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R v DBU[2021] QCA 51

SUPREME COURT OF QUEENSLAND

CITATION:

R v DBU [2021] QCA 51

PARTIES:

R

v

DBU

(applicant)

FILE NO/S:

CA No 124 of 2020

DC No 40 of 2020

DC No 11 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Childrens Court at Townsville – Date of Sentence: 1 June 2020 (Coker DCJ)

DELIVERED ON:

23 March 2021

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2021

JUDGES:

Morrison and McMurdo JJA and Lyons SJA

ORDERS:

  1. The application for leave to appeal against sentence be granted.
  2. The appeal be allowed.
  3. The sentences below be set aside, to the extent that convictions were recorded.
  4. No convictions be recorded.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – PARTICULAR CASES – where the applicant was sentenced to 18 months’ detention for the offence of armed robbery, and six months’ detention for assault occasioning bodily harm whilst armed, to be served concurrently – where the applicant was to serve 50 per cent of those periods of detention and convictions were recorded – where the applicant seeks leave to appeal with respect to the recording of convictions for those offences – whether the recording of a conviction together with the imposition of a period of detention rendered the sentences manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 12, s 152

Youth Justice Act 1992 (Qld), s 150(2), s 183, s 184

R v Briese; Ex parte Attorney-General (Qld) [1998] 1 Qd R 487; [1997] QCA 10, applied

R v Brown; Ex parte Attorney-General (Qld) [1994] 2 Qd R 182; [1993] QCA 271, cited

R v KU & Ors; Ex parte Attorney-General (Qld) (No 2) [2011] 1 Qd R 439; [2008] QCA 154, cited

R v SCU [2017] QCA 198, applied

COUNSEL:

S R Lewis with M P Dixon for the applicant (pro bono)

D Nardone for the respondent

SOLICITORS:

No appearance for the applicant

Director of Public Prosecutions (Queensland) for the respondent
  1. [1]
    MORRISON JA:  I have read the reasons of Lyons SJA and agree with those reasons and the orders her Honour proposes.
  2. [2]
    McMURDO JA:  I have read the reasons of Lyons SJA and I entirely agree with them.
  3. [3]
    The sentencing of a child for an offence, like the sentencing of an adult offender, will commonly involve a tension between the several purposes for which sentences may be imposed, namely punishment, rehabilitation, personal and general deterrence, denunciation and the protection of the community.  As was said in R v SCU,[1] the balancing of those considerations will be different in cases of child offenders, because by many provisions of the Youth Justice Act 1992 (Qld) (“the Act”), rehabilitation will be given a priority which it will not always have for an adult offender.
  4. [4]
    Section 184(1) of the Act prescribes the relevant considerations for the exercise of a court’s discretion to record or not record a conviction for a child offender.  The text of s 184(1) is identical to that of s 12(2) of the Penalties and Sentences Act 1992 (Qld), governing this power for adult offenders.  However, the statutory contexts are markedly different.  Under the Act, the starting premise is that no conviction should be recorded.[2]  For an adult offender, that is not the starting premise, and indeed, a court may not make an order of imprisonment unless a conviction is recorded.[3]  In the exercise of this power for a child offender, again, the consideration of rehabilitation will have a greater weight than it would have in the case of the same offence committed by an adult.
  5. [5]
    In the present case, the sentencing judge correctly recognised the potential for the applicant’s rehabilitation to be prejudiced by the recording of convictions.  Nevertheless, his Honour reasoned, the “escalating” nature of the offending caused him to conclude that convictions should be recorded.  These offences were undoubtedly serious, but it was that escalating nature, when they were considered with the applicant’s previous offending, which appears to have been the critical consideration in his Honour’s opinion.  Notably, the judge did not describe these offences themselves as being in the category that they were “inherently so serious that a conviction must be recorded”, as Holmes JA described[4] R v KU & Ors; Ex parte Attorney-General (Qld) (No 2),[5] a case of the rape of a young girl by 10 teenage boys, all with previous convictions.
  6. [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).
  7. [7]
    Consequently, it is for this Court to exercise the discretion under s 183.  For the reasons given by Lyons SJA, the convictions should not be recorded.
  1. [8]
    LYONS SJA:

Background

  1. [9]
    The applicant was sentenced in the Townsville Children’s Court on 1 June 2020 to 13 offences contained on two indictments.  He had previously pleaded guilty to those offences on 10 May and 13 May 2020.  Indictment 11/2020 was a seven-count indictment, and he was sentenced with a co-offender Mr B who had also pleaded guilty to the six charges which concerned him.  All of those offences had occurred within a five-day period in April 2019.  The applicant was also sentenced in relation to a six-count ex officio Indictment 40/2020 which related to further offending which had occurred in May, September and November 2019, and March 2020.
  2. [10]
    The offences and the sentences imposed were conveniently summarised by the Crown Prosecutor in the following table:

Ind/Count

Date of offences

Nature of offences

Sentence

11/20

1

17 April 2019

Attempted robbery in company

18 months’ probation. No conviction recorded. Participate in a restorative justice process

2

17 April 2019

Robbery in company, with personal violence

‘’

3

17 April 2019

Attempted robbery in company

‘’

4

18 April 2019

Stealing

‘’

5

20 April 2019

Stealing

‘’

6

21 April 2019

Attempted robbery in company

‘’

7

21 April 2019

Robbery in company, with personal violence

‘’

40/20

1

On or about 2 May 2019

Receiving tainted property

18 months’ probation. No conviction recorded. Participate in a restorative justice process

2

17 September 2019

Stealing

‘’

3

9 October 2019

Armed robbery with personal violence

18 months detention with release after 50%. Conviction recorded. Participate in a restorative justice process

4

11 November 2019

Burglary and stealing

18 months’ probation. No conviction recorded. Participate in a restorative justice process

5

8 March 2020

Stealing

‘’

6

22 March 2020

Assault occasioning bodily harm while armed

6 months detention with release after 50%. Conviction recorded. Participate in a restorative justice process.

  1. [11]
    As the summary indicates, the applicant was sentenced for the armed robbery on 9 October 2019 (Count 3 on Indictment 40/2020) to 18 months’ detention, to be released after serving 50 per cent of the period of detention with a conviction recorded.
  2. [12]
    In relation to the offence of assault occasioning bodily harm whilst armed on 22 March 2020 (Count 6 on 40/2020), the applicant was sentenced to six months’ detention to be released after serving 50 per cent of the period of detention.  The sentence was ordered to be served concurrently with the sentence for the robbery offence and a conviction was also recorded for this offence.
  3. [13]
    The other 11 offences were dealt with by the imposition of a restorative justice process and an 18-month probation order.  Convictions were not recorded in relation to the 11 other offences.
  4. [14]
    The applicant seeks leave to appeal only with respect to the recording of convictions in respect of Counts 3 and 6 on the ex officio Indictment, arguing that the recording of a conviction together with the imposition of a period of detention made both of those sentences manifestly excessive.
  5. [15]
    The applicant was 16 years of age at the time of the armed robbery offence, 17 years of age at the time of the assault occasioning bodily harm, and 17.5 years old at the time of sentence.  At the time of sentence, he had served 88 days in detention which comprised 69 days between 2 May and 10 July 2019, 18 days between 12 October and 30 October 2019 and one day between 20 November and 21 November 2019.  He was living in the community with his father at the time of sentence.

Criminal history

  1. [16]
    The applicant’s criminal history had commenced in mid-2017 and related mainly to offences involving the unlawful use of motor vehicles, stealing and burglary.  On 1 November 2017 at the Cairns Children’s Court, he was sentenced for four offences: three of stealing, and one of unlawful use of motor vehicles.  The stealing offences had occurred in February and June of 2017.  The unlawful use of a motor vehicle had occurred in September 2017.  He was placed on a good behaviour bond for a period of six months and no conviction was recorded.
  2. [17]
    He was then sentenced again in the Cairns Children’s Court on 22 November 2017 in relation to unlawful use of a motor vehicle in March of 2017, stealing in May of 2017, and burglary offences which had occurred in July and October of 2017.  He was placed on a restorative justice order and probation for nine months with no conviction recorded.
  3. [18]
    On 2 May 2018, he was sentenced in the Townsville Children’s Court relation to two counts of entering premises to commit an indictable offence, and one count of burglary in November of 2017.  Once again, no conviction was recorded and he was placed on a probation period of six months.  He was later sentenced on 9 May 2018 in that Court for a further charge of stealing.  No conviction was recorded.  He was placed on a community service order of 40 hours which was to be completed within 12 months.
  4. [19]
    On 13 December 2018, the applicant was again sentenced in the Townsville Children’s Court for a range of offences which included offences involving violence, namely a robbery and two serious assault offences.  He was sentenced by Lynham DCJ to a period of 12 months’ detention to be served by way of a conditional release order.  He was reprimanded but no conviction was recorded.  The robbery offence involved the applicant being in company with another child where they stopped a young boy who was riding a scooter and demanded money.  The complainant was threatened if he did not comply, and the applicant produced a small pocket knife.  The serious assault offences involved pushing a person in business premises and spitting in the face of a separate complainant on another occasion.
  5. [20]
    The period of the conditional release order ended on 12 March 2019.  The first of the offences which is the subject of this application and the sentence proceedings was committed on the 17 April 2019 and, whilst it was not in breach of the conditional release order, it was only one month after it was completed.

The offences on Indictment 20/2020

  1. [21]
    Indictment number 11/2020 involved offending over a period of five days, from 17 April 2019 to 21 April 2019.  The seven offences over that period involved seven different complainants aged from 15 to 21 years and related to stealing or attempts to steal property.  All of those offences were committed in company and five involved actual or threatened violence.  Two of the offences involved taking bolt cutters to a shopping centre bike rack to break the locks that secured bicycles.  The five offences that involved violence or threatened violence saw the applicant in company confronting random people on the street demanding money or property with direct threats of violence including a threat to break a jaw.  Actual violence was used on two occasions.  They involved two separate complainants being punched to the face.  One punch was delivered by the applicant, the other by a co-offender.
  2. [22]
    The six offences on the ex officio Indictment 40/2020 commenced on 2 May 2019 and then continued irregularly for the following 10 months.  It was argued that the six offences reflected a continuation of conduct similar to that reflected in the first indictment as well as the addition of the other varied offending including the burglary and an assault occasioning bodily harm whilst armed.

The circumstances of the offences on Count 3 and Count 6 on ex-officio Indictment 40/2020

  1. [23]
    Count 3 charged the applicant with armed robbery with personal violence on 9 October 2019 in circumstances where the complainant was walking to a friend’s house and the applicant who was riding his bike stopped next to him and asked, “What have you got”.  The complainant initially thought it was a joke but the applicant continued to ask and ultimately pulled out a knife and held it by his side.  The knife was 15cm in length and when the complainant said, “nuh” the applicant pointed the knife towards him and said, “If you don’t give it up I’ll stab you!” At that point the complainant took off his backpack and his wallet containing $150 in cash, a bank card and his student ID were stolen.  It was accepted that the motivation for the offending was to obtain money so as to provide for his own needs.
  2. [24]
    Count 6 charged the applicant with assault occasioning bodily harm.  The complainant was 14 years old and had been in a relationship with the applicant for about six months which had ended shortly before the offence.  On 22 March 2020 they had texted each other and arranged to meet at the complainant’s house so the applicant could retrieve some property.  At 1.00 pm the complainant was in her bedroom with a friend when the applicant jumped through the bedroom window and asked for his property.  He then walked over to the complainant and slapped her in the face.  When the complainant’s friend left the room the applicant locked the door so that he was alone with the complainant.  He then got an electrical cord and struck the complainant multiple times on the legs and arms, causing welts and bruising.  The complainant’s mother walked in and told the applicant to leave.  He jumped out the window and rode away on his bike.

This application

  1. [25]
    Counsel for the applicant accepts that the periods of detention imposed in relation to Counts 3 and 6 are appropriate but argues that the combination of those periods of detention with orders to record a conviction made the sentences imposed manifestly excessive.  The essence of the applicant’s argument is that the exercise of the discretion to record convictions on the two counts on the ex officio Indictment placed too much weight on the escalating nature of the offences and that this consideration overwhelmed the other factors.
  2. [26]
    There can be no doubt that the learned sentencing Judge approached the sentences to be imposed in a very careful and considered manner.  Whilst the sentencing remarks referred to both offenders, the learned sentencing Judge outlined the applicant’s criminal history in some detail and then focussed on the previous sentence imposed by Lynham DCJ.  The relevant aspects of those extensive remarks in relation to the applicant are as follows:

“Insofar as you are concerned, Master DBU, as I note, you are 17 years of age, born on the 22nd of November 2002. And as I indicated, you are burdened with a criminal history that included, on your 17th birthday, an attendance before the Court. What also is clear is that you have been given multiple opportunities to deal with issues and to move forward. And whilst your barrister has, most determinedly and quite properly, emphasised the fact that, as he described it, you find yourself in a situation where you have remorse and insight into the offending and have had a wake-up call. The fact that there has been no offending in the last two and a-half months does not give me great cause for confidence.

I say that, particularly, in light of the chances that have been given and, particularly, the comments that were made by Judge Lynham in the sentencing remarks of the 13th of December 2018. He spoke of the offences that you faced at that time and he spoke of you, as he said at page 4 of his remarks, clearly, having gone off the rails. And unless you do something about that and, ultimately, you have to decide whether you want to do something about it or not, then, invariably, you are going to continue re-offending and that means that, inevitably, you are going to end up in detention.

Obviously, therefore, I am mindful, as I must be, of the contents of the pre-sentence report that has been prepared in this matter and which is available to the Court. That report is under the hand of Ms Zoe Ragiri [sic], a youth case worker, and she talks of the various factors that have been taken into consideration in relation to the recommendations there and of the factors that she says are contributing to the offending that brings you before the Court. She speaks of family background and circumstances, negative peer associations, disengagement from education and a lack of structured activities and, unfortunately, as a recurring theme so often, the involvement of substance use and abuse.

Ms Ragiri [sic] indicated that you were aware of some of the consequences of your actions and that there were now some indications of remorse in relation to the offending. Under the heading Young Person’s Attitude to the Offences and the Victims of the Offences, she notes the following:

During the pre-sentence report interview process, it became apparent that DBU has reflected on the negative impacts that his offending has had on the victims, his own family and the community. DBU articulated to the author that his behaviour was unacceptable, and DBU appeared remorseful for his actions.

She goes on to note that in relation to the unlawful assault occasioning bodily harm whilst armed offence:

DBU engaged in limited discussions in relation to this offence, however indicated the victim was known to him. DBU states that he knows that this behaviour is unacceptable and stated that he is now ashamed of this; however, did not further elaborate when prompted.

I should note in that regard that it was also troubling, as I indicated previously, that count three of the ex officio indictment related to another person that was known to you, and yet that person, the complainant, was threatened with a knife and had money stolen from him. It goes on under the hand of the report writer to note:

It is the author’s assessment that DBU demonstrated regret and shame in nonverbal language such as appearing visibly upset and withdraw when questioned about the offences.

And Ms Ragiri [sic] then goes on under the heading Sentencing Options to note a discussion about the factors that might be appropriately considered in relation to you and your circumstances. She notes that you currently reside with your father and younger siblings at Cavendish Street in Pimlico. She notes that you are not currently subject to any supervised Youth Justice Orders, and you are not currently engaged in any form of education.

You might recall that I inquired as to whether there were any steps being taken in that regard with respect to education and the indication that was given was that you were not at school at the present time and have not been for some time, that you are not sure if you will go back. And, of course, there needs to be some consideration of a way forward. I note, however, that you have engaged in the transition to success program and that there has been, obviously, some benefits to you in that regard, though it must be noted that there have still been failings on your part, noting as I do as recently as only some two and a-half to three months ago further offending, including stealing and the assault occasioning bodily harm.

It was also noted that you have consented to a referral being made in May of 2020 to a drug and alcohol service, Lives Lived Well, to address your current substance abuse. That is a positive, but it also, in my view, is a negative, because, of course, the indication given 18 months ago was that you intended to address such matters and such issues, and yet you have failed to do so, the indication being given that as recently as now, you continue to use illicit substances, as I understand it, primarily, if not exclusively, marijuana, and that you, in your own words, have acknowledged that when you do so, you then are more likely to offend. It was, obviously incumbent upon you to be taking steps far more quickly than in the last month in relation to dealing with such matters, particularly when you were mindful of the fact that the use of marijuana was one of the factors that was leading to your offending.

There is, however, a need to consider your age. There is also, obviously, a need to consider opportunities for rehabilitation and courses, including, of course, the assistance that will be provided by way of the probation order that I have made. However, I am very much of the view that there needs to be, in respect of counts 3 and 6, real detention to be served as a result of the offending and that there is, in my assessment, no alternative than that the period of detention should be imposed.

Accordingly, in relation to the ex officio indictment in respect of counts 1, 2, 4 and 5, being the counts related to receiving tainted property, stealing, burglary and stealing and a further count of stealing on the 8th of March, I intend to order there also that there be probation for a period of 18 months. However, in relation to the two most serious offences, that contained in count 3, the armed robbery, I am of the view that the only appropriate penalty when one considers the totality of the offending here and all of the circumstances that I have outlined at length, that a period of detention of 18 months should be served, being the subject of release after 50 per cent rather than release after 70 per cent.

And in relation to count 6, the assault occasioning bodily harm, it is of such significance that, in my view, the only appropriate course there also is that there should be a period of detention in that instance, for a period of six months to be served concurrent with the detention contained within count 3. As I have said, I intend to direct release after 50 per cent of the time has been served, and, in that regard, I note that 88 days has been already served in pre-sentence detention, which would be taken into consideration in relation to release. I note also that you will, in fact, turn 18 just prior to 50 per cent arising. But because you would not be serving a period of more than six months as an adult that it would continue to be served in detention rather than in an adult prison.

Two further factors or matters then arise. Firstly, the terms of the probation order that I have referred to in relation to most of the matters require you to consent to those periods of probation. And as I indicated previously, the probation would be subject to you not committing other offences during the period of the probation order of 18 months. You would be required to report to a Youth Justice officer within 48 hours of your release from detention, though I have no doubt that that can be facilitated during any period of detention.

And thereafter, you would be required to report to and receive visits from Authorised Youth Justice Officers to take part in counselling and to satisfactorily attend other programs as might be directed by a Youth Justice officer, notify a Youth Justice Officer of every change in your place of residence and if employment were obtained within two business days of any employment or change of employment, and you must not leave the State of Queensland without the permission of an authorised Youth Justice Officer and otherwise would be required to comply with all reasonable directions of a Youth Justice Officer.

As I have indicated previously, if you were to fail to comply with these requirements, you would, in fact, commit another offence and would be brought back before the Court to be re-sentenced. The order for probation may be amended or revoked by an application by you, an authorised Youth Justice Officer or by the Director of Public Prosecutions. Master DBU, do you understand the requirements of a probation order?

DEFENDANT DBU: Yes, your Honour.

HIS HONOUR: All right. And do you agree to an order being made in those terms?

DEFENDANT DBU: Yes.

HIS HONOUR: All right. And, finally, there is the consideration necessary in respect of whether or not a conviction should be recorded. The indication, as I gave before when sentencing Master B, is that the presumption is that a conviction is not to be recorded against a child who is found guilty of an offence. However, the Court does have the discretion to impose a record of a conviction, and if it is intended to impose a record of conviction, then regard must be given to a number of factors. The first is the nature of the offending. And whilst it is not my intention to record a conviction in relation to those matters for which a probation order has been made, it is certainly clear that the nature of the offending, particularly in relation to counts 3 and count 6 of the ex officio indictment is escalating offending.

As I indicated, there is a very real concern that you used a knife when you demanded property from the complainant, [L], and that you pointed the blade toward the complainant and threatened to stab him. That is a severe escalation of any previous offending, and it is a matter of particular concern, especially in circumstances where you had previously been charged with armed robbery and had been given opportunities to change the direction of your life by way of rehabilitation and steps of that nature.

Similarly, and of particular concern, is the assault occasioning bodily harm upon [Ms W]. It was a very traumatic experience for her, I have no doubt, and it was quite brutal. For you to have entered through the window, walked over to her, slapped her in the face, and when her friend left the room to lock the door so that she was alone with you and then to arm yourself with an electrical cord and strike her repeatedly on the legs and arms, causing welts and bruising to her skin, shows a degree of callousness and disregard for her and her wellbeing that gives rise to a very real concern in relation to the escalating nature of your offending.

Obviously, I am mindful of the impacts that might arise with regard to recording a conviction, but I am mindful in that regard of the fact that there has been an escalation of the offending in respect of you and your behaviours and that whilst it may be the case that rehabilitation is still something to be hoped for, especially noting that you have the whole of your life ahead of you. It seems to me that it would be proper in all the circumstances, being mindful of the escalating nature of the offending and the serious nature of the offending in relation to counts 3 and 6 to record a conviction, and I so order.” (emphasis added)

  1. [27]
    As already noted, there is no complaint in relation to the actual sentences imposed and the periods of detention for Counts 3 and 6 were within the exercise of a sound sentencing discretion given the escalating nature of the offending, the applicant’s criminal history, the persistence in his offending whilst on bail and the fact he had previously been subject to both probation and conditional release orders.  It was acknowledged by the sentencing Judge that the period of detention imposed was imposed as a last resort after a consideration of all of the options as required by s 150(2) of the Youth Justice Act 1992 (Qld) (‘YJA’) and that the presumption was that a conviction should not be recorded.  This was the first time the applicant had been sentenced to an actual period of detention which would see him serve about six months in custody with release in late 2020.
  2. [28]
    The question for this Court is whether there was any error in the exercise of the discretion to record convictions on those two counts on the ex officio Indictment 40/2020 in addition to the imposition of periods of detention.  The relevant provisions are contained in ss 183 and 184 of the YJA as follows:

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.

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
  1. (ii)
     finding or retaining employment.
  1. (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.
  2. (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.”
  1. [29]
    In order to ascertain whether the recording of convictions made the sentences imposed manifestly excessive, it is necessary to consider the actual purpose behind the recording of a conviction.  There is no explicit mention of a purpose in the Act itself and I note that in the 1998 Court of Appeal decision of R v Briese; Ex parte Attorney-General (Qld),[6] Dowsett J commented, with respect to s 12 of the Penalties and Sentences Act 1992 (Qld) (‘PSA’) which is in identical terms to s 184, that “[t]he section says little or nothing about the purpose served by recording a conviction”[7] and specifically noted that the Act did not identify the community purpose served by recording a conviction.  The consequences of not recording a conviction were however referred to by Thomas and White JJ in that decision.  They commented that the non-recording of a conviction is capable of having a considerable effect in the community and that persons who may have an interest in knowing the truth about such matters, which includes potential employers, insurers, and various government departments, are deprived of the truth.  They considered that, given the potential ramifications of not recording a conviction, courts needed to be aware of this, and continued:[8]

“In essence a provision of this kind gives an offender a right to conceal the truth, and it might be said, to lie about what has happened in a criminal court.

On the other hand the beneficial nature of such an order to the offender needs to be kept in view. It is reasonable to think that power has been given to the courts because it has been realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after the appropriate punishment has been received. This potential oppression may stand in the way of rehabilitation, and it may be thought to be a reasonable tool that has been given to the courts to avoid undue oppression.” (emphasis added)

  1. [30]
    Ultimately in that decision the Court allowed the Attorney’s appeal and recorded convictions for a 19 year old with a drug history who had pleaded guilty to two armed robberies with actual violence whilst armed with a knife and attempted stealing over a 15 day period.  Dowsett J stated that the sentencing exercise, in relation to adults, must involve a consideration of the respective consequences of the two options for offender and the community.  His Honour noted the operation of the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) and stated that whilst there was no direct link between the two acts, the language of each act suggests that the recording of a conviction under the PSA is intended to serve that purpose under the latter.  He stated:

“…

Although the Rehabilitation Act is rather more complex in other respects, it is clear that in cases where no conviction is recorded, the offence does not become part of the criminal history of the person in question. Further, subject to a few exceptions, such person may not be asked about, and is not obliged to disclose for any purpose the fact that he or she has committed the offence. Therefore a decision not to record a conviction will seriously limit public access to that information. Generally speaking, the more serious the offence, the greater the legitimate public interest in knowing that a person has been convicted of it. Of course, with time, the significance of past misconduct abates, at least if there is no fresh misconduct. Other provisions of the Rehabilitation Act recognize this. See s. 6. However, to treat the recent commission of serious offences as being of no legitimate interest to persons dealing with the offender is to expose members of the public to the risk of serious physical, moral or economic loss of which risk a recorded conviction might well have warned them.

Section 12(2) expressly contemplates a consideration of the offender’s background and the effect of recording the conviction on him or her. The section does not mention the effects on the community of not doing so, but those considerations are inherent in the “nature of the offence” (s. 12(2)(a)). They must not be overlooked. Specific considerations might include:

  1. (i)
    Whether violence was used and if so, to what extent;
  2. (ii)
    Whether there was exploitation or abuse of trust;
  3. (iii)
    The extent of economic loss to victims;
  4. (iv)
    The extent to which the circumstances of the offence suggest a propensity to offend or a risk that if given an opportunity, the offender may re-offend.

The seriousness of some types of offence dictates the recording of a conviction in all but the most exceptional circumstances. Armed robbery, in my view, is a case in point. That a person has resorted to such conduct for whatever reason must be a matter of legitimate concern to any person dealing with him or her in the future. As far as I can see, the circumstances in this case do not justify withholding the convictions from the public record. No doubt, the respondent’s interests would be better served by doing so, but that is not the only consideration. In this case, the seriousness of the offences, particularly counts 1 and 2, dictate that convictions should be recorded.

I would therefore allow the appeal and record convictions on each count.”

  1. [31]
    The recording of a conviction is an integral part of the sentencing process but it is a matter which needs to be considered separately and only after the court has had specific regard to the nature of the offence, the age of the child, previous convictions and the impact that the recording of a conviction will have on “the child’s chances of (i) rehabilitation generally or (ii) finding and retaining employment” as required by the YJA.
  2. [32]
    What then is the purpose of recording a conviction for a youthful offender?  As already noted, I can find no specifically articulated principle in the Act, other than a conclusion from Briese and s 184 of the YJA that it serves as a warning to those dealing with a young person that they must be warned about the risk of serious physical, moral or economic loss despite the fact that such a warning will affect a young offender’s rehabilitation and employment prospects.  Furthermore, as Lee J stated in the 1992 decision of R v Brown; Ex parte Attorney-General (Qld),[9] the consequences of recording a conviction for a young person are potentially of longer effect “impacting on his character, economic or social well-being, or chances of finding employment.”[10]
  3. [33]
    In R v SCU,[11] Sofronoff P discussed the discretion as to whether to record a conviction in the following terms:

“…

[94] In the circumstances of this case, one of arson, the statute confers a discretion upon a court whether or not to record a conviction. Like the principles that constrain the exercise of the sentencing discretion, the discretion to record a conviction emphasises the special considerations that inherently apply to the situation of a child but that are usually immaterial to the position of adults. Predominantly, apart from the nature of the offence and the other circumstances of the case, which are objective past matters that must be given due weight, the other factors look to the child’s possible future. Sections 184(1)(b) and 184(c) direct a court’s attention to the question of the child’s future chances to be a beneficial member of the community and requires a court to balance the possible deleterious effects of a recorded conviction while paying due regard to the circumstances of the offence. It has been emphasised repeatedly by authorities of this Court that the starting premise is that no conviction should be recorded. That being the position, 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. This is not a simple task as the cases considered by this Court have shown. In R v KU and Ors a conviction was recorded in a case in which youths aged between 13 and 15, all with previous convictions, raped a 10 year old girl. In R v JO, Holmes JA described the offence in R v KU as one that was “inherently so serious that a conviction must be recorded”. Yet, in R v MBQ, an appeal by the Attorney-General, the Court refused to disturb a judge’s refusal to record a conviction in a case of penile-vaginal rape of a three year old by a 12 year old despite the Court’s observing that such an offence would “ordinarily suggest that the recording of a conviction is warranted”. And in R v DAU, an appeal by the Attorney-General, the Court refused to disturb a decision not to record a conviction in a rape case in which a two year period of detention had been ordered.” (emphasis added)

  1. [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.  Whilst the sentencing Judge in his extensive and careful sentencing remarks considered all of the matters he is required by s 184, and was acutely aware that the operative presumption was that a conviction should not be recorded, I consider that his sentencing discretion miscarried by recording convictions for those two counts.
  2. [35]
    One of the major factors that seems to have influenced his Honour was the continuation of his offending and his view that it was “escalating”.  I consider that the learned Judge was too heavily influenced by the continuation of the offending rather than the true nature of his offences which were similar in many respects to his previous offending.  A review of the sentencing remarks also reveals that another factor which played a part in the sentences imposed was the significant leniency he had previously been given by Lynham DCJ and his broken promises to stop using marijuana and to get his life back on track.  In my view, those factors were given too much weight and the sentencing judge did not sufficiently take into account his personal circumstances at the time of the sentence.
  3. [36]
    In my view a balancing of all of the factors could not have led to a positive conclusion by the sentencing judge that the recording of convictions on those two counts was a proper exercise of the discretion.  Those personal circumstances were set out in the Pre-Sentence Report commissioned as required pursuant to s 151(1) of the YJA.  That report was dated 26 May 2020 and was based on interviews conducted on two occasions in the two weeks before the sentence.  The Report clearly identified that the factors which contributed to the offending were four fold namely his family background, negative peers, disengagement from structured activities and education together with substance abuse.
  4. [37]
    The applicant had resided with his mother in Cairns until the age of 15 and had been using marijuana daily since the age of 14.  The Youth Justice Caseworker Ms Ruggieri was informed by the applicant that there were no consequences imposed by his mother for his anti-social behaviours which he began to exhibit at that time.  Ms Ruggieri stated:[12]

“It is the assessment of the author that DBU’s primary care givers have had difficulties in providing adequate supervision to DBU and at times appear to have been overly permissive with him providing little guidance, direction or disciplinary practices. Further, when DBU returned to his father’s care Mr BMD made some attempts to enforce boundaries, but due to DBU absconding from the family home this was unable to be enforced. As such from a young age DBU has been unable to regulate his own behaviours which has resulted in DBU gravitating towards like-minded peers and a pro criminal lifestyle.”

  1. [38]
    It was clear that the applicant was 17 and a half at the time of sentence and he had a two and a half page criminal history for offences which were initially predominantly stealing and burglary offences but had escalated to a robbery accompanied by threats in June 2018.  Whilst the offending was serious it was not inherently egregious and, as the Judge himself recognised, was “eerily similar” to offences he had committed before.  The offences in April 2019 included two robberies in company with personal violence which involved the applicant punching the complainant in the face on both occasions.  Significantly, despite the similarities, the offending had not previously been considered to be of such a serious nature as to warrant the recording of a conviction.  It was accepted at the sentencing hearing that his offending had occurred in the context of feeding his reliance on marijuana.
  2. [39]
    Whilst it was clearly concerning that the applicant had persisted in his offending, had been overtly violent, and persisted in his use of marijuana, despite undertaking not to do so, it would seem to me that, viewed objectively, the nature of his offences were not in a category which could, by their very nature, be such that they warranted a penalty which would impact on his rehabilitation and his chances of finding employment.  I do not consider that either of Counts 3 or 6 were of such a nature that there was a legitimate public interest in knowing that as juvenile he had been convicted of those offences.
  3. [40]
    Furthermore, the periods of detention that the Judge imposed would see the applicant for the first time in a supervised environment for a lengthy period of time.  He was about to embark on six months in youth detention which would see him being supervised and provided with guidance, rehabilitation and educational opportunities.  He would also significantly have six months substance-free.  All of those factors existed against a background whereby Ms Ruggieri had noted that the applicant previously been in detention for shorter periods and had responded well as he had “limited incidents in relation to his behaviour, and engaged in daily structured programs.”[13]  He had also indicated remorse to Ms Ruggieri and had expressed an interest in returning to an education program namely Transition 2 Success which no doubt would be conducted in detention.  He had also been referred to the Integrated Case Management Model in April 2020 and had been engaged with a caseworker and a family youth and resource worker in the community immediately before the sentencing hearing.  The applicant had also accepted a referral to a drug and alcohol service and was about to commence such a course in the community at the time he was sentenced.
  4. [41]
    There can be no doubt that employment and rehabilitation are pivotal in reducing the risk of future offending.  As McMurdo JA noted in R v SCU:[14]

[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.

…”

  1. [42]
    In my view, the consequences of recording convictions in this case were grave, and the reality is that the social prejudice against the applicant would be such that he will be punished well into the future and well after the appropriate punishment namely the period in detention, has been completed.  As such, it will stand in the way of the rehabilitation of this young indigenous man with a prejudicial background who had a drug habit, and little education, as well as a history of no real guidance or supervision.  In my view, given the positive steps that had been taken, his involvement in his first drug rehabilitation program and the importance of the prospect of future employment in the life of this young man, the nature of the offences and their escalation overwhelmed the significance of both rehabilitation and employment.
  2. [43]
    There can be no doubt that the sentencing Judge approached the sentence thoroughly and, as has been noted, this aspect of the sentencing is “no easy exercise”, however, as all of the cases amply demonstrate, the starting premise is that no conviction is to be recorded for a youthful offender and a Judge must be positively satisfied after considering all of the factors set out in s 184 that the proper exercise of the discretion is to record a conviction.  In my view, given the stage in the life of this applicant, that point had not as yet been reached.  The recording of convictions was not a sound exercise of the sentencing discretion in the circumstances of this case.  This conclusion requires a re-exercise of that discretion.
  3. [44]
    On the basis of the matters I have already referred to, I would re-exercise the sentencing discretion by ordering that no convictions be recorded.

Conclusion

  1. [45]
    I would order:
  1. The application for leave to appeal against sentence be granted.
  2. The appeal be allowed.
  3. The sentences below be set aside, to the extent that convictions were recorded.
  4. No convictions be recorded.

Footnotes

[1][2017] QCA 198 at [151]-[153] per McMurdo JA (Morrison JA agreeing).

[2]R v B [1995] QCA 231 per McPherson JA and de Jersey J (Pincus JA agreeing); R v JO [2008] QCA 260 at [12], [16] per Holmes JA (Mackenzie AJA and Douglas J agreeing); R v SBP [2009] QCA 408 at [21] per McMurdo P (Atkinson and Lyons JJ agreeing); R v SBR [2010] QCA 94 at [15] per Muir JA (McMurdo P and Holmes JA agreeing) ; R v SCU [2017] QCA 198 at [94] per Sofronoff P.

[3]Penalties and Sentences Act 1992 (Qld), s 152.

[4]In R v JO [2008] QCA 260 at [14].

[5][2011] 1 Qd R 439.

[6][1998] 1 Qd R 487.

[7][1998] 1 Qd R 487 at 496 (Dowsett J).

[8][1998] 1 Qd R 487 at 491 (Thomas and White JJ).

[9]R v Brown; Ex parte Attorney-General (Qld) [1994] 2 Qd R 182.

[10]R v Brown; Ex parte Attorney-General (Qld) [1994] 2 Qd R 182 at 193 (Lee J).

[11][2017] QCA 198.

[12]Zoey Ruggieri, Pre-sentence Report for DBU (26 May 2020) at 3.

[13]Zoey Ruggieri, Pre-sentence Report for DBU (26 May 2020) at 6.

[14]R v SCU [2017] QCA 198 at [162]-[163] (McMurdo JA).

Close

Editorial Notes

  • Published Case Name:

    R v DBU

  • Shortened Case Name:

    R v DBU

  • MNC:

    [2021] QCA 51

  • Court:

    QCA

  • Judge(s):

    Morrison JA, McMurdo JA, Lyons SJA

  • Date:

    23 Mar 2021

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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