R v C

[1997] QCA 392

[1997] QCA 392

COURT OF APPEAL

WILLIAMS J
LEE J
CULLINANE J

CA No 319 of 1997

THE QUEEN

v.

C

BRISBANE

DATE 07/10/97

JUDGMENT

WILLIAMS J:  The applicant in this case is a young male who was born on 28 July 1980.  He was aged 16 at the time the relevant offences were committed and 17 at the time he stood for sentence.

Prior to being dealt with for the offences now under consideration he had a very extensive criminal history including some 60 findings of guilt or convictions recorded over a period of time since he was aged about 11 years.  Without referring in detail to that criminal history it should be noted that it includes findings of guilt, or convictions, for the following: two entering with intent, 18 stealing, 2 breaking entering and stealing, one break and enter by night, one armed robbery, three attempted armed robbery, two robbery, one deprivation of liberty, and two assault occasioning bodily harm.

When he stood for sentence there was an indictment before the Court containing the following offences: one enter a dwelling-house with intent, nine stealing, one house breaking, one attempted house breaking, three wilful damage, one break, enter and steal, eight burglary, one assault, six unlawful use of a motor vehicle, one armed robbery in company, one attempted stealing, one dangerous driving, two escape from lawful custody, one serious assault, one armed robbery in company with actual violence, one robbery in company, and two deprivation of liberty.

In addition to that the learned sentencing Judge was asked to take into account a schedule of further offences including the following: 30 house breaking, two attempted house breaking, 28 burglary, eight attempted burglary, two break and enter a place, two break enter and steal, one enter dwelling by night with intent, 47 stealing, one attempted stealing, four unlawful use of a motor vehicle, one attempted unlawful use of a motor vehicle, one unlawful use of a motor vehicle with a circumstance of aggravation, and one wilful damage.

He pleaded guilty to all of those offences.

For present purposes it is sufficient to say that the learned sentencing Judge imposed a sentence of five years' and six months detention for the burglary accounts, the armed robbery in company, the armed robbery in company with violence and the robbery in company.  No recommendation for early release was made.  Lesser sentences were imposed with respect to the other offences.  All sentences were to be served concurrently.

Pursuant to section 188 of the Juvenile Justice Act a consequence was that the applicant had to serve 70 per cent of the period of detention before he became eligible for release.  That section provides that if the Court considers that there are special circumstances it may make an order that the applicant be eligible for release after serving 50 per cent of the sentence.

It should be noted that the first of the subject offences was committed barely 3 months after a District Court judge had placed him on probation and made an immediate release order for other very serious offences.

The applicant seeks leave to appeal against the sentence contending that it is manifestly excessive.  Really, two points were advanced by counsel in support of that contention.  Firstly, it was said that though the learned sentencing Judge said that he was recognising the plea of guilty and other mitigating circumstances by imposing a lesser head sentence than otherwise would have been the case, an examination of the sentence does not indicate that he in fact did so.

Secondly, it was submitted that there were special circumstances such as to justify an order that he be eligible for release after serving 50 per cent of the sentence.

In my view, the matter can be disposed of by looking at the more serious offences with which the learned sentencing Judge was concerned.

Counts 16 and 17 on the indictment related to what is commonly referred to as a home invasion.  Three people, this applicant and two adults, broke into the residential premises of a man named Russell and subjected Russell, his mother and daughter to a particularly violent and frightening experience.  It is not clear what the weapon was that was used but the statements of Russell, including a victim impact statement, indicate that an object was held over his head and he was threatened with actual violence.

It is also not clear which of the three male persons was holding that implement, though it seems abundantly clear that it was this applicant who stole the wallet and other property.  That incident occurred on 4 September 1996.  The other two male person were apprehended shortly afterwards but the applicant, at that stage, evaded capture.  In hindsight, it would appear that ultimately his identity would have been disclosed because when they stood for sentence each of those other male persons placed blame on the applicant as the principal offender.

Those two adults received a sentence of five years' imprisonment but it must be said that their criminal history was nowhere near as bad as the present applicants.

The applicant was taken into custody on 16 September 1996 and held at the John Oxley Detention Centre.

On 27 February 1997 in company with another person he escaped from that centre after violently assaulting two persons who were custodial officers at that centre.  They were locked in a room and their keys stolen to facilitate the escape.  Both of them suffered significant consequences from the assault to which they were subjected.  Again, shortly after that, the applicant was apprehended.

I should also record that it would seem that the loss to the community in terms of property value from the criminal escapade of the applicant the subject of the matters before the sentencing Judge amounted to, at least, $46,753.00.

The learned sentencing Judge took into account the plea of guilty, the fact that the applicant had what might be described as a wretched background and also the significant periods of his life that had been spent in an institution.  However, the offences were, in my view, particularly serious.  Given his history, the number of previous offences involving violence and stealing it seems to me that a very significant sentence was called for so far as the offence on 4 September 1996 was concerned.

In all the circumstances it could not, in my view, be said that a sentence of five years and six months for that was manifestly excessive.  If that were so then, in my view, a heavier sentence was required for the incidents that occurred on 27 February 1997.  This Court has recognised that escaping from custody and using violence in escaping from custody usually calls for a cumulative sentence on the sentence that is then being served.

On the occasion in question it would appear that the applicant was merely being held on remand in detention but nevertheless there was probably power in the Court under sections 169, 170 and 171 of the Juvenile Justice Act to make a cumulative sentence.  But if the sentence was not made cumulative it could have been, in my view, as high as in the range of seven to eight years.

Once that is recognised then one can see that the learned sentencing Judge did, in fact, mitigate the head sentence because of the factors to which I have referred.  He mitigated the head sentence by capping it at a maximum of five years and six months.

It then remains to consider whether or not there are special circumstances such as would require the Court to recommend that he be eligible for release after serving 50 per cent of the detention.

Counsel for the applicant, when asked to identify the special circumstances, referred to matters such as the plea of guilty, the fact that it was an ex officio indictment, the fact that the vast majority of offences were revealed by the applicant's own admissions and the fact that in practical terms because of his age he will serve a significant part of the detention in an adult prison.

In my view, it is only the latter matter which could, in all the circumstances, be regarded as affording some basis for concluding that there were special circumstances.  However, when one brings into account the total criminal history of this young man it is clear that the community can only be protected from his criminal activities by retaining him in custody.

In my view, his criminal history is such that it is appropriate that he serve 70 per cent of the sentence before being eligible for release.  In my view, there is no merit in the application and it should be refused.

LEE J:  I agree.

CULLINANE J:  I agree.

WILLIAMS J:  The application is therefore refused.

-----