R v CCS[2021] QCA 231

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  For the reasons given by Williams J, I joined in making the orders on 12 October 2021.
2. [2]
   DAVIS J:  I agree with the reasons of Williams J for making the orders made on 12 October 2021.

3. [3]
   WILLIAMS J:  This is an application for leave to appeal in respect of a sentence imposed in the Childrens Court.  The applicant pleaded guilty and was sentenced as follows:

   1. (a)
      one count of armed robbery in company with personal violence – six months detention with release immediately to a Conditional Release Order for one month and a conviction recorded.
   2. (b)
      two counts of armed robbery in company and one count of a threat to kill - in respect of each count, two years’ probation and no convictions recorded.
4. [4]
   The application for leave to appeal is only in respect of the recording of a conviction for count 1 on the basis that it renders the sentence manifestly excessive.
5. [5]
   On 12 October 2021, the Court of Appeal made orders with reasons to be provided as follows:

1. The application for leave to appeal against sentence be granted.
2. The appeal be allowed.
3. The sentence for count 1 be set aside to the extent that a conviction was recorded and substitute an order that a conviction not be recorded.

6. [6]
   These are the reasons for those orders.
7. [7]
   The applicant was 15 years and eight months at the time of the offences and was 17 years old at the time of the sentence.
8. [8]
   The applicant has a criminal history with five prior sentences as follows:

   1. (a)
      On 10 October 2018 and 27 February 2019, the applicant was sentenced for various summary property offences resulting in four months and nine months’ probation respectively and no convictions recorded.
   2. (b)
      On 22 March 2019, the applicant was sentenced for three robbery and driving offences to two years’ probation with no convictions recorded.
   3. (c)
      On 30 October 2019, the applicant was sentenced for a variety of drug, traffic and dishonesty offences and was remanded and no convictions were recorded (having spent 53 days in undeclarable pre-sentence custody).
   4. (d)
      On 4 December 2020, the applicant was sentenced for going armed so as to cause fear and threatening violence to 40 hours of community service to be completed within 12 months.^[1]  Other offending was also dealt with including property offending and common assault.
9. [9]
   A schedule of facts was tendered at the sentencing hearing in respect of the current offending.  In summary, the relevant facts are as follows:

   1. (a)
      The offending occurred on 16 January 2020.
   2. (b)
      Three complainants and the two defendants met on a bus in the Southport area and travelled together to the backyard of one of the complainants.
   3. (c)
      The applicant approached a complainant with a serrated knife, placed it against his neck and demanded money and property (count 1).  The knife caused a graze to the complainant’s neck.
   4. (d)
      The applicant demanded that the other two complainants take off their bags, shoes and hand over a mobile phone (counts 2 and 3).
   5. (e)
      The applicant then said to the complainants that “if you say anything or go to the police I will come to your house and kill you”, while waving the knife at the complainants.
10. [10]
    The applicant’s co-accused was charged with counts 1 to 3 and has been sentenced in respect of count 1 to a Restorative Justice Conference and a nolle prosequi was presented in relation to counts 2 to 3.
11. [11]
    For the purposes of the sentencing hearing, a pre-sentence report was prepared by the Department of Youth Justice and a representative of the Department made submissions at the sentencing hearing.
12. [12]
    The Prosecution pointed to aggravating features of the offending, namely:

    1. (a)
       that the applicant had a “significant history of offences of violence and dishonesty” and a “drug history”; and
    2. (b)
       re-offended whilst subject to probation.
13. [13]
    The Prosecution recognised the mitigating factors including the applicant’s lengthy period of compliance with a conditional bail program and 53 days spent in pre-sentence custody.
14. [14]
    In respect of detention, the Prosecutor submitted that whilst detention was within range, the applicant ought not to serve further actual detention and a Conditional Release Order was available.  As the supervision provided for under a Conditional Release Order was only available for a three month period it was contended that a separate order for a concurrent period of probation should also be made.
15. [15]
    In respect of recording of a conviction, it was submitted that it was appropriate for count 1 (robbery involving violence) by reference to the comparable authorities.^[2]
16. [16]
    Submissions on behalf of the applicant at the sentencing hearing identified a number of mitigating factors, including:

    1. (a)
       the applicant experienced a highly prejudicial upbringing;
    2. (b)
       the applicant has intellectual impairments;
    3. (c)
       the applicant had reduced, but not yet stopped entirely, the use of methylamphetamine;^[3] and
    4. (d)
       the applicant complied with a conditional bail program for an extended period since 30 March 2020 and had completed various courses.  The sentencing judge noted that the applicant had “been performing well in respect of those quite onerous conditions”.^[4]
17. [17]
    Appropriately, Counsel on behalf of the applicant made specific submissions regarding the sentencing principles as set out in the Youth Justice Act 1992 (Youth Justice Act).
18. [18]
    It was submitted on behalf of the applicant that a restorative justice referral together with a community service order and a 12 month probation order were appropriate in the circumstances considering the principles in the Youth Justice Act.
19. [19]
    It was specifically contended that convictions should not be recorded, particularly for reasons of the applicant’s prospects of rehabilitation.
20. [20]
    The submissions made by the Department of Youth Justice identified that the applicant had complied with a conditional bail program for 15 months which was recognised as being an “exceptionally long time”.  This had involved the applicant engaging with the Department of Youth Justice for in excess of 200 days, being the approximate equivalent of a whole year of a usual adult work year.
21. [21]
    As evidenced in the sentencing remarks, the sentencing judge took into account various matters including the applicant’s plea of guilty, the applicant’s age, the facts of the offending, the applicant’s criminal history, that the applicant was subject to a probation order at the time of the offending, the applicant’s prejudicial upbringing and that the applicant had complied with strict bail conditions under the conditional bail program.
22. [22]
    In sentencing the applicant, the sentencing judge indicated that he had formed the view that no order other than detention was appropriate.^[5]  In respect of count 1, the applicant was sentenced to six months detention but was immediately released on a Conditional Release Order for a period of one month.  This took into account the 53 days the applicant had spent in custody.  A conviction was ordered to be recorded for count 1.
23. [23]
    In respect of counts 2 to 4, the applicant was sentenced to a period of two years’ probation and no convictions recorded.
24. [24]
    Following further dialogue as to the requirements of the Youth Justice Act, in respect of recording a conviction the sentencing judge stated as follows:

“In respect of the recording of a conviction in respect of count 1, I have concluded that a conviction ought be recorded in respect of that offending not only because of its very serious nature of that offending of itself, but I also consider the number of other entries of violence in your criminal record and would also note that you have been given numerous opportunities where no convictions have been recorded to date. I well appreciate the impact that the recording of a conviction might have on both your financial and personal circumstances. One does not need evidence to realise that the recording of a conviction is going to make getting a job more difficult than otherwise. However, for the reasons that I have given I consider that in respect of that offence the order that I have made is an appropriate one”^[6] (emphasis added)

25. [25]
    The applicant contends that the sentence is manifestly excessive to the extent that a conviction was recorded in respect of count 1.
26. [26]
    In support of this position, the applicant refers to a number of authorities considering the recording of convictions under the Youth Justice Act.
27. [27]
    The Youth Justice Act relevantly states 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.

3. (2)
   If a court makes an order under section 175(1)(a) or (b), a conviction must not be recorded.

3. (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

3. (1)
   In considering whether or not to record a conviction, a court must have regard to all the circumstances of the case, including—

1. (a)
   the nature of the offence; and

2. (b)
   the child’s age and any previous convictions; and

3. (c)
   the impact the recording of a conviction will have on the child’s chances of—

1. (i)
   rehabilitation generally; or

2. (ii)
   finding or retaining employment.

3. (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. (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.”

28. [28]
    The Court of Appeal considered s 184 of the Youth Justice Act in R v Cunningham.^[7]  Daubney J, with whom Holmes JA (as the Chief Justice then was) and Gotterson JA agreed, stated at [50] as follows:

“… cases in which this Court has been required to exercise the discretion conferred by s 184 of the [Youth Justice Act] turn on their particular circumstances, with an emphasis being placed on the impact of recording a conviction of a child’s chance of rehabilitation or finding or retaining employment.”

29. [29]
    The principles relevant to the exercise of the discretion under s 184 of the Youth Justice Act were also considered by the Court of Appeal in R v SCU.^[8]  Sofronoff P emphasised that the Court is to have “regard to all the circumstances of the case including three matters that are expressly stated”.^[9]
30. [30]
    Further, Sofronoff P, following consideration of earlier cases considering this issue, concluded that “every case is different and requires an exact and rigorous examination of the factors that must be considered before the discretion to record a conviction is exercised”.^[10]
31. [31]
    Also in R v SCU, McMurdo JA, with whom Morrison JA agreed, commented on the considerations relevant to s 184 in the specific exercise of the discretion in that case as follows:

“[161] Of those considerations, the only one which was considered again in this respect was ‘the nature of the offence.’ Of course the judge had referred to the child’s age and any previous convictions. But they had to be considered in the particular context of the decision under s 183(3). More importantly perhaps, there was no consideration of the impact which the recording of a conviction would have on the child’s chances of rehabilitation generally or finding or retaining employment. Consequently, the exercise of the discretion miscarried and this Court must decide on the matter.

[162] The impact of the recording of a conviction necessarily involves a degree of speculation. Nevertheless, the likelihood that the recording of a conviction, especially for an offence as serious as arson, would detrimentally affect his rehabilitation and his finding or retaining employment is undoubtedly high. Clearly there is a connection between his chances of finding or retaining employment and his chances of rehabilitation. It is unnecessary to consider particular types of work in which the applicant might be affected; the conviction for arson, without an appreciation of the mitigating circumstances of the applicant’s case, would deter many an employer.

[163] I agree with the sentencing judge that this was a serious offence, even when committed by a 15 year old. It is also relevant that he had offended previously. But balancing the relevant considerations, in my view, the likely impact upon his future employment and his rehabilitation, from the recording of the convictions, could be so serious that the convictions should not be recorded.”

32. [32]
    In this case, the applicant submits that particular emphasis should be placed on the applicant’s prospects of rehabilitation and that was not done by the sentencing judge.
33. [33]
    Reliance is also placed on the decision of the Court of Appeal in R v PBE,^[11] which concerned a challenge to convictions being recorded.  In allowing the appeal and ordering that convictions not be recorded, consideration was given to the sentencing reasons.  The sentencing reasons in respect of recording a conviction considered generally rehabilitation and employment, but also stated:

“it is otherwise necessary to balance the nature of the offending that is involved and your advancing age and repetitive offending behaviours and, most significantly, the presently poor prospects of your rehabilitation, particularly in the context of your repeated breaching of Court orders.  In these circumstances and where the point has now been reached where periods of detention are necessary … it is appropriate to direct the recording of convictions”. (emphasis added)

34. [34]
    The relevant question was whether the sentencing judge’s focus on “the point has now been reached where periods of detention are necessary” resulted in an error in the exercise of the sentencing discretion.
35. [35]
    McMurdo JA, with whom Gotterson JA and Douglas J agreed, referred to the comments by Sofronoff P in R v SCU where the President said:

“Second, his Honour’s reference to this case as one ‘where detention having been warranted’ is a reference to a matter which is not, without explanation, relevant to the exercise of discretion. The question whether or not to record a conviction will arise in cases in which detention is not ordered and also in cases in which detention is ordered. Many circumstances leading to a detention order will also justify the recording of a conviction. However, the fact alone that detention is part of the punishment cannot do so. Indeed, in an appropriate case the fact that detention has been ordered may result in a conclusion that a conviction should not also be recorded as a blight upon a child’s future. It was erroneous to use the fact of detention having been ordered as a justification for recording a conviction.”^[12]

36. [36]
    McMurdo JA also recognised that an important consideration was the impact of the recording of the conviction on the chances of rehabilitation generally, or finding or retaining employment.  In re-exercising the sentencing discretion, McMurdo JA, in respect of rehabilitation and finding or retaining employment, stated as follows:

“[40] … It must be said that, with reference to his conduct in recent years, the applicant may have some way to go in order to be rehabilitated.  But clearly also, his prospects of finding or retaining employment, which of course would affect his prospects of rehabilitation, are likely to be prejudiced by the recording of convictions for these offences.

[41] Overall then, the relevant considerations do not favour this case being outside the usual position, where convictions are not recorded.”

37. [37]
    The pre-sentence report in respect of the applicant outlines the efforts and steps taken by the applicant towards rehabilitation.  These steps were recognised by the sentencing judge in the more general considerations in the sentencing remarks including the following comments:

    1. (a)
       “[Y]ou are beginning to appreciate the seriousness of your offending”;^[13]
    2. (b)
       “If you keep offending like this, you will end up in custody for significant periods of time.  And it would seem that you have recognised that and are taking some steps in that direction”.^[14]
38. [38]
    However, in the particular considerations in respect of recording a conviction, the sentencing judge did not refer to the evidence in respect of rehabilitation or his earlier comments and specifically mentioned the following factors:

    1. (a)
       The “very serious nature of that offending of itself”;
    2. (b)
       The “number of other entries of violence in your criminal record”;
    3. (c)
       “[Y]ou have been given numerous opportunities where no convictions have been recorded to date”.^[15]
39. [39]
    It is in these circumstances that the applicant contends that the sentencing judge placed too much emphasis on the escalating nature of the offending.
40. [40]
    In R v DBU^[16] the Court of Appeal considered a similar application involving the recording of a conviction in respect of a child sentenced under the Youth Justice Act.
41. [41]
    In that case, particular focus on the “escalating” nature of the offending, together with the previous offending, led the sentencing judge to conclude that a conviction should be recorded.  In allowing the appeal, McMurdo JA stated:

“[6] Serious as these offences were, the nature of them was not such that the offender’s convictions had to be publicly recorded, notwithstanding any prejudice to the applicant’s rehabilitation. The sentencing judge, incorrectly in my respectful view, elevated those offences to that level of seriousness, on the basis of the applicant’s previous offending (for which no convictions had been recorded).”

42. [42]
    Similarly, in R v FAY^[17] the sentencing judge considered the fact that the applicant had been given opportunities in the past where no convictions had been recorded.  On appeal, Davis J, with whom Fraser JA and Philippides JA agreed, concluded that given the contents of the pre-sentence report it was impossible to conclude that the conclusion that recording a conviction was “the only appropriate option”.  In that case, the sentencing judge failed to take into account relevant considerations against the recording of the conviction and the exercise of discretion miscarried.  In re-exercising the discretion, the evidence established that the prospects of rehabilitation remained, particularly given his insight into his offending and the fact that he was suitable for supervision.
43. [43]
    Another relevant authority is R v TAO,^[18] where the Court of Appeal also had to consider an application for leave to appeal against sentence on the basis that the recording of convictions rendered the sentences manifestly excessive.  The sentencing judge in reaching the decision to record convictions placed particular emphasis on the applicant having been dealt with leniently in the past.
44. [44]
    Boddice J, with whom Sofronoff P and McMurdo JA agreed, commented as follows:

“[20] Whilst leniency in the past may be a relevant consideration in respect of the applicant’s previous convictions, the sentencing Judge’s reference to that leniency must be considered in light of the earlier observation by the sentencing Judge that the applicant had ‘previously been given opportunities whereby convictions were not recorded’. In context, these observations support a conclusion that the applicant’s past performance, when previously having been given opportunities whereby convictions were not recorded, impermissibly constrained the sentencing Judge’s exercise of the discretion whether to record convictions in respect of the present offences.

[21] Whatever may have been the applicant’s past approach to those opportunities, a proper exercise of the sentencing discretion required consideration of not only the nature of the offences, the applicant’s age, her previous convictions and the impact of the recording of a conviction upon her chances of rehabilitation generally or finding or obtaining employment, but also of the factors in the applicant’s favour, including positive changes in her life and attitudes since the offences.

[22] In the applicant’s case, those changes were significant …”  (emphasis added)

45. [45]
    Boddice J identified a number of factors that were particularly relevant to the issue of whether a conviction should be recorded.  Many of those factors were referred to by the sentencing judge prior to exercising the sentencing discretion to impose a detention order and a conditional release order.  However, those matters only received reference in respect of the exercise of the discretion to record convictions after that discretion had been exercised by the sentencing judge.  Boddice J concluded “[t]he failure to specifically refer to those matters, when exercising that sentencing discretion, supports a conclusion that the sentencing discretion miscarried by reason of misapplication of principle”.^[19]  In the circumstances, it required a re-exercise of the discretion.
46. [46]
    In the current case, the applicant contends that the factors in the applicant’s favour were not considered by the sentencing judge in the exercise of the discretion as to whether to record a conviction.  The applicant points to the following particular features as demonstrating his prospects of rehabilitation and which support the non-recording of a conviction:

    1. (a)
       The applicant’s compliance with a conditional bail program over a period of 15 months, engaging with the Department of Youth Justice for in excess of 200 days.
    2. (b)
       The applicant’s return to living with his mother.
    3. (c)
       The applicant’s completion of 40 hours community service and resultant reference for his “work ethic”.
    4. (d)
       The applicant’s commencement of a victim empathy program.
    5. (e)
       The applicant passing his learner’s driving licence test.
    6. (f)
       Reduction in the applicant’s illicit drug use.
47. [47]
    The applicant also refers to a further relevant factor which was not considered by the sentencing judge in the exercise of the discretion in respect of the recording of a conviction.  The applicant has been diagnosed with an “unspecified neurocognitive disorder” and a “mild developmental language disorder”.^[20]
48. [48]
    In support of the relevance of this factor, the applicant refers to the decisions of R v HBV,^[21] R v MBQ; Ex parte Attorney-General (Qld)^[22] and R v BCN.^[23]  The applicant contends that an intellectual disability or a learning impairment has been recognised as a basis for exercising a discretion not to record a conviction.
49. [49]
    The respondent submits that in all the circumstances, the discretion to record the conviction was properly exercised and the appeal should be dismissed.  In support of this contention, the respondent considers the three comparable authorities relied upon by the sentencing judge.  It is submitted that these three authorities involved offending which is less serious than the current offending and in two of those cases, a conviction was recorded.
50. [50]
    The Court of Appeal in R v V^[24] allowed an appeal by setting aside convictions in respect of all offences except in relation to a count of armed robbery in company.  In that case, the applicant was 16 and a half, brandished a knife while his co-offender stole tobacco.  The applicant had an “appalling” criminal history and the offending occurred while the applicant was subject to probation.  The respondent submits that in that case, V’s history was less “prolific for violence” than the applicant in this case.  There were indications of positive changes, but he did require supervision for some time.
51. [51]
    Similarly, in R v D^[25] the Court of Appeal also allowed an appeal to the extent of setting aside the order recording convictions in all cases except in relation to the count of armed robbery.  D was the co-offender of V.  He was 15 and a half and had a significant criminal history.  He had continued to offend and had been on probation at the time of the offending.  There were positive steps pointing towards a positive outcome for the future but on balance, the Court favoured the recording of a conviction.
52. [52]
    The case of R v HBV was also less serious as it was armed robbery where the applicant did not use the weapon he was armed with but acted in company.  The complainant was assaulted.  Key features included the nature of the rehabilitation and insight of the applicant.  In the circumstances, it was recognised that those factors placed the applicant in a different category and led to the recording of the conviction being overturned.
53. [53]
    The respondent contends that the seriousness of the offence is a weighty factor and in some circumstances it is a determinative consideration.  In the current case, the respondent points to the following serious features of the offending:

    1. (a)
       The armed robbery incorporated a knife to the complainant’s throat;
    2. (b)
       The offending involved the use of a knife to cause injury;
    3. (c)
       The offending was in company;
    4. (d)
       While the offending could be said to be opportunistic, it still required some planning to the extent that the complainants needed to be out of sight, the applicant being armed and his co-offender being present;
    5. (e)
       The circumstances of an apparent peaceful social encounter turning into an act of armed robbery;
    6. (f)
       The humiliation of the complainants;
    7. (g)
       The offending continuing despite the distress and pleas of the complainants;
    8. (h)
       The applicant engaging in the humiliation despite having met one of the complainants;
    9. (i)
       The threats took place after the offending.
54. [54]
    The respondent also makes particular reference to the decision in R v DBU,^[26] and in particular, the comments of Lyons SJA.
55. [55]
    In R v DBU Lyons SJA recognised that the starting premise is that no conviction should be recorded.  Lyons SJA noted the comments of Sofronoff P in R v SCU that given that starting point, 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.  As was recognised by Sofronoff P, this is not a simple task as is illustrated by the cases.
56. [56]
    Additionally, Lyons SJA noted:

“[34] Accordingly, given the immediate impact on rehabilitation and the long term consequences with respect to future employment, there must, in my view, be a significant reason why the presumption should be overcome.”

57. [57]
    Ultimately her Honour reached the conclusion that the sentencing judge was too heavily influenced by the continuation of the offending and his view that it was “escalating” rather than the true nature of his offences which were similar in many respects to the previous offending.  Further, too much weight was also given to the view that “significant leniency [...] had previously been given”.  In the particular circumstances of DBU, Lyons SJA concluded that these factors were given too much weight and the sentencing judge did not sufficiently take into account the personal circumstances at the time of the sentence.
58. [58]
    The respondent raises a number of specific matters in response to the factors identified by the applicant, including:

    1. (a)
       The applicant continued to offend for some months after being placed on the conditional bail program, including a further offence of assault occasioning bodily harm.
    2. (b)
       The applicant had indicated to the Court in 2019 that he was committed to remaining drug free and was in a different position to what he had been in in 2018.  He also engaged in education and completed a certificate in hospitality.
    3. (c)
       The applicant was said to be living with his mother at the time of his sentence on 23 March 2019 but had reoffended within four months of that hearing.
    4. (d)
       In March 2019, Muir DCJ indicated that a conviction would not be recorded but there might be a point in time when that would change and, in effect, “this is it”.
    5. (e)
       The pre-sentence report notes that the applicant has reduced his methylamphetamine use from May 2020, however this is self-reporting.  The respondent refers to the applicant committing an offence of assault occasioning bodily harm during this period of sporadic use of methylamphetamine.
59. [59]
    As s 183(3) is the relevant provision, the sentencing judge had a direction as to whether a conviction was to be recorded or not.  Section 184 sets out the relevant considerations.
60. [60]
    The sentencing judge focussed on three issues: the serious nature of the offending, the applicant’s criminal record and previous occasions where no convictions had been recorded.  This focus resulted in undue weight being given to these factors and no real consideration of other factors, including favourable matters.
61. [61]
    Further, the sentencing judge’s consideration of the impact of recording a conviction on rehabilitation and employment was only cursory.  It did not involve the “exact and rigorous examination of the factors” that must be considered before the discretion to record a conviction is exercised.^[27]
62. [62]
    While some factors had been considered as part of the sentencing discretion more generally, they were not considered in respect of the discretion as to whether a conviction should be recorded.  Some factors, such as the applicant having a diagnosed intellectual impairment, were of a nature that they should have been specifically considered at the stage of exercising the discretion as to whether a conviction should be recorded or not.
63. [63]
    As a result, the sentencing discretion miscarried by reason of misapplication of principle.  Consequently, the sentencing discretion in relation to the recording of a conviction needs to be re-exercised.
64. [64]
    In re-exercising the discretion, the starting point is that a conviction is not to be recorded against a child who is found guilty of an offence.^[28]  Consistent with the authorities, there must be a significant reason why the presumption should be overcome.  Here there is evidence of changes in the applicant’s circumstances subsequent to the offending which tends to favour convictions not being recorded.
65. [65]
    In particular, the significant period that the applicant was subject to, and compliant with, the Conditional Bail Program and the engagement with the Department of Youth Justice is a compelling factor.  The pre-sentence report also identifies the on-going work being done by the Department in assisting the applicant to re-engage with education and to identify vocational training opportunities such as an apprenticeship.
66. [66]
    The applicant has shown positive steps towards rehabilitation and employment.  Rehabilitation and employment are both pivotal factors in reducing the risk of future offending.  Whilst recognising the serious nature of the offending and the applicant’s criminal history, the other relevant considerations and the significant potential impact on the applicant’s rehabilitation and future employment, favour maintaining the presumption in s 183(1) of the Youth Justice Act.
67. [67]
    It is therefore appropriate to re-exercise the discretion by ordering that in respect of count 1 no conviction be recorded.