EMR v Commissioner of Police [2016] QChC 6

CHILDRENS COURT OF QUEENSLAND CITATION: EMR v Commissioner of Police [2016] QChC 6 PARTIES: EMR (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: 924/2016 & 1325/2016 DIVISION: Childrens Court PROCEEDING: Appeal ORIGINATING COURT: Childrens Court at MA DELIVERED ON: Judgment delivered on 20 July 2016. Reasons delivered on 31 August 2016 DELIVERED AT: Brisbane HEARING DATE: 19 July 2016 JUDGE: Reid DCJ ORDER: 1. That the time within which the appellant may file his Notice of Appeal in appeal number 1325/2016 be extended to 8 April 2016. 2. In respect of appeal number 1325/2016: (a) The appeal be allowed; (b) No conviction be recorded in respect of the offending to which the appellant had pleaded guilty on 31 August 2015. 3. In respect of appeal number 924/2016: (C) The appeal be allowed; (D) The sentence below be varied to the extent that the period of detention imposed be reduced to 5 months and 12 days, so that the appellant be released on 20 July 2016; (e) No conviction be recorded. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE AND RECORDING OF CONVICTION – GROUNDS FOR INTERFERENCE – SENTENCE AND RECORDING OF -- 1 of 16 -- 2 CONVICTION MANIFESTLY EXCESSIVE – where the applicant pleaded guilty and was convicted of seven offences – where the applicant was 12 years of age when the majority of offences were committed and 14 when sentenced – where the applicant applied for leave to appeal on the grounds that the sentences were manifestly excessive in all the circumstances – whether the sentences imposed were manifestly excessive CRIMINAL LAW – APPEAL AGAINST SENTENCE AND RECORDING OF CONVICTION – GROUNDS FOR INTERFERENCE – SENTENCE AND RECORDING OF CONVICTION MANIFESTLY EXCESSIVE – where the applicant pleaded guilty and was convicted of a further offence – where the applicant was 14 years of age when the offence was committed and 15 when sentenced – where the applicant applied for leave to appeal on the grounds that the sentence was manifestly excessive in all the circumstances – whether the sentence imposed was manifestly excessive Youth Justice Act 1992 (Qld) ss 150, 175, 183, 184, 185 R v Tait [1998] QCA 304, cited R v Cunningham [2014] QCA 88 , considered R v WAJ [2010] QCA 87, considered R v L [2000] QCA 448, considered R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] QCA 467, considered COUNSEL: T.K. Clements for the appellant C.B Farnsworth for the respondent SOLICITORS: Legal Aid Queensland for the appellant Public Safety Business Authority for the respondent Introduction [1] On 31 August 2015 the appellant was sentenced to six months detention, with a conviction recorded, for the following offences to which he had pleaded guilty;  2 x Enter premises and commit indictable offence by break  1 x Enter dwelling and commit indictable offence -- 2 of 16 -- 3  1 x Enter premises and commit indictable offence  1 x Unlawful use of motor vehicle  1 x Driving a motor without a licence, when he never held a licence  1 x Enter premises with intent All of the offending was committed on 29 June 2015 except for one of the entering premise offences which was committed much earlier, on 28 November 2013. [2] The appellant was born on 3 December 2000 so was 14 at the time of his sentence and at the time of most of the offending. He was only 12 at the time of the offending in November 2013. [3] He wishes to appeal against the recording of the conviction. Because the appeal was not filed until 8 April 2016, he also seeks an order extending the time for filing the Notice of Appeal. [4] He subsequently committed a further offence, on 9 November 2015, of entering a dwelling and committing an indictable offence. This was only five days after his release from the detention imposed on 31 August 2015. On 8 February 2016, he was sentenced in respect of that offence to 9 months detention with a conviction being recorded. [5] He appeals against that sentence of detention on the ground that it was manifestly excessive and appeals also against the recording of a conviction. He was granted appeal bail in February. [6] On 20 July 2016, I extended the time in which to appeal in relation to the sentence imposed on 31 August 2015 and allowed both appeals. I indicated that I would later deliver my reasons. -- 3 of 16 -- 4 Extension of time in which to appeal in Appeal No: 1325/2016 [7] The application to extend time in which to appeal against the recording of a conviction on 31 August 2015 was supported by an affidavit of David Law, a solicitor with Legal Aid Queensland. [8] It is unnecessary to recount the details of Mr Law’s affidavit, or the principles which govern applications for leave to appeal out of time, set out in R v Tait [1998] QCA 304, as the respondent in this case concedes the appeal against the recording of the conviction “does not lack merit” and that the application to extend time should be granted. [9] In the circumstances I order that the time within which the appellant may file his Notice of Appeal in appeal number 1325/2016 be extended to 8 April 2016. Criminal History [10] Before turning to the appeals themselves it is helpful to consider some of the background. [11] The appellant has a significant and worrying criminal history that reflects the poverty of his upbringing. He was dealt with in the Mareeba Childrens Court on 21 May, 4 June, 27 July and 23 November 2012 for a series of offences involving stealing, entering other person’s premises and unlawful use of a motor vehicle committed between 4 March and 11 June 2012. He was of course only 11 at the time. In each case no conviction was recorded. He was given nine months’ probation on 21 May and 12 months’ probation at each of 4 June and 27 July. He was reprimanded on the last occasion. Effectively he was on probation from 21 -- 4 of 16 -- 5 March 2012 to 27 July 2013, a period of 16 months, pursuant to those three probation orders. [12] The next offences of a serious kind were committed between 29 March and 7 April 2014, when he was 13. Again the offending involved charges of stealing, burglary and unlawful use of a motor vehicle and such similar offences. He was sentenced to six months detention to be served by way of a boot camp order. [13] He then committed four offences of wilful damage by graffiti in the period between 24 July and 5 August 2014, when he was 13. As a consequence he was sentenced on 7 October 2014, when still only 13, to six months’ detention. A period of 41 days spent in compliance of the boot camp order was deemed as time served under that sentence. He would thus, as a 13 year old, have been required to serve a period of about three months in actual detention. [14] After his release he again reoffended on 8 March 2015, committing offences of burglary and unlawful use of a motor vehicle. On 20 April 2015, when he was 14, he was again sentenced to 12 months’ probation and 100 hours community service. [15] The offences dealt with on 31 August 2015, other than the 2013 offence, were then committed whilst the appellant was subject to the probation order imposed on 20 April 2015. According to the presentence custody report of 5 August, on his appearance before the Court on 6 July 2015 he was refused bail. The material indicates he was then in detention until 4 November 2015, a period of almost 4 months. [16] He was then on bail until his sentence on 8 February 2016, when he was sentenced to 9 months’ detention. Pursuant to the Youth Justice Act 1992 (Qld) (YJA) he was required to serve 70% of that period in detention (i.e. six months and nine days by -- 5 of 16 -- 6 my calculation). He thus was due for release on 16 August 2016, about four weeks’ after I heard the appeal. [17] The consequence of all of those orders is that he has been in detention from 6 July until 4 November 2015 and from 8 February 2016 to date, a period of nine and a half months of the last 12 and a half months. He is still only 15. Under the sentence, unless the appeal was allowed, he would have been required to serve a further four weeks before his release on a conditional release order. Social Circumstances [18] The appellant’s social and familial history is set out in the court report of 5 August 2015, which was before the learned Magistrate on 31 August 2015, and a further court report of 14 January 2016, which was before the same Magistrate at the hearing of the matter on 8 February. The reports both speak of the fact that the appellant’s family life was characterised by; “High levels of parental child conflict, domestic violence, substance misuse and a lack of age appropriate discipline and supervision. It is assessed that the families inability to provide (EMR) with a stable, nurturing home environment appears not only to have facilitated (EMR’s) disengagement from schooling and other pro-social activities, but consequentially predisposed (EMR) to anti-social behaviours, including offending”. [19] In such circumstances, unsurprisingly, the appellant has run amuck in his local community, as reflected by his criminal history. The report continues “The lack of a structured home life and any positive role modelling, substance misuse, a desire to obtain money for drugs and the -- 6 of 16 -- 7 influence of peers all can be seen as significant causal factors to (EMR’s) offending.” [20] The report refers to the appellant’s inability to establish a process of moral reasoning, and of his lack of insight or concern for the victims of his offending. The report of 5 August 2015 states; “It is the assessment of the author that (EMR) has received a number of consequences for his offending behaviour inclusive of:  Being remanded for a period of 47 days.  Being engaged in school activities and programs to counter offending whilst on remand.  Being given the opportunity to engage in a number of activities inclusive of sport, manual arts and music.” [21] It is also important to understand that after he was granted bail on 4 November 2015, in respect of the offending dealt with in February 2016, he was on a 7pm to 7am curfew. From November 2015 until 8 February 2016, a period of a little over 3 months, there were no reported breaches of that curfew. That in itself indicates some degree of change in his behaviour. [22] The court report of January 2016, considered by the Court on 8 February 2016, indicates that whilst the appellant had completed the community service component of the order of 20 April 2015 (100 hours) by 11 December 2015 that he indicated to the report writer he was not then prepared to enter into further orders for probation or community service. Because of that indication he was assessed by the author as not suitable for a conditional release order. Magistrate’s Reasons: 31 August 2015 -- 7 of 16 -- 8 [23] On 31 August 2015 the learned Magistrate, in imposing his sentence, noted that the offending breached the probation and community services orders earlier imposed. He referred to the fact that the offending involved serious criminal offences and that the appellant was “going on 15 years of age” so would “be an adult very shortly in the eyes of the law”. He was however still only 14. [24] The learned Magistrate said he took into account the plea of guilty and also “the nature of the offence, your criminal history, the fact that you should be held accountable and accept responsibilities for the offending behaviour”. He said he also took into account the prevalence of that sort of offending within the community. He said the presentence report concerned him as the appellant “had no consequences at home”. He referred to the fact that the appellant’s father’s parenting skills were not good and that he was a marijuana user. He referred to the lack of structured home life and positive role modelling and that no sanctions of any kind were imposed at home. He referred to that fact that on each occasion he had come before the Court since 2012 (when, it must be remembered, he was only 11), stating, “you’ve been afforded the opportunity to do something about your offending behaviour. You also have not previously had criminal convictions recorded against you, but you keep coming back”. He indicated that he intended to impose detention, but for “only… a short period” and that he hoped that would be sufficient for the appellant to realise that the Court had run out of patience. [25] He then said: “I order that convictions be recorded. I think you’ve had many opportunities already by not recording convictions and you are now of an age when it is appropriate to do so.” -- 8 of 16 -- 9 He ordered that he be detained for a period of six months. Because no other order was made this meant he was required to serve 70% of that six months (i.e. a period of about four months and six days in actual detention). Consideration of recording of conviction on 31 August 2015 [26] The respondent accepts the learned Magistrate did not seek submissions from either party in respect of the issue of recording convictions. He appears not to have turned his mind to the provisions of ss 183 or 184 of the YJA. [27] Because the Court made an order of detention, under s 175(1)(g) of the YJA the Magistrate was empowered to order that a conviction be recorded, but in considering whether to do so was required by s 184 to consider: (a) The nature of the offence; (b) The child’s age and any previous convictions; and (c) The impact of any conviction on the child’s chances of rehabilitation or finding employment. [28] Quite obviously those issues, especially those in s184 (c) above, were not agitated nor, does it appear, they were considered by the learned Magistrate. Even if they were considered, his failure to invite submissions on the issue from the appellant’s lawyer, in my view, demonstrates appealable error. In this regard see R v Cunningham [2014] QCA 88 where Daubney J, with whom Holmes JA (as her Honour then was) and Gotterson JA agreed, adopted comments of Fraser JA in R v WAJ [2010] QCA 87 where his Honour had said: “The power to record convictions against children is conferred by s 183. Section 184 governs the exercise of that discretion. The -- 9 of 16 -- 10 prima facie position under these provisions is that a conviction is not to be recorded against the child.” Daubney J then said: “The sentencing remarks neither articulate the reasons for the learned sentencing judge exercising the discretion to record convictions nor expose the judge’s consideration of the matters prescribed by s 184(1) of the YJA. As in R v WAJ, therefore, it is appropriate to proceed on the basis that the discretion miscarried and must now be exercised afresh.” [29] I might add that the respondent here accepts that to be so and that the issue of whether to record convictions ought to be exercised afresh. [30] The respondent in submitting that a conviction ought be recorded, referred to the applicant’s serious relevant criminal history despite his young age, the fact that he has in the past had the benefit of community based orders, the fact that these offences were in breach of a good behaviour bond entered into only ten days earlier and, apart from the one earlier offence, were in breach of a probation order for similar offences. [31] The submission does not, however, address the issue of the impact of recording a conviction on the applicant’s chances of rehabilitation or of finding employment. This is probably primarily because no material was placed before the learned Magistrate about that issue. But that, in turn, was in circumstances where he did not invite submissions on that issue. -- 10 of 16 -- 11 [32] In my view, it is reasonable to infer that the recording of a conviction is likely to have an adverse effect on those two matters, that is, rehabilitation and future employment. They are, of course, inextricably interwoven. Social research clearly supports a relationship between criminal offending and incarceration on the one hand, and unemployment or underemployment on the other. Anything which is likely to adversely affect employment will be likely to inhibit rehabilitation, and vice versa. [33] It is reasonable, in my view, in the absence of any evidence on the issue, to conclude that a 15 year old’s prospects of rehabilitation and employment will, or may be, adversely affected by the recording of a conviction. [34] In R v Cunningham (supra) Daubney J, at paragraph [59], referred to observations of Thomas JA in R v L [2000] QCA 448. His Honour said: “Thomas JA noted the different considerations that apply when deciding to record a conviction for a juvenile offender, observing: ‘A higher priority is, I think, placed on the rehabilitation of juveniles and in general the Court’s response in that area is to be slow to record a conviction unless good reason is seen for doing so’.” [35] It is important also to understand that the prima facie position in respect of children, set out in s 183(1) if the YJA, is that no conviction is to be recorded, as I have earlier indicated. [36] So too in R v Cay, Gersch and Schell; ex parte A-G (Qld) [2005] QCA 467, McKenzie J said: -- 11 of 16 -- 12 “In cases involving young offenders, there is often uncertainty about their future direction in life. Perhaps, because of this, the concept may, in practice, often be less rigidly applied than in the case of a person whose lifestyle and probable employment opportunities are more predictable.” [37] In R v Cunningham (supra) the Court was at some pains to point out that the discretion is one which must very much depend on the facts of the particular case. I note that whilst, ultimately, the Court did not interfere with the primary judge’s recording of a conviction in that case, the appellant in that case was nearly 16 and a half when he committed the subject offences, about two years older than the appellant before me, and, of course, about four years older than the appellant was at the time of the offending in 2013. [38] In the circumstances, I would not record a conviction. In respect of appeal number 1325/2016 I therefore order that the appeal be allowed and that no conviction be recorded in respect of the offending to which the appellant had pleaded guilty on 31 August 2015. Hearing: 8 February 2016 [39] On the occasion of the hearing on 8 February 2016, the appellants legal representative submitted to the Court that inter alia;  Since the presentence report was prepared he has undergone dramatic positive change;  He has been attending schooling for two weeks;  He has been going well on his probation order;  He would accept a community based order; and -- 12 of 16 -- 13  He has never had a conditional release order. [40] These submissions in my assessment are consistent with his not offending when on bail from 4 November 2015. They must also be seen against the background of the matters contained in the court report of 5 August 2015, set out in paragraphs [18] - [20] hereof. [41] The Police prosecutor submitted at the 8 February 2016 hearing that the court report showed that the appellant was unwilling to comply with community based orders and was not suitable for conditional release and, importantly, submitted that; “protection of the community should be the primary sentencing consideration”. I interpose, that this last submission was made in circumstances whereby s 150 (5) of the YJA then provided; “This section overrides any other Act or law to the extent that, in sentencing a child for an offence, the Court must not have regard to any principles that a detention order should be imposed only as a last resort.” [42] Before the Magistrate the Youth Justice Services representative submitted, consistent in my view with the appellant’s legal representative; (a) That the appellant was now willing to comply with a community based order; (b) He has engaged well in the BPG schooling program, undertaking a Certificate I in Digital Media with a view to ongoing work after the completion of the course; (c) The appellant was enjoying the course and had expressed a willingness or desire to complete it; -- 13 of 16 -- 14 (d) The appellant had engaged well with his probation order during the year and was reporting as directed and participating in programs; and (e) The appellant had completed the requirements of his community service order. [43] The learned Magistrate, as I have said, sentenced the appellant to nine months detention and ordered that a conviction be recorded. He referred to the fact that the appellant had been released from detention only a few days prior to his offending on 9 November 2015, which the Magistrate described as “a serious criminal offence”. The learned Magistrate said he noted in mitigation the plea and “the submissions…put forward on your behalf and the matters which I’m required to take into account in the Youth Justice Act”. He referred also to the fact that the appellant was 15 and in a very short time was going to be an adult, and to the content of the presentence report and his criminal history which he jointly described as “a very sad indictment indeed”. The learned Magistrate referred to the fact that the appellant had “been given many opportunities since starting to come before the Court in 2011” including “probation on numerous occasions, you’ve been given reprimands, you’ve been given a good behaviour order and you’ve been given detention, but nothing seems to have yet got through to you”. He referred to the fact that in his view the appellant had gone out on 9 November and “deliberately targeted an old person in her home” (the complainant was 74 years of age) in order to steal money. He said that, on the basis of the presentence report, the appellant had minimal victim empathy and was unwilling to undertake probation or community service and was not suitable for a conditional release order. [44] This last statement was clearly not an accurate reflection of the then state of things. The Crown accepts that the learned Magistrate did not appear to take into account or -- 14 of 16 -- 15 refer to the submissions made by the appellant’s legal representatives, or the Youth Justice Services representative about the more recent change in the appellant’s attitude, including his willingness to enter into community based orders. Nor did he refer, as I have indicated, to the appellant’s significant compliance with the curfew that required him to remain in his home between 7pm and 7am over a 3 month period, up to the time of the sentence. Consideration of sentence on 8 February 2016 [45] The relevant statutory principles in respect of the imposition of the sentence on the appellant are contained in s 150 of the YJA and, in relation to the recording of a conviction, ss 183 and 184, which I have previously referred to. [46] It is important to understand, for the purposes of the appeal, that the sentence of nine months detention required, because of the statutory provisions, the appellant to serve 70% of that in detention prior to the making of a conditional release order. Consequently, the appellant was required to spend approximately six months and nine days in detention, which included a period of about four weeks from the day of the appeal before me. The full time discharge date of the order will be 7 November 2016. It is important to understand also that under s 150(2) YJA a special consideration in respect of the sentencing of children is that a noncustodial order is better than detention in promoting a child’s ability to reintegrate into the community. [47] In my view, the failure of the learned Magistrate to consider at all the submissions of the representative of Youth Justice Services that the appellant was now willing to comply with community based orders, and that he had engaged well in the BPG schooling program, was undertaking and enjoying a Certificate I in Digital Media, -- 15 of 16 -- 16 and had engaged well with his probation order and completed the requirements of the community service order, indicate that he had inappropriately overlooked very pertinent sentencing factors. The fact that the Magistrate indicated that it was only in the last couple of weeks that he had shown some interest in what’s going on, and that this was “too little too late” did not obviate the need to consider the appropriateness of community based orders. In circumstances where the appellant indicated he was prepared to comply with such orders and had complied with the curfew condition for some months, he ought, in my view, to have given serious consideration to such matters. [48] It is appropriate, in the circumstances, to conclude that the learned Magistrate was in error in that regard and, in the circumstances, I ought to resentence the offender afresh. [49] As I have indicated, he has now served nine and a half of the last twelve and a half months in detention. He served the whole of the period from 8 February 2016 to the date of the appeal, a period of five months and twelve days, in detention. Whilst the offence of entering a dwelling and committing an indictable offence was serious, it must be recalled that he was then being sentenced for only a single offence, that he was only 14 years old at the time of the offence and that there was no violence or damage to the complainant’s property. It was far from the most serious offending encapsulated by the charge of entering a dwelling and committing an indictable offence. In my view it is appropriate to allow the appeal and to order that the sentence below be varied to the extent that the period of detention imposed be reduced to 5 months and 12 days, so that the appellant be released on 20 July 2016. I further order that no conviction be recorded. -- 16 of 16 --