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Unreported Citation: [2018] QCA 179

In this significant recent matter, the court allowed an appeal by an applicant who had been convicted as an adult for offences against a child under 12, committed whilst he himself was a child, in late 2000. The judgment provides a comprehensive overview of the considerations to which a court must have regard in determining appropriate penalties in accordance with s 144 of the Youth Justice Act 1992.

Sofronoff P and Crow and Ryan JJ

3 August 2018

The applicant sought leave to appeal against the sentences imposed upon him, or in the alternative, that the penalty sought at first instance of probation with no convictions recorded be substituted. [8]. At trial, he had been sentenced to imprisonment for four months and nine months on the relevant counts, to be served concurrently, wholly suspended, for an operational period of nine months. He was also convicted, with the consequence that he became a “reportable offender” pursuant to the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004. [4], [5]. That had implications for his future employment.

The court’s review of the sentencing hearing revealed a number of aspects of note ([16] [18], [19], [39]). In particular, R v PGW (2002) 134 A Crim R 593, appellate authority for guidance for sentencing courts regarding the application of s 144 of the Youth Justice Act 1992, was not cited by either counsel.

The direct relevance of R v PGW

The court identified R v PGW as providing valuable guidance to sentencing courts dealing with an offender in accordance with s 144 of the Youth Justice Act 1992. In that matter, a similarly unique case in that both offender and victim were children at the time of the offending, de Jersey CJ observed that whilst it is the case that society rightly expects punitive and deterrent responses from the court in cases of sexual misconduct, in circumstances where offender and victim were, at the time, in law, and “in development, comparatively immature”, justification must exist in order for a sentencing court to take a stronger line when dealing with the offender as an adult. [47].

In the court’s view, at first instance the learned sentencing judge in the present matter ought to have been referred to PGW and had that occurred, “his Honour would have appreciated the need to consider, in the exercise of his sentencing discretion, whether anything in the circumstances justified the applicant being treated more harshly than he would have been had he been sentenced as a child”. [51]. Further, the court regarded PGW as providing a “yardstick” against which to assess a suitable penalty for the applicant’s less serious offending. [52].

In the court’s assessment given the lack of assistance from counsel in that he was not referred to the applicable authorities, his Honour erred in applying the principles in s 144(2)(b) of the Youth Justice Act 1992. [54]. Whilst acknowledging that he had due regard to the sentence that might have been imposed upon the applicant had he been sentenced as a child, his Honour failed to have regard to whether anything tangible warranted sentencing the applicant more harshly as an adult. [55]. Finally, his Honour erred in concluding that the applicant would have “exposed himself [as a child] to the potential of a detention order for offending of this nature, particularly after pleas of not guilty”. In the court’s view, that matter was unsupported by either the comparable cases or the relevant principles which would have applied to the applicant’s sentence as a child. [56].

Exercising the sentencing discretion afresh

In deciding the appropriate penalty afresh, the court observed that the bulk of sentences imposed upon juveniles for similar offending from 2004 onwards generally illustrate a sentencing trend with a view to rehabilitation by way of probation, instead of the recording of convictions. It was disinclined to think that sentences which might have been imposed in 2001, which were less easy to obtain, would have been more severe. [74], [75]. It also noted the following relevant points:

  1. The penalty imposed in PGW (12 months’ imprisonment, wholly suspended, for 18 months, overturned on appeal), suggested that the sentence in the present case was manifestly excessive; [45], [46], [79]
  2. The recording of a conviction might result in punishment of an offender well after appropriate punishment had been received, resulting in oppression: see R v Briese Ex parte Attorney-General (Qld) [1998] 1 Qd R 487; [86]
  3. The applicant had become a law abiding functional member of society; [87]
  4. The potential existed for the applicant to be hindered in employment and socially; [88]
  5. The applicant posed no appreciable risk of reoffending. [105].

Upon carefully assessing all relevant matters the court was not of the view that a harsher sentence than that which might have been imposed upon the applicant had he been sentenced as a child was warranted, critically noting that:

“Nothing suggests that a recorded conviction should follow him – it is unlikely that he will sexually re-offend against children, and he is, regardless, a disqualified person.” [122].

Given the above, the appeal was allowed; the sentences below were set aside; and no convictions were recorded. [129].

A de Jersey