R v Malayta[2000] QCA 433

SUPREME COURT OF QUEENSLAND

1. de JERSEY CJ and HELMAN J:  The applicant pleaded guilty to seven offences contained in four indictments.  He was 17 years of age when he committed the offences, and 18 years old when sentenced.  The case raises an important question of construction of the Juvenile Justice Act 1992, concerning the extent to which a court sentencing an adult may have regard to the offender’s criminal record as a child.

2. The effectiveness of sentencing depends on the court’s being properly informed of the relevant circumstances. Then the judicial discretion, so fundamental to just sentencing, may be exercised justly. For good reason, juries are not made aware of an accused person’s past criminal record. That is to avoid their being influenced, or “inflamed”, to convict because the person has previously offended. An alleged offender must only be convicted following a dispassionate assessment of the evidence of the alleged offending. But with a conviction, the public interest requires that the need for deterrence, the justification for punishment as such, and the prospect of rehabilitation, be gauged by the sentencing judge as carefully as possible. Previous offending is potentially highly relevant in that process. Accordingly, judges are customarily informed fully of an offender’s prior record.

3. Where an adult has offended while a child (a person under 17 years of age: s 5 Juvenile Justice Act, no date having been fixed under s 6(1)), the legislature has however taken the view that the disclosure to the sentencing judge of the offences then committed should be limited.  That is because, given the comparative lack of maturity of the child, his prior offending should not carry the same adverse significance as prior offending by a supposedly mature adult.  But where the adult has, as a child, offended seriously, the same indulgence should not be extended.

4. The issue in this case is whether, in those broad circumstances, the court sentencing the adult may have regard to the whole of his record of child offending, or just its more serious instances. This sentencing judge considered the whole of the record: he was right to do so.

5. The circumstances of the offences were, briefly, as follows. The applicant, on 4 December 1998 at Sarina, unlawfully came into possession of a woman’s handbag, containing a purse which included her bank key card and a record of the PIN number. For that offence, which amounted to stealing, he was sentenced to two years’ imprisonment. He then brazenly attempted to use the card at a service station. That attempted fraud attracted one year’s imprisonment. He later successfully used it at an automatic teller machine, withdrawing $60. For that offence of fraud he was imprisoned for two years.

6. About two months later, the applicant entered a newsagency with an accomplice and demanded money from the sales assistant. The applicant wore a shirt over his head. A bystander foiled the attempt. For attempted stealing the applicant was imprisoned for two years.

7. Six days later, at a hotel in Sarina, the owner of the stolen handbag confronted the applicant. There was a heated exchange which ended up in physical contact. Ultimately the applicant savagely hit the complainant about the head with a pool cue. The pool cue broke. The complainant’s injuries included lacerations to the chest and back, a fractured left wrist, bruising of the head and neck, and residual psychological difficulties. For this the applicant was sentenced to three years’ imprisonment, reduced from four years to reflect the plea of guilty.

8. About four months later the applicant entered a dwelling house intending to steal. (He had jemmied open the front door.) He was sentenced to three years’ imprisonment for this, again reduced from four years because of the plea of guilty. He stole property valued at $2,764, including compact discs, a camera, a dictaphone, sunglasses, jewellery and clothing. The sentence for the stealing was two years. All sentences are to be served concurrently.

9. The Crown Prosecutor sought a four year term, whereas defence counsel urged two to three years with further reduction because of the pleas. Significantly, all of the offences were committed while the applicant was on probation. He was on probation until 23 April 2000, the two-year order made in the Mackay District Court on 23 April 1997 having been extended in the Mackay Circuit Court on 9 February 1998 to three years. Some of the offences were committed while the applicant was subject to a fixed release order which ran from 3 October 1998 to 16 March 1999: exhibit 2. When the order was made, however, he was no longer a child, having turned 17 on 20 June 1998. When the applicant came to be sentenced, he bore the burden of a substantial prior criminal history. He had previously been given the benefit of the range of community based and rehabilitative orders, but had persistently re-offended.

10. The history includes many offences for which convictions were not recorded. The learned judge had regard to the entire history, including those offences, observing during his remarks to the applicant:

“Your criminal history itself is a very depressing document for someone of your age.  As a child you committed really quite serious offences.  You were treated with the leniency which is customarily offered to children, and you continued committing quite serious offences of dishonesty, wilful damage and there is, I see, a conviction for unlawful assault also when you were a child.”

11. The issue raised now on the applicant’s behalf concerns the learned judge’s use of that prior criminal history. The history covers a period of five years and nine pages of the record book. It includes numerous convictions for breaking and entering, assault, assault occasioning bodily harm, stealing, breach of bail, entering dwelling houses with intent, supplying dangerous drugs and other offences. The applicant was a child during most of the period covered by the record. As already indicated, many of the entries involved the particular court’s not recording any conviction.

12. Counsel for the applicant submitted that the sentencing process miscarried, in that the learned judge had regard to the entire criminal history, including instances where no conviction was recorded, contrary to limitations said to arise from s 114 of the Juvenile Justice Act.  It should be noted that the judge was not referred to these provisions, and made no mention of them in the course of the proceedings.  The point is raised by the defence, for the first time, before this court.

13. Section 114(1) provides:

“114.(1)In a proceeding against an adult for an offence, there must not be admitted against the adult evidence that the adult was found guilty as a child of an offence if a conviction was not recorded.”

The following subsections, however, establish an exception:

“(3)Subsection (1) does not apply to the finding of guilt for a purpose mentioned in subsection (4) if the adult, as a child, was dealt with for a seven year offence and then committed and was dealt with for a seven year offence.

4. For an adult mentioned in subsection (3), the finding of guilt is part of the adult’s criminal history for a proceeding in which the adult is sentenced for any offence.

14. A “seven year offence” is defined by s 5 as “a life offence or an offence of a type, that if committed by an adult, would make the adult liable to imprisonment for seven years or more”. The applicant’s criminal history includes a number of offences, committed by him when a child , which fall into that category: breaking and entering with intent (Sarina Children’s Court, 15 February 1995); six counts of breaking and entering a dwelling house with intent, and two counts of breaking, entering and stealing (Mackay District Court, 23 April 1997); and five counts of supplying dangerous drugs, four counts of entering a dwelling house with intent and one count of breaking premises and committing an indictable offence in them (Mackay Circuit Court, 9 February 1998). For the offences dealt with in the Circuit Court, convictions were recorded. Convictions were not recorded for the other offences.

15. In the unusual and rather stark language of subsection (3), the applicant, when a child, “was dealt with for a seven year offence and then committed and was dealt with for a seven year offence”. (One takes it that the two offences to which the subsection refers must each have been committed while the offender was a child. The subsection is more readily understood if one reads the concluding words, “a seven year offence” as meaning “another seven year offence”.)

16. The question raised for the applicant is whether s 114 operated, therefore, to authorise the sentencing judge’s reference to the entire past criminal history of the applicant, or only to one or more “seven year offences”. Mr Farmer, who appeared for the applicant, submitted that the words in subs (4), “the finding of guilt”, relate only to the seven year offence latterly referred to in subs (3) – although he would not limit the sentencing court only to that, but include as well any additional, subsequent seven year offences for which the child was “dealt with”.

17. It is necessary to read subs (1), (3) and (4) together. Reference to a finding of guilt appears in each subsection. Subsection (1) refers to a finding of guilt against a child, where no conviction is recorded, and prohibits the reception of evidence of the finding in all proceedings for offences against the child after he or she becomes an adult. Reference to the finding when the offender subsequently falls to be sentenced as an adult is of course caught by that general prohibition. Subsection (3) then creates an exception: “the finding of guilt”, that is, the finding referred to in (1), may nevertheless be regarded for a purpose mentioned in subs (4) where the child had been dealt with for a seven year offence, and then committed and was dealt with for another seven year offence. The purpose mentioned in subs (4) is that of sentencing an adult for any offence. Subsection (4) then provides expressly, and apparently to make the position even more abundantly clear, that for an adult to whose history subs (3) applies and who is being sentenced, “the finding of guilt” forms part of the criminal history to which the sentencing court may have regard.

18. Read literally, the provisions would authorise reference by the court to all offences, committed while the offender was a child, for which the child was found guilty but convictions not recorded, and not just those which amounted to seven year offences. Introducing the concept of a finding of guilt, subs (1) contemplates all cases or any cases where a conviction has not been recorded.  The apparent prohibition is, in short, comprehensive.  But the prohibition – that “comprehensive” prohibition -  is lifted by the operation of subs (3) where the child has been dealt with for a seven year offence, and has then committed and been dealt with for another seven year offence. Then “the finding of guilt” may be referred to at the sentencing of the adult (subs (4)).  Those words, “the finding of guilt”, take one back, via subs (3), to subs (1) which, as said, is to be read as referring to all or any cases where convictions have not been recorded. 

19. There is no warrant for reading “the finding of guilt” in subs (3) and (4) as relating only to the seven year offence secondly referred to in subs (3) and any subsequent such offences. If that had been intended, why would the legislature not have said, simply, that evidence of those offences might be led, even though convictions were not recorded in respect of them? The contention urged for the applicant would distort the language of the provisions where their natural construction produces a sensible, reasonable result.

20. Strong added support for this construction of s 114 may be gained from s 18O. Section 114(7) provides that “dealt with” (the words of subs (3)) includes “being administered a caution” and “making a community conference agreement”. Section 18O provides that the fact of a caution, or community conference agreement, becomes “disclosable”, if an adult offender, while a child, was dealt with “for a second or later seven year offence”. To complete the picture, s 114A provides then that a caution which is a “disclosable caution”, and a community conference agreement which is a “disclosable community conference agreement”, “may be considered as part of the … criminal history” of a person being sentenced.

21. Significantly for the present, s 18O (3)(a) provides that “it is immaterial – whether the caution or agreement … was administered or made for the second or later seven year offence … or for another offence …”.  The effect of those provisions is therefore that an adult who, as a child, was dealt with for two or more seven year offences, cannot resist the disclosure, to the court sentencing him as an adult, of all cautions and community conference agreements, not just those which may relate to those seven year offences.  (The expression “second” seven year offence is defined under s 18O(4) to mean “a seven year offence the child commits after being dealt with for a seven year offence” – that is, comparably with s 114(3).)  Cautions and community conference agreements are administered or made as alternatives to the commencement of court proceedings in relation to alleged offences (s 18J(3)) – although a court, having determined guilt, may in certain circumstances refer “an offence” to the community conference regime: s 119A. 

22. It would be surprising if all cautions and such agreements could be disclosed to later sentencing courts in circumstances like these, yet all offences in which convictions were not recorded could not. One would think the case for disclosing actual findings of guilt, albeit without convictions recorded, with a view to assisting the sentencing court, more compelling than in relation, for example, to “mere” cautions. These considerations substantially reinforce the case for following what is in any case the plain and natural reading of s 114.

23. It follows that the learned judge rightly had regard to all of the applicant’s prior criminal history.

24. There are two aspects of the drafting of these provisions which, while diverting, are not significant to the resolution of this question of construction. It may however be helpful to note them.

25. Under s 114(3) the child must have been “dealt with for a seven year offence and then committed and (been) dealt with for a seven year offence”. As previously suggested, that provision is more readily understood if read as referring latterly to “another” seven year offence. As mentioned during argument, the word “then” in subs (3) postulates a time separation between when the child is “dealt with” for the first seven year offence, and his commission of the seven year offence for which he is subsequently dealt with. In theory, the latter mentioned seven year offence may not be the child’s second such offence. That is because when first “dealt with” for a seven year offence, the child may have been “dealt with” in relation to more than one such offence. For s 114 to authorise disclosure of the criminal record in such a case, there must “then” be the commission of the subsequent such offence and the offender’s being “dealt with” for it.

26. Second, there is the circumstance that s 18O(1)(b) and (c) refer to “a second or later seven year offence”, whereas s 114(3) does not advert to the possibility of further seven year offences.  The difference in drafting is puzzling, but apparently without significance.

27. As said, the learned judge properly took account of all of the applicant’s prior record.

28. But it may be observed that even were the judge’s right to look into the applicant’s past history limited in the way for which Mr Farmer contends, it would be very difficult to see how this court could be justified in regarding these sentences as manifestly excessive. Proceeding in accordance with Mr Farmer’s suggested limitation, the court would still know highly significant aspects of the applicant’s past criminal history.

29. The court would still learn that on 23 April 1997, in the Mackay District Court, the applicant was dealt with for offences of breaking and entering dwelling houses with intent, committed on and between 27 October 1994 and 8 October 1996, and two counts of breaking, entering and stealing, committed in November 1996. No convictions were recorded. He was ordered to carry out 200 hours community service, and subjected to two years’ probation with a special drug and alcohol counselling and rehabilitation condition. He subsequently re-offended during the currency of the probation period. On 9 February 1998 he was dealt with in the Mackay Circuit Court for five counts of supplying dangerous drugs, committed between 1 March and 18 July 1997, four counts of entering dwelling houses with intent, committed in July and September 1997, and a breaking of premises committed in September 1997. Convictions were recorded. He was ordered to be detained for 18 months at a youth detention centre. He was released from detention on a fixed release order on 3 October 1998. That order ran concurrently with his probation order until it expired on 16 March 1999. As will be seen, he committed the first of the subject offences only two months after his release from detention, and while subject to those orders.

30. The sentences imposed here, for this range of offences, were, even on that unduly limited basis, appropriate. The offences were committed over a period of six months, with the assault occasioning bodily harm (and also the entering of the dwelling with intent) falling into the serious category. The assault occasioning bodily harm was especially serious. The offender was only 17 years old, certainly, but he is seen to have had, even on that limited basis, a substantial criminal history, where a community based order had previously failed, the applicant was on probation at the time of offending, and he had previously been detained. The sentences, looked at even in that circumscribed way, were appropriate, and sufficiently allowed for the pleas of guilty and the presentation of an ex officio indictment.

31. Counsel for the applicant drew attention to a number of cases to which we should briefly refer in order to point up their arguable significance, or lack of significance, to the resolution of this application.

32. Heath CA 97 and 98/1995 concerned just one isolated opportunistic breaking and entering with intent, and the offender with the worse record in that case was sentenced to three years with parole recommended after 12 months.  Morris CA 409/1994 is complicated by parole release considerations and is not presently helpful.  Hearn CA 153/1991 concerned an assault committed during a period of domestic disharmony, and where the complainant wished to resume cohabitation with the offender.  In Pop CA 549/1994, two years’ imprisonment was imposed for a serious assault occasioning bodily harm, but significantly for the present, as the result of an appeal by the Attorney-General.  Row Row CA 382/1997 concerned a wounding with a machete which attracted a three and a half year term of imprisonment.  The offenders in McCrea CA 272 and 291/1994 had no relevant prior criminal history.  Negus CA 57/1997 was sentenced to four years’ imprisonment for two counts of housebreaking and two of stealing.  In Taylor CA 101/1997 a 21 year old man with a significant record who pleaded guilty to breaking, entering and stealing was subject, following appeal, to three years’ imprisonment.  None of those cases, in short, in light of those brief comments, would support a view that imposing three years’ imprisonment was in this case inappropriate.

33. Taking account of the whole of the applicant’s prior criminal history, as the learned judge properly did, we conclude the sentences imposed are even more plainly unassailable. The applications should be refused.

34. MACKENZIE J:  This is an application for leave to appeal against sentence.  The facts of the offences for which the applicant was sentenced are summarised in the reasons for judgment of the Chief Justice and Mr Justice Helman.  Despite the applicant's youth, if the sentencing judge was entitled to take into account the whole of his previous criminal activity, the sentences of 3 years imprisonment for the offences of assault occasioning bodily harm and breaking and entering with intent and the proportionate sentences for the other offences were in my view not manifestly excessive.

35. He committed the offences over a period of 7 months in four separate episodes. He had been released from detention only 2 months before the first group of offences was committed. He was also on probation when all the offences were committed. He committed many of the offences while on bail.

36. He had previously committed about 35 offences of dishonesty, the majority of which were breaking and entering offences. He also had prior convictions for assaults, wilful damage and drug offences.

37. The assault occasioning bodily harm was a serious example of the offence, even allowing for the fact that it arose from an altercation between the female complainant, who had been the victim of offences in the first group, the accused and his brother. The complainant, who was in the process of quitting the argument, was hit in the head with a pool cue with sufficient force to smash it and cause her concussion, lacerations and a fractured wrist. She suffered painful consequences of the assault, both physical and personal.

38. The offence of breaking and entering resulted in the theft of over $2,700 worth of property. The front door of the dwelling had been jemmied open, and cash and property of kinds easily converted into cash were taken.

39. The sentencing judge took into account the applicant's pleas of guilty, including a plea to an ex officio indictment for the last mentioned offence by reducing the head sentence that he thought appropriate for the most serious offences, 4 years imprisonment, to 3 years.

40. Given the full extent of the applicant's criminal history, such a sentence cannot be said to be manifestly excessive. The remaining question is whether the Juvenile Justice Act 1992 allows the whole of his criminal history to be admitted for sentencing purposes in relation to the present series of offences.  The interpretation of its relevant provisions which follows is identical in principle to that advanced in the joint judgment, but expressed in a more compressed way.

41. Section 114(1) makes evidence that an adult was found guilty of an offence as a child inadmissible against the offender as an adult if no conviction was recorded. It is implicit that a recorded conviction as a child is admissible against the person as an adult.

42. In combination, subsections 114(3) and (4) provide that "the finding of guilt" is part of an adult's criminal history if the adult, as a child, was, firstly, dealt with for a 7 year offence and then, secondly, committed and was dealt with for another 7 year offence.

43. "The finding of guilt" referred to in s 114(3) and (4) is that referred to in s 114(1), any finding of guilt with respect to which no conviction was recorded. Therefore, commission of two sequential 7 year offences while a child makes any finding of guilt in respect of any offences committed as a child part of the adult's criminal history.

44. While none of the appearances by the applicant as a child were dealt with by caution or community conference, the interpretation advanced may be tested against the provisions of the Act concerning those methods of disposition, since ss 114(3) and (7), in combination, purport to make offences "dealt with" by both of those methods as well as on a finding of guilt a triggering event for the exception to s 114(1). A caution does not involve a finding of guilt (s 11). A community conference agreement may or may not, depending on how it is initiated (s 18A; Pt 5 Div 1A). The notion of a "finding of guilt" in cases where there has been a caution or a police initiated community conference agreement therefore sits uneasily in s 114. The definition of the term in s 5, being inclusive, not exhaustive (as some other definitions seem to be), is ambivalent.

45. But because of s 114A, a "discloseable caution" and a "discloseable community conference agreement" are admissible for an adult offence. Section 18O defines these concepts. The effect is, that where a child has been cautioned or has entered into a community conference agreement and is dealt with as a child for a second or later 7 year offence and after being so dealt with commits any offence as an adult, the matters dealt with by caution or community conference agreement are admissible as part of the criminal history. Subsection 18O(3) makes it plain that all dispositions by caution or community conference agreement are included.

46. There is a comprehensive scheme in the Act with regard to the circumstances in which offences committed as a child may be used in proceedings once the person has offended as an adult. There is no basis for giving an interpretation, limited in the way pressed in argument on behalf of the applicant, to the scheme of exceptions created where a child serially commits "seven year offences", and is then dealt with for a further offence as an adult.

47. It follows that it was permissible for the sentencing judge to take into account the applicant's full criminal history. There was no error in principle in doing so, or in other respects. The application for leave to appeal against sentence should therefore be refused.