George v Queensland Police Service

[2012] QDC 221

DISTRICT COURT OF QUEENSLAND

CITATION:

George v Queensland Police Service [2012] QDC 221

PARTIES:

GARNETT BRADLEY GEORGE
(appellant)
v
QUEENSLAND POLICE SERVICE
(respondent)

FILE NO/S:

D5/12

DIVISION:

Appellate jurisdiction

PROCEEDING:

Appeal against sentence

ORIGINATING COURT:

Magistrates Court at Camooweal

DELIVERED ON:

21 August 2012

DELIVERED AT:

Mount Isa

HEARING DATE:

21 August 2012

JUDGE:

Bradley DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –
APPEAL AGAINST SENTENCE – SENTENCE
MANIFESTLY EXCESSIVE OR INADEQUATE – where
appellant pleaded guilty to entering premises with intent to commit an indictable offence – where 12-month probation order imposed and no conviction recorded – where appellant was indigenous 17-year-old with no criminal history and limited education – whether sentence imposed was manifestly excessive

Justices Act 1886 (Qld) s 222

COUNSEL:

F Richards for the applicant
S Hedge for the respondent

SOLICITORS:

Aboriginal and Torres Strait Islander Legal Service for the applicant
Office of the Director of Public Prosecutions for the respondent

HER HONOUR:  I'll give my decision now.  The appellant, who is an indigenous youth, and was born on the 22nd of August 1994 and was therefore 17 years of age when this offence was committed, was convicted on his plea of guilty in the Magistrates Court sitting at Camooweal of an offence that on the 24th of February 2012 at Camooweal he entered the premises of the Camooweal Post Office Hotel with intent to commit an indictable offence in the premises.

He entered his plea of guilty on the 14th of March 2012, so only just over two weeks after the commission of the offence.  Clearly his plea of guilty was a very early one and it followed him being interviewed by the police on the 27th of February 2012 in Camooweal where he voluntarily attended the police station and where he made full admissions to the police.  In fact, although he had been recorded on the CCTV footage outside of the hotel, attempting to break into it, his admissions extended the facts to the extent of indicating that he'd consumed a large amount of liquor at home, he'd run out of liquor, he went to the hotel, observed it to be closed and locked so went back to his home where he located a screwdriver then walked back to the hotel and spent some time attempting to force open the front corner doors of the hotel.  The CCTV footage indicates that he took some - he spent some 20 minutes trying to gain entry to the premises.  In fact he was unable to open the door fully in order to gain full entry and the basis of the charge of actually entering the premises is simply that he opened the door sufficiently to be able to put his hand through the opening.  But in the event he was unable to enter the hotel, he was unable to obtain any further liquor and he left the scene after about 20 minutes or so.

The appellant, it was alleged, had no previous convictions, there was no suggestion in submissions that he had a particular problem with alcohol.  It was submitted on his behalf that he was currently unemployed but was undertaking a three month intensive training course to obtain qualifications to, it seems, work on the roads.  He had only limited education having only completed year seven and was currently on a Newstart allowance and living with his aunt in Camooweal.  Although it was said, on behalf of the prosecution, that some damage had been done to the wooden door frame, no particulars of that damage were given to the Court and no claim for compensation was made.

The sentencing Magistrate noted the appellant's young age and as a result of that said that he would not record a conviction against him, which of course was entirely appropriate.  The Magistrate was concerned to impose a penalty that acted as both a personal and general deterrent and, as he put it, "because at your age you might continue to make poor decisions", the Magistrate was concerned to put in place a penalty that would hopefully deter the appellant from committing any further offences.  In that regard, the Magistrate was clearly concerned about rehabilitation for this particular appellant and considered that a probation order was therefore appropriate so that he could obtain appropriate assistance and if necessary counselling and programs.

The appellant consented to the probation order and a probation order of 12 months without any special conditions was ultimately imposed.  The appellant argues that 12 months' probation was manifestly excessive in the circumstances and that the sentencing Magistrate gave inappropriate weight to the factor of general deterrence and insufficient weight to the particular circumstances of the appellant and the nature of the actual offending.

I accept the argument made on behalf of the appellant that a 17 and a-half year old offender with no criminal history and limited education is not necessarily an appropriate vehicle to use to send a message of general deterrence to the community.  However, it doesn't appear that the factor of general deterrence weighed overly heavily in the Magistrate's decision-making process.

It's clear also that the Magistrate did take into account the nature of the offence and how it was actually carried out.  It's true, as has been argued on behalf of the respondent, that the fact that the appellant, upon finding the hotel closed, went back to his home to obtain some sort of implement to attempt to gain entry and then spent some 20 minutes trying to gain entry, does illustrate a degree of planning and persistence on the part of the appellant which I agree lifts this particular offence out of the category of a simple opportunistic and brief offence.

The appellant argues that 12 months' probation, or indeed any probation, is an excessive penalty and the more appropriate penalty for a young first offender is one of either a good behaviour bond or a modest fine.

Given the circumstances of the offence and the personal circumstances of the appellant, I agree that a fine would have been within range but I don't agree that probation is outside of the range.  Whilst a probation order of 12 months is a significant and could possibly be described as a heavy penalty, in my view it is not outside of the range and it can't be characterised as being excessive and I will dismiss the appeal.

So, hopefully your client's complying with the probation order.

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