The question in this case was whether the sentencing judge had erred in failing to invite submissions from the applicant’s counsel on whether to record a conviction. In granting leave to appeal, the Court of Appeal explained that outside of an unusual sentence a sentencing judge is not obliged to seek specific submissions from counsel. However, the applicant was only 17 years old at the time of sentencing thus the recording of a conviction was an “unusual order”. In those circumstances, the Court concluded that the sentencing judge ought to have invited submissions from counsel.
Sofronoff P and Boddice and Ryan JJ
9 June 2020
On 6 August 2019, the applicant, aged 17 years, was sentenced with respect to one count of attempted armed robbery and one count of unlawfully using a motor vehicle. . With respect to the offence of attempted armed robbery, the applicant was sentenced to a period of detention for six months that was, pursuant to s 221 Youth Justice Act 1992, suspended immediately on the condition that he participate for three months in a program as directed by the chief executive. A conviction was recorded for that count. .
For the count of unlawfully using a motor vehicle, the applicant was sentenced to a two year probation order pursuant to s 193 Youth Justice Act 1992 and he was disqualified from having or obtaining a driver’s licence. No conviction was recorded for that count. .
The Court granted leave to appeal on the basis that the sentencing judge erred in failing to invite submissions from the applicant’s counsel as to whether or not to record a conviction. As a result, it was not necessary to consider the applicant’s second ground. .
In addressing the applicant’s first ground, the Court explained, citing R v Robertson (2017) 268 A Crim R 240, 251–252 –, that natural justice does not necessitate that a sentencing judge set out all the available sentencing options. But if the sentence may be considered unusual or involving an additional penalty, the judge is obliged “to advise counsel of the sentence … and to seek specific submissions on that ”. –. Whether a sentence is unusual will depend on the circumstances of the case. .
Outside of an unusual sentence, a sentencing judge is not required to advise counsel of the possible sentencing alternatives for two reasons. . First, a judge conducts the hearing on the expectation that counsel knows the relevant law. Accordingly, “the silence of counsel upon [an] issue can be taken by the judge to be the result of a professional judgement that there was nothing useful for counsel to say about it ”. . Additionally, judges do not want counsel to make submissions on every possible alternative. . Therefore, the Court summarised the relevant question as follows:
“In short, the real issue is whether a judge’s omission to give the parties notice that a particular order might be made has resulted in a failure to afford the parties a reasonable opportunity to be heard ”. .
The key feature which made this case “unusual ” was that the prosecutor did not positively submit for the recording of a conviction and expressly noted that the recording of a conviction may impact the applicant’s employment options. , . The Court acknowledged it was therefore “unsurprising” defence counsel did not make any submissions in relation to the recording of a conviction. . Further, s 184 Youth Justice Act 1992 requires a sentencing court to specifically have regard to the impact of a sentence on a young offender’s changes of finding or retaining employment. . The Court concluded that, in circumstances where the prosecutor has “specifically accepted that the recording of a conviction would impact on the child’s chances of finding or retaining employment, the recording of a conviction … was an unusual order” and the sentencing judge should have advised the parties of his intention to record a conviction against the appellant. .
In re-exercising its sentencing discretion, the Court noted that the starting point under the Youth Justice Act 1992 is that no conviction is to be recorded. Balancing all the relevant factors in this case, the Court concluded that no conviction should be recorded. , , .
A Hughes of Counsel