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Youth rapist fails to overturn ‘excessive’ sentence

A 14-year-old boy has failed to reduce a “manifestly excessive” sentence of three years’ probation – with a conviction recorded – for the rape of a 13-year-old girl.

The Court of Appeal in Brisbane, in a judgement published yesterday, rejected the boy’s application seeking leave to appeal a sentence imposed by Queensland’s Childrens Court President Judge Deborah Richards.

COA Justice Jean Dalton, in a transcript from the 28 July 2022 ex-tempore decision, said the boy, identifiable only as HCJ, was convicted after a trial to a charge of raping a young girl and was sentenced to probation and a conviction recorded on his permanent record.

“This is an application for leave to appeal against sentence … imposed by the President of the Childrens Court,” Justice Dalton said. “The ground of appeal is that the sentence was manifestly excessive.

“No particular error was identified (by lawyers for HCJ) in the reasons of the primary judge … that the sentence was manifestly excessive so as to indicate that the primary Judge’s discretion had miscarried.”

In a decision supported by fellow COA Justices Philip Morrison and Peter Flanagan, Justice Dalton said case law made it clear Judge Richards had a broad discretion to record a conviction against HCJ.

In Queensland under the Juvenile Justice Act 1992, a conviction for an offence committed as a child can only be used against a person as an adult if their conviction was recorded. If no conviction is was recorded, the offence still forms part of the child’s criminal history if they commit another offence as a child.

The Queensland Sentencing Advisory Council, in its ‘Guide to the sentencing of children in Queensland’ in November 2021, said that, when making a decision whether to record a conviction against a child, the presiding judicial office was required to consider all the circumstances of the case, including:

  • the child’s age and any previous convictions
  • the nature of the offence, and
  • the impact of recording a conviction will have on the child’s chances of rehabilitation or finding and retaining employment.

Justice Dalton, in the three-page decision, said there was no error apparent to me in the primary judge’s exercise of discretion to record a conviction.

“I note that the primary judge was a very experienced judge who had conducted the trial and then the sentence proceeding,” she said. “I think the primary Judge was right to recognise that this was a serious crime and the lack of remorse and wrongdoing by (HCJ).

“I would add to the matters referred to … that (HCJ) denied criminal responsibility in the pre-sentence report even after conviction. I cannot see that the discretion of the primary judge miscarried in this case.

“I cannot see that the sentence, including the recording of a conviction, is manifestly excessive.”

Both Justices Morrison and Flanagan said: “I agree.’’

Read the decision.

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