SUPREME COURT OF QUEENSLAND

1. McMURDO P:  The applicant pleaded guilty on 1 June 2009 in Cairns to one count of attempted rape on 8 June 2008.  He was 15 at the time of the offence and 16 at sentence, and so was sentenced under the Juvenile Justice Act 1992 (Qld).  A pre‑sentence report and related reports were ordered under that Act.  On 8 September 2009, a conviction was recorded and he was sentenced to three years probation with a special condition that he attend the Griffith Youth Forensic Service or any other program as directed by the Department of Communities.  He applies for leave to appeal against his sentence, contending that the sentencing judge erred in failing to consider, or to properly consider, the matters set out in s 183 and s 184 Juvenile Justice Act in deciding whether or not to record a conviction.  He further contends that the sentence was manifestly excessive because of the recording of a conviction. 

2. The sentencing proceedings on 8 September commenced with the prosecutor tendering a pre-sentence report, a psychological assessment, and a schedule of facts.

The facts of the offence

3. The schedule of facts contained the following information. The complainant was aged seven on 8 June 2008. He was playing with his six year old brother and the applicant at the home of the complainant's Aunty, who regularly provided shelter to Indigenous youths.^[1]  The three walked to the local high school to play basketball.  They were in a treed area and no-one else was in the vicinity.  The applicant told the complainant to "come over here, we play gay".  The complainant resisted.  The applicant wrapped him in a bear hug around the ribs, pulled him to the ground and pushed him onto his back.  He then removed his own pants, pulled down the complainant's pants to near his ankles, positioned himself between the complainant's legs and attempted to push his penis into the complainant's anus.  The complainant felt one push of the penis on his anus and pain.  When he began to cry, the applicant desisted.  They both pulled up their pants and watched a game of football nearby before returning to the Aunty's house at about 5.30 or 6.00 pm. 

4. At 7.00 pm the complainant's mother picked him up and took him home. An hour later the complainant's six year old brother told their mother that during the day the applicant was "being gay". When questioned, he said the applicant "pulled [the complainant's] pants down and made [him] sit on him". He said that it looked as if the applicant had tried to put his penis into the complainant's behind, but missed. He said that he saw the two boys penises touch each other. The complainant's mother phoned the Aunty and informed her of this conversation.

5. The Aunty and her partner drove the applicant to the complainant's home. The group sat in the lounge room and questioned the applicant. He at first denied any wrongdoing. The complainant's brother stated that he saw that "[the complainant] had his trousers down and was sitting on top of [the applicant]". The applicant then said, "I tried to put my cock in [the complainant's] arse, but my cock slipped and went the other way." Someone asked the applicant if anyone had ever done this to him. He said that "a person named Guy had done so", but when he told his uncle about it at that time, the uncle just laughed.

6. That evening when the complainant went to the toilet he wiped his bottom and observed blood on the tissue paper. He did not disclose this at the time, but told police about it later. The complainant child was not medically examined. The applicant ran away from the Aunty's home the next morning and was not found until 14 July 2008. He declined to participate in an interview with police.

The pre-sentence report

7. The pre-sentence report provided the following information. The applicant spent 21 days in pre-sentence custody.  He had no criminal history and no supervised order history in Queensland.  His family background, which included poor role modelling; impulsivity; alleged sexual abuse; and educational issues, contributed to his offending.  He was a 15 year old boy from a north Queensland Indigenous community who is currently in the care of the Department of Communities.  He is from a disadvantaged background, characterised by alcohol abuse, aggression, poor parental boundaries, and a lack of supervision.  He has been considered at risk and a victim of neglect since August 1994 when he was about two years old.  He did not have the opportunity of experiencing appropriate role models to impress upon him positive treatment of other people and appropriate decision-making.  He was exposed to domestic violence from an early age.  His parents gave him to a paternal uncle and aunt as a baby. 

8. He disclosed two events of sexual abuse in his life, neither of which was investigated. He demonstrated a high level of impulsivity and poor emotional regulation, factors which place him at risk of committing a range of possible offences of an opportunistic nature, although not necessarily sexual. His school attendance was infrequent. He was suspended from school and associated with anti‑social peers.  He would like to attend school. 

9. He lacked insight into the seriousness of the offence. He expressed sorrow about it and attempted to apologise to the victim and the victim's mother, but his regrets were more because of the negative consequences he has suffered. He would benefit from participating in programs of counselling which specifically target increasing his perspective and the effects of his behaviour on victims in the wider community. He was subjected to bail conditions, including a curfew. If given the opportunity to engage in educational and developmental activities, he may have the potential to improve his opportunities in the future. He could remain residing in his current placement with Safe Places for Kids. If sentenced to probation, a case plan would be actioned to assist, support and encourage him to participate in appropriate community based activities encompassing cognitive skills, victim empathy, ending offending, educational and vocational programs, positive male role modelling and sexual education and treatment. He indicated a willingness to comply with such orders.

10. The pre-sentence report did not deal with the question at the heart of this appeal, namely, factors relevant to whether a conviction should or should not be recorded.

The psychological assessment

11. The psychological assessment provided the following information. The applicant had some difficulty with mainstream English usage. He was 'adopted' by his paternal uncle and his partner from birth in a traditional arrangement. His carers drank excessively and became physically violent towards one another. His older siblings would hit him if annoyed. His physical and emotional needs were neglected and he was removed from the custody of his guardians when he was about 12 years old. He was sexually abused by a teenage cousin before he was 10. He did not tell anyone because the perpetrator threatened to kill him. He identified himself as heterosexual and saw this episode as an isolated incident. He reported that he "felt a bit worried when he (the victim) started crying". He "felt a bit worried about what [he] did; worried about getting caught; sad; shouldn't have done that. [He] knew that [he'd] be in trouble". Tests indicated that he was immature for his age and with delinquent tendencies. He was, however, at low risk of committing further sexual offences.

The sentencing proceedings

12. After re-stating the salient facts, the prosecutor made the following submissions at sentence. Attempts to obtain a victim impact statement from the complainant child had met with no response. The offence was serious as it was committed upon a very young child of seven years. The applicant abused his position of friendship and trust within that relationship and setting. There was a degree of force used in that the smaller child was manhandled after indicating that he was not a willing participant. The substantive offence failed only because the applicant was unable to effect penetration and he gave up when the child cried out in pain. A sentence involving immediate detention for a period of about three years, with release after serving 50 per cent of that period was warranted.

13. Defence counsel made the following submissions at sentence. A lengthy period of probation, perhaps the maximum of three years, was appropriate in this case. The applicant had pleaded guilty at an early time. He was 15 when he committed the offence. He had a dysfunctional background. He owned up to the offence and had taken some responsibility for his behaviour, although, no doubt because of his background, he had not shown a great deal of insight into the consequences of it.

14. The judge asked a representative from the Department of Families about the applicant's prospects of rehabilitation. She explained that, whether he was sentenced to probation or a detention order, a special condition would be that he attend the Griffith Youth Forensic Service where he would be assessed and a treatment plan developed for him. The representative did not advocate any particular sentencing option but stated that detention was a last resort under the Juvenile Justice Act and available programs should, if possible, be given in the community under a community based order.  A further option was a combined six month detention and 12 month probation order with participation in a sex offender treatment program.

15. Defence counsel further submitted that the only order providing for community based supervision for as long as three years was a probation order.

16. After re-stating the facts of the offence, the judge referred to the following matters in sentencing the applicant. The applicant admitted his offending when asked about it on the evening it occurred. The pre-sentence report and psychological assessment recorded the applicant's dysfunctional and neglected childhood. The psychological assessment considered that he was at low risk for committing further sexual offences. He did not have a criminal history. He showed, however, no real insight into his offending and lacked genuine remorse, despite his own experiences of being a victim of sexual abuse. The judge distinguished the cases relied on as comparable by the prosecutor in contending for a period of detention of three years as they involved serious actual rapes, not a single attempted rape as in this case. The Juvenile Justice Act, s 208, effectively required that a detention order be imposed only as a last resort.  The applicant's offending was serious.  Had he actually raped the victim, detention would have been inevitable but he desisted when the child cried.  Although concerned about the applicant's ability to address his sexual offending because of his high levels of impulsivity and low levels of insight, the judge was not satisfied that a sentence of  detention must be imposed, taking into account the applicant's dysfunctional background and his own experience as a victim of child sexual abuse.  Accordingly, the judge imposed a three year probation order.

17. After the judge imposed the orders, and explained them to the applicant as required under the Juvenile Justice Act, the judge directed that the court be adjourned.  But before this happened, defence counsel enquired of the judge as to whether or not it was intended to record a conviction.  The following exchange occurred:

"BENCH: In the circumstances I record a conviction. It's a serious offence.

DEFENCE COUNSEL:  Very good, your Honour.

BENCH: Well, put it this way, do you submit that I shouldn't record a conviction?

DEFENCE COUNSEL:  Well, your Honour, the issue with regard to the record a conviction on – on an order such as your Honour made, does relate to the serious nature of the offending behaviour, but has to be weighed against the impact it would have on a young person's life, given that the young person had, at the time, no previous convictions of whatsoever nature. The main impact, of course, in matters of this nature relate to the ongoing reporting that my client must face for the rest of his life, as the legislation stands, well -----

HIS HONOUR:  I-----

REPRESENTATIVE, DEPT OF FAMILIES:  Seven years.

DEFENCE COUNSEL:  ----- seven years.

HIS HONOUR:  He's got to report for seven years.

DEFENCE COUNSEL:  Seven years.

REPRESENTATIVE, DEPT OF FAMILIES:  He will become a reportable offender under the Child Protection Offenders Reporting Act, where the breach of this is a two year offence.

HIS HONOUR:  Well-----

REPRESENTATIVE, DEPT OF FAMILIES:  Given the transciency with his placements-----

DEFENCE COUNSEL:  Age and-----

REPRESENTATIVE, DEPT OF FAMILIES: -----and age.

HIS HONOUR:  Well the only – the concerns I have here are although I've decided to be optimistic and give – give him the option of being treated, rather than going to detention-----

DEFENCE COUNSEL:  I understand that, your Honour.

HIS HONOUR:  -----he has a long way to go before he can demonstrate that he is cured of his-----

DEFENCE COUNSEL:  Yes, as you might appreciate on my – my client's behalf, I placed that submission on the record.

HIS HONOUR:  I know.  But I just want to explain my reasoning, so that there's no confusion about it.  I mean, one is loathe to record convictions in – in the case of juvenile offenders, but a conviction of this type being recorded carries with it monitoring if you like, and at the moment I'm aware from Exhibit 1 that it's been very difficult to place [the applicant] because of the need to keep him away from younger children.

Now if he can't be successfully treated, even if he cooperates with the program, my view is the community would demand some ongoing monitoring.

DEFENCE COUNSEL:  Yes, your Honour.

HIS HONOUR:  Now, Mr Connolly, do you have anything to submit in that regard?

PROSECUTOR:  I'd be submitting for the recording of a conviction for the-----

HIS HONOUR:  All right.

PROSECUTOR:  -----reasons you've outlined.

HIS HONOUR:  Although it's onerous, the offence is serious and for the reasons I've outlined I record a conviction."

Conclusion

18. The Juvenile Justice Act relevantly provides as to the recording of a conviction:

"183  Recording of conviction

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

…

(3) If a court makes an order under section … 176,^[2] the court may order that a conviction be recorded or decide that a conviction not be recorded."

184 Considerations whether or not to record conviction

(1) In considering whether or not to record a conviction, a court must have regard to all the circumstances of the case, including—

(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.

(2) Except as otherwise provided by this or another Act, a finding of guilt without the recording of a conviction is not taken to be a conviction for any purpose.

(3) A finding of guilt against a child for an offence without the recording of a conviction stops a subsequent proceeding against the child for the same offence as if a conviction had been recorded."

19. The principle submissions at sentence did not touch on whether a conviction should be recorded but focussed on whether a fully community based order should be imposed rather than any period of actual detention. The consideration as to whether a conviction should be recorded was an afterthought and the relevant submissions on it were brief. They are set out in full earlier in these reasons.^[3]  The judge's initial reaction was to immediately record a conviction because of the seriousness of the offence, but he then properly invited submissions from defence counsel.  Defence counsel pointed out that if a conviction was recorded, the applicant, although only 16 years old, would become a "reportable offender" under the Child Protection (Offender Reporting) Act 2004 (Qld).^[4]  The representative from the Department of Families confirmed that Act would apply to the applicant if a conviction were recorded. 

20. The Child Protection (Offender Reporting) Act provides for onerous obligations on a "reportable offender" under the Act.  They must make an initial report of personal details (s 14) and thereafter report annually (s 18).  They must also report any changes to their relevant personal details (s 19); intended absence from Queensland (s 20); change of travel plans while out of Queensland (s 21); return to Queensland or their decision not to leave Queensland (s 22); and give information about international travel to the Australian Federal Police (s 24).  As the applicant was a juvenile, the reduced period of seven and a half years applied to the "reporting period".^[5]

21. In determining to impose a conviction, the sentencing judge gave consideration to the seriousness of the applicant's offending and the desirability of him being monitored under the Child Protection (Offender Reporting) Act.  The judge seems to have appreciated that the starting point in determining whether a conviction should be recorded against a child is that a conviction is not recorded against a child offender: see s 183(1) Juvenile Justice Act and R v B.^[6]  The judge seems to have ultimately adopted that approach but then concluded that, because of the seriousness of the offence and the potential need for monitoring under the Child Protection (Offender Reporting) Act, a conviction should be recorded.  His Honour did not consider, as he was required to do under s 184, the child's age and absence of any previous convictions (s 184(1)(b)) and the impact the recording of a conviction will have on the child's chances of rehabilitation generally or in finding or retaining employment (s 184(1)(c)).  The matters listed in s 184(1)(a) – (c) are matters which "a court must have regard to" in determining whether or not to record a conviction, but s 184 lists them inclusively so that other matters may also be relevant.  In considering whether to record a conviction, the judge was right to consider the matters he did.  But he erred in not also considering the impact of a recorded conviction on the applicant's rehabilitation generally or in finding or retaining employment.

22. It is impossible to say that this error did not have an impact on the exercise of his Honour's discretion in determining whether or not to record a conviction in this case. It follows that the application for leave to appeal against sentence must be granted and the appeal allowed to the extent of setting aside the judge's order that a conviction be recorded. This Court must now exercise its own discretion in this respect.

23. The primary judge's sentencing remarks amply demonstrate that the exercise of that discretion in this case is difficult, with finely balanced competing considerations. The exercise of discretion as to whether or not to record a conviction under the Juvenile Justice Act involves slightly different considerations from those apposite to adult offenders under the Penalties and Sentences Act 1992 (Qld): cf s 3, s 9 and s 12 Penalties and Sentences Act, and s 2, s 3, s 184 and s 185 and Sch 1 Juvenile Justice Act and R v L^[7] and R v JO.^[8]

24. The first factor to be considered under s 184(1)(a) is the nature of the offence. The primary judge correctly identified its serious nature. It was committed by a 15 year old youth upon a seven year old boy. Although there was no victim impact statement, it is almost inevitable that the applicant's criminal conduct will have serious and lasting consequences for the child. That conclusion is supported by the fact that the applicant was himself a victim of similar offending. It seems likely that the sexual abuse perpetrated on him was a factor in his commission of this offence on the seven year old victim. As this Court noted in R v JO^[9] however, it does not follow that every offence committed by a juvenile which can be described as serious requires the recording of a conviction: see, for example, R v B.^[10]  In the applicant's favour, he desisted when the child cried, and fortunately the offence was an unsuccessful attempt with minimal physical harm to the victim. 

25. The next factor a court must consider under s 184(1)(b) is the applicant's age and any previous convictions. He was 15 at the time of his offence, 16 at sentence, and had no previous criminal or supervised order history. This absence of prior offending history borders on the remarkable when the dysfunctionality of the applicant's disadvantaged upbringing is considered. It is a factor in favour of not recording a conviction.

26. The next factor a court must consider under s 184(1)(c) is the impact of the recording of a conviction on the applicant's chances of rehabilitation generally or in finding or retaining employment.  There was no specific material before the sentencing court on this issue.  The pre-sentence report and the psychological assessment made clear that the applicant faces many challenges in his rehabilitation.  His dysfunctional and disadvantaged background means that he has no clear or realistic ambitions to particular employment.  It is self-evident that a conviction for an offence of attempted rape of a seven year old child will be an additional handicap to his rehabilitation generally and to his finding employment.  This is especially so when the recording of a conviction will make him a "reportable offender" with the onerous obligations that follow under the Child Protection (Offender Reporting) Act for seven and a half years. 

27. The respondent contends 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 recording of a conviction; otherwise a court sentencing the applicant as an adult could not be informed of the prior offence: see R v Cay, Gersch and Schell; ex parte A-G (Qld).^[11]  That is a relevant consideration.

28. But the order imposed by the primary judge will ensure the applicant is closely supervised within the community and has appropriate access to sexual offender treatment programs and other programs tailored to his needs for the next three years.  If he is successful in completing his probation, he will have effectively rehabilitated and a conviction for this offence would be a substantial hindrance to that rehabilitation and to his finding and retaining employment.  If, on the other hand, he does not take full advantage of the leniency shown to him by the sentencing judge and breaches his probation during the next three years by committing another indictable offence, it is likely that a court would discharge the probation order and re-sentence the applicant for the original offence and, if appropriate, record a conviction: see s 245(1)(d)(ii) Juvenile Justice Act. 

29. Applying the reasoning in JO to the applicant's case, if he does not offend again as a juvenile or as an adult, it is difficult to see that the community would have an interest in knowing of this offence, which was committed when he was 15 years old in circumstances where he himself had been a victim of sexual abuse for which he had not received any counselling or support.  He had grown up in a dysfunctional, disadvantaged family and exposed to poor role modelling, alcohol abuse, domestic violence, poor supervision and irregular school attendance.  The probation order will run until he is 19.  If he breaches it by committing an indictable offence, the court re-sentencing him for this offence is likely to record a conviction which would then be made known to any court which would sentence him as an adult.  If, on the other hand, he successfully rehabilitates and reaches adulthood without re‑offending, the significance of this offence will by then be very much diminished.

30. In R v KU & Ors; ex parte A-G (Qld),^[12] this Court considered a number of cases at first instance which were not the subject of an Attorney-General's appeal where non-custodial sentences were imposed on juveniles for the even more serious offence of rape.  In one of those, R v DJL,^[13] DJL pleaded guilty to unlawful carnal knowledge of a 14 or 15 year old girl and to raping her 11 year old younger sister by digital penetration.  He was 16 at the time of the offence and 17 at sentence.  The 11 year old was said to be a willing participant.  He had a deficit of intellectual capacity and/or functioning and some minor criminal history, but not for sexual offences.  He was placed on two years probation without a conviction being recorded.

31. After careful consideration, I consider that, despite the very serious aspects of the offence, a conviction should not be recorded in this case. My reasons for this are that the applicant desisted when the victim began to cry and admitted his wrong‑doing on the evening of the offence to the child's parents.  He pleaded guilty.  He was 15 years old at the time and his dysfunctional upbringing meant that his culpability was not as great as it otherwise would have been.  He had no previous convictions or supervised order history.  Because of his grossly dysfunctional and disadvantaged background, rehabilitation will be difficult for him, although it seems that he has reasonably good prospects, especially as he has a low risk of sexual re‑offending.  For the reasons I have given, the recording of a conviction would detrimentally impact in a general way on both his rehabilitation and his prospects of finding and retaining employment.  The issue of community protection is adequately dealt with over the next three years by his placement on a strictly supervised probation order and the treatment programs in which he will participate under that order.

32. It follows that the following orders are appropriate:

1. Application for leave to appeal against sentence granted.

2. Appeal allowed, only to the extent of deleting that part of the sentence which records a conviction, and instead ordering that no conviction is recorded.

33. ATKINSON J:  I agree with the orders proposed by the President and with her Honour's reasons.

34. A LYONS J:  I agree with the reasons of McMurdo P and with the orders she proposes.