R v R[2000] QCA 490

COURT OF APPEAL

McPHERSON JA

WILLIAMS J

DOUGLAS J

CA No 198 of 2000

CA No 199 of 2000

THE QUEEN

v.

R and K  Applicants

BRISBANE

DATE 28/11/2000

JUDGMENT

McPHERSON JA:  These are applications for leave to appeal, or to extend the time for doing so, by two 11 and 12 year old boys against sentences imposed on them in the District Court at Dalby on 16 May 2000.  They pleaded guilty to numerous charges of breaking and entering, stealing, unlawful use and so on, committed during a period from about May to August 1999. 

The sentence imposed on each of them was probation for two years with convictions to be recorded.  The applicants' complaint before us is limited to the orders directing convictions to be recorded.

The targets of the offences were places or things like clubs, shops, hotels, a pharmacy, a supermarket, women's handbags at a bowls club and such like.  There were many offences but few, if any, involved articles of much value.  No acts of physical violence to the person were committed, except in two instances in which K pulled other boys off their bicycles and punched them.  There does not appear to have been any particular criminal motive for these actions, apart from some kind of misplaced bravado or boyish aggression.

What I have said in this regard is subject to an exception in the case again of K involving a count of attempted armed robbery.  The brief resume of it in the record is to the effect that, at about 9.30 p.m. on the day of the offence, the complainant was sitting in his cab outside the Metway Arcade in Cunningham Street, Dalby.  The complainant was approached by the prisoner, who had a track suit wrapped around his face, and was holding a house brick above his head.  He said to the complainant, "Give me all your money." The complainant refused, and the prisoner said, "Give me that wallet there or I'll bash your brains out with this brick." The complainant, not surprisingly, drove off in his taxi leaving the applicant behind, presumably still holding the brick.

That is potentially an offence of a serious kind but it looks like a pretty childish or amateurish attempt to carry it out and one might have some hesitation accepting that he really had it in mind to perform a robbery.

There is said to be some evidence to suggest that the applicant R had come under the influence of K at the time of these offences and that, since he stopped associating or doing things with him in this way, R's conduct and his grades at school have greatly improved.  R had, however, a not inconsiderable record of prior offences himself, most of the same general kind, committed in 1998, and his offending on that occasion cannot readily be overlooked.  K had committed some similar offences in June 1999, so that neither of them was a complete stranger to offending behaviour of this nature before being sentenced on the occasion in question. 

K is described in the reports forming part of the record as being "a difficult person to help".  His problems are said to have dated from his father's suicide, which greatly affected him.  Nevertheless, there are references, including one from a local police officer, which suggests there is some hope of rehabilitation in his case.  Under the probation order he agreed to attend a community centre called Mimosa Station where he would be looked after by his own people, and he is reported to have been enthusiastic about the prospect of undergoing that course.

The question whether or not convictions should be recorded was apparently not debated at the sentence hearing.  The learned Judge simply announced at the beginning of her sentencing remarks that convictions would be recorded. 

Speaking generally, recording a conviction is a matter for the exercise of judicial discretion and is not therefore readily or lightly to be interfered with on appeal.  There are no fixed rules in the Juvenile Justice Act offering guidance in the matter, except perhaps for s.124 (1) of the Act and the rather confusing statutory provisions related to it.  They are not altogether easy to follow but in R v. Beutel (CA 551 of 1994) it was said that s.124(1) proceeded on or from the primary proposition or position that in the case of children a conviction should not ordinarily be recorded.  At least one would think that to be so in the case of relatively petty offences, even if numerous, as they are here, and more especially where the offenders are as young as the applicants in this case are shown to be.

The fact that they have offended in the past in much the same way naturally goes against them in this context, but the prospect of rehabilitation, which is plainly a compelling factor in the statutory policy under the Act, cannot yet in the case of these two offenders be said to have been altogether exhausted.

In the result I consider that, taken in conjunction with the fact that her Honour gave no reason for recording convictions in this case, and it is not easy to infer why she did so, the discretion on this aspect of the sentencing process must in some way have miscarried here.

I would therefore allow the appeals to the extent sought of setting aside the orders that convictions be recorded in the case of each of the two applicants.  For that purpose leave to appeal should be granted along with any necessary extensions of time or applying for it.

WILLIAMS J:  I can see why a Judge called upon to sentence these two young offenders would have considered it appropriate to record convictions.  In the case of R, he had, for a 12 year old, an unenviable history.  He had been dealt with in the Childrens Court for some 22 offences, nine of which involved as an element that of entering premises with intent to commit an indictable offence therein.  Convictions were not recorded in relation to those offences.

However, it is in his favour that the officer of the Department responsible for his supervision made a statement to the sentencing Judge which indicated that he had responded well to supervision.  As that officer said, "Although R has a longer history he is much more willing and responds exceptionally well to supervision from the Department."  There was also evidence before the sentencing Judge that he had knuckled down at school and was performing better than previously.

So far as K is concerned, he was being dealt with for a larger number of offences.  He had apparently been placed on what is referred to in the record as "a conditional bail program" whilst awaiting sentence.  Apparently that did not deter him.  The departmental officer in question said of him, he "is still continuing to get into trouble", and also, he "is resistant to any supervision that we have provided him."

In those circumstances, as I say, I can see a basis for holding that it was appropriate to record convictions.  However, given the extreme youth of these offenders, I am of the view that the orders proposed by the presiding Judge are the appropriate ones in this particular case.

DOUGLAS J:  I agree with both my brothers. 

McPHERSON JA:  There will be orders in the form I have stated.