R v JM
[2013] QCHC 11
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.
- Unreported Judgment
- R v JM[2013] QCHC 11
- Add to List
R v JM[2013] QCHC 11
R v JM[2013] QCHC 11
CHILDRENS COURT OF QUEENSLAND
CITATION: | R v JM [2013] QChC 11 |
PARTIES: | R (respondent) v JM (applicant) |
FILE NO/S: | No 38 of 2013 |
PROCEEDING: | Application for Sentence Review |
ORIGINATING COURT: | Childrens Court, Brisbane |
DELIVERED ON: | 6 May 2013 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 6 May 2013 |
JUDGE: | Rafter SC DCJ |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – SENTENCE – SENTENCING JUVENILES – SENTENCE REVIEW – where the applicant pleaded guilty to assault occasioning bodily harm in company – where the applicant’s sentence review pursuant to s 118 Youth Justice Act 1992 challenges the order recording a conviction – where the applicant was 16 years old when sentenced – where the applicant has a minor criminal history involving a property offence – where the applicant has not previously had a conviction recorded against him – whether a conviction should not be recorded. Youth Justice Act 1992 (Qld), ss 118, 122(1), 183 and 184 |
SOLICITORS: | R. Smith of Legal Aid Queensland for the applicant. B. Jackson of the Director of Public Prosecutions (Queensland) for the respondent. |
- [1]HIS HONOUR: This is an application for sentence review pursuant to section 118 of the Youth Justice Act 1992. The review is to be by way of rehearing on the merits.
- [2]The applicant is 16 years old. He was 15 when he committed the offence. He was 16 when sentenced in the Childrens Court at Brisbane on 28 February 2013. He had one prior offence on his record. He was sentenced in the Brisbane Childrens Court on the 23 August 2012 for wilful damage by graffiti. He was reprimanded and a conviction was not recorded.
- [3]The facts in relation to the offence of assault occasioning bodily harm in company, which is the subject of the review application, are as follows. On 7 September 2012 the complainant was speaking to a person he believed was a female, on Facebook. He arranged to meet her for dinner. The female didn’t attend the dinner. When the complainant was walking home, he received a message, on Facebook, asking him to meet the person at the Banyo railway station or park.
- [4]The complainant went to that location. When he walked into the car park at the Banyo railway station, he was confronted by a male person who approached him and pretended to punch him. Another male approached and punched the complainant in the side of the head, causing him to fall to the ground. The complainant then saw other people coming towards him. He was punched and kicked. His chest was stomped on. He became unconscious. He screamed for help. Eventually he was assisted by two passers-by, and was taken to hospital and received treatment for injuries including bruising, abrasions, scratches to the body, face and head.
- [5]Police inquiries revealed that a co offender had created a false Facebook account in order to lure the complainant to the location where he was assaulted. The applicant took part in a police interview. He said he had been drinking alcohol and could not remember what had happened.
- [6]The Childrens Court Magistrate placed the applicant on a 12 month probation order and recorded a conviction. This application for sentence review concerns the recording of the conviction. The Magistrate, rightly, took a serious view of the offence. The Magistrate described the offence as involving “a high level of violence, in public, at night against a defenceless person who was lured to a spot under false pretences, beaten and kicked into unconsciousness.” The applicant played a lesser role in the offence than the adult co offenders.
- [7]In determining that a conviction should be recorded, the Magistrate placed considerable weight upon the serious nature of the offence. The recording of a conviction against a juvenile offender, is governed by sections 183 and 184 of the Youth Justice Act 1992. In considering whether or not to record a conviction, the Court was required to have regard to all circumstances of the case, including: the nature of the offence, the child’s age and any prior convictions, and the impact of recording a conviction on the child’s chances of rehabilitation or chances of finding or retaining employment.
- [8]The Childrens Court Magistrate was not referred to any decisions of the Court of Appeal in relation to the recording of convictions against juveniles.
- [9]The starting point is, of course, that a conviction should not be recorded against a child. The decisions of the Court of Appeal in R v JO [2008] QCA 260, R v SBR [2010] QCA 94, and R v TX [2011] QCA 68 at paragraph 33, show that the prima facie, or primary position, is that a conviction should not be recorded against a child. As I have mentioned, the Magistrate was not referred to any of those decisions. I am inclined to think that if the Magistrate had been taken to those decisions, it is unlikely that a conviction would have been recorded. In any event, on this application for review, it is not necessary for the applicant to demonstrate any error in the exercise of the Magistrate’s sentencing discretion. It is clear from the terms of section 184 of the Youth Justice Act 1992 and the decisions to which I have referred, that the proper exercise of discretion would have involved an order that a conviction not be recorded.
- [10]Accordingly, I will make the following orders.
- Set aside the order of the Childrens Court at Brisbane on 28 February 2013, whereby a conviction was recorded; and
- Instead order that a conviction not be recorded.