DJM v Commissioner of Queensland Police Service [2011] QChC 10

CHILDRENS COURT OF QUEENSLAND CITATION: DJM v Commissioner of Queensland Police Service [2011] QChC 10 PARTIES: DJM (applicant) v Commissioner of Queensland Police Service (respondent) FILE NO/S: No 39 of 2011 PROCEEDING: Application for Sentence Review ORIGINATING COURT: Childrens Court, Stanthorpe DELIVERED ON: 2 September 2011 (ex tempore) DELIVERED AT: Toowoomba HEARING DATE: 2 September 2011 JUDGE: Judge Rafter SC ORDER: 1. The order made by the Childrens Court at Stanthorpe on 4 May 2011, recording a conviction in respect of the charge of animal cruelty, be set aside. 2. Instead, order that a conviction not be recorded. 3. Otherwise confirm the orders made by the Childrens Court at Stanthorpe on 4 May 2011. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING JUVENILES –SENTENCE REVIEW – where the applicant pleaded guilty to one charge of unlawfully entering farming land contrary to the Summary Offences Act 2005 and one charge of animal cruelty contrary to the Animal Care and Protection Act 2001 – where a conviction was recorded in respect of the animal cruelty charge – where the applicant’s sentence review pursuant to s 118 Youth Justice Act 1992 challenges the order recording a conviction – whether the factors requiring consideration set out in s 184(1) were adequately considered – where the applicant was 15 years old at the time the offences were committed and 16 at the time of sentence – whether a conviction ought to have been recorded. Youth Justice Act 1992 (Qld), ss 118 and 184(1) COUNSEL: R. Davies for the applicant -- 1 of 3 -- 2 [1] HIS HONOUR: This is an application for sentence review pursuant to section 118 of the Youth Justice Act 1992. [2] The applicant was sentenced in the Childrens Court at Stanthorpe on 4 May 2011. He pleaded guilty to one charge of unlawfully entering farming land contrary to the Summary Offences Act 2005 and one charge of animal cruelty contrary to the Animal Care and Protection Act 2001. Those two offences occurred on the 24th of September 2010. He also pleaded guilty to one charge of wilful damage contrary to section 469 of the Criminal Code. That offence occurred on 28 November 2010. [3] The Childrens Court Magistrate ordered that the applicant be placed on probation for six months in respect of the animal cruelty charge and ordered that he pay $300 compensation. A conviction was recorded. In respect of the charge of unlawfully entering farming land, the Magistrate ordered that a conviction not be recorded and imposed no further punishment. In respect of the wilful damage charge, the applicant was ordered to perform 20 hours community service and a conviction was not recorded. [4] The Childrens Court Magistrate said at the conclusion of the sentencing remarks that a conviction was recorded for the cruelty to animal charge in order to "send a very clear message of the seriousness of the offence". [5] The seriousness of the offence cannot be doubted. However, the applicant had strong mitigating factors: he was 15 at the time of the offences; he was 16 at the L. Helsdon solicitor for the respondent SOLICITORS: Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent -- 2 of 3 -- 3 time of sentence; he had no prior history; he pleaded guilty; and, he had good family support. [6] The applicant brings this application for sentence review only in relation to the recording of a conviction in respect of the animal cruelty charge. Ms Helsdon, for the respondent, concedes that a conviction should not have been recorded. [7] Having regard to all of the circumstances, particularly that the Childrens Court Magistrate had no regard at all to the factors that must be considered in deciding to record a conviction, which are set out in section 184(1) of the Youth Justice Act 1992, the sentence should be reviewed in that respect. [8] I accept the joint submission made by Mr Davies, for the applicant, and Ms Helsdon, for the respondent, that a conviction should not have been recorded. I therefore order as follows: 1. The order made by the Childrens Court at Stanthorpe on 4 May 2011, recording a conviction in respect of the charge of animal cruelty, be set aside; 2. Instead, order that a conviction not be recorded; and 3. Otherwise confirm the orders made by the Childrens Court at Stanthorpe on 4 May 2011. -- 3 of 3 --