R v A[2018] QCHC 5

CHILDRENS COURT OF QUEENSLAND

1. [1]
   The applicant was charged with two offences of burglary and commit an indictable offence and one charge of fail to appear in accordance with an undertaking. He was convicted on his own plea of guilty on 6 November 2017 and sentenced to six months detention to be served by way of conditional release order for the burglary offences. Convictions were recorded. He was reprimanded in relation to the failure to appear charge. He had spent 44 days in detention prior to sentence.

2. [2]
   Both of the burglary offences involved entering houses and stealing property from inside those houses. On one occasion the complainants were home but were not aware of the offending. The sentence review is solely in relation to the recording of convictions for these offences.

3. [3]
   The child was fifteen at the time of the offences but had a relevant criminal history dating back to April 2015. He has regularly been before the courts for property offences. At the time of the offending he was subject to a community service order and a probation order. The Magistrate decided that it was appropriate to record a conviction “having regard to the nature of the offences; your age, that is, you are now getting older; you will be an adult in the eyes of the law in a bit over a year; your previous convictions, and to the best that I am able, having regard the impact of the recording a conviction will have on your chance of rehabilitation and finding or retaining employment.”^[1] He also took into account the fact that he was not demonstrating remorse in the pre-sentence report.

4. [4]
   The pre-sentence report demonstrates that the child has had a significantly disadvantaged upbringing. He has had little to no contact with his father. The Department of Communities, Child Safety and Disability records indicate a substantial history of domestic and family violence to which he was witness, and there were eighteen child concern reports and four Child Protection Notifications between August 2004 and November 2017 as a result of a neglect, lack of supervision and basic care needs of the children not being adequately met. He has also been exposed to ongoing substance abuse in the family home. He disengaged from formal education at the beginning of 2017 when he was expelled from Downlands College and as a result has gravitated towards the company of negative like-minded peers.

5. [5]
   This matter proceeds by way of sentence review under section 118 of the Youth Justice Act 1992. Section 122 of the Act provides that it is a rehearing on the merits.  Section 183 of the Act provides the court with the power to record a conviction against a child for an offence.

6. [6]
   It is true that these were serious offences, that he had demonstrated limited remorse for victims of his offending and that he had a very relevant criminal history. He had not taken advantage of the community based orders that were offered to him and was continuing to offend. He has, however, spent his longest time in custody^[2] as a result of this offending. 

7. [7]
   The factors to be considered in whether or not to record conviction have been discussed in numerous cases. In R v L [2000] QCA 448 Thomas JJA observed:

“There are different considerations that apply in deciding whether or not to record a conviction for a juvenile offender than those in the case of an adult offender.  A higher priority is, I think, placed on rehabilitation of juveniles in general and the courts response to this area is to be slow to record a conviction unless good reason is shown for doing so.”

8. [8]
   This was affirmed in The Queen v SCU (2017) QCA 198 where McMurdo J stated^[3]

“The impact of the recording of a conviction necessarily involves a degree of speculation.  Nevertheless, the likelihood that the recording of a conviction, especially for an offence as serious as arson, would detrimentally affect his rehabilitation and his finding or retaining employment is undoubtedly high.  Clearly there is a connection between his chances of finding or retaining employment and his chances of rehabilitation.  It is unnecessary to consider particular types of work in which the applicant might be affected; the conviction for arson, without an appreciation of the mitigating circumstances of the applicant’s case, would deter many an employer.

I agree with the sentencing judge that this was a serious offence, even when committed by a 15 year old. It is also relevant that he had offended previously. But balancing the relevant considerations, in my view, the likely impact upon his future employment and his rehabilitation, from the recording of the convictions, could be so serious that the convictions should not be recorded.”

9. [9]
   In this case the appellant was just fifteen at the time of offending, he made full admissions to the offences, he had an unfortunate childhood where there was very little by way of guidance offered to him. The offending did not involve allegations of violence or sexual offending such that it would be important for employers and others to know about the offending. The conditional release order is focused upon providing a period of supervision which supports the child’s rehabilitation. The fact that the child has not finished formal schooling puts the child already in a disadvantaged position, the recording of a conviction would further hamper his chances of obtaining meaningful and full-time employment which is important for his rehabilitation. Much of this offending occurred whilst he was unoccupied, not involved in the education system and therefore at a loose end. In my view it is appropriate that the review be allowed and the convictions set aside.