R v MED[2012] QCHC 14

CHILDRENS COURT OF QUEENSLAND

HIS HONOUR: This is an application under section 118 of the Youth Justice Act 1992 (Qld) for a sentence review on behalf of MED, who was sentenced on 21 March 2012 in the Southport Childrens Court, when he was 15 years of age, on his plea of guilty to eight counts of unlawful use of a motor vehicle, three counts of enter dwelling and commit an indictable offence, and one count each of attempted enter premises and commit an indictable offence, and receiving tainted property. The plea of guilty was entered on 22 February 2012.

After hearing submissions from the prosecution and defence, the learned sentencing Magistrate ordered a presentence report be prepared. The applicant was remanded in custody to appear on 21 March 2012 for sentence.

On that date, as appears from the verdict and judgment record, it was ordered that the applicant be detained for a period of six months on each offence to be served concurrently. As there were special circumstances in the child's case, it was ordered that he be released from custody after serving three months of the detention order. The period of custody on remand for these offences was expressly ordered to be counted as part of the period of detention to be served by him. According to the presentence report, this was a total of 48 days.

Although his Honour did not expressly state during his sentencing decision that a conviction was recorded, this appears in the Verdict and Judgment Record. According to his Honour's remarks, the total of six months' detention was to date from 3 February 2012, so that the applicant's release date was set at 3 May 2012. This has been described by both parties in their written submissions as a sentence of six months' detention, with release after serving 50 per cent. This is a supervised release order under the Act, and not an immediate conditional release order, with a requirement that the child participate in a conditional release program of not more than three months, in terms of sections 220 and 221 of the Act, although his Honour, somewhat confusingly, referred to this as a conditional release order. On 22 February, he said, "I order a presentence report preparatory to a conditional release order."

For completeness, I mention that his Honour also reprimanded the applicant, without recording a conviction, on an obstruct police charge, which was associated with one of the offences. I do not understand that order to be the subject of this application.

On 26 March 2012, the applicant's detention order was stayed by her Honour Judge Dick SC in the Brisbane Childrens Court of Queensland, and he was released on bail. The applicant had spent 52 days in detention at the time the order was stayed.

The offences occurred over a four-month period between 2 October 2011 and 3 February 2012. The first offence was committed when he was 14 years of age. The remaining 12 offences were committed after he turned 15 years on 10 November 2011. They were committed from 19 January 2012. At the time of his final offence, he was about 15 years, three months of age.

The respondent accepts that the facts are summarised in the applicant's written submissions. Although they are not set out in chronological order, I adopt them for the purpose of this decision.

With reference to the count of attempted enter premises and commit indictable offence on 2 October 2011, the applicant and co‑offenders attempted to gain entry to a shop by hitting the back wooden and security doors with an axe and mattock. Police observed the applicant and co‑offenders committing the offence. It was because the applicant then ran away from the police that he was also charged with obstruct police on that date.

In relation to the count of enter dwelling and commit indictable offence on 26 January 2012, at about 2 a.m. the applicant and another entered the victim's house. The victim's son was woken by an offender searching through drawers in his bedroom, and he chased the offender out of the house. Police later located the applicant who was in possession of the victim's phone. Although the applicant did not participate in a recorded interview, he made an admission to the police.

The charge of enter dwelling and commit indictable offence on 26 January 2012 occurred at about 1.40 a.m. when the applicant and another entered the victim's house. The victim was awoken by noise and saw a male take an iPod from the kitchen before running through the front door. Again, while not participating in a recorded interview, the applicant made admissions to the police.

The count of enter dwelling and commit an indictable offence between 28 January 2012 and 31 January 2012 related to the theft of a set of car keys and a torch from a house on the evening of 29 January 2012. These keys were used to steal the victim's car. As I understand it, the receiving stolen property charge of 3 February 2012 relates to the location of car keys on the mattress where the applicant had been sleeping when he was located on that date. The victim's car was located in a nearby street.

The count of unlawful use of a motor vehicle on 31 January 2012 relies upon what the applicant told the police in a recorded interview. He said that on the night of 29 January 2012 a friend picked him up in the victim's car. He was told the car was hot. He was a passenger in the car while the friend drove around doing skids.

The count of unlawful use of a motor vehicle between 29 January 2012 and 3 February 2012 also arose out of admissions made by the applicant during the police interview. Again, he said that he was a passenger in a stolen car on 30 January 2012 when the same friend drove them to a park.

The count of unlawful use of a motor vehicle between 1 February 2012 and 3 February 2012 was also based on admissions the applicant made to the police, that on 2 February 2012 he and a person called Dylan drove a car from Murarrie to Tingalpa using back streets.

The four charges of unlawful use of motor vehicles between 25 January and 3 February 2012 related to a car stolen on 26 January 2012. The applicant, during an interview with the police on 3 February 2012, said that he was a passenger in the stolen car on four occasions. He said that the same friend was driving around the Murarrie and Tingalpa areas, and that he knew the car was stolen.

The final count of unlawful use of a motor vehicle on 19 January 2012 related to another stolen car, which was later found crashed at an intersection. In this case, the applicant's fingerprints were located on the inside of the driver's window.

It is apparent, as observed in the presentence report, the majority of the offences occurred in the company of other persons, whom the report writer describes as his peers.

I also observe that, in six cases, the charges of unlawful use of a motor vehicle are based on the applicant being a passenger in vehicles which had been taken by another person.

The applicant had what may be described as a not insignificant criminal history for like offending, as well as for minor drug offences; although, it might be also said to be an unremarkable history in the context of offenders who come before the Childrens Court. His first offences were committed on 30 March 2010 when he was 13 years. These offences were dealt with by the Childrens Court on 15 April 2012. On that occasion, he was reprimanded on one count each of possessing a dangerous drug, wilful damage, and wilfully destroying an alarm or apparatus. No conviction was recorded. This has been the case with all his subsequent Court appearances, until the one which is the subject of this review.

On 20 January 2011, he was given the benefit of a six‑month good behaviour bond by the Childrens Court for two offences of unlawful use of a motor vehicle, including in one case for the purpose of committing an indictable offence; one count each of unlawful entry of a vehicle for committing an indictable offence and unlawful possession of stolen property; and two minor drug offences. These offences were committed between August and October 2010.

His next Childrens Court appearance was on 16 May 2011 for offences committed in April and May of that year after he had turned 14 years. These offences, which were all committed in breach of the good behaviour bond, were two counts of wilful damage, and one count each of enter premises and commit an indictable offence, stealing from the person, stealing, and a minor drug offence. On some charges, he was placed on six months' probation. On others, he was given a three‑month good behaviour bond. He was also referred to Drug Diversion.

On 10 August 2011, he was placed on 12 months' probation and required to perform 100 hours' community service for offences committed shortly after his previous Court appearances between 22 May 2011 and 6 June 2011. These offences were three counts of enter premises with intent to commit an indictable offence, and two counts of enter premises and commit an indictable offence. These were all committed in breach of the six‑month probation order and both good behaviour bonds.

The offence committed on 2 October 2011 was in breach of both probation orders, only seven weeks after the 12‑month probation order was made. It was also in breach of the community service order. The balance of the offences were committed in breach of the 12‑month probation order and the community service order. They were also committed in breach of bail.

Notwithstanding this, the representative of the Department of Communities, who appeared before the Southport Childrens Court on 22 February 2012, said that the applicant had been compliant with the orders until 23 December 2011, at which point he had essentially disappeared until his arrest. She advised that no breach action had been initiated, but he was getting very close to that stage.

The applicant's legal representative submitted the background to his offending was an unsettled childhood, with his parents separating when he was four and a‑half years of age. He had been living with his father from May 2011 and had been on the right track. This must be a reference to the period between 6 June 2011 and 2 October 2011, a period of four months, during which he committed no offences.

It was said that he then had a period at his mother's place, where he was basically unsupervised and left to his own devices. As a result, he ran amuck and connected with people who were a negative influence on him. She said that his trouble started with this lack of supervision. It was said he still had issues with drugs which needed to be addressed.

His Honour was also told that the applicant had been doing some grade 10, in detention, and was keen to continue with his studies. His aim was to become a scaffolder. Reliance was placed on his early plea of guilty, remorse and full cooperation. It was submitted that the applicant did want to change, and detention had been a wake‑up call.

The presentence report, which his Honour had regard to, assessed the factors as having contributed towards the offences, the subject of this review, as follows: "It is assessed that a range of complex factors contributed to MED's engagement in offending behaviour. It is apparent that MED's early defiance towards authority, and parental difficulty in controlling behaviour, manifested into antisocial attitudes in early adolescence, and the expression of offending behaviour.

It is also evident that, as a result of this defiance, MED was able to spend a significant period unsupervised, disconnected from his family, not meeting educational activities, and subsequently engaged with negative peers. This resulted in further development of disregard for authority and antisocial attitudes. Further, MED was under the influence of illicit substances at the time of the offences, which has appeared to impair his decision-making. It also appears that MED was motivated to gain money through illegal means to buy material possessions and further illicit substance."

The report states that the applicant's offending escalated during the school holidays in December 2011 to January 2012, at which time he was not residing at his father's residence, and had finished his attendance at a schooling program for the year.

In the beginning of January, MED resided with his mother in Brisbane, briefly, before absconding from her address.He subsequently reconnected with his previous negative peer network, and was disengaged from education and employment. These individuals were also allegedly engaged in substance misuse and antisocial behaviour. It is said that it is apparent that the applicant's engagement in antisocial behaviour is influenced by the peer group he engaged with, and not a forced action.

The presentence report also observes that during the remand period, the applicant had abstained from marijuana use, and engaged with a drug counselling service within the detention centre.

In canvassing the available sentencing options, the author referred to a conditional release order and attached an appropriate program. This had been explained to the applicant who had expressed a willingness to comply.

I note that it is mentioned that, on release, the applicant is able to reside with his father, and is willing to accept his support.

In sentencing the applicant, his Honour recognised that one of the main principles he had to take into account was the question of what was in the applicant's best interest, and also his rehabilitation.

However, he also observed that he had to keep in mind the protection of members of the Queensland community, who were entitled to have their property protected from theft and interference by people like the applicant. His Honour said that the applicant had appeared to have gone on a rampage, which had put a lot of people to a lot of trouble, distress and concern. He commented that this behaviour was made more serious by the applicant's breach of a probation order, giving him another opportunity and, as such, his offending involved a breach of trust.

His Honour recognised that the applicant had made some progress in detention, in that he was off drugs and was undertaking courses. However, he was concerned that if the applicant was released forthwith, the supervision that could be offered would not be adequate.

His Honour put it this way: "But it all comes back to my concerns about what if I released you immediately, what would happen? Would you simply go about your previous activities with renewed enthusiasm?"

His Honour made particular reference to the number and seriousness of the offences, and concluded: "At the end of the day, it seems to me that whilst you have served a period of some 48 days in detention, a further period is required to bring home to you the seriousness of the offence. The fact that you must understand, you cannot go around interfering with other people's property and, more importantly, when a Court places you on probation, it does so, it reposes in you a trust that you're going to do the right thing, and that has been severely abused by you on this occasion."

In an affidavit sworn on 16 May 2012, Ms Smith, who represents the applicant before me, deposes to some additional circumstances, which I am entitled to take into account, because under section 122(1) of the Youth Justice Act, this review is by way of rehearing on the merits. These are that, positively, for the applicant, he has completed about 11 further hours of his community service order, and now has 19 hours remaining. In addition, there has been no notification of any further offending by him in the period of approximately seven weeks since being released on bail.

More negatively, he has failed to comply with his conditional bail program by not participating in programs as directed on nine occasions. As a result, the Queensland Police Service has been requested to take action in relation to this. On a more positive note, he was completing a Certificate in Hospitality through the program component of the conditional bail program.

It is submitted on the applicant's behalf that a sentence of two to three months' detention, to be served by way of a conditional release order, is appropriate in all the circumstances. Reliance is placed on his age at the time of offending and sentence which, under section 150(2)(a) of the Act, is a special consideration in sentencing, and is a mitigating factor in determining the nature of the penalty to be imposed; his early guilty pleas, his cooperation with the police, and making admissions to his offending; and it appears that for eight of the offences there was no evidence against him, aside from his admissions.

It is submitted that his offending seems to have escalated after he ran away from home during the December 2011 school holidays, during which time he used drugs and committed the offences in the company of other antisocial peers.

Emphasis is put on the period of approximately four months when he was not offending and, to that extent, complying with both of his probation orders, and his completion of 70 hours of community service. Further, I am reminded that he has completed an 11 additional hours of this, and is completing the Hospitality Certificate.

Reference is also made to his attending an alterative school program prior to his offending. This was mentioned in the presentence report.

It is submitted that, despite being in breach of the Court orders, he is not without prospects of rehabilitation. I am reminded of the 52 days he has spent in detention until the order was stayed.

Against this background, I am referred to the sentencing considerations that the Court must have regard to on a sentence, that, under section 150(2)(e), a detention order should be imposed only as a last resort, and for the shortest appropriate period.

In all the circumstances, it is submitted that a sentence of actual detention was not the only order available to the learned sentencing Magistrate, nor was a period of six months the shortest appropriate period. It is submitted that a shorter period of detention to be served by way of a conditional release order would have been more appropriate.

It has been held that section 183(1) of the Youth Justice Act proceeds from the primary position that a conviction is not to be recorded against a child: R v. B [1995] QCA 231.

More recently, in R v. TX [2011] QCA 068, the Court of Appeal noted that it was now well-established that the primary position under sections 183 and 184 is that a conviction is not to be recorded against a child. Section 184 lists non‑exclusive factors that must be had regard to in considering whether or not to record a conviction. These are the nature of the offence, the child's age, and any previous convictions, and the impact of recording a conviction on the child's chances of rehabilitation, generally, or finding or retaining employment. In TX, the Court at [36] recognised that even in the case of young adults, uncertainties about the future have been noted in this context.

While it is accepted, on behalf of the applicant, that his offending was persistent, it is submitted that the offences, subject to the sentence, were not serious enough to warrant the recording of convictions, particularly in the case of a child who was 14 and 15 years old at the time of the offending.

Reference is made to the decision of Robinson DCJ as President of the Childrens Court of Queensland In the matter of DRH, In the matter of BES, and In the matter of TKL, in which with respect to the exercise of the discretion to record or not to record a conviction at 105: his Honour held: "If the issue is not the subject of submissions, and the Magistrate records a conviction without providing counsel an opportunity to make submissions, the appeal or reviewing Court will proceed on the basis that the discretion was not exercised and will interfere with the sentence.” It is submitted that it is apparent, from the transcript of proceedings, that submissions were not made by defence counsel on the recording of convictions, nor were any reasons for recording convictions given by the learned Magistrate in his decision. It is, therefore, submitted that the discretion in relation to recording convictions was not properly exercised.

As I have observed, there is no reference to recording a conviction in his Honour's sentencing remarks. It first appears in the Verdict and Judgment Record. In these circumstances, Ms Francis, counsel for the respondent, correctly and fairly concedes that the discretion in relation to recording convictions was not properly exercised.

In conclusion, it is submitted for the applicant that the detriment of recording convictions against him is significant. and outweighs the public interest in having convictions recorded.

The respondent submits that this review should be considered against the background of the applicant having a significant criminal history for someone of his age, showing a propensity to commit property and dishonesty offences. The point is made that since the age of 13 years, his offending has been constant and persistent, with new offences committed often in short succession.

Emphasis is placed on the commission of the current offences in breach of Court orders. It is said that this demonstrates that, despite being afforded several opportunities at rehabilitative sentencing options, he has not been deterred from continuing to commit criminal offences. It is submitted that the continued reoffending, and propensity to commit property and dishonesty offences, while under supervisory Court orders, is an aggravating feature of the applicant's offending.

It is submitted that the sentencing Magistrate, clearly, took into account the applicant's rehabilitation, the time spent in detention, and that a sentence that best achieves the applicant's best interests was a main principle in exercising his sentencing discretion.

Further, it is submitted that the Magistrate had serious concerns about the applicant's ability to comply with Court orders and, it seems, placed emphasis on the applicant's need for strict supervision and a deterrent sentence. These principles of deterrence and supervision, as well as rehabilitation, are important sentencing principles in the respondent's submission.

It is submitted that the applicant's offending is escalating from entering premises to entering homes at night, whilst residents are at home, in order to steal property.

In these circumstances, it is argued his Honour appropriately took into account the community's denunciation of such offending and the need to protect members of the community.

It is submitted that his Honour had regard to the other sentencing options available as required by section 208 of the Act and decided that a further period of detention was the only appropriate sentence.

Whilst it is conceded that detention was not the only order available to the Magistrate and the applicant had not previously had a conditional release order, such orders can only be imposed for up to three months and it is argued the Magistrate's decision was sound in arriving at the conclusion that a longer period of supervision was required.

It is noted that whilst on bail pending the sentence review, the applicant has failed to fully comply with the program, with the first failure being only eight days after being granted bail. Therefore, it is submitted that imposition of the detention order was an appropriate exercise of the sentencing discretion.

It is also submitted that given the applicant's criminal history and failure to heed past opportunities not to have any convictions recorded, convictions should have been recorded on this occasion.

In sentencing the applicant, his Honour did not specifically refer to his early guilty pleas, remorse and his cooperation with the administration of justice. However, his Honour is an experienced Magistrate and can be taken to have considered these factors when saying at the outset of his decision there were a number of matters he was obliged to take into account in determining what he was going to do, particularly when he said he had listened to the submissions made on the earlier occasion. These submissions include reference to the applicant's early plea of guilty, remorse and cooperation.

However, the fact that no reference was made to there being no evidence against the applicant for a number of the offences to which he made admissions is another matter. This is the case with at least seven of the offences of unlawful use of a motor vehicle and possibly also with the count of entering a dwelling and committing an indictable offence on 26 January 2012.

In relation to six of the offences of unlawful use of a motor vehicle he told the police he had been a passenger in a vehicle driven by others, particularly in the car in which he said he was a passenger on four occasions. Because these charges could not have been brought without the applicant's admissions he was entitled to leniency in according with the principle AB v. The Queen [1999] 198 CLR 111. In the absence of specific reference to this I conclude that this principle was not applied in the present case.

While his Honour was entitled to take into account the persistence of the offending, the fact that it was committed in breach of supervisory orders, the need for specific and general deterrence, community protection, denunciation and adequate punishment of the applicant, in my view, he did not place sufficient weight on the applicant's rehabilitation.

Although his Honour properly mentioned the necessity for him to take into account the question of what was in the applicant's best interests and rehabilitation, in my view, the tenor of his sentencing remarks suggests he gave the countervailing factors disproportionate weight. For example, he described the applicant as seeming to have gone on a rampage.

To describe his conduct in this way was putting it too high, especially when in six of the 13 offences he was a passenger in the motor vehicle which was being unlawfully used and on four of these charges he was the passenger in the same car on four separate occasions.

I have the benefit of being able to reflect with the assistance of written submissions on all the circumstances affecting the exercise of the sentencing discretion. This is a benefit not available to the sentencing Magistrate. I also have the benefit of being able to take into account additional evidence which was not before his Honour.

Taking advantage of this position, I consider his Honour was in error in sentencing the applicant on the basis that while he had served 48 days' detention, this was not sufficient to bring home the seriousness of his offending so as to provide personal deterrence. This did not give sufficient weight to the fact this was the applicant's first time in detention and it had the effect of what his legal representative told the Magistrate was a wake-up call for him. He has now been in detention for 52 days or approximately seven and a-half weeks.

I also consider his Honour was in error in sentencing the applicant on the basis a further period of detention was required because if he was released forthwith the supervision that could be afforded would not be adequate in his case. His Honour appears to be saying that an immediate suspension of the sentence of detention in accordance with a conditional release order which could be for three months, would not be adequate supervision.

However, this failed to recognise that the sentence actually imposed six month's detention with release after serving 50 percent on a supervised release order would also only permit supervision for three months. The fact is that a conditional release order involves an intensive, structured program and in the event of non-compliance the Court may revoke it and order that the applicant be detained for the balance of the custodial term of the original detention order.

The pre-sentence report advised about and attached an appropriate conditional release order implying that the applicant was suitable for release from detention under it by advancing it as a sentencing option in this case. The pre-sentence report also stated the applicant was willing to comply with such an order.

Accordingly, the express requirements of sections 222 and 223 of the Act as a prerequisite for making an order of this kind were satisfied. As stated in the report, such an order with its reintegrative, rehabilitative and educational components would draw attention to the applicant about the seriousness of his offending whilst providing him with the opportunity to participate in an intensive program, focusing on life skills development, education, training and personal development.

As is stated, this order also carries a tangible penalty for non-compliance. Through such an order intensive departmental intervention of up to a maximum of 32 hours a week can be provided. As such, an immediate release on such an order would satisfy the concern about bringing home the seriousness of the offences to the applicant’s attention and also the adequacy of supervision of him if released forthwith.

This is particularly so where the applicant had never previously been sentenced to an actual period of detention and had not previously had the benefit of a conditional release order. The respondent concedes that this sentencing option was open to the Magistrate. In fact, the Magistrate appears to have recognised this when he said on 22 February 2012 in ordering the presentence report that he did so preparatory to a conditional release order. His Honour can hardly have been speaking only of a supervised release order at a time when he was required to keep an open mind about the exercise of his sentencing discretion. This may also explain his Honour's reference to a conditional release order immediately upon setting the applicant's release date at the conclusion of his sentencing remarks.

It is accepted that the applicant had forfeited the opportunity of release on further community based supervisory orders so that no other sentence than detention was appropriate. In R v. C and M [2000] 1 Qd R 636 it was held that a conditional release order was a detention order.

However, as a detention order under section 150(2)(e) of the Act should only be imposed as the last resort and for the shortest appropriate period, I agree with the submission on behalf of the applicant that a period of actual detention was not the only appropriate order available to his Honour as opposed to a conditional release order with immediate release to participate in a conditional release program.

I also agree with the submission that the sentence of six months' detention was not for the shortest appropriate period, given his age at the time of offending and sentence, his early plea of guilty, his remorse and the significance of his cooperation with the authorities.

This also follows from the new evidence, which was not available to his Honour, that, despite the negative circumstance of his failure to fully comply with the conditional bail program, he had completed a further 11 hours of his community service order, his completing an hospitality certificate and there has been no notification of further offending since his release on bail about seven weeks ago.

When these factors are considered together with the earlier period of four months that he stayed out of trouble before he commenced the present offending in circumstances where his offending escalated after he went to live with his mother, ran away from home during the 2011 Christmas school holidays and commenced using drugs in the company of antisocial peers in whose company he committed the offences, I accept that, despite his breach of Court orders, he is not without prospects of rehabilitation.

Further, although the offending is serious, particularly

the counts of entering the dwellings of people at night time to steal while residents were at home, this, as I have

previously observed, this is an unremarkable history for the Childrens Court.

Prior to this offending he had been convicted of only two offences of unlawful use of a motor vehicle. He had been convicted of seven offences of entering vehicles or premises with intent to commit or actually committing an indictable offence. He had been convicted of two counts involving stealing. Besides the minor drug offences he had been convicted of three wilful damage offences. There was also a conviction of trespass in a yard.

While the present offending added the counts of entering dwellings and committing indictable offences, one count of attempting to enter a premises for this purpose and one count of receiving tainted property, as I have said, six of the unlawful use charges involved his being a passenger including, on four separate occasions, in the same car, I do not consider that such a history leaves a 15-year-old without prospects of rehabilitation when he has been detained for the first time for as long as seven and a-half weeks for this offending with the opportunity to reflect on the consequences of his offending and his removal from drug-taking and where upon release he will be subjected to an intensive three-month conditional release program and at this stage to a concurrent

probation order until 9 August 2012. He is also able to reside with his father and is willing to accept his father's support.

For these reasons, reviewing the sentence by way of a re-hearing on the merits, I would discharge the order and substitute in its place, pursuant to section 123(1)(c) of the Youth Justice Act, an order that the applicant be detained for a period of three months and this order for detention be immediately suspended and make a conditional release order that he be immediately released from detention, subject to the terms set out in section 221 of the Youth Justice Act 1992 (Qld) for a period of three months.

I will identify the terms of that order at the conclusion of my decision.

I therefore turn to the question of whether or not a conviction should be recorded against the applicant. I agree with the decision of Robertson DCJ. In the matter of DRH, In the matter of BES and In the matter of TKL, that if a conviction is recorded without counsel being provided with an opportunity to make submissions, the reviewing Court will proceed on the basis that the discretion was not properly exercised and will interfere with the sentence.

For the reasons I have given, this opportunity was not provided in the present case and, in fact, his Honour did not express the recording of a conviction as part of his sentencing decision or order.

As I have observed, it is conceded on behalf of the respondent that in recording convictions in these circumstances his Honour did not properly exercise his sentencing discretion.

As such, under section 184 of the Youth Justice Act, it falls for me to exercise this discretion. Having regard to the applicant's age and the fact that he is not without prospects of rehabilitation, I exercise this discretion not to record a conviction in each case. While I have taken into account and do not underestimate the seriousness of his criminal history, on the foregoing analysis it is an unremarkable Childrens Court history, including for persons in whose favour the discretion is exercised not to record a conviction. It is notable that he has not been convicted of an offence of violence.

Therefore, although persistent, I do not consider the offences in this case to be so serious to, in the context of his criminal history, as to justify recording a conviction.

As Thomas JA observed in R v. L [2008] QCA 448:

"There are different considerations that apply in deciding whether to record a conviction of a juvenile offender than those in the case of adult offenders. A higher priority is, I think, placed on the rehabilitation of juveniles and in general the Court's response in that area is to be slow to record a conviction unless good reason is seen for doing so."

Further, as Mackenzie J said in R v. CAY and Others [2005] QCA 467 with reference to the issue of the degree of confidence needed to be demonstrated of the impact on the offender's life

by recording a conviction:

"In cases involving young offenders there is often uncertainty about their future direction in life. Perhaps because of this the concept may in practice often be less rigidly applied than in the case of a person whose lifestyle and probable employment opportunities are more predictable."

In all the circumstances, I agree with the applicant's submission that the detriment of recording convictions against him outweighs the public interest in having convictions recorded on this occasion. However, the applicant must understand that he is unlikely to have the discretion exercised in this way if he comes back before the Court as a child in future, particularly for like offences.

Accordingly, the order of the Court is:

1. Application for sentence review granted.

2. Order of Childrens Court discharged.

3. It is ordered that the applicant be detained for a period of three months. It is further ordered that this order for detention be immediately suspended on the making of a conditional release order that the applicant be immediately released from detention. This conditional release order shall contain the following requirements:

1. (a)
   That the applicant participate as directed by the Chief Executive in a program which is attached to and marked "D" to the presentence report dated 19 March 2012 for a period of three months.

2. (b)
   That during the period of the order the applicant:

1. (i)
   abstain from violation of the law;

2. (ii)
   comply with every reasonable direction of the Chief Executive;

3. (iii)
   report and receive visits as directed by the Chief Executive;

4. (iv)
   notify the Chief Executive within two business days of any change of address, employment or school;

5. (v)
   not leave or stay out of Queensland without the prior approval of the Chief Executive.

4. No convictions are recorded.