R v GB[2024] QCHC 18

CHILDRENS COURT OF QUEENSLAND

Introduction

1. [1]
   These are the reasons for the conclusion reached for the purpose of sentencing a juvenile offender, for offences committed on 19 and 30 April 2024 and on the second date including a particularly serious offence of dangerous operation of a vehicle causing three deaths and grievous bodily harm to another victim, whilst excessively speeding and unlawfully using that motor vehicle, that the circumstances relating to his appearance before the Childrens Court Magistrate at Hervey Bay on 26 April 2023, is not to be regarded as part of that child’s criminal history, within the meaning of s 154 of the Youth Justice Act 1992 (“YJA”) and accordingly his previous offending history, within the meaning of s 150(1)(e) of the YJA.
2. [2]
   As is further explained below, whilst this conclusion affects the way these circumstances came before this Court and were to be treated and given weight in this proceeding, it did not prevent any reference to them. 
3. [3]
   That result is the consequence of a review of the complications and interactions of a number of provisions of the YJA, as it applies and adapts the general principles of criminal law and particularly as to sentencing children as offenders.  That is, an offender who has not attained the age of 18 years, when charged with an offence.^[1]  There are also provisions which deal with child offences (offences committed as a child)^[2] charged against adults.^[3] It is also of importance to note the objectives of the YJA as they are set out in s 2:

“2Objectives of Act

The principal objectives of this Act are—

1. to establish the basis for the administration of juvenile justice; and

2. to establish a code for dealing with children who have, or are alleged to have, committed offences; and

3. to provide for the jurisdiction and proceedings of courts dealing with children; and

4. to ensure that courts that deal with children who have committed offences deal with them according to principles established under this Act; and

5. to recognise the importance of families of children and communities, in particular Aboriginal and Torres Strait Islander communities, in the provision of services designed to—

1. rehabilitate children who commit offences; and

2. reintegrate children who commit offences into the community.”

How the issue arises

4. [4]
   In these proceedings, the prosecution seek to rely on a document titled “Queensland Person History” (which was ultimately marked as Exhibit 3), which evidences the appearance before the Hervey Bay Childrens Court on 26 April 2023 in relation to offences charged as having been committed on various dates between 3 and 10 April 2023; being offences of enter premises and commit indictable offence, wilful damage, three offences of unlawful use of a motor vehicle and an offence of dangerous operation of a motor vehicle on 9 April 2023.  In addition, there was an offence of possession of property suspected of having been used in connection with the commission of a drug offence, alleged to have been committed on 24 April 2023.  That record indicates the disposition of those charges as follows:

“On all charges with traffic matters restorative justice – court diversion referral”.

5. [5]
   Also relied upon and marked as part of Exhibit 3, are copies of the transcripts of the proceeding in the Childrens Court at Hervey Bay on 26 April 2023, including the determination and reasons expressed by the Childrens Court Magistrate.  Such documents, as they purport to be a transcription of the recording of the proceedings on 26 April 2023, are received by court having the effect described in s 10(2) of the recording of Evidence Act 1962:

“As evidence of anything recorded in the document, except to the extent the document is shown not to be an accurate transcription of the record”. 

What is thereby revealed is that:

1. At the outset of the hearing, the defendant child’s legal representative indicated:

“I am instructed that my client would be pleading guilty to the charges and to proceed with sentence today”.

Shortly after that the Magistrate is recorded as saying:

“And I accept the pleas of guilty to the nine charges and I’ll hear from the prosecutor.”;

2. The prosecutor then outlined the facts relied upon in respect of the offending, without any demur from defendant’s legal representative and also indicated that the child had “no history”.  The legal representative for the defendant child, drawing attention to his age and remorse, acknowledgment of a need to change and not to mix with a “bad mix of friends”, willingness to “continue engaging with youth justice and engage with these programs”, aspirations for the future and what was submitted to be “a higher chance of rehabilitation”;
3. There was then an exchange which began with the defendant’s legal representative contending:

“I am submitting that a good behaviour bond, or your Honour, a community service order - - -”;

Before the Magistrate said:

“I am more minded to a restorative justice order, if he’s willing to attend.  I don’t know if it’s been explained to him”.

The legal representative responded:

“Yes.  And – your Honour, he is already on restorative justice program.  Yes your Honour …  If your Honour’s minded to sentence him that”;

4. The Magistrate then asked the defendant if he wanted to say anything, eliciting this exchange (as transcribed):

“DEFENDANT: That I’m willing – that I’m willing to go to youth justice if that’s – if that’s what’s submitted.  And that whatever char – like, whatever consequences are coming my way, then I’m willing to take them and I’m sorry for the actions that I’ve done.  And that’s it.

HIS HONOUR: You are very articulate.  You speak very well.  You’ve got no history and then you do this.  You cooperated with police.  You told them what – what had happened and some other things that [indistinct] of the dangerous operation of a motor vehicle.”; and

5. In the transcription of the decision, the Magistrate indicated a determination to take a lenient approach and being minded to “a restorative justice order as a court diversion referral”.  Then and after explaining the process would involve a meeting with people such as victims of the offences and the making of an agreement which would be the end of the matter, unless what was agreed was not done, in which case it would be returned to the Court and again obtaining the defendant’s statement of willingness to do that, the Magistrate said:

“Then I make a court diversion referral for a restorative justice order under section 164.  That is it.  Thank you.  You will get a notification about how to – where you have got to attend the program.”^[4]

6. [6]
   Although not directly raised as issues in respect of the effect of the order made, as it was expressly made in reference to “a court diversion referral … under s 164” of the YJA, it is of importance to note as some context for what is to be discussed below, some prospect of confusion in the language used in referring to a “restorative justice order” and the procedure which was adopted.
7. [7]
   A restorative justice order may be made as a sentencing order, pursuant to s 175(1)(da) (to order the performance of the child’s obligations in an agreement made as a consequence of “a presentence referral”) or (db) (to order that a child participate in a restorative justice process).  Such an order may be made “[w]hen a child is found guilty of an offence before the court”.  The provisions which govern the making of such orders are to be found in ss 192A to 192D.
8. [8]
   The provisions as to what is involved in a “restorative justice process”, are found in Part 3 of the YJA.  The concept of “restorative justice process” is defined in Schedule 4 to mean “a conference or an alternative diversion program”.  In schedule 4, a “conference” is defined to mean “a conference under part 3, division 2”. It will be convenient to later return to what is involved in a conference under division 2 of part 3 but it may be immediately noted that an “alternative diversion program” is defined by reference to s 38, which allows for a program to be agreed by the Chief Executive and the child, in the following terms:

“38Alternative diversion program

1. An alternative diversion program is a program, agreed to by the chief executive and the child, that involves the child participating in any of the following to address the child’s behaviour—

1. remedial actions;

2. activities intended to strengthen the child’s relationship with the child’s family and community;

3. educational programs.

2. The program must be designed to—

1. help the child to understand the harm caused by his or her behaviour; and

2. allow the child an opportunity to take responsibility for the offence committed by the child.

3. The program may not provide for the child to be treated more severely for the offence than if the child were sentenced by a court or in a way that contravenes the sentencing principles in section 150.

4. The program must be in writing and be signed by the child.

5. The chief executive must give the referring authority a copy of the alternative diversion program.”

9. [9]
   It is next convenient to note that the object of Part 3 of the YJA is stated, in s 30, to be:

“The object of this part is to provide for the use of a restorative justice process for a child who commits an offence.”

And that “the restorative justice process” is prescribed by s 31, as follows:

“31The restorative justice process

1. This part applies if a police officer or a court (each a referring authority) refers an offence to the chief executive for a restorative justice process.

2. The restorative justice process is to be a conference.

3. However, the restorative justice process is to be an alternative diversion program if—

1. the referral is made by a police officer under section 22 or made by a court under section 24A or 64; and

2. a conference can not be convened for any reason other than—

1. the chief executive being unable to contact the child after reasonable inquiries; or

2. the child being unwilling to participate in the conference.”

10. [10]
    It will be necessary to here focus upon the effect of the referral made on 26 April 2023, under s 164, as it appears in Division 4 of Part 7 of the YJA. 
11. [11]
    A Childrens Court dealing with any child offence which comes before that Court, is required to sentence the child under Part 7 of the YJA, “despite any other Act or law”.^[5] Division 1 of Part 7 contains provisions addressing a number of generally applicable matters for the purpose of sentencing child offenders, including, in s 150 a statement of the applicable sentencing principles, provisions in respect of pre-sentence reports and the provision and s 154, in respect of which the question in issue here, arises.
12. [12]
    Apart from noting that it is Division 4 which provides for the range of available sentencing orders which may be made in an exercise of sentencing discretion, including, as has been noted, a “restorative justice order”, Division 2 of Part 7 of the YJA, applies, separately, to firstly require consideration of the prospect of referral for “restorative justice processes”, before or instead of sentencing. It is useful to set out ss 161–165, as they constitute that division.

“161 Definitions for division

In this division—

child, in relation to a referral, means the child to which the referral relates.

court diversion referral see section 163(1)(d)(i).

offence, in relation to a referral, means the offence to which the referral relates.

162When court must consider making court diversion referral or presentence referral

1. If a child enters a plea of guilty for an offence in a proceeding before a court, the court must consider referring the offence to the chief executive for a restorative justice process instead of sentencing the child.

2. If a finding of guilt for an offence is made against a child before a court, the court must consider referring the offence to the chief executive for a restorative justice process to help the court make an appropriate sentence order.

163Power of court to make restorative justice process referral

1. The court may, by notice given to the chief executive, refer an offence to the chief executive for a restorative justice process if—

1. the court considers the child is informed of, and understands, the process; and

2. the child indicates willingness to comply with the referral; and

3. the court is satisfied that the child is a suitable person to participate in a restorative justice process; and

4. having regard to the deciding factors for referring the offence, the court considers the referral would—

1. allow the offence to be appropriately dealt with without making a sentence order (a court diversion referral); or

2. help the court make an appropriate community based order or detention order (a presentence referral); and

5. having regard to a submission by the chief executive about the appropriateness of the offence for a referral, the court considers the referral is appropriate in the circumstances.

2. In this section— deciding factors, for referring an offence, means—

1. the nature of the offence; and

2. the harm suffered by anyone because of the offence; and

3. whether the interests of the community and the child would be served by having the offence dealt with under a restorative justice process.

164Court diversion referrals

1. This section applies if the court makes a court diversion referral.

2. The making of the referral brings the court proceeding for the offence to an end and the child is not liable to be further prosecuted for the offence unless—

1. the chief executive returns the referral under section 32(1); or

2. the chief executive advises the court’s proper officer that the child failed to comply with a restorative justice agreement made as a consequence of the referral.

3. If subsection (2)(a) applies—

1. the court’s proper officer must bring the charge for the offence back on before the court for sentencing; and

2. in sentencing the child, the court must not have regard to the referral being returned.

4. If subsection (2)(b) applies, the court’s proper officer must bring the charge for the offence back on before the court for sentencing and the court must either—

1. take no further action; or

2. allow the child a further opportunity to comply with the agreement; or

3. sentence the child for the offence.

5. If the charge for the offence is brought back on before the court for sentencing, the court’s proper officer must give the child and the chief executive notice that the proceeding for the offence is to be heard by the court on a stated day.

6. The notice must include a warning that, if the child fails to appear before the court in compliance with the notice, the court may issue a warrant for the child’s arrest.

7. The notice restarts the proceeding from when it ended and the child is liable to be sentenced for the offence.

8. If the child fails to appear before the court in compliance with the notice, the court may issue a warrant for the child’s arrest.

9. If subsection (4)(a) applies, the court proceeding for the offence is brought to an end and the child is not liable to be further prosecuted for the offence.

165Presentence referrals

1. This section applies if the court makes a presentence referral.

2. On making the referral, the court may—

1. give the directions it considers appropriate to the child or the chief executive; and

2. adjourn the proceeding for the offence.

3. If the chief executive returns the referral under section 32(1), the court must proceed with sentencing the child for the offence.

4. If a restorative justice agreement is made as a consequence of the referral, the chief executive must—

1. give the court a copy of the agreement; and

2. inform the court of any obligations of the child under the agreement that have already been performed.

5. If a restorative justice agreement is given to the court under subsection (4), the court must give a copy of the agreement as soon as practicable to—

1. the prosecution; and

2. if the child is represented by a lawyer—the lawyer.

6. In sentencing the child for the offence, the court must have regard to—

1. the child’s participation in the relevant restorative justice process; and

2. the child’s obligations under the restorative justice agreement; and

3. anything done by the child under the restorative justice agreement; and

4. any information provided by the chief executive about sentencing the child.”

13. [13]
    As may be observed, the purpose of each of the differently prescribed referrals, which a Childrens Court is empowered to make by s 163, is notably different. On 26 April 2023 and despite the absence of any express reference to the deciding factors provided in s 163(2) or any specific determination, as required by s 163(1)(d), there was express reference to it being a diversionary referral and to s 164, which provides for the effect of such referral. That is, by s 164(2), unless the Chief Executive returns the referral under s 32(1) or advises the proper officer of the Court of failure of compliance with a conference agreement:

“The making of the referral brings the Court proceedings to an end and the child is not liable to be further prosecuted for the offence.”

Referrals may be returned, as follows:

“32Returning referrals

The Issues

14. [14]
    As it is understood the position taken for the defendant is that what is contained in Exhibit 3 is not to be regarded as part of the defendant’s criminal history, or for that matter his previous offending history, as referred to in s 150(1)(e) of the YJA, and therefore in that way, an aggravating circumstance of the offending that the Court is now dealing with, particularly as it occurred on 30 April 2023.
15. [15]
    Otherwise, it was expressly accepted that there was no objection to such circumstances being placed before the Court, to the extent to which they are also noted in the pre-sentence report and particularly the report of the neuro-psychologist Dr Hatzipetrou, in terms of his assessment of the offending behaviour and the child’s prospects of rehabilitation and risks of re-offending. Upon reflection, that concession, from a legal rather than pragmatic perspective, does not depend upon application of any of the confidentiality provisions of the YJA, except perhaps to note s 289(a). Rather, it may be seen to flow from the provisions relating to the order made on 23 July 2024 that a pre-sentence report, to include a neuro-psychological report, was to be prepared pursuant to s 151 of the YJA. In particular, s 151A permits the Chief Executive to “make information about a child obtained under this Act or another Act, available to a person in order to assist the chief executive to provide” the report ordered pursuant to s 151(1). As occurred in this matter, s 152 allows for the requirement of a person who provided information in the pre-sentence report, to attend before the court to provide further information. It may then be noted that s 153A provides:

“153APermitted use and disclosure of information in a pre-sentence report

1. This section applies to information—

1. given under section 152; or

2. included in a pre-sentence report.

2. Subject to a direction given under section 153(3), nothing in this Act or another Act limits or restricts the use or disclosure of the information in court.

3. Nothing in this section permits the publication of information that contravenes the Child Protection Act 1999, section 189.”

All of this may be seen as particularly directed to the requirement in s 150(1)(h) that the Court must have regard to:

“(h) any information about the child, including a pre-sentence report and bail history, provided to assist the court in making a determination.”

16. [16]
    The point in issue relates to the prosecution reliance upon the circumstances as disclosed in Exhibit 3, as being evidence of the prior offending history of the defendant upon three bases:

    1. As representing that prior offending history at the time of the commission of offences, particularly on 30 April 2024;
    2. As representing the child’s prior offending history for the purpose of sentence; and
    3. To the extent that s 154(3) may operate to exclude such information being so regarded, it is not so engaged because failure of compliance with all of the requirements of s 36 of the YJA, meaning that no agreement was actually made upon the diversionary referral.

Discussion

17. [17]
    There is nothing which defines or elaborates upon the requirement made by s 150(1)(e) that:

“In sentencing a child for an offence, a court must have regard to:-

….

5. the child’s previous offending history”.

In particular, there is nothing which even touches upon the effect of the provisions in the Penalties and Sentences Act 1992 (“PSA”), as they relate to the sentencing of adult offenders, notably the following:

“9Sentencing guidelines

…

10. In determining the appropriate sentence for an offender who has 1 or more previous convictions, the court must treat each previous conviction as an aggravating factor if the court considers that it can reasonably be treated as such having regard to—

1. the nature of the previous conviction and its relevance to the current offence; and

2. the time that has elapsed since the conviction.

11Matters to be considered in determining offender’s character

1. In determining the character of an offender, a court may consider—

1. the number, seriousness, date, relevance and nature of any previous convictions of the offender; and

2. the history of domestic violence orders made or issued against the offender, other than orders made or issued when the offender was a child; and

3. any significant contributions made to the community by the offender; and

4. such other matters as the court considers are relevant.”

18. [18]
    In s 4 of the PSA, “conviction” is defined to mean “a finding of guilt or the acceptance of a plea of guilty, by a Court.” Section 12 of the PSA permits, in certain circumstances, an exercise of discretion to not record a conviction, with the following stated effects:

“12Court to consider whether or not to record conviction

…

3. Except as otherwise expressly provided by this or another Act—

1. a conviction without recording the conviction is taken not to be a conviction for any purpose; and

2. the conviction must not be entered in any records except—

1. in the records of the court before which the offender was convicted; and

2. in the offender’s criminal history but only for the purposes of subsection (4)(b).

(3A)Despite subsection (3)(b), the conviction may be entered in a record kept by a department, a prosecuting authority or the offender’s legal representative if it is necessary for the legitimate performance of the functions of the department, prosecuting authority or legal representative.

4. A conviction without the recording of a conviction—

1. does not stop a court from making any other order that it may make under this or another Act because of the conviction; and

2. has the same result as if a conviction had been recorded for the purposes of—

1. appeals against sentence; and

2. proceedings for variation or contravention of sentence; and

3. proceedings against the offender for a subsequent offence; and

4. subsequent proceedings against the offender for the same offence.

5. If the offender is convicted of a subsequent offence, the court sentencing the offender may disregard a conviction that was ordered not to be recorded but which, under subsection (3)(b)(ii), is entered in the offender’s criminal history.”

19. [19]
    The concept of “criminal history” is not defined in either the PSA or the YJA but it is a concept which predates each of these Acts and also as is it expressly defined for the purposes of the Criminal Law (Rehabilitation of Offenders) Act 1986, as a reference to a record made of the history of offending and sentencing orders made in respect of such offending by a Court.
20. [20]
    The relevant definitions in the Criminal Law (Rehabilitation of Offenders) Act are:

“conviction means a conviction by or before any court for an offence, whether recorded, in Queensland or elsewhere, before or after the date of commencement of this Act.

criminal history means, in relation to any person, the convictions recorded against that person in respect of offences.”^[6]

21. [21]
    That Act has application to the concept of criminal history as it applies generally and not just in respect of subsequent court proceedings. For example, by ss 6, 8 and 9, in providing for a rehabilitation period after which even recorded convictions are not disclosable and may be lawfully denied by a person (subject to some exceptions) and are to be disregarded. However, these provisions do not affect the disclosure of a person’s criminal history for some purposes, including to a court for the purpose of dealing with subsequent offending, as made clear by s 4:

“4Construction of Act

1. This Act shall be construed so as not to prejudice any provision of law or rule of legal practice that requires, or is to be construed to require, disclosure of the criminal history of any person.

2. This Act shall be construed so as not to relieve any person from a responsibility that rests on the person to disclose his or her criminal history in connection with seeking admission to or offering himself or herself for selection for any profession, occupation or calling prescribed by regulation.

3. This Act shall not be construed to prohibit or hinder the provision by any person of particulars of the criminal history of any person to a Crown prosecutor, a police prosecutor or other person prosecuting upon a charge of an offence with a view to those particulars being disclosed to the court in the event of the defendant being convicted.”

22. [22]
    However, it is also necessary to note s 5, which provides:

“5Matter excluded from criminal history

1. It is declared that a conviction that is set aside or quashed and a charge are not part of the criminal history of any person.

2. A person shall not be required or asked to disclose and, if so required or asked, shall not be obliged to disclose for any purpose a conviction that is not part of the person’s criminal history or of the criminal history of another person or a charge made against the person or another person.

3. Subsection (2) does not apply where the requirement or request to disclose a conviction or charge therein referred to is made—

1. for the purposes of an inquiry being conducted pursuant to authority conferred by or under an Act; or

2. in criminal or civil proceedings before a court if the fact of the conviction or charge is relevant to an issue in the proceedings or the court has granted permission for the requisition or request to be made.”

The definition of “charge” is s 3 as follows:

“charge means an allegation formally made in court that a person has committed an offence where—

1. the allegation is not pursued to a final determination in a court; or

2. a conviction is not recorded by a court in respect of the allegation; or

3. a conviction recorded by a court in respect of the allegation is to be deemed, pursuant to law, not to be a conviction.”

23. [23]
    In subsequent sentencing proceedings, considerable nuance may arise in having regard to the criminal history of an offender, which in case of adult offenders will include earlier instances where there has been an order for no conviction to be recorded. The generally recognised principles are that such reference will not be for any purpose of again sentencing an offending for past offending, but rather for the particular context it may provide in understanding the significance of the offending to be dealt with and in potential aggravation of it. Such reference is not just to the past committed offences but also to the types of orders made and whether or any order for a conviction not to be recorded was made.  Particular nuance may arise in respect of the age of particular entries and whether and what significance may be attached to any substantial history of non-offending in any part of preceding period. The response to previous sentencing orders may be of significance, as will be an understanding of any existing or uncompleted orders. Some distinction may be necessary as between offences and orders made before the subject offending and orders which may have been made subsequently and whether for offences committed before or after the subject offences and/or other earlier orders. In this context, significance may lie in understanding the nature and progression of prior orders as well the nature and extent of past offending, in any aggravating sense, in demonstration of any “continuing attitude of disobedience of the law” or “illuminat[ion of] the moral culpability of the offender” or demonstration of any “dangerous propensity or …. need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.^[7]
24. [24]
    Returning to the YJA, it is first notable that by s 150(1)(a), there is requirement to have regard to, “subject to this Act, the general principles applying to the sentencing of all persons”. There is express reference to s 5(3)(b) of the Criminal Law (Rehabilitation of Offenders) Act 1986 in s 148, which relevantly provides as follows:

“148Evidence of childhood finding of guilt not admissible against adult

1. In a proceeding against an adult for an offence, there must not be admitted against the adult evidence that the adult was found guilty as a child of an offence if a conviction was not recorded.

2. Subsection (1) applies even though the evidence would otherwise be admissible under the Evidence Act 1977, section 15 and the Criminal Law (Rehabilitation of Offenders) Act 1986, section 5(3)(b).”

And also in s 154, to that Act generally, as follows:

“154Finding of guilt as child may be disclosed while a child

25. [25]
    The concept of “finding of guilt against a child” is defined in Schedule 4 of the YJA as follows:

“finding of guilt means a finding of guilt, or the acceptance of a plea of guilty, by a court, whether or not a conviction is recorded.”

 In the YJA, s 183 provides the power for an order that no conviction be recorded “against a child who is found guilty of an offence”, having regard to the considerations in s 184.

26. [26]
    The effect of s 154(1) is therefore similar to that generally achieved pursuant to dealing with adults under the PSA and the Criminal Law (Rehabilitation of Offenders) Act 1986, in that a Childrens Court in sentencing a child, may have regard to the history of prior sentencing orders in respect of the child regardless as to whether or not there was a recorded conviction.
27. [27]
    However, the incorporation of the concept of “finding of guilt” into s 154(3) is somewhat curious. This is because of the expressly different bases upon which s 162 of the YJA is engaged so as to require a court to consider the exercise of the respective powers of referral provided in s 163(1). In relation to a referral “for a restorative justice process to help the Court make an appropriate sentence order” (a presentence referral pursuant to s 163(1)(d)(ii)), it is expressly pre-conditioned as to there being “a finding of guilt”, which logically and having regard to the definition of that concept in Schedule 4 is not to be restricted to a verdict after trial but to also include a court’s acceptance of a guilty plea. Whereas and in respect of the power to which s 154(3) is expressly directed, to make “a court diversion referral” pursuant to s 163(1)(d)(i), the necessity to consider referral “for a restorative justice process instead of sentencing a child” is engaged upon the pre-condition that “a child enters a plea of guilty for an offence in a proceeding before a court”. Moreover and if such referral is made, the stated effect pursuant to s 164(2) is that:

“(2)The making of the referral brings the court proceeding for the offence to an end and the child is not liable to be further prosecuted for the offence unless—

1. the chief executive returns the referral under section 32(1); or

28. [28]
    There is some obvious tension with the notation engaged in s 154(3) that there is a “finding of guilt” involved when there is a court diversion referral pursuant to s 163(1)(d)(i), because the concept of the acceptance of a guilty plea by a court is usually associated with such acceptance for the purpose of proceeding to and sentencing the offender. That is, in terms of formalising the conviction for the offence.^[8] So much may be gleaned from the allocutus which is regularly administered for proceedings on indictment, in accordance with s 648 of the Criminal Code and in the following form, as prescribed in rule 51(1) of the Criminal Practice Rules 1999:

“‘AB, you have been convicted [for a plea of guilty say ‘on your own plea of guilty’] of [state the offence charged in the words of the indictment or by stating the heading of the schedule form for the offence]. Do you have anything to say as to why sentence should not be passed on you?’.”^[9]

29. [29]
    However and as noted in R v Nerbas,^[10] it is well recognised that up until the point of sentence, a guilty plea and therefore any conviction of a defendant, is liable to be set aside “if a miscarriage of justice had occurred or would occur if leave was refused”.^[11] As explained in R v Wade,^[12] albeit in terms of describing a similar situation in respect of an attempt to go behind the plea of guilty on appeal against conviction, after sentence:

“A miscarriage of justice may be established in circumstances in which for example: in pleading guilty, the accused did not appreciate the nature of the charges or did not intend to admit guilt; on the admitted facts, the accused would not, in law, have been liable to conviction of the subject offences; the plea was not made freely and voluntarily, such as where it was obtained by an improper inducement or threat or it is shown that the plea was “not really attributable to a genuine consciousness of guilt”. And, of course, it will normally be impossible to show a miscarriage of justice unless an arguable case or triable issue is also established.”

30. [30]
    Reference to these principles is warranted because in the exercise of the jurisdiction of the Childrens Court, pursuant to the YJA in respect of offences committed or allegedly committed by children, it is provided that the usual laws in the Criminal Code and the Justices Act 1886 and other relevant Acts, respectively apply, “with all necessary modifications and any prescribed modifications”, subject to any inconsistency with any provision of the YJA.^[13]
31. [31]
    Although s 648 of the Criminal Code is also engaged “[w]hen an accused person pleads that the person is guilty of any offence”, s 162(1) of the YJA operates, in distinction from s 162(2), upon the mere incidence of the guilty plea and then requiring decision as to whether to engage a court diversion referral “instead of sentencing the child”. By way of contrast, s 162(2) is premised upon there being “a finding of guilt” and the prospect of a pre-sentence referral helping the Court make an appropriate sentencing order. Further, the requirement in s 648 of the Criminal Code is that the accused person or defendant is to be asked “whether the person has anything to say why sentence should not be passed upon the person”. A possible response to the allocatus is recognised in s 649 in terms of a motion to arrest judgement. Whilst it may be noted that s 650 of the Code then provides that “[i]f a motion to arrest the judgment is not made or is dismissed, the court may pass sentence upon the offender forthwith or make any other order it may make by law instead of passing sentence”, that may be seen as in reference to alternatives to passing the usual forms of sentence upon conviction of an offender. In contemporary terms, there is reference to orders “instead” of sentence in ss 30 to 32 of the Penalties and Sentences Act 1992 but and having regard to s 29, there is a conviction whether or not it is recorded.
32. [32]
    It would appear to be a pointless exercise to proceed to administer the allocatus, in accordance with s 648, at least until the determination required by s 162(1) of the YJA is made. Although it might be suggested that a response to the allocatus, if it were earlier administered, could be to refer the Court to its obligation under s 162(1), that would also appear to be pointless, as it is the expressed statutory obligation and in any event, could not then be regarded as amounting to the Court’s acceptance of the guilty plea for the purpose of proceeding to sentence.
33. [33]
    Otherwise and again in contrast to the obligation under s 162(2) of the YJA, if there is a determination to make the court diversion referral, it, consistently with principal 5 of the Youth Justice Principles as set out in the Charter in Schedule 1 to the YJA, is for the engagement of a process for diversion from the criminal justice system. In that sense, such a referral may be viewed in the context of the other provisions of the YJA, which also provide opportunities for such diversion to occur.
34. [34]
    First, it may be noted that s 22(2) permits a police officer to:

“(2)Instead of bringing the child before a court for the offence, the police officer may, by written notice given to the chief executive, refer the offence to the chief executive for a restorative justice process.”

The pre-condition expressed in s 22(1) is that the child has admitted committing the offence to a police officer. The exercise of that power is then regulated as follows:

“(3)However, the police officer may make the referral only if—

1. the child indicates willingness to comply with the referral; and

2. having regard to the deciding factors, the officer considers—

1. a caution is inappropriate; and

2. a proceeding for the offence would be appropriate if the referral were not made; and

3. the referral is a more appropriate way of dealing with the offence than starting a proceeding.

4. The deciding factors for referring an offence to the chief executive for a restorative justice process are—

1. the nature of the offence; and

2. the harm suffered by anyone because of the offence; and

3. whether the interests of the community and the child would be served by having the offence dealt with under a restorative justice process.”

As is made clear by s 23 and s 24(3)(d), the referral to a restorative justice process is a diversionary alternative to the commencement of a procedure to bring a child before a court.

35. [35]
    Also, it is to be noted that in addition to the power granted to a Childrens Court to make a “court diversion referral” as referred to in s 164, another way in which a diversionary referral might occur by court order, is pursuant to an application made under s 24A of the YJA. This allows for an effect of dismissal of the charge, as is the effect of a referral by a police officer: see s 23 and s 24 of the YJA, in particular noting that ultimately and upon the return of any such referral to a police officer or failure of compliance with a restorative justice agreement, the police officer is empowered, amongst other options, by s 24(3)(d), to “start a proceeding against the child for the offence”. Relevantly, the following part of s 24A should be noted:

“24AChildrens Court may dismiss charge if offence should have been referred to restorative justice process

1. any cautions administered to the child for any offence; and

36. [36]
    A similar provision is to be found in s 21, as that provision also permits of an application for dismissal, upon the basis that a child “should have been cautioned instead of being charged or no action should have been taken against the child”. The provisions in respect of cautioning children, as another means of diversion from the court’s criminal justice system, are to be found in Division 2 of Part 2 of the YJA and informed by s 11, which relevantly requires that:

“11 Police officer to consider alternatives to proceeding against child

1. Unless otherwise provided under this division, a police officer, before starting a proceeding against a child for an offence other than a serious offence, must first consider whether in all the circumstances it would be more appropriate to do 1 of the following—

1. to take no action;

2. to administer a caution to the child;

3. to refer the offence to the chief executive for a restorative justice process;

4. if the offence is a minor drugs offence and the child may be offered a drug diversion warning or the opportunity to participate in a drug diversion assessment program under the Police Powers and Responsibilities Act 2000, chapter 14, part 4, division 5—to offer the child the warning or opportunity in accordance with that division;

5. if the offence is a graffiti offence and the child may be offered an opportunity to attend a graffiti removal program under the Police Powers and Responsibilities Act 2000, section 379A—to offer the child that opportunity in accordance with that section.

Note—

Because of section 134, a police officer must consider offering the same opportunities for diversion from the court system as apply to a child to a person who committed an offence as a child but is now an adult.

2. The circumstances to which the police officer must have regard include—

1. the circumstances of the alleged offence; and

2. the child’s criminal history, any previous cautions administered to the child for an offence and, if the child has been in any other way dealt with for an offence under any Act, the other dealings.”

“Serious Offence” is defined by s 8 to be any offence for which an adult offender would be liable to a minimum penalty of life or 14 or more years imprisonment, with noted exceptions including any such offences which must be dealt with summarily, in accordance with ss 552, 552B and 552BA (including those where a defendant may elect for jury trial).

37. [37]
    In respect of the exercise of the powers to caution a child, whether by a police officer or a court and despite any apparent necessity to do so, there are express provisions that “[t]he caution is not part of the child’s criminal history” (respectively in s 15(3) and s 21(4)). There is no such provision in respect of the other noted provisions allowing for referral for a restorative justice process, but it is clear that no finding of guilt could arise in the pertaining circumstances of any such referral. It is tolerably clear that the purpose of s 154(3) is also to make clear that a court diversion referral, at least subject to the stated parameters, which are themselves also problematic and to be further discussed below, is not to be considered as part of the child’s criminal history. Although the reference to there being a finding of guilt involved, may not sit conformably with the principles which have been noted in respect of the administration of the allocatus, perhaps the concern here may be with the precondition as to a guilty plea being entered and the sense that the court acts upon it in making the court diversion referral and in that sense, may be seen as accepting that plea. Here and as the prosecutor has pointed out to this Court, the Magistrate’s response on 26 April 2023, immediately after the indication by the defendant’s lawyer of his instructions to plead guilty, was expressed in terms of her acceptance of those pleas. But that occurred as continues to be a common practice before Magistrates of there being no formal process of arraignment nor administration of the allocutus.
38. [38]
    It is then of importance to understand that the differential references to “the child’s previous offending history”, in s 150(1)(e), and “the criminal history of the child”, in s 154(1), have been in this legislation since it was first enacted as the Juvenile Justice Act 1992, although then in provisions respectively numbered s 109(1)(e) and s 113(1). The purpose of the later provision as it now appears in the renamed Youth Justice Act 1992, in s 154(1), is, as it states, to identify the criminal history “to which regard may be had by a court that subsequently sentences the child for any offence as a child” and to include regard to previous convictions for which no recording was ordered. This provision would be otiose if some wider conception of offending history was permissible in respect of s 150(1)(e) and for the reasons already provided, what the prosecution submission seeks to avail here is also in conflict with the clear effect of s 154(3) in excluding this material from that history of the child to which the Court may have such regard. Nor would such a view be consistent with the other noted expressed exclusion of references to cautioning of children from the criminal history rather than offending history of a child.
39. [39]
    Neither is there to be any distinction availed in terms of it being part of this child’s prior offending history as at 19 or 30 April 2023. As has been noted, s 150(1)(e) is engaged as a matter to which a court must have regard in “sentencing a child for an offence” and not at any earlier postulated point in time.
40. [40]
    Neither is it to be concluded that the operation of s 154(3), or the effect of it, is to be excluded by reference to the stated parameters.
41. [41]
    There will be necessity to refer to the evidence as this in some greater detail below, but it is common ground that upon the referral, which was made, albeit well after the commission of the offending on 30 April 2023, a conference was convened pursuant to s 35, which provides as follows:

“35 Convening conference

1. The conference may be convened only if—

1. the child and the convenor attend the conference; and

2. there is a degree of victim participation in the conference through— (i) the attendance of the victim or a representative of the victim; or

2. the use of pre-recorded communication recorded by the victim for use in the conference; or

3. a representative of an organisation that advocates on behalf of victims of crime.

2. The convenor is responsible for convening the conference and must be independent of the circumstances of the offence.

3. The conference must be directed towards making a conference agreement.

4. If the child is not legally represented at the conference, the convenor must ensure the child—

1. is informed of the right to obtain legal advice; and

2. has reasonable information about how to obtain legal advice and a reasonable opportunity to do so.

5. The conference ends when a conference agreement is made or the convenor brings the conference to an end because—

1. the child fails to attend the conference as required; or

2. the child denies committing the offence at the conference; or

3. convenor concludes a participant’s conduct or failure will result in a conference agreement being unlikely to be made; or

4. the convenor concludes a conference agreement is unlikely to be made within a time the convenor considers appropriate.

6. If the conference ends without a conference agreement but the convenor considers it is worthwhile persisting with efforts to make a conference agreement, the convenor may convene another conference.”

 It is also to be noted that the following definition is in Schedule 4:

“convene a conference includes anything necessary to be done for the purpose of the convening of the conference, including, for example, preparing for and conducting conference meetings and doing anything necessary to finalise the conference.”

42. [42]
    Further, it is common ground that the conference was concluded at the point of what was understood to be an agreement as to what the child was to do, in accordance with s 36(1) of the YJA. It is convenient to set out all of s 36:

“36 Conference agreement

1. A conference agreement is an agreement reached at the conference—

1. in which a child admits committing the offence; and

2. in which the child undertakes to address the harm caused by the child committing the offence.

2. The conference agreement must be in the approved form and be agreed to and signed by—

1. the child; and

2. the convenor; and

3. if a representative of the commissioner of the police service participates in the conference—the representative; and

4. if a victim of the offence participates in the conference—the victim.

Note—

If a court makes a presentence referral, the court must, amongst other things, have regard to the child’s obligations, and anything done by the child, under the conference agreement in sentencing the child for the offence. See section 165(6).

3. The conference agreement may not provide for the child to be treated more severely for the offence than if the child were sentenced by a court or in a way that contravenes the sentencing principles in section 150.

4. A copy of the conference agreement must immediately be given to each person who signed the agreement.

5. To remove any doubt, it is declared that the conference agreement may contain a requirement that the child must comply with outside the State.

Example—

A conference agreement may require the child to perform voluntary work for a charity that is located outside the State.”

43. [43]
    Neither is there any disputation that the child has done what was agreed for him to do, at that conference. However, the prosecution contention is that s 154(3) is not engaged here so that the finding of guilt involved in this referral is not excluded from the criminal history and therefore the previous offending history to which the Court must have regard, due to lack of strict compliance with the requirements of s 36(2). As that is understood, the contention is that as “restorative justice agreement” is defined in Schedule 4 to mean:

“(a) a conference agreement; or

   (b) an alternative diversion program agreed to by the chief executive and the child who is to complete the program.”;

 and conference agreement is defined as: “conference agreement see section 36”, the absence of strict compliance with the requirements of s 36(2), means that no such agreement has been “made as a consequence of the referral”.

44. [44]
    Initially, there was a document, identified as coming from Youth Justice records which had been subpoenaed by the prosecution,^[14] and tendered for the defendant to evidence the restorative justice agreement that had been made as a consequence of the referral. It was marked as Exhibit 4 and is a completely typed version of a “Restorative Justice Agreement (Form 9)”.^[15] It contains reference to a conference convened on 2 November 2023 and the details of the conference agreement, in terms of a timeline for things to be done by the defendant, specifically by 6 January 2024 for finalisation by 10 January 2024. As has been noted, there is no dispute about any of that or the completion and finalisation of that agreement, as recorded. The point originally taken was specifically as to the absence of the signature of the convenor on this document, as required by s 36(2)(b).
45. [45]
    Subsequently and in the course of the hearing of sentencing submissions on 18 November 2024, another copy of the agreement form which had been marked as Exhibit 4 with an attached handwritten document, also headed “Restorative Justice Agreement (Form 9)”, was identified. The handwritten document replicates the typed information in the typed forms but also has the signatures of the convenors and a police officer but not the child, and the notation “(R J Process convened through teams)”. After evidence from one of the convenors, Ms Wright, as to a process whereby this conference was conducted from Hervey Bay whilst the defendant remained at the  Brisbane Youth Detention Centre, utilising the Teams platform or application, and her explanation as to the typed version being prepared and sent to that detention centre for the child’s signature and return to her on 8 November 2023, that was tendered and marked as Exhibit 14.^[16]
46. [46]
    However, the issue then became the absence of the signatures of any of the victims who had participated in the conference. Ms Wright had explained that there was such participation by two victims, at Hervey Bay and another by Teams. She conceded the absence of their signatures on the agreement form and only proffered an explanation that at the conclusion of the conference there was a debriefing process, which was occurring late in the day and which included the completion of satisfaction forms by the victims and police officer who participated at Hervey Bay. These forms were marked as Exhibit 15, but do not have any signature of the person completing the form. Although, those forms which have been discernibly completed by the victims who attended in person (by ticking various boxes as to a pre-printed range of options to various questions), have an indication of at least some level of satisfaction with “the agreement made in the conference”.^[17]  Ms Wright also explained that the victim who had participated by Teams was not involved in the debriefing process due to having commitments in respect of child caring.^[18]
47. [47]
    On this basis, the contention is maintained that there has been absence of compliance with the requirements of s 36(2)(d) and therefore no conference agreement “made as a consequence of the referral”.
48. [48]
    In this instance, what occurred on 2 November 2023, was in the exercise of the statutory power provided in s 35 of the YJA, to convene a conference directed towards making a conference agreement. The provisions in s 36(2) are directed at the formalities of the recording of any agreement that may be reached at such a conference and not at any pre-condition for doing so. The issue as to whether there is any invalidity in a purported reaching or making of an agreement without full compliance with those requirements is to be addressed by regard to the principles discussed in Project Blue Sky v Australian Broadcasting Authority:^[19]

“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.

49. [49]
    Here there is no such legislative purpose to be discerned and particularly so as to disengage the legislative intent of s 154(3), so as to undermine what is the intent of s 154(1) of the YJA as that is directed at a criminal history reflective of the offences for which sentencing orders have been made against a child:

    1. The requirements of s 36(2), whilst obviously expected to be complied with, are most readily seen at creating a formal record of any agreement reached at a conference, as a means of providing the basis for any subsequent determination by the Chief Executive requiring advice to the referring court, pursuant to s 164(2)(b), due to failure of compliance by the child with the agreement, or the exercise of further power by a police officer for the same reason, pursuant to s 24(1)(b) of the YJA;
    2. Whilst s 34 prescribes who may participate in a conference and victim participation is given some emphasis, including in noting that one of the bases upon which a referral may be returned to a referring authority, pursuant to s 32(1)(c), is that “the chief executive considers it necessary for a victim of the offence to participate and the victim does not want to participate or can not be located after reasonable enquiries”, the requirements of s 35(1) only extend to the participation of the convenor,^[20] the child and “a degree of victim participation”, as follows:

“(1)The conference may be convened only if—

1. the child and the convenor attend the conference; and

3. There is the potential of pragmatic difficulties with the concept of “participation of a victim in a conference, having regard to the different degrees of participation permitted by s 35(1)(b);
4. It is otherwise clear that it is the convenor who exercises the powers under s 36 to determine any conference agreement, with the specific requirements of the agreement being that the child “admits committing the offence” and “undertakes to address the harm caused by the child committing the offence”; and
5. There is also the alternative of an alternative diversion program, for appropriate circumstances where a conference cannot be convened though no difficulty created by the referred child and where the referral is otherwise not to be returned because of consideration as to necessity for victim participation with the expressed purpose in s 38(2), that:

“The program must be designed to—

Conclusions

50. [50]
    In these circumstances, it is not appropriate to conclude that there is any legislative intention to invalidate any conference agreement which does not have the signatures of all victims who participate in the conference on the written record of that agreement. Obviously in terms of the reference in s 36(1) to an agreement reached at a conference at which there may be multiple participants, that may be expected to occur by discussion and some sense of verbal agreement which may then be recorded and implemented. However and as has been noted, it is the convenor who has the particular responsibilities for conducting and finalising the conference. The requirements of s 36(2) may be more readily seen as directed at formalising and evidencing the finalised agreement in order to facilitate the implementation of it. There is no discernible intention in this statutory scheme to invalidate a process which has been implemented as a court diversion referral and not returned to the Court, so that the effect of s 164(2), in that “[t]he making of the referral brings the court proceeding for the offence to an end and the child is not liable to be further prosecuted for the offence”, is not thereby overcome.
51. [51]
    Further and in any event in that same context, there is a question as to what is meant in s 154(3), as to an agreement which is “made as a consequence of the referral” and so that and despite that underlying basis of the referral, it would be part of a child criminal history, whereas in the absence of defect of compliance with s 36(2), it would not be.
52. [52]
    There is also an apparent difficulty in approaching s 154(3)(b) literally, or at face value. That is because on such a basis it, illogically, would be effective to exclude from the operation of  s 154(1) a situation where subsequently to a restorative justice agreement being “made”, the matter is returned to the referring court pursuant to s 164(2)(b), upon the basis of failure of compliance “with a restorative justice agreement made as a consequence of the referral”, and where pursuant to s 164(4)(c), the child is sentenced for the offence. That would be an absurd result, which also tends to highlight the difficulty discussed earlier as to the adoption of the concept of “finding of guilt” in s 154(3).
53. [53]
    Perhaps the chosen language was meant to deal with the potential complications of s 164(4)(a) where upon the return of a referral under s 164(2)(b) for want of compliance with a restorative justice agreement, the referring court might determine to take no further action, with the expressed consequence in s 164(9) that “ the court proceeding for the offence is brought to an end and the child is not liable to be further prosecuted for the offence”. Any difficulty is simply postponed if s 164(4)(b) is the option adopted by the court. But the apparent effect of s 154(3), if s 164(4)(c) is the adopted option, must be regarded as not just absurd but unintended as a statutory purpose, having regard to what is otherwise the clear effect of s 154(1).
54. [54]
    As has already been noted, on a traditional view of general principles applicable to sentencing offenders, there may have been no necessity for the introduction of s 154(3). In any purposive approach to that addition, it may only be discerned to be to make clear the exclusion of circumstances relating to court diversion referrals from a child’s criminal or offending history “to which regard may be had by a court that subsequently sentences the child for any offence as a child”, where there is no return of the court diversion referral and resulting sentence order. However, it is unnecessary to determine any such a construction point. What is clear upon this examination of the provision, is that there is no support for any conclusion of a statutory purpose to invalidate the agreement reached at the conference convened on 2 November 2023, upon the court diversion referral, and therefore relevantly made as a consequence of the referral.

This conclusion provides all the more reason for the conclusion that in sentencing this child offender, the circumstances relating to his appearance before the Childrens Court Magistrate at Hervey Bay on 26 April 2023, is not to be regarded as part of that child’s criminal history, within the meaning of s 154 of the Youth Justice Act 1992 (“YJA”) and accordingly his previous offending history, within the meaning of s 150(1)(e) of the YJA.