R v DBU

This case concerned an application for leave to appeal against sentence by a youthful offender with respect only to the recording of convictions. In granting leave to appeal and allowing the appeal, the Court of Appeal held that the sentencing judge put too much emphasis on the view that the applicant’s offending was “escalating” and on the leniency that the applicant had previously been granted when he had come before the Court on the last occasion. The applicant’s offending, whilst serious, did not warrant the consequences that a conviction may have on his chances for rehabilitation and on his prospects of employment.

Morrison and McMurdo JJA and Lyons SJA

23 March 2021

Background

On 1 June 2020, the applicant was sentenced in the Townsville Childrens Court for 13 offences contained on two indictments. [9].

In relation to two of the offences, armed robbery (“Count 3”) and assault occasioning bodily harm whilst armed (“Count 6”) the applicant was sentenced to concurrent periods of detention and convictions were recorded. [11], [12]. With respect to Count 3, the applicant was sentenced to a period of detention of 18 months to be released after serving 50 per cent of the period of detention. [11]. For Count 6, the applicant was sentenced to a period of detention of 6 months to be released after serving 50 per cent of the period of detention. [12].

The other 11 offences were dealt with by the imposition of a restorative justice process and an 18-month probation order. Convictions were not recorded in relation to the 11 other offences. [13].

The applicant sought leave to appeal only with respect to the recording of convictions on Counts 3 and 6 on the basis that the recording of a conviction combined with the imposition of a period of detention made both of those sentences manifestly excessive. [14], [25].

In particular, counsel for the applicant submitted that the sentencing judge “placed too much weight on the escalating nature of the offences and that this consideration overwhelmed the other factors”.

Decision of the Court of Appeal

The Court of Appeal (Morrison and McMurdo JJA and Lyons SJA) granted the application for leave to appeal against sentence and allowed the appeal. The Court set aside the sentences below, to the extent that convictions were recorded and ordered that no convictions be recorded. [45].

Sections 183 and 184 of the Youth Justice Act 1992 (“YJA”) govern the Court’s discretion to record convictions against a child who is found guilty of an offence. Relevantly, s 184(c) requires the court to consider the impact that recording a conviction will have on the child’s chances of rehabilitation and employment. [28], [31].

Nothing that the YJA does not specify the purpose of recording a conviction for a youthful offender, Lyons SJA, with whom Morrison and McMurdo JJA agreed, stated that recording a conviction under the YJA “serves as a warning to those dealing with a young person that they must be warned about the risk of serious, physical, moral or economic loss despite the fact that such a warning will affect a young offender’s rehabilitation and employment prospects”. [32].

Quoting Sofronoff P in R v SCU [2017] QCA 198, Lyons SJA observed that:

“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.” [33].

In separate reasons, McMurdo JA, who agreed with the reasons of Lyons SJA, emphasised that for a youthful offender “the consideration of rehabilitation will have a greater weight” than it would in the case of an adult. [4].

Ultimately, the Court held that the sentencing judge put too much emphasis on the view that the applicant’s offending was “escalating” and on the leniency that the applicant had previously been granted when he had come before the court on the last occasion. Further, Lyons SJA held that the sentencing judge did not give sufficient consideration to the applicant’s personal circumstances at the time of the sentence. [35], [39], [42]. Lyons SJA concluded that “the recording of the convictions was not a sound exercise of the sentencing discretion in the circumstances of this case”. [43].

A Hughes of Counsel