IAU v The Queen[2018] QCHC 10

CHILDRENS COURT OF QUEENSLAND

1. [1]
   This is an application for sentence review by the applicant IAU. The applicant was dealt with in the Mareeba Childrens Court in respect of the following offences:

1. wilful damage (between 21/9/2017 and 24/9/2017);

2. wilful damage (7/11/2017); and

3. wilful damage by graffiti (31/10/2017).

2. [2]
   The applicant pleaded guilty on 7 November 2017 and was sentenced on 18 December 2017. This application for a review of the sentence was filed on 8 January 2018, and the only aspect of the sentence that is sought to be reviewed by way of a sentence review application is the recording of convictions in respect of the three charges of wilful damage.

3. [3]
   The applicant was born on 7 November 2002 and was 14 years of age at the time of the offending and is 15 years old now. The child has a significant and relevant criminal history (exhibit 5) which commences when the child was 11 years old. The offending itself appears to have commenced just after the child turned 11.

4. [4]
   The child was subject to the following orders at the time the offences were committed:

1. restorative justice order imposed 11/7/2017;

2. probation order imposed 14/10/2017; and

3. good behaviour order imposed 17/1/2017.

5. [5]
   The sentence imposed was a three month detention order to be served by way of a conditional release order and a 20 hour graffiti removal order. The impugned aspect of the sentence, as indicated, was the recording of convictions by the learned Childrens Court magistrate.

6. [6]
   There are some significant concerning aspects to the offending. The first count of wilful damage involved the child entering a vacant house under construction and causing $6,000 worth of damage, including smashing glass sliding doors and applying graffiti to the walls.

7. [7]
   The offence of wilful damage by graffiti involved the child entering a supermarket in Herberton and using a black texta pen to write on a wall within the store.

8. [8]
   The final charge of wilful damage (on 7 November 2017) occurred when the applicant was staying at his maternal grandmother’s address, became agitated and smashed a glass coffee table valued at $100.

The law – sentence reviews

9. [9]
   A Childrens Court judge may review the sentence order of a Childrens Court magistrate pursuant to the Youth Justice Act (YJA) s.118.  That review is to be conducted as a rehearing on the merits (YJA s.122(1)), which should be conducted as expeditiously and with as little formality as possible.  This court is entitled to have regard to the record of the Childrens Court proceeding, and any further submissions and evidence by way of affidavit or otherwise presented to this court on the review.

10. [10]
    In sentencing a child, a court is obliged to take into account the sentencing principles contained with YJA s.150.

11. [11]
    In respect of recording convictions against children, the default position is that a conviction should not be recorded (YJA s.183(1)).

12. [12]
    The relevant considerations in respect of recording a conviction or not are set out in YJA s.184.

13. [13]
    The courts, in a range of appellate decisions in the Court of Appeal, have canvassed the issues in respect of recording convictions for juvenile offenders and, in summary, those decisions indicate that a much higher priority is placed on the rehabilitation of juvenile offenders as opposed to adult offenders and the decisions stress that courts should be slow to record convictions without good reason for juveniles whose future, and of course the likely impact of the recording of a conviction, is much more speculative than with an adult. The courts have, not infrequently, confirmed the non-recording of a conviction (or granted appeals in those circumstances) even for quite serious offences involving juveniles. I note by way of completeness the following decisions which confirm these observations, namely: R v L [2000] QCA 448; R v Cay and others [2005] QCA 467, R v SCU [2017] QCA 198, R v TX [2011] QCA 68 and R v BCN [2013] QCA 226.

14. [14]
    The submission on behalf of the applicant is that convictions should not have been recorded, even though the detention order to be served by way of conditional release order is accepted to be the appropriate sentence in the circumstances given the repeated nature of the child’s offending and the nature of the child’s criminal history. In particular, it is noted the child had served 48 days in presentence custody as at sentence.

15. [15]
    The submission is that, in the circumstances of this offending, the child’s background, including the lack of an appropriate role model, a diagnosis of ADHD, a history of rebellion against family and his mother and extended family’s rules, a significant dependence from a very early age on sniffing inhalants and smoking cannabis, that a sentence involving a community-based order (in this case a conditional release order), which of its very nature was designed to encourage rehabilitation, was in direct contrast with and, it is submitted, in error, in imposing a conviction at this stage. In particular, I note, as has been raised in the submissions, that the child was only 14 at the time of offending, he is 15 now and, given the recent amendments to the Youth Justice Act, will be subject to the provisions of that Act until he turns 18. In my view, the speculative nature of the future in front of this child is such that the recording of a conviction at this stage, even though his criminal history is concerning and has taken place over a period of more than three years from him turning 11; the child clearly should be given the opportunity of focusing on rehabilitation, reintegration into the community, and doing so without the burden of convictions at this stage.

16. [16]
    It is of particular concern that, although the learned magistrate, quite properly, raised with the applicant’s counsel the issue of potentially recording criminal convictions, after having the benefit of relatively brief submissions on the issue, the learned magistrate then in his sentencing remarks, without any reasons whatsoever, proceeded to impose convictions recorded. With respect, magistrates who sentence children in those circumstances, having properly raised the issue of recording convictions, and having sought submissions on the issue, should then articulate in their sentencing remarks the reasoning which led to the decision either to record or not record a conviction in the circumstances.

17. [17]
    Given the provisions of YJA s.118, it’s not necessary for me to find error on the part of the sentencing magistrate, but, with respect, it is clear that the learned magistrate fell into error in not articulating any reasons for the decision to record convictions in the circumstances of this applicant.

18. [18]
    In all of the circumstances, it is my view that the offences, although serious and although appropriately bringing the detention order imposed, were committed by a child who was 14 at the time, 15 at sentence, who has the very significant issues that have been outlined in detail in the presentence report and summarised in the applicant’s outline at paragraph 12.5, and should have been given an opportunity, utilising the conditional release order process, to focus on rehabilitation, on reintegrating with the community and doing so without the burden of the recording of a conviction at this stage. It may well be, of course, that if the child continues to commit serious offences, the point may be reached where a court is appropriately persuaded to record convictions, but given the default position mandated by YJA s.183(1), that should always be a matter of anxious consideration by any sentencing court before taking that next and quite significant step in respect to many juveniles.

19. [19]
    I make the following orders:

1. Application for sentence review granted.

2. Confirm the order imposed at the Mareeba Childrens Court on 18 December 2018, other than to set aside the order that convictions be recorded in respect of each of the offences of wilful damage, wilful damage and wilful damage by graffiti, and substitute orders that no conviction will be recorded with respect to each of those offences.