R v H[2000] QCA 196

THE PRESIDENT:  The applicant pleaded guilty to one count of robbery in company with personal violence on 7 January 2000. A presentence report was ordered under the Juvenile Justices Act 1992.  On 4 February 2000 he was sentenced to three years' probation and 100 hours community service, the maximum community service possible for his age. A conviction was recorded.

He claims the sentence is manifestly excessive in that a conviction should not have been recorded. If a conviction is not to be recorded, the maximum period of probation under the Act is two years: see sections 120, 121, 124(3) and (4) of the Juvenile Justices Act 1992.

On 31 May 1999 the complainant, a 21 year old male and his male companion, bought some take-away food in the Cavill Mall in Surfers Paradise. They walked to a nearby park where they sat down on some swings to eat it. The applicant and his three co-accused, adult males aged from 18 to 20, Punimato, Terry and Angelides, approached them. 

Punimato asked the complainant's friend for food and tried to take some chips.  After persisting for some time he was successful in getting the chips. Punimato said to the complainant, "Why are you looking at me? Have you got a problem with me?"  The complainant made a conciliatory reply.

Punimato demanded drugs or alcohol, especially beer. The complainant responded in the negative.  He and his friend stood up and started to back away. Punimato grabbed the chain from the swing and tried to place it around the complainant's neck and demanded his wallet. 

The complainant's friend pulled the chain away and tried to help his friend but Punimato had hold of the complainant's jacket. The complainant's friend ran for assistance. Angelides chased after his friend. The complainant tried to run but Punimato pulled him and he lost his balance and fell to the ground. As he fell Punimato punched him to the lower left jaw.

The complainant assumed a protective position on the ground and was kicked to his whole body by all four offenders. The applicant kicked him in the leg area. Angelides kicked him to the lower back. Punimato kicked him to the back, the top of the head and neck and Terry kicked him in the shoulder. Punimato continually demanded his wallet which the complainant eventually provided.

The complainant received at least 10 kicks in total from the four males. The complainant heard the applicant say, "Leave him alone. He has had enough." The applicant then backed away and the other three offenders stopped their assault.

Punimato then walked back to the complainant and again kicked him in the chest, knocking him back down to the ground. The complainant felt a sharp blow to the back of his head, causing him great pain. As he walked away, one of the offenders hit him with a small unbroken beer bottle.

The complainant spoke to police and was treated at hospital. The treating doctor noted, "Muscular and bony tenderness in the cervical spine region. Tender lower thoracic and lumbar spinous processes with bilateral loin tenderness and tender and bruised ribs." The complainant chose not to provide a Victim Impact Statement.

The offenders were located nearby shortly after the attack, in the vicinity of the stolen property. The applicant's co-offenders had not been dealt with at the time of his sentence. Committal proceedings were by way of a full hand-up brief and the plea of guilty was an early one.

The applicant spent eight days in custody before gaining bail. He was 14 at sentence and 13 at the time of the offence. He had some criminal history. In November 1998 he was cautioned for one break, enter and steal, two stealing and one wilful damage. In February 1999 he was placed on a good behaviour bond and probation for six months with no conviction recorded for unauthorised dealing with shop goods and stealing and was given a further six months' probation without conviction for stealing and receiving. These offences occurred from November 1998 to January 1999.

At the time of this offence the applicant was subject to a notice to appear in respect of the receiving charge committed on 1 April 1999 on which he was convicted on 2 July 1999 and sentenced to a further period of six months probation without conviction.

He had no previous history of violence but this offence was a breach of two probation orders, a good behaviour bond and was committed whilst he was subject to a notice to appear.

The presentence report noted that the applicant was granted conditional bail to reside with his parents, to participate in an alternative educational program and supervised activities with a youth worker with a home curfew from 9 p.m. to 6 a.m. His compliance with this conditional bail program, which he had been on for nine months at the time of sentence, was described as "good" and his compliance with his current probation order as "satisfactory".

In January 1999, the applicant's family home had been burnt down, leaving the family homeless. The applicant left the family unit, living on the streets and then moved from Brisbane to the Gold Coast. He lacked supervision and boundaries and this was a significant factor in his involvement in the offence.

He mixed with older people and became involved in substance abuse and offending behaviour. He had no access to his own money and relied on his peers for basic needs. Before his involvement in this offence he drank three stubbies with his older friends.

He was diagnosed with Attention Deficit Disorder seven years ago and was unable to remain in mainstream schooling. The applicant expressed genuine remorse to the writer of the presentence report for committing the offence, volunteered to write a letter of apology to the complainant and said he understood that his actions were wrong and also understood the impact of his offence upon the victim.

The applicant's mother noted an improvement in the applicant's behaviour since on bail. The applicant intends to return to school and now has a stable home life and the support of both parents.

The presentence report supported a probation order and community service and was silent as to whether or not a conviction should be recorded.

The Juvenile Justice Act 1992 provides a separate sentencing regime for children, quite different to that to which adults are subject under the Penalties and Sentences Act 1992. One of the objectives of the Act set out in section 3(e) is:

 "to recognise the importance of families of children and communities, ... in the provision of services designed to -

 (i) rehabilitate children who commit offences; and

    (ii) reintegrate children who commit offences into the community."

The general principles underlying the operation of the Act are set out in section 4 and include:

 "(j) the age, maturity and, where appropriate, cultural background of the child are relevant considerations in a decision made in relation to this child under the Act."

The sentencing principles are set out in section 109 and include:

 "2(a)  a child's age is a mitigating factor in determining whether or not to impose a penalty and the nature of a penalty imposed."

Section 125 of the Act provides:

 "1.  In considering whether or not to record a conviction, the Court must have regard to all the circumstances of the case including -

 (a) the nature of the offence; and

 (b) the child's age and any previous convictions; and

 (c) the impact the recording of a conviction will have on the child's chances of -

  (i) rehabilitation generally; or

     (ii) finding or obtaining employment."

In R v. Buttenshaw, CA No 203 of 1997, 27 June 1997, Buttenshaw was originally sentenced to 12 months' detention on one count of stealing from the person, one count of robbery and two counts of robbery with personal violence following pleas of guilty. He was 15 years old. The last offence in time involved the infliction of violence on a 16 year old boy which included three punches and two kicks whilst he was on the ground. This offence occurred while Buttenshaw was on bail for the other offences. He had a minor criminal history for stealing and a drug offence for which he had been reprimanded. He had served four days in pre-sentence custody. The offences occurred at a time when he was expelled from school and left home and were committed to obtain money and food. The detention order was replaced by this Court with two years' probation without conviction. The Court noted his rehabilitative prospects and that he had not previously had the benefit of a probation order. Though that latter consideration has no application here, the offences were more numerous and Buttenshaw was older than this applicant.

In R v. Hutton, 224 of 1998, 31 August 1998, Hutton, who was 15 at the time of the offence and 16 at sentence, pleaded guilty to robbery in company with personal violence and was sentence to three years' probation with a conviction recorded. Hutton had been cautioned for entering a premises with intent and reprimanded for behaving in a disorderly manner. He was intoxicated and living on the streets at the time. He suffered from undiagnosed Attention Deficit Disorder. His sentence was varied to two years' probation and 75 hours community service with no conviction recorded. As in Buttenshaw, Hutton had not had the benefit of previous probation but, again, he was older than this applicant.

In R v. Armstrong, 294 of 1998, 6 November 1998, Armstrong pleaded guilty to two counts of break and enter a place with intent, six counts of housebreaking, two counts of robbery whilst armed with offence weapons in company, and one count of attempted robbery whilst armed with offensive weapons in company. The offences occurred when the applicant was 13 and 14 years old. He was sentenced to 12 months' detention with an order for release after 50 per cent in respect of the robbery offences and two lesser sentences in respect of the remaining offences. The most serious offences involved the armed robbery of service stations which were committed by the offenders wearing balaclavas and carrying machetes and involved a theft of, in total, $5,000. Armstrong ran away from home and fell in with the bad company of older boys or young men on whom he depended for subsistence and who led him into crime.  He was 15, employed, and making a genuine effort at rehabilitation. He had no criminal history. On appeal his sentence was reduced to an immediate release order on the robbery charges and two years' probation on the remaining charges with no convictions recorded. Again, as in Buttenshaw and Hutton, he had not had the previous benefit of a probation order but the offences were more numerous and more serious than those here.

As the learned sentencing judge rightly noted, the serious aspect of this offence is the violence which was used by the applicant and his co-offenders in the course of the assault on the complainant. The other serious aspect is that these offences occurred whilst the applicant was on probation and subject to a notice to appear. On the other hand, the applicant's offending behaviour, including his prior criminal history, has all occurred from mid-November 1998 until this offence on 31 May 1999, a six-month period during which the applicant was only 13 years old. For much of that period, the applicant who suffers from ADD, had to deal with his inability to cope at school, the burning down of his family home, and a life on the streets, albeit by his choice, where he was mixing with young adults who encouraged him in substance abuse and in this offending. His role in the offence was the least of all the offenders and, despite his youth, it was he who persuaded the others to stop the assault upon the complainant.

Whilst he did not respond initially to his probation orders, his prospects of rehabilitation are now promising. His satisfactory completion of the conditional bail program for nine months, his lack of reoffending since this offence, his lack of prior convictions and that he had no offending history for violence, the support of his parents and his return to the family unit and to school, provide some reason for cautious optimism as to his rehabilitation. The objectives and principles of the Act and the possible impact of recording a conviction for an offence committed when the applicant was but 13 finally persuade me that the learned sentencing judge's discretion miscarried in recording a conviction in this case.

I would grant the application for leave to appeal against sentence and allow the appeal to the extent of deleting the period of probation for three years and substituting two years' probation, and by deleting the order that a conviction is recorded and replacing it with an order that no conviction is recorded.

DAVIES JA:  I agree.

MOYNIHAN J:  I would dismiss the application. I am not persuaded that the sentence below was outside the range of a sound exercise of the sentencing discretion in circumstances where the sentencing judge properly and justifiably considered detention.

THE PRESIDENT:  The orders are as I have stated.

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