SUPREME COURT OF QUEENSLAND

[1]  MUIR JA:  I agree that the application should be refused for the reasons given by Fraser JA.

[2]  FRASER JA: The applicant was convicted on his pleas of guilty to five indictable offences and one summary offence committed between January and September 2009.  He was 15 years of age when he committed the first offence and 16 years of age when he committed the other offences and when he was sentenced on 25 November 2009.  The applicant has applied for leave to appeal against his sentence of 12 months detention (for an assault occasioning bodily harm in company committed on 22 March 2009) and his sentence of 18 months detention (for an assault causing grievous bodily harm committed on 29 April 2009).  Those periods were to be served concurrently and the sentencing judge ordered that he be released after serving 50 per cent of the period of detention.  The ground of the application is that the sentences are manifestly excessive in all the circumstances.  In addition the applicant, who represented himself in this Court, contended that those sentences were excessive when compared with a sentence subsequently imposed on a co-offender and that the sentencing judge erred in recording convictions for any of the offences.  The respondent accepted that the Court should take those additional grounds into account but contended that the sentences were appropriate.

The circumstances of the offences

[3] Three of the indictable offences involved violence.  The other offences involved dishonesty.  In the first offence, on 12 January 2009 the applicant pushed down a window of a car parked in a street and removed property.  He was sentenced to 12 months probation for that offence.  The sentence of 12 months detention with an order for release after serving 50 per cent of that period was imposed for the applicant’s assault occasioning bodily harm in company on 22 March 2009.  On that occasion the applicant and a friend of his got out of a car and confronted three boys who were innocently walking down a street.  Without any provocation the applicant walked over to one of the boys and punched him in the mouth.  The applicant and his friend walked off laughing at what the applicant had done.  That 16 year old boy suffered pain and swelling in his mouth, he feared for his safety and that of his friends, and for a period after the assault he remained concerned about his personal safety and feared going out in public by himself. 

[4] On 1 April 2009 he stole two items worth $81.85 from a shop.  He was quickly apprehended and the property was recovered.  The sentencing judge decided to impose no further penalty for that offence.

[5] On 29 April 2009 the applicant committed the offence of unlawfully causing grievous bodily harm, for which he was sentenced to 18 months detention with an order for release after 50 per cent of that period.  The applicant was drunk and misbehaving at a petrol station.  A stranger to him mildly intervened in an attempt to defuse the situation.  When that man was later alone he was surrounded by the applicant and other youths.  The applicant then punched him in the face three times and knocked him twice into a wall.  The consequences of that violent assault were serious.  The man’s jaw was broken on both sides and shattered in part and his nose and cheekbone were also broken.  He was required to consume his food through a straw and he was in pain for weeks whilst he waited for a necessary operation.  He suffered a further period of pain after the operation, in which his right jaw was drilled and plated and he was given special braces in his face.  He lost six weeks off work.  His teeth do not line up as they did before the assault, his jaw hurts at times and he faces the prospect of further complications in the future.  He was also affected emotionally by the assault.

[6] A few days later, on 3 May 2009, the applicant committed an offence of assault occasioning bodily harm, for which he was sentenced to two years probation.  On this occasion the applicant and a friend attempted to provoke a fight with a 14 year old school student who was with his friends at a skate park.  The applicant and his friend began throwing rocks and following the boy and his friends around the skate park.  The applicant then approached the boy and punched him in the mouth, just as the boy was saying that he did not want any trouble.  The punch was of such force to cause the boy to fall backwards against a rail.  He suffered extreme pain from that assault and he was required to attend an emergency ward at a hospital for treatment.

[7] The applicant was sentenced to two and a half years probation for breaking and entering premises and stealing on about 28 September 2009.  The applicant committed this offence after he had been issued with a notice to attend court in relation to his earlier offence of dishonesty.  He opened a door in a shed at the back of a house and stole three expensive bicycles and a bicycle frame and other parts.  The bicycles were eventually found by police but required substantial work to undo the effect of modifications made by the applicant or others. 

The applicant’s personal circumstances

[8] A report tendered at the sentence hearing noted that the applicant had anger management issues, a lack of proper adult supervision, a drinking problem, and that his association with others formed part of the background to his offending.  There had been conflict between the applicant’s parents and some neglect of him, and he had experienced bullying and the impact of moving away from his original home town.  The applicant failed to report as required by the probation order on seven dates between 2 April and 11 June 2009.  After having spent the three weeks before the sentence on bail living with his parents, the applicant appeared to be a bit more settled.  The applicant promptly confessed to all of the offences, although in some cases he attempted to minimise the violence.  He entered very early pleas of guilty. 

[9] There was only one conviction on the applicant’s record.  It came in the midst of his subject offending.  On 30 March 2009 the applicant committed an offence of threatening violence, in which he discharged a firearm at night.  On 2 April 2009 he was convicted of that offence, no conviction was recorded, and he was sentenced to probation for nine months.  The applicant committed his subsequent offences whilst on probation.  For that breach of the probation order the sentencing judge revoked the probation and re-sentenced the applicant to detention for 12 months.

The sentencing remarks

[10] In deciding that a period of detention was necessary the sentencing judge adverted to and took into account all of the circumstances which I have summarised.  Her Honour referred to the gratuitous violence in the offending and observed that the offences of violence, and particularly the grievous bodily harm offence, included a sadistic flavour.  Her Honour thought that the applicant had some prospect of rehabilitation but that it was necessary for there to be an order providing protection for the community and that the 30 days spent by the applicant in custody to date was insufficient. 

Discussion

[11] The sentencing judge’s remarks were amply borne out and the sentences were justified by the disturbing circumstances of this youthful applicant’s offending.  He repeatedly and violently attacked people who were in no position to defend themselves.  He committed his most serious offence on 29 April 2009, in which he caused grievous bodily harm, whilst he was on probation for an earlier offence involving a threat of violence.  Notwithstanding the applicant’s youthfulness, his early pleas of guilty and cooperation with the authorities, and his other mitigating circumstances, those sentences were plainly within the sentencing discretion.  The sentences are well within the range suggested by reference to this Court’s decisions in R v S [1999] QCA 499 and R v BBN [2008] QCA 84.  There is no substance in the applicant’s contention that the challenged sentences are manifestly excessive.

[12] The applicant referred to the sentence imposed by a different sentencing judge on 16 December 2009 on a co-offender (“A”). A was also convicted of causing grievous bodily harm on 29 April 2009 and of a common assault on 3 May 2009.  A was sentenced to 12 months detention with release after serving 50 per cent of that period, with no conviction recorded for that or the other offences of which he was convicted.  The applicant contended that his sentence of 18 months detention with release after serving 50 per cent of that period and a conviction recorded for the grievous bodily harm offence was manifestly excessive when compared with the sentences imposed upon A.  That argument invoked the “parity principle” referred to in Lowe v The Queen (1984) 154 CLR 606, in which the High Court held that equal justice requires that as between co-offenders there should not be a marked disparity between their sentences which gives rise to a justifiable sense of grievance.  If such a disparity arises the more severe sentence should be reduced even if it is otherwise within the permissible range of sentences.  In Postiglione v The Queen (1997) 189 CLR 295 Dawson and Gaudron JJ observed that the parity principle does not concern merely the imposition of different sentences for the same offence: it concerns the due proportion between those sentences, which must be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.  In the same case Kirby J insisted that perfect consistency between the sentences of co-offenders is not necessary and that a sentence is to be reviewed only where the disparity is such as to engender, in the words of Gibbs CJ in Lowe v The Queen at 610, a “justifiable sense of grievance” on the part of the prisoner or “give the appearance that justice has not been done.” In Postiglione, Gummow J said at 323, that the principle for which Lowe is authority is that the Court of Criminal Appeal intervenes “where the difference between two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done”.  Put another way, the question is whether an objective comparison of the sentences manifests what Mason J called in Lowe v The Queen at 611, a “badge of unfairness”.

[13] The respondent provided the Court with a copy of the sentencing remarks of the judge who sentenced A.  That sentencing judge had the benefit of reference to the sentence previously imposed upon the applicant, to the particular circumstances of A’s offending, and to his personal circumstances.  A was some one year and 10 months younger than the applicant, according to their criminal records.  The judge who sentenced A regarded that difference in age as a feature which justified a less severe sentence than was imposed upon the applicant.  The applicant pointed out that the judge found that the applicant did not have “quite the history of offending whilst on probation” which burdened A, but the sentencing judge regarded it as more significant that although A had committed an assault with intent to steal in which the applicant was not involved, the applicant had committed an additional offence of violence (the assault on 22 March 2009 in which the applicant had violently punched a boy in a street for no apparent reason).  Furthermore, the schedule of facts upon which A was sentenced was to the effect that in relation to the 3 May offence, although A had threatened one of the children at the skate park with a knife he had refrained from actual violence.  The relatively less severe sentence imposed upon A is explained by these differences between the applicant’s and A’s personal circumstances and in the circumstances of their offences.  Accordingly the sentence imposed upon A could not give rise to any justifiable sense of grievance in the applicant or justify any adjustment of his sentence in reliance upon the “parity principle”.

[14] The applicant also argued that the sentencing judge’s discretion miscarried when her Honour recorded convictions for each of the offences.  The sentences which may be imposed on a child are set out in s 175 and s 176 of the Juvenile Justice Act 1992 (Qld) (now the Youth Justice Act 1992 (Qld)).  The power to record convictions against children is conferred by s 183.  Section 184 governs the exercise of that discretion.  The prima facie position under these provisions is that a conviction is not to be recorded against a child: R v SBP [2009] QCA 408 at [21]; R v B [1995] QCA 231.  Section 184(1) provides that in considering whether or not to record a conviction a court must have regard to all the circumstances, including the circumstances set out in s 184(1)(a)-(c).  The sentencing judge’s remarks do not include any express reference to the reasons why the sentencing judge considered it appropriate to exercise the discretion to order that convictions be recorded, but during the course of the sentencing remarks her Honour adverted to the circumstances of the offences and the applicant’s personal circumstances, including the nature of the offences (s 184(1)(a)) and the child’s age and any previous convictions (s 184(1)(b)).  The sentencing remarks do not expressly refer either to the impact recording a conviction would have on the child’s chances of rehabilitation or in finding or retaining employment (s 184(1)(c)(i)-(ii)).  The evidence did not deal explicitly with either point, but the sentencing judge presumably assumed in the applicant’s favour, as I assume for the purposes of this application, that recording a conviction would likely impact adversely on the applicant’s chances of finding and retaining employment and upon his rehabilitation.

[15] In R v B [1995] QCA 231 the Court considered the similar provision then contained in s 124(1) of the Act.  In that case both the existence and the exercise of the discretion were not the subject of submissions before the sentencing judge and the sentencing judge did not refer to those matters.  Indeed that sentencing judge did not even order that convictions be recorded.  The entry on the indictment was apparently made by a court officer in circumstances where the judge had not even adverted to it.  McPherson JA and de Jersey J (as the Chief Justice then was) concluded that there was no basis for thinking that the sentencing judge turned his mind to the question at all, so that the discretion miscarried.  In this case, the sentencing judge in terms ordered that convictions be recorded for all offences.  It seems most unlikely that her Honour was unaware either of the prima facie position that convictions are not recorded for offences committed by children or of the relevant factors which enliven the discretion to record convictions.  Nevertheless, in the absence of any sentencing remarks expressly directed to the discretion or to the relevant provisions it is appropriate to proceed on the footing that that the discretion miscarried and must be exercised afresh.

[16] Bearing in mind all of the circumstances I have mentioned, I would affirm the orders made by the sentencing judge on the ground that the same sentence should be imposed in the fresh exercise of the sentencing discretion: see R v KAC [2010] QCA 39 at [17]-[18].  We were referred to cases where 13 year old children had committed a violent offence.  In R v H [2000] QCA 196 this Court found it inappropriate to record a conviction for a violent offence but in addition to that offender’s young age there were quite strong personal factors favouring that approach.  In R v J [2000] QCA 489 the Court found no error in the recording of the conviction for a violent offence committed by a 13 year old boy.  At 15 and 16 years of age the applicant was markedly older than H and J when he committed his offences.  Importantly, he committed not merely one violent offence but three violent offences, he continued to offend after he was detected in earlier offences and after he was given a notice to appear, and he committed the most serious offence of causing grievous bodily harm whilst he was on probation ordered less than a month before for earlier offending involving a threat of violence.  The circumstances of this case call for the exercise of the discretion to record convictions. 

Proposed order

[17] I would refuse the application.

[18] ATKINSON J:  I agree with the order proposed by Fraser JA and with his Honour’s reasons.