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  • Unreported Judgment

R v MKM

 

[2018] QCA 233

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v MKM [2018] QCA 233

PARTIES:

R
v
MKM
(applicant)

FILE NO/S:

CA No 301 of 2017

DC No 150 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Brisbane – Date of Sentence: 26 October 2017 (Farr SC DCJ)

DELIVERED ON:

25 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

23 July 2018

JUDGES:

Sofronoff P and Gotterson JA and Bond J

ORDER:

Leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – GROUNDS FOR INTERFERENCE – where the applicant pleaded guilty to a series of offences committed on several dates – where the applicant was 15 years old at the time of offending – where the learned sentencing judge determined that the most serious counts were one count of unlawful entry into a vehicle with intent to commit an indictable offence using actual violence, while armed with a dangerous weapon and in company with other person, and one count of robbery while armed with an offensive instrument – where the learned sentencing judge recorded convictions in respect of those two most serious counts – where the applicant had a lengthy criminal history – where the applicant was under the influence of methamphetamines at the time of offending – where the applicant demonstrated insight into her offending and remorse prior to sentencing – where the applicant submits that the learned sentencing judge erred in recording convictions in respect of the two most serious counts – where the applicant submits that the learned sentencing judge erred in considering that the seriousness of the offending overwhelmed other considerations – where the prima facie position is that a conviction should not be recorded in respect of offences committed by children – whether the learned sentencing judge erred in his Honour’s exercise of the sentencing discretion by recording convictions in respect of the two most serious counts

Youth Justice Act 1992 (Qld), s 184

R v SCU [2017] QCA 198, cited

COUNSEL:

A O’Brien for the applicant (pro bono)

D C Boyle for the respondent

SOLICITORS:

No appearance for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  On 26 October 2017 the applicant pleaded guilty before Farr SC DCJ to a series of offences committed on several dates.  In respect of two of these offences Farr SC DCJ exercised his discretion to record convictions.  The applicant now appeals only against his Honour’s decision to record those convictions and not against the penalties otherwise.
  2. [2]
    The offences to which the applicant pleaded guilty were contained in three indictments.[1]  For the purposes of this application it is only necessary to refer to indictment 150/17 which contained the counts in respect of which convictions were recorded.  The counts were as follows:

Count 1: Unlawful assault causing bodily harm while armed with an offensive instrument.

Count 2: Unlawful entry into a vehicle with intent to commit an indictable offence using actual violence, while armed with a dangerous weapon and in company with other person.

Count 3: Unlawful use of a motor vehicle without the owner’s consent.

Count 4: Stealing a laptop computer and a Nintendo 3DS console.

Count 5: Stealing a sum of money and a bankcard.

Count 6: Unlawful use of a motor vehicle without the consent of the owner and using the motor vehicle to facilitate the commission of an indictable offence.

Count 7: Robbery while armed with an offensive instrument.

Count 8: Entering a dwelling and stealing a quantity of jewellery.

  1. [3]
    Count 1 was committed on 28 November 2016.  Counts 2, 3, 4 and 5 were all committed on 12 February 2017.  Counts 6, 7 and 8 were all committed on 17 February 2017.
  2. [4]
    Farr SC DCJ imposed sentences of detention of varying lengths in respect of all counts.  In respect of counts 1, 3, 4, 5, 6 and 8 the penalties were imposed in respect of counts contained in the other indictments as well.  The periods of detention ranged from three months to six months and are not challenged.
  3. [5]
    In respect of counts 2 and 7, which the learned judge rightly considered the most serious of the offences committed by the applicant, the applicant was sentenced to detention for 20 months.
  4. [6]
    All terms of detention were to be served concurrently.  His Honour made an order that the applicant was to serve 50 per cent of all periods of detention.  In respect of counts 2 and 7 Farr SC DCJ ordered that convictions be recorded.  It is against that last order that the applicant seeks leave to appeal.
  5. [7]
    Count 1, the charge of assault occasioning bodily harm, was committed in November 2016 when the applicant hit a youth worker at the Brisbane Youth Detention Centre twice on the head with a water bottle causing pain, contusions and haematomas.
  6. [8]
    The applicant then committed a series of offences on 12 February 2017.  Together with two accomplices, the applicant approached two people sitting in a car.  The applicant was armed with a knife 30 cm long.  She ordered the owner of the car to get out.  When the owner, a female, froze with fear the applicant attempted physically to remove her from the car.  As the efforts to get this woman out of the car progressed, the applicant’s knife scratched her.  One of the applicant’s co-offenders ordered the other occupant out of the car.  The three offenders then got into the car and drove away.  The applicant was driving.  On her way out of the car park she hit a pole and damaged the car.  The charges of stealing arose from the applicant’s taking of some of the contents of the car.  A laptop computer, a gaming console, money and bankcard were never returned.
  7. [9]
    The applicant was identified from CCTV footage.  She was arrested and admitted that she had been the person who held the knife during the course of the commission of the offence.  Otherwise she did not cooperate with police.  Upon her release, just five days later, she broke into a dwelling house and stole some jewellery.  Fingerprints that she left behind enabled her to be identified.  On the same day, just before midnight, she was in company with a number of people in a stolen car.  They stopped at a bus stop.  Two people were sitting there.  The applicant got out and asked them for some cigarettes.  The cigarettes were produced.  The applicant then returned to the car and, with a co-offender, confronted the two persons.  The co-offender used a knife or a screwdriver to threaten the two victims.  Together, they stole a wallet.
  8. [10]
    The offences charged in the other indictments were of a similar character.
  9. [11]
    Although the applicant was only 15 years old at the time of this offending, she already had a lengthy criminal history.  That history contained numerous instances of burglary, assault, entering premises and committing indictable offences therein, unlawful use of motor vehicles, trespass, wilful damage, stealing, failing to appear in accordance with an undertaking, fraud, receiving tainted property and a single drug offence.  In respect of these offences no conviction was ever recorded.  Instead, the applicant had been placed on a good behaviour bond, had been placed on probation, had been reprimanded or had been discharged with no further action taken.
  10. [12]
    A pre-sentence report stated that the applicant’s use of inhalants and methamphetamines had escalated over several years.  She had begun sniffing glue at the age of nine.  She began using methamphetamines when she was 15.  She was under the influence of methamphetamines when she committed these offences.
  11. [13]
    Her early years were spent in what was said to have been a “supportive and nurturing family environment”.  She lived a normal childhood until she was about 10 years old.  When the family relocated to the Logan area the applicant began to engage in “anti-social attitudes and behaviours” and “high-risk activities and offending behaviours”.  This was said to be due to the influence of her peers.  According to the pre-sentence report the applicant “reported that she freely decides to abscond from her mother’s care due to the fact that she harbours a dislike of the age-appropriate rules and boundaries that her mother attempts to implement within the family home”.
  12. [14]
    While in detention, it appears that the applicant has taken advantage of counselling offered to her.  She has expressed a desire to work towards rebuilding her relationship with her mother.  She has also expressed a desire to return to her education as soon as she is released from custody.  Such further education is said to be available.
  13. [15]
    All of these matters were before the learned sentencing judge and there is no suggestion that his Honour failed to take them into account.
  14. [16]
    His Honour expressed the view that the applicant had a “significant history for someone your age … a significant history for anyone, irrespective of their age.  For someone your age, it is remarkable and utterly disgraceful”.  His Honour observed that the applicant had many prior convictions for offences of violence.  She had had the benefit of a variety of Court orders short of incarceration and had “breached every one of them”.  His Honour said:

“You have now, over an extended period of time, demonstrated a complete disregard for the rights of others, the property of others and the welfare of others, as well as a complete disregard to Court orders and to the law.”

  1. [17]
    His Honour took into account that the author of the pre-sentence report considered that the applicant was “finally developing some maturity”.  He took into account her timely pleas of guilty.
  2. [18]
    His Honour concluded as follows:

“Taking into account your lengthy criminal history, the opportunities that have been afforded to you in the past, and the very serious nature of the two most serious offences that you are facing, and, of course, taking into account the provisions of section 184 of the Youth Justice Act in relation to the considerations relevant to the determination as to whether or not to record a conviction, I am of the view that for the two most serious charges that you are facing, it is appropriate – in fact, the only appropriate order would be to order that convictions be recorded for those two charges.  The charges are of such a serious nature, when considered in the full context of all relevant matters here, that the recording of a conviction is the only appropriate option that should be adopted.”

  1. [19]
    On behalf of the applicant Mr O’Brien of counsel, in the course of a careful submission, emphasised that the offences were unsophisticated and were of a kind in respect of which detection was inevitable.  They were, it was submitted, consistent with the behaviour of a person who was affected by methamphetamine.  Mr O’Brien submitted that personal deterrence was not a great factor in this case because of the developing maturity referred to in the pre-sentence report.
  2. [20]
    Ultimately, Mr O’Brien submitted that the primary judge “was not alive to those considerations”.  Mr O’Brien rightly acknowledged that the learned sentencing judge was aware of those considerations but, it is said that Farr SC DCJ erred because he considered that the seriousness of the offending overwhelmed other considerations.
  3. [21]
    In my respectful opinion this submission cannot be accepted.  The weight to be given to relevant factors is at the heart of the exercise of the sentencing discretion.  The submissions made on behalf of the applicant on this application were highly relevant to the exercise of that discretion but similar submissions were made and were taken into account at the sentence hearing.  However, they cannot, and do not, constitute submissions evidencing any error on the part of the sentencing judge.
  4. [22]
    The recording of a conviction in the case of a child is a serious thing.  For that reason, as Mr O’Brien correctly submitted, the prima facie position is that a conviction should not be recorded.[2]  However, s 184 of the Youth Justice Act 1992 requires that, when a court is considering whether or not to record a conviction, the court must have regard to the nature of the offence and any previous convictions.  The child’s age and the impact of the conviction upon the child’s chances of rehabilitation generally and on finding or retaining employment are also matters that must specifically be taken into account.  All of these matters were taken into account by Farr SC DCJ.  I would respectfully agree with his Honour’s characterisation of the offences as serious ones.  It must have been terrifying for the applicant’s victims to be confronted with stabbing weapons.  It may be accepted that the offences were carried out by her while under the influence of methamphetamine.  I am not persuaded that that is a mitigating factor.  It may be accepted that these offences were unsophisticated.  Robbery is an unsophisticated offence.
  5. [23]
    Having regard to the seriousness of these two offences, the fact that there were committed in the course of the commission of a series of allied offences and that they were committed by a person with the applicant’s particular criminal history, I would not accept that any case of error in the exercise of discretion has been raised for consideration.
  6. [24]
    For these reasons I would refuse leave to appeal.
  7. [25]
    GOTTERSON JA:  I agree with the order proposed by Sofronoff P and with the reasons given by his Honour.
  8. [26]
    BOND J:  I agree with the reasons for judgment of Sofronoff P and with the order proposed by his Honour.

Footnotes

[1]  Indictment 150/17, 151/17 and 152/17.

[2]  See eg. R v SCU [2017] QCA 198 at paragraph [94].

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Editorial Notes

  • Published Case Name:

    R v MKM

  • Shortened Case Name:

    R v MKM

  • MNC:

    [2018] QCA 233

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Gotterson JA, Bond J

  • Date:

    25 Sep 2018

Litigation History

No Litigation History

Appeal Status

No Status