R v HCO[2023] QCA 103

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P: I agree with Flanagan JA.
2. [2]
   FLANAGAN JA: On 17 May 2022 the applicant was convicted on his own pleas of guilty of having committed the following offences:

   1. (a)
      Count 1:  Burglary with violence, while armed and in company;
   2. (b)
      Count 2:  Armed robbery in company, with personal violence; and
   3. (c)
      Count 3:  Unlawfully using a motor vehicle.
3. [3]
   All three offences were committed on 9 October 2021 at Hamilton, a suburb of Brisbane.
4. [4]
   The applicant was 16 years of age at the time of committing the offences and 17 years of age when sentenced.
5. [5]
   On 9 June 2022 the applicant received the following sentences in the Childrens Court of Queensland at Brisbane:

   1. (a)
      Count 1:  18 months detention with a conviction recorded;
   2. (b)
      Count 2:  18 months detention with a conviction recorded; and
   3. (c)
      Count 3:  12 months detention with a conviction recorded.
6. [6]
   The learned sentencing judge also found that by the offending the applicant had breached a previous probation order imposed by his Honour Judge Lynch KC in the Childrens Court of Queensland at Ipswich on 1 October 2021 in relation to a previous robbery offence committed on 6 September 2020.
7. [7]
   Pursuant to s 245(1)(d)(ii) of the Youth Justice Act 1992 (Qld) (“the Act”) the sentencing judge discharged the probation order and re-sentenced the applicant for the offence to detention for 12 months but did not record a conviction.
8. [8]
   All detention orders were to be served concurrently.
9. [9]
   The sentencing judge also made a finding of special circumstances pursuant to s 227(2) of the Act and ordered that the applicant be released after serving 60 per cent of the period of detention imposed.  Without such a finding the applicant would have been required to serve 70 per cent of the period of detention: s 227(1) of the Act.
10. [10]
    Pursuant to s 218 of the Act, the period of custody while on remand (237 days) was counted as part of the period of detention.
11. [11]
    The applicant applies for leave to appeal against sentence on the sole ground that the recording of the convictions rendered the sentence manifestly excessive.

The circumstances of the offending

12. [12]
    At approximately 4.40 pm on 9 October 2021 the applicant, together with two co-offenders travelled to a residential address at Hamilton.  A luxury motor vehicle could be seen in the driveway from the road.  The applicant and his co-offenders jumped the front fence and entered the kitchen where they confronted the husband and wife residents.  One of the co-offenders was armed with a hunting knife with a 13 centimetre long blade.  The co-offender pointed the knife at the male resident saying “Keys, cash, wallet now.”  The co-offender held the knife to the throat of the male resident; his wife stood behind him and screamed.  The co-offender said to her, “Shut up.  All I want is the keys and the cash.”  The male resident then pointed to where the car keys were kept.  The applicant and his co-offenders stole a wallet, mobile phone, house keys and the car keys.  They then ran to the driveway, entered the luxury motor vehicle, reversed out of the driveway and drove away from the residence.
13. [13]
    On 15 October 2021 the applicant was found in Ipswich and arrested in relation to another matter.  He declined to be interviewed by police.

The applicant’s antecedents

14. [14]
    The applicant has a 15 page criminal history.  He commenced offending when he was only 12 years of age.  He had been sentenced on 13 separate occasions for 138 offences.  Those offences include 23 burglaries, 26 enter premises, 25 unlawful use of a motor vehicle, four common assaults, and a serious assault upon a corrections officer.
15. [15]
    As already observed, the applicant’s offending breached the probation order imposed on 1 October 2021 in relation to a previous robbery offence.  The present offending took place only eight days after the imposition of the probation order.  The previous robbery offence occurred at 11.00 am on 6 September 2020.  The complainant and his wife had returned home with their new baby.  The complainant’s wife placed her handbag on a chair on the front verandah.  Approximately 30 to 45 minutes later the complainant heard the outdoor gate click.  He went to the front verandah where he observed the applicant in the driveway, one co-offender standing on the front verandah and another co-offender squatted behind the front fence.  After the complainant asked them to leave the applicant told his co-offender who was behind the front fence to “get the knife”.  The applicant threatened to stab the complainant.  The co-offender rummaged through a duffel bag and produced an object.  The applicant came up the stairs.  As the complainant moved forward the co-offender on the verandah snatched the handbag and the applicant and his two co-offenders made good their escape.
16. [16]
    There were two pre-sentence reports before the sentencing judge; one in relation to the breach of the probation order imposed by Judge Lynch KC and one in relation to the sentencing for the three offences (“the pre-sentence report”).  The pre-sentence report records that the applicant was first sentenced to supervised orders in 2018 when he was 13 years of age.  The applicant has been subject to seven probation orders, one community service order, 10 detention orders, one conditional release order, five supervised release orders and two restorative justice orders.  He has a lengthy history of non-compliance with the conditions of these orders.  This has resulted in a number of the orders being discharged and the applicant being re-sentenced.  Despite this history, the applicant had not previously had a conviction recorded.
17. [17]
    The pre-sentence report notes that the applicant is subject to a long term Child Protection Order granting guardianship to the Chief Executive until the applicant reaches the age of 18.  The applicant has low numeracy, literacy and reading skills.  He has an ongoing history of offending whilst in the company of peers and/or family members.  The author of the pre-sentence report notes that the applicant has normalised criminal behaviour with these peers who he perceives as stable, reliable and predictable.
18. [18]
    At the time of the offending, the applicant reported to the author that he was under the influence of methylamphetamines and cannabis.  His motivation in committing the offences was, at least initially, to obtain money or valuables that could be exchanged for drugs.  The applicant did, however, express a level of remorse for his actions and recognised in hindsight that the victims would have been distressed and may have incurred long term trauma.  The applicant did however indicate to the author that he intends to maintain his peer associations when he returns to the community.  The applicant declined to be referred to substance misuse counselling nor was he willing to be referred to a relevant service upon release from custody.  The author notes that the applicant continues to embrace pro-criminal attitudes with an acceptance of anti-social behaviour amongst his peer and family network.

Sentencing remarks

19. [19]
    The learned sentencing judge took into account the applicant’s early pleas of guilty.  His Honour considered that the offending was serious and constituted an escalation in the applicant’s criminal offending.  His Honour drew a distinction between the previous robbery offence, where there was a threat to use a knife, as opposed to the present offending where a knife was actually used and held against the complainant’s throat.  His Honour noted that the applicant was a passenger in the stolen vehicle and that he was not himself armed with a knife but was however a party to the offending.
20. [20]
    His Honour described the applicant’s criminal history as extensive and noted that the applicant had repeatedly breached court orders and that the offending had occurred within only eight days of the applicant being placed on a probation order.  His Honour considered that this was a serious aggravating factor.
21. [21]
    His Honour referred to his consideration of the contents of the pre-sentence report and the breach report.  His Honour also considered submissions that had been made on behalf of the applicant before Judge Lynch KC.  His Honour referred to the applicant having a “most prejudicial upbringing”, including having been placed in multiple residential placements as well as self-placing with relatives and peers.  His Honour further noted the applicant’s longstanding problem with substance abuse and his failure to commit to steps to address his substance abuse.
22. [22]
    Before his Honour, a representative from Youth Justice addressed the court in relation to the applicant’s recent behaviour while in detention.  His Honour noted some positive steps had been taken, including the applicant’s participation in programs as well as steps in furthering his education.
23. [23]
    His Honour made specific reference to the sentencing principles contained in s 150 of the Act including the principle that the community should be protected from offenders and, in particular, recidivist high-risk offenders.  His Honour also referred to s 150(2)(e) and the principle that a detention order should be imposed only as a last resort and for the shortest appropriate period.
24. [24]
    His Honour gave detailed reasons in considering whether to record convictions.  As the applicant applies for leave to appeal against sentence on the sole ground that the recording of convictions rendered the sentence manifestly excessive, it is helpful to set out his Honour’s reasoning in full:

“The question then arises as to whether or not convictions should be recorded.  The presumption is that convictions not be recorded.  Section 184 of the Youth Justice Act requires me to have regard to all the circumstances of the case, including the nature of the offence, your age and any previous convictions and the impact the recording of a conviction might have, or will have, on your chances of rehabilitation generally or finding or attaining employment in considering whether or not to record a conviction. You are 17 years of age now.  You were 16 years of age at the time of the commission of the offences.  I have already noted your criminal history.

I do not accept the submission made on your behalf that the circumstances of your offending is not sufficiently serious such that a conviction should be recorded.  I consider the nature of the offences to be serious.  Your counsel refers to your aspirations towards a career in sport, and the fact that it can generally be assumed that the recording of a conviction will have an impact upon your rehabilitation and the chances of finding or attaining employment, given your own significant disadvantages in that regard, as weighing against the recording of convictions.

I have had regard to those statements of principle by the Court of Appeal in R v SCU [2017] QCA 198 and the circumstances of that offender and the reasons why, on appeal, convictions were ordered not to be recorded.  I have also considered the judgments of the Court of Appeal in R v Cunningham [2014] QCA 88 and R v MKM [2018] QCA 233, in which appeals against the recording of convictions were not allowed.  I have considered the judgment of the Court of Appeal in R v JAB [2020] QCA 124 and R v TAO [2020] QCA 4, in which the prospects of rehabilitation of the applicants were a significant factor in allowing appeals against sentence with respect to the recording of convictions.

Given your age and your criminal history and the seriousness of your offending, balanced against the undesirable effect of convictions affecting your rehabilitation and the prospects of holding and obtaining employment, I consider this is a case in which convictions should be recorded for the three offences for which you are sentenced today.  No conviction is recorded with respect to your resentencing for the robbery offence.”

Did the recording of convictions render the sentence manifestly excessive?

25. [25]
    In submitting that the sentence is manifestly excessive, the applicant does not identify any specific error of law.  The applicant accepts that his Honour, in exercising the discretion to record convictions, considered the factors prescribed by s 184 of the Act.  The applicant nevertheless submits that coupling detention orders for a period of 18 months with the recording of convictions rendered the overall effect of the sentence “unreasonable or plainly unjust” in the circumstances of the case.^[1]  The basis of this submission is that the applicant’s offending is relatively less serious than the offending identified in comparative cases, in particular, R v Cunningham [2014] 2 Qd R 285, R v MKM [2018] QCA 233 and R v JAB (2020) 4 QR 588.  Each of these comparatives was considered by the learned sentencing judge.  The difficulty for the applicant in suggesting appellable error by reference to these comparatives is the observations of Gaudron, Gummow and Hayne JJ in Wong v The Queen (2001) 207 CLR 584 at [58]:

“… appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that had been imposed in other cases.  Intervention is warranted only where the difference is such, that in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.”

26. [26]
    In R v Cunningham the applicant pleaded guilty to a number of offences, including two of attempted armed robbery.  He was sentenced to detention for each offence for two years to be served concurrently.  Convictions were recorded.  The sentencing judge did not provide any reasons for the recording of convictions, and in those circumstances, the Court of Appeal granted leave to appeal but otherwise dismissed the appeal.  Daubney J with whom Holmes and Gotterson JJA agreed observed that the prima facie position under ss 183 and 184 of the Act is that a conviction is not to be recorded against a child.  Daubney J, however, in exercising the sentencing discretion afresh and having regard to the matters in s 184 of the Act recorded convictions.  The applicant had used a knife in both robberies.  He had threatened a bottle shop attendant and subsequently a service station console operator.  Daubney J noted that cases in which the Court of Appeal has been required to exercise the discretion conferred by s 184 turned on their particular circumstances with an emphasis being placed on the impact of recording a conviction on the child’s chances of rehabilitation and finding employment.  In recording convictions, Daubney J referred to the use of the knife as constituting an escalation in the applicant’s criminal conduct.  The applicant had, like the present applicant, an extensive juvenile criminal history.  According to Daubney J, this history demonstrated complete disregard for ongoing court orders and sanctions to which the applicant was subject.
27. [27]
    In R v MKM the applicant was sentenced in relation to eight offences, the most serious being one of unlawful entry into a vehicle with intent to commit an indictable offence using actual violence whilst armed with a dangerous weapon and in company with another person and one of robbery whilst armed with an offensive instrument.  The applicant was sentenced to detention for 20 months to be served concurrently for each of these offences with convictions recorded.  The application for leave to appeal was dismissed.  Sofronoff P with whom Gotterson JA and Bond J agreed stated at [22]:

“The recording of a conviction in the case of a child is a serious thing.  For that reason, as Mr O'Brien correctly submitted, the prima facie position is that a conviction should not be recorded.  However, s 184 of the Youth Justice Act 1992 requires that, when a court is considering whether or not to record a conviction, the court must have regard to the nature of the offence and any previous convictions.  The child’s age and the impact of the conviction upon the child’s chances of rehabilitation generally and on finding or retaining employment are also matters that must specifically be taken into account.  All these matters were taken into account by Farr SC DCJ.  I would respectfully agree with his Honour’s characterisation of the offences as serious ones.  It must have been terrifying for the applicant’s victims to be confronted with stabbing weapons.  It may be accepted that the offences were carried out by her while under the influence of methamphetamine.  I am not persuaded that this is a mitigating factor.  It may be accepted that these offences were unsophisticated.  Robbery is an unsophisticated offence.”

28. [28]
    The circumstances in which the Court of Appeal came to exercise the sentencing discretion afresh in R v JAB was the failure of the sentencing judge to afford the applicant natural justice prior to recording a conviction.  In re-exercising the sentencing discretion, the Court of Appeal did not record a conviction.  One of the offences for which the applicant was sentenced included an attempted armed robbery offence which occurred after the applicant had failed to pay for a taxi ride.  The applicant repeatedly punched the complainant to his face causing the complainant to lose control of the taxi which rolled into a fence causing damage to the fence and the taxi.  The applicant ordered the complainant out of the taxi, directing that he leave his bag or the applicant would “pull the gun out”.  In exercising the discretion not to record a conviction, the Court of Appeal acknowledged that while the offence was serious and had occurred in the context of a past history of non-compliance with court orders, the pre-sentence report specifically identified tragic and distressing family circumstances as being relevant considerations in the particular offending by the applicant.  The court further noted that the applicant had displayed a “sound level of victim empathy” regarding the impact of his offending behaviours on the victim of the offences and that at no point had the applicant sought to minimise his involvement in the offences and had acknowledged that his behaviour was not socially acceptable.  The court considered that those matters were supportive of a conclusion that the applicant had reasonable prospects of rehabilitation notwithstanding his poor performance previously on court orders.
29. [29]
    A consideration of these comparatives does not assist the applicant’s submission that the recording of convictions rendered the sentence manifestly excessive.
30. [30]
    In exercising the discretion to record convictions, the learned sentencing judge had regard to the factors in s 184.  While the applicant was not personally armed with a knife, he was party to the offending having travelled with his co-offenders to Hamilton for the purpose of breaking into homes to steal valuable items and/or money in order to purchase drugs.  The actual use of a hunting knife in the offending did, as a matter of fact, constitute an escalation from the previous robbery charge where a knife was not actually produced.  His Honour had regard to the applicant’s extensive criminal history and ongoing breaches of court orders including the probation order imposed by Judge Lynch KC on 1 October 2021.  It is evident from his Honour’s sentencing remarks that the personal circumstances of the applicant were taken into consideration.  His Honour also specifically considered the impact of recording convictions might have on the applicant’s chances of rehabilitation generally and in attaining future employment.  Unlike the applicant in R v JAB, the sentencing judge, by reference to the pre-sentence report, held concerns as to the applicant’s prospects of rehabilitation.
31. [31]
    No error in the sentencing discretion has been established.  The recording of convictions did not render the sentence manifestly excessive.  The application for leave to appeal against sentence should be refused.
32. [32]
    BODDICE JA:  I agree with Flanagan JA.