SUPREME COURT OF QUEENSLAND

[1]  HOLMES JA:  The applicant for leave to appeal against sentence was dealt with in the Childrens Court for sexual assault while armed.  He was 13 years of age at the time of the offence and 14 when sentenced.  He was ordered to undergo three years probation with additional conditions that he submit to medical, psychiatric or psychological treatment and attend and comply with programmes as directed.  No issue is taken with that order; what is in contention, in this application, is the recording of a conviction against him.

The offence

[2] The applicant lived with his mother and 17 year old sister, G, in a disadvantaged area of Brisbane.  One evening while the two teenagers were at home alone, G, who had fallen asleep on a couch, woke to find the applicant pushing her on the shoulders.  She saw that he was standing beside her, holding a knife in his right hand.  He said that he was going to kill her.  G responded, “No, you’re not. What are you going on about?”.  The applicant’s shorts were pulled down and he was masturbating.  He said, “Just give it to me.  I just want to have sex once”.  His sister pushed him away and ran to a bedroom where she locked herself in.  There was then a series of unlockings of the bedroom door by the applicant and re-lockings of it by G.  Eventually, G came out of the bedroom to find her brother still masturbating.  He said to her “Come on, just once”.  G snatched the knife from him and ran; he followed.  She told him to leave her alone, and went next door to a neighbour. 

[3] In a victim impact statement, G says that she was scared for her life during the incident, and after it had to move out of home to live with an aunt so that her brother could stay with his parents.  The experience had made her depressed and anxious in male company.

The pre-sentence report

[4] A pre-sentence report was obtained, the most significant component of which was a report by Dr Shumack, a forensic psychologist.  She explained that the applicant suffered from Klinefelters syndrome, a condition affecting males with an extra “X” chromosome.  It was associated with an increased risk of neuro-developmental and psychosocial problems.  The applicant had experienced learning delays and emotional and behavioural problems consistent with the syndrome.  He had also been diagnosed in the past with attention-deficit hyperactivity disorder (“ADHD”) and Asperger’s syndrome.  He had suffered from bullying in his local community, and his lack of psychosocial skills had made him vulnerable to the influence of other isolated, anti-social young people.  Through one particular acquaintance, he had become involved in stealing and substance abuse.  That individual had provided him with pornography in the form of DVDs and magazines and had made the suggestion that he rape his sister. 

[5] The applicant told Dr Shumack that although he accepted responsibility for his acts, there had been a voice telling him to do it and another telling him not to.  The psychologist suggested that that report might be the product of an emerging psychiatric disorder, substance abuse or simply malingering to minimise the consequences.  The applicant was presently seeing a psychiatrist who had prescribed anti-psychotic drugs for him, as well as medications to treat ADHD. 

[6] Dr Shumack observed that in addition to his neurodevelopmental problems and psychiatric disturbance, there were a number of risk factors in the applicant’s background: peer rejection, substance abuse, academic failure, parental violence, troubled family relationships and a lack of supervision and monitoring.  She noted also that the circumstance of the applicant’s being alone in the residence with his sleeping sister gave him the opportunity to offend.  He presented a moderate to high risk of re-offending and would benefit from intervention in a number of forms.

The sentencing

[7] The matter proceeded as a plea of guilty.  The applicant had spent four days in pre‑sentence custody before being granted bail.  On sentencing, the learned judge took into account what was contained in Dr Shumack’s report and accordingly made the probation order, with the special conditions that the applicant attend a particular youth forensic service programme or a similar programme and receive other treatment.  The Crown did not make any argument for the recording of a conviction, but it was, of course, necessary for the sentencing judge to consider the issue.  He noted that the applicant had not previously been convicted of any offence, but observed that the present offence was both of a serious kind, and a serious example of such an offence: it was deliberate, pre-planned and involved a weapon.  Consequently, he recorded a conviction.

The legislation

[8] Section 183(3) of the Juvenile Justice Act 1992 (Qld) identifies the instances in which a conviction may be recorded against a child:

“(1)Other than under this section, a conviction is not to be recorded against a child who is found guilty of an offence.

(2)If a court makes an order under section 175(1)(a) or (b), a conviction must not be recorded.

(3)If a court makes an order under section 175(1)(c) to (g) or 176, the court may order that a conviction be recorded or decide that a conviction not be recorded.”

In this case, the order for probation was made under s 176 of the Act, so that it fell to the Court to exercise a discretion.

[9] Section 184(1) sets out the considerations relevant to the exercise of the discretion as to whether to record a conviction.  They are:

“(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 retaining employment.”

The submissions on appeal

[10]  Counsel for the applicant submitted that although the offence committed was serious, as judged by the maximum penalty (life imprisonment), and undoubtedly alarming to the complainant, it was not “a serious example” of the type of the offence.  The remaining factors prescribed in s 184 militated against the recording of a conviction. 

[11]  Counsel for the respondent Crown, in emphasising the seriousness of the offence, pointed to its deliberateness, the use of a weapon, the applicant’s persistence in pursuing G, and its impact on G; all of which, she submitted, outweighed the applicant’s youth and the mitigating features in his favour.  She argued that the circumstances of the offence were so serious that the community’s interest in knowing the truth about the applicant’s background warranted the order.  If a conviction were not recorded, any Court sentencing the applicant as an adult could not be informed of the prior offence.  The question posed by the Chief Justice in R v Cay, Gersch and Schell; ex parte A-G (Qld)[1]-

“is there sufficient reason to contemplate subsequently denying persons, with an otherwise legitimate interest in knowing the truth, knowledge of the offender’s true circumstances?”

should, she submitted, be answered in the negative.

Recording of conviction against a child offender

[12]  I do not think, I should say, that the Cay question assumes the same importance in the case of juvenile offenders.  As the President observed in R v L[2]-

“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. [B], CA No 551 of 1994, 9 June 1995.”

Sections 124 and 125 were, in all respects material to this case, identical in their terms to ss 183 and 184.  The President was, in that case, in the minority as to the ultimate result, but not as to this aspect.  Thomas J specifically agreed that different considerations applied in deciding whether to record a conviction of a juvenile offender from those in the case of adult offenders.

[13]  I think, in any event, that the question posed in R v Cay ought in this case to be answered in the affirmative.  The applicant was 13 at the relevant time and had not offended previously.  It may be the case that he does not offend again as a juvenile or as an adult; at any rate, one cannot proceed on the assumption that he will.  On that basis, it is difficult to see that the community would have an interest in knowing of this offence, committed at a particularly vulnerable time in his development and in circumstances where guidance and assistance seem to have been lacking.  And as his counsel pointed out, the probation order will run until he is 17.  Were he to breach it by re-offending of a serious kind in that period, it would be open to the court re-sentencing on this offence to record a conviction, which would then be made known to any court which might sentence him as an adult.  If, on the other hand, he has not re-offended in any similar way by the time he reaches adulthood, the significance of this offence will by then be very much diminished. 

[14]  Some offences committed by children are, of course, inherently so serious that a conviction must be recorded.  By way of example, in R v KU & Ors; ex parte A–G (Qld)[3], this court described the recording of a conviction for the offence of rape of a 10 year old girl by youths aged between 13 and 15, all of whom had previous convictions, as “the irreducible minimum level of denunciation required by an offence of this gravity”.  But it does not follow that every offence which can, in general terms, be described as serious requires the recording of a conviction.

[15]  In R v B[4], the 1995 case mentioned by the President in R v L, this Court set aside an order recording convictions against a juvenile who at 14 had committed offences of breaking entering and stealing, armed robbery in company and with violence, and receiving.  The armed robbery was particularly serious; B and an older accomplice entered a store, the accomplice armed with an unloaded .22 rifle and the applicant with a knife.  B tied up a female employee while holding the knife close to her, and his accomplice held his rifle to a male employee’s head while forcing him to hand over money.  In that case the sentencing judge had not turned his mind to the discretion as to whether to record a conviction, so that it was necessary for the Court to exercise its own discretion.

[16]  McPherson JA and de Jersey J (as the Chief Justice then was) started their considerations on the issue in R v B from what they described as the “primary position” in s 124(1) of the Juvenile Justice Act, that a conviction was not to be recorded against a child offender.  They took into account a number of factors, all equally relevant here.  The nature of the armed robbery as a very serious offence weighed in favour of recording a conviction, but against that was the very young age of the applicant at the time of the offences; below the prima facie age of criminal responsibility under the Criminal Code[5].  At 14 years, the Court observed,

“[B’s] social, moral and emotional development obviously could not be considered to be complete.”

B had no prior criminal convictions, had been fully cooperative with the authorities, and had had the disadvantage of an unsettled childhood with many family problems.  Recording convictions would have an adverse impact on his prospects of rehabilitation and employment.  Pincus JA agreed that convictions should not have been recorded.  Accordingly, B’s application was allowed, and the recording of the convictions was deleted.

[17]  In a 2003 case whose name was similarly initialised, R v B[6], this Court allowed an appeal by a juvenile offender and set aside an order recording convictions in a case where the applicant had pleaded guilty to multiple offences including burglary, assault occasioning bodily harm, attempted robbery while pretending to be armed, and stealing from the person.  Davies JA, with whom the other members of the Court agreed, observed that it was “unusual to record convictions in respect of a child as young as this”.  In that case B, like the applicant here, was 13 years old when she committed the offences; unlike him, she had a substantial history of offences.  And here, of course, one has the additional factor that the applicant is retarded in his social, moral and emotional development. 

Conclusions

[18]  While clearly an offence of this kind is, in general terms, a very serious offence, I am unconvinced by the argument that the particular circumstances of this offending were so serious that the recording of a conviction was necessitated.  The evidence of pre-planning was limited to the applicant’s having taken up of the knife.  The assault lay in the threat, not the carrying out, of a sexual act; G was touched only on the shoulders and was not physically harmed.  It is not suggested that the knife was at any stage close to her.  She was able ultimately to take it from the applicant without any struggle.  G was dealing with her younger brother, not an unknown attacker; she was able to respond to and disarm him. 

[19]  The importance of rehabilitation is a strong consideration in the applicant’s favour; and it is of some significance that he indicated his willingness to engage in therapeutic counselling.  As to future employment, it seems probable that, as his counsel submitted, the applicant’s prospects are limited because of his many difficulties; in those circumstances the additional burden of a conviction could hamper even those limited prospects.

[20] R v L and the earlier decision in R v B were not drawn to the sentencing judge’s attention in this case.  Having regard to those authorities and to the statutorily prescribed considerations, I conclude that the recording of a conviction in this case was not within a sound exercise of sentencing discretion.  I would give leave to appeal against sentence, allow the appeal and set aside the order recording a conviction, without otherwise varying the orders made below.

[21]  MACKENZIE AJA:  I agree with the orders proposed by Holmes JA for the reasons given by her.

[22]  DOUGLAS J: I agree with the reasons for judgment and the orders proposed by Holmes JA.