R v H

[1995] QCA 130

[1995] QCA 130

COURT OF APPEAL

PINCUS JA
THOMAS J
WHITE J

CA No 475 of 1994

THE QUEEN

v

HApplicant

BRISBANE

DATE 24/02/95

JUDGMENT

WHITE J:  The applicant seeks leave to appeal against sentence.  He is a 16-year-old youth who was 15 years at the time that the offences were carried out.  He was convicted on his own plea on 2 September 1994 of an attempted robbery and unlawful use of a motor vehicle, dangerous driving and wilful damage to property.

Since he was a juvenile, his Honour, the learned sentencing Judge ordered a report pursuant to the provisions of the Juvenile Justice Act and his Honour, on receipt of that report, then sentenced the applicant on 20 October 1994.

For the attempted robbery, which took place on 12 February 1994, he sentenced him to 14 months detention and with respect to the dangerous driving, which took place on 10 April 1994, he also sentenced him to a period of detention of 14 months.

With respect to the unlawful use of a motor vehicle and wilful damage to property, both of which arose out of the same events on 10 April, he sentenced him to periods of detention in each case of 8 months.

The effect of the Juvenile Justice Act which provides that 70 per cent of the period ordered for detention must be served is that the applicant will be detained effectively for 9.8 months.

The circumstances which gave rise to these charges were as follows:

At the Southbank Parklands at about 10.30 pm on the evening of 12 February 1994, there was a confrontation between the applicant and the group of young people with whom he was associated and the complainant and his group.  The applicant asked for some money and the complainant said that he did not have any and there was some pushing and punching that occurred and the complainant was struck twice by punches done by the applicant.  One connected with his left ear and one to the left jaw.  In due course, he was located by the police and charged with that offence.  That is, the attempted robbery.

With respect to the second group of offences which took place on 10 April, the vehicle, the subject of the charges, was left by the complainant at his residence at Herston at about quarter to midnight on 9 April and he discovered it to be missing.

At about 5.00 am the next morning, police performing patrol duty located the missing vehicle in George Street in the city.  As they approached it, it sped off along George Street, into Roma Street and thence into Milton Road reaching speeds of up to 140 kilometres per hour.  Along Milton Road, it was noticed that the vehicle had its tail-lights switched on and off intermittently, presumably in an effort to put off the chase.  It was still dark and on direction, the police abandoned their pursuit.  About 10 minutes later, the vehicle was located by different police officers at Taringa.  A further pursuit ensued during which the vehicle was clocked at speeds of up to 140 kilometres per hour.  During that chase, it was frequently driven on the wrong side of the road, disobeyed a stop sign and some red lights.

At one stage, it was driven into the entrance of the carpark of the Toowong Village Shopping Centre but had to stop as the carpark was closed.  The police parked their vehicle behind that vehicle so as to stop it coming out but the subject vehicle reversed suddenly, slamming into the police vehicle, pushing it about two metres sideways and then it continued reversing up Sherwood Road, missing a tow-truck by evasive action, which was travelling down Sherwood Road.  The vehicle then hit a light pole and was driven off.  The police continued the pursuit and at Swann Road in Taringa, the police vehicle pulled up on the left-hand side of the vehicle.  The officers then noted that the vehicle contained two occupants and that the applicant was the driver.

The applicant twice swerved the subject vehicle into the police car causing both cars to climb an embankment and the subject vehicle rolled on its side.  The applicant was then removed from the vehicle and arrested and it seems that one of the policemen suffered some bruising as a result of the collision, although that is not the subject of any charge.

The learned sentencing Judge was told that the vehicle, which was the subject of the unlawful use was written off being valued at approximately $14,000 and there was other damage to the other motor vehicles.

The applicant has some previous criminal history and at the time when the offences were committed, he was under a Care and Control Order and at the time of the motor vehicle associated offences, he was on Supreme Court bail with respect to the attempted robbery.

The learned sentencing Judge had the benefit of a most careful report prepared by an officer of the Department of Family Services and Aboriginal and Islander Affairs in which the background of the applicant is set out in considerable detail together with a careful analysis, if I might say so, of the various options which were available to the Court and what the writer of the report thought would be the outcome of taking up any of those particular options.

There can be no doubt on any view of the facts presented in the report that this child has had a most tragic early life.  He has been the victim of considerable physical abuse within the domestic environment and, indeed, he is part of a whole cycle of domestic violence within that family.  Equally he appears to be a young man who has felt rejected by both his mother and his father; he has been subjected to many moves in the course of his education.  The report mentions up to 10 schools until he went to live with his father.

He is obviously a strong character and was described by former teachers as often taking the lead in conduct even if that conduct was of a recalcitrant and undisciplined kind.  The officer notes that the applicant's offending history was a relatively short one beginning in late 1992.  He does note, however, that within the family group, offending criminal conduct is not unusual.  He notes that the applicant tries to avoid responsibility for his actions and shows little remorse for the victims of his offending.  It would appear from what is said within the report that much of his conduct, particularly violent conduct is reflected in his anger at his life and particularly his perception of his rejection by his family.

At pages xv, xvi and xvii of the report, the officer sets out the applicant's attitude to community-based orders and an analysis of what is available.  I will deal with those briefly.

He says that although the applicant has elected for community-based orders, in the officer's opinion, it was a decision that seemed to be based on ambivalence.  He was not seen to consider either community service, probation or detention orders as options appropriate for his, that is, the applicant's, offending behaviour.

The officer goes on to comment that there is some evidence, and that would be apparent, to suggest that the applicant's ability to comply with community-based orders would be questionable.  He has not complied with previous requests by departmental officers to attend interviews in relation to the six months' supervision order that was made on 18 November 1992 and a four month order on 13 January 1993 and had reported infrequently with respect to his bail.

When dealing with the option of a probation order, the officer said, "Taking the most optimistic view, D," that is, the applicant, "has agreed to conform to a probation order.  This attitude will be assisted by the added incentive of a pilot probation programme being run in conjunction with the Aboriginal and Islander child care agency at South Brisbane.  As part of this programme, the Woolloongabba office has arranged for an Aboriginal worker to meet with Aboriginal and Islander youth for probation sessions every Tuesday.  This programme has been successful in terms of creating a relaxed and cultural appropriate environment for young people."

The officer goes on to comment that the applicant had begun reporting to the officer co-ordinating this programme and appeared to show some motivation to continue reporting should he be given a probation order.

With respect to the option of a community service order, the officer commented that although the applicant agreed to such an order, he was far from convincing as to his commitment to undertake the order successfully, given the opportunity, although there were a number of culturally appropriate agencies prepared to accept indigenous youth on to community service programmes.

The officer thought that there might be some benefit in an order of that kind since the people of his own community would be able to give him strong messages about its unfavourable view of its youth offending.

The officer also concluded that a detention order was an appropriate response to the applicant's offending behaviour and his ambivalence to community-based orders and he concluded that whilst community-based orders were appropriate sentencing options, that in the officer's opinion, the young person would test the system to its limits before successfully completing such an order and that it was a real likelihood that he would be the subject of possible breaches for non-compliance.

In effect, one can deduce from that report that the officer had little confidence that either a probation or a community-based order would, in fact, be carried to a successful conclusion.

The learned sentencing Judge had that report before him and, it seems, took all of the appropriate things into account, particularly the fact that this is a very young offender and the principles which are enshrined in the Juvenile Justice Act that imprisonment should be an absolutely last resort for such a young person.

Mrs McGinness, who appears on behalf of the applicant has not suggested that the sentence imposed by his Honour of 14 months' detention for the attempted armed robbery and dangerous driving were manifestly excessive if that  were the option which the learned sentencing Judge chose to take up.

It seems to me, bearing in mind the material which was in the presentence report, together with the facts and circumstances of the offences, that his Honour did not err in taking up the option of detention in this case, unfortunate though it may be that such a young person should serve a term of imprisonment.

It is also noted that he has spent some 82 days in presentence custody prior to obtaining Supreme Court bail and that was taken into account by his Honour when he gave the sentence that he did.

For those reasons, I am of the view that the application should be dismissed.

PINCUS JA:  I agree.

THOMAS J:  I agree.  This applicant has been getting more and more out of control despite community-based orders and supervision.  The time was reached when the Courts had to call a halt to his activity.  Detention was, in my view, the best sentencing option.  The term was not excessive.

PINCUS JA:  The order of the Court is application refused.