R v J[2000] QCA 489

COURT OF APPEAL

McPHERSON JA

WILLIAMS J

DOUGLAS J

CA No 170 of 2000

THE QUEEN

v.

J Applicant

BRISBANE

DATE 28/11/2000

JUDGMENT

DOUGLAS J:  The applicant was convicted of eight relevant crimes with respect to this appeal, one count of assault occasioning bodily harm in company, three counts of attempting to unlawfully use a motor vehicle, one count of common assault and three counts of unlawful use of a motor vehicle.

In respect of those charges, he was sentenced to two years' probation and 100 hours' community service and convictions were recorded by the learned District Court Judge.

The appeal today is only in respect of the recording of convictions.

The facts surrounding the assault occasioning bodily harm were that on the evening of 3 October 1999 the complainant, a man of 23 years of age, was walking through King George Square in Brisbane.

He encountered a group of approximately nine indigenous youths, one of whom, a female, approached him and asked for his cigarette or some money.  The complainant indicated he had neither and was immediately confronted by one of the male youths in the group who accused him of attempting to pick up his sister.

The complainant denied this and continued walking only to be surrounded by the group and subjected to a sustained beating.  He was punched and kicked to all parts of the body, predominantly to the head.

Police officers saw the incident and raced to his assistance.  The girl was seen rifling through the complainant's pockets as he lay prone on the ground and the applicant was seen to kick the complainant's upper body several times whilst one of his co-offenders repeatedly stomped on the complainant's head.  Both youths continued their kicking assault even as the police were dragging them from the complainant.

The complainant suffered multiple bruises to the face and scalp, tenderness to areas of the face and right shoulder and an abrasion to the left knee.

The learned trial Judge described that conduct in the following way:

"Even if they were committed by an adult they would be regarded as very serious offences.  This is an old, old trick, to get a little girl to approach somebody, then to accuse that person of wanting to have some further connection with her and then to put the person at the disadvantage by accusing the person of doing something improper.  That sort of behaviour really has to be deterred."

He also described the offences of unlawfully using the motor vehicles as very serious because substantial damage was caused to at least one of those vehicles, that damage being in excess of $9,000.

His Honour gave consideration to the provisions of the Juvenile Justice Act which I recognise provide that convictions should not be recorded in most circumstances in respect of crimes committed by juveniles, especially juveniles of the age of this applicant who was approximately 13 years old at the time.

His Honour said:

"Concerning the question of recording a conviction, I am not satisfied in the circumstances of this case that the recording of convictions will operate in any exaggerated sense on the child.  They are very serious matters and I direct that convictions be recorded."

On his behalf, it was submitted that the learned sentencing Judge has failed to place any or any sufficient weight on the age of the child and his lack of previous convictions and that whilst the offence of violence is serious, even if it had escalated into an offence of robbery in company, it is unlikely that the recording of a conviction in respect of a 13 year old offender with no previous convictions would be found to be a proper exercise of the sentencing discretion.

Section 125 of the Juvenile Justice Act provides what matters must be taken into account in determining whether or not to record a conviction. 

The first of those is the nature of the offence, the second is the child's age and any previous convictions and the third is the impact the recording of a conviction will have on the child's chances of rehabilitation generally.

His Honour thought that the recording of convictions would not operate in any exaggerated sense on the child.  In saying that, he was expressing a view that the recording of a conviction would not impact on the child's chances of rehabilitation generally.

In my view, the exercise of the learned trial Judge's discretion to record convictions was a proper exercise of the discretion vested in him.

I would not interfere with the sentence which included a recording of convictions in respect of those three groups of offences.

McPHERSON JA:  I agree.

WILLIAMS J:  I would add to what has been said by my brother Douglas that in determining whether or not to record convictions the learned sentencing Judge was entitled to have regard to the overall criminal conduct of the applicant.

The assault charge to which reference has been made extensively occurred on 3 October 1999.  The applicant was arrested immediately thereafter and released on bail.

The second indictment dealt with a group of offences which occurred on 3 December 1999.  They involved three attempts to unlawfully use a motor vehicle and one charge of common assault.  Apparently, the owners of the motor vehicles in question saw the applicant interfering with the motor vehicles in the car park and went to apprehend him and a co-offender.

The applicant then said words to the effect, "Keep back.  Don't come near me or I will stick you," and at that stage he was waving a screwdriver in a threatening manner.  The police again arrested the applicant at the scene of those offences.  He was again released on bail.

The sentencing Judge also had before him an ex officio indictment which charged an offence of unlawful using on 28 January 2000, another offence of unlawful using on 9 February 2000, and a third offence of unlawful using on 2 April 2000.

It should be said that with respect to the second count of unlawful using on the ex officio indictment there was a police chase which resulted in the applicant crashing the stolen vehicle and causing in excess of $9,000 damage to it.

Therefore, it seems to me that the learned sentencing Judge had to deal with a series of significant criminal offences committed over a period of time from 3 October 1999 to 3 April 2000 and a number of those offences were committed after he had been arrested and released on bail.

In all of those circumstances, I am of the view that it was an appropriate case in which to record convictions.  I would refuse the application.

McPHERSON JA:  The application for leave to appeal is refused.