R v C

[1996] QCA 284

[1996] QCA 284

COURT OF APPEAL

WILLIAMS J
AMBROSE J
BYRNE J

CA No 158 of 1996

THE QUEEN

v

C

BRISBANE

DATE 12/07/96

JUDGMENT

WILLIAMS J:  The applicant was sentenced in the District Court on 19 April 1996.  He had pleaded guilty to an indictment which contained some 16 counts.  There was one count of robbery with violence, five of housebreaking, one of breaking, entering and stealing, four of stealing, one of attempted housebreaking, one of wilful damage at night, two of receiving and one count of assault occasioning bodily harm whilst armed.

The total amount of property involved in those offences was some $26,148, none of which was recovered.  There was also a schedule of further offences tendered to the sentencing Judge and he was asked to take those matters into account on sentence.  Unfortunately, that schedule is not presently before this Court, but it would appear that there were some 20 or more property offences referred to therein, with the total amount of property involved being $29,107.

As the learned sentencing Judge said, in all of the offences before him a total value of property of $55,255 was involved, none of which had been recovered.  The circumstances of the offences were made particularly serious because of the applicant's prior criminal history and because of the fact that when a number of the offences were committed he was either on probation or on bail.

I will not detail in full his previous criminal history.  It is sufficient to record that on 8 April 1993, he pleaded guilty in the Cleveland Children's Court to 25 counts of breaking and entering a dwelling house with intent and certain other property offences.  There were additional property offences for which he was dealt with in Children's Courts on 29 November 1993, 8 August 1994 and 26 April 1995.  In addition to those property offences, he had previous convictions relating to drugs and assaulting police.

When he appeared in the Wynnum Children's Court on 8 August 1994 on a series of property offences, including unlawful use of a motor vehicle and breaking and entering a dwelling house, he was placed on probation for a period of 12 months.  Most of the offences with which this Court is now concerned, with the exception of the offence of assault occasioning bodily harm whilst armed, occurred during that 12 month period whilst he was on probation.

He was taken into detention but released on bail on or about 23 August 1995.  He was granted bail subject to his participation in what was referred to as a conditional bail programme.  However, in November 1995 he committed the offence of assault occasioning bodily harm whilst armed.  In my view, it is of great significance that there are included amongst the offences with which the Court is concerned today two which involve assault whilst in company.

The first is the robbery with violence.  In broad terms, that offence was committed in March 1995 when, in the company of another youth, the application grabbed a cash bag being carried by a person in the street.  They ran off with the bag which contained a quantity of money.  The offence of assault occasioning bodily harm whilst armed occurred, as I said, in November 1995.  There had apparently been some argument at a local hotel.  Later that evening the applicant went to the home of the person with whom there had been that disputation and a fight occurred.  The applicant left the house and returned later with a metal pipe to continue the altercation.  Apparently there was a further assault on the other person involved.

The learned sentencing Judge observed in his sentencing remarks that if he was dealing with an adult then a sentence of imprisonment of more than seven years would probably be called for.  However, he dealt with the applicant as a child.  The applicant had been born on 4 February 1979 and was aged between 15 and 16 years when the offences now before the Court were committed.  He was aged 17 when he stood for sentence.

The learned sentencing Judge took into account the plea of guilty and he did that by making an order that the applicant be released from detention after serving 50 per cent of the period.  Under the juvenile justice law, he ordinarily would have had to serve 70 per cent of the time before being released.

On the robbery with violence count, there was an order that he be detained for three years; on the housebreaking charges, there was an order that he be detained for two years; on the stealing charges, an order that he be detained for one year; on the attempted housebreaking and wilful damage, one year; on the receiving counts, one year; and on the count of assault occasioning bodily harm whilst in company, the offence committed whilst he was on bail, the order was detention for one year cumulative upon the three year sentence earlier imposed.

In total the applicant was to be held in detention for a period of four years with a recommendation for release after serving 50 per cent of that detention.  In my view, when one takes into account the previous criminal history, the nature of these offences, including the value of property involved, the fact that the applicant was on probation when most offences were committed, and the fact that he was on bail when the serious offence of assault occasioning bodily harm whilst armed was committed, such a sentence was not manifestly excessive.

In my view, the recommendation for earlier release reflects such mitigating factors as can be discerned from the material.  In the circumstances, I would refuse the application for leave to appeal against sentence and dismiss it.

AMBROSE J:  I agree.

BYRNE J:  I agree.