R v C

[1996] QCA 234

IN THE COURT OF APPEAL	[1996] QCA 234
SUPREME COURT OF QUEENSLAND

C.A. No. 160 of 1996

Brisbane [R. v. C]

THE QUEEN

v.

C

(Applicant) Appellant

Williams J
Ambrose J

Byrne J

Judgment delivered 19/07/1996
Judgment of the Court

Leave to appeal granted. Appeal allowed. Set aside the sentences and in lieu thereof the applicant is sentenced to two years probation and 60 hours community service in respect of all offences. A condition should be attached to the probation requiring the applicant to attend counselling in relation to his alcohol dependence.

CATCHWORDS: CRIMINAL LAW - sentence - juvenile - whether detention

appropriate.

Counsel:	Mr A. J. Rafter for appellant
Mr D. Meredith for respondent
Solicitors:	Legal Aid Office for appellant
Director of Public Prosecutions for respondent
Hearing Date:	9 July 1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 19/07/1996

The applicant was 14 when in August last year he was reprimanded in the Children's Court for possession of a dangerous drug and a pipe used in smoking a dangerous drug. Apparently this was not a chastening experience.

On 12 September the applicant and another juvenile broke into a house and stole a camera, jewellery, a mobile phone, and electrical equipment. The applicant destroyed the phone. In the next two days, and again on 18, 19 and 20 September, the applicant was involved in other offences when houses were broken into and property stolen.

Previously, the applicant had attended high school. On 26 September he came upon a teacher from his school at a bus stop near the school. He insulted and pushed the teacher.

On 29 September the applicant was involved in another breaking, entering and

stealing.

On 3 October the applicant and other young males unlawfully used a motor

On 5 October the police spoke to the applicant. He admitted his role in the
taking of a vehicle. At the same time, he spoke of his involvement in all the offences
committed before the teacher was assaulted, naming co-offenders. His fingerprints
were found at the scene of the 29 September offence.

vehicle. During the escapade, the vehicle was damaged in a collision. accompanied by another young man, stole a small quantity of alcohol and two sports bags from a house after entering through the front door.

The value of the losses resulting from the offences was a little more than $17,000; about half related to the damaged car.

Guilty pleas were entered in respect of all the offences.

After a pre-sentence report prepared in January was considered, the applicant was sentenced to four months detention, with an order for release after two months. This sentence related to the offences other than those committed on 29 September and 23 November, which had been separately charged. For the latter offences, the applicant was awarded probation and placed on a good behaviour bond for two years. The judge ordered that no convictions be recorded.

It is contended that the sentences are manifestly excessive because detention

was ordered.

The applicant had been attending child guidance clinics, paediatricians and child psychologists since he was two. He was diagnosed as having Attention Deficit Hyperactive Disorder at an early age and had been on medication since age 10. He ceased his medication in early 1995 and then began to experience episodes of depression and suicidal ideation. He was expelled from school during July 1995 whilst in year 8. Before expulsion, he had a record for poor attendance and aggressive behaviour.

The author of the pre-sentence report identified prospects of rehabilitation. She spoke of the applicant's improved school attendance towards the end of 1995 and of his willingness to engage in counselling in relation to excessive alcohol consumption. He was no longer associating with offending peers. He was willing to apologise to the complainants and was considered "most genuinely remorseful". He was so distressed at the prospect of detention as to speak to his parents of suicide. The applicant's parents have made every endeavour to support him. Notwithstanding their grave disappointment at the offences, they remain willing to facilitate his rehabilitation.

Section 4(b) of the Juvenile Justice Act 1992 states, as a "general principle", that "a child should be detained in custody ... only as a last resort". In sentencing a child, a Court must have regard to such general principles: s.109(1)(b). Section 109(2) states "special considerations" in sentencing juveniles, which include that "a non-custodial order is better than detention in promoting a child's ability to reintegrate into the community"; and that "the rehabilitation of a child ... is greatly assisted by (i) the child's family; and (ii) opportunities to engage in educational programs and employment": see sub-ss.(b), (c). By s.109(2)(e), "a detention order should be imposed only as a last resort and for the shortest appropriate period". And s.165 stipulates that:

"A Court may make a detention order against a child only if the Court, after -

(a)considering all other available sentences; and

(b)taking into account the desirability of not holding a child in detention;

is satisfied that no other sentence is appropriate in the circumstances of the

case."

In deciding to order detention, his Honour imposed the "short period of detention", as he described it, because he thought that a custodial sentence would be a "sharp lesson" - something to make the applicant realise that he must not commit such offences.

The applicant had not previously been subjected to a program of external supervision. As the pre-sentence report pointed out, a probation order would permit the applicant to remain in the community in a supervised and supported way, and to attend school. Community service would have meant a tangible consequence for the offending behaviour, as well as ensuring that reparation was made to the community.

Short periods of incarceration are generally undesirable. As the Act emphatically recognises, this is especially true for juveniles with appreciable prospects of rehabilitation. Here, as the pre-sentence report disclosed, there seem real chances of rehabilitation. He was released on the day he was sentenced and has been subject to the probation order since 16 April. The Court was informed that he has been reporting "very well" and participating in a drug and alcohol program once a week. This tends to confirm that he is amenable to supervision. His rehabilitation would be fostered by sentences that allowed the applicant to remain in the community with a supportive family. For this 14 year old boy who had not had the benefit of community-based orders before, neither general nor personal deterrence was of such significance as to justify detention. Detention was, in all the circumstances, manifestly excessive.

The application should be granted, the appeal allowed, the sentences set aside, and in lieu thereof two years probation and 60 hours community service ordered in respect of all offences. A condition should be attached to the probation requiring the applicant to attend counselling in relation to his alcohol dependence.