R v Michael (a pseudonym)[2021] QCA 140

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  Count 1 on indictment 199 of 2017 charged the applicant with an offence of robbery with personal violence.  The maximum penalty under the Youth Justice Act 1992 is 10 years’ detention.  On the night of 23 December 2016, when he committed this offence, the applicant was 14 years old.^[1]  He and a friend were at the Buranda railway station where they approached the complainant, a 35 year old man.  They asked him for a cigarette and the complainant rolled cigarettes for the applicant and his friend.  The applicant then asked the complainant for another cigarette and, while the complainant was rolling a cigarette for him, the applicant hit him on the left side of the jaw with his fist.  The complainant ran away to get help, chased for a short time by the applicant.  The applicant then picked up the complainant’s duffle bag where he had dropped it and took it away and searched through it.  He stole some of its contents.
2. [2]
   The next offence with which this application is concerned (count 2 on indictment 442 of 2019) was committed by the applicant on 10 January 2017.  Together with three other boys of a similar age, he went to a local convenience shop at about 2.30 in the morning.  There they bought some cigarettes.  A 55 year old man named Gardner was also at the shop buying cigarettes.  When Gardner left the shop the four boys decided to rob him of his cigarettes.  They surrounded him and bashed him.  Police in an unmarked car interrupted the robbery.  Gardner suffered multiple facial bruises and abrasions as well as abrasions on his knees.  His face and lips were swollen and his eyes were blackened.  Police found two of the offenders nearby and, in due course, they arrested all of them.  The applicant told police that two of his companions had punched Gardner, one of them hitting him from behind to the back of his head and on his cheek and jaw.  The applicant said that one of his companions kicked the complainant in the mouth and stomped on his face twice.
3. [3]
   The applicant then committed other offences to which he later pleaded guilty in the Beenleigh Childrens Court.  On 3 March 2017 he committed an offence of trespass and an offence described in his criminal history as “false calls”.  Then, on 9 March 2017, he committed the offence charged as count 2 on indictment 199 of 2017 namely taking part in a fight in a public place.  The applicant was with four boys outside the Hungry Jacks outlet in the Queen Street mall.  Two of the boys started fighting each other.  The applicant and his other two companions joined in and kicked and punched one of these boys.  Police attended the scene and arrested all of them.  The applicant and the others were charged with affray and the applicant was issued with a Notice to Appear.
4. [4]
   A week later, on 16 March 2017, the applicant approached a police officer while holding a knife.  He ignored an order to drop the knife and only did so when threatened with a taser.  He was charged with a serious assault against a police officer while armed with a weapon.
5. [5]
   He was dealt with in the Beenleigh Childrens Court on 20 March 2017 for the trespass offence, the false call offence and for the serious assault.  On all charges he was released on a good behaviour bond which was operational for a period of six months and no conviction was recorded.
6. [6]
   On 28 March 2017 the applicant committed the last of the offences with which this application is concerned.  This was count 3 on indictment 199 of 2017.  The applicant and five other boys again accosted a man and asked for a cigarette.  They then punched and kicked him until he passed out.  They took the man’s backpack and wallet, his jacket, his prescription glasses and the e-cigarette which he had been smoking.  A video recording showed the applicant kicking the complainant and helping to remove his backpack.
7. [7]
   The applicant pleaded guilty to the three offences on indictment 199 of 2017: one count of robbery with personal violence, one count of affray and one count of robbery in company with personal violence.  Smith DCJ sentenced the applicant to three months detention and 12 months probation for the first two offences.  His Honour did not record a conviction for either of these offences.  His Honour sentenced the applicant to six months detention and 12 months probation and recorded a conviction for the offence of robbery in company with personal violence.  That was count 3.  At the same time, the applicant pleaded guilty to count 2 on indictment 442 of 2019 (robbery in company with personal violence).  His Honour sentenced the applicant to three months detention and recorded a conviction.  The applicant now seeks leave to appeal against those sentences on the basis that his Honour erred in recording a conviction and that, in any event, the recording of a conviction rendered the sentence manifestly excessive.
8. [8]
   The applicant’s argument about overt error is based upon a comment which Smith DCJ made during the course of hearing submissions.  The applicant’s counsel submitted that the applicant’s prospects of rehabilitation were good.  He also pointed out that the applicant had spent two years in detention before sentencing and that this constituted a sufficient punishment.^[2]  Defence counsel submitted that this period in detention was equivalent to a four year head sentence if release were granted after the applicant had served 50 per cent.  Counsel then made some remarks about the content of the pre-sentence report which tended to explain the applicant’s delinquent acts.  His Honour then remarked:

“I’d need some persuading that I shouldn’t record a conviction.”

9. [9]
   In response to this, defence counsel made submissions to the effect that, having regard to the applicant’s young age at the time of the offences and his rehabilitative efforts while in detention, the learned judge ought to exercise his discretion not to record a conviction.  His Honour referred in this connexion to the significance of the other offences that have been discussed above.
10. [10]
    The applicant seeks to interpret his Honour’s comment as an indication that his Honour was unaware that the starting premise when sentencing a child is that no conviction should be recorded.^[3]  That submission cannot be accepted.  It is clear beyond argument that his Honour, a highly experienced criminal judge, made the comment in order to direct counsel’s attention to direct submissions to this issue because, for the reasons his Honour later articulated during submissions, this was a case in which the facts tended strongly towards an exercise of the discretion to record a conviction.
11. [11]
    In sentencing the applicant, his Honour observed that he was in “a bit more of a serious position” than his co-accused because of the number of robberies he had committed.  His Honour then imposed the sentences of detention and said:

“In your case I’ve had regard to sections 183 and 184 of the Act and, obviously enough, the impact a conviction might have on you.  But I have decided, in the exercise of my discretion, to record a conviction on count 3, the robbery on 28 March 2017, and the robbery in January 2017 in light of that previous robbery in December of 2016.  But no conviction on that first robbery.”

12. [12]
    His Honour also decided not to record a conviction in relation to the affray.
13. [13]
    We do not accept that his Honour approached the exercise of his discretion upon the incorrect basis that reversed the assumption that a conviction ought not be recorded unless there was good reason to do so.  Rather, the comment only reflected the obvious: the applicant had committed three armed robberies and so the recording of a conviction was a real issue that had to be addressed.
14. [14]
    The applicant further submits that, having regard to the applicant’s lack of previous criminal history, his age at the time of offending, the positive steps he has taken towards rehabilitation and the likely prejudice to the prospects of rehabilitation by the recording of a conviction, his Honour erred because he “did not give sufficient regard to the mitigating factors” or the time spent in custody.
15. [15]
    The applicant was 14 when he committed the offences in December 2016 and January 2017.  He had just turned 15 when he committed the offence on 28 March 2017.  The applicant was born and, largely, raised in Samoa.  His mother died when he was 10 or 11 years old.  In accordance with custom, his maternal aunt, who lived in New Zealand, adopted him.  The family then emigrated to Australia when the applicant was 13 years old.  In Samoa the applicant was successful academically and athletically at school.  This changed in Australia.  He found his new life difficult.  There was a language barrier and there were new social customs that he had to confront.  His academic progress suffered.  He felt mentally and emotionally drained.  He disengaged from education and met other boys who introduced him to marijuana and, worse, methamphetamines.
16. [16]
    The loss of his mother affected the applicant deeply.  Undoubtedly, it was the point at which this boy’s life changed from normality to one in which he was confronted with weighty challenges.  His father was violent towards his mother and the applicant believes that his violence contributed in some way to his mother’s death.  The applicant feels resentment towards his father and told the writer of the pre-sentence report that he had experienced feelings of uncontrollable rage when experiencing his father’s abuse and that he felt the same kind of emotion when he engaged in these offences.
17. [17]
    It was clear to the writer of the report that the circumstances of the applicant’s life with his mother and father, as well as his mother’s death, left the applicant with a deep and ongoing sense of grief that he has been unable to resolve.  Undoubtedly, the pressures associated with emigration to a new country, the demands of learning a new language, new customs and having to learn all the inescapable concomitants of social engagement in an alien environment without his mother have all contributed to this boy’s alienation.
18. [18]
    His school successes in Samoa are evidence of his natural inclination to live a rewarding life.  His offences in Australia no more than evidence his inability to overcome all of the heavy burdens that were suddenly placed upon his shoulders at a critical age of transformation.  This boy’s path to a fruitful life was interrupted but his progress while in detention demonstrates that that interruption, while serious and concerning because of his use of violence, should be temporary.  He has gained insight into what he has done and how he has affected his victims.  He has been compliant with and, indeed, eager to participate in available programs to advance himself.  He is ambitious and motivated to engage in employment as soon as he is able.  His offending, all committed within a very short period, should not be regarded as predictive of a deep-seated proclivity to anti-social and criminal behaviour in the future.  It should be regarded as the aberrant behaviour of a temporarily disturbed boy.  The burden of a recorded conviction ought not have been added to the burdens that the applicant already has to bear.  The assumption that a conviction ought not be recorded was not displaced on the facts of this case.
19. [19]
    In our respectful opinion, the exercise of discretion miscarried to this extent.  For these reasons we made the orders on 13 April 2021.