R v HBF

[1995] QCA 426

[1995] QCA 426

COURT OF APPEAL

DAVIES JA
MOYNIHAN J
FRYBERG J

CA No 209 of 1995

THE QUEEN

v

HBF  Applicant

BRISBANE

DATE 31/07/95

JUDGMENT

FRYBERG J:  This is an application for leave to appeal against sentence imposed in respect of four counts, one of house breaking, one wilful damage, one of armed robbery in company with personal violence and one of unlawful use of a motor vehicle with a circumstance of aggravation.  The sentences imposed respectively were one year's detention, four months' detention, three years' detention and six months' detention.

The applicant is aged presently only 16 and was aged 15 years and a number of months at the time of the commission of the offences.  The offences all relate to the one series of events which arose out of what has come to be called in the popular press a "home invasion".  The applicant in company with a number of older people, some of them only a few years older than himself, one significantly older, entered the house of a 21 year old woman who resided by herself, at night when she was at home by herself.

They entered by breaking.  They used violence and threats of violence to her, although the applicant was not personally associated with all of what occurred.  One of the persons had a weapon, a rifle, which was loaded and was pointed at the young lady's head.  Property was stolen and damaged while they were there.  They demanded to know where drugs were and there were none in the house.  It is said that the house was, in fact, invaded by mistake, the invaders thinking that somebody else lived there.  On leaving, they stole the young lady's motor car and it was the applicant who drove it away. 

The applicant initially denied any involvement to the police, but later changed his story and admitted the offence.  The sentencing judge regarded the matter as a most serious one.  I completely agree.  This young lady was alone, at night, and the material before the judge suggested that quite unsurprisingly she has suffered some psychological disability as a result of what occurred.

It was not suggested that anything other than detention was appropriate.  A pre-sentence report was obtained in respect of the applicant.  It was carefully prepared and was based on interviews not only with the applicant, but with his mother, and on the documentary material that was available.  The applicant has a most unenviable criminal record.  At the age of 14 he was first convicted of unlawful use of a motor vehicle.  He was admonished and discharged.  A month later he was back in Court on the same charge with the additional charge of wilful damage to property.  He was given supervision for 12 months.  Later that same month he was back in Court on another charge of unlawful use of the motor vehicle and was given six months supervision with a conviction being recorded.

In March of 1994 some seven months later he appeared in the Children's Court.  There was a long list of charges, one of arson, one of attempted arson, three of wilful damage, seven of unlawful use of motor vehicles, three of breaking, entering and stealing and two of stealing.  He was given detention of 12 months for each offence and convictions were recorded on the two most serious offences.

In March of 1995 he again appeared in the District Court in Toowoomba, having apparently been released after six months of service of the detention, and appeared on a charge of wilful damage to property as a result of which 120 hours of community service was ordered.  He was, however, in custody in respect of the offences the subject of the present appeal and that service has not yet commenced.

The report shows nothing in his background which would indicate any mitigating circumstance in respect of the present offences.  He had a normal childhood.  He was a good student who has apparently chosen to fritter away that basis of progress in society.  He was given a chance in October 1993 by a spell with the referral and assessment program at Beenleigh.  His mother's distress at his repeated offending led to her arranging for him to stay with an uncle in north Queensland for a period at the end of that year.  An adolescent resource worker was also deployed to assist him. 

Despite all of that assistance it seems that he has not learned his lesson.  There are no known medical or psychiatric conditions which would have any bearing on his offending behaviour and his mother had no knowledge of any incidents in his life which would have indicated any problem later on.

The reporting officer observed that although he claimed to have been influenced by others he has offended alone on previous occasions so that negative peer group influence is not the sole motivation behind his behaviour.  The present offences were committed while he was, in fact, in the period of release after the 12 months detention, but apparently no steps have been taken in respect of him for that. 

The sentence which was imposed, to my mind, is in line with those which have been imposed on his co-offenders.  There was some discussion of the case of Taylor, the person who had the rifle.  Taylor was sentenced by Judge Wolfe to five years imprisonment.  He was also a young man, though not a child, being 18 years of age when the offence was committed.  He was, however, someone who had very little criminal background, had good prospects of rehabilitation and was described by the judge as someone who had a profound degree of remorse.  The judge ordered that he be eligible for parole after serving a term of 11 months from the time he first went into custody.  That was an appropriate order in the circumstances of that case.

It is not appropriate, in my view, in the present case having regard to the applicant's criminal history.  True, it is, that he pleaded guilty and saved the State the cost of committal and trial by agreeing to procedure by way of an ex officio indictment.  He also thereby relieved witnesses from the need to give evidence against him.  That seems to me to have been taken into account in the head sentence which was imposed.  It is suggested that it indicates remorse, but I see no reason to think that that is so.

There is no suggestion that he cooperated in any way with the police apart from the plea of guilty.  It is correct, in my view, that a child committing an offence will be sentenced to a lesser penalty than an adult in similar circumstances, but it seems to me that that is exactly what has happened in the present case.

In my view nothing has been shown in the argument before us which ought to lead to a conclusion that the sentence appealed from was manifestly excessive.  I would, therefore, refuse the application.

DAVIES JA:  I agree.

MOYNIHAN J:  So do I.

DAVIES JA:  The application is refused.