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- Unreported Judgment
GHM v Commissioner of Police QCHC 11
CHILDRENS COURT OF QUEENSLAND
GHM v Commissioner of Police  QChC 11
Commissioner of Police
CCQ No. 750 of 2016
Children’s Court at Yarrabah
22 August 2016 (delivered ex tempore)
22 August 2016
L Barnes for the Appellant
C Ahern for the Respondent
Legal Aid Queensland for the Appellant
Office of the Director of the Public Prosecutions for the Respondent instructed by the Commissioner of Police
- THE PRESIDENT: These are appeals against the recorded convictions in relation to a number of offences on a sentence proceeding in the Yarrabah Childrens Court. On the 9th of December, apparently the child pleaded guilty or pleas were indicated to a number of offences and a pre-sentence report was ordered. The sentence actually occurred on the 27th of January 2016. At that date, formal pleas were in fact taken from the appellant in relation to a number of the charges. However, pleas were not taken in relation to two offences of burglary which were alleged to have occurred on the 19th of December 2015.
- The schedule of facts that was tendered during the course of sentence contained detail of those two offences and, indeed, the sentences that were imposed also related to those two offences, but the simple fact of the matter is the record does not indicate that pleas were in fact entered to those offences. The convictions and sentences in relation to those two sentences, at least, should be set aside and the matters remitted to the Yarrabah Childrens Court for appropriate resolution.
- There were, however, a number of other matters dealt with on that day. The child had pleaded guilty to a significant number of dishonesty offences including stealing offences, unlawful use of motor vehicle offences, attempted burglary, attempted entering of dwelling houses and committing offences and also other offences of burglary. There were a large number of offences committed over a significant period of time and over a large geographic area.
- As a result of continued offending, the child was remanded in custody and spent some time in detention. The sentence that was imposed ordered that he be detained for the time that he'd already served - some 105 days, together with being placed on 12 months' probation. Convictions were recorded in relation to each of those offences. It is the recording of convictions which is the subject of these appeals.
- The appeal is by way of section 222 of the Justices Act. Such an appeal is by way of rehearing on the record with appropriate recognition given to the views and findings of the Magistrate. As I say, the appeal here is against the recording of convictions.
- The facts of the offences are set out in the sentencing schedule which I have read, as well as a summary of them in the sentencing submissions. They are obviously a series of serious offences, particularly the burglary offences.
- The appellant was 16 years of age at the time of the sentence. In relation to some of the offences the appellant was subject to a good behaviour order together with a probation order in relation to some of them. He had a history before the courts dating back to 2012, although that matter had been referred for an indefinite referral for a Youth Justice conference. His first substantive appearance was on the 15th of May 2013 in relation to assault or obstruct police, wilful damage and also a break and enter offence. He was placed on probation and community service in relation to those matters.
- From that time there have been other appearances in the Yarrabah Childrens Court. On the 17th of July he was dealt with in relation to an entering premises and committing an indictable offence and reprimanded. On the 28th of May 2014 he was dealt with in relation to breaking and entering, possessions of dangerous drugs and also further placed on a community service order. On the 11th of March 2015 in relation to unlawful entry of vehicles and trespass, he was placed on a good behaviour bond, and on the 15th of July 2015 in relation to break and enter type offences he was placed on four months' probation. As I say, some of the subject offences here breach those orders.
- As I say, in effect, he was sentenced to 105 days' detention with a 12 month probation order. The learned Magistrate did not invite submissions about the recording of convictions or indeed receive any submissions at all in relation to that issue. She gave no reasons for the recording of the convictions and, in that regard, it is conceded that an error occurred. The principles of the Youth Justice Act, particularly in relation to section 183 and 184 indicate the matters to be taken into consideration by a sentencing court in the exercise of the discretion to record convictions or not are not referred to at all in the sentencing decision. It is thus clear that an error has occurred and the discretion needs to be re-exercised.
- The Crown has submitted here also that there is a difficulty with the probation component of the order in that the learned Magistrate did not explain the conditions of probation to the appellant and obtain his consent, particularly in relation to a specific condition that she imposed about a program that was available. Whilst it may have been preferable for the learned Magistrate to speak directly to the child and confirm his understanding of the conditions and obtain his consent, she did have a discussion with his representative and that representative indicated that the child was willing to comply with community-based orders and would consent to them. It seems to me that that is sufficient to comply with the requirements of the probation order. As I say, it would have been preferable for the Magistrate to explain to the child and obtain the child's consent, but in my view the Act was sufficiently complied with.
- The Respondent also argues that the matters should be remitted to the Childrens Court because of the two matters for which pleas were not taken, and as a result of the difficulty with the probation order. It seems to me, however, that the issue is a discrete one in relation to those matters where convictions were recorded on the pleas of guilty, and should be dealt with today.
- The courts are clear that the recording of convictions against juveniles is a feature that should only occur in appropriate circumstances, and the prima facie position is that convictions should not be recorded. The principle behind that is the uncertainty of the future of a child and the impact that the recording of convictions might have on that child. Such principles are discussed in the Court of Appeal in the Queen vs WAJ  QCA 87 and following cases.
- The appellant here was aged 16 years and two months at the date of sentence, but he was aged 14 and 15 at the time of the offences. He had also spent a significant period on remand and had pleaded guilty at an early stage. The pre-sentence report details his unfortunate and disrupted childhood. In my view, the exercise of the discretion here - notwithstanding the repeated offending by the offender and his young age - militates against the recording of convictions. The appeal is allowed to that extent and I set aside the convictions which were recorded in relation to the offences to which the child pleaded guilty.
- I also set aside the convictions and sentences which were recorded in relation to the two offences of burglary allegedly committed on the 19th of December 2015. I remit those matters to the Childrens Court at Yarrabah. They for mention at 9.30am on the 31st of August 2016. It is plain that no pleas of guilty had been entered in relation to those matters.
- Published Case Name:
GHM v Commissioner of Police
- Shortened Case Name:
GHM v Commissioner of Police
 QCHC 11
22 Aug 2016