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- Unreported Judgment
CHILDRENS COURT OF QUEENSLAND
NJC v Office of the Director of Public Prosecutions  QChC 26
DIRECTOR OF PUBLIC PROSECUTIONS
Mackay Children's Court
27 August 2020
27 July 2020
CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the child was sentenced to multiple offences – where the child was 16 at the time of offending – where convictions were recorded – where the learned Magistrate reasoned that the child was one month away from turning 17 when the offences were committed – where the child had a history of serious offending – where the child had a difficult upbringing – where this period of offending was committed at a time when his mother was sentenced to a significant time incarceration – where the offences before the court are not serious offences – whether the learned Magistrate should have departed from the default position of not recording a conviction
R v SCU  QCA 198
R v TAO  QCA 4
R v DVT; R v HMM; R v ACA and R v NY  QCA 170
R v Patrick (a pseudonym) Ex parte Attorney-General  QCA 51
Mr D Law, Legal Aid Queensland for the applicant
Ms B Scarrabelotti, for the Office of Director of Public Prosecutions for the respondent
- The applicant was sentenced on 3 April 2020 in relation to 48 separate offences. A pre-sentence report was ordered and he was sentenced to detention for six months by way of a conditional release order on some offences and 12 months’ probation on others. The offences against which he has sought review are three charges: enter dwelling and commit an indictable offence on 19 to 22 February 2020, unlawful use of a motor vehicle and stealing on 24 February 2020. Convictions were recorded. The ground of the review is that convictions should not have been recorded.
- He was also resentenced in relation to a large number of offences which had previously been the subject of returned restorative justice processes and he was reprimanded in relation to those offences.
- On 23 February 2019 the child stole a bottle of perfume and a bottle of aftershave from a pharmacy (stealing).
On 18 March 2019 he stole a white Isuzu D-Max (unlawful use of a motor vehicle) and drove it without a driver’s licence (unlicensed driving).
Between 30 April and 29 October 2019 his fingerprints were found on stolen registration plates located on a white Holden Commodore (receiving tainted property).
On 12 May 2019 he gained entry to a Toyota Land Cruiser and conducted a search of the vehicle, stealing money and cigarettes (enter premises and commit indictable offence).
On 20 May 2019 he was a passenger in a stolen motor vehicle and then drove that vehicle and evaded police (unlawful use of a motor vehicle, evasion offence, driving a motor vehicle without a driver’s licence).
On 24 May 2019 he failed to appear in accordance with his undertaking.
On 16 June 2019 he stole an identity card from an officer at the detention centre who had dropped it (stealing).
On 17 July 2019 he left a store without paying for a set of hair clippers (unauthorised dealing with shop goods).
On 12 August 2019 the child was in possession of utensils he had used to prepare and smoke marijuana.
On 14 August 2019 the child was found in possession of a bong.
On 30 August he was found in possession of cannabis and a bong (possessing dangerous drugs and possession of utensils).
On 28 October 2019 he stole fuel from a petrol station and stole a black Ford Falcon and drove it (stealing and unlawful use of a motor vehicle and unlicensed driving).
On 29 October he was found in possession of a pipe (possession of utensils) and he also had a black balaclava and a black set of gloves (possession of a thing intended for use in connection with an offence).
On 4 November 2019 he was found in possession of a used glass pipe, a bullet that smelt like burnt cannabis and an empty plastic pen (possession of utensils).
On 20 November 2019 he entered the storage room of the Coral Cay Resort in Mackay and stole a set of master keys (enter premises and commit indictable offence by break).
On 21 November 2019 he threw a wooden chair on the ground breaking it into multiple pieces and tipped a bed on its side causing the slats to come away (wilful damage).
On 19 February to 22 February he broke into the complainant’s house and stole the victim’s handbag containing a chef’s knife, a brown wallet, driver’s licence, cards and house keys (burglary and commit indictable offence).
On 24 February he stole a mobile phone, wallet and vehicle keys and then stole a Honda Jazz. He then went to a minimart and stole 40 packs of cigarettes (unlawful use of a motor vehicle and stealing).
The application to review is advanced on the basis that convictions should not have been recorded in relation to three of the offences. In deciding to record convictions for those offences the Magistrate reasoned that the child was one month away from his 17th birthday when the offences were committed, he had a history of serious offending, he had a bad attitude toward the offences, the offences were committed within five weeks of the child’s successful participation in a restorative justice process and that convictions had previously been recorded in 2017.
- The presentence report detailed his background which the Magistrate described as unfortunate. At the time of the sentence he had spent 115 days on remand and he was on probation at the time of the offending. The report details that his offending stems from his traumatic childhood, lack of family support and distrust in the judicial system. He lacks the ability to problem solve and think consequentially. When placed in difficult situations he has limited skills to appropriately self-regulate his emotions. His behaviour began to escalate when his mother was sentenced to a lengthy period of time in custody in February of 2019.
- He had no support in Mackay and was unwilling to return to residential placement through Child Safety. He started to spend more and more time with his peers and would stay with friends for short periods of time. His drug taking increased particularly his methamphetamine intake. He used substances as a self-coping mechanism.
- It was assessed that he had shown little remorse for his offending. He doesn’t fully understand the impacts of his actions on his victims and himself. He was open to speaking to a professional about his substance use and anger and he was open to being involved with some sort of sport. He wished to work either in the mines or army and was keen to move to Emerald with his younger siblings or alternatively live in Dysart with his grandfather and uncle.
- The Magistrate concluded that the child previously had convictions recorded by an erroneous entry on his criminal history detailing that in 2017 he was placed in detention and convictions were recorded. That is an inaccurate entry. No convictions had been recorded at the date of sentence.
- The offending was committed at a time when he was cast adrift by his mother who was sentenced to a significant period of imprisonment as a result of her own criminal offending. It is true to say that the offences were committed not long after the completion of restorative justice order and that was a matter that required serious consideration. However, when one has regard to the actual offences they were not offences of such seriousness that they would by themselves require the recording of conviction. The child broke into a house, took a handbag and its contents and then later stole a car and took some cigarettes from a convenience store. It was an aggravating factor that this was committed whilst he was on probation and that he had a lengthy criminal history which did him no credit. However, the Magistrate acknowledged that he had had a very difficult upbringing.
- Having regard to the comments made in R v SCU  QCA 198 about the effect of recording convictions deterring employers and affecting rehabilitation and the reaffirmation of those principles in R v TAO  QCA 4 and the principles in R v DVT; R v HMM; R v ACA and R v NY  QCA 170 referring to R v Patrick (a pseudonym) Ex parte Attorney-General  QCA 51 there was no reason to depart from the default position that convictions should not be recorded. Accordingly the application is granted. The convictions set aside and the sentences are otherwise to remain.
- Published Case Name:
NJC v Office of the Director of Public Prosecutions
- Shortened Case Name:
NJC v Director of Public Prosecutions
 QCHC 26
27 Aug 2020