CHILDRENS COURT OF QUEENSLAND

CITATION:	KDI v Director of Public Prosecutions [2022] QChC 15	
PARTIES:	KDI
(Applicant)
v
DIRECTOR OF PUBLIC PROSECUTIONS
(Respondent)
	
FILE NO/S:	CCJ 85/22	
DIVISION:	Childrens Court of Queensland	
PROCEEDING:	Sentence Review Application	
ORIGINATING COURT:	Mareeba Children’s Court	
DELIVERED ON:	19 April 2022 (delivered ex tempore)	
DELIVERED AT:	Brisbane	
HEARING DATE:	19 April 2022	
JUDGE:	Dearden DCJ	
ORDER:	(1)	Application granted.
(2)	Order that the 12-month probation order, imposed 13 January 2022, be confirmed.
(3)	Set aside the order that convictions be recorded and substitute an order that no convictions be recorded, in respect of any of the 10 offences for which convictions were recorded at the Childrens Court, Mareeba, on 13 January 2022.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE –SENTENCING JUVENILES – where the applicant was re-sentenced in respect of six charges – where the applicant was sentenced to four new charges – where a conviction was recorded – where the application for review was filed out of time – whether the conviction made the sentence manifestly excessive	
LEGISLATION	Youth Justice Act 1992 (Qld) ss 118, 119, 122, 183, 184	
CASES	KLP v Commissioner of Police [2017] QChC 5
R v MKM [2018] QCA 233	
COUNSEL:	P Dent for the applicant
B Reynolds for the respondent	
SOLICITORS:	Legal Aid Queensland for the applicant
Office of the Director of Public Prosecutions for the respondent 	
Introduction
[1]	This is an application for sentence review by the applicant KDI, who was sentenced at the Children’s Court at Mareeba on 13 January 2022 in respect of four new offences and was re-sentenced in respect to six charges and had an existing conditional release order extended.
[2]	The application for sentence review is confined to the issue of the recording of a conviction for the four new offences and the six re-sentenced offences but does not otherwise seek to set aside or change any of the penalties involved.  The application for sentence review is filed out of time, pursuant to section 119(2)(b) of the Youth Justice Act 1992 (Qld) (‘YJA’), an application for review must be made within 28 days after the sentence order is made or within a later period allowed by this court.  
[3]	The instructions were not received by Legal Aid until 1 March 2022 and the application for sentence review was not filed until 9 March 2022 after some inquiries were made to investigate merit as outlined in exhibit 1.  The application is filed four weeks out of time and the application for extension of time is not opposed (appropriately and pragmatically in my view) by the respondent.
[4]	The background to the application is helpfully outlined by the applicant’s material:-
“Background:
On 13 January 2022 the applicant was convicted and sentenced before the Mareeba Children’s Court for the following four offences.  The facts of the charges were read into the record by the police prosecutor.
Receiving tainted property (6/9/2021)	The applicant received jewellery, including religious jewellery shortly after it had been stolen from St Thomas School of Ministry and provided these items to other persons.	
Enter premises and commit indictable offence by (7/9/2021)	At 2.50 am the defendant and co-offender broke into Mareeba Shire Council and stole two sets of car keys.  Access was gained by a co-offender prying open a window with a screwdriver.	
Unlawful use of motor vehicle (7/9/2021)	The defendant and co-accused used the keys to access two vehicles at the premises.  The defendant has entered one of the stolen vehicles which was driven from the premises to Atherton.	
Possess utensils or pipes ETC that had been used. (10/9/2021)	The applicant was located and arrested (sic).  He was found in possession of a single-use cone piece which smelt of cannabis.	
4.	The child has a relevant criminal history, commencing when he was 10 years of age and consisting largely of property offences.  The criminal history was before the court at the time of the sentence.
5.  	The applicant has been sentenced on 10 prior occasions.  The instant offences were committed whilst the child was subject to a nine-month probation order and a conditional release order, both imposed on 20 August 2021.
6.	The applicant had 125 days pre-sentence custody in relation to the four new charges.”
[5]	The applicant’s antecedents, again helpfully summarised in the applicant’s outline of submissions as follows:-
“Antecedents:
7.  	The applicant is presently 16 years of age, he was 15 years old at the time of the offences and sentence.
8.  	A thorough pre-sentence report was prepared for court which details the applicant’s antecedents and highlights a number of factors that contributes to the applicant’s criminal offending.
9.  	The report speaks to:
(a) 	the applicant’s relatively self-imposed transient lifestyle since he was five years of age, residing between numerous relatives which resulted in lack of steady supervision and behavioural expectations.  
(b) 	an extensive history of child safety notifications since the applicant was eight years of age with exposure to domestic and family violence, parent substance abuse, neglect, including lack of appropriate medical care, lack of supervision, poor attendance at school and excessive discipline.  In 2021 a short-term guardianship order was obtained.
(c) 	instability in school, the applicant having attended 13 different schools with lengthy periods of disengagement.  This reduced his engagement with pro-social role models and peers.  He has developed antisocial attitudes and gravitates to a pro-criminal peer group where he feels a sense of belonging.
(d) 	the applicant’s long-standing substance abuse of cannabis and inhalants, which has impaired his decision-making.”
[6]	The respondent notes that the sentence imposed at the Mareeba Childrens Court was a sentence of 12 months’ probation with convictions recorded for the offences identified and read into the record from the applicant’s submissions.
[7]	The respondent’s submissions also identify that:-
“7.  	The applicant was also re-sentenced in respect of breaching a nine-month probation order imposed on 20 August 2021 relating to six offences of lawful damage on 25/5/2021.  Convictions were recorded.” 
The law – sentence reviews:
[8]	The power of this court to conduct a review of a sentence order of a Childrens Court magistrate is provided for by YJA s 118.  That review to be conducted as a re-hearing on the merits must be conducted expeditiously and with as little formality as possible. In conducting this review, the Childrens Court judge may have regard to a record of the proceedings before the Childrens Court magistrate and any further submissions in evidence by way of affidavit or otherwise.
[9]	The court does not need to find an error in order to exercise discretion to rehear the matter on its merits, and a sentence order is defined in the YJA to include the recording of a conviction.
[10]	The grounds of the review are as follows:-  
It is submitted that the decision to record a conviction resulted in a sentence that is manifestly excessive.  In arriving at the decision to record a conviction, it is submitted that:-
“(a)	the learned magistrate failed to have specific regard to s 184(c) of the Youth Justice Act 1992 (Qld);  and
(b) 	the recording of a conviction renders the sentence manifestly excessive in all of the circumstances.”  
[11]	The application for sentence review is partly conceded by the respondent who concedes that the convictions recorded should be set aside in respect of all of the sentences, with the exception of the convictions recorded for the enter premises and unlawful use charges.  
[12]	The applicant on the other hand submits that the convictions recorded should be set aside in respect of all of the offences for which the applicant was sentenced and/or resentenced on 13 January 2022.  
[13]	The default position in the YJA is that a conviction should not be recorded, but the court has a discretion and is required to consider the matters outlined in YJA s 184, including the nature of the offence, the child’s age and previous convictions, and the impact the recording of a conviction will have on the child’s chances of rehabilitation generally, or finding or retaining employment.  
[14]	The submission is made that the learned magistrate did not expressly have regard to YJA s 184(c), although the respondent identifies the learned Magistrate’s reference in particular to the discussion by Sofronoff P in R v MKM [2018] QCA 233.
[15]	The applicant identifies that no specific submissions were made by the applicant’s legal representative in respect of the recording of a conviction, and it is unfortunate that this issue was not expressly ventilated during the course of submissions.  The applicant identifies the significant priority that the YJA places on rehabilitation of juveniles and, as is clear from the material before the learned magistrate (in particular the pre-sentence report), this was a young person with a striking history of trauma, a transient lifestyle since the age of five, and an extensive history of exposure to factors which were very much at the hands of others (domestic and family violence, parental substance abuse, neglect, lack of supervision, the poor attendance and excessive discipline), all of which have, no doubt, contributed to the child gravitating to criminally offending peers and being an ongoing offender, although as appears from the criminal history, substantially in respect of property offending.  
[16]	In particular, the offending on this particular occasion, although concerning, was not particularly serious offending other than that it was yet again another example in this child’s life of a pattern of offending that has unfortunately continued throughout the child’s involvement in the criminal justice system.  
[17]	As the applicant submits, it is not for the court to consider the type of work that recording a conviction would affect, but rather that it would have a prejudicial impact on the child’s ability to find employment and/or rehabilitate, and that needs to be taken into account (it is submitted) in the context of an Aboriginal boy who was 15 years old at the time of the offending and sentence, has had what the applicant describes (with a sense of understatement), as a “very disadvantaged and prejudicial childhood” and who had not previously had a conviction recorded.  The submission is the recording of the convictions in this context will further disadvantage the applicant and impede his general rehabilitation, which is at odds with the rehabilitated focus of the community-based orders that were imposed (that is the 12-month probation order imposed in the context of the very substantial period of pre-sentence custody (125 days)).
[18]	With respect, I have no hesitation in accepting that submission on behalf of the applicant in the context of his criminal history and the nature of the current offending, concerning as it is and given that it resulted in a resentence on the six offences of wilful damage, for which he had previously been sentenced on 25 May 2021.  
[19]	In my view, the learned magistrate has failed to give appropriate weight to the provisions of section 184 of the Youth Justice Act, and the sentence should be reviewed.  
[20]	The pre-sentence report clearly indicates and supports the submission made that this is a child who has suffered significant disadvantage, and given that the offences have not escalated in seriousness, much as they are persistent, concerning and reflect a childhood of trauma that has clearly persisted for at least 10 years or more in this child’s life.  Now, the recording of convictions amounts to an excessive sentence in the context of that offending.
Orders 
[21]	In my view, the application should be granted.  I make the following orders:
(1)	Application granted.
(2)	Order that the 12-month probation order, imposed 13 January 2022, be confirmed.
(3)	Set aside the order that convictions be recorded and substitute an order that no convictions be recorded, in respect of any of the 10 offences for which convictions were recorded at the Childrens Court, Mareeba, on 13 January 2022.