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R v Patrick (a pseudonym); R v Patrick (a pseudonym); Ex parte Attorney-General (Qld)

 
Unreported Citation: [2020] QCA 51
EDITOR'S NOTE

The question for determination in this case was whether s 3(2) of the Criminal Law (Rehabilitation of Offenders) Act 1986 applied to a detention order made against a child. The Court of Appeal concluded that it does not apply.

Sofronoff P and Fraser JA and Boddice J

24 March 2020

Patrick entered pleas of guilty to burglary and stealing, robbery, unlawful use of a motor vehicle and doing grievous bodily harm with intent to prevent lawful arrest and was sentenced before the Children’s Court of Queensland at Ipswich. [2]. The effective sentence at first instance was three years detention with release after 50 per cent and a conviction recorded in respect of the count of malicious act. [2], [37].

Patrick sought leave to appeal against the sentence for doing grievous bodily harm on the basis ground that recording of a conviction was manifestly excessive. The Attorney- General cross appealed on the basis that the sentence was manifestly inadequate. [3].

The circumstances of the count of malicious act with intent, in particular, concerned the child driving and being pursued by police. A tyre deflation device was deployed across an intersection and Patrick stopped a distance away from it. [5]–[6]. Patrick then accelerated toward it before swerving to the left and striking the complainant constable before fleeing the scene. The Constable suffered spinal, leg and arm injuries as well as skull fractures and there was a significant degree of permanent impairment. [5]–[10]. Patrick kept driving, and when he was subsequently arrested, he initially denied involvement in the offence. [7].

The substance of the Attorney-General’s submission was “that the sentence of three years detention with release after serving 50 per cent of the term is manifestly inadequate because the sentence failed to reflect the seriousness of the offence and the consequences for Constable McAulay”. [22]. On consideration of the gravity of the offending, the Court accepted the Attorney-General’s submission that the seriousness of the facts that “the victim was a police officer and that the offence was committed to stop him doing his duty were not given due recognition so that the discretion miscarried”. [33]–[34]. The Attorney-General submitted a sentence of five year’s detention should be imposed. [39].

Although Patrick’s application for leave to appeal was dismissed, the Court accepted that his submissions about whether a conviction should be recorded should be taken into account. [40]. Patrick argued that a conviction should not be recorded, on the ground that the recording of a conviction would have a permanent effect on Patrick because the Criminal Law (Rehabilitation of Offenders) Act 1986 would not apply. [55]. This was because of the exclusion of convictions for “imprisonment” of greater than 30 months. [56]. However, as President Sofronoff explained, as a child Patrick could only be sentenced under the Youth Justice Act 1992. That Act deals with “Detention orders” against a child and contains no provisions authorising “imprisonment of a child”. The legislative difference between “detention” and “imprisonment” means that the exclusion in s 3(2) Criminal Law (Rehabilitation of Offenders) Act 1986 does not apply to a detention order. [59]. Consequently, Patrick’s conviction could not be disclosed after the expiry of five years and therefore the duration and effect of the conviction would be limited and its permanence was not a reason not to record a conviction. [59].

Ultimately, his Honour sought to reflect the community’s revulsion at the very serious offence by sentencing Patrick to a period of detention of five years, recording a conviction ([54]) but facilitating Patrick’s rehabilitation with release after serving 50 per cent of the detention order. [60].

J Feely of Counsel