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Queensland Judgments
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  • Unreported Judgment

The Queen v VHW

 

[2019] QCHC 26

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v VHW [2019] QChC 26

PARTIES:

R

v

VHW

(Applicant)

FILE NO/S:

281/2019

DIVISION:

Childrens Court

PROCEEDING:

Sentence review

ORIGINATING COURT:

Townsville Childrens Court

DELIVERED ON:

19 September 2019 (delivered ex tempore)

DELIVERED AT:

Brisbane Childrens Court

HEARING DATE:

19 September 2019

JUDGE:

Dearden DCJ

ORDER:

  1. (1)
    Application granted; 
  2. (2)
    Set aside the convictions recorded in respect of the following offences: 
  1. (a)
    Unlawful use of a motor vehicle (11/05/2019);
  2. (b)
    Stealing (11/05/2019);
  3. (c)
    Possess property suspected of having been used in connection with the commission of a drug offence (29/05/2019); and
  1. (3)
    Otherwise affirm the sentence imposed on 12 June 2019 in the Townsville Childrens Court.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – application for sentence review – where the applicant was sentenced to six months’ detention with convictions recorded for three offences – where the applicant had a significant criminal history – where the applicant had demonstrated steps taken towards rehabilitation – whether the sentence was excessive in the circumstances  

LEGISLATION:

Youth Justice Act 1992 (Qld) s 118, s 122, s 150, s 183(1), s 184

CASES:

R v BCN [2013] QCA 226

R v Cay, Gersch and Schell; ex parte Attorney-General [2005] QCA 467

R v L [2000] QCA 448

R v PBE [2019] QCA 185

R v SCU [2017] QCA 198

R v TX [2011] QCA 68

COUNSEL:

R Gill (sol) for the applicant

T Little (sol) for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Office of the Director of Public Prosecutions for the respondent

  1. [1]
    HIS HONOUR: This is a sentence review application by the applicant, VHW, in respect of sentences imposed by the learned Childrens Court Magistrate on 12 June 2019 at the Townsville Childrens Court.[1] 
  1. [2]
    On that date, the applicant was sentenced for the following offences:
  1. (1)
    Unlawful use of a motor vehicle (06/04/2019)
  2. (2)
    Stealing (06/04/2019)
  3. (3)
    Unlawful use of a motor vehicle (11/05/2019)
  4. (4)
    Stealing (11/05/2019);  and
  5. (5)
    Possess property suspected of having been used in connection with the commission of a drug offence (29/05/2019).
  1. [3]
    The applicant was sentenced to three months detention with no convictions recorded, in respect of the offences of unlawful use of a motor vehicle, and stealing, which occurred on 6 April 2019. In respect of the remaining three offences (unlawful use of a motor vehicle on 11 May 2019, stealing on 11 May 2019 and the possess property suspected on 29 May 2019), the applicant was sentenced to six months detention, to be served at 60 per cent, but with convictions recorded.[2] 
  1. [4]
    This application for review is confined only to the recording of convictions in respect of those latter three offences I’ve just identified from the sentence process on 12 June 2019.

The law – sentence reviews

  1. [5]
    The law governing sentence reviews is contained in the Youth Justice Act 1992 (Qld) (‘YJA’) s 118.  The review is a rehearing on the merits and must be conducted expeditiously and with as little formality as possible.[3]  This court is entitled to have regard to the record of the Childrens Court proceedings, and any further submissions in evidence by way of affidavit or otherwise.[4]  I am assisted by way of affidavits from both the applicant and the respondent. 
  1. [6]
    The law in respect of sentencing children is, in terms of sentencing principles, contained in YJA s 150.
  1. [7]
    The law in respect of recording convictions is contained in YJA s 183(1), which sets out the default position when a conviction should not be recorded against a child, but then permits convictions to be recorded pursuant to the considerations canvassed in YJA s 184, which include the nature of the offence, the child’s age and any previous convictions, and the impact of the recording of a conviction on the child’s chances of rehabilitation generally or finding or returning employment.
  1. [8]
    I refer to the cases extracted at [10.3]-[10.6] of the Outline of Submissions on behalf of the child: R v L [2000] QCA 448;  R v Cay, Gersch and Schell; ex parte Attorney-General [2005] QCA 467; R v SCU [2017] QCA 198; R v TX [2011] QCA 68; R v BCN [2013] QCA 226; and R v PBE [2019] QCA 185.

Discussion

  1. [9]
    The applicant’s submission is that convictions should not have been recorded in the circumstances of this offence. The background is that the first two matters for which the child was sentenced on 12 June 2019 (the unlawful use of a motor vehicle and stealing, both occurring on 6 April 2019) had resulted in the ordering of a pre-sentence report (indicating, of course, a potential detention order)[5] and then just over a month later, the further offences of unlawful use of a motor vehicle and stealing were committed on 11 May 2019, and the minor drug offence on 29 May 2019. 
  1. [10]
    It is a situation where, in the context of the applicant’s unenviable criminal history[6] which includes a significant number of similar offences, and includes detention orders, some of which have been served by way of conditional release orders, the learned magistrate appears to have expressed a significant concern about the commission of further offences while the applicant was on bail pending sentence for the matters arising from the 6th of April 2019.[7]
  1. [11]
    There is nothing particularly remarkable about the three matters on which convictions were recorded, other than, of course, they occurred while the applicant was on bail for similar offences, and had a criminal history with a large number of similar offences, albeit that the offending (as Ms Little, who appears for the respondent Police Commissioner identifies) occurred over a period of approximately one year leading up to this sentence.
  1. [12]
    The critical issue in deciding whether, in the context of that unenviable criminal history, convictions should be recorded only in respect of the last three offences in time, comes down to the issue of rehabilitation, and as Mr Gill, who appears for the applicant, identifies, the solid prospects of rehabilitation which were placed before the sentencing magistrate and which, in essence, were something more than possibilities, in terms of practical steps taken towards rehabilitation. In particular, the learned magistrate was advised that the applicant had completed the Transition to Success program, had disconnected from her peer group, was on the cusp of adulthood, and was, effectively, at a point where she was capable of moving into adult life, with genuine prospects of, in particular, employment, having been engaged in part-time employment at the local fish and chip shop.[8]
  1. [13]
    I acknowledge the concerns raised by the respondent, in particular, what is described (politely, but correctly) as:

A flagrant disregard for previous community-based orders.[9]

And what is also described as the:

Numerous opportunities to address…offending behaviour.[10]

  1. [14]
    However, neither the evidence before the learned sentencing magistrate, nor logic in these circumstances, supports (in my view at least), the recording of convictions at this stage, given the demonstrated prospects of rehabilitation and the likely effect of those recorded convictions on the continuation of the demonstrated steps to rehabilitation.
  1. [15]
    In those circumstances (whilst recognising that the applicant has, essentially, used up all of her prospects, given her quite extraordinary conduct over what is, essentially, the last year of her childhood), there should still be an opportunity for her to rehabilitate and reintegrate without convictions being recorded for these three matters.

Orders

  1. [16]
    Accordingly, I make the following orders:
  1. (1)
    Application granted; 
  2. (2)
    Set aside the convictions recorded in respect of the following offences: 
  1. (a)
    Unlawful use of a motor vehicle (11/05/2019);
  2. (b)
    Stealing (11/05/2019);
  3. (c)
    Possess property suspected of having been used in connection with the commission of a drug offence (29/05/2019); and
  1. (3)
    Otherwise affirm the sentence imposed on 12 June 2019 in the Townsville Childrens Court.

Footnotes

[1] Application for Sentence Review, filed 26 June 2019.

[2] Exhibit A – Affidavit of Jack Porter, affirmed 18 September 2019.

[3] Youth Justice Act 1992 (Qld) s 122(1), (3).

[4] Youth Justice Act 1992 (Qld) s 122(2).

[5] Exhibit B – Affidavit of Miriam Grundy, affirmed 16 September 2019.

[6] Exhibit A – Affidavit of Jack Porter, affirmed 18 September 2019.

[7] Transcript 1-5, ll 37-45; 1-7, ll 5-8, ll 21-22 – Exhibit C - Affidavit of Miriam Grundy, affirmed 16 September 2019.

[8] Exhibit B (Pre-sentence report) – Affidavit of Miriam Grundy, affirmed 16 September 2019, p.6; Transcript 1-5, ll 27-29; 1-6, ll 5-7 – Exhibit C - Affidavit of Miriam Grundy, affirmed 16 September 2019.

[9] Outline of Submissions on behalf of the respondent, dated 18 September 2019, [2.3].

[10] Outline of Submissions on behalf of the respondent, dated 18 September 2019, [2.3].

Close

Editorial Notes

  • Published Case Name:

    The Queen v VHW

  • Shortened Case Name:

    The Queen v VHW

  • MNC:

    [2019] QCHC 26

  • Court:

    QChc

  • Judge(s):

    Dearden DCJ

  • Date:

    19 Sep 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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