The Queen v T[1998] QCA 456

COURT OF APPEAL

McMURDO P

McPHERSON JA

SHEPHERDSON J

CA No 253 of 1998

THE QUEEN

v

T Applicant/Appellant

BRISBANE 

DATE 18/09/98

JUDGMENT

McPHERSON JA:  The applicant for leave to appeal against sentence was convicted on her own pleas of guilty in the District Court at Mt Isa of one count of stealing, one of receiving, two of unlawful use of a motor vehicle, a count of wilful damage and one of dangerous driving causing grievous bodily harm. There were two indictments.

In respect of the unlawful use of a motor vehicle, or one of those counts, and the count of dangerous driving causing grievous bodily harm, she was sentenced to detention for 12 months with an immediate release order. For the other offences she was required to undergo a period of two years probation.

The application before us is directed not to the latter sentence but to the order made by the learned sentencing judge that a conviction be recorded in respect of the dangerous driving causing grievous bodily harm and the associated unlawful use of a motor vehicle offence. The major offence is undoubtedly that of driving causing grievous bodily harm.

The circumstances are that on 24 December 1997 the applicant and another girl, whose name seems to have been Anita, stole a car belonging to a government department and drove it into the streets of Mt Isa. The police saw it being driven and, knowing it was stolen, gave chase. Speeds of 140 km/h were attained in the course of the pursuit and the applicant drove through red lights and on one occasion across a median strip.

Eventually, while speeding along the Barclay Highway she went onto her incorrect side of the road causing an oncoming car to swerve and run into a pole or obstruction at the side of the road. The occupants of that vehicle were a young mother, a Mrs Major, and her daughter Jasmine. Mrs Major sustained a spinal injury which, by medical treatment and great good fortune, in the end left no permanent disability, but might without such treatment easily have turned her into a paraplegic.

Luckily also, Mrs Major pregnancy at that time was not affected by the injury or the experience. Her daughter, who was some three years or so old, sustained minor lacerations to the scalp and chest and also, more seriously, a laceration four to six centimetres long to her liver. She recovered, it is said, remarkably well from her injuries but, again, without the medical treatment she would have died.

It was these injuries to the two victims that constituted the grievous bodily harm charged against the applicant. The applicant was only 14 years old at the time of these offences. She comes from a disturbed family background, her mother having left her father when the applicant was quite young. She had some minor previous convictions of no particular consequence but was undergoing probation when the subject offences were committed.

What is perhaps more important, the dangerous driving offence followed within about a week after another unlawful use offence in which the applicant and the other girl Anita were involved, in which another government department vehicle was taken.

Applications directed to removing or imposing recording of convictions not infrequently come before this Court. Speaking generally, my impression is that they do not often succeed. This is partly at least because the relevant statutory provisions confer such a wide and complete discretion in the matter that is rarely possible to find fault with a decision either to record or not to record such a conviction.

One gathers that some judges adopt as the starting point a policy or practice in such matters that convictions should generally not be recorded unless there is some good reason for doing so, whereas other judges adopt precisely the opposite attitude or practice. Viewed overall, the result is therefore somewhat arbitrary, but this is, I think, the inevitable consequence of a provision which, both in the Juvenile Justice Act and more especially in the Penalties and Sentences Act, apparently provide few really useful indications whatever of the basis on which the discretion is to be exercised, but which, at least in the case of the latter enactment, appear to take as their inspiration nothing more precise than a general feeling of benevolence towards human wrong-doing. The statutory predecessor of the current provisions on the matter were, at least to an extent, somewhat more specific, in that they appeared to be confined to offences of a trivial kind.

Under the current provisions, that limitation and the slender guidance it provided has now been removed. It is therefore not surprising that the decisions of this Court offer little assistance as to how the discretion is to be exercised. It may, however, be worth recalling that in R v. Gallagher (CA 352 of 1997, 19 December 1997), we recently held that, in general, convictions for sex offences by adults on children ought, for the safety and security of society, ordinarily to be recorded, although even that is not of course to be considered an absolute rule. My personal inclination is to say that Courts generally ought not to be quick to record convictions in the case of serious offences committed by children that are substantially the product of criminal negligence arising from lack of mature foresight or judgment rather than from malice or conscious wrongdoing. But even that statement, it must be admitted, is no more than a generalisation that will inevitably give way to the particular circumstances of the case in question.

The fact that the applicant here was very young is, therefore, a consideration going some way in mitigation even when the nature of the injuries caused and the circumstances in which they were inflicted are considered. In the present case the injuries were very serious, but at least they were not intended, even if on a mature reflection this applicant might have foreseen that they were by no means improbable. Mature reflection is, unfortunately, not what typifies children of this age.

Two matters were relied on in this Court as vitiating the exercise of the discretion to record a conviction. One is that the learned sentencing judge is said not to have given a full opportunity to counsel to address on the subject of recording of conviction before his Honour made up his mind to do so. The other is perhaps more cogent. It is that his Honour rejected defence counsel's assertion that the applicant's act was the result of panic induced by being pursued by the police. The learned sentencing judge rejected the submission, but he did so only at the end of his reasons, and so without affording the applicant or her counsel an opportunity to contradict that conclusion by evidence about the matter or otherwise. Compare R v. Morrison (CA 391 of 1997, 26 June 1998).

I must say I tend to share his Honour's scepticism about the applicant's behaviour, perhaps the more so on seeing that the applicant is recorded in the pre-sentence report as having said that she was unaware as to why she committed these offences, other than to say that Anita told her to; and further, as the report records, she often laughs about the offence relating to the Department of Families Youth and Community Care, a sentiment which, to my mind, serves only to provoke a reaction of a very different kind. Nevertheless, I consider that this point of contention, as it might have been seen by the learned judge, had some relevance to the matter of recording a conviction or refraining from doing so, and that his Honour ought to have given an earlier indication of his opinion to the effect that he did not accept that the offence was a product of panic. Had he done so, he might have been expected to afford an opportunity to counsel for the defence of debating it if in the end it was going to operate, as it appears to have done, as a factor in exercising the discretion to record the conviction.

The result is that I am prepared, by a rather narrow margin, to say that the discretion to record a conviction miscarried in these circumstances. It is not possible to say now what the applicant's state of mind or motivation really was at the time. However, taking, as I suppose we must in this Court, the most favourable view of the immaturity of her conduct, it may be that she did act, in a way, from panic.

I would therefore set aside the order recording the conviction. To that extent, I consider that the appeal should be allowed and the sentence varied accordingly. Otherwise, of course, the sentences, which in other respects are not challenged, should stand.

THE PRESIDENT:  I agree with the reasons and the orders proposed by Justice of Appeal McPherson.

SHEPHERDSON J: I agree with what Mr Justice McPherson has said. I add only that, in my view, the recording of a conviction of the applicant under the Criminal Justice Act is, in my view, analogous to imposing a heavier sentence than that imposed on the present applicant for the offences in question.

That view comes from the decision of R v. Morrison (CA 391 of 1997) in which judgment was delivered on 26 June 1998. Morrison has been referred to by Mr Justice McPherson. What is of note is that, in the present matter, the learned sentencing Judge dealt with the matter on 24 July 1998, as it appears in the transcript and that no one in the Court was aware of the decision in Morrison and His Honour was not referred to it.

I note also that the convictions recorded for counts 2 and 3, which both involved the use of this particular Government car on the 24 December 1997, and that it appears that the claim of panic related to the charge of dangerous driving causing grievous bodily harm; nevertheless I agree with the order that the convictions should be deleted.

THE PRESIDENT:  The orders are:  the application for leave to appeal is granted;  the sentence below is varied by the deleting of the recording of convictions in respect of counts 2 and 3. Otherwise, the sentence imposed below is confirmed.