R v Duggan & Freebody

[1992] QCA 319

COURT OF APPEAL [1992] QCA 319

PINCUS JA
McPHERSON JA
THOMAS J

CA No 208 of 1992 CA No 209 of 1992

THE QUEEN

v.

DANNY TROY DUGGAN	First Applicant
and
BRIAN DAVID FREEBODY	Second Applicant
BRISBANE ..DATE 14/08/92
JUDGMENT

140892 four months, two young men who had no previous convictions who had unlawfully used a motor vehicle.

The circumstances were these. One applicant is 19 years old and the other 21. Both have a good work history. They live in Canberra. They had been to the North Coast for about three weeks and had been employed during that period. They were intending to go home to Canberra. Before doing so, they went drinking at a restaurant in Caloundra. They then left to return to Canberra, having already obtained their bus tickets. As they were going to the bus depot they noticed an unlocked vehicle with the ignition in the on position. They started the vehicle and drove to the bus terminal. They cancelled their tickets, retrieved their luggage and started to drive south. They were intercepted on the Bruce Highway on the way to Brisbane after the complainant noticed that his vehicle had been taken. Some damage was done to the glove box, radio and windscreen totalling in all $219.

What the applicants did was reprehensible. There were however adequate sentencing options short of imprisonment for these first offenders. For as long as I have been associated with the law, this Court and its predecessor has emphasised the undesirability of sending young offenders without previous convictions to prison. (R v. Casey and Smythe, 1977 Qd.R. 132; R v. Price, 1978 Qd.R. 68) Strenuous efforts are made by nearly all Courts to avoid sending young first offenders to gaol. Of course, there are exceptions, such as when a long series of offences is committed, or where professional criminal activity is shown or where a particularly serious offence is involved. The circumstances in the present matter plainly fit the mould of cases where a non-custodial sentence could and should have been imposed. Mr Wright, on behalf of the Crown, who said all that could be said in relation to the aggravating circumstances concerning the offence, candidly acknowledged that this case can be seen to fall into the non-custodial category.

I am troubled by the regularity with which appeals come to this Court from this particular Magistrate, where this elementary principle has been overlooked, or perhaps deliberately disregarded. Time and time again, public money and resources are wasted while appeal records are produced, bail obtained, counsel briefed and the Court’s time taken up; or worse still when young people who should not have been sent to gaol serve time before the appeals are heard. This appears to be the situation in the present matter.

Our legal system rests on the hierarchy of Courts. Its consistency depends on the following of the principles and guidelines that are laid down by the higher Courts. There is ample room within the system for difference of opinion and exercise of discretion and in a complex system such as ours errors are understandable. But the system cannot work if individuals place themselves above it and refuse to follow the principles and guidelines laid down by the higher Courts. I have on many previous occasions simply allowed appeals with appropriate directions on the law in the expectation that this Court’s views would be noted and followed by this Magistrate. In this instance, it is time to send a stronger message.

In the matter which is before us, plainly the sentencing discretion has miscarried and I would allow the application. It is noted that the applicants have already been in prison for some time. In the circumstances the restitution order whereunder each applicant was ordered to pay $109.50 should stand but the sentence of imprisonment should be set aside.

McPHERSON JA: I agree with the remarks of my brother and with the order that he has proposed. It may or may not be necessary to add that the order will not affect the additional order for disqualification from holding or obtaining a driver’s licence for 12 months that was also imposed in the Court below.

PINCUS JA: It is a commonly held view that it can be damaging to the character of the young offender to send him to gaol. That is, in an effort to protect the community, the Court may in truth harm it by turning a young person towards crime. It appears to me to be important that the community’s indignation at the prevalence of offences by young people not lead to the result that they are too readily imprisoned.

The circumstances of the present case are such, in my view, that it was reasonably plain that the applicants, neither of whom had any previous convictions, should have had imposed on them a non-custodial sentence. I agree with the orders proposed.

McPHERSON JA: The order will be that the applications for leave to appeal are granted. The appeals are allowed to the extent that in the case of each applicant the sentence of imprisonment is set aside. The orders do not affect the other orders made. That is to say the orders with respect to restitution and disqualification from holding or obtaining a driver’s licence.

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