R v F

[1997] QCA 147

[1997] QCA 147

COURT OF APPEAL

DAVIES JA
McPHERSON JA
WHITE J

CA No 114 of 1997

THE QUEEN

v

F  Applicant

BRISBANE

DATE 09/05/97

JUDGMENT

RESTRICTED ACCESS TRANSCRIPT

McPHERSON JA:  In this matter I have the misfortune to differ from my colleagues, as I believe will appear.

The Departmental document headed "Immediate Release Order", now exhibit 2 before the Court, seems to me to fall well short of providing a "structured program with strict conditions" satisfying the requirements of section 175.

Furthermore, it does not specify the duration of any of the activities in which the applicant will, it seems, or may be, required to participate, but appears to leave everything to the discretion of Departmental officers.

This, to my mind, means that it continues to be open to the fundamental objection referred to in the reasons that have already been delivered on my behalf that it is not this Court, but the Department, that will set the sentence which the applicant is bound to undergo.

However, as I said, my view is a minority view, and the order that is proposed by my colleagues is to be as follows:

The application for leave to appeal against sentence is granted and the appeal is allowed.

The sentence imposed below will be varied to the extent that it be suspended and that the applicant be immediately released from detention on condition that the applicant participate as directed in accordance with the program contained in the pre-sentence report, now exhibit 2 before the Court, for a period of three months.  During this period, the applicant is to abstain from any violations of the law.

Now, before that becomes the order of the Court, we must be satisfied that the child is willing to comply with the terms of that order or with its conditions.

MR SHANAHAN:  Your Honour, I have spoken to the Family Services officer.  She has informed me that the child has been taken through all the terms and conditions of the order.  They have been explained fully to her and she is prepared to abide by them and agree to the order.

McPHERSON JA:  Very well.  That will be the order of the Court.