R v L[2000] QCA 448

COURT OF APPEAL

McMURDO P

PINCUS JA

THOMAS J

CA No 194 of 2000

THE QUEEN

v.

L Applicant

BRISBANE

DATE 27/10/2000

JUDGMENT

THE PRESIDENT:  The applicant pleaded guilty in the District Court at Brisbane to one count of unlawful use of a motor vehicle and two counts of stealing and also to three summary offences involving two counts of possession of a dangerous drug, cannabis and one count of possession of a knife in a public place.  The applicant was sentenced globally to perform 50 hours community service on the usual conditions and a conviction was recorded.

The applicant submits that the learned sentencing Judge erred in the exercise of his discretion in recording a conviction because of his age - sixteen and a half at the time of the offences - and his prospects of rehabilitation.

The applicant was born on 16 June 1983.  Although he had turned 17 at the time of his sentence the Juvenile Justice Act 1992, by way of sections 103 and 104, made that Act applicable.  He had some criminal history.  In November 1999 he was reprimanded for possession of liquor in a public place whilst a minor.  He also pleaded guilty to four charges of unlawful use of a motor vehicle, two charges of entering premises and committing an indictable offence and breaking out and three counts of stealing.  He was sentenced to two years probation, with a special condition requiring drug counselling and 200 hours community service.  He also pleaded guilty to two counts of possession of utensils or pipes for smoking marijuana and was placed on a good behaviour bond.  No convictions were recorded.  These were his first appearances before the Court.

The offences the subject of this application occurred as follows.  On 23 November 1999, not long after the applicant was placed on probation, the complainant's Ford Telstar motor vehicle was taken from Grovely Railway Station and his QUT student card stolen.  On 18 December 1999 the applicant was spoken to at the Keperra Railway Station, searched and the complainant's ID card was found in his possession.  The applicant said he found it in a wallet in the City.

On 12 January 2000 the complainant loaded his son's bike in the rear of a van.  The applicant took the bicycle from the van but was pursued by neighbours, caught and restrained until police arrived.  He then admitted to the police that he and James Dipple took the Ford Telstar motor vehicle.  Cannabis seeds were located in his wallet.

On 20 January 2000 he was found with two other juveniles in Mitchelton and was observed to throw an object into the bushes, which was later identified as a screw driver.  He was in possession of a large folding pocket knife.  More cannabis seeds were located in his pocket.

It is immediately notable that the applicant twice re-offended after being at least questioned and possibly charged by police.  All these offences were committed in contravention of a probation order imposed only a short time before.

Breach proceedings were taken by the department in the Children's Court but were not finalised at the time of the applicant's sentence in the District Court. 

After initiating breach proceedings the applicant was given a further opportunity to comply with the probation and community service orders and the department was satisfied with his subsequent performance at the time of sentence.  He did not re-offend from 12 January 2000 until sentence, a period of about six months.  He was in casual employment, mowing and brush cutting, and was assured of work three or four days a week for at least the next month.

A pre-sentence report was prepared by the department.  It listed the factors contributing to the applicant's offending as lack of purpose and daily structure, education failure and unemployment, break-up of parents' marriage, strained relationship with father and lack of mentoring.

The applicant's parents separated when he was 10 years of age and the applicant greatly missed his father when his father moved to Thursday Island.  When he was 14 his mother commenced a new relationship and the applicant moved in with his uncle, who had been a high school teacher and is now a social worker.  During this period the applicant achieved extremely well at school and learned a range of useful living skills.  His uncle moved overseas after one year and the applicant's offending commenced at this time.

The report notes, "He talks enthusiastically about becoming a carpenter, a cabinetmaker or a horticulturalist.  He is aware he needs to study at TAFE to qualify for any of these trades.  It is clear he has the capacity if he can apply himself and he talks about a horticulture course that is starting this July at Grovely TAFE."  The report also notes that, "The applicant has a large, extended, seemingly well-adjusted family who are interested in his welfare and with whom he has a positive relationship, describing the applicant as a very likeable young man, well-mannered and well-spoken, with no problems with aggression or management of his anger."

The report demonstrated to me the applicant's immaturity when it noted that his ambition was to "get a Playstation".  Significantly the report notes, "Now that he is 17 years of age he feels he needs to settle down and get an education and a job he will be happy with.  He is fearful of the consequences if he offends as an adult and has stated he will not offend again and that he will comply with any order the Court makes."

The learned sentencing Judge gave his reasons for recording a conviction as being, "The offending was quite soon after other substantial offending, the applicant was caught in the act and there was no particular material to suggest that a recording of a conviction would have any particular adverse economic impact."  These considerations were all valid.

The exercise of discretion as to whether or not to record a conviction under the Juvenile Justice Act 1992 involves somewhat different considerations from those for adult offenders under the Penalties and Sentences Act 1992.  See sections 3, 9 and 12 of that Act and compare sections 3, 4 109, 124 and 125 of the Juvenile Justice Act 1992.  Unlike the position for adult offenders, section 124(1) of the Juvenile Justice Act 1992 proceeds from the primary position that a conviction is not to be recorded against a child offender:  see R v. Beutel, CA No 551 of 1994, 9 June 1995.  His Honour was not directed to this decision, nor to the different considerations when deciding whether to record a conviction against a child.  I refer to the primary purpose of the Juvenile Justice Act 1992 being the child's rehabilitation.

For my part - and I understand my decision will be in dissent - in all the circumstances of this case, particularly the applicant's plea of guilty and co-operation, the less serious nature of the offending, his unsettled family background and his promising prospects of rehabilitation, I am finally persuaded the learned sentencing Judge erred in exercising his discretion to record a conviction.

In reaching that conclusion I am in no way diminishing the serious aspects noted by his Honour, namely the applicant's re-offending whilst on probation. 

I would grant the application for leave to appeal against sentence and allow the appeal to the limited extent of deleting the recording of a conviction and instead order that in respect of all these offences no convictions are recorded.

PINCUS JA:  One finds in the record at page 3B some information which seems to me useful about the offences which the applicant had committed in April and May 1999, and for which he was sentenced to community service and two years' probation.  These were described as follows.  (I will not read the whole, but only what seem to be the most significant parts.)  It is said that the applicant "appeared in the Brisbane Children's Court of Queensland on 5 November 1999 in which he was sentenced with respect to six counts of unlawful use of a motor vehicle, three with circumstances of aggravation, two counts of break and enter premises and commit an indictable offence, and three counts of stealing".

The prosecutor then went on to explain that there were offences covering a period of 27 days.  There were two co-accused and the applicant was a passenger, in respect of the offences.

The prosecutor went on:

"On two occasions he had been in the stolen vehicle which attended service stations.  On one occasion he had pumped petrol from one of the vehicles and they left without paying, and on the second occasion he was in the vehicle.  He admitted to stealing a stereo from a motor vehicle and he was present when two - what have been called 'Ram Raids', were committed.  The Boondall News and Casket Agency at Boondall and the Mobil service station at Nundah both had motor vehicles driven through their front windows.  On one occasion the Boondall offence - these are the enter premises and commit indictable offence charges - he acted as a lookout.  On the second occasion he carried, I'm instructed, cigarettes from the premises.  A total of approximately $5,500 damage, and stock was taken..."

"With respect to the second one, the Mobil service station offence at Nundah, a police chase eventuated.  Eventually there was a collision with a police vehicle and he was located at the scene.  There was no suggestion that he was the driver of the vehicle."

The offences which I have mentioned were committed in April and May 1999 and the offences with which the Court is presently concerned were committed in November 1999, December 1999 and January 2000.  However, the April and May offences had been dealt with in November, that is on 5 November, so there was only quite a short period of time between being dealt with for those offences, which were of a reasonably serious character, and re-offending.

The other matter which influences me is that although there are some difficulties, mentioned in the report to which the learned presiding Judge made reference, in the applicant's background, he does not appear to me to have been a particularly disadvantaged youth.  He has had difficulties with his relationship with his father, his parents have separated, and these are matters which, of course, are not uncommon these days, but as the President has mentioned, he has a good relationship with a large extended family and they are interested in his welfare.

These circumstances are, of course, relevant when one is considering rehabilitation, but they are also relevant when one considers whether the applicant is an unusually disadvantaged youth.  In my opinion he is not.  Mr Chowdhury, in his, as usual, concise and persuasive address, said in effect that the matter was one which might be close to the line and he meant, of course, that it was close to the line where the Court had a discretion whether or not to record a conviction. 

In my opinion the case is over the line.  It appears to me, with respect, to fall within the area where the Judge could properly exercise his discretion by recording a conviction and that is what his Honour did.  It does not appear to me possible to say, at least with any reality, that the learned primary Judge imposed a sentence which was manifestly excessive and I would dismiss the application.

THOMAS JA:  There are, as the President has observed, different considerations that apply in deciding whether to record a conviction of a juvenile offender than those in the case of adult offenders.  A higher priority is, I think, placed on the rehabilitation of juveniles and in general the Court's response in that area is to be slow to record a conviction unless good reason is seen for doing so.

On the other hand, as has been noted in The Queen v. Briese (1997) 92 A.Crim.R. 75, the recording of a conviction is a matter that has considerable ramifications of a public nature.  It was observed in that case that the non-recording of a conviction gives an offender the right to conceal the truth about what has happened in the criminal Courts and that there are various public groups that have an interest in knowing the truth, including potential employers, insurers, government departments and many others.  But, of course, the factor of this public interest in having a conviction recorded arises less readily in the case of a juvenile than in the case of an adult offender.  There is therefore a balancing exercise involved.

That having been said, the previous offences of this applicant were quite serious.  They were followed by three separate incidents of further offending after being granted probation.  No economic factors were suggested as being relevant.  The main argument in favour of the non-recording of a conviction is purely his age, which at the relevant time, was sixteen and a half.  That I note is in the latter stages of his juvenile status.

In these circumstances I think it was within the discretion of the learned sentencing Judge to order that convictions be recorded in the present matters.  I would therefore refuse the application.

THE PRESIDENT:  The order is the application for leave to appeal against sentence is refused.

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