J v Commissioner of Police[2015] QCHC 1

CHILDRENS COURT OF QUEENSLAND

Introduction

2. [2]
   On 3 November 2014 the appellant filed a Notice of Appeal in respect of orders made, on 9 October 2014, in the Childrens Court at Gympie and upon his conviction of the following offences:

• 7 x  enter premises and commit an indictable offence;
• 2 x  attempted entry of premises and commit indictable offence;
• 1 x  enter premises and commit indictable offence by break; and
• 1 x  enter a dwelling and commit an indictable offence.

3. [3]
   He had entered guilty pleas to those offences on 14 August 2014 and those pleas were confirmed on 9 October 2014. The appellant’s date of birth is 2 February 1998 and therefore he is now aged 17 and was 16 years and eight months when dealt with by the Childrens Court Magistrate, on 9 October 2014.

4. [4]
   He was 16 years and three months when he offended, on 6 and 7 May 2014. On the earlier date, he committed the offence of enter premises and commit an indictable offence when, at about 10.00pm, he and a co-offender entered an unlocked sliding door of premises at Gympie and two Toshiba laptops were stolen from inside the premises. Those laptops were later located at the appellant’s residential address. All of the remaining offences occurred on 7 May 2014 and except in one instance, involved the entry of unsecured motor vehicles or the attempted entry of vehicles, in order to take coins and in one instance, an iPod and connecting cord, from those vehicles. There were nine such vehicles involved and apart from two of them, the others involved an obvious sequence of events that occurred in Nashville Lane at Gympie. In respect of the other vehicles, one was entered in a yard at Stanley Street Gympie and the iPod and connecting cord taken and the other, an attempt to enter a vehicle in Stanley Lane Gympie, where the appellant was disturbed by a witness. The remaining offence on 7 May 2014 is the burglary and commit indictable offence, relating to the entry of an external laundry from which an old subwoofer was stolen.

5. [5]
   Although and as has been noted, the appellant was found in possession of the stolen laptops and it seems that the coins which he had stolen from vehicles were also recovered, the prosecution case was substantially based upon the admissions he had made to police, particularly in relation to the offences he had committed on 7 May 2014.

6. [6]
   Although the explanation for this offending, as submitted by the appellant’s solicitor, was his scavenging money for food and which began on the day he had moved from his residence to live with the persons who appeared with him before the Childrens Court Magistrate (who were described as his guardians),^[1] the pre-sentence report identified past use of marijuana, as an underlying cause of the appellant’s offending and the denial by his step-mother, of funds to enable him to obtain a drivers learners permit, as specific motivation for these offences. That report also identifies some dysfunction in the appellant’s home environment and the move to residing with the “guardians”, as having being related to the conditions of his release on bail for these offences. Irrespective of this, it was common ground in the materials and submissions before the Childrens Court Magistrate, that the appellant had, in the intervening five months or so, made very significant progress. This is referred to in more detail below.

7. [7]
   When he offended, the appellant had prior juvenile criminal history and was under the constraint of probation and community service orders, that had been imposed on 10 October 2013, 13 February 2014 and 10 April 2014. Those orders were made in respect of offences of similar description, committed in respect of dwellings and other premises and also offences of stealing and committed between August and December 2013. The appellant’s juvenile criminal history began with the commission of stealing offences, in March 2013, when he was 15 years old and he first came before the Childrens Court, on 9 May 2013 and he was then placed on a good behaviour bond for nine months.

8. [8]
   He had subsequent appearances in that Court. On 13 June 2013, after similar offences, in May and June 2013, he was ordered to perform community service. Then on 8 August 2013, again for similar offending which occurred from 14 June 2013 through to 31 July 2013, he was placed on probation for six months and ordered to perform further community service.

9. [9]
   Accordingly, it can be observed that apart from his first appearance, the offending dealt with on each subsequent appearance, had occurred in breach of prior court orders. He was first placed on probation on 8 August 2013, for a period of six months and the order made on 13 February 2014 was for 12 months.

10. [10]
    Therefore at the time he came before the Childrens Court Magistrate on 9 October 2014, he had about four months of that period to complete and it was specifically confirmed that, unlike the pattern disclosed in his criminal history from March 2013, he had not reoffended for about five months. Further, it can also be observed that prior to the offences committed in May 2014, he had also not reoffended after December 2013.

11. [11]
    Although such issues are properly considered and an overall sentence imposed in a combined rather than strictly separate approach under the Youth Justice Act 1992 (“YJA”), it is appropriate to note that the sentence imposed on the appellant actually involved the making of three orders.  The first, pursuant to s 176(1)(g)(i), was that the appellant be detained for a period of two months.  The second, was the conditional release order made pursuant to s 220 and s 221.  In the first instance this requires an immediate suspension of the detention order and the making of the conditional release order, requiring the child’s release from detention, with requirements of compliance with the conditions or requirements set out in s 221(1)(b) and any imposed by the Court under s 221(2) and the participation of the child in the conditional release programme as directed by the Chief Executive.  That can be required for a period of up to three months, as stipulated by the Court and here it was three months.^[2]  The third order was in requiring that convictions be recorded in respect of the appellant’s offences.

The appeal

12. [12]
    The Notice of Appeal contains only the following ground:

“That the learned Magistrate erred in recording convictions.”

13. [13]
    A determination as to whether or not to record a conviction, is (where it is necessary to consider that issue)^[3] part of the exercise of sentencing discretion.  Under the YJA, that aspect of the exercise of sentencing discretion is prescribed by s 183 and s 184(1), as follows:

“183  Recording of conviction

3. (1)
    Other than under this section, a conviction is not to be recorded against a child who is found guilty of an offence.

3. (2)
     If a court makes an order under section 175(1)(a) or (b), a conviction must not be recorded.

3. (3)
     If a court makes an order under section 175(1)(c) to (g) or 176 or 176A, the court may order that a conviction be recorded or decide that a conviction not be recorded.

184.  Considerations whether or not to record conviction

3. (1)
    In considering whether or not to record a conviction, a court must have regard to all the circumstances of the case, including –

1. (a)
    the nature of the offence; and

2. (b)
    the child’s age and any previous convictions; and

3. (c)
    the impact the recording of a conviction will have on the child’s chances of –

  (i) rehabilitation generally; or

  (ii) finding or retaining employment.”

14. [14]
    In practice, what is required is the exercise of a separate but related exercise of discretion, as an aspect of the overall exercise of sentencing discretion. In R v Briese; ex-parte Attorney General,^[4] it was observed:

“in our view the decision whether to record or not to record a conviction affects the offender and is part of the sentence”. 

Accordingly, an erroneous exercise of that aspect of the sentencing discretion, may be regarded as involving a manifestly excessive sentence, within the meaning of s 222(2)(c) of the Justices Act 1886 (“Justices Act”).^[5] Also, s 117 of the YJA now makes that clear, by adopting and applying the provisions of part 9, division 1 of the Justices Act to“an order made by justices dealing summarily with a child charged with an offence”; except that the appeal is made to a Childrens Court judge rather than a District Court judge.

15. [15]
    There is no complaint made in respect of the making of the first and second orders by the Childrens Court Magistrate. However, complaint is raised in respect of the inclusion of the first instance of recorded convictions in the appellant’s juvenile criminal history. In that regard, the appellant points not just to the fact that this issue was not canvassed or even mentioned during submissions made prior to the making of the first and second orders, but particularly points out that it then arose and was dealt with in the following remarkable way:^[6]

“UNIDENTIFED SPEAKER:  Your Honour, there’s just one other thing.  It’s a conviction?

BENCH:  Yeah ---.

UNIDENTIFIED SPEAKER:  Is the conviction recorded?

BENCH:  There is a conviction with detention, isn’t it?

UNIDENTIFIED SPEAKER:  Nothing that automatically flows.

BENCH:  Yep.

UNIDENTIFIED SPEAKER:  No.  Apparently not.  I thought so too, but the Department said not automatically; however, I would be seeking a conviction. 

BENCH:  Yeah.  Well, unfortunately it will follow him these days, but I think in view of the history that once you impose a detention, a conviction – but anyway, it’s not going to matter, is it, [J], because you’re never going to be back in Court for anyone to show you that history?

DEFENDANT:  Yeah.

BENCH:  So whether there’s a conviction there or not, for you, we’re not going to bring it back.  Because I really think you’re going to have a great future ahead.  All right.  Enjoy Adelaide.

DEFENDANT:  Yep.

BENCH:  All right.”

16. [16]
    Curiously, in that transcription, there is no formal order made to record any conviction. Neither does reference to the copies of the bench charge sheets that were before the Court as part of the record for this appeal, contain any such notation. However the record also included copies of a conditional release order and an amended conditional release order, each of which forms contain, after reference to the child having been found guilty of the specified offences, the following entry:

“The child is convicted.  The conviction is recorded.”^[7]

17. [17]
    Accordingly and despite the inadequacy of the records, this matter proceeded on the basis that the convictions were recorded in accordance with the apparent intention of the Childrens Court Magistrate.

18. [18]
    On the appeal, this court is required to conduct a review of the sentencing hearing and ultimately correct any error of the sentencing Magistrate, determined on the basis of that review and this court’s own conclusions.^[8] Because the review is to be conducted in respect of an exercise of sentencing discretion, the following principles, as extracted from House v R,^[9] apply:

“It must appear that some error has been made in exercising the discretion.  If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the material for doing so.”^[10]

19. [19]
    In the written submissions, the appellant contends that there was error in the sentencing proceedings in three respects:

1. Because “[f]ailure to seek submissions from the appellant’s lawyers in relation to the recording of a conviction meant that the sentencing process fell into error.”  In part, reference was made to the decision in R v T;^[11]
2. In that, the Childrens Court Magistrate “did not take into account the discretionary matters in s 184” and more particularly “did not have proper regard to the effect that a conviction would have on the applicant’s rehabilitation generally nor on finding or retaining employment;” and
3. In that, the Childrens Court Magistrate “was mistaken in regarding that the only impact to the applicant would be that the subject offences would be disclosed to an adult court should the appellant reoffend.”

Discussion

20. [20]
    The elaboration of the third contended error drew attention to recent statutory amendments which now allow a court that deals with an offender as an adult, to exercise a discretion as to whether aspects of the offender’s juvenile criminal history is admitted in such proceedings, even if a conviction has not been recorded.^[12]  However and as the respondent contended and the appellant accepted, in oral submissions, there is ambiguity in the cryptic observation of the Childrens Court Magistrate that “unfortunately it will follow him these days”.  More importantly, it is out of the succeeding observations of the Childrens Court Magistrate that the main concerns arise. 

21. [21]
    As to the first contended error, the circumstances here are unlike those that arose in R v T, where the issue was in respect of the rejection, by the sentencing judge, of a submission made by defence counsel but “only at the end of his reasons, and so without affording the applicant or her counsel an opportunity to contradict that conclusion by evidence about the matter or otherwise”.  That may be seen as an application of a general principle of natural justice or procedural fairness, that requires that a party to proceedings be given a reasonable opportunity to be heard, by making relevant submissions or calling evidence.^[13]  As the relevant extract is expressed, that principle applies upon the basis of the provision of a fair or reasonable opportunity to be heard.  In this case, the appellant was legally represented before the Childrens Court Magistrate and his lawyer obviously had opportunity to address the issues that arose under s 183 and s 184 of the YJA, both before the interchange with the Childrens Court Magistrate and in respect of which the issue as to recording of convictions was flagged and also again, as it then arose. 

22. [22]
    Although the transcription of proceedings, available to this court, is deficient in the references to “unidentified speaker”, it is tolerably clear that the appellant’s legal representative did not seek to make submissions in respect of the issue of recording convictions, at any stage prior to the conclusion of the matter. It is clear that it was the prosecutor who initiated the inquiry which exposed the mistaken belief (on the part of both the Childrens Court Magistrate and the prosecutor, the latter acknowledging a correction by the departmental representative) that there was a discretion to be exercised and it is likely (when the interchange is examined in context) that it is the prosecutor who was identified as the “unidentified speaker” on each occasion, in the extract set out above.^[14]

23. [23]
    Accordingly, there is difficulty in concluding that there is any principle which may be stated in terms of error by “failure to seek submissions” on the part of the Childrens Court Magistrate, or in identifying any lack of fair or reasonable opportunity for the making of submissions as to the exercise of discretion in respect of recording convictions. However that is far from any commendation of the appropriateness of the way in which this matter was belatedly and tersely dealt with in the present case. Notwithstanding that judicial officers should be able to expect that practitioners appearing before them, will comply with their duty to assist the Court, by preparing for and identifying and addressing the issues that arise in matters in which they appear, the wisdom of actually seeking or inviting submissions from all parties, on any unaddressed issues and particularly where an issue arises in an unexpected or unanticipated way, is palpably apparent. Such practice is obviously a prudent one even and perhaps particularly, within the constraints and busy demands of a Childrens Court Magistrate. The adoption of such a practice here, may well have served to avoid the errors that have occurred.

24. [24]
    In the circumstances, it is not necessary to further examine the appellant’s first contention, as it is clear that the remaining contentions are established. It could be concluded that the Childrens Court Magistrate failed to exercise her discretion under s 183 and s 184 of the YJA, at all; but it is sufficient to conclude that she at least erred in any exercise of such discretion by failing to have regard to any impact beyond future reference in court proceedings and in particular, impact that the recording of convictions would have on the appellant’s chances of rehabilitation generally and/or of finding or retaining employment.^[15]

25. [25]
    Accordingly, this matter might either be returned for further consideration by the Childrens Court Magistrate, pursuant to s 225(2) of the Justices Act, or dealt with in this court pursuant to s 225(1) and (3).  As the relevant materials were before the Childrens Court Magistrate and are contained in the record for this appeal, it is appropriate for this court to deal with it.

Exercising the discretion

26. [26]
    There can be no doubt that the repetitive nature of the appellant’s offending and his prior criminal history and particularly his reoffending in breach of probation and community service orders, are factors which point, with some degree of force, towards the recording of convictions. However, these are not the only considerations.

27. [27]
    The appellant had entered early guilty pleas to these offences and had substantially cooperated with and assisted the police investigation of them. Whilst the offending was in breach of the prior community based orders, his compliance with those orders was noted to be satisfactory. No action had been taken by the Chief Executive to bring breach proceedings and neither did the Childrens Court Magistrate determine to act under s 242 and s 245 of the YJA, to deal with the appellant for the breaches of those orders.

28. [28]
    Rather, the Childrens Court Magistrate, appropriately, identified the need to impose a deterrent sentence by imposing the detention order on the appellant. However and particularly having regard to the importance of recognising and providing for the prospects of rehabilitation of this child, who was approaching a critical stage in his young life, when he would turn 17, the Childrens Court Magistrate, again appropriately, made the conditional release order, which then had the effect that for three of the approximately four months left to run under the appellant’s existing probation order, he would be subjected to the more intensive programme that is anticipated under such an order and as was set out in the pre-sentence report.

29. [29]
    There were very good reasons for taking that course of action, in that these offences had occurred in the context of the appellant’s prior criminal history but at the outset of a change of circumstances and where he had transitioned from a dysfunctional family environment to a more stable placement. He was receiving assistance from Centrelink and paying board, on a fortnightly basis. Further and as the pre-sentence report evidenced, he had, over the prior five months or so, made significant progress. In particular, positive steps had been taken in respect of engagement with educational opportunities, including enrolment in a diploma of youth work, with a view to a career path in such a vocation. He had made particular achievement in successfully completing an outward bound course and he had been linked with a mentor from the indigenous community and had been accepted to attend the Aboriginal Summer School for Excellence, Technology and Education program, in Adelaide in early 2015. He had also obtained his drivers learner permit.

30. [30]
    There was accordingly, significant indication of positive prospects for the appellant’s rehabilitation and as to his finding and retaining employment. Pursuant to s 184(1)(c) the Court is required to have regard to the impact that recording a conviction will have on a child’s chances in those specific respects.

31. [31]
    Clearly, the recording of convictions for these offences will have impact upon the appellant’s prospects of finding and retaining employment and also his rehabilitation generally. In R v Cay, Gersch and Schell; ex parte Attorney-General (Qld),^[16] it was observed that:

“[74] … The notion of impact on the offender’s chances of finding employment’ is another way of describing the impact of a conviction on the opportunity to find employment in the future or the potentiality of finding employment in the future.

[75] 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 that case, it was also observed that:^[17]

“[43] One complaint that is advanced by the appellant is that there was no specific identification of any employment option open to any of the respondents which might be hampered by the recording of a conviction. But the existence of a criminal record is, as a general rule, likely to impair a person's employment prospects, and the sound exercise of the discretion conferred by s 12 of the Act has never been said to require the identification of specific employment opportunities which will be lost to an offender if a conviction is recorded. While a specific employment opportunity or opportunities should usually be identified if the discretion is to be exercised in favour of an offender, it is not an essential requirement. Such a strict requirement would not, in my respectful opinion, sit well with the discretionary nature of the decision to be made under s 12, nor with the express reference in s 12(2)(c) to ‘the impact that recording a conviction will have on the offender's chances of finding employment’ (emphasis added). In this latter regard, s 12(2)(c) does not refer to the offender's prospects of obtaining employment with a particular employer or even in a particular field of endeavour.”

32. [32]
    The observations made in R v Cay, were made in respect of young adult offenders and the application of s 12(2)(c)(ii) of the Penalties and Sentences Act 1992. Because of the incorporation of a similar consideration in s 184(c)(ii) of the YJA, the observations are also pertinent to the situation of this appellant. However, s 184(c)(i) additionally requires regard to be had to the impact that recording a conviction will have on a child’s chances of rehabilitation generally. That appears to be in particular recognition of the emphasis that is placed on the achievement of rehabilitation of juvenile offenders, if possible, under the YJA.^[18]

33. [33]
    It has been recognised that the prima facie or primary position in accordance with s 183 of the YJA, is that convictions are not to be recorded against juvenile offenders.^[19] That of course is a starting position and is subject to the exercise of discretion having regard to the requirements of s 184 of the YJA.

34. [34]
    In all of the circumstances here and notwithstanding the weight to be given to the factors relating to the repetitive nature of the reoffending, in breach of earlier court orders, the weight that should be attributed to the prospects of the appellant’s rehabilitation and finding and retaining employment, whether as a youth worker or otherwise and therefore on the avoidance of adverse impact on these prospects, on balance, favours a decision not to record convictions.

35. [35]
    Although not raised before the Childrens Court magistrate, in the event of the favourable re-exercise of discretion in this court, it was contended for the appellant that the court should also made an order pursuant to s 299A of the YJA, to prohibit the publication of identifying information about him. In this respect and also by relatively recent legislative amendments,^[20] the position has changed from one where there was, previously, except in very limited circumstances, a complete prohibition on the publication of identifying information about a child who is being or has been dealt with under the YJA, to a situation where the primary position is that (except in respect of a “first-time offender”)^[21] there is no such restriction, in the absence of an order under s 299A.^[22]

36. [36]
    There is, therefore, a subtle distinction to the interpreted position under s 183 of the YJA in respect of the recording or not of convictions,^[23] in that s 299A(2) does not express any starting position for the exercise of discretion, but allows the court to exercise a discretion to “make an order it considers is in the interest of justice prohibiting the publication of identifying information about the child”. In respect of the exercise of that discretion, s 299A(4) provides that:

“(4)  In considering whether it would be in the interests of justice to make a publication prohibition order, the court must have regard to the following—

1. (a)
    the number of the child's previous findings of guilt;

2. (b)
    the seriousness of the offence;

3. (c)
    the period between the proceeding and any previous offence committed by the child;

4. (d)
    the need to protect the community;

5. (e)
    the effect of publication on—

1. (i)
    the safety of the child; or

2. (ii)
    the rehabilitation of the child; or

3. (iii)
    the safety or wellbeing of a person other than the child;

6. (f)
    any other relevant matter.”

37. [37]
    Having regard to a degree of general similarity between some of these considerations and those required to be considered under s 184(1), the competing submissions of the parties in respect of this issue were largely reflective of their submissions in respect of whether or not to record convictions.

38. [38]
    However, the considerations are not precisely the same:

1. (a)
   The position in respect of the number of previous findings of guilt, the seriousness of his offences and the period between the proceeding and any previous offence committed by the appellant, is reflected in what has already been set out above, in relation to dealing with the exercise of discretion as to whether or not to record convictions;

2. (b)
   There is no evidence which raises any consideration as to the effect of publication on the safety of the appellant or any other person; and

3. (c)
   Like the position resolved in respect of that issue, considerable weight should be given to the avoidance of the potentially adverse effect of publication on the rehabilitation of the appellant (in accordance with s 299A(4)(e)(ii) and the history of his rehabilitative progress is also particularly relevant to the consideration in ss (4)(c)). 

39. [39]
    That leaves for consideration the need to protect the community (ss (4)(d)). This appears to be directed at such protection in the sense of allowing publication and therefore knowledge in the community generally of the appellant’s offending. As was noted in R v Cunningham,^[24] earlier decisions^[25] had noted the “considerable ramifications of a public nature” involved in an exercise of discretion as to whether or not to record convictions and the following extract from R v L was noted:^[26]

“It was observed in that case that the non-recording of a conviction gives an offender the right to conceal the truth about what has happened in the criminal Courts and that there are various public groups that have an interest in knowing the truth, including potential employers, insurers, government departments and many others. But, of course, the factor of this public interest in having a conviction recorded arises less readily in the case of a juvenile than in the case of an adult offender. There is therefore a balancing exercise involved.”

40. [40]
    Similarly, there is a balancing exercise involved in respect of the application of s 299A(4) and “the relative weight to be ascribed to each of the enumerated factors will depend on the circumstances of each case”.^[27] Although the discretion to be exercised under s 299A is open, whether or not any conviction has been recorded in the proceeding, the fact of a decision to not record a conviction will be a relevant consideration, which might ordinarily be expected to attract considerable weight and particularly where, as here, such a determination is substantially premised on particular weight being given to the impact on an offender’s rehabilitation. It need not necessarily follow that a decision under s 299A will be in terms of a publication prohibition order, just as it does not necessarily follow that a decision to record a conviction would necessarily lead to a decision not to make such an order. It is apparent that it is for this reason that the expression of the mandatory considerations in s 299A(4), differs from the more general expressions in s 184(1), including, for example, by particularly focusing on the number of previous findings of guilt.

41. [41]
    In the circumstances of this case, I am persuaded that it would be in the interests of justice to make publication prohibition orders. Such orders may be and should be made by this court, in respect of both the proceeding in this court and the proceeding before the Childrens Court Magistrate.

42. [42]
    Although the appellant’s juvenile history and the progression of it in breach of court orders, up to early May 2014, carries substantial weight in a different direction, the interests of justice include not just the interests of the appellant but also of the community generally. The interests of the community, including the protection of the community, are well served by promoting the prospects of the appellant’s rehabilitation and avoiding any undermining of the effect of the decision of this court to particularly support the appellant’s prospects of rehabilitation, by not recording convictions for the appellant’s most recent offending and thereby providing particular support of those prospects, by allowing publication of identifying information in respect of him.^[28]  In any event, the interests of justice are best served by promoting the prospects of this appellant’s rehabilitation, towards him becoming a contributing member of the community by attaining and retaining employment and these prospects are best served by publication prohibition orders.

Conclusion

43. [43]
    Accordingly the appeal is allowed and the orders (pursuant to s 225(1) and (3) of the Justices Act 1886) are that:

1. The orders of the Childrens Court Magistrate made on 9 October 2014, are varied by deletion of any order to record convictions for the appellant’s offending and in lieu thereof, it is ordered that no conviction is recorded in respect of any of the appellant’s offences;
2. A publication prohibition order is made in respect of the proceeding before the Children s Court Magistrate, prohibiting the publication of identifying information about the appellant; and
3. A publication prohibition order is made in respect of the proceeding before this Court, prohibiting the publication of identifying information about the appellant.