R v DCD; Ex parte Attorney-General
[2024] QCA 91
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Notable Unreported Decision
- Appeal Determined (QCA)
- R v DCD; Ex parte Attorney-General[2024] QCA 91
- Add to List
R v DCD; Ex parte Attorney-General[2024] QCA 91
R v DCD; Ex parte Attorney-General[2024] QCA 91
SUPREME COURT OF QUEENSLAND
CITATION: | R v DCD; Ex parte Attorney-General (Qld) [2024] QCA 91 |
PARTIES: | R v DCD (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant) |
FILE NO/S: | CA No 124 of 2023 DC No 7 of 2022 |
DIVISION: | Court of Appeal |
PROCEEDING: | Sentence Appeal by Attorney-General (Qld) |
ORIGINATING COURT: | District Court at Townsville – Date of Sentence: 23 June 2023 (Jarro DCJ) |
DELIVERED ON: | 24 May 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 6 November 2023 |
JUDGES: | Mullins P, Bond JA and Burns J |
ORDER: | Appeal dismissed. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCING OF JUVENILES – RELEVANT FACTORS – GENERAL PRINCIPLES – where the respondent youth pleaded guilty to one count of sexual assault, four counts of rape and one count of robbery with personal violence committed in the one episode of offending – where the respondent had been sentenced previously for multiple offences including violent offences – where the respondent was sentenced to detention for four years and six months for the most serious count of rape and lesser sentences for the other counts to be served concurrently and to be released from custody after serving 50 per cent of the detention period – where no convictions were recorded – where the appellant appeals against the sentencing judge’s discretion not to record any convictions – where the sentencing judge took into account the respondent’s age, the fact that the respondent had not previously been convicted of any sexual offending and the impact of recording a conviction would have on the respondent’s chances of finding employment and rehabilitation – whether the failure to record convictions rendered the sentence manifestly inadequate Youth Justice Act 1992 (Qld), s 148, s 150, s 183, s 184, s 246, s 276F Youth Justice Regulation 2016 (Qld), s 21 R v Briese; Ex parte Attorney-General [1998] 1 Qd R 487; [1997] QCA 10, cited R v DBU (2021) 7 QR 453; [2021] QCA 51, cited R v JO [2008] QCA 260, considered R v MDD (2021) 293 A Crim R 14; [2021] QCA 235, cited R v SCU [2017] QCA 198, considered |
COUNSEL: | P J McCarthy KC, with T Hancock, for the appellant S J Keim SC, with L D Reece, for the respondent |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent |
- [1]MULLINS P AND BURNS J: The respondent who is an Aboriginal youth pleaded guilty in the Childrens Court of Queensland on 24 February 2023 to one count of sexual assault (count 1), four counts of rape (counts 2-5) and one count of robbery with personal violence (count 6). All offences were committed on 8 June 2021 against the same complainant. A pre-sentence report was ordered to be prepared. The report prepared by the respondent’s caseworker at the relevant Youth Justice Service Centre was dated 22 June 2023 (the pre-sentence report) and included a psychological assessment by the Griffith Youth Forensic Service (the GYFS assessment).
- [2]The respondent was sentenced by the learned District Court judge on 23 June 2023 to detention for one year for count 1, detention for two years for count 2, detention for three years for each of counts 3, 5 and 6 and detention for four years and six months for count 4. All detention orders were ordered to be served concurrently. It was ordered that the respondent be released from custody after serving 50 per cent of the detention order. No convictions were recorded in respect of the counts. The respondent had been held on remand in detention from 9 June 2021 for 744 days before he was sentenced which counted as part of the detention ordered to be served by the sentencing judge.
- [3]The Attorney-General appeals against the sentences on the ground of manifest inadequacy as a result of the exercise of the sentencing judge’s discretion not to record any convictions. The appellant does not identify any specific error on the part of the sentencing judge but contends that the failure to record convictions resulted in sentences that were manifestly inadequate.
The respondent’s antecedents
- [4]The respondent was born in the first half of 2004 and was a little over 17 years old when he committed the subject offences. He was 18 years old when he pleaded guilty and had turned 19 years old by the time he came to be sentenced. The respondent has a criminal history in both the Northern Territory and Queensland.
- [5]The respondent’s early childhood years were spent with his parents in the Northern Territory. Child protection records in the Northern Territory show that from the age of seven years there were concerns about the respondent’s exposure to physical and emotional harm, including exposure to parental domestic violence and alcohol and substance use by his parents. The respondent became subject to a long-term child protection order and was removed from his parents’ care in November 2011. His parents separated in 2013 and their relationship remained disharmonious. The respondent was placed with his maternal grandmother in Queensland who by 2015 was unable to care for him. The respondent thereafter had unstable accommodation and care arrangements through a mix of kinship and residential placements which numbered 19 in total. The placements broke down due to the respondent’s antisocial behaviours, aggression, destruction of property and absconding. The respondent was dealt with in the Darwin Youth Justice Court on 19 February 2019 for 33 offences committed on various dates between February 2017 and November 2018. The offences included stealing, assaults on workers, enter dwelling with intent, property damage and breach of bail. He was given an effective sentence of two months without conviction. In 2019, the respondent commenced to reside with his father, stepmother and some siblings until he was arrested for the subject offences.
- [6]The respondent’s criminal history in Queensland commenced with his guilty pleas on 18 March 2021 in the Childrens Court of Queensland before his Honour Judge Farr SC to a total of 31 charges. They included one count of armed robbery with violence committed on 6 April 2019, one count of armed robbery with personal violence committed on 28 October 2019, one count of armed robbery in company and use personal violence and one count of unlawful assault occasioning bodily harm whilst in company both committed on 8 January 2020, enter dwelling with intent by break committed on 8 December 2019 and serious assault of a police officer committed on the same date, two charges of common assault committed on 6 April and 4 October 2019, 10 charges of stealing committed between 10 April 2019 and 5 August 2020 and various other wilful damage, stealing, enter dwelling and commit and unlawful use of motor vehicle charges. No convictions were recorded. For the armed robbery committed on 8 January 2020 which was the most serious charge, he was sentenced to detention for 18 months to be suspended and served by way of a conditional release order. He was also sentenced to further periods of detention of 12 months, 12 months, six months, six months and 12 months to be suspended and served by way of conditional release orders that were all concurrent. He had spent 205 days (or little under seven months) on remand which was taken to be served on account of these periods of detention. He was also given probation for a period of 12 months for some of the less serious offences. It was of note during that sentencing that the respondent had not offended whilst on conditional bail since 25 November 2020.
- [7]Further offences which the respondent had committed between 13 April 2019 and 14 August 2020 were dealt with in the Townsville Childrens Court on 30 March 2021 when probation for a period of nine months was imposed for the enter premises with intent to commit indictable offence, common assault and stealing all committed on 13 April 2019 and he was reprimanded for the balance of the offences. No convictions were recorded.
- [8]The subject offences breached the conditional release orders, the probation order imposed on 18 March 2021 and the probation order imposed on 30 March 2021. Section 246 of the Youth Justice Act 1992 (Qld) (the Act) in its terms prior to the amendments which commenced on 22 March 2023 applied to the respondent’s breaches of the conditional release orders. The sentencing judge for the subject offences revoked the conditional release orders imposed on 18 March 2021 and ordered that the periods of detention be reduced respectively by three months for each order to account for the respondent’s part compliance with the conditional release orders and those terms were ordered to be served concurrently with the other terms of detention imposed for the subject offences.
- [9]Because of the respondent’s age at the date he was sentenced by the sentencing judge to detention which required a further period of detention to be actually served, s 276F of the Act required the respondent to serve the balance of his detention in a corrective services facility but with the benefit provided by s 276F(4) and (5) that the day that he otherwise would have been released under s 227 of the Act would be the day he was to be released on parole, as if granted under a court ordered parole order (referred to as a statutory parole order) to which the provisions of the Corrective Services Act 2006 (Qld) applying to parole orders applied.
The offences
- [10]The sentencing proceeded on the basis of an agreed statement of facts which included the following. The complainant was 16 years old and unknown to the respondent prior to the offending. The complainant had purchased some items at a service station and was walking back to her unit at about 4.50 pm. The respondent rode past her on a bicycle. When she arrived at the front of her unit complex, the respondent came up behind her on his bicycle. He asked to be let into her unit and whether she would have sex with him. The complainant refused both requests. The respondent invited her to a nearby park and she agreed to go with him. They sat on a bench and the complainant took a Snapchat video of the respondent and her and saved it to her phone. The respondent grabbed her handbag and took out a packet of cigarettes and a quantity of cannabis. She asked for them back but he said he would only return them if she gave him oral sex. The complainant was unsuccessful in grabbing them back from him and he pushed her away. The respondent went to leave on his bicycle and the complainant asked for her cigarettes and cannabis again. He told her to “get over here” and led her to a nearby building.
- [11]The respondent sat on a ledge and made the complainant stand in front of him. He lifted her shirt, grabbed her breasts with both hands and squeezed them and touched them on the outside and inside of her bra. That constituted count 1. The respondent then undid the button on the complainant’s shorts and put his hands inside her pants and touched her on the outside of her vagina. He inserted his fingers into her vagina and that constituted count 2. The respondent demanded she get on her knees in front of him and she cried and complied with his direction. The respondent then stuck his finger inside the complainant’s mouth and used it to force her mouth open and inserted his penis into her mouth which constituted count 3. The respondent said he would give back her cigarettes when she let him have sex with her. The respondent told the complainant to get onto the handlebars of his bicycle which she did and he rode them down the street and across the road to another building. The respondent demanded that the complainant get undressed and get on the ground. She cried again. The respondent inserted his penis into her vagina and that constituted count 4. It hurt and the complainant eventually pushed the respondent off her. She asked for the return of her cigarettes and cannabis again. The respondent pushed her onto a bench, used his finger to open her mouth and inserted his penis inside her mouth again which constituted count 5. The complainant grabbed the cigarettes and cannabis from him and hid them behind her back. They then wrestled and the respondent slid the complainant under a metal bench and pulled her up, so that she hit her head. The respondent grabbed the packet of cigarettes and the cannabis and rode away which constituted count 6. At 5.55 pm, the complainant called 000 and reported the offending. The respondent was arrested and charged on 9 June 2021.
Pre-sentence detention
- [12]When sentenced by the sentencing judge, the respondent had just over two years in detention on remand. For the purpose of the sentencing, information was provided to the Court by the Department of Children, Youth Justice and Multicultural Affairs (the department) of the separation periods in which the respondent was in a locked room in a detention centre for a prescribed purpose pursuant to s 21 of the Youth Justice Regulation 2016 (Qld) (the Regulation). Mr Morrice who was on the date of sentence the acting deputy director at the detention centre at which the respondent was held gave evidence to assist the Court in understanding the information that had been provided by the department. He explained that under the Detention Youth Worker award a one in four ratio of staff to detainees must be maintained and, if that is not met, “separation” ensues for the detainees. That was the reason in almost all instances for the respondent’s separation that was recorded pursuant to s 21(1)(d) of the Regulation. There were relatively few examples where the respondent’s separation was due to his own behaviour. He also explained that when there was a separation, the young people were provided with education packs whilst in their rooms, if they chose to do them.
- [13]The sentencing judge summarised the overall effect of the evidence about the extended periods of separation that the respondent had in his own room whilst held on remand with limited or no interaction with others. The spreadsheet that was provided by the department recorded 515 days during the period held on remand (which was about 70 per cent of that remand period) on which the respondent was separated for 11 hours and 59 minutes (in addition to the period 12 hours spent overnight in his room). (The overnight period is from 7.30 pm to 7.30 am. Mr Morrice explained that although the separation for the rest of the day from 7.30 am was recorded at 11 hours and 59 minutes, there would be short times when the respondent would have been permitted to leave his room (such as for visits from his caseworker, seeing the nursing staff) but that was still considered to be subject to separation.)
- [14]A snapshot of that period of 515 days was provided in the supplementary report for one week of each month of the 25 months the respondent had spent on remand which was a report for a total of 175 days. On 125 of those days, the respondent was in his room for over 20 hours per day. On 24 of those 125 days, the respondent was out of his room for between one and two hours. On 32 of those days, he was out of his room for under an hour. On 11 of those days, he spent no time out of his room. Of those 175 days, five were spent in his room because of COVID-19. Of the remaining 170 days, 30 were recorded as involving separations which were incident-related and 140 days were recorded as being imposed due to staff shortages. There was a period of 73 days between 30 January and 11 April 2023 when the respondent was subject to separation of 11 hours 59 minutes on all but one of those days which was 8 March 2023. A further supplementary report for two weeks of that period showed that the respondent spent very short times out of his room, ranging from 19 minutes to two hours and 13 minutes and, over those 14 days, he spent 17 hours and 44 minutes out of his room and it was all because of staff shortages.
- [15]It was common ground at the sentencing that the respondent was subject to lengthy periods of separation during his remand period due to staff shortages at the detention centre which was a relevant factor for the sentencing. The prosecution conceded appropriately before the sentencing judge that it could be reflected in the respondent’s release being ordered after 50 per cent had been served of the sentence of detention for the subject offences rather than 70 per cent.
Pre-sentence report
- [16]The report was prepared on the basis of joint personal interviews with the respondent by his caseworker and the clinician from GYFS, Mr Holland, on 4 April and 4 and 30 May 2023, a telephone interview with the respondent’s father, the GYFS assessment, information from the Director of Public Prosecutions, the department, the Department of Education, Child Safety records held in Queensland and Child Protection and Youth Justice records held in the Northern Territory. The report noted that, despite having pleaded guilty to the subject offences, the respondent denied committing them and placed blame on the victim and was supported in that view by his father who disagreed with the respondent’s decision to plead guilty. The following factors were assessed as having contributed to the commission of the offences:
- family background and environment, including exposure to harm and associated trauma;
- history of unstable and inconsistent care arrangements;
- exposure to and normalisation of domestic violence behaviour;
- deficient and inappropriate education and guidance in relation to intimate relationships and appropriate sexual behaviour/expression; and
- possible impacts of a mild intellectual disability.
- [17]The report noted that a cognitive assessment undertaken by a psychologist at the detention centre in August 2022 diagnosed the respondent as having a mild intellectual impairment.
- [18]The respondent reported that he first used cannabis sativa at age 13 and had been a regular user since that time. He also reported that he first used methamphetamine at age 15 but on a semi-regular basis. The respondent was adamant he had not engaged in any substance use and was not under the influence on the day of the subject offences. The report assessed that substance use was not a precipitating factor in relation to the offences.
- [19]The report noted that the respondent’s father had advised he was residing in the Northern Territory and declined to provide his exact location, so that the respondent would be unable to return to his father’s care upon release. The report also noted that the respondent declined to engage with interventions in relation to his substance use whilst in custody. Whilst in pre-sentence custody, the respondent was enrolled in school conducted at the detention centre and also participated in vocational activities. The respondent was interested on his release in exploring employment or vocational skills training opportunities. The respondent had been referred to the North Queensland Adolescent Forensic Mental Health Service following his admission to custody, but that referral was closed due to it being for trauma focused intervention which the service was unable to provide.
- [20]The GYFS assessment included the following. The respondent had an extensive history of referrals to therapeutic services to address his defiant and increasingly antisocial behaviours. These referrals were deemed unsuccessful with few therapeutic goals achieved due to service capacity and the respondent’s unwillingness to engage. The respondent was candid in discussing his non-sexual offending behaviour which included a history of physical assaults on other individuals, with frequent aggression against school peers, support workers and individuals he encountered during the commission of other offences. He reported his interpersonal aggression was often encouraged by antisocial peers. His record at the detention centre also indicated a pattern of similar behaviour with 66 reported incidents of aggressive and disruptive behaviours, damage to property, verbal abuse of staff and other use and threats of physical violence. The respondent met diagnostic criteria for Conduct Disorder, early onset with callous and unemotional traits. The major feature of Conduct Disorder “is a repetitive and persistent pattern of behaviour in which the basic rights of others or major societal norms or rules are violated”. The respondent also tentatively met diagnostic criteria for antisocial personality disorder which is marked by lack of regard for rules and the rights of others, along with symptoms of irritability, deceitfulness and impulsivity.
- [21]The GYFS assessment dealt specifically with the subject offences and the considerations that arose from the respondent’s commission of sexual offences as follows. The respondent accepted that he stole cannabis and cigarettes from the complainant but maintained that the sexual contact was initiated by the complainant and that she consented. The respondent denied engaging in any sexually coercive or abusive behaviours towards the complainant and presented himself as the injured party. He was pleading guilty because that was his lawyer’s advice. He engaged in victim blaming. His account of the offences suggested a level of callousness and limited empathy or remorse. He was willing, however, to engage in future offence specific interventions. The subject offences were consistent with a pattern of less serious to more serious delinquent behaviour. The analysis of the respondent’s conduct whilst committing the subject offences appeared more consistent with “a power rapist typology” rather than opportunistic rape offender typologies. The assessment explained that a power rapist asserted his competency to compensate for underlying feelings of inadequacy and the power rapist tended to have high risk sexual fantasies about rape and sexual conquests which put him at risk of repeating the offending behaviour. The assessment expressed the opinion that comments made by the respondent to the complainant during the commission of the subject offences would suggest he engaged in high risk sexual fantasy, although that was difficult to reliably ascertain. The cumulative impact of the respondent’s mild intellectual disability and associated cognitive, affective and psychosocial deficits, multiple-form childhood maltreatment and exposure to domestic and family violence, familial criminality and substance abuse compromised the respondent’s development of healthy core self-regulatory competencies and rendered him vulnerable to engaging in maladaptive behaviour such as aggression and antisocial behaviour. The confluence of those predisposing risk factors together with inconsistent supervision, possible high risk sexual fantasy and motivation to obtain sexual gratification were likely to have contributed to the subject offences.
- [22]Actuarial risk assessment tools were used in the GYFS assessment to assess the respondent’s risk of sexual offence recidivism. On the three assessment tools used, the respondent presented as a high risk of sexual reoffending. Using another risk assessment tool to appraise violence risk for adolescents, the respondent was also assessed as a high risk of violent reoffending. The assessment noted that the tools used to assess sexual and violence offence recidivism risk only provide a guide for assessing probable levels of risk based on the information available at the time of assessment. The recommendation of the assessment was that the respondent requires intensive sexual offence-specific interventions, including intensive interventions to address attitudes supportive of sexually violent behaviour and strategies aimed to increase his social skills.
Sentencing remarks
- [23]Because the appeal is confined to the exercise of the discretion not to record convictions, it is not necessary to refer to all aspects of the sentencing remarks in detail.
- [24]The sentencing judge took into account the respondent’s pleas of guilty, even though they were late pleas. After summarising the pre-sentence report, including the results of the GYFS assessment that the respondent presented as a high risk of sexual and violent reoffending, the sentencing judge observed that would remain the case until the respondent made genuine efforts to change.
- [25]The sentencing judge accepted that the subject offending was “incredibly serious because it involved degrading sexual offending against a young woman who was a relative stranger” and violence was involved when the complainant indicated some reluctance.
- [26]The sentencing judge noted that the sentences imposed for the subject offences must help the respondent rehabilitate and punish him in a way that was just in all the circumstances and be proportionate to the nature of the offending.
- [27]As both parties submitted, the sentencing judge recorded that the very significant periods in isolation spent by the respondent whilst on remand should be factored into the sentencing as a special circumstance that warranted the date of release being at the point after the respondent had served 50 per cent of the period of detention that was imposed.
- [28]It was noted as relevant that any sentence of detention that extended beyond the day of sentencing would see the respondent transferred to a correctional centre.
- [29]The sentencing judge referred to the principles under s 150 of the Act and emphasised the nature and the seriousness of the offending before imposing sentences of detention. The sentencing judge rejected the submission made on the respondent’s behalf that the head sentence should be four years’ detention which would see him released on supervision under the Act on the day of the sentence (if release were ordered after serving 50 per cent of the period of detention).
- [30]Despite the nature and seriousness of the offending, the sentencing judge was not positively satisfied that convictions should be recorded and, in deciding not to record convictions, noted that the respondent was still a young person who had not previously been convicted of any sexual offending and the recording of a conviction would have an impact on his chances of finding employment or rehabilitation.
The appellant’s submissions
- [31]The appellant accepts that the starting position under s 184 of the Act is that convictions should not be recorded and this presumption can be overcome only if, in assessing all the relevant circumstances, a sentencing judge is “positively satisfied” that convictions should be recorded: R v DBU (2021) 7 QR 453 at [43]. Notwithstanding that starting point, the appellant submits that some offences are so inherently serious that a conviction must be recorded, as was observed by Holmes JA in R v JO [2008] QCA 260 at [14], giving the example of R v KU; Ex parte Attorney-General (Qld) (No 2) [2011] 1 Qd R 439 at [214].
- [32]The appellant submits that, in determining how the discretion to record a conviction should be exercised, a sentencing judge must have regard to the purposes served in recording a conviction. The appellant submits that the purpose of recording convictions is to warn the community about the physical, moral or economic risk that the child offender poses: R v Briese; Ex parte Attorney-General [1998] 1 Qd R 487. The appellant argues this is pertinent in the case of an older child who is at a high risk of re-offending, both of which factors apply to the respondent.
- [33]The appellant further submits the sentencing judge was obliged by s 150(1)(b) of the Act to take into account the youth justice principles set out in schedule 1 to the Act which include a requirement to consider community protection (particularly from recidivist high-risk offenders). Section 150(1)(a) of the Act imposes a statutory obligation to consider general sentencing principles which includes general and personal deterrence. It was also relevant that principle 9(a) of the youth justice principles requires that a child who commits an offence should be “held accountable and encouraged to accept responsibility for the offending behaviour”. In this regard, it was a relevant circumstance that the respondent failed to accept responsibility for the offending and persisted in victim-blaming which demonstrated that his prospects of rehabilitation were limited and reduced the weight that would otherwise be given to protecting his rehabilitative prospects by not recording a conviction.
- [34]The appellant emphasises that the subject offences were committed by the respondent “on the cusp of adulthood” when he had a concerning and lengthy history of persistent offending behaviour in disregard for the welfare of others and represented a continued risk to the community. The appellant submits that the respondent “was an older child who presented with a constellation of features which undermined any claim to future prospects for rehabilitation”.
- [35]Mr McCarthy of King’s Counsel who appears with Mr Hancock of Counsel for the appellant ultimately expressed the appellant’s argument in terms that “the judge could not have, in considering all the circumstances of this case, have failed to record a conviction, even balancing those features that a judge must in applying in the Youth Justice Act and giving due consideration to all features of that case”. In other words, the appellant contends that the only outcome was that convictions should be recorded.
The respondent’s submissions
- [36]The respondent submits that the decision not to record a conviction was within the sentencing judge’s discretion. Although the appellant relies on the statement of Holmes JA in the first sentence of [14] of JO to the effect that some offences committed by children are inherently so serious that a conviction must be recorded, that statement was balanced by the last sentence of [14]:
“But it does not follow that every offence which can, in general terms, be described as serious requires the recording of a conviction.”
- [37]The respondent relies on the summary of the effect of the authorities on the application of s 184 of the Act by Sofronoff P in R v SCU [2017] QCA 198 at [94]:
“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.” (footnote omitted)
- [38]The respondent also relies on the discussion on sentencing under the Act in the same case by McMurdo JA (with whom Morrison JA agreed) at [150]-[153]. The point is made in those paragraphs that, subject to the Act, under s 150(1)(a) the Court must also apply the general principles applying to the sentencing of all persons, namely punishment, rehabilitation, personal and general deterrence, denunciation and the protection of the community, but s 150(2)(a) prescribes that a child’s age is a mitigating factor in determining whether or not to impose a penalty and the nature of a penalty imposed. McMurdo JA noted at [152] in relation to that provision:
“This provision, which has been in the statute since its enactment in 1992, recognises the relevance of the child’s age for the consideration of all or any of the purposes to be served by a sentence. It necessarily affects the weight to be given to the objects of punishment, denunciation and deterrence and thereby lessens their importance relative to the object of rehabilitation.” (footnote omitted)
- [39]McMurdo JA referred at [153] to further provisions of the Act within paragraphs (b), (c) and (e) of s 150(2) that also give rehabilitation an importance which it need not have in the case of an adult offender.
- [40]Mr Keim of Senior Counsel who appears with Ms Reece of Counsel for the respondent submits that both the respondent’s offending and his lack of remorse may be seen as a product of his extremely disadvantaged upbringing.
- [41]The appellant did not oppose the respondent relying on an affidavit of the solicitor from Legal Aid Queensland who was acting for the respondent in this appeal that informed the Court that the respondent was not released from custody on 8 September 2023 when he was due to be released, as the Parole Board Queensland suspended the statutory parole order that applied to the respondent pursuant to s 276F of the Act indefinitely on the basis that he had been assessed in the high risk category of sexual and violent re-offending and had been referred to Offender Rehabilitation Management Service for consideration for funding to receive individual intervention to assess and treat the identified risks.
- [42]The suspension of the respondent’s parole was a post-sentence event and is therefore irrelevant to the issue to be determined on this appeal as to whether the sentencing discretion exercised by the sentencing judge miscarried in relation to the non-recording of convictions.
Should the sentencing judge have recorded convictions?
- [43]The effect of a conviction not being recorded for a child who was found guilty of an offence is dealt with by s 148(1) of the Act:
“In a proceeding against an adult for an offence, there must not be admitted against the adult evidence that the adult was found guilty as a child of an offence if a conviction was not recorded.”
- [44]Under s 148(2), it is specified that s 148(1) applies even though the evidence otherwise would be admissible under s 15 of the Evidence Act 1977 (Qld) or s 5(3)(b) of the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld).
- [45]There is a limited exception to the operation of s 148(1) that is found in s 148(3) which is not relevant for the purpose of this appeal.
- [46]Under s 183(3) of the Act, the sentencing judge had a discretion whether or not to order that convictions be recorded. Section 184 of the Act sets out the considerations to which a court must have regard in considering whether to record a conviction or not and also provides for the effect of not recording a conviction:
- “(1)In considering whether or not to record a conviction, a court must have regard to all the circumstances of the case, including—
- the nature of the offence; and
- the child’s age and any previous convictions; and
- the impact the recording of a conviction will have on the child’s chances of—
- rehabilitation generally; or
- finding or retaining employment.
- 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.
- 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.”
- [47]Briese was an Attorney-General’s appeal against an order that no convictions be recorded for an offender who pleaded guilty to two armed robberies and attempted stealing committed when he was 19 years old and was ordered to undergo probation for three years and serve 240 hours community service. The decision concerned the application of s 12 of the Penalties and Sentences Act 1992 (Qld). All members of the Court allowed the appeal and ordered that convictions be recorded. The joint judgment of Thomas and White JJ noted at 491 that the non-recording of a conviction had the effect of the conviction not being a conviction for any purpose, other than the Court’s own record and the offender’s criminal history. Their Honours observed that such an order has considerable effect in the community and persons who may have an interest in knowing the truth in such matters include potential employers, insurers and various government departments. Their Honours also acknowledged that the beneficial nature of such an order to the offender must also be considered as “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 appropriate punishment has been received”. The other member of the Court in Briese, Dowsett J, noted at 498 that “… a decision not to record a conviction will seriously limit public access to that information” and:
“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.”
- [48]The respondent committed the subject offences as a child and, even though he was just over 17 years old when he committed the subject offences, he was entitled to the benefit of not having convictions recorded to assist with his rehabilitation, unless the sentencing judge was positively satisfied that they should be recorded. The different statutory regime for the recording of convictions in respect of youth offenders under the Act reduces the relevance of the public interest in the recording of convictions that was suggested in Briese at 491 and 498.
- [49]That was recognised by Holmes JA (with whom Mackenzie AJA and Douglas J agreed) in JO at [12]. This was also emphasised by McMurdo JA (with whom Fraser JA agreed) in R v MDD (2021) 293 A Crim R 14 at [21]. After referring to Dowsett J’s judgment in Briese and JO at [14], McMurdo JA then stated in MDD at [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, 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, as applied by Lyons SJA in R v DBU, there is a clear connection between an offender’s chances of finding or retaining employment and his chances of rehabilitation.” (footnotes omitted)
- [50]The essence of the appellant’s argument is that community protection as a factor should have outweighed the rehabilitation of the respondent and resulted in the recording of convictions.
- [51]The sentencing judge was made cognisant of the extreme dysfunctional upbringing of the respondent. Despite the lengthy period for which the respondent was under a child protection order, there was no stability in the care provided to the respondent. Between 2015 and 2019 (when the respondent was between 11 and 15 years old), he had 19 different residential placements. As the pre-sentence report and GYFS assessment revealed, past referrals for therapeutic services were affected, in part, by the lack of capacity of those services. The respondent’s mild intellectual disability was only diagnosed in August 2022. His anti-social tendencies that contributed to the subject offences and his other criminal offending and the lack of remorse for the subject offending had to be considered in the context of his disadvantaged upbringing. His prospects for rehabilitation during the pre-detention period of two years were limited by the staff shortages that resulted in separations applying for 70 per cent of remand period. The subject offences represented the first sexual offending committed by the respondent and it was positive that he was willing to engage in specific interventions for that type of offending. That was relevant when considering that the subject offences represented progression in the respondent’s violent offending offences, as the subject offences involved violent sexual offending. Because of the respondent’s willingness to engage in offence-specific interventions, it was a valid consideration for the sentencing judge to note that the respondent had not previously been convicted of any sexual offending.
- [52]The question of whether to record a conviction under s 184(1) of the Act is part of the sentencing process. The resulting sentence is arrived at by instinctive synthesis, as explained in Markarian v The Queen (2005) 228 CLR 357 at [37]. The sentencing judge emphasised the nature and the seriousness of the offending and the period of detention of four years and six months imposed for the most serious rape was a significant (and proper) punishment. The structure of the sentence imposed by the sentencing judge that anticipated two years and three months of supervision in the community under parole did take into account the need, and provide, for community protection. By not recording a conviction for each of the offences, the sentencing judge recognised the lack of opportunities that had been given previously to the respondent by his extremely dysfunctional upbringing with the consequences that flowed from that and gave him the prospect of some rehabilitation by optimising his employment opportunities and therefore rehabilitation. As was observed by Sofronoff P in SCU at [94], it is not a simple task for a sentencing judge to be positively satisfied that the proper exercise of the discretion is in favour of recording a conviction. As this case shows, there are factors that pull in different directions as to whether a conviction should be recorded. It was open to the sentencing judge not to be satisfied positively (after considering all the relevant circumstances and applying the weight that the sentencing judge considered appropriate to those factors) that convictions should be recorded.
- [53]The fact that another judge may have given different weightings to the relevant factors and reached a different conclusion than the sentencing judge does not mean the only outcome was that convictions should be recorded. The appellant fails in showing that the discretion of the sentencing judge exercised under s 184 of the Act miscarried. The sentence was therefore not manifestly inadequate.
Order
- [54]The order which should be made is: Appeal dismissed.
- [55]BOND JA: The circumstances which were presented to the sentencing judge in this case revealed a strong case for recording a conviction against the respondent. Nevertheless, I agree with the President and Burns J that this Court should not interfere with the sentencing judge’s choice not to do so. Their Honour’s reasons for judgment mean that I may explain why in a relatively summary way.
- [56]As the President and Burns J have noted, before this Court the appellant accepted that:
“… the starting position under s 184 of the [Youth Justice Act 1992 (Qld) (the Act)] is that convictions should not be recorded and this presumption can be overcome only if, in assessing all the relevant circumstances, a sentencing judge is “positively satisfied” that convictions should be recorded.”
- [57]The appellant cited R v SCU[1] and R v DBU[2] as authority for that acceptance. Reference might also have been made to R v MDD[3] where McMurdo JA observed that “[u]nlike the decision for adult offenders, s 183 [of the Act] proceeds from the primary position that a conviction is not to be recorded” and footnoted a number of decisions in this Court said to support his observation.[4]
- [58]The sentencing judge’s attention was drawn to R v DBU and his Honour’s sentencing remarks adopted the reference to the need to be “positively satisfied”. Accordingly, it may be accepted that his Honour’s sentencing discretion proceeded by reference to the law as stated in R v DBU and accepted by the appellant in this Court.
- [59]The problem is that the text of s 183 does not actually express the suggested starting position. Nor is there the slightest textual support in either s 183 or s 184 for the conclusion that there is a presumption which needs to be overcome.
- [60]Section 183 provides:
- “(1)Other than under this section, a conviction is not to be recorded against a child who is found guilty of an offence.
- If a court makes an order under section 175(1)(a) or (b), a conviction must not be recorded.
- 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.”
- [61]Having regard to its text, the only starting point from which the section proceeds is that a conviction is not to be recorded against a child “other than under this section”. Where s 183(2) applies, the starting and finishing point is that a conviction must not be recorded. But where, as here, s 183(3) applies, then the starting point is that a conviction may be recorded. As Henry J observed in R v MDD:
“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.”[5]
- [62]Where s 183(3) applies, the section confers a discretion on the sentencing court to make a binary choice, namely between recording a conviction and not recording a conviction. And then s 184 states that in making that choice:
“… a court must have regard to all the circumstances of the case, including—
- the nature of the offence; and
- the child’s age and any previous convictions; and
- the impact the recording of a conviction will have on the child’s chances of—
- rehabilitation generally; or
- finding or retaining employment.”
- [63]If the matter was free from authority, I would not construe it in the way that the appellant has been content to accept. I would conclude that it is wrong to speak of starting points or of presumptions which need to be overcome. One does not need to do so in order to recognise that the proper exercise of the discretion to make the choice between recording and not recording would have to recognise that the legislature has required, amongst other things, specific consideration of the matters mentioned in s 184(a), (b) and (c). If the matter had been free from authority, I might well have been persuaded that the sentencing discretion proceeded erroneously by reference to a non-existent presumption against recording a conviction and, accordingly, it was appropriate to re-exercise the sentencing discretion.
- [64]But the matter is not free from authority. Nor has the appellant sought to persuade this Court that it should form the requisite strong conviction that any part of the way in which previous cases in this Court have stated the law should not be followed.[6] To the contrary, for the purposes of this appeal the appellant has expressly accepted the correctness of the authority. No case of specific error was advanced. Rather, the application for leave to appeal was only advanced on the basis of manifest inadequacy. To succeed on that ground, the appellant must persuade this Court that the choice not to record a conviction was so unreasonable or plainly unjust that the Court should infer there must have been an error.
- [65]In effect, the appellant has assumed the burden of persuading this Court that the only choice which was open to the sentencing judge was the choice which was not made. When one has regard to the breadth of the matters which the sentencing judge had to consider, and the principles (not presently impugned by the appellant) which the sentencing judge regarded as informing the way he was required to consider them, it is impossible to be so persuaded. The conclusion expressed in the reasons of the President and Burns J at [53] must be right. I agree with their Honours that the appeal must be dismissed.
Footnotes
[1]R v SCU [2017] QCA 198, see in particular at [93] and [94] per Sofronoff P.
[2]R v DBU (2021) 7 QR 453; [2021] QCA 51, see in particular, at [34] and [43] per Lyons SJA (with whom Morrison and McMurdo JJA agreed).
[3]R v MDD [2021] QCA 235.
[4]R v MDD [2021] QCA 235 at [21] per McMurdo JA.
[5]R v MDD [2021] QCA 235 at [40] per Henry J.
[6]cf Lynch v Commissioner of Police [2022] QCA 166 at [60] to [70] per Beech AJA (with whom Morrison and Bond JJA agreed) and Madden v Commissioner of Police [2023] QCA 31 at [26].