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- Unreported Judgment
NJM v Commissioner of Police QCHC 4
CHILDREN’S COURT OF QUEENSLAND
NJM v Commissioner of Police  QChC 4
COMMISSIONER OF POLICE
21 April 2017 (delivered ex tempore)
21 April 2017
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – application for a sentence review under s. 119 of the Youth Justice Act 1992 – whether convictions should be recorded
Youth Justice Act 1992, ss 118, 119, 122, 175, 183, 184
T K Clements for the applicant
J Dudley for the respondent
Legal Aid Queensland for the applicant
Office of the Director of the Public Prosecutions for the respondent
- HIS HONOUR: This is an application for sentence review by NJM.
- The applicant was sentenced by the learned sentencing magistrate at the Childrens Court at Cairns on 16 December 2016, in respect of six offences committed in November of 2016.
- The application was filed some 25 days late and an application is made for an extension to the time for making the sentence review application, which is not opposed by the Crown. Accordingly, I grant the extension of time to make a sentence review application.
- The application proceeds under sections 118 and 119 of the Youth Justice Act 1992 for a sentence review. The matter proceeds as a rehearing on the merits (Youth Justice Act 1992 s. 122), and although, in that process, error may be identified on the part of the sentencing Childrens Court magistrate, it is the exercise of a discretion by this court on the review process.
- The applicant pleaded guilty to the following charges:
– Attempted unlawful entry of a vehicle for committing an indictable offence at night (Ex 4) – 1.11.2016 – eight months' detention with immediate release on a three month conditional release order (convictions recorded).
– Unlawful use of a motor vehicle – 2.11.2016 – eight months’ detention with immediate release on a three month conditional release order (conviction recorded).
– Failure to appear in accordance with undertaking – 11.11.2016 – convicted and not further punished (conviction recorded).
- The sentence review is in respect of the recording of convictions, although during the course of submissions on this hearing, Mr Clements points out (and Mr Dudley for the Crown accepts) that the purported penalty of “convicted but not further punished” is not a penalty known to the Youth Justice Act 1992, which essentially acts as a code in respect of sentencing of juveniles in Queensland.
- The issue is a relatively narrow but important issue.
- At the sentence hearing, the applicant’s lawyer conceded that it was appropriate to record convictions, apparently based on the applicant’s employment prospects (which for a 15 year old at the time, is clearly a crystal ball exercise in which the ball may well be very cloudy), and appears to have been a concession made without, as Mr Clements describes it, “due consideration of the law in relation to the recording of convictions for children”.
- The following submissions were made as to why convictions should not be recorded in respect of any of the matters arising out of the sentence on 16 December 2016, namely:
- the learned sentencing magistrate placed undue weight on the lawyer’s concession that the recording of a conviction would not affect the applicant’s employment prospects;
- the offences were not sufficiently serious to warrant the recording of convictions;
- the applicant has prospects of rehabilitation;
- the prima facie position (ie the default position) is that conviction should not be recorded against children and the court should be slow to do so due to the uncertainly of predicting the child’s future direction; and
- conviction should not have been recorded in the circumstances in respect of any of the matters.
- The submissions of the Crown, in essence, are that the applicant in these proceedings has had a lengthy criminal history with repeated appearances in the Childrens Court, all of which up to that point had not resulted in convictions being recorded. The offences, it is submitted, although not violent were serious, particularly the unlawful use of a motor vehicle which involved significant loss and damage. The child had previously appeared on some 70 offences, received the benefit of more than a dozen community-based orders, and had reoffended only a week or so since the last appearance. The Crown notes the apparent adoption of the applicant’s lawyer’s concession and submits that in the circumstances it was “within the sound exercise of the sentencing discretion for convictions to be recorded against the applicant”. (Outline of submissions (exhibit 4) para 9.17)
- The starting point in any consideration in respect of the recording of convictions is Youth Justice Act 1992 s.183(1) which provides that:
Other than under this section, conviction is not to be recorded against a child who is found guilty of an offence.
- The considerations are then set out in s.184 which require the court to 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 will have on the child’s chances of –
(i) rehabilitation generally; or
(ii) finding or retaining employment.
- It would seem in reality that the applicant’s lawyer’s concession short-circuited most of the learned magistrate’s consideration of the issue of recording convictions.
- In respect of the matters before the learned sentencing magistrate, the attempted entry of premises offences were relatively minor (CCTV had captured the child testing the door handles of a number of cars), but on the other hand, the unlawful use of a motor vehicle offence was a serious example of that offence, with significant loss and damage.
- The failure to appear, as I have indicated, involved a sentencing outcome which is not contemplated by the Youth Justice Act 1992 and will in any event have to be set aside and resentenced.
- The argument, although finely based, starts on this proposition, that the default position is that conviction should not be recorded. In respect of this child, a 15 year old indigenous youth with a sad and troubled history, the recording of convictions at this stage, in my view, is clearly likely to affect both his rehabilitation, which is showing some prospects (at last) of proceeding positively, and undoubtedly would have a significant detrimental effect on the applicant finding or retaining employment. The combined effects of the applicant’s indigenous status, sad and troubled home life, addictions, fractured schooling and fragile relationships all, in this case, combine to provide this applicant with some very significant detriments going into his adult life. Conversely, of course, even all of those detriments will not, at some stage, prevent the recording of convictions. But, in my view, the combined effect of his age (15), the fact that no previous convictions have been recorded despite quite extensive appearances in the Childrens Court, and the potential for both rehabilitation and hopefully, in time, finding and retaining employment are such that, in my opinion on this review, convictions should not have been recorded.
- Accordingly, I make the following orders.
- Application for sentence review granted.
- Set aside that part of the learned sentencing magistrate’s sentence on 16 December 2016 in respect of which convictions were recorded for four offences of attempted unlawful entry of a vehicle for committing an indictment offence at night and one offence of unlawful use of a motor vehicle.
- In respect of the failure to appear in accordance with undertaking, set aside the purported order of “convicted but not further punished” and substitute the order that the child is reprimanded pursuant to s.175(1)(a) of the Youth Justice Act1992, with no conviction recorded.
- Published Case Name:
NJM v Commissioner of Police
- Shortened Case Name:
NJM v Commissioner of Police
 QCHC 4
21 Apr 2017