McCarthy v. W
[1993] QCA 554
•16 December 1993
IN THE COURT OF APPEAL [1993] QCA 554
SUPREME COURT OF QUEENSLAND
C.A. No. 271 of 1993
Brisbane
[McCarthy v. W]
BETWEEN:
ANDREW McCARTHY
v.
W
(Applicant)
The President
Mr Justice Pincus
Mr Justice Thomas
Judgment delivered 16/12/93
Separate reasons for judgment by each member of the Court. Thomas J. agreeing with the order of the President. Pincus JA dissenting.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SET ASIDE THE SENTENCES IMPOSED BELOW AND INSTEAD IMPOSE FINES OF $20.00 IN RESPECT OF THE OFFENCE OF OBSCENE LANGUAGE, $150.00 IN RESPECT OF THE ASSAULT AND $80.00 IN RESPECT OF THE OFFENCE OF RESISTING POLICE. ORDER THAT CONVICTIONS BE RECORDED.
CATCHWORDS: CRIMINAL LAW - Sentence - obscene language; assault and resisting arrest - 16 year old sentenced to care and control for 12 months with recommendation for 3 months' strict custody - whether manifestly excessive - substitute sentence of fines with conviction recorded.
Counsel:Mr A Smith for the applicant
Mr J Henry for the respondent
Solicitors:Hartley Hall & Co for the applicant
Director of Prosecutions for the respondent
Hearing Date: 6 October 1993
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 271 of 1993
BeforeThe President
Mr Justice Pincus
Mr Justice Thomas
[McCarthy v. W]
BETWEEN:
ANDREW McCARTHY
v.
W
(Applicant)
REASONS FOR JUDGMENT - THE PRESIDENT
Judgment delivered 16/12/93
The applicant, who is aged sixteen years, seeks leave to appeal against a sentence imposed on him in the Children's Court at Murgon on 24 June 1993. On that day, he pleaded guilty to three offences which he had committed that day, namely, obscene language, assault occasioning bodily harm and resisting police. The Magistrate committed him to the care and control of the Director-General of the Department of Family Services and Aboriginal and Islander Affairs for a period of twelve months and recommended three months' strict custody. The Court was informed that this would involve incarceration in an institution at Westbrook.
The offences were committed during an incident at the applicant's residence when police arrived to execute a warrant in relation to another person. The applicant uttered an obscene word whereupon the police returned. When the applicant was arrested, he grabbed one of the police officers and, according to what the Magistrate was told, caused scratch marks to his chest. The remaining charge related to the applicant's struggling while being escorted to the police vehicle.
According to a version of the events placed before the Magistrate on behalf of the applicant, one of the police officers had pushed the applicant's mother out of the way prior to the applicant swearing and, after the applicant had sworn, the police officer swore back at him. The applicant acknowledged that he had got into a scuffle when he was arrested and that he had to be dragged to the police vehicle. As the appellant's solicitor said, the incident "got out of hand on both sides".
The applicant is an aboriginal youth who resides with his parents and has been educated to Year 10. He has previously been in trouble with the police, commencing from the time when he was fourteen years of age. Some of his previous offences involve disorderly behaviour but there are also offences of dishonesty and wilful damage.
By 1993, the offences were becoming more serious. On 16 March 1993, he was placed in the Director's care and control for a period of twelve months in relation to offences of wilful damage, resisting arrest and assaulting police. Similar charges led to him being given a further period of care and control for twelve months on 14 April 1993, with a recommendation that he be kept in strict custody for three months. He was released from custody on 28 May, 1993 and, except for the present incident, stayed out of trouble since.
When he was sentenced, the applicant had been working in Cherbourg for approximately four weeks making boomerangs as part of a scheme called the C.D.E.P. Scheme, which involves aborigines working in the Cherbourg Reserve in return for unemployment benefits. The applicant was receiving $110.00 per week for working two days a week. Both the applicant's solicitor and a representative from the Department of Family Services and Aboriginal Affairs recommended to the Magistrate that the applicant should be convicted and ordered to pay a fine. It was considered by the representative of the Department of Family Services and Aboriginal and Islander Affairs that such a course would have a personal impact on the applicant and assist him to address his offending while enabling him to continue his employment "and therefore enhance his re-integration and re‑habilitation into the Community".
The respondent submitted that the sentence is not manifestly excessive "having regard particularly to:
(a)the seriousness of the latter two offences;
(b)the applicant's lack of remorse for them;
(c)his previous criminal history;
(d)the orders previously made against him; and
(e)S.60 (a) and (c) of the Children's Services Act 1965‑1989".
In an affidavit filed in this Court, the solicitor who represented the applicant in the Children's Court at Murgon deposed to the fact that the language used by the applicant is "a part of everyday language" in the locality where the applicant resides. Further, he said:
"16.The defendant child comes from a particularly disadvantaged group in our community. He is an aboriginal child living on Cherbourg Aboriginal Mission. He has been educated at school which he left aged 15 after completing grade 10. Such children do not find work and traditionally become unemployed from a very young age. Many of these children have caused many problems in nearby Murgon. There is no facility to direct these children into trades or employment and they feel rejected by society from a very young age. W comes from a home where his father and mother have exercised very little supervision over him. This has been because of a long history of ill health by his mother and by the lifestyle of his father which has involved working where possible to support his family but at the same time he has not contributed any discipline to his children. W has stated that since his first and only period in custody he has resolved to change around his lifestyle. He has volunteered for work under the C.D.E.P scheme and has with the exception of this been out of trouble since his release from Westbrook in or about May or June 1993. It is felt that notwithstanding W’s previous criminal history he is at a sensitive stage of his life where his desire to reform should be encouraged, and a further custodial sentence at this stage would very well be counter productive as far as W’s behaviour is concerned."
While courts must note the difficulties involved in police work and provide appropriate support to the Police Service, we cannot close our minds to social realities such as those deposed to by the applicant's solicitor.
Sub-section 4(b)(i) of the Juvenile Justice Act, 1992 provides as follows:
"The general principles underlying the operation of this Act ("general principles of juvenile justice") are that -
...
(b)a child -
(i)should be detained in custody for an offence (whether on arrest or sentence) only as a last resort."
That Act was not in force at the time when the applicant was sentenced in the Children's Court, although the sub-section did not necessarily make a substantial difference to the previous law. Indeed, depending upon the meaning to be ascribed to section 108 of that Act, sub-section 4(b)(i) may not be applicable now because the original sentence was imposed prior to those provisions coming into effect. Nonetheless, the Juvenile Justice Act is at the least, a highly persuasive guide as to the proper exercise of the Court's discretion since it clearly manifests the Legislature's intention. Further, sub‑section 4(b)(i) is broadly reflected in sub-section 9(2)(a) of the Penalties and Sentences Act 1992. In accordance with these provisions, this Court must ascertain whether any course other than that adopted by the Magistrate is reasonably open. The answer to that must be in the affirmative: Juvenile Justice Act, sections 120, 121, 128, 175; Children's Services Act 1965-1989, section 62.
I am prepared to be guided by the recommendation made to the sentencing Magistrate by the representative of the Department of Family Services and Aboriginal and Islander Affairs although, of course, that recommendation did not, and does not, circumscribe the Court's discretion. However, I consider that recording a conviction and imposing a fine best meets the circumstances of this case. Such a course provides both deterrence and an opportunity for the applicant's rehabilitation while he is still young.
Accordingly, I would grant the application for leave, allow the appeal, set aside the sentences imposed below and instead impose fines of $20.00 in respect of the offence of obscene language, $150.00 in respect of the assault and $80.00 in respect of the offence of resisting police.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 271 of 1993.
Brisbane
BetweenThe President
Pincus J.A.
Thomas J.
[McCarthy v. W]
ANDREW McCARTHY
v.
W
(Applicant)
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 16/12/93
I have read the reasons for judgment of the President, which set the facts out fully. Although I regard the case as a marginal one, I am, with respect, unable to agree with his Honour's conclusion that it has been demonstrated that the learned Magistrate was in error in taking the course which she did. It was contended, on behalf of the applicant, that he has the sort of history which most children of Cherbourg have - no more, no less. It was also suggested that the circumstances were trivial. If the first assertion was correct then the children in the area must be rather lawless; one finds numerous offences in the applicant's record including stealing, wilful damage, resisting arrest and assaulting police. One of the Magistrate's tasks is to preserve order in the community. In the case of a youthful but persistent offender a stage must be reached at which a sentence involving a period of custody is within the range of permissible sentencing options; in my respectful opinion, that stage had been reached here.
As to the offence's triviality, it appears to be common ground that the applicant assaulted the community police officer who had been attempting to execute a warrant for arrest, with the result that, according to the information placed before the Magistrate, the officer had severe scratch marks on the chest. Whereas the offence does not seem to have been one of great seriousness, one can understand the Magistrate wishing firmly to discourage assaults of this kind, in the interests not only of the community police officers, but also those of the community they serve. I would refuse the application.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 271 of 1993
Brisbane
The President
Mr Justice Pincus
Mr Justice Thomas
ANDREW McCARTHY
-v-
W
Applicant
REASONS FOR JUDGMENT- THOMAS J.
Judgment delivered the 16th of December, 1993
This is an application by a sixteen year old aboriginal youth for leave to appeal against sentences imposed in the Children's Court for obscene language, assault occasioning bodily harm and resisting police. He was sentenced to care and control for twelve months, with three months in strict custody.
The conduct in question occurred during a police visit to his home in order to execute a warrant on another person. After that person had been found and escorted outside, the applicant uttered the obscene words "Onkis you cunt". At some stage in the proceedings the community police officer had pushed the applicant's mother out of the way. After he was told he was being arrested for obscene language he "got into a scuffle" with the community police officer and was said to have caused "severe scratch marks on the officer's upper chest". He also resisted arrest at the hands of the police officer and struggled violently whilst being escorted to the police vehicle.
I have read the proposed reasons of the President and of Pincus J.A. My difficulty in deciding whether to interfere with the orders that were made by the Stipendiary Magistrate arises from the difficulty in obtaining a clear picture of the relevant events. If they are to be seen as the reviling and attacking of police officers who were merely performing their duty in the ordinary course, the sentence would be quite appropriate. If however it arose out of a misunderstanding of what was seen as an unnecessary and unjustified assault upon the applicant's mother and the event is to be seen as an unfortunate build-up contributed to by both sides, I would support an order that avoids the applicant being sentenced to a period of strict custody.
The solicitor for the applicant made a statement of facts before the Magistrate on behalf of his client. The police prosecutor did not seek to contest any of them. Thus the conduct of the community police officer in causing the applicant's mother to be pushed "knocked to the ground" was not contradicted. Nor was it suggested that any significant period elapsed before the angry response of the applicant, although it is quite possible that this happened some time later, because on the police statement, the police were already out on the footpath escorting the person they had come to arrest when the obscene words were uttered. However in the absence of any contest in relation to the facts, the circumstances stated on behalf of the applicant, which are not inherently incredible, or outweighed by the other circumstances, should be acted on. On this basis the submissions that "he was pulled immediately afterwards to the police van without knowing whether his mother was alright" and that "his resistance could have been avoided by a more sensitive approach" seem reasonable.
I am not persuaded by other submissions such as the prevalence of obscene language or the allegation that his criminal record is "normal" for young aboriginals in this district. However I am influenced by the circumstances as I think they should be interpreted in the light of the uncontradicted assertions made by the defence solicitor. On this basis it seems to me that the submission that he should be convicted and fined under s. 62(1)(e) of the Childrens Services Act was a reasonable one. However having regard to his previous history, and it would seem, his attitude which was described by a representative of the Department of Family Services and Aboriginal and Islander Affairs as "not particularly remorseful" this may well be regarded as the last occasion on which the benefit of lenient treatment should be extended for conduct that is contemptuous of law and order.
I would therefore join with the President in granting the application for leave and allowing the appeal and substituting the fines proposed by the President, at the same time declaring that convictions should be recorded.
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