R v MDD[2021] QCA 235

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  I agree with the reasons for judgment given by McMurdo JA.
2. [2]
   McMURDO JA:  On 30 October 2020, the applicant was sentenced in the Childrens Court on one count of attempted robbery with wounding to a period of 20 months’ detention, with release after serving 10 months.  A conviction was recorded.  This application for leave to appeal challenges only the recording of the conviction.
3. [3]
   The applicant was born on 12 August 2003.  He was aged 16 years and seven months at the time of the offence and about seven months older when he was sentenced.
4. [4]
   A pre-sentence report, which was tendered at the hearing, indicated a number of factors which had contributed to his considerable criminal history.  His family were “extremely transient” during his formative years, moving regularly across Queensland due to his parents’ work commitments and for other reasons.  He had attended at least 19 different schools and had a highly disrupted educational experience, partly due also to his behavioural problems at school.  And from the age of about 12, he began to consume marijuana and methamphetamine.  He was affected by methamphetamine when he committed this offence.
5. [5]
   That report noted that under the DSM-5, he meets the criteria for Intellectual Disability, having a Full-Scale IQ of 70.  He was described as having significant difficulties with verbal comprehension and problem-solving abilities and his verbal reason was within the “Impaired” range.  The report described him as being unable to identify underlying rules in order to reason and solve problems.  An assessment of his behaviour indicated that he was within the “Very Elevated” range for defiant and aggressive behaviours and within the “Elevated” range for Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder.
6. [6]
   His circumstances were described in the report as follows:

“It is assessed that [his] ongoing dependence on illicit substances, compounded by his intellectual difficulties and oppositional behaviours, contributed toward his offending behaviour. … It appears that [he] was challenged by his victim and has responded in a way that is symptomatic of having pro-criminal [attitudes], disregard for social rules and poor problem-solving skills.”

7. [7]
   The offence in question was committed as follows.  In March 2020, at about 9.30 pm, the applicant was with another boy at a shopping centre in Rockhampton, when they approached the two complainants, who were females aged 16 and 21 and who were sitting in a stairwell.  The applicant and the other boy asked the complainants for cigarettes.  At first they walked away when their request was declined.  However they returned five minutes later, the applicant wearing a bandana over his face and concealing a kitchen knife in his jumper.  He stood over one of the complainants and asked whether they had any money.  When told that they did not, the applicant said “you don’t think I will stab you?  What about the phones?”.  One of the complainants told him they would not give him their phones, and the applicant then pulled a knife out and brandished it at them.  He attempted to snatch the phone out of the hand of one of the complainants, and a struggle ensued between him and the complainants, in the course of which he stabbed one of them in the right thigh.  He then said to her “give me your phone or I’ll stab you again”.  She told him to stop and he then stabbed her a second time, this time in the other thigh, before running away with his co-offender.  The young woman suffered deep laceration wounds to each thigh.  The complainant’s companion called an ambulance, and the complainant was treated in hospital before being discharged.  The applicant was arrested on the following day and promptly participated in an interview with police, in which he made full admissions and told police that he was angry and stressed before encountering the girls.
8. [8]
   As already noted, the applicant, by then, had an extensive criminal history.  This offence was committed in breach of two probation orders, one of which was made 10 days earlier in respect of property offences, the possession of a dangerous drug and the obstruction of a police officer.  The other probation order was made in November 2019, when he was sentenced for a large number of property offences.  At that hearing he was sentenced at 15 months’ detention, to be served by way of a conditional release, but also re-sentenced for earlier offences to a period of probation.
9. [9]
   His first appearance before a Court was when he was aged 13, and, at the presently relevant sentencing hearing his criminal history extended over 11 pages.  On no occasion, prior to the present case, had a conviction been recorded.
10. [10]
    The pre-sentence report recorded the applicant’s “significant mental health issues” during his then most recent remand period, which had included suicide attempts.  He had been prescribed anti-depressant medication whilst in detention, and had received psychiatric counselling and treatment, whilst also participating in substance misuse intervention.  The report referred to the support he would have from his family upon release from detention, under which he would live with them in the Brisbane area removing him from his peers in the Rockhampton area.  He had expressed interest in finding employment in Brisbane upon his release.
11. [11]
    In a reserved decision, the judge detailed the applicant’s personal circumstances, his criminal history and the facts of the subject offence.  His Honour recognised the applicant’s plea of guilty, his cooperation with the Court, his admissions to police, his cooperation with the pre-sentence report writer, his expressions of remorse and his intellectual problems, before saying that the applicant would be detained for 20 months with release after 10 months.
12. [12]
    At that point of his reasons, the judge turned to the present question, on which he said:

“I’ve given considerable consideration to whether or not to record a conviction. Your barrister, Mr Moon said it was open to record a conviction. The starting point is that I should not order that a conviction be recorded. I have read what the Court of Appeal said in R v Cunningham [2014] QCA 88, in R v MKM [2018] QCA 233, particularly at paragraph 22, where the honourable, the President said:

The recording of a conviction in the case of a child is a serious thing.

And in R v FAY, [2020] QCA 154 where the Honourable Justice Davis discussed what the Honourable the President had said in R v SCU [2017] QCA 198. I have read R v SCU again, as well as R v Patrick ex parte Attorney General Queensland [2020] QCA 51. The cases confirm I have to consider the specific things in section 184 [of the Youth Justice Act 1992 (Qld)], and I must have regard to “all the circumstances” of your case.

You armed yourself with a knife. You had scoped these young women out as targets for a robbery. They were girls sitting in a stairwell, defenceless and with nowhere to go. You deliberately used the knife. You did that twice. There was a gap of time in between the stabs to the young lady’s legs. It all took a while. You just ran off after the second stab; you did not help her. You acted out impulsively. You have been behaving like that for years and not thinking about what might happen when you do things to other people. They are just some of the circumstances of your case.

In all of the circumstances, I have reached the determination that it would be appropriate to order that a conviction be recorded in the exercise of discretion in section 183, subsection 3 of the Act.”

13. [13]
    Section 183 of the Youth Justice Act 1992 (Qld) provides that other than under that section, a conviction is not to be recorded against a child who is found guilty of an offence.
14. [14]
    Section 184 of the Act provides as follows:

“Considerations whether or not to record conviction

1. (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.

2. (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.”

15. [15]
    The applicant’s argument is that the judge did not consider the matters in s 184(1)(c).  As appears in the passage set out at [12], there was no consideration of those matters in the judge’s sentencing reasons.  It is suggested for the respondent, however, that those things were considered, and that this appears from a passage in the transcript of the hearing.
16. [16]
    At the hearing, which was a week earlier than the decision, in response to a submission made by the applicant’s then counsel that a conviction might affect the applicant’s prospects of employment, the judge said:

“Yes, well, just on that point though, when there’s no specificity at all about what work he wants to do. And with all due respect, and not being disrespectful for one moment, but having regard to his level of function, one would expect that the employment that he would be able to avail himself of would be employment that would not ordinarily be compromised by the recording of a conviction, would it? I mean, in the community, there are a vast number of people who have convictions who work in various pursuits, because they’re not disqualified from doing that work because of their past history.”

17. [17]
    In the normal course, especially where the decision has been reserved, it is to be expected that a sentencing judge will reveal all of their reasoning for the sentence then being imposed, rather than leaving it to the parties to identify some of it in something said by the judge in the course of the argument.^[1]  In this case, let it be accepted that the judge’s thinking, as to the effect of recording a conviction upon the applicant’s rehabilitation and employment prospects, was unchanged when he made the order.  If so, however, the judge erred.
18. [18]
    Section 184(1)(c) requires a court to have regard to the impact the recording of a conviction will have on the child’s chances of finding or retaining employment.  What the judge appeared to say, in the passage from the hearing which I have set out, was that given the applicant’s disadvantages in any labour market, resulting from his intellectual disability and his poor education, the applicant would not be further disadvantaged if an actual or potential employer knew of this conviction.  With respect, that cannot be accepted.  There is no basis to suppose that a potential employer of the applicant would be unaffected by the knowledge that the applicant had committed a serious offence such as this one.  And the disadvantage to a child offender, from the recording of the conviction, would be expected to be greater for a person with relatively few employment opportunities than for someone with an education and without an intellectual disability.  It follows that if the judge did give consideration to the matters in s 184(1)(c), he reached a factual conclusion on those matters which was not open, and he thereby erred in the exercise of his discretion in ordering that the conviction be recorded.
19. [19]
    Alternatively, if the judge did not consider those matters, in his ultimate reasoning, then clearly there was an error.
20. [20]
    It should also be noted that his Honour was incorrect, in his sentencing reasons, to record a concession by the applicant’s counsel that it was open to the judge to record a conviction.  Instead, it was the prosecutor who had made a submission to that effect whilst saying, at the same time, that recent judgments of this Court had said that convictions should be recorded “in very limited circumstances”.
21. [21]
    It is therefore necessary for this Court to reach its own conclusion on whether a conviction should be recorded.  As has been said many times in this Court, the exercise of the discretion as to whether a conviction should be recorded under the Youth Justice Act involves a different weighing of considerations from those applying to adult offenders under the Penalties and Sentences Act 1992 (Qld).  Unlike the decision for adult offenders, s 183 proceeds from the primary position that a conviction is not to be recorded.^[2]
22. [22]
    The purpose of recording a conviction is not stated in the Youth Justice Act and nor is it stated in the corresponding provisions of the Penalties and Sentences Act, as Dowsett J, sitting in this Court, observed in R v Briese; Ex parte Attorney-General (Qld).^[3]  Dowsett J there identified the competing interests of the offender and the community, in whether the community should know of the offence.  He observed that a decision not to record a conviction will seriously limit public access to information in which the public might have a legitimate interest in knowing that a person has been convicted of a certain offence.^[4]  I agree with his Honour’s observation that “[g]enerally speaking, the more serious the offence, the greater the legitimate public interest” in knowing of the offence.^[5]
23. [23]
    In R v JO,^[6] Holmes JA said that some offences committed by children are inherently so serious that a conviction must be recorded.  She gave by way of example this Court’s decision in R v KU & Ors; Ex parte Attorney-General (Qld),^[7] where the Court described the recording of a conviction for an offence of the rape of a 10 year old girl by several boys aged between 13 and 15 as “the irreducible minimum level of denunciation required by an offence of this gravity.”^[8]  But as Holmes JA added in R v JO, “it does not follow that every offence which can, in general terms, be described as serious requires the recording of a conviction.”^[9]
24. [24]
    Whilst the power to order a conviction for a child offender requires a consideration of the same competing interests to which Dowsett J referred, in the case of a child offender, greater weight is given to the interests of the offender.  As I said in R v SCU,^[10] by several provisions of the Youth Justice Act, the consideration of rehabilitation will be given a priority which it will not always have for an adult offender.  As I also said in that case,^[11] as applied by Lyons SJA in R v DBU,^[12] there is a clear connection between an offender’s chances of finding or retaining employment and his chances of rehabilitation.
25. [25]
    With this applicant’s disadvantages in finding and retaining employment, the recording of a conviction is very likely to further disadvantage him and thereby to impede his rehabilitation.
26. [26]
    By s 184(1)(b), the applicant’s age and his previous convictions must be considered.  His criminal history was extensive and included offences which were serious.  However, in no case had it been thought by the sentencing court to be appropriate to record a conviction.
27. [27]
    The question then is whether this offence should be considered to be so serious as to fall within the category described by Holmes JA in R v JO.  Serious though this offence was, it was not of that kind, so as to outweigh the priority which ordinarily is to be given to of the rehabilitation of a child offender.
28. [28]
    For these reasons I would order as follows:

1. Grant leave to appeal.
2. Allow the appeal.
3. Set aside the order made in the Childrens Court on 30 October 2020 that a conviction be recorded for the offence charged by indictment 49/20.
4. Order that no conviction be recorded for that offence.

29. [29]
    HENRY J:  I agree with McMurdo JA that leave to appeal sentence should be granted, but I would dismiss the appeal.  In summary, despite some inadequacy below in reasoning to the outcome that a conviction should be recorded, that outcome is nonetheless the correct outcome in the circumstances of this case.

Background

30. [30]
    The applicant was 16 years and seven months old when he committed the offence of attempted robbery with wounding to which he pleaded guilty.  The facts of the offence and the applicant’s criminal history are very concerning.
31. [31]
    The facts were described below as follows:

“The complainants in this matter are SS and AW, who were 16 and 21 respectively.

The complainants and defendant were unknown to one another at the time of the robbery.

At 9.30 pm on 6 March 2020, the complainants were sitting in a stairwell at the Stocklands Shopping Centre in Rockhampton, waiting to be picked up by AW’s father.

The defendant and another boy, BG, approached the complainants.  The defendant told BG that he wanted to rob the complainants.  The defendant was wearing a black hoodie.  The defendant asked the complainants for “smokes”, but they said, “No.”  The defendant and BG then walked away in the direction they came.

Five minutes later, they returned.  The defendant was wearing a black and white bandana over his face.  He walked up some of the steps to stand over the complainants.  BG stood at the bottom of the stairs.

The defendant asked, “You got any money?  What have you got?”  The complainants replied, “We got nothing.”  The defendant replied, “You don’t think I will stab you?  What about the phones?”  At the time SS had had her Samsung Galaxy A20 phone in her hand.  SS told him, “No, you’re not having them.”

The defendant pulled a kitchen knife out of the pocket of his jumper, held it down in his right hand and said, “Can I have a look at the phone?”  He then snatched the phone out of her hand.  AW managed to grab the phone back off the defendant, push him away slightly and pass it back to SS.  She said to him, “Fuck off!”

The defendant stabbed AW in her right thigh with the knife, and yelled at her, “Give me your phone or I’ll stab you again.”  AW clutched her leg, and said, “You’ve got to stop or I’ll call the cops on you.”  The defendant stabbed her again, in her left thigh.

AW yelled at him, “Fuck off, I’m gonna call the cops.”  The defendant and BG ran away.  SS called 000.  While they waited for paramedics, the complainants attempted to apply pressure to the wounds to staunch the bleeding. …

The entire incident was captured on CCTV.”^[13] (emphasis added)

32. [32]
    This was serious criminal behaviour, executed not in some spontaneous response to conflict between acquainted youths, but as a planned and armed attempt to rob innocent members of the public.  It was a particularly wicked aspect of the offending that the applicant decided to use the knife with which he had armed himself to wound one of his victims, to try and compel her compliance, and then wounded her a second time after she did not comply.  The presentence report noted the deliberate nature of his resort to this high risk violence in these terms:

“[The applicant] explained that he had given clear directions to the victims to hand over their belongings but when this instruction was ignored he determined there was no other option but to follow through on his threat of stabbing the victim.”^[14]

33. [33]
    The presentence report describes the applicant as having a full scale IQ of 70 which meets the DSM-5 criteria for intellectual disability.  His behaviour assessment results indicate he is within the very elevated range for defiant and aggressive behaviours.  He displayed oppositional behaviour from around ages three to four years, increasing in severity as he got older.  He developed substance misuse issues from the age of 12.  He has refused previous engagement with substance misuse support, believing that he was able to manage his substance misuse alone.  Yet, on his own account, his primary reason for offending has been to obtain money to purchase marijuana and or methamphetamines.  He informed the presentence report writer that he was high on ice at the time of the robbery.  The report writer opined it appeared that the combination of methylamphetamine use and emotional dysregulation contributed to the physical violence exhibited by the applicant to meet his immediate needs.  The writer observed the applicant is unable to identify underlying rules in order to reason and solve problems.
34. [34]
    Prior to the subject conviction the applicant had been found guilty and sentenced for 99 criminal offences (not counting breaches of orders).^[15]  His offences have been sentenced in groups of appearances from time to time, resulting in the following sentencing outcomes, none of which have been the subject of convictions being recorded:

• 24 October 2016 – 12 months probation;
• 13 April 2018 – 12 months detention with a supervised release order (one year in actual custody served) and two years probation;
• 27 April 2018 – 12 months detention;
• 31 May 2018 – the supervised release order was revoked, ordered to serve outstanding period of unexpired detention order;
• 27 July 2018 – the two year probation order was discharged, ordered to serve one year, seven days detention to be released after serving seven days;
• 26 February 2019 – 17 months detention to serve 60 per cent, varied on appeal to six months probation;^[16]
• 4 November 2019 – 15 months detention to be served by a three month conditional release order, the six month probation order was discharged, ordered to serve 12 months probation;
• 25 February 2020 – six-month probation, three-month good behaviour bond.

35. [35]
    Over 50 of the applicant’s previous offences involved the entry or attempted entry of premises and dwellings to commit indictable offences. The applicant had also previously committed two offences of assault occasioning bodily harm whilst armed in company, four common assaults, one stealing from the person, one armed robbery in company and one armed robbery in company with personal violence.
36. [36]
    The first of the applicant’s previous robberies occurred on 26 January 2017 and involved the applicant and a number of other juvenile offenders robbing a FoodWorks store, with two of the offenders threatening the two shop attendants with knives while the applicant played what was described by the then sentencing judge as a more passive role, standing by in the store.^[17]  The second of the applicant’s previous robberies, committed on 15 May 2018, involved he and another youth, with whom he had offended earlier on the night in question, robbing a taxi driver at the end of their journey with him.  Both boys assaulted the taxi driver and the applicant threatened to hit him in the head with a socket wrench while the other boy threatened him with a knife.^[18]  The offending the subject of the present application therefore represents a troubling escalation in the level of violence to which the applicant was prepared to resort in offending.
37. [37]
    The applicant was sentenced as a child pursuant to the Youth Justice Act 1992 (Qld) (the Act).  It was not in issue that he should be sentenced to detention.  He was sentenced to 20 months detention with release after serving 50 per cent.  This enlivened consideration of the court’s discretion whether to record a conviction.  A conviction was recorded.

Grounds

38. [38]
    The applicant seeks leave to appeal on grounds that:

“1. The recording of a conviction renders the sentence manifestly excessive in all the circumstances.

2. In recording a conviction, the learned sentencing Judge failed to have specific regard to s 184(1)(c) Youth Justice Act 1992.”^[19]

The discretion to record a conviction

39. [39]
    Consideration of these grounds is informed by consideration of the nature of the discretion whether to record a conviction against a child.  Section 183 of the Act provides:

“183 Recording of conviction

1. (1)
   Other than under this section, a conviction is not to be recorded against a child who is found guilty of an offence.

2. (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.”

40. [40]
    The effect of s 183(2) is to preclude the recording of a conviction when reprimanding or imposing a good behaviour order, whereas s 183(3) of the Act provides a Court “may order that a conviction be recorded or decide that a conviction not be recorded” when imposing certain other sentences, including fines, probation, restorative justice orders, community service orders, intensive supervision orders and detention.  The legislature evidently intended that while convictions ought never be recorded if the circumstances only warrant a reprimand or good behaviour order, courts should have the discretion whether or not to record a conviction where the circumstances warrant a more onerous sentence.
41. [41]
    There exists a clear line of authority in this court for the approach that, in deciding whether to record a conviction against a child, the starting premise is that no conviction should be recorded.^[20]
42. [42]
    Authorities cited in support of that approach refer to a lineage of cases extending back to R v B.^[21]  It is doubtful R v B justifies such an approach.  In R v B, s 183’s predecessor, s 124 of the Juvenile Justice Act 1992 (Qld), was relevant.  Section 124 was to the same effect (setting aside some presently irrelevant differences) as s 183.  McPherson JA and de Jersey J referred to s 124(1), which is identical to s 183(1), in weighing up circumstances relevant to whether a conviction should be recorded in the fresh exercise of the court’s sentencing discretion.  Amidst referring to the individual circumstances of the case McPherson JA and de Jersey J observed:

“One should also note s 124(1) of the Juvenile Justice Act, which proceeds from the primary position that a conviction is not to be recorded against a child offender.”^[22]

43. [43]
    That observation was only made of s 124(1), which stipulated that a conviction is not to be recorded “other than under” the section.  It was not an observation about s 124(3).  As s 183(3) now does, s 124(3) identified sentencing orders in respect of which a court was conferred the discretion to “order that a conviction be recorded or decide that a conviction not be recorded” (emphasis added).  The use of the term “or” tells against either s 124(3) then, or s 183(3) now, indicating a default position one way or the other once the point is reached that a court is imposing any of the categories of sentence orders listed in s 183(3).  To the extent s 183 provides a statutory starting premise that no conviction should be recorded, that premise is displaced once the court decides it will impose one of the array of sentencing orders referred to in s 183(3).
44. [44]
    The justification found in the authorities for adopting a starting premise that no conviction be recorded, even when imposing one of the array of sentencing orders referred to in s 183(3), may more accurately be traced back to observations of McMurdo P and Thomas JA in R v L,^[23] about the generally higher statutory priority placed upon the rehabilitation of child offenders compared to adult offenders.  The rationale for beginning consideration of whether to record a conviction on the premise a conviction should not be recorded appears to be that:

    1. (a)
       because the recording of a conviction is part of the sentence;^[24]
    2. (b)
       and the Act places a high priority upon the rehabilitation of the child offender;
    3. (c)
       and the recording of a conviction may adversely affect the child’s rehabilitation, particularly because of its potentially adverse impact upon employment prospects;^[25]
    4. (d)
       the court should, as Thomas JA put it in R v L, be “slow to record a conviction unless good reason is seen for doing so”.^[26]
45. [45]
    Adopting the starting premise that no conviction should be recorded is thus a device to ensure that the sentencing judge does not record a conviction unless, as Lyons SJA put it in R v DBU,^[27] the judge is “positively satisfied … that the proper exercise of the discretion is to record a conviction”.  The starting premise should not be understood as precluding the recording of a conviction, for such an approach would be contrary to the clear existence of the discretionary power to do so conferred by s 183(3).  Nor should the rationale justifying the starting premise be understood as meaning that rehabilitation, as important as it is in sentencing juveniles, will always trump other relevant considerations.  Plainly much will depend on the individual circumstances of the case and the offender.
46. [46]
    Considerations informing whether there is good reason for exercising the discretion to record a conviction are referred to in s 184(1) of the Act, which provides:

“184 Considerations whether or not to record conviction

1. (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.”

47. [47]
    It is important to appreciate the potential for comparable variability between the considerations listed in s 184(1)(a) and (b).  Thus, while the nature of the offence may be very serious, the significance of that circumstance may be less deserving of weight in a case where a child is barely past the statutorily designated age of criminal responsibility and has few previous convictions, compared to a case involving an older child with many previous convictions.^[28]
48. [48]
    It is as well to note, while it was not argued to the contrary, that the reference to “previous convictions” in s 184(1)(b) does not preclude, in considering all the circumstances of the case for a child offender, consideration of the offender’s previous convictions for which convictions have not been recorded.  The usual principle is that a conviction occurs when a court makes a finding of guilt.^[29]  However s 184(2) provides:

“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.”

It is this provision that has the consequence, when adult offenders are sentenced, that the court is not informed of their convictions for offending as children except those for which convictions were recorded.  However, the Act creates an exception to s 184(2) when sentencing for offending as a child because s 150(1)(e) requires that in sentencing a child for an offence “a court must have regard to … the child’s previous offending history”.

49. [49]
    Consideration of the impact of recording a conviction upon a child’s chances of finding or retaining employment will often be unaided by information of a kind associated with an adult offender, such as an existing employment history or the already commenced pursuit of technical or professional qualification in a field in which criminal history checks of prospective employees are likely.  That does not make the consideration less material.  To the contrary, the proper approach is to assume the recording of a conviction will ordinarily be likely to impair a child offender’s employment prospects.^[30]  Cases in which there is information sufficient to displace that assumption will inevitably be rare.  This is not such a case.  It is true the applicant is unlikely to pursue a professional or technical field where a criminal history may preclude or materially reduce the prospects of employment.  But it is open to any employer, even of unskilled workers, to enquire about an applicant’s criminal history and take it into account as an adverse consideration.  Given the disadvantage the applicant’s poor mental capacity will place him under in the job market it is appropriate to assume the added disadvantage of a recorded conviction will likely impair his employment prospects.
50. [50]
    The considerations in s 184 are listed inclusively.  Given that the recording of a conviction is part of the sentence, other considerations to which a sentencing court must have regard pursuant to s 150, “Sentencing Principles”, may therefore be relevant.  Many of the considerations in s 150 underscore the importance of rehabilitation.  However, they also include the requirement of s 150(1)(b) that in sentencing a child regard must be had to the Act’s Charter of Youth Justice Principles, the first of which is:

“1The community should be protected from offences.”^[31]

In a similar vein, s 150(1)(a) requires that regard be had to the general principles applying to the sentencing of all persons, which include not only rehabilitation but also deterrence, denunciation and protection of the community.^[32]  While, as McMurdo JA explained in R v SCU,^[33] the fact of the child’s age will generally lessen the weight to be attached to the latter purposes, relative to the purpose of rehabilitation, matters of degree are obviously involved.  There may sometimes be cases in which an older child’s criminal history and the nature of the offence are so concerning that the sentencing purpose of community protection transcends the importance of the sentencing purpose of rehabilitation.

51. [51]
    Whether there is good reason to record a conviction will logically require not only consideration of the circumstances of the case but the significance those circumstances have by reference to the purpose served in recording a conviction.  One purpose, identified in R v Briese; Ex Parte Attorney-General (Qld),^[34] is to serve a legitimate public interest in knowing that a person has been convicted of the offence.  This includes the protective interest of an employer knowing of the person’s offence; knowledge which to some employers may be very relevant in deciding whether to employ the person and how to safely manage the person in the workplace.
52. [52]
    Depending on the circumstances of the case the legitimate public interest in knowing of a childhood conviction may conceivably also include the future interest of a sentencing court in knowing of the previous offence when sentencing the offender for a subsequent offence as an adult.  In R v JO^[35] that consideration was not regarded as supporting the recording of a conviction in circumstances where the offender was only 13.  R v JO has been cited as disapproving of the approach of giving weight to such a consideration,^[36] but that disapproval turned on the long period between the sentence and when JO would become an adult.  In R v JO Holmes JA, with whom Mackenzie AJA and Douglas J agreed, reasoned the offender’s probation would run until he would be 17 and:

“Were he to breach it by re-offending of a serious kind in that period, it would be open to the court re-sentencing on this offence to record a conviction, which would then be made known to any court which might sentence him as an adult.”^[37]

53. [53]
    That reasoning confirms the prospect of re-offending, and the desirability in that event of an adult sentencing court knowing of a recent conviction for offending as a child, may be relevant in the context of sentencing older children, such as the applicant.  Even then it would logically be unlikely to be relevant unless the prospect of re-offending is high, as the applicant’s recidivism suggests it is here.  Should the applicant repeat a serious offence involving violence soon after reaching adulthood, the sentencing court will be more able to impose a sentence which is appropriate, particularly one which gives adequate weight to community protection and has accurate regard to the applicant’s character, if it is aware the applicant was recently convicted of a serious offence involving violence.
54. [54]
    The weight to be given to the legitimate public interest in knowing that a person has been convicted of an offence will of course vary depending on the circumstances of each case, including the weight to be given to the sentencing purpose of community protection – that being a purpose which may be served by the recording of a conviction.  Two other sentencing purposes which may be served by the recording of a conviction are denunciation and personal deterrence.  The imposition of a sentence of the kind contemplated in s 183(3) necessarily involves some element of denunciation but, if accompanied by the recording of a conviction, the denunciation will be more emphatic.  The recording of a conviction will also result in a sentence likely to carry a heightened deterrent effect upon an offender who has not previously had a conviction recorded.  That is because once a conviction has been recorded it will be obvious that further offending will raise the likelihood of there being further such recording of convictions with consequently greater potential detriment to the offender’s future, thus providing an added motivation not to re-offend.

Ground 1: Manifestly excessive

55. [55]
    The first ground of appeal, that the sentence imposed is manifestly excessive because of the recording of a conviction, is in effect a complaint that the decision to record a conviction is so unreasonable as to bespeak error.^[38]
56. [56]
    Consideration of that complaint is of course informed by the aforementioned starting premise and the significant weight which should be given to the importance of the sentencing purpose of rehabilitation.
57. [57]
    Of relevance to that purpose is the consideration, discussed above, that the recording of a conviction will be likely to impair the applicant’s chances of finding or retaining employment.  This may in turn adversely impact the applicant’s rehabilitation generally, in that employment would likely enhance his prospects of rehabilitation.
58. [58]
    This is not a case in which it has been contended any consideration other than the recording of a conviction will adversely impact the applicant’s chances of rehabilitation.  Also, in considering the potential for disproportionate adverse consequences, it is to be borne in mind the recording of a conviction for this single offence could only result in that conviction, not the applicant’s many other convictions, becoming known to prospective employers or adult sentencing courts.  Nonetheless, those are neutral matters and do not reduce the undoubted importance of the above identified dual potential for likely adverse impact upon employment prospects and rehabilitation generally.  That dual potential trends materially against the recording of a conviction.
59. [59]
    However, in the circumstances of this case there are other relevant considerations which, in combination, trend powerfully in favour of recording a conviction, namely:

    1. (i)
       The nature of the offence was very serious.  The use of the knife to twice wound the victim to try and compel her compliance was particularly wicked.  It is offending of a kind which raises the importance on this sentence of denunciation, deterrence and community protection.
    2. (ii)
       The applicant was over 16 and a-half.  Whilst still a child, he was no longer a young child who had only just crossed into the statutorily designated age of criminal responsibility.
    3. (iii)
       While no convictions had previously been recorded against the applicant, he had 99 previous convictions, including nine for violence, two of which were for armed robbery.  Such a pattern of recidivism indicates the prospect of re-offending is high.
    4. (iv)
       Despite multiple sentences having been imposed upon the applicant in the past without convictions being recorded, the deterrence and opportunities for rehabilitation inherent in those sentences has not worked, in that he has re-offended in a serious and concerning way.
    5. (v)
       The added impact of recording a conviction would heighten the sentence’s level of denunciation and deterrence, heightening the prospect the sentence will cut through and prompt a more determined commitment to rehabilitation.  In that sense the recording of a conviction may enhance the applicant’s prospects of rehabilitation generally.
    6. (vi)
       The applicant’s poor mental capacity coincides with a tendency to defiant and aggressive behaviours, reflected in the present violent offence.  It is a tendency which heightens the importance on sentence of community protection.
    7. (vii)
       The infliction of violence in this instance – twice wounding a victim who would not submit to him – involved an escalation in the level of violence used by the applicant in his past robberies.  Considered in light of his previous crimes this heightens the importance on sentence of community protection.
    8. (viii)
       The recording of a conviction will enhance community protection in that it will allow prospective future adult sentencing courts and prospective employers to know of the present conviction.  Such knowledge will better equip adult sentencing courts, should the applicant fall for sentence for a violent crime committed as an adult, to arrive at a sentence which gives proper weight to community protection.  Such knowledge will better equip prospective employers, in filling and managing positions in which the employee would have to interact with other staff and or members of the public, to consider the employer’s capacity to safely manage the applicant in the workplace when considering the applicant’s suitability for employment.
60. [60]
    The collective force of those considerations so outweigh the considerations favouring the non-recording of a conviction that it was comfortably within the sound exercise of the discretion conferred by s 183(3) for the learned sentencing judge to have been positively satisfied that the proper exercise of the discretion was to record a conviction.  Indeed, were this court to consider the exercise of the discretion afresh, the collective force of the considerations in favour of the recording a conviction so substantially outweigh the force of the considerations against it as to compel positive satisfaction that a conviction should be recorded.
61. [61]
    The decision to record a conviction does not give rise to a sentencing outcome which bespeaks error.  Ground 1 therefore has no prospect of succeeding.

Ground 2: Failure to have specific regard to s 184(1)(c) Youth Justice Act

62. [62]
    Turning to the second ground, that the learned sentencing judge failed to have specific regard to s 184(1)(c), the learned sentencing judge’s sentencing remarks are canvassed in the reasons of McMurdo JA.
63. [63]
    The reasons of McMurdo JA also allude to a comment the learned sentencing judge made in the course of submissions.  I would not have regard to that comment in consideration of ground 2 for two reasons.  Firstly, as Margaret Wilson AJA explained in R v Hyatt,^[39] exchanges between the bench and counsel during submissions are designed to draw out and test submissions so that the remarks of a judge in such exchanges may be at odds with the views eventually arrived at after hearing and giving due consideration to all submissions by both sides.  The caution her Honour there counselled against in relying upon such exchanges on appeal is logically even more apt where, as here, the decision was reserved rather than given ex tempore.  Secondly, the problem here is an absence of articulated consideration of a point of importance.  Accepting that there may be cases in which regard to exchanges between bench and counsel could assist in explaining what is meant by scant reasons later given on a particular point, no such assistance can be gained here because the problem is not a paucity but an absence of articulated consideration of a material issue.
64. [64]
    The learned sentencing judge’s remarks did allude to the need for him to consider the “specific things in section 184” and “all the circumstances” of the applicant’s case.  However, the sentencing remarks made no reference to the circumstance identified in s 184(1)(c), namely the impact which the recording of a conviction may have upon the applicant’s chances of rehabilitation or employment and consequently his chances of rehabilitation generally.
65. [65]
    In the normal course, the circumstances of a case may readily allow an appellate court to infer that a sentencing judge did have regard to a relevant consideration, notwithstanding the absence of express reference to it in the sentencing judge’s reasons.  Using this case as an example, had the learned sentencing judge decided not to record a conviction without articulated reference to the circumstances in s 184(1)(c), the inference that his Honour had regard to those circumstances would be compelling.  That would be because they are the only circumstances which could arguably explain a decision to not record a conviction in the face of such compelling circumstances in favour of recording a conviction.  The example highlights that if a conviction was to be recorded, the circumstances called for at least some expressed regard to the core argument against doing so, namely the potentially adverse impact upon the applicant’s chances of finding or retaining employment and consequently upon his chances of rehabilitation generally.
66. [66]
    In such circumstances it cannot be inferred the learned sentencing judge did have regard, as s 184 required, to the considerations in s 184(1)(c).  The failure to have regard to that consideration was an error and at least justifies a grant of leave.

Conclusion

67. [67]
    Having concluded leave to appeal should be granted, the question of whether the appeal should in turn be granted turns upon whether this Court concludes that in the event of it exercising the sentencing discretion afresh it would order that no conviction be recorded.
68. [68]
    As already explained, the collective force of the considerations favouring the recording of a conviction so substantially outweigh the considerations favouring the non-recording of a conviction as to compel the conclusion that a conviction should be recorded.  Were this court sentencing afresh it should not order any differently than the learned sentencing judge did.  There is thus no purpose to be served by allowing the appeal.
69. [69]
    I would order:

1. Application for leave to appeal granted.
2. Appeal dismissed.