184(c) direct a court’s attention to the question of the child’s future chances to be a beneficial member of the community and requires a court to balance the possible deleterious effects of a recorded conviction while paying due regard to the circumstances of the offence.  It has been emphasised repeatedly by authorities of this Court that the starting premise is that no conviction should be recorded.[18]  That being the position, a sentencing judge must be satisfied positively after considering the matters that the statute mandates should be considered that the proper exercise of discretion is in favour of recording a conviction.  This is not a simple task as the cases considered by this Court have shown.  In R v KU and Ors [19] a conviction was recorded in a case in which youths aged between 13 and 15, all with previous convictions, raped a 10 year old girl.  In R v JO ,[20] Holmes JA described the offence in R v KU as one that was “inherently so serious that a conviction must be recorded”.  Yet, in R v MBQ ,[21] an appeal by the Attorney-General, the Court refused to disturb a judge’s refusal to record a conviction in a case of penile-vaginal rape of a three year old by a 12 year old despite the Court’s observing that such an offence would “ordinarily suggest that the recording of a conviction is warranted”.[22]  And in R v DAU ,[23] an appeal by the Attorney-General, the Court refused to disturb a decision not to record a conviction in a rape case in which a two year period of detention had been ordered.
  2. The point of referring to these cases, and many others that could be cited, is that every case is different and requires an exact and rigorous examination of the factors that must be considered before the discretion to record a conviction is exercised.
  3. In my respectful opinion, his Honour’s reasons for recording a conviction against the applicant reveal five errors.
  4. First, his Honour based his decision once more upon the “egregiousness of the offending” and upon no other factors.  As I have already explained, such a description of the offence taken with all of its circumstances (if that is what his Honour meant) is not, of itself, a process of reasoning.  Such a statement constitutes a conclusion and, in this case, a conclusion the reasoning for which has not been revealed if it has been undertaken.
  5. Second, his Honour’s reference to this case as one “where detention having been warranted” is a reference to a matter which is not, without explanation, relevant to the exercise of discretion.  The question whether or not to record a conviction will arise in cases in which detention is not ordered and also in cases in which detention is ordered.  Many circumstances leading to a detention order will also justify the recording of a conviction.  However, the fact alone that detention is part of the punishment cannot do so.  Indeed, in an appropriate case the fact that detention has been ordered may result in a conclusion that a conviction should not also be recorded as a blight upon a child’s future.  It was erroneous to use the fact of detention having been ordered as a justification for recording a conviction.
  6. Third, s 184 requires a court specifically to have regard to certain factors.  Relevantly, they are the child’s age and previous criminal history, the impact that recording a conviction may have on the child’s prospects of rehabilitation and the impact that it may have upon the child’s finding or retaining employment.
  7. His Honour failed to consider these requirements of s 184.
  8. Fourth, even assuming that the offence of arson was so serious that its commission justified recording a conviction, the same cannot be said of the other two offences, one a minor stealing offence and the other an attempted break and enter with intent.  His Honour’s reasoning about the “egregiousness” of arson is incapable of explaining his decision to record convictions in respect of the other two offences.
  9. Fifth, failure to give reasons for the decision, if there were reasons for the decision, is itself an error.
  10. As a consequence the exercise of discretion to record a conviction also miscarried and the conviction must be set aside.
  11. The applicant was born on 4 July 2000.  He was therefore 15 when he committed these offences.  He was 16 at trial and sentence and he turned 17 a month or so ago.  His criminal history was rightly described by the learned sentencing judge as not a serious one.  It was that of a boy who, in company with other mischievous, bored boys of various ages used the night hours of weekends to get up to no good.  It was inevitable that the behaviour of one or two of these would escalate into truly criminal conduct, either at a young age or at a point of greater maturity.  The applicant is one such and it is fortunate for the community and also for the applicant that the offence that he committed, one of the most serious of property offences, resulted in the destruction only of a single building and of no other property.  One of the characteristics of arson that makes it such a serious offence is the potential of criminal destruction by fire to cause injury or death.  Thankfully, as the learned judge observed, injury was not a factor in this particular case.
  12. It is clear that when the applicant committed this crime he was an immature boy with not much insight into his behaviour, his responsibility for that behaviour or the consequences of his behaviour to others.  His immaturity is also evidenced by the learned judge’s acceptance of the submission that the applicant was a follower, liable to be much influenced by others.
  13. He has hurt his community, his friends and his parents.  But it is not right, in my respectful opinion, to describe the applicant as the prosecutor did at sentence, as a boy with an “obvious propensity for antisocial and criminal behaviours” that “accord with his blatant disregard for other people’s property and people and authority”.  Even if that were a true representation of his character, personality and attitudes, it would merely raise the question of how those propensities might be best ameliorated.  Dyslogistic and emotional expressions rarely assist a court because they do not aid clear reasoning.  They distract a decision maker from the actual issues that must be considered.  That is, of course, the very purpose of arguments based upon the use of such expressions; they are intended to engage the emotions.
  14. It is exactly to ensure that the applicant does not become a man with a propensity for antisocial and criminal behaviours and that he does not mature into an individual who has a “blatant”, that is to say, a shameless and undisguised disregard, for people and their property that the Act makes detention an option that may only be considered after each and every other option has been ruled out.  Detention is a punishment that might well, as the learned judge recognised, result in a child being exposed to experiences that may wreck and disfigure a child’s transition to adulthood.  This is not an outcome that benefits the community, in aid of which the principles of the Act operate.
  15. The Act requires that other solutions be actually considered and, if appropriate, attempted as the means to adapt a child’s likely behaviour before the last, the worst, the harshest and, usually, the least effective and bluntest instrument, detention, is applied.
  16. In the case of the applicant, I also respectfully disagree with the submission made at sentence that the applicant had “failed to take advantage of the opportunities” that had been offered to him in the past.  It is true that he offended after having served periods of probation.  But it is also true that he did not, until the most recent offences, ever offend while on probation.  He is a boy who, according to the evidence, has had a bad educational history.  In the ten years until trial he had attended ten schools .  It is not known what these “opportunities” are apart from probation and orders to perform community service that have been offered to him and which, on the prosecution case, he has squandered.
  17. As I have said, until trial at least, he lacked insight into his behaviour and, therefore, showed no remorse.  This can be a most aggravating factor when an appropriate sentence for an adult is under consideration.  In the case of a child, it is a factor that must be considered with an offender’s age, actual maturity, education, intelligence and social situation.  In the case of the applicant, his particular circumstances render his lack of insight unsurprising.  I do not think that detention would constitute a moment of enlightenment for him.
  18. I would not regard the applicant as a boy who would have no future unless the harsh experience of detention coupled with a record containing a conviction for arson grants him the inner resources to improve his life.
  19. On the contrary, while the actual contents of his own mind and imaginings are not known directly, they can be inferred from their effect upon those who have spent time with him, by reason of their relationship to him or by reason of their professional obligation to understand his predicament.
  20. As I have said, the opinion of a Community Justice Group is a matter of great weight.  It is not merely an opinion volunteered on behalf of an offender’s community.  It has a statutory basis.  Parliament has expressed its intention that the views of Aboriginal communities are to be taken into account when sentencing children.  One of the ways such views can be formed and communicated is by the carrying out of the statutory functions of the Community Justice Group.  It must be accepted, unless the contrary is shown, that such views as a Community Justice Group offers to a court are views that are the result of knowledge of, or consultation with, members of the actual community whose opinions are of value.
  21. Not only does the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 impose upon such group a function, and an accompanying duty in appropriate cases, to take part in sentencing, but s 150(1)(g) makes it mandatory for a court to have regard to such submissions as might be made.  Youth Justice Principle 13 reinforces the great importance of their views.  This would follow in any event, even in the absence of those two provisions, because of the insistence of the Youth Justice Act that all efforts be made by a court to determine whether and how a community based solution might be offered.
  22. In this case, the Woorabinda Youth Justice Group took a very active part in the proceedings.  They furnished a report that considered the applicant’s particular situation.  The conclusion the Group offered, subject to the Court’s cognisance of a wider set of relevant circumstances, was that its members did not consider that he was at risk of reoffending for a number of reasons.  He had suffered some heavy consequences because of his offending.  He has had to leave Woorabinda, the traditional home of his family, members of the Wadja Wadja, the owners of the land there, to live with his grandmother in Rockhampton.  He has been anxious in detention while awaiting sentence, calling his parents many times a day.  He was in detention from the end of the trial on 29 November 2015 until sentence on 17 January 2016.  The reason for the necessity for that detention, despite the statutory strictures of the Act against detaining children, were not an issue on appeal and, as a result, were neither explained nor explored.  Since the applicant does not seem to have been a flight risk, that reason remains a mystery.  The Woorabinda Community Justice Group considered that the detention that he was ordered to serve before sentence was already a significant part of the punishment the applicant had to bear.
  23. The Woorabinda Youth Justice Group emphasised the role that the applicant’s family and his community wanted to play in his rehabilitation.  His uncle had a full time job ready for him.  His father had enrolled him in the local football club, of which the applicant’s father was already an honoured member.  The Men’s Group would engage with him by inducting the applicant into his culture.  This would also involve counselling by elders, whom the applicant was likely to respect, about ways to deal with anger and laziness.  The Men’s Group aims to develop a sense of self-worth in boys.  Of course, such a sense cannot come without insight, a faculty that the applicant is said to lack and that was involved in his offending and his response to his offending but that such programs sought to engender.  In short, the programs anticipated by the Woorabinda Youth Justice Group were programs that were directed precisely to the situation of the applicant’s offending, his history and his place in the community.
  24. The report was dealt with briefly in submissions.  The only part of its contents that was referred to was the part that dealt with the lack of value of the destroyed building.  Neither counsel in submissions nor the judge in his reasons referred to the other, crucial, opinions offered by the Woorabinda Youth Justice Group.  The submission of the Woorabinda Youth Justice Group was tendered by the applicant’s counsel as “the culture report from Ms Tilberoo” and his Honour observed that he had read Ms Tilberoo’s “statement” but that “it’s not really a report”.  After it was marked as an exhibit,[24] his Honour remarked that Ms Tilberoo “just talks about the building having a great deal of value, I think, doesn’t she?”  Discussion then turned to the question of the building’s value and the significance of value for sentencing.  The rest of the report was never referred to in the course of argument or in the sentencing remarks.  This was a failure to take into account relevant considerations and was, therefore, an error in the exercise of discretion.
  25. The applicant’s counsel also tendered a letter from Ms Michelle Richards, the Program Coordinator of “Reconnect”, which she describes as an Indigenous youth healing program.
  26. The nature of these programs was explained in the tendered document at length.
  27. The submissions from Ms Tilberoo and from Ms Richards were, and are, directly relevant to why a non-custodial order would be better than detention in promoting a child’s ability to reintegrate into the community.  They are directly relevant to the question whether the applicant’s rehabilitation would be assisted by opportunities to engage in educational programs.  They are directly relevant to dealing with the applicant in a way that will give him the opportunity to develop in responsible, beneficial and socially acceptable ways.  They offer a definite way of dealing with the applicant that involves his community.  They offer a way in which the applicant can be reintegrated into the community.  They invite attention to ways in which the applicant can be held accountable and encouraged to accept responsibility for his offending behaviour.
  28. In short, these written submissions directly addressed the Youth Justice Principles that a court is positively enjoined to take into account and must have been written with the Principles in mind.  In my respectful opinion, it was an error to dismiss their significance, as the learned judge did, by referring to the submissions from Ms Tilberoo and Ms Richards as being relevant only to “certain cultural aspects relevant to sentence that has to be imposed”.  The Youth Justice Principles and the provisions of s 150 are not merely “certain cultural aspects”.  Their centrality to the task of sentencing does not depend upon the offender’s being merely Indigenous.  They are directly relevant to the applicant’s situation as a child offender and constitute some of the very reasons why detention ought not be ordered.
  29. The authorship of the submissions by the leadership of an Aboriginal community did not result in the submissions themselves being referable merely to “certain cultural aspects” of the sentencing discretion.
  30. To these independent submissions must be added the silent submission that the applicant’s parents made by their support of their son after he was charged and also by their attendance at court for the sentence.  They were willing to dislocate themselves from their home and from their family ties to Woorabinda in order to be with their son in Rockhampton at a time when he most needed their presence.  Their support is also found in their willingness to move to Rockhampton permanently to ensure a safe place for their son to grow.  According to the (unchallenged) presentence report, in Rockhampton he has disassociated himself from the influence of his peers with whom he committed all of his offences.  In the same way, his parents’ engagement with their son is evidenced by the applicant’s father’s sponsorship of him into his own football club.  Moral support of this kind also comes from the applicant’s uncle, with a promise of employment.  It is axiomatic that a home, a strong family bond and honourable work are among the most powerful factors against reoffending.
  31. I would respectfully disagree emphatically with the opinion expressed by the learned judge that the applicant has been “a great disappointment” to his parents.  His offending was undoubtedly a source of great pain for them.  However, the evidence is entirely against their son having been a disappointment to them.  Moreover, to the extent that it moved the learned judge to impose a sentence of detention, his Honour’s opinion that detention was “an element of separation” that would “assist them” was utterly without foundation in the evidence and was a statement that should not have been made while they were in court hoping for their son’s release.
  32. The presentence report and the other submissions, as well as the attitude of the applicant’s parents and relatives, were all unanimous in the opinion that the applicant was a suitable candidate for immediate release and that there were appropriate programs and supports for him that had real prospects of altering his behaviour for the betterment of the community.  The opinions that were expressed were based upon facts that were stated and that themselves were plausible and were not challenged.[25]  The opinions based upon those facts were also not challenged or contradicted.  Yet they were barely referred to and no reasons were given for discounting them in favour of detention.  It was an error not to consider them.[26]
  33. In the statutory context, they raised a requirement for an exigent response before the final option of detention could properly be applied in the exercise of the sentencing discretion conferred, and also constrained, by the Act.
  34. The statutory factors direct a judge’s attention primarily at the possible future of the particular child rather than at the elements of retribution demanded by the community and the element of deterring other offenders.  I have already sought to explain why this must be so in the interests of the community’s safety itself as well as the interest of the community in fostering the growth of socially acceptable adults.  For those reasons, even in the case of serious offences such as arson, the appropriate exercise of discretion may often result in children avoiding a sentence of detention for offences of a kind for which imprisonment is the likely only option for adults.
  35. All of the material tendered on sentencing demonstrates that, despite the seriousness of the offence of arson itself, the applicant is capable of responding well to the support that he has been offered.  He has reached a determining point in his young life, the point at which he is about to become a man.  His community elders, his family and the representatives of the justice system have all offered distinct pathways for him to follow that can lead to a happy and honourable life.  By their submissions, they have expressed their faith in him.  There was nothing in this case that called for the applicant’s lengthy detention.  There was nothing that suggests that such detention could possibly have served any useful purpose.
  36. For these reasons, I agree with the sentence proposed by McMurdo JA.
  37. Notwithstanding that agreement, I would not wish this case to be considered as having determined that in cases of arson, or other serious indictable offences, the seriousness of the offence itself, as an offence, would dictate the necessity for an offender to serve a period of actual detention.  Rather, it must be recognised that the Youth Justice Act creates a unique sentencing code which is mandatory in its application and which, in particular cases, may result in sentences not involving incarceration despite the conspicuous seriousness of the actual offending.  That should be neither surprising nor disturbing.  The Youth Justice Act requires a judge to give crucial weight to the prospects of a child’s future in the ways provided for by the Act and in a way unknown to the process of sentencing adults.  In particular, the Act requires that a child’s prospect of maturing into a decent adult be the central factor in sentencing rather than either retribution or general deterrence, which remain relevant.  The Act rightly treats detention as the least effective tool available for this purpose in the case of children.  This is done, as I read the Act, not primarily for the personal benefit of the child offender or out of a sense of tenderness, but primarily for the benefit of the Queensland community as a whole and its interest in preventing continued offending.
  38. I must now consider whether a conviction should be recorded against the applicant.  The nature of the offence, as an offence, is serious.  However, that is but one factor.  As I have said, the destroyed building was old and was unused (although the insurer had to pay a large sum as a result of the offence).  No other property was at risk nor was there any chance of injury to anyone.  The applicant was not only young.  He was also immature and prone to follow the lead of others.  He is said to be unlikely to reoffend – by those who should know and who were not challenged in their opinions in this respect.  He had the offer of work.  He was very young in January 2016 and is still very young.  If he does well, as his supporters expect, this sentence will close this troubling chapter of his life.  I can see no possible purpose in branding him for life as a convicted arsonist.  It would be likely to hamper presently unforeseeable efforts of his to advance himself and will undoubtedly blight his future prospects of employment and therefore his future, for no gain to anyone.
  39. I therefore agree with the orders proposed by McMurdo JA.
  40. MORRISON JA:  I have read the reasons of McMurdo JA and agree with those reasons and the orders his Honour proposes.
  41. McMURDO JA:  This is an application for leave to appeal against sentences imposed in the Childrens Court upon a boy who was then aged 16 years.  The sentences were for concurrent periods of detention, ranging from one month to two years, for offences of attempting to enter premises with an intent to commit an indictable offence, stealing and arson.  The offences were committed when the applicant was aged 15 years.  The relevant facts and circumstances, as well as the applicant’s background and previous offending, are set out in the judgment of the President.  It was ordered that he be released from custody after serving one half of his period of detention.  It was further ordered that the convictions be recorded.
  42. In the application filed in this Court, the sole ground of the proposed appeal was said to be that “the sentence” was manifestly excessive.  That complaint was narrowed in the applicant’s outline of argument and oral submissions.  It became confined to a challenge to the order that the convictions be recorded.  A challenge to the sentences, save for the recording of the convictions, was expressly disavowed.[27]
  43. After the hearing, in which the Court received full argument on the merits of the proposed appeal against the recording of the convictions, the parties were asked to address questions which related to the sentence of two years for the offence of arson.  In his sentencing reasons, the judge said “[t]hat ordinarily, you have a head sentence in the order of two to three years [detention].”  The parties were asked to provide written submissions as to whether that sentence was premised upon the proposition that a head sentence in the order or two to three years was “the norm”, and if so, “whether that proposition was sound in view of the authorities cited [by the prosecutor in the Childrens Court]?”
  44. The Court has received those written submissions.  For the applicant, it is submitted that the first of those questions should be answered “yes” and the second should be answered “no”.  It is submitted now that the appropriate order was one for a period of 18 months’ detention, with release after serving nine months.
  45. The respondent argues that the first question should be answered “no” and that in any case, the sentence which was imposed was supported by the comparable cases to which the judge was referred.  Further, the respondent argues that the judge took into account all relevant considerations, including the relevant principles of sentencing pursuant to the Youth Justice Act 1992 (Qld) (“the Act”).[28]

Comparable Cases

  1. In her submissions to the sentencing judge, the prosecutor cited four decisions of this Court as comparable cases.  The first in time was R v C ,[29] in which a teenage boy who had committed two offences of arson and offences of stealing and wilful damage to property, was sentenced in the Childrens Court to a term of two years’ detention.  He was aged 14 when offending and 15 when sentenced.  He pleaded guilty and had no prior criminal history.  This Court held that the term of two years was manifestly excessive and substituted a term of 18 months, with immediate release, the boy having been 75 days in detention.
  2. The next case was R v AAL ,[30] where the applicant had been sentenced to three years detention for an offence of arson which was committed when he was aged 15.  He was 18 when sentenced.  He had a history of offending involving property and dishonesty offences.  At the time of this offence, he was subject to a probation order for lighting an unauthorised fire and associated offences.  In the subject offence, he destroyed a building in which businesses had been conducted, resulting in losses of the order of three million dollars.  He was sentenced upon the basis that this was a reckless rather than a deliberate destruction of the building.  He had already spent more than a year in detention when he was originally sentenced.  An important mitigating factor, apparently overlooked by the sentencing judge, was that without his confession, the matter may have remained unresolved by the police.[31]  This Court varied the sentence by ordering that he be released after having served one half of the three year term, rather than 70 per cent of it as originally ordered.
  3. The third case was R v HBE,[32] which involved offences of arson, burglary and receiving tainted property, committed by a 13 year old boy.  He had no history of offending.  The arson caused damage in excess of $200,000.  In the Childrens Court he was ordered to serve six months in detention for that offence and four months’ detention to be served concurrently for an offence of burglary, as well as two years of probation for other offending.  This Court substituted a sentence of 69 days in detention for the arson offence and a community service order of 100 hours for the burglary offence.  The probation order for the other offending remained.  No conviction was recorded.
  4. The fourth case was R v BCI ,[33] where a 16 year old was sentenced to 12 months detention with an order for release after serving 60 per cent of that period, for an offence of the arson of a motor vehicle worth $54,000.  The sentencing judge accepted that the applicant was not the main culprit and that his admissions to police had both revealed his own offending and identified other offenders, with some retaliation by them towards him.  The applicant did not challenge the order of 12 months detention, but argued that he should have been required to serve 50 per cent rather than 60 per cent of that period.  This Court refused the application for leave to appeal, the sentence not being manifestly excessive.
  5. These cases were cited by the prosecutor towards the end of her submissions.  She introduced them by saying that they were “useful enough to support my submission that no other sentence is appropriate but detention.”  That was something of an overstatement, but the cases were relevant.  Sentences in other cases can be relevant although there are material differences between them and the present case.  The prosecutor then said that there were no special circumstances which might persuade the judge that the applicant should serve less than 70 per cent of his period in detention.[34]  After making submissions about these four cases, she concluded her argument before the judge asked her whether she wished to directly address the recommendations of the pre-sentence report, which the judge had received under s 151 of the ActThe report said, amongst other things, that the applicant was suitable to be released under a conditional release order.  The judge pointed out to the prosecutor that her submissions were contrary to that recommendation.  The prosecutor responded that “as far as the Crown is concerned, the only available option to you today is to order a detention, nothing less than that.”  There was then this exchange between the judge and the prosecutor:

“HIS HONOUR:  So something in the order of two to three years?

PROSECUTOR:  That’s so.

HIS HONOUR:  Thank you.

PROSECUTOR:  There is absolutely nothing, in my respectful submission, to suggest that immediate release order is appropriate and in line with any of the Court of Appeal decisions that you will see today.

HIS HONOUR:  No, no.

PROSECUTOR:  So that, then, puts aside any community-based order that the other parties might deem appropriate, given significant seriousness of the offending but also his shocking criminal history for someone so young.”

  1. The judge was not there saying that a sentence of two to three years’ detention was a “norm” or “ordinary.”  Rather he was suggesting a range of outcomes which would accord with the prosecutor’s submissions.
  2. However a range of two to three years’ detention was then mentioned in the judge’s sentencing reasons.  Curiously, it was mentioned after the orders were pronounced (save for the order that the convictions be recorded).  The judge said:

“Can I say that I have given particular consideration to the prospect of a conditional release order, which could have seen you released today. But I think, respectfully, that such an order would have been disproportionate, having regard to the gravity of the offending. That ordinarily, you have a head sentence in the order of two to three years. I think the community would be justifiably outraged at the prospect of an offender effectively just serving a short period which would be the subject of the conditional release orders. I also gave very serious consideration to a detention probation order, but I’m afraid I have little faith in the prospect of probation as being as of much assistance in terms of post-release supervision, having regard to your failure on previous occasions to cooperate with the probation authorities.”

  1. Even in context, the sentence which I have emphasised is difficult to interpret.  Was the judge saying that there was a “norm”, in the sense of a range within which, ordinarily, like offenders were sentenced?  If so, was the judge indicating that he was bound to sentence within that range?  Or was the judge saying that by the application of the relevant sentencing principles to the facts and circumstances of this case, in the ordinary way, a sentence of two to three years was appropriate?
  2. If his statement is understood in that first way, it would reveal an error, at least because the cases which had been advanced as comparable sentences did not, in any sense reveal such a range.  If understood in the second way, the statements would reveal a further error, in that it would offend, in particular, what was said by the plurality in Barbaro v The Queen as follows:[35]

“[I]n seeking consistency sentencing judges must have regard to what has been done in other cases.  Those other cases may well establish a range of sentences which have been imposed.  But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion.  The history stands as a yardstick against which to examine the proposed sentence.”

  1. That the sentencing judge was reasoning in one or both of those erroneous ways should not be readily inferred.  Rather, the statement should be understood in the third way which I have described.  I am fortified in that view by the judge’s analysis which had preceded it, where in discussing the sentencing principles and the facts and circumstances of this case, the judge said only this of comparable cases:

“I’m also mindful of the need to assist in your reintegration into the community, and of course to ensure that the sentence – that does involve detention – is one only of a last resort and for the least time that can be justified in the circumstances. However, you heard the debate this morning about what other courts have done in cases like this. In my view, it seems that a sentence of detention is a sentence which is appropriate – that is no other sentence but detention is appropriate, having regard to the egregiousness of the offending. In particular, I’m mindful of the quantum of damage involved – that is, the nature of the structure that was burnt – and the element of premeditation, both elements which I think distinguish this case from many of the other cases that were placed before me.”

That passage is inconsistent with there being, in the judge’s mind, some range of sentences which was established by comparable cases.  The cases cited by the prosecutor did not suggest such a range, thereby making it unlikely that a sentencing judge would think that they did.  Instead, the judge distinguished this case from at least some of them.  In the judge’s view, the other cases were relevant because some were examples of where courts, including this Court, had accepted that a sentence of detention for a teenager who had committed an offence of arson, was required.

  1. Consequently, the respondent’s submissions in answer to the specific questions by the court should be accepted.  However, I am unable to accept the respondent’s supplementary argument, insofar as it contends, with some detail, that the sentencing remarks demonstrate that the judge took into account all of the relevant principles of sentencing under the Act.

Sentencing under the Youth Justice Act

  1. In sentencing a child for an offence, a court must have regard to the sentencing principles prescribed by s 150 of the Act.  Subject to the Act, the court must also apply the “general principles applying to the sentencing of all persons”.[36]  In that way, it can be relevant in the sentencing of a child under the Act to consider the purposes for which sentences may be imposed, namely punishment, rehabilitation, personal and general deterrence, denunciation and the protection of the community.  The sentencing of offenders commonly involves a tension between those purposes, or some of them, which is resolved by the court giving each of them an importance, relative to one another, which is appropriate for the facts and circumstances of the individual case.
  2. That balancing exercise must be undertaken in the sentencing of children under the Act, but with some important differences, of which it is necessary here to discuss only two.
  3. The first, which is prescribed by s 150(2)(a) of the Act, is that a child’s age is a mitigating factor in determining whether or not to impose a penalty and the nature of the penalty imposed.  This provision, which has been in the statute since its enactment in 1992,[37] recognises the relevance of the child’s age for the consideration of all or any of the purposes to be served by a sentence.  It necessarily affects the weight to be given to the objects of punishment, denunciation and deterrence and thereby lessens their importance relative to the object of rehabilitation.
  4. The second difference, which is related to the first, is that by further provisions of the Act, rehabilitation is given an importance which it need not have in the case of an adult offender.  Those provisions, operating in conjunction, are within these paragraphs of s 150(2):

“(b) a non-custodial order is better than detention in promoting a child’s ability to reintegrate into the community; and

  1.  the rehabilitation of a child found guilty of an offence is greatly assisted by –
  1.  the child’s family; and
  1.  opportunities to engage in educational programs and employment; and

  1.  a detention order should be imposed only as a last resort and for the shortest appropriate period.”
  1. The judge in this case was well aware of the third of those requirements.  However the same cannot be said of the others.  Moreover, the judge made a finding which was inconsistent with the first of them.  This occurred when the judge adverted to what he acknowledged as a “serious risk” that in detention, the applicant would be exposed to people who would educate him in other criminal activity.  The judge then said:

“However, I think that risk has to be tempered and measured against the other more positive rehabilitative aspects of a detention period, which would include you getting some education and your compulsory contribution and engagement in rehabilitation programs …”

  1. Education programs are provided in the detention centres although, it seems, not compulsorily for a boy of his age.[38]  However, this reasoning was inconsistent with the prescribed consideration that a non-custodial order is better than detention in promoting a child’s ability to reintegrate into the community.  In this, the legislation is in clear and mandatory terms.  Again, the Act has contained this provision since 1992.  In some cases a child offender must be detained.  But where that is necessary, it will not be for a rehabilitative purpose.
  2. This was an error of law which necessarily affected the weighing of the purposes to be served by the sentence.  The respondent’s submission that the judge took into account all of the relevant principles of sentencing pursuant to the Act cannot be accepted.  For that reason the appropriate sentence should now be set by this Court.
  3. I accept that it was within the discretionary power of the judge, if acting in accordance with the relevant principles of sentencing, to impose a period of detention in this case.  It is therefore open to this Court to do the same.  In my view, however, the further detention of the applicant, beyond the present time, cannot be justified.  The applicant was sentenced on 17 January 2017.  As the judge declared, he had been in custody for 50 days prior to being sentenced, which had to be included in his period of detention.  That period, and any period substituted by this Court, will have commenced on 29 November 2016.  Consequently, he has now been detained for more than nine months.
  4. By s 227(1), unless a court makes an order under s 227(2), a child sentenced to serve a period of detention must be released from detention after serving 70 per cent of the period of detention.  In my conclusion a sentence of 12 months’ detention is appropriate.  Under that sentence, the applicant would be entitled to be released already, with the Chief Executive at the same time making a supervised release order under s 228(1).

Recording the convictions

  1. The judge had apparently completed his sentencing remarks and the pronouncement of the orders when he asked whether there were “any other matters?”  The prosecutor and the applicant’s counsel said that there were not, but a representative of Youth Justice asked whether the judge had “given consideration to [the recording of] convictions?”  The judge then said:

“Thank you for reminding me of that. I have considered convictions, and again while I’m conscious of the authorities that speak of convictions, in particular the decision R v RAO , I’ve come to the view that it is appropriate in this case to record convictions, having regard to the egregiousness of the offending. I’m conscious that, of course, often times it would not be – or that the – I should say the Youth Justice Act does require a more lenient treatment, but I think in this instance – and – sorry, I should say – I’ll withdraw that. I’ll start again. In – it’s R v TX I was thinking of. It’s a prima facie position that a conviction is not to be recorded against a child, but I think having regard to the egregiousness of the offending, this is an instance where detention having being warranted, it is appropriate to record convictions.”

  1. The present case fell with s 183(3) of the Act, so that the court was able to “order that a conviction be recorded or decide that a conviction not be recorded.”  The necessary considerations for the court in that respect were prescribed by s 184(1) as follows:
  1. "(1)
    In considering whether or not to record a conviction, a court must have regard to all the circumstances of the case, including-
  1.  the nature of the offence; and
  1.  the child’s age and any previous convictions; and
  1.  the impact the recording of a conviction will have on the child’s chances of –
  1.  rehabilitation generally; or
  1.  finding or retaining employment.”
  1. Of those considerations, the only one which was considered again in this respect was “the nature of the offence.”  Of course the judge had referred to the child’s age and any previous convictions.  But they had to be considered in the particular context of the decision under s 183(3).  More importantly perhaps, there was no consideration of the impact which the recording of a conviction would have on the child’s chances of rehabilitation generally or finding or retaining employment.  Consequently, the exercise of the discretion miscarried and this Court must decide on the matter.
  2. The impact of the recording of a conviction necessarily involves a degree of speculation.  Nevertheless, the likelihood that the recording of a conviction, especially for an offence as serious as arson, would detrimentally affect his rehabilitation and his finding or retaining employment is undoubtedly high.  Clearly there is a connection between his chances of finding or retaining employment and his chances of rehabilitation.  It is unnecessary to consider particular types of work in which the applicant might be affected; the conviction for arson, without an appreciation of the mitigating circumstances of the applicant’s case, would deter many an employer.
  3. I agree with the sentencing judge that this was a serious offence, even when committed by a 15 year old.  It is also relevant that he had offended previously.  But balancing the relevant considerations, in my view, the likely impact upon his future employment and his rehabilitation, from the recording of the convictions, could be so serious that the convictions should not be recorded.

Orders

  1. I would order as follows:
    1. Grant leave to appeal.
    2. Set aside the order that convictions of the three offences on the indictment be recorded, and substitute an order that the convictions not be recorded.
    3. Set aside the sentence for count three on the indictment and substitute a sentence that the applicant be detained for a period of 12 months, commencing on 29 November 2016.

Footnotes

[1]  Section 461 of the Criminal Code provides for a maximum of life imprisonment for the offence of arson.

[2] Jamieson v The Queen (1992) 60 A Crim R 68 at 80; Lee AJ and Hope AJA agreed.

[3]  Section 222.

[4]  [2012] QCA 253.

[5]  [2010] QCA 146.

[6]  [2001] QCA 552.

[7]  [2011] QCA 378.

[8] R v Wong (2001) 207 CLR 584 at [57] per Gaudron, Gummow and Hayne JJ.

[9]  (1997) 69 SASR 150.

[10] Cadd, supra, at 171.

[11] Cadd, supra, at 162.

[12]  see Bail Act 1980, s 11(2).

[13]  see Dangerous Prisoners (Sexual Offenders) Act 2003, ss 13(6)(b) and 16(2).

[14]  see Juvenile Justice Act 1992, ss 4 (b) and 109(2)(e).

[15]  see ss 9, 12 and 25.

[16]  see ss 16, 26 and 56.

[17]  see Youth Justice Act 1992 (Qld), s 184.

[18] R v B [1995] QCA 231; R v JO [2008] QCA 260; R v SBP [2009] QCA 408; R v SBR [2010] QCA 94.

[19] R v KU & Ors; Ex parte Attorney-General (Qld) (No 2) [2008] QCA 154.

[20] supra, at [14].

[21] R v MBQ; ex parte Attorney-General (Qld) [2012] QCA 202.

[22]  per McMurdo P at [50].

[23] R v DAU; ex parte Attorney-General (Qld) [2009] QCA 244.

[24]  As “The Cultural Report.

[25]  see s 132C of the Evidence Act 1977 (Qld).

[26] cf. Anderson v The Queen [1972] AC 100; R v Tobin [1978] 1 NZLR 423.

[27]  Applicant’s outline of argument paragraph 1.

[28]  Respondent’s supplementary written submission paragraph 8.

[29]  [2001] QCA 552.

[30]  [2010] QCA 146.

[31] AB v The Queen (1999) 198 CLR 111 at [113].

[32]  [2011] QCA 378.

[33]  [2012] QCA 253.

[34]  That being the default position according to s 227(1) of the Youth Justice Act 1992 (Qld).

[35]  (2014) 253 CLR 58 at 74 [41].

[36]  s 150(1)(a).

[37]  As the Juvenile Justice Act 1992 (Qld).

[38]   ARB 76.

Close

Editorial Notes

  • Published Case Name:

    R v SCU

  • Shortened Case Name:

    R v SCU

  • MNC:

    [2017] QCA 198

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Morrison JA, McMurdo JA

  • Date:

    08 Sep 2017

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC17/16 (No Citation)17 Jan 2017Date of Sentence (Burnett DCJ)
Appeal Determined (QCA)[2017] QCA 19808 Sep 2017-

Appeal Status

Appeal Determined (QCA)
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