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SRI v Commissioner of Police[2016] QCHC 10

SRI v Commissioner of Police[2016] QCHC 10

CHILDRENS COURT OF QUEENSLAND

CITATION:

SRI v Commissioner of Police [2016] QChC 10

PARTIES:

SRI

v

Commissioner of Police

FILE NO/S:

CCQ No. 749 of 2016

DIVISION:

Childrens Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Children’s Court at Yarrabah

DELIVERED ON:

22 August 2016 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2016

JUDGE:

Shanahan JDC

COUNSEL:

D Law for the Appellant

S Farnsworth for the Respondent

SOLICITORS:

Legal Aid Queensland for the Appellant

Office of the Director of the Public Prosecutions for the Respondent instructed by the Commissioner of Police

  1. [1]
    THE PRESIDENT: This is an appeal against sentence, which was imposed in the Yarrabah Childrens Court on the 27th of January 2016.  Pleas had been previously entered in that Court and a pre-sentence report was ordered.  I’ve read the transcript of the sentence proceedings and the sentencing Magistrate’s remarks and the pre-sentence report.
  1. [2]
    The appellant pleaded guilty to a number of dishonesty offences, which had occurred between the 25th of October 2015 and the 25th of December 2015.  There were four offences of entering premises and committing an indictable offence, two counts of wilful damage, one count of wilful damage by graffiti, and two offences of breaking and entering premises and committing indictable offences.  He’d entered early pleas in relation to them.  The description of the offences indicated offences committed around the Yarrabah area, particularly offences involving numerous incidents of graffiti.  He was also on probation and a conditional release order at the time and he was resentenced for those offences which the new offences breached.
  1. [3]
    In total, he was sentenced to five months’ detention, together with 12 months’ probation and convictions were recorded. There was also a graffiti removal order made in relation to that wilful damage offence. It is the recording of the convictions which is the subject of this appeal.
  1. [4]
    This appeal is pursuant to section 222 of the Justices Act. Such an appeal is by way of rehearing on the record with appropriate deference given to the views of the Magistrate. The argument here is the Magistrate did not invite submissions in relation to the recording of convictions and, indeed, no submissions were made one way or the other. It is also argued that the learned sentencing Magistrate did not give any reasons at all for the recording of the conviction and, by that, it could be seen that she did not take into account the issues needed to be considered under section 184 of the Youth Justice Act.
  1. [5]
    The respondent concedes that errors have been made on the sentence and that the discretion needs to be exercised anew. Section 184 of the Youth Justice Act states that consideration of whether or not to record a conviction, there are a number of matters to be taken into account. It reads:

In considering whether or not to record a conviction, a court must have regard to all the circumstances of the case, including:

(a) the nature of the offence;  and

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

(c) the impact the recording of a conviction … on the child’s chances of rehabilitation generally;  or finding or retaining employment.

  1. [6]
    The child was 14 years of age and had already a history before the Courts; that history commenced on the 29th of May 2013 and subsequent appearances before the Court.  There were a large number of property-related offences in the child’s history.  He had been subject to various forms of orders in the past including probation and conditional-release orders.  As I’ve already noted, the new offences actually breached some of those orders.  The child was 14 years of age at the time, and the age of the child is one of the factors specifically to be taken into account.
  1. [7]
    The offences were serious in the light of the child’s history and the breach of the orders that they constituted, however, the penalty that was imposed, of some five months’ detention and 12 months’ probation were sufficient, in my view, to provide both specific and general deterrence. The recording of the conviction is a separate consideration pursuant to the provisions of section 183 and 184 of the Youth Justice Act.
  1. [8]
    Considering his history and what the appeal Courts have said about the prima facie position in relation to the juveniles, that convictions should not be recorded unless the circumstances warranted it, it’s my view that the discretion can be exercised here in not recording convictions. I am of that view, because the child was 14 years of age. He had also entered early pleas of guilty and, as the Courts have noted, there is some uncertainty as to the future direction in the life of a juvenile that militates against the recording of a conviction. The sentence imposed on him was a significant one and should operate to dissuade him from further offending, although his history in that regard gives little cause for optimism.
  1. [9]
    I particularly take into account the contents of the pre-sentence report which indicates the unfortunate background of this particular child. In those circumstances, I am of the view that the discretion should be exercised to not to record a conviction. The appeal is allowed and I set aside the recordings of convictions.
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Editorial Notes

  • Published Case Name:

    SRI v Commissioner of Police

  • Shortened Case Name:

    SRI v Commissioner of Police

  • MNC:

    [2016] QCHC 10

  • Court:

    QChC

  • Judge(s):

    Shanahan JDC

  • Date:

    22 Aug 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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