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- Unreported Judgment
CHILDRENS COURT OF QUEENSLAND
R v CDH  QChC 18
Application for sentence review
Childrens Court at Mareeba
26 July 2019
22 July 2019
Leave granted for extension of time in which to appeal.
Recording of convictions are set aside. Sentence otherwise to remain.
CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING OF JUVENILES – RECORDING OF CONVICTION – s 183(1) of the Youth Justice Act 1992 – where a conviction was recorded against the applicant child at sentence – where the applicant child had a significant criminal history and no previous convictions recorded – where the child was 15 years old at the time of offending – where the child had various mental health conditions – where a pre-sentence report was prepared – where the child had previous conviction recordings set aside after review – whether there are issues of totality
J O’Donnell for the applicant
T O’Brien for the respondent
Legal Aid Queensland for the applicant
Office of the Director of Public Prosecutions for the respondent
- The applicant was convicted on 3 September 2018 in the Mareeba Childrens Court of two offences of enter premises and commit indictable offence by break, two offences of enter premises with intent, unlawful use of a motor vehicle, attempted burglary and commit indictable offence, burglary and commit indictable offence and unlawful possession of suspected stolen property. He was sentenced in relation to all charges to a period of six months detention to be released on a supervised release order after serving 107 days in custody concurrent with a 12 month probation order. Convictions were recorded on all offences.
- All of the offences with the exception of one enter premises and commit indictable offence by break and the unlawful use of a motor vehicle were committed whilst he was subject to a combined supervised release order and probation order and a community service order.
- The appeal is out of time and therefore he seeks an extension of time within which to appeal. The Crown concedes that the magistrate made an error in recording convictions for some of the charges and therefore concedes that it would be appropriate to hear the appeal out of time. In those circumstances and in light of the fact that he was a 15 year old boy at the time of the sentence I grant leave to appeal out of time.
- The facts of the offending are set out below:
- On 26 February 2018 an electric powered golf buggy was taken from the Mareeba Golf Club. It was driven along railway tracks until the battery went flat. No damage was caused. When interviewed he admitted using the buggy but denied being involved in any burglary of the Golf Club.
- On 1 March 2018 at 12.30 am four offenders went over a timber fence into a local café, a steel grill was removed and they climbed through the window and took a small quantity of food and drinks. The child admitted being involved and stealing two or three cokes and some food because he was hungry and thirsty.
- On 17 July 2018 at 2.00 am a building in Mareeba was broken into from the upper level. Cutlery and a torch was taken from the café and the torch was used to search inside the centre. Nothing else was taken.
- On 14 August 2018 the child gained entry to a house in Atherton and vehicle keys were stolen but the vehicle had not been stolen. On that same day an attempt was made to gain entry to a unit and during that attempt fly screens were damaged. Again on that same day the child with a co-offender entered a house by removing a fly screen and damaging a front door screen. Nothing was taken.
- On 16 August 2018 upon being arrested the child emptied his pockets and they contained an amount of gold jewellery. He was charged with unlawful possession of suspected stolen property.
- The review relates only to the recording of convictions in this case.
- The child does have an unenviable criminal history. He had previously been sentenced to detention on one occasion. He also had the benefit of eight previous probation orders, one supervised correction order, two community service orders, one restorative justice order and one graffiti removal order. He has not complied with any of the probation orders. There is no doubt that a period of detention was well within range for this offending even having regard to the principles of the Youth Justice Act 1992.
- The consideration in relation to the recording of convictions falls into two separate categories. The Crown concedes that the earlier offences on 1 March and 26 February 2018 are subject to totality considerations. On 1 April 2018 the child was sentenced in the Mareeba Children’s Court in relation to 17 offences including property, dishonesty and driving offences. Convictions were recorded for each of those offences. On 13 July 2018 that sentence was reviewed and the recording of convictions was set aside. It is conceded that had these offences been dealt with in the Mareeba Children’s Court on 1 April 2018 and then been subject of the review those convictions would also have been set aside. There is nothing about those offences that set them out from the other 17 offences such that they should be singled out for recorded convictions and as such the Crown concedes that the orders should be amended to remove the recording of convictions.
- Similarly in relation to the offence of possession of suspected stolen property, which is an offence under the Summary Offences Act of 2005, the Crown submits that convictions should not be recorded because that offence itself is not particularly serious and pursuant to s 184 of the Youth Justice Act the seriousness of the offence is something that must be taken into account.
- In relation to the other offending it is clear from his remarks during the sentence that the Magistrate was frustrated with the continued offending by the child. He indicated as much at page 8 of the sentencing submissions:
“Now this is one where I recorded convictions and I explained my reasons, I thought, quite clearly, going through s 184 and of course there was a review and that was overturned. But surely the Act doesn’t say that you can’t record convictions against children.
And surely when you have a close look at s 184, and as I think I explained at the last sentence that so far as rehabilitation is concerned, [the child] is being given every single opportunity – well, every opportunity that a young person can have and he isn’t taking advantage of it, so frankly I just don’t see how again that I am not going to record a conviction against him”.
- This frustration further boiled over in his sentencing remarks. He noted at p3:
“But once again I give serious consideration to the matters set out in s 184 that is – that is – the nature of the offence, your age, and your previous convictions, the impact the recording of a conviction will have on your chances of finding rehabilitation, finding or retaining employment, so when I give consideration to those things and weigh them up, frankly, I cannot see why a criminal conviction should not be recorded against you, and it is my intention to record those criminal convictions against you today.”
- Those comments, in my view, effectively create a reversal of the emphasis of the legislation. The starting point in s 183(1) of the Youth Justice Act 1992 is that a conviction is not to be recorded against a child who is found guilty of an offence. The court must then be convinced to record a conviction rather than finding reasons not to record a conviction. The Court of Appeal has been very clear that the regime in the Act places significant emphasis on the rehabilitation and future of the young person, that the child at 15 may yet turn away from his criminal ways and with maturity and support develop into a responsible adult. In The Queen v SCU  QCA 198 the court discusses at length that while it involves a degree of speculation by necessity, certain convictions are likely to detrimentally affect rehabilitation and chances of finding and retaining employment. I would merely add to this that when exercising the discretion it needs to be exercised in relation to each individual offence and not as a global decision. By way of example it is difficult to see how going for a joy ride in an undamaged golf buggy could be seen as an offence of such a nature as to warrant a conviction being recorded against a 15 year old child with significant mental health issues.
- In this case the magistrate was provided with a detailed pre-sentence report which indicated that the child had a severely prejudicial upbringing. His eldest sibling passed away in 2007 and his parents separated a short time later. His father has had limited involvement in his life since that time. He and his siblings and his mother relocated to Mareeba and they were taken into the care of the Department of Child Safety as a result of significant abuse and neglect. His mother passed away in 2010. Since being placed in the Department’s care he has had 27 placements including foster care, respite and residential youth homes of children with complex needs. The placements broke down because of his difficult behaviour. He was diagnosed with foetal alcohol syndrome and those symptoms include general learning difficulties, impaired relationships, impulsive and attention difficulties, difficulty in planning ahead and poor consequential thinking. He also has reactive attachment disorder symptoms which include lower self-esteem, delinquency, anger management issues, anxiety and substance misuse. Whilst it is understandable that there were frequent changes in care givers given that he was involved with difficult behaviour, no doubt the instability in his life has contributed to the diagnosis and the report concludes that those two problems contribute to his limited concept of cause and effect. He also has a long history of substance misuse.
- There were difficulties with his living arrangements. He had been in the care of his sister who herself was only 21 years of age, had two young children and was transient because of a domestically violent relationship. At the sentence hearing the community justice group indicated that it would not be appropriate for him to reside with his sister again as his sister was having difficulty coping with her own situation and was not in the position to assist him. At the time of the report he had been in custody for 18 days and he indicated that he felt sad over not residing with the sister in order to protect and support her. He was concerned about his niece and nephew forgetting him.
- There is no doubt that the offences fit with the diagnosis in that they were clearly unplanned and impulsive and showed a lack of forward thinking.
- The magistrate was concerned about the FASD diagnosis coupled with reactive attention disorder. He noted that that makes sentencing very difficult and that is a correct observation. Further he was aware of the existence of a specific programme designed to assist children with FASD but which this child had not yet the opportunity to engage.
- There is no doubt that this was a difficult sentence. The child does have a significant criminal history and is a repeat offender with a high likelihood of reoffending. He has been given many opportunities to engage with the department. However, coupled with that he has a significant behavioural and intellectual disadvantage which reduces his culpability significantly. His chances of finding employment will be reduced because of these difficulties and his lack of education. In those circumstances the impact of recording convictions will no doubt have significant impacts on his finding or retaining employment.
- In addition the offences whilst the nature of them are serious in themselves they did not involve the theft of a large amount of property or extensive damage and his moral culpability is reduced by his mental health conditions. In those circumstances the magistrate in my view erred in recording convictions and all of the recorded convictions should be set aside. The sentence is otherwise to remain.
- Published Case Name:
R v CDH
- Shortened Case Name:
R v CDH
 QCHC 18
26 Jul 2019