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The Queen v FDM

[2020] QCHC 10



R v FDM  [2020] QChC 10











Sentence Review


Childrens Court of Queensland Brisbane


29 April 2020




1 April 2020


Richards DCJ


Appeal allowed.

Convictions are set aside in relation to charges 1, 2, 3, 4, 5, 9, 12, 15, 17, 19, 21, 23, and the offences of receiving tainted property and unlawful use of a motor vehicle on 27 July 2019.

Sentence otherwise to remain.


CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the child was sentenced to 26 offences – where the child was 17 years old at the time of committing the offences – where a conviction was recorded in relation to all offences – whether the learned Magistrate misapplied the discretion of recording a conviction under s 184 of the Youth Justice Act 1992 (Qld) – where the learned Magistrate did not consider the charges individually when recording a conviction.


Youth Justice Act 1992 (Qld) ss 183, 184


R v SCU [2017] QCA 198

R v Cunningham [2014] QCA 88

R v WJA [2010] QCA 87

AB v The Queen (1999) 198 CLR 111.


C Anderson-James for the Applicant

J Daniels for the Respondent


Legal Aid Queensland for the Applicant

Officer of Director of Public Prosecutions for the Respondent

  1. [1]
    On 29 October 2019, the applicant was sentenced in the Childrens Court, Cairns in relation to 26 offences. On 12 July 2019, he received tainted property and unlawfully used a motor vehicle by receiving the keys to a stolen vehicle and then trying to start it unsuccessfully. Between 3 September 2019 to 7 September 2019 he committed the rest of the offences. They were:
  1. (a)
    three charges of unlawful use of a motor vehicle and two charges of entering a dwelling to commit an indictable offence on 3 September;
  1. (b)
    unlawful use of a motor vehicle and stealing on 6 September; and
  1. (c)
    then on 7 September eleven charges of enter a dwelling and commit indictable offence, unlawful use of a motor vehicle, three charges of enter premises with intent, enter dwelling with intent by break at night and attempted enter dwelling and commit indictable offence.
  1. [2]
    Ultimately he was sentenced to 12 months’ detention with an order that he be released after serving 60 per cent of that time in custody and convictions were recorded in relation to all offences. The review relates to the recording of convictions.
  1. [3]
    The Crown concedes that it was not appropriate to record convictions in relation to all of the offences but submits that the recording of a conviction is warranted in relation to the burglary offences. The applicant submits that no conviction should have been recorded.
  1. [4]
    The child was born on 21 April 2002. He was 17 years old at the time of committing the offences and is almost 18. He had an extensive criminal history spanning nine pages and that included 36 prior offences of burglary, 30 offences of unlawful use of a motor vehicle, 12 offences of entering premises with intent, five offences of serious assault and he had previously had eight prior sentences where detention was imposed. He was sentenced in the Children’s Court at Cairns on 17 May 2019 to a nine month probation order that he breached in committing these offences.
  1. [5]
    The prosecutor took some care to place before the court comparable decisions and addressed carefully the questions of penalty and the recording of a conviction. The prosecutor referred to R v SCU [2017] QCA 198 stating that the judgment effectively stated that the court should be looking backwards to look forwards.  It was submitted that the only way to anticipate what impact convictions would have on his future was to look at his past.  It is conceded by the Crown that this was a misstatement of the principle in SCU.
  1. [6]
    When considering whether to record a conviction the court must consider ss 183 and 184 of the Youth Justice Act which provide:

183 Recording of conviction

  1. (1)
    Other than under this section, a conviction is not to be recorded against a child who is found guilty of an offence.
  2. (2)
    If a court makes an order under section 175(1)(a) or (b), a conviction must not be recorded.
  3. (3)
    If a court makes an order under section 175(1)(c) to (g) or 176 or 176A, the court may order that a conviction be recorded or decide that a conviction not be recorded.

184 Considerations whether or not to record conviction

  1. (1)
    In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including–
  1. (a)
    the nature of the offence; and
  1. (b)
    the child’s age and any previous convictions; and
  1. (c)
    the impact the recording of a conviction will have on a child’s chances of–
  1. (i)
    rehabilitation generally; or
  1. (ii)
    finding or retaining employment.
  1. (2)
    Except as otherwise provided by this or another Act, a finding of guilt without the recording of a conviction is not to be taken to be a conviction for any purpose.
  1. (3)
    A finding of guilt against a child for an offence without the recording of a conviction stops a subsequent proceeding against the child for the same offence as if a conviction had been recorded.”
  1. [7]
    In making his submission about the effect of SCU the prosecutor seemed to be referring to para 94 of the judgment of the President where he stated:

“Like the principles that constrain the exercise of the sentencing discretion, the discretion to record a conviction emphasises the special considerations that inherently apply to the situation of a child but they are usually immaterial to the position of adults.  Predominantly, apart from the nature of the offence and the other circumstances of the case, which are objective past matters that must be given due weight, the other factors look to the child’s possible future. Sections 184(1)(b) and 184(c) direct a court’s attention to the question of the child’s future chances to be a beneficial member of the community and requires a court to balance the possible deleterious effects of a recorded conviction while paying due regard to the circumstances of the offence.  It has been emphasised repeatedly by authorities of this Court that the starting premise is that no conviction should be recorded.  That being the position, a sentencing judge must be satisfied positively after considering the matters that the statute mandates should be considered that the proper exercise of discretion is in favour of recording a conviction.  This is not a simple task as the cases considered by this Court have shown …”

The President then went on to detail the five errors in that case that were evident in the recording of convictions.  One of those errors was that even assuming that the offence of arson was so serious that its commission justified the recording of a conviction the same could not be said of the other two offences which were fairly minor.  The Court of Appeal in deciding not to record a conviction in that case held at para 131:

“It would be likely to hamper presently unforeseeable efforts of his to advance himself and will undoubtedly blight his future prospects of employment and therefore his future, for no gain to anyone.”

That proposition that while the future is unknowable in the case of a young child, future difficulties experienced from the recording of convictions are foreseeable was endorsed by McMurdo JA.  He noted the importance placed in the Youth Justice Act to rehabilitation is not necessarily given the same emphasis in the case of adult offenders.  He stated at para 162:

“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.”

  1. [8]
    The Magistrate was referred to R v Cunningham [2014] QCA 88 and R v WJA [2010] QCA 87 as cases relevant to the recording of a conviction.  In R v Cunningham[1],  the court there was critical of the fact that there was no information put before the court to enable an assessment of the applicant’s rehabilitation generally or his chances of finding or retaining employment.  In particular the court noted that there was no information to demonstrate what impact the recording of a conviction would have on his chances of finding and obtaining employment noting in that particular case that he already had a conviction recorded because of his appearance in an earlier matter on a charge stealing.  The court however noted that each case will turn on its own circumstances.  The court noted in that particular case that there was continuous engagement in criminal activity, there was an escalation in the criminality, there was a complete disregard for ongoing court orders and sanctions, there was a significant recent criminal history, a conviction had already been recorded previously, there was little information about rehabilitation generally and there was a public interest to be considered where an employer was entitled to know about some of this activity. This case would appear to be at odds to an extent with the principles outlined in SCU.
  1. [9]
    The Magistrate however does seem to have misapplied the exercise of discretion in relation to the recording of convictions with some of her comments to the child’s solicitor:[2]

“So just assist me in how I would get to a position where I would exercise my discretion and not record a conviction in a matter such as this.”

The comment indicates a reversal of the discretion under s 184 of the Act which indicates that a conviction should not be recorded and the court has to consider whether to exercise their discretion to record a conviction not the other way around. 

  1. [10]
    This reversal of the discretion was evident again when the defence solicitor submitted that the child was trying to engage in rehabilitation but if a conviction were to be recorded it would severely inhibit his chances of getting employment in the future. The Magistrate then commented that there should be some indication of how that would work and that there had to be something more than speculation:[3]

“Well again it should be more than just some sort of speculative submission.  What is there anything that you can specifically submit of how about what that effect would be?  And that’s because that’s one of the matters discussed in the authority, isn’t it?”

  1. [11]
    With respect the nature of the child’s future does require some speculation and that much is emphasised in SCU.  It does not take speculation to find that convictions recorded for 26 offences including burglary, unlawful use and stealing would be a significant deterrent to any employer. 
  1. [12]
    Finally, when dealing with the question of recording of convictions the Magistrate did not consider the charges individually. The learned Magistrate commented[4]:

“I have taken into account the sentencing principles the authorities handed-up to the court, particularly that the court cannot look into a crystal ball, as is often said, and determine what effect the recording of the conviction may have on you in the future.  The court can look behind and see what has happened in the past.  And unfortunately, Ernest, on every occasion, you have reoffended.

The community has the right to hold you – to know that courts will hold young people accountable for their actions.  Your actions are continuous in their nature.  That is, offending in terms of property; in terms of breaking into person’s homes.  It is a more concerning type of behaviour that it happens when those persons potentially are at home at the time that you enter the property.  I have not given up on you, Ernest, but it – with – I have reached a point where I consider that it is my duty to record a conviction for these matters and so do.”

  1. [13]
    A decision about whether a conviction should be recorded requires an examination of the individual charges. The Sentencing Schedule refers to charges on 12 July 2019 involving the applicant receiving some keys that he knew were from a stolen vehicle and then walking to a car and trying to start it but being unable to do so. Those offences are fairly minor in the scheme of things and would not ordinarily call for convictions to be recorded.
  1. [14]
    On 3 September 2019 the child was a passenger in a Corolla Sedan that was stolen. He told police that two co-offenders arrived in that car to pick him up. He knew it was a stolen vehicle. He said that they then drove that stolen vehicle to pick up a third co-offender and he and three others then drove to Redlynch a suburb in Cairns where a number of break and enters were committed. He said the co-offenders opened up the garage at the back of a street and they drove the Corolla to a second place where he sat out the front whilst the co-offenders went into the house. He said he and the co-offenders then left with the three vehicles and he was dropped off back at the Three Sistas accommodation. There was no evidence that he entered the houses. He appears to have been effectively a lookout.
  1. [15]
    On 6 September 2019 a grey Mazda was stolen from Cairns. It was driven to a petrol station in Brinsmead where $39.22 of petrol was put in by this child. He was a passenger in the vehicle and the car was driven away without payment. They then drove to the Port Douglas area on the morning on 7 September 2019 where a series of break and enters occurred. The police interviewed the applicant on 9 September and he said that on the night of 6 September he was at home drinking. Two co-offenders arrived in the stolen Mazda and they went and collected a third offender. They went to the petrol station where they committed the fuel drive-off and then he and the co-offenders drove back to his accommodation where they consumed methylamphetamine before getting back in the car and driving out to Port Douglas to commit the break and enters. He indicated he was drunk and affected by ice at the time but remembered stopping at up to three different areas in Port Douglas where offences were committed by the group. He could not remember specifics and the facts do not indicate whether he entered any of the properties. He indicated they left the Mazda in Port Douglas and drove back to Cairns in a Mitsubishi Pajero stopping at Smithfield BP to buy pliers. He was then dropped back to his accommodation.
  1. [16]
    A pre-sentence report was obtained which talks about the factors contributing to the offending. It noted:

“Historically Ernest has offended in the company of negative peers and this consistent with the current offences before the Court.  Ernest stated to the author that his peers had exerted influence over him at a time when he was emotionally vulnerable having recently ended a relationship with his long term partner.  Ms Morrison supported this statement adding that Ernest stayed away from home during this period, and the family were aware that Ernest was in the company of an adult cousin and anti-social peers for the majority of his recent offending.  Ernest further stated that he took comfort in the company of this peer and family group and was open to suggestions of offending as a means of maintaining the feeling of emotional security and being supported.  It is the author’s assessment that Ernest’s vulnerable and emotional state and his exposure to anti-social and pro criminal attitudes has impaired his ability to make positive decisions.  It is further assessed that Ernest’s desire for acceptance and belonging within his peer and family group has made it difficult for him to disengage from the opportunity to offend is presented.”

  1. [17]
    In this case the child had made full admissions and was entitled to the special leniency afforded to offenders whose cooperation extends into offending that might not otherwise be detected.[5] He seems to have been less involved in the offending than his co-accused. He was not involved in stealing the vehicles and was mostly a passenger. He was not the instigator in the offending. In relation to the spree of offending in the early hours of the morning in Port Douglas, he was intoxicated and remembered little of the night but accepted he was a willing participant in the offending. This offending was more serious than the rest. He has a concerning history for property offending and all of the offending was committed in breach of a probation order. He is an older child being 17 at the time of the offending and has not shown any significant breaks in that pattern of behaviour such that the court would have confidence in his prospects of rehabilitation. While the court should always be reluctant to record convictions in relation to a child and particular in relation to a young child, in this case where there is a child who has persistently disregarded court sanctions, who is close to adulthood and persists in serious criminal offending, in my view it was within the sentencing discretion to record convictions for the more serious offences on 7 September 2019.
  1. [18]
    The application is granted in part. Convictions are set aside in relation to charges 1, 2, 3, 4, 5, 9, 12, 15, 17, 19, 21, 23, and the offences of receiving tainted property and unlawful use of a motor vehicle on 27 July 2019. The sentences are otherwise to remain.


[1] Supra at para 49.

[2] Transcript of Proceedings, T1-14, L15.

[3] Transcript of Proceedings, 1-15.

[4] Transcript of Decision, p4 L10.

[5] AB v The Queen (1999) 198 CLR 111.


Editorial Notes

  • Published Case Name:

    The Queen v FDM

  • Shortened Case Name:

    The Queen v FDM

  • MNC:

    [2020] QCHC 10

  • Judge(s):

    Richards DCJ

  • Date:

    29 Apr 2020

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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