DISTRICT COURT OF QUEENSLAND

CITATION:	WAD v Queensland Police Service [2022] QChC 28	
PARTIES:	 WAD
(appellant)
v
QUEENSLAND POLICE SERVICE
(respondent)	
FILE NO/S:	2 of 2022	
DIVISION:	Appellate	
PROCEEDING:	Appeal pursuant to s 222 of the Justices Act 1886 (Qld)	
ORIGINATING COURT:	Mount Isa Childrens Court	
DELIVERED ON:	26 August 2022 (delivered ex tempore) 	
DELIVERED AT:	Mount Isa District Court	
HEARING DATE:	26 August 2022	
JUDGE:	Dearden DCJ	
ORDER:	1.	Appeal granted.
2.	The order for convictions to be recorded made on 8th of March 2022 at the Mount Isa Childrens Court be set aside in respect of each of the offences for which convictions were ordered to be recorded.
3.	The balance of the sentences imposed are upheld.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE –SENTENCING JUVENILES – where the appellant was sentenced to three months detention to be released after serving 50 per cent in respect of the unlawful use of a motor vehicle and enter dwelling offence on 8 March 2022 – where convictions were recorded – where a restorative justice diversion referral was imposed in respect of the enter dwelling offence on 7 February 2022 – where the appellant was reprimanded in respect of the possess utensils offence and the, unlawful use offences on 15 February 2022 – whether the magistrate erred in recording a conviction 	
LEGISLATION	Justices Act 1886 (Qld) s 222
Youth Justice Act 1992 (Qld) ss 117, 118, 183, 184	
CASES	Jenkins v Commissioner of Police [2021] QDC 289	
COUNSEL:	N Honnef (solicitor) for the appellant
J Hockings (solicitor) for the respondent	
SOLICITORS:	Aboriginal and Torres Strait Islander Legal Service for the appellant
Office of the Director of Public Prosecutions for the respondent	
Introduction
[1]	This is an appeal by the appellant child WAD in respect of a confined point in relation to a sentence imposed at the Mount Isa Childrens Court on 8 March 2022.  The offences of which the appellant was convicted are as follows:
(1)	Enter dwelling and commit indictable offence (7 February 2022).
(2)	Possess utensils or pipes that have been used (10 February 2022).
(3)	Unlawful use of a motor vehicle – use (15 February 2022).
(4)	Unlawful use or entry of vehicles (15 February 2022).
(5)	Unlawful use or entry of vehicles (15 February 2022).
(6)	Unlawful use of a motor vehicle – use (15 February 2022).
(7)	Unlawful use of a motor vehicle – use (15 February 2022).
(8)	Enter premises and commit indictable offence by break (8 March 2022).
[2]	The sentence imposed is identified in the Notice of Appeal as follows:
“In relation to the three counts of unlawful use of a motor vehicle (15th February 2022), and enter premises and commit indictable offence by break (8th March 2022), the defendant is sentenced to a period of three months detention.  The defendant is to be released from custody after serving 50 per cent of the detention order.  A period of custody while on remand for the offences will be counted as part of the detention.  Convictions recorded.”
[3]	In relation to the offence of enter dwelling and commit indictable offence (7 February 2022), the child is ordered to a restorative justice court diversion referral.  
[4]	The child is reprimanded in relation to possess utensils or pipes etc that had been used (10 February 2022), unlawful use or entry of vehicle (15 February 2022), unlawful use of a motor vehicle – use (15 February 2022).  
[5]	The grounds for appeal are as follows:
“The magistrate erred in recording a conviction.” 
The Law
[6]	I refer to and rely on my exposition of the relevant law in respect of appeals under section 222 of the Justices Act 1886 (Qld) (‘JA’) set out in Jenkins v Commissioner of Police [2021] QDC 289.
[7]	As the respondent correctly points out, an alternative pathway for this matter to be dealt with would have been a sentence review application pursuant to section 118 of the Youth Justice Act 1992 (Qld) (‘YJA’), but the provisions of YJA section 117 alternatively allow the appeal to proceed as it has done under JA section 222.
[8]	The appeal is confined to the issue of the recording of convictions in respect of the charges of unlawful use of a motor vehicle (three of the offences), and the enter premises and commit indictable offence.  All of which occurred on 15 February 2022, and all of which were subject to the recording of a conviction.
[9]	YJA section 183 sets out the starting point, which is that by default a conviction is not to be recorded against a child who is found guilty of an offence.  YJA section 184 sets out the considerations whether or not to record a conviction.
[10]	As was clear from the transcript of the learned sentencing magistrate’s decision, the conclusion that convictions should be recorded clearly arose from the 19 pages of previous criminal history that the juvenile defendant had accumulated prior to this particular sentence, the fact that his reoffending took place three days after he was released, and where the offending was quite persistent, opportunistic and took advantage of vulnerable communities”.  
[11]	Although the learned sentencing magistrate’s concern was clearly well placed, as the appellant identifies with the range of authorities which do not need to be read into the record, but can be identified at exhibit 1, it is clear that starting from a default position of no conviction being recorded and identifying as relevant factors (as the magistrate did), the nature of the offences and previous convictions, the learned magistrate has failed to give any regard to the prospects of rehabilitation and the chances of retaining employment when considering recording a conviction.
[12]	In addition to those issues of course, as identified, the offences for which convictions were recorded, although unfortunately continuing a similar pattern to previous offending, were not of such a nature that they represented an escalation of previous offending,or were particularly and sufficiently serious to warrant the recording of convictions.
[13]	They were undoubtedly of some significant concern, and the context in which they have occurred was no doubt a significant factor in the learned magistrate’s decision to record convictions, but the difficulty is that in exercising the discretion those factors have overwhelmed the countervailing factors which the learned sentencing magistrate did not refer to and appears to have given insufficient weight to.
[14]	That view is joined by the respondent, and the appeal is not opposed.  With respect, that concession appears, in my view, to be entirely appropriate, as concerning as this appellant’s accumulation of criminal history (albeit with no convictions recorded) has been in recent times.
Order
[15]	The appropriate order then is as follows:
(1)	Appeal granted.
(2)	The order for convictions to be recorded made on 8th of March 2022 at the Mount Isa Childrens Court be set aside in respect of each of the offences for which convictions were ordered to be recorded.
(3)	The balance of the sentences imposed are upheld.