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- Notable Unreported Decision
R v FAY QCA 154
SUPREME COURT OF QUEENSLAND
R v FAY  QCA 154
CA No 124 of 2019
Court of Appeal
Childrens Court at Brisbane – Date of Sentence: 2 May 2019 (Farr SC DCJ)
23 July 2020
23 July 2020
Fraser and Philippides JJA and Davis J
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant is a child – where the applicant pleaded guilty to one count of armed robbery in company – where the applicant was sentenced to a period of detention of eight months with an order that he be released immediately, after serving 140 days on remand, and on conditional release for three months – where a conviction was recorded – where the applicant seeks leave to appeal the recording of a conviction on the ground that the sentencing judge failed to take into account relevant considerations – where the primary reasons given for the recording of a conviction were the seriousness of the charge and the applicant’s criminal history – where the sentencing judge failed to consider relevant countervailing factors and the pre-sentence report – where regard must be had to all the relevant circumstances – whether the sentencing discretion miscarried
CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – DISCRETION TO RECORD CONVICTION – RELEVANT CONSIDERATIONS – where the applicant is a child – where the applicant pleaded guilty to one count of armed robbery in company – where the applicant was sentenced to a period of detention of eight months with an order that he be released immediately, after serving 140 days on remand, and on conditional release for three months – where a conviction was recorded – where the starting point is that no conviction be recorded – where all the circumstances of the case must be considered – where the applicant was deemed suitable for supervision – where prospects of rehabilitation remained – whether the conviction should be recorded
Youth Justice Act 1992 (Qld), s 183, s 184
R v DAU; Ex parte Attorney-General (Qld)  QCA 244, cited
A Hoare for the applicant
Kilroy & Callaghan Lawyers for the applicant
- DAVIS J: The applicant is a child who applies for leave to appeal against a sentence imposed upon him for one count of armed robbery in company. By the time he was sentenced, the applicant had spent 140 days in detention on remand. The commission of the armed robbery breached other orders to which the applicant was subject as a result of earlier offending.
- His Honour sentenced the applicant to a period of detention of eight months with an order that he be released after serving 140 days but placed him on conditional release for a period of three months. A restorative justice order was made. His Honour made other orders dealing with the breach of the orders that had been made consequent upon earlier offending. His Honour recorded a conviction.
- The effect of his Honour’s orders was that the applicant was released immediately on supervision.
- No complaint is made about the sentence or any other order made by his Honour, except the recording of a conviction. The sole challenge on appeal is to the recording of the conviction.
- By amendment, a ground of appeal was added, namely that in recording a conviction, the sentencing judge failed to take into account all relevant considerations, in particular, evidence of rehabilitation. For reasons which will become apparent, it is only necessary to consider that ground of appeal.
- The applicant was born on 22 June 2002. He was a month short of his sixteenth birthday when he and three co-offenders robbed a convenience store at Manly West. One of the co-offenders was also a child, but another was 23 years of age. The fourth offender has not been identified.
- The robbery was not a sophisticated affair. The offenders entered the shop. The unidentified offender held a knife towards the shop assistant while the others stole things. The property stolen was money and some ice-cream, and the applicant took some cigarette lighters from the counter. He also took a bottle from the shelf.
- The offenders all then left in a stolen car and were shortly detected and arrested, apart from the unidentified offender, who seems to have disappeared. The applicant was not charged with any offence relating to the stolen car. The primary judge had before him a pre-sentence report and referred to that in the course of passing sentence.
- Having passed sentence and made other orders, his Honour then recorded a conviction. His Honour’s reasons for doing so were expressed as follows:
“HIS HONOUR: Now, I then turn to the issue of the recording of a conviction on the charge of armed robbery. As I have indicated, it is a particularly serious charge, and you have been given many opportunities in the past by the Courts by the non-recording of convictions against you. Notwithstanding in this matter that you were not the person holding the knife, for the reasons that I’ve already referred to, it is quite apparent that you were aware of its existence and at least the potential of its intended use and then did not desist or defer your own behaviour upon its production. The nature of the offence, therefore, is a significant consideration in the determination of the issue.
Your age is, of course, also relevant and I take it into account. I also take into account, of course, your criminal history and the fact that you have been given so many opportunities in the past without convictions being recorded. Whilst the impact of the recording of a conviction may have some impact upon your chances of rehabilitation generally or of finding or retaining employment, in my view, in all of the circumstances of this matter – balancing all of the competing considerations, which the court must do – in the exercise of my discretion, I find it appropriate – and, in fact, the only appropriate option in all the circumstances – to record a conviction for that very serious charge.”
- The system of criminal justice for children is established and regulated by the Youth Justice Act 1992. It is well established that the Youth Justice Act establishes a separate and distinct regime for juvenile justice and that the relevant considerations in sentencing children are defined by that Act differently to the considerations relevant to the sentencing of adults under the provisions of the Penalties and Sentences Act 1992.
- Sections 183 and 184 of the Youth Justice Act provide as follows:
“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.
- (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 or 176A, 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.”
- The principles relevant to the exercise of discretion under sections 183 and 184 were considered in detail by this Court in R v SCU. As explained in that case:
- (a)While section 184 identifies three specific considerations which must be taken into account in exercise of the discretion to record a conviction, that list is not exhaustive.
- (b)“All the circumstances of the case” must be considered. That is expressly provided in section 184(1).
- (c)The starting point is that no conviction is recorded and before a conviction is recorded:
“… a sentencing judge must be satisfied positively after considering the matters that the statute mandates should be considered that the proper exercise of discretion is in favour of recording a conviction.”
- Here, the primary judge identified the following factors in determining that a conviction ought to be recorded:
- (a)the charge is “a particularly serious charge”;
- (b)the applicant has “been given many opportunities in the past by the Courts by the non-recording of convictions against you”; and
- (c)the applicant knew that a knife was involved in the commission of the offence and did not desist in the offending behaviour.
- The only countervailing factors that were referred to by his Honour were:
- (a)the applicant’s age; and
- (b)that the recording of a conviction: “may have some impact upon your chances of rehabilitation, generally or of finding or retaining employment”.
- His Honour said that he exercised his discretion against “all of the circumstances of this matter”, but observed that the recording of a conviction was, in his view: “the only appropriate option in all the circumstances”. That comment was made in the context of a broader statement: “the only appropriate action in all the circumstances – to record a conviction for that very serious charge”.
- It seems to me that the primary reason for recording a conviction was his Honour’s view of the seriousness of the charge. The other main consideration taken into account by his Honour were the “many opportunities” that the Courts had given the applicant in the past. That, of course, is a reference to the applicant’s criminal history.
- The seriousness of an offence for which a child has been convicted may be a weighty and, in some circumstances, a determinative consideration to the recording of a conviction: see R v KU; Ex parte Attorney-General (Qld) (No 2).
- By force of the expressed terms of sections 183 and 184 of the Youth Justice Act, the seriousness of the offence is but one consideration which must be balanced with “all the circumstances of the case”. It is therefore unsurprising that convictions have not been recorded against children who have committed very serious offences.
- For example, in R v MBQ; Ex parte Attorney-General (Qld), a conviction was not recorded against a 12 year old boy who had raped a three year old girl. R v DAU; Ex parte Attorney-General (Qld), is another example of a conviction not being recorded against a child who had been convicted of rape.
- There were serious aspects of the offending here. In particular:
- (a)there were offenders acting in company;
- (b)a knife was used to threaten the shop assistant; and
- (c)the shop assistant would no doubt have been very frightened.
- On the other hand:
- (a)no one was injured in fact;
- (b)the robbery was very unsophisticated; and
- (c)very little property was taken.
- This was certainly not a case where the nature of the offending itself effectively mandated the recording of a conviction, nor, in my view, contrary to the approach of his Honour, was the seriousness of the offending such as to be the major consideration of the exercise of discretion in the circumstances of this case.
- His Honour’s observation that the applicant had been given opportunities in the past by the non-recording of convictions is well made. However, any consideration of the applicant’s criminal history must involve a consideration of the pre-sentence report. That shows the following:
- (a)The applicant, an Indigenous boy, is the youngest of eight children.
- (b)The family unit broke up when the applicant was about one year of age when his parents separated.
- (c)The applicant has had minimal contact with his father.
- (d)In 2013, when the applicant was 10 years of age, his sister died in traumatic circumstances. His mother did not cope, and this led to the applicant being placed in the care of relatives.
- (e)When the applicant was reunited with his mother in 2015, their relationship was difficult and he was effectively raised from that point by his sisters.
- Against that background, it is hardly surprising that, as observed by the author of the pre-sentence report, the applicant began to rely upon his peers. The associations made by the applicant were not wise ones. He was led into drug use and criminal offending.
- Despite all this, the author of the pre-sentence report reported that the applicant demonstrated empathy towards the victim of the armed robbery and that he shows insight into his offending behaviour. He was considered suitable for supervision, and he was sentenced consistently with that consideration.
- Against those obviously relevant circumstances, it is impossible, in my view, to conclude that his Honour was correct in his finding that “the only appropriate option” in the case was the recording of a conviction.
- In my respectful view, the primary judge has failed to take into account relevant considerations against the recording of the conviction and the exercise of discretion has miscarried.
- While the applicant has an unenviable criminal history, and while there are serious features of the offence which he committed, the countervailing features would lead me to not record a conviction.
- The applicant is still very young. His offending can be explained, but certainly not excused, by circumstances leading to the breakdown of his family unit in turn leading to his reliance upon peers whose influence has not been good. Prospects of rehabilitation remain given his insight into his offending and the fact that he is suitable for supervision.
- Importantly, the applicant has sought engagement with elders. Seeking support in this way demonstrates a significant change in attitude which probably is also evidence of a growing maturity.
- I would:
- allow the appeal;
- set aside the recording of the conviction; and
- order that no conviction be recorded.
- FRASER JA: I agree.
- PHILIPPIDES JA: I also agree.
- FRASER JA: The orders of the Court are:
- Grant the application for leave to appeal.
- Allow the appeal.
- Set aside the recording of the conviction.
- Order that no conviction be recorded.
- Published Case Name:
R v FAY
- Shortened Case Name:
R v FAY
 QCA 154
Fraser JA, Philippides JA, Davis J
23 Jul 2020
- White Star Case: