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- Unreported Judgment
CHILDRENS COURT OF QUEENSLAND
MSE v Office of the Director of Public Prosecutions  QChC 22
OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS
Children's Court of Brisbane
Townsville Children's Court
13 August 2020
29 July 2020
CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the applicant seeks an extension of time for sentence review - where the sentence review application was made 64 days out of time – where the child had not been advised after her sentence of the option to review the conviction being recorded – where the Crown does not oppose the application
CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCING JUVENILES – where the child was convicted of an unlawful use of a motor vehicle and stealing – where the child was sentenced to three months detention to be released after 70 percent of that sentence – where convictions were recorded in respect of each of the offences - where the child was a passenger in the stolen vehicle – where the child filled the car up with petrol - where the child had significant criminal history – where the majority of the child’s previous offending related to unlawful use of motor vehicles and stealing – where the child had previously been sentenced to detention orders – whether the offences of unlawful use of a motor vehicle and stealing are so serious that it justified a conviction being recorded
s 184 of the Youth Justice Act 1992 (Qld)
The Queen v SCU  QCA 198
Ms M Grundy for the applicant
Ms E Adams for the respondent
Legal Aid Queensland for the applicant
Office of the Director of Public Prosecutions
- The applicant was sentenced on 6 February 2020 on charges of unlawful use of motor vehicle and stealing. Convictions were recorded and she was sentenced to 3 months detention to be released after serving 70 percent of that sentence. At the time of sentence she had spent 71 days in pre-sentence custody. She was 17 years and 10 months at the time of sentence.
Out of time application
- The application was filed 64 days out of time. The child had not been advised after her sentence of the option to review the conviction being recorded. The crown does not oppose the application to extend time. It is in the interests of justice that the time be extended and the application is allowed in that respect.
Sentence review application
- On 26 November 2019 the child was a passenger in a car, a Kia Optima sedan, which pulled into the United Service Station. It pulled up to a fuel pump and the applicant exited and put $61.88 worth of fuel in that car without paying.
- The sentence review application is made in relation to the recording of convictions only. In deciding to record the convictions, the Magistrate noted:
“The starting point for any child is that we do not record convictions. The reason for that is we do not like to do things that might impact you long into the future. However, that position does not always – it is not set in concrete. We move away from that position and we need to look at all the circumstances of cases that we are dealing with in situations where – and in your favour, we have got that timely plea; you do see that you are wrong; you are saying that you are going to make changes. Against that is that you were on probation at the time that order has been breached; and you actually keep committing offences whilst you are under orders...
I do need to consider the impacts of recording a conviction on the chances of your rehabilitation generally or in finding or retaining employment. The difficulty I have today is that you have been given so many opportunities and you have not taken those opportunities. You do have a disregard for the rights of others. You do have a disregard for the property of others, and you do have a disregard for court orders and the law. I do hope that you do transition to success and make some plans to have a career and work. However in the circumstances that I have just placed on the record, for the unlawful use of the motor vehicle and stealing charge I am also going to record convictions.”
- It is fair to say that the child did have a significant criminal history starting in 2018 when she was 15. The majority of her offending relates to unlawful use of motor vehicles and stealing and she had previously been sentenced to detention orders. On four occasions she had breached conditional release orders.
- A presentence report was prepared for her sentence. The report indicated that she committed the offence when someone rang her and told her they’d stolen a car and asked her to go for a ride. She was aware that while associating with these peers she demonstrates impaired decision making and is easily influenced. She began to truant from school in year nine and her anti-social behaviour increased from then on as she commenced using marijuana when she was 14 or 15. In September of 2019 she commenced using ice and was doing so on the day of the offence.
- The child had spent 71 days in custody in relation to these offences and she and her family were engaging in intensive case management program. Before being remanded in custody she had been using large quantities of illegal drugs and whilst in custody had engaged in substance abuse counselling and created a relapse prevention plan. Upon release she intended to work with Lives Lived Well for further counselling and ongoing support.
- She comes from an engaged, caring and supportive family who are prepared to assist her in her rehabilitation. She had spoken to youth justice and expressed her remorse and regret and indicated she was willing to engage in rehabilitation when released. Whilst in custody her family had been involved in an integrated case management module and were working to prepare for her release.
- It was submitted by youth justice that there was a de-escalation in her offending as she was not the driver of the vehicle but she was a passenger knowing it was stolen. On her behalf it was submitted:
“It would be my submission that recording a conviction on someone who is almost 18 years of age, who’s on the cusp of possibly, hopefully, turning her life around – it could have massive social and economic impacts on her wellbeing in the future especially if she does wants to pursue a career in hairdressing.”
- Her youth worker had indicated that there had been positive engagement and that they were hopeful that triggers for her reoffending were being addressed.
Should have a conviction been recorded
- It is conceded by the Crown that a conviction should not have been recorded.
- When deciding whether or not a conviction the court must have regard to all the circumstances of the case, including –
- (a)the nature of the offence, and
- (b)the child’s age and previous convictions, and
- (c)the impact the recording of a conviction will have on the child’s chances of –
- rehabilitation generally, or
- finding and retaining employment.
- In cases involving juveniles, the default position is that a conviction should not be recorded against a child. This is because the recording of a conviction, particularly for dishonesty offences, necessarily involves an impediment to finding and retaining employment and therefore rehabilitation.
- In The Queen v SCU, the President in the Court of Appeal at paragraph 94 considered whether the offence of arson, in that case requires a recording of a conviction:
“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 that 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 …”
- His Honour then went onto discuss five errors in the learned sentencing Judge’s reasons for recording convictions. Of particular note his Honour noted that even assuming arson was so serious that it’s commission justified recording a conviction,the same could not be said of the other two offences; one a minor stealing offence and other an attempted break and enter with intent.
- In R v TAO  Bodice J the court cautioned against using past performance and history of offending to constrain the discretion to record convictions in sentencing. That consideration cannot be used to overshadow the consequences of recording convictions on the child future. Regard must be had at the time of sentencing on the factors contained in s 184 but also the positive changes in her life and her attitude since offending.
- Whilst there is no doubt that the child’s juvenile history was lengthy and reflected recidivous property offending, the offences on this occasion, were not particularly serious examples of the type of offending for which she had previously been convicted. She was not present when the car was stolen, she was not a driver of the vehicle. She did not seek out a ride in the vehicle but instead was asked if she wanted to be in the vehicle and she was a heavy drug user at the time. The stealing involved her putting petrol in the vehicle. There was no violence involved in any of the offences. There was no persistence involved in the offences. There was no planning involved in the offences.
- The 71 days spent in pre-sentence custody were used wisely by the child. She has undertaken counselling, she was able to remain drug free, her family had taken steps to obtain counselling and attend programs to assist her upon her release and she was remorseful for the offending. She had gained some insight into her behaviour and she was now on the cusp of adulthood such that she was set to either change her ways or descend into further offending. In those circumstances, recording convictions for the first time did not give sufficient weight to the change of attitude she was now exhibiting.
- The recording of convictions is not a mathematical exercise. It requires a consideration of the child’s prospects of rehabilitation and employment but it also requires a consideration of the seriousness of the offences themselves and the circumstances of the offending. This was not a case where the circumstances of the offending or the personal circumstances of the child required that convictions be recorded.
- The application is allowed. The convictions are set aside. The sentences are otherwise to remain.
 Decision of Magistrate, p 4, l 10.
At T1-5 l 20.
Section 184 of the Youth Justice Act 1992.
  QCA 198.
 R v B  QCA 231; R v JO  QCA 260; R v SBP  QCA 408; R v SBR  QCA 94.
 R v SCU at paragraph 101.
  QCA 4.
 R v TAO paragraphs 20-21.
- Published Case Name:
MSE v Office of the Director of Public Prosecutions
- Shortened Case Name:
MSE v Office of the Director of Public Prosecutions
 QCHC 22
13 Aug 2020