R v H - [2001] QCA 477

[2001] QCA 477

COURT OF APPEAL

McMURDO P
McPHERSON JA
AMBROSE J

CA No 236 of 2001

THE QUEEN

BRISBANE

..DATE 02/11/2001

JUDGMENT

AMBROSE J: This is an application by a 15 year old girl for leave to appeal against a sentence imposed on 10 August 2001 in the Childrens Court at Mackay. She pleaded guilty to an offence committed when she was 14 years of age, perhaps fourteen and a-half years of age, and that offence was a serious offence, as defined in the Juvenile Justice legislation. The offence was one of robbery in company, which involved a wounding.

She, with a number of young people I assume of approximately her age, on the night in question, that is, about 10 p.m. on 3 November 2000, set upon a man the worse for alcohol who was sleeping on the ground. She stole from him a necklace. She kicked him in the face. One of her companions presumably about her age then threatened him with serious injury should he not give the number of a card which he had on him to enable them to draw money out of his account.

The threat that was made by this man or child called Majid was that, if he did not give the number, he would break his legs and, in fact, he did start to jump on the man's legs until eventually he was given the number, which apparently was the correct number because later $700 was found to have been withdrawn from that man's account.

The applicant was present at that time and was one of the group and it seems that she was at least encouraging, by her presence, this violent activity directed towards this man because she admitted at a later stage that she in fact had unsuccessfully attempted to draw money from that man's account using the card that had been taken from him when he was on the ground, but she had been unsuccessful. However, one or more of her companions did succeed.

The maximum sentence for an adult for an offence of that kind is life imprisonment. Under the relevant Juvenile Justice legislation, in those circumstances the maximum sentence for detention is one of 10 years. The learned sentencing judge took into account in imposing the sentence of two years' detention the very significant criminal history of the child, which was placed before him. Her criminal activities commenced when she was about twelve and a-half years of age in Mackay.

I do not propose to recount all the matters in respect of which she was convicted. It is necessary, however, to look at the attempts that were made from then until the date of the commission of this offence to deal with her in such a way as to facilitate her rehabilitation from street crime.

On 9 September 1998, when she was 12 and a half, she was put on probation for four months. A couple of weeks later in respect of another…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v H

Details

AGLC: R v H [2001] QCA 477
Case: [2001] QCA 477
Decision Date: 02/11/2001

CaseChat Overview and Summary

In the case of R v H, the applicant, a 15-year-old girl, sought leave to appeal against a sentence imposed by the Children's Court at Mackay. The girl had pleaded guilty to a serious offence of robbery in company, which involved wounding, committed when she was 14 years old. The applicant was part of a group that assaulted a man sleeping on the ground, stole a necklace from him, and kicked him in the face. The girl had a significant criminal history, beginning at the age of 12 and a half, with numerous instances of dishonesty, break and enter offences, and assault occasioning bodily harm. Various non-custodial sentences, including probation, good behaviour bonds, and detention orders with immediate release, had proven ineffective in addressing her offending behaviour.

The legal issues before the Court of Appeal were whether the sentence of two years' detention was manifestly excessive and whether the applicant should be granted leave to appeal. The court considered the seriousness of the offence, the applicant's extensive criminal history, and the report from the Department of Families, which highlighted factors contributing to her offending behaviour, such as substance abuse, poor attitude towards law, and association with antisocial peers. The sentencing judge had imposed the two-year detention sentence, taking into account the ineffectiveness of previous non-custodial sentences and the potential benefits of detention in addressing the applicant's substance abuse issues and providing an opportunity for rehabilitation.

The Court of Appeal found that the sentence of two years' detention was not manifestly excessive, given the applicant's criminal history, the seriousness of the offence, and the need to protect the community from her frequent offending. The court was unpersuaded that a shorter detention period would be more appropriate and declined the application for leave to appeal. The judges agreed that the sentence was necessary for the applicant's rehabilitation and to keep her away from the temptation to commit further offences.

The final orders of the Court of Appeal were that the application for leave to appeal against the sentence was refused.

Orders