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- Notable Unreported Decision
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
R v DBR  QCA 218
CA No 248 of 2018
DC No 1 of 2017
Court of Appeal
Childrens Court at Kingaroy – Date of Sentence: 27 August 2018 (McGill SC DCJ)
18 October 2019
7 March 2019
Fraser and Gotterson and Philippides JJA
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTILY EXCESSIVE OR INADEQUATE – where the applicant, on his plea of guilty, was sentenced to probation for three years with the recording of a conviction, for one count of unlawful and indecent treatment of a child under 16 and under 12 years – where the applicant was 16 years old at the time of offending, but was sentenced as an adult at the age of 19 – where the applicant had a relevant criminal history, being one count of rape – where it was submitted that a conviction should not have been recorded – whether the recording of a conviction rendered the sentence manifestly excessive
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SPECIFIC ERROR – where the applicant, on his plea of guilty, was sentenced to probation for three years with the recording of a conviction, for one count of unlawful and indecent treatment of a child under 16 and under 12 years – where the applicant was 16 years old at the time of offending, but was sentenced as an adult at the age of 19 – where it was submitted that the sentencing discretion miscarried because of specific error – where it was submitted that the sentencing judge failed to refer to sections 183 and 184 of the Youth Justice Act 1992 (Qld) and the sentencing principles contained therein – where it was submitted that the sentencing judge placed too much weight on the desirability of the applicant becoming a “reportable offender” under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) and otherwise failed to consider relevant matters concerning recording or electing not to record the conviction – whether any such specific error occurred such that the sentencing discretion miscarried
Hili v The Queen (2010) 242 CLR 520;  HCA 45, followed
R v BCO  1 Qd R 290;  QCA 328, considered
R v Kelly  QCA 185, followed
R v LAL  2 Qd R 115;  QCA 179, considered
R v SBQ  QCA 89, considered
J McInnes for the applicant
J A Geary for the respondent
Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent
- FRASER JA: I agree with the reasons for judgment of Philippides JA and the order proposed by her Honour.
- GOTTERSON JA: I agree with the order proposed by Philippides JA and with the reasons given by her Honour.
- PHILIPPIDES JA: The applicant seeks leave to appeal against the sentence imposed on his plea of guilty to one count of unlawful and indecent treatment of a child under 16 and under 12 years. At the time of the offending, the complainant was 11 years of age and the applicant was 16. The applicant was sentenced on 27 August 2018 as an adult (being 19 years old) to probation for three years with a conviction being recorded.
Grounds on which leave to appeal is sought
- There was no dispute that, although pursuant to s 140(2) of the Youth Justice Act 1992 (Qld) (the YJA), the applicant was to be sentenced as an adult, the Court was required by s 144(2) of the YJA to have regard to the fact that the applicant was a child when the offence was committed and the sentence that might have been imposed if he had been sentenced as a child.
- The applicant sought leave to appeal against sentence on two grounds. First, it was contended that the recording of a conviction rendered the sentence manifestly excessive.
- Secondly, it was contended that the exercise of the sentencing discretion miscarried because of specific error.
- In contending that there was specific error, it was argued that, in recording a conviction, the sentencing judge:
- failed to refer to the terms of s 183 or s 184 of the YJA;
- failed to refer to sentencing principles set out in the YJA;
- placed too much weight on the desirability of the applicant becoming a “reportable offender” under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (the CPA); and
- failed to consider relevant matters concerning recording or electing not to record the conviction.
- Section 183 of the YJA provides for the recording of a conviction for an offence with the factors relevant to recording a conviction for a juvenile set out in s 184 as follows:
“(1) In considering whether or not to record a conviction, a court must have regard to all the circumstances of the case, including—
- the nature of the offence; and
- the child’s age and any previous convictions; and
- the impact the recording of a conviction will have on the child’s chances of—
- rehabilitation generally; or
- finding or retaining employment.”
- Points (a) and (d) of the second ground merged into a submission that the sentencing judge failed to take into account a relevant consideration concerning the express statutory distinction between s 183 and s 184 of the YJA and s 12 of the Penalties and Sentences Act 1992 (Qld) (the PSA) in the prominence given by s 184(1)(c)(i) of the YJA to the factor of rehabilitation in determining to record a conviction.
- As to point (b), the applicant submitted that the exercise of the sentencing discretion involved considering the sentencing principles in s 150 of the YJA and that under s 150(2)(e) detention, even for a sexual offence, was a last resort. Further, pursuant to s 150(1)(b), the Youth Justice Principles were required to be considered which also provide that detention and other forms of custody are a last resort.
- As to point (c), in addition to the contention that too much weight was placed on the desirability of the applicant being a reportable offender, it was argued that the effect of recording a conviction was that the applicable rehabilitation period under the Criminal Law (Rehabilitation of Offenders) Act 1986 applicable to an adult was 10 years, rather than the five years applicable had he been dealt with as a child. Furthermore, it was not necessary to record a conviction to make the applicant a “disqualified person” under the Working with Children (Risk Management and Screening) Act 2000 (Qld). In any event, in the absence of the recording of a conviction, a breach of probation leading to resentencing would automatically result in the recording of a conviction.
- It was submitted that, on a re-exercise of the sentencing discretion, the proper balance between the protection of the community and rehabilitation could thus be achieved with the three year probation order without the recording of a conviction.
Circumstances of the offending
- The applicant was sentenced on the basis of an agreed schedule of facts. The offence was committed between 22 June and 11 August 2015, when the complainant was staying with the applicant and his family while her mother was in hospital. No other member of the household was present as the applicant’s mother was at work and his siblings were with his father. The complainant and the applicant had been watching television. The applicant left the room and when he returned he approached the complainant from behind, kissed her on the cheek and placed his hands on her breasts and squeezed them on the outside of her clothing.
- A complaint was made to police in January 2016 and in March 2016 the applicant agreed to be interviewed but did not make any relevant admissions. The applicant was committed for trial on 22 July 2016 with the indictment being presented on 7 December 2016, 10 days short of him turning 18. On 26 October 2017, a pre-recording of the complainant’s evidence occurred. The matter was listed for trial in March 2018 but was adjourned to obtain subpoenaed material. When listed for trial, four counts were discontinued and guilty pleas were entered on the other counts.
- In imposing sentence, the sentencing judge noted the applicant’s age at the time of the offence and described the actual offending as “fairly low level indecent treatment”, but observed that no information had been provided about what effect it had on the complainant and that it must have been fairly surprising and probably disconcerting for her. His Honour also noted that the applicant had been in a de facto relationship for three years and that there was a child in the relationship.
- His Honour referred to the applicant’s criminal history which dated from June 2012 and included a sentence on 2 October 2012 for an offence of rape and common assault. The rape committed against a half-brother involved forcible oral penetration. For that offence the applicant was sentenced to two and a half years’ probation given the applicant’s good prospects of rehabilitation. While the conduct was described at sentence as an exercise in domination rather than real sexual interest, his Honour remarked that subsequent offending suggested a sexual interest in younger people. The applicant had also been sentenced for endangering property by fire and fraud. There had been no reoffending for almost three years, which the sentencing judge considered was an encouraging sign.
- The sentencing judge referred to the applicant’s dysfunctional upbringing and that he suffered from depression and various behavioural conditions, but also observed that, while relevant, they had not been shown to have contributed to the offending for which he was being sentenced.
- His Honour remarked that ordinarily an offence of the nature committed would come under the provision of the PSA and attract a term of actual imprisonment to be served unless there were exceptional circumstances. His Honour noted, however, that, in the circumstances of the present case, given that the offending occurred while the applicant was a child, the sentence had to be determined by reference to the sentence that would have been imposed if the applicant was being dealt with under the YJA. Accordingly, although the sentence was in fact imposed under the PSA, the provision regarding exceptional circumstances did not apply.
- His Honour referred to the considerations of rehabilitation, denunciation and deterrence. In view of the applicant’s criminal history, deterrence required consideration of personal deterrence, as well as general deterrence, which was always important in relation to sexual offences against young children. His Honour stated that there were good prospects that, had the applicant been dealt with as a juvenile, a period of detention would have been imposed. However, in the circumstances of the applicant’s “history of psychiatric problems and in view of the absence of further offending” since the applicant was before the Court in April 2016, which provided “some indication of rehabilitation”, his Honour was prepared to exercise his sentencing discretion so as not to impose a sentence requiring actual imprisonment, but rather to impose a lengthy period of probation. His Honour stated that, in view of the applicant’s criminal history, it was appropriate that a conviction be recorded.
- The applicant submitted that the two authorities of R v O and R v SBP, to which the sentence judge was referred, were accepted by the prosecutor to be more serious cases of offending. The applicant referred to R v LAL where the authorities on sentencing an adult for a child sexual offence were considered. Specific reference was made to R v SBQ and R v BCO.
- SBQ concerned an offender who was sentenced as an adult at the age of 19 and who had offended at the age of 16 or 17 against two nine year old girls by touching, including touching on the vagina outside clothing. He did not have the benefit of a plea but had no previous convictions although he subsequently committed the offence of burglary at the age of 17. An order of probation without the recording of a conviction was imposed on appeal.
- In BCO, the offender was sentenced pursuant to the YJA to two years’ probation for the rape offence (putting his penis in her mouth of a four year old girl and ejaculating) and one count of indecent dealing (touching her vagina) with the conviction recorded only for the rape offence. The offender was nearly 16 at the time of the offending and pleaded guilty on the day of his trial with the matter being adjourned for sentence. He did not have any significant previous convictions, but had committed four property offences while on bail for which he was dealt with. A factor that weighed against the recording of a conviction was the consequence of BCO becoming a reportable offender. The recording of a conviction on the rape offence was set aside on appeal.
- Counsel for the applicant accepted that a distinguishing feature of the present case was that there was the prior history of a serious sexual offence, but argued that that was not an overwhelming factor when regard was also had to the fact that the rape was committed at a very young age, against a male not a female, and that the applicant served his sentence for it satisfactorily. It was submitted that collectively, both the earlier rape and the present offence amounted to somewhat less serious offending than what was involved in BCO.
- In my view, the comparable decisions referred to by the applicant do not assist the applicant as in each case there were no previous convictions of a sexual nature, which his Honour rightly considered to be a significant matter.
- His Honour also had express regard to the issue of rehabilitation and took the view that there were “encouraging signs”. It was not the case that the applicant had rehabilitated. In contrast, it was noted in LAL that “rehabilitation had been achieved long ago” and that that offender posed no risk to children such that there was no call for personal deterrence. The decisions specifically referred to before this Court or mentioned in LAL do not indicate that the sentence imposed was manifestly excessive.
- To make out that complaint required the applicant to show that the sentence was unreasonable or plainly unjust so that an inference arose that there must have been some misapplication of principle in the exercise of the sentencing discretion.
- In my view, the sentencing judge was entitled to take into account as significant that the sexual offence was committed against a much younger child and against a background of more serious previous sexual offending. The sentencing judge was entitled to have regard to the applicant’s criminal history in considering whether a conviction should be recorded. In all of the circumstances, it was open to the sentencing judge to record a conviction. The applicant has not demonstrated that the sentence imposed was manifestly excessive.
- The applicant challenged the proposition that the present offence coloured the previous conviction and that detention would have been a likely sentence if sentenced as a child. In that regard, the applicant argued that, although not included in the sentencing remarks, it was significant that, in the course of sentencing submissions, the sentencing judge, in referring to the relevance of the sentence that would have been imposed on a child, quoted the sentencing remarks of 2 October 2012 that a breach of the two and a half year probation, would likely result in detention. It was submitted that the earlier sexual offence was committed when the applicant was only just 13. The present offending was minor: kissing the complainant and squeezing the complainant’s breasts. Had he been sentenced as a child, the applicant would likely have been placed on probation without the recording of a conviction.
- In my view, it was open to the sentencing judge to conclude that the history suggested that the applicant did have a sexual interest in younger people and that detention would have been within range had the applicant been dealt with as a child.
- In contending that there was specific error in exercising the discretion to record a conviction, because the sentencing judge was said to have given undue prominence to the desirability of making the applicant “reportable”, reliance was placed on an exchange during sentencing submissions between the judge and counsel for the applicant. His Honour commented that the applicant “ought to be a reportable offender” and remarked, “So I will record a conviction. I think he ought to be a reportable offender”. In that regard, it was also said that his Honour overlooked that, if the applicant were required to be resentenced on a breach of probation, a recorded conviction would follow and he would become “reportable” under the CPA, which has as a purpose to provide for the protection of the lives of children and their sexual safety.
- During the course of submissions before this Court an issue was raised as to whether the sentence was infected by error as to whether a sentence of probation without a conviction being recorded would result in an offender becoming reportable under the CPA. A “reportable offender” is defined in s 5(1) as a person who is sentenced for a “reportable offence” which includes an offence of indecent treatment of a child under 16 (a “prescribed offence”).
- In R v Kelly, McMurdo P considered s 5(1) and (2) of the CPA and explained:
“It is clear from the terms of s 5 set out above, especially s 5(2)(c) and s 5(4), that s 5(2)(a), (b) and (c) provide exceptions to the circumstances in which a person is a reportable offender under s 5(1). The use of the words ‘merely because’ in the introductory words to s 5(2) are confusing, but in context they clearly are intended to mean ‘where’. It follows that if an offender comes within any of the exceptions in either s 5(2)(a), (b) or (c), the person is not a reportable offender under the Act. If the judge considered otherwise, this was an error which affected the sentencing discretion.”
- Since that case was decided, s 5 was amended by substituting for the word “merely” the word “only”. The explanatory note to the Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2016 includes this:
“Clause 7 also replaces the word ‘merely’ in section 5(2), as it applies to when a person may not be considered to be a reportable offender, with the word ‘only’. This is an administrative change to ensure that words used in the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 align with modern drafting practices and contemporary language. The amendment does not change how section 5(2) operates.”
- The applicant conceded that although the opportunity to add clarity by substituting, for the expression “merely because”, the word “where” was not seized, there was nothing in the amendment that indicated that Parliament was seeking to overturn Kelly. Nor did the applicant assert that Kelly is plainly wrong or has been overtaken by other authority. Indeed, it was mentioned without disapproval in R v McCann and R v Rogers.
- The applicant ultimately accepted that, following Kelly, a person convicted of a prescribed offence where the conviction was not recorded is not a reportable offender by virtue of s 5(2)(a) of the CPA. Since the offence of indecent treatment of a child is a prescribed offence, the consequence of the recording of a conviction in the present case was that the applicant was a “reportable offender” pursuant to the CPA.
- No error is demonstrated from the assumption expressed by the sentencing judge during the course of submissions as to the consequence of recording a conviction. In the case of the applicant, had a conviction not been recorded, the exception under s 5(2)(a) would have applied and he would not have been a reportable offender.
- The sentencing remarks made it clear that his Honour exercised his discretion to record a conviction on the express basis that the applicant’s criminal history made the recording of a conviction appropriate. That reasoning was open to his Honour and does not reveal error.
- It was argued that there was error revealed by the sentencing judge’s failure to refer explicitly to the difference in approach between the YJA and the PSA in terms of the prominence given to rehabilitation in determining whether to record a conviction. Further, there is no equivalent in the PSA to s 183 of the YJA which made the starting point the non-recording of the conviction. Accordingly, it was submitted that the so called “Cay question” (whether there is “sufficient reason to contemplate subsequently denying persons, with an otherwise legitimate interest in knowing the truth, knowledge of the offender’s true circumstances”) is of less significance. It was submitted that undue weight was given to that consideration and that the sentencing judge appeared to have posed the Cay question to himself. No specific submission was made to the sentencing judge as to the recording of a conviction in terms of rehabilitation which his Honour failed to consider.
- It may be accepted that the starting point in relation to consideration as to whether to exercise the sentencing discretion to record a conviction is that it may be inferred that the recording of a conviction would have an adverse impact on the applicant in respect of prospects for rehabilitation and employment. As observed in R v SBR, the courts have proceeded on the assumption that the recording of a conviction will impinge on a child’s rehabilitation and employment prospects.
- While the sentencing judge did not expressly refer to the impact recording a conviction would have on the applicant’s rehabilitation generally or on his chances of finding employment in his remarks, his Honour was not specifically addressed on or provided with any information in this regard. Even so, his Honour was clearly mindful of the different sentencing regime applicable because of the applicant’s age.
- I do not consider that the failure to mention that aspect can be said to have caused the sentencing discretion to miscarry, such that the sentencing discretion should be exercised afresh. If that view is incorrect, I would not exercise the sentence discretion so as not to record a conviction taking into account the circumstances of this case, including the prior sexual offending.
- I would refuse the application.
 YJA Schedule 1, Charter of Youth Justice Principles.
 Schedule, item 17.
 R v LAL  QCA 179 at .
 Sentencing Remarks, Children’s Court, Qld, 18 September 2014, Harrison DCJ.
  QCA 408.
  QCA 179.
  QCA 89.
  QCA 328.
  QCA 94 at .
  QCA 179 at .
 Hili v The Queen (2010) 242 CLR 520 at .
 AB at 16-17.
 AB at 22.37-38.
 CPA, s 3.
 CPA, s 5(1)(a).
 CPA, sch 1 and s 9.
  QCA 185 at .
 At p 30.
  QCA 216.
  QCA 192.
 R v LAL  QCA 179 at -, citing R v JO  QCA 260.
 R v Cay, Gersch and Schell; Ex parte Attorney-General (Qld)  QCA 467.
 R v BCO  QCA 328.
  QCA 94.
- Published Case Name:
R v DBR
- Shortened Case Name:
R v DBR
 QCA 218
Fraser JA, Gotterson JA, Philippides JA
18 Oct 2019
- White Star Case:
|Event||Citation or File||Date||Notes|
|Primary Judgment||DC1/17 (No Citation)||27 Aug 2018||Date of Sentence (McGill SC DCJ).|
|Appeal Determined (QCA)|| QCA 218||18 Oct 2019||Application for leave to appeal against sentence refused: Fraser, Gotterson and Philippides JJA.|