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- Unreported Judgment
CHILDRENS COURT OF QUEENSLAND
R v KPC  QChC 20
Application for sentence review
Childrens Court at Mackay
26 July 2019
23 July 2019
Sentence of 10 months detention set aside. The child is sentenced to 6 months detention.
Recording of convictions set aside.
Sentence otherwise to remain.
CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING OF JUVENILES – RECORDING OF CONVICTION – where a conviction was recorded against the applicant child at sentence – where the child was 15 years old at time of offending and 16 at sentence – where the applicant child had a criminal history and no previous convictions recorded – where the child committed an offence whilst in detention – whether the period of detention imposed was manifestly excessive
Mr D Law for the applicant
Mr T O’Brien for the respondent
Legal Aid Queensland for the applicant
Office of the Director of Public Prosecutions for the respondent
- On 16 April 2019 the applicant pleaded guilty to five offences of stealing, five offences of unlawful use of a motor vehicle, four offences of enter premises and commit an indictable offence, one offence of possession of dangerous drug, two offences of assault occasioning bodily harm, one offence of possess a knife in a public place, one offence of commit a public nuisance, one offence of minor in possession of liquor, one offence of obstruct a police officer. He was reprimanded in relation to the offence of minor in possession of liquor. In relation to the remaining offences he was sentenced to 10 months detention to be served by way of a conditional release order. A conviction was recorded in relation to both of the assault offences.
- He was 15 years of age at the time of the offences and 16 at the time of sentence. He was subject to a 120 hour community service order and nine month probation order at the time of the offending. He had previous convictions for assault occasioning bodily harm in 2016, common assault (2 offences) in 2017 and serious assault in 2018. He also had previous convictions for property offences.
- The stealing offences involve the applicant stealing either petrol to fill stolen cars or alcohol. The entering premises involved the applicant breaking into cars and stealing items from cars. The unlawful use offences relate to the theft of cars. The public nuisance involved him being intoxicated and abusing police. He was in possession of a knife at Pioneer State High School. He assaulted a student at Pioneer State High School by hitting the student several times to the left side of his cheek after several students made humiliating remarks to him because police had spoken to him outside the school.
- The most serious assault occurred on 28 February 2019. He was in the Cleveland Youth Detention Centre at the time. He, together with another child, assaulted a 15 year old boy in the facility. The child was knocked unconscious and when he woke he began convulsing and vomiting and was taken to hospital. He said that he assaulted him because the child had, on previous days, said some “stuff” about their family. He said his cousin started getting into him and then pulled the victim’s feet from under him so he fell to the ground. He then stated he stomped on his head at least two times.
- The child had previously been subject to other supervised orders. They were all completed without departmental sanction.
- He was a victim of domestic violence during his childhood years. Because of the domestic violence his mother located herself and her family to Mackay. He had increasingly been showing concerning aggressive behaviour and struggles to control his anger. He has been doing drug and alcohol counselling and attending the Kutta Mulla Gorinna Alternate Learning Centre.
- The court of appeal in R v SCU  QCA 198 (at p130) noted that the sentencing of juveniles involves an emphasis on rehabilitation that is not present in sentencing adults:
“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.”
- At the time of sentence the child had been in detention for 65 days. This was his first time in custody. He had made full and frank admissions to his offending and the pleas were early pleas of guilty. The Crown concedes that 10 months’ custody in those circumstances is excessive particularly bearing in mind the pre-sentence custody. It was further accepted that a period of six months’ detention was appropriate.
- In relation to the recording of convictions, the learned magistrate held that having regard to his criminal history in relation to offences of violence that it would be appropriate to record convictions in relation to the assault offences. His Honour had regard to s184 of the Youth Justice Act 1992 and exercised his discretion in that regard. He gave as his reasons the serious nature of the offences, the previous convictions for violence and the fact that he had previously had assistance with community service orders and probation to assist with rehabilitation.
- The starting position in relation to the recording of convictions is that they should not be recorded against a child. The applicant submitted that the fact that the magistrate decided to impose a conditional release order would militate against convictions being recorded as the therapeutic value of the sentence would be sabotaged by the damaging effect of the convictions. In R v SCU the Court of Appeal noted that when sentencing a child a court is looking forward to the future with an emphasis on attempting to turn the immature offenders away from the criminal path upon which he or she has trodden. It was noted in that case at para 162:
“The impact of the recording of the conviction necessarily involves a degree of speculation. Nevertheless the likelihoods of the recording of the 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 and 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”.
- Whilst this child does have an unenviable history of violence for one so young, he was nonetheless a 15 year old child at the time of committing these offences. He still has many years to mature and would now be burdened with a criminal history for the rest of his life. There can be little doubt that the recording of convictions for assault occasioning bodily harm would have a significant impact on his chances of rehabilitation and of finding employment. The Crown has again conceded that the magistrate erred in recording convictions for these offences.
- In those circumstances, it is appropriate to set aside the sentence to the extent of reducing the period of ten months detention to six months and recording no convictions in relation to the offences of assault occasioning bodily harm. The sentence is otherwise to remain unchanged.
 Youth Justice Act 1992, s 183(1).
- Published Case Name:
R v KPC
- Shortened Case Name:
R v KPC
 QCHC 20
26 Jul 2019