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MBD v Commissioner of Police[2016] QCHC 8

MBD v Commissioner of Police[2016] QCHC 8

 

CHILDRENS COURT OF QUEENSLAND

 

CITATION:

MBD v Commissioner of Police [2016] QChC 8

PARTIES:

MBD

v

Commissioner of Police

FILE NO/S:

CCQ No. 1018 of 2016

DIVISION:

Childrens Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Children’s Court at Mareeba

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 part of a sentence imposed in relation to the appellant child. On the 16th of November 2015, she pleaded guilty to an offence of assault occasioning bodily harm in company.  A pre-sentence report was ordered and the sentence took place on the 17th of February 2016 in the Mareeba Childrens Court.  The sentence imposed was an order for detention for nine months to be served by way of a conditional release order for three months and a conviction was recorded.  There was another offence of possession of an implement used to smoke drugs, for which she was placed on probation and no conviction was recorded.  There is no appeal against that sentence.
  1. [2]
    The 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 sentencing Magistrate. It is the recording of the conviction in relation to the assault occasioning bodily harm which is the subject of the appeal. The circumstances of the offence were that the appellant in the streets of Mareeba assaulted another girl in the company of others. Others were involved in the assault. There were blows to the complainant’s head and she was assaulted while she was on the ground with kicks to the head. A passer-by intervened and stopped the incident. The complainant was taken to hospital where she suffered bruising and swelling to her entire face.
  1. [3]
    Part of the incident was actually filmed by another of the persons present. In her interview with the police, the appellant made admissions and spoke about ongoing conflict with the complainant. The appellant was aged 16 years and nine months at the time. She had a limited history which commenced in 2013 with a reprimand, but she had appeared on three other occasions previously where she had been placed on supervised orders.
  1. [4]
    On the 10th of June 2014, she was dealt with in relation to entering premises with intent, assault or obstruct police, and trespass.  In relation to the entering premises, she was placed on six months’ probation with no conviction being recorded.  On the 23rd of June 2014, she was dealt with in relation to entering premises and committing an indictable offence and receiving.  She was placed on 40 hours community service and, again, no conviction was recorded.  Her final appearance was on the 17th of February 2016 in relation to this matter.  She was not subject to any supervised orders at the time of the commission of this offence.
  1. [5]
    It is a relevantly limited history and the only offence of violence on it appears to be an assault or obstruct police, which can cover a multitude of circumstances. I’ve read the sentencing submissions and remarks and the pre-sentence report that was ordered. It’s plain from the transcript of the hearing that the learned Magistrate invited submissions in relation to the recording of a conviction and received those. He exercised his discretion to record a conviction in light of the serious nature of the offence.
  1. [6]
    The position on appeal is that, in order to intervene, I would need to be satisfied that that order, that exercise of discretion, was in error. It’s argued here that the learned sentencing Magistrate did not give appropriate weight to section 184, subsection (1), paragraph (c) of the Youth Justice Act, which sets out the matters to be taken into account in exercise of the discretion to record a conviction. Paragraph (c) refers to the impact the recording of a conviction will have on the child’s chances of rehabilitation generally, or finding or retaining employment. The learned Magistrate in his sentencing remarks emphasised that there were prospects of rehabilitation in the appellant. He noted in that regard that she’d enrolled in some sort of boarding school and spoke to her at some length about the prospects of rehabilitation.
  1. [7]
    The prima facie position under the Youth Justice Act as spoken about in the Court of Appeal in a number of decisions, particularly the R v WAJ [2010] QCA 87 and followed and repeated in later decisions, is that convictions should not be recorded against a juvenile unless they are appropriate in the circumstances.  In particular, the Court of Appeal has noted the uncertainty of recording a conviction against a child and their future, particularly their future in terms of following courses of employment.
  1. [8]
    Although the offence here was serious and warranted the penalties that were imposed, it seems to me the learned Magistrate did not give appropriate consideration to that last aspect of the discretion in section 184. He was plainly of the view that there were prospects of rehabilitation and spoke to the appellant concerning that. In my view, I am satisfied that he did not give appropriate weight to section 184(1)(c), especially in the light of the comments that he made. It’s clear that the penalty imposed was appropriate, particularly in relation to both general and specific deterrence. But it seems to me that the prospects of rehabilitation of the appellant outweigh the recording of a conviction against her for this offence. I allow the appeal. I set aside the recording of the conviction.
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Editorial Notes

  • Published Case Name:

    MBD v Commissioner of Police

  • Shortened Case Name:

    MBD v Commissioner of Police

  • MNC:

    [2016] QCHC 8

  • 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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