R v D

[1999] QCA 119

99.119

COURT OF APPEAL

de JERSEY CJ
McPHERSON JA

THOMAS JA

CA No 375 of 1998
THE QUEEN
v.
D
BRISBANE

..DATE 13/04/99

JUDGMENT

1. THE CHIEF JUSTICE: The applicant seeks leave to appeal against an effective two years' detention imposed for a series of offences of entering dwellings and breaking and entering and stealing offences. The applicant was 14 to 15 years old at the time of the offences and almost 15 years old when he was sentenced.

[2] When he came to be sentenced, he carried the burden of an extensive history of offences
for damage to property and dishonesty including attempted armed robbery. He had
been subjected to four previous probation orders, six detention orders, four detention
orders made subject to immediate release orders and five community service orders.

[3]        The instant offences were committed over a six-week period commencing at the beginning of July last year. He was made the subject of an immediate release order on 23 March last year in respect of a 22-count indictment. He breached that by absconding on 8 May. He was arrested the following day and remanded in custody. On 23 June that breach was dealt with in the District Court and he was ordered to perform the balance of that order.

[4]        He then committed counts 1 and 2 on this indictment which involved spray-painting the words "Inala Boys" on a private fence and on a kindergarten wall. On 11 July last year he absconded again. He then committed the offence in count 3. He broke into a private vehicle parked at Caboolture. He was then the passenger in the vehicle while it was driven to Deception Bay.

[5]        On 17 July he was interviewed and admitted guilt for the offences in counts 1 and 2. He was located on 27 July at his mother's residence. The immediate release order was then suspended pending further breach proceedings.

[6]        Between 29 July and 10 August last year he committed the balance of the offences on the indictment. They were, in counts 4 and 5, breaking into a car and stealing a CB radio from within it; counts 6 and 7, breaking into the dwelling of one of his counselors from the immediate release order course and stealing a set of keys and a briefcase then using the keys to joyride in the complainant's car from Cannondale to the Gold Coast; and in counts 8 to 1, breaking into cars and taking them for joyrides.

[7]        He was caught in the vehicle, the subject of count 11, when he admitted that offence and the others on the indictment in relation to some of which, as Mr Farr points out, the police had no prior suspicion of his involvement. Restitution of $790 was sought.

[8]        Now the learned Judge, in sentencing the applicant, observed that Courts in the past had given him every possible option to encourage him to cease committing offences but that those efforts had failed leading to the conclusion that the only option left was a

significant term of detention. The Judge did take into account a report from the
Department of Families, Youth and Community Care.

[9]        His Honour ordered two years' detention in respect of the entering of the dwelling house and stealing and breaking and entering and stealing counts and lesser penalties for the other offences and he activated the immediate release order ordering the applicant to serve concurrently the balance of the 18 months' sentence which was the subject of that order.

[10]      In his written material, and through Mr Farr today, the applicant has submitted that insufficient weight was given to his tender age. He had not yet turned 16 years at the time of the sentence. He has had a poor upbringing but the response to this is obvious enough and that it is, without my wishing to sound lacking in compassion, that the applicant has indeed exhausted the goodwill these circumstances might otherwise have attracted by his persistent re-offending.

[11]      One notes that in imposing the immediate release order on 23 June last year Chief Judge Shanahan made it plain that it was the applicant's "last chance". Notwithstanding that, His Honour gave the applicant a further chance on 23 June 1998 telling him it was his "big chance. He would be foolish not to take it." The subject offences commenced about a week after those words had been spoken.

[12]      The applicant, in his written material, pointed to a suggested lack of relativity between the two year sentence imposed for the present offences and the offences for which he had previously been given 18 months' detention but, as Mr Martin pointed out this morning, the previous offences were the first step as it were.

[13]      It is true that they involved property worth in excess of $13,000, contrasted with a suggested loss here of less than a thousand, but by the later time it was clear that the deterrent effect of the earlier sentences had failed.

[14] It was also asserted in the written material that the period of detention to be served pursuant to the breach of the immediate release order under Section 187 of the Juvenile Justice Act should have been reduced to take account of the partial completion of the immediate release order program. His Honour was not bound to impose some pro rata reduction but, in any event, as it is now conceded by Mr Farr, the point is academic because the terms are to be served concurrently, and there is no need to deal further with that point.

[15]      In the written material, finally, the applicant submitted that having regard to the relativity to the previous sentence in other matters, the sentence of two years for the later offences was excessive, particularly bearing in mind that the applicant will be required to serve 70 per cent of it. There was no suggestion here of special circumstances under Section 188 warranting reduction of the 70 per cent to 50 per cent but, in any event, the two years sentence was, in my view, appropriate, notwithstanding the applicant's tender age, in view of the nature of the offences and the gravity of his prior criminal history.

[16]      I would, for these reasons, refuse the application.

1. McPHERSON JA: I agree.

2. THOMAS JA: I agree.

[19] THE CHIEF JUSTICE: The application is refused.