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Case Note QLD – Taylor v Queensland Police Service [2021] QDC 144

Murray Torcetti Lawyers are criminal defence lawyers who appear in Brisbane and Caboolture Courts. We write our own case notes from recent criminal decisions for internal purposes.

However, unlike your annoying sibling, we don’t mind sharing

Facts:  The appellant damaged tiles, plastic chairs, and pool equipment in the pool area of the Brisbane Youth Detention Centre. He received 240 hours community service for a single count of wilful damage and a conviction recorded. The Magistrate stood the sentence down for the quantum of damage to be obtained. At further hearing of the matter, the quote for damage was handed up to be tendered however was not marked as an exhibit. The quote is now no longer on the file, the Magistrate mentioned there was $8000 worth of damage.

The appellant was 18 years old at the time of the offending and was in the process of completing a Grade 10 certificate and was about to start a Certificate III in construction. He had no previous history. The nature of the offence was serious in that it was in a detention facility, however the defence pointed to his effort to rehabilitate himself by taking further education. He was remorseful and it was an early plea.

The legislature requires that once a child becomes an adult the matters for which no convictions are recorded are not to be considered. However, at the time off sentencing the Magistrate seemed to have become irritated at the submission that the appellant held no criminal history. The sentencing Magistrate commented:

“Although I am required to comply with the fiction that you have no previous convictions, even though the fact you’re a prisoner in a Detention Centre makes it obvious that you’re not, in reality, a first offender, I’m still required to comply with the fiction that you were…”

The appeal was on the grounds that the Magistrate erred in recording a conviction.

Finding: Appeal Allowed. No conviction recorded.

Crown concedes that there was a miscarriage of sentencing discretion in that the Magistrate relied heavily on impermissible aggravating features when assessing the appellant’s character which resulted in error.

The Crown also concedes that in the circumstances of this offence it was open for no conviction to be recorded, particularly given the young age of the offender and his previous lack of criminal history.

Notes for practice:

• An example of where the law requires facts be put aside when crafting a sentence creating a “legal fiction”.
• Wilful damage case where the nature of the offence is serious however the competing principles outweigh the need to record a conviction.

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Case Note Written by Emily Deadman and James Torcetti.