R v B - [2001] QCA 151

[2001] QCA 151

COURT OF APPEAL

McPHERSON JA
THOMAS JA
HOLMES J

No 22 of 2001

THE QUEEN

B Applicant

BRISBANE

..DATE 19/04/2001

JUDGMENT

McPHERSON JA: I will ask Mr Justice Thomas to give the first judgment.

THOMAS JA: The applicant seeks leave to appeal against sentences imposed upon him in the District Court, Maryborough. He is 16 years old, having been born on 22 August 1984.

He pleaded guilty to 10 counts, four of which were of stealing, two of receiving, two of assault, one of unlawful use of a motor vehicle and one of unlawful entry of a motor vehicle. Most of these were committed between June and October 2000. However, the unlawful use of the motor vehicle was committed a year earlier, in July 1999. He was sentenced to detention for 12 months on the unlawful use of a motor vehicle count and to detention for three months on all other counts. He had been in pre-sentence detention for 59 days before sentence and it was accepted that he would be credited with having served that period as part of the sentence.

The applicant was frankly described by his counsel as a recidivist offender in relation to property. At the time of the present sentences, he was subject to four two year probation orders and a 200 hour community service order. He had in all been subject to seven probation orders, six community service orders and two detention orders served as immediate release orders.

This was not the first time he had experienced detention. It would seem that he had been in detention probably for a period of several months on a previous occasion around the time of his Court appearance of 22 February 1999 when he was sentenced to actual detention but was prematurely released after a review.

The present offences include four shop stealing offences and various assaults upon his father and causing damage to his father's property. The assaults included the repeated punching of an arthritic knee and throwing objects at his father. The presentence report with, perhaps, some understatement says:

"James demonstrates little respect for his parents. This disrespect has been present for the majority of James' childhood."

The unlawful use of the motor vehicle was committed in company with other youths. The vehicle in question was taken from Urangan boat harbour and was later recovered in a damaged state. The unlawful entry of a vehicle related to the pushing open of a window vent with the intention of stealing money in the car.

The presentence report indicates a pattern of persistent offending since age 11. It profiles the applicant as an habitual offender who lacks victim empathy. In passing judgment, Botting District Court Judge noted that the applicant had appeared before him in May and that in ordering his release on probation on that occasion he had had doubts as to whether he was taking the appropriate course. His Honour also referred to the fact that every other option, apart from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v B

Details

AGLC: R v B [2001] QCA 151
Case: [2001] QCA 151
Decision Date: 19/04/2001

CaseChat Overview and Summary

The applicant, a 16-year-old, appealed against sentences imposed on him in the District Court, Maryborough. The applicant had pleaded guilty to 10 counts of various offences including stealing, receiving, assault, unlawful use of a motor vehicle, and unlawful entry of a motor vehicle. The applicant had been in pre-sentence detention for 59 days before sentence and it was accepted that he would be credited with having served that period as part of the sentence. The applicant had been subject to several probation orders, community service orders, and detention orders in the past. The applicant was described by his counsel as a recidivist offender in relation to property.

The legal issues in the appeal were whether the sentences imposed by the District Court were manifestly excessive and whether the court had erred in imposing a significant period of detention. The applicant argued that the sentences were excessive, especially in light of the fact that the unlawful use of the motor vehicle offence was committed a year earlier and may have resulted in a different outcome had it been dealt with at that time. The applicant's counsel also argued that detention was not the only option available and that an immediate release order should have been considered. However, the court found that all other options had been tried and had failed to stop the applicant's reoffending. The court also noted that the applicant had a "high level of comfort" in the criminal justice process hitherto applied to him and held a "no fear" attitude to being caught.

The Court of Appeal found that the sentences imposed by the District Court were not manifestly excessive. The court held that the applicant's persistent offending and lack of victim empathy necessitated a significant period of detention. The court also noted that the applicant had been in pre-sentence detention for 59 days and would be credited with having served that period as part of the sentence. The Court of Appeal held that the District Court had not erred in imposing a significant period of detention. The application was refused.

The Court of Appeal refused the applicant's application for leave to appeal against the sentences imposed by the District Court.

Orders