R v Henningsen

[1996] QCA 268

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	C.A. No. 176 of 1996
[R. v. Henningsen]

THE QUEEN

v.

JASON PAUL HENNINGSEN

(Applicant)

___________________________________________________________________________

Derrington J. Mackenzie J.

White J.

___________________________________________________________________________

Judgment delivered 16 August 1996

Judgment of the Court
___________________________________________________________________________

Subject to the applicant formally indicating to the registrar his willingness to comply with the terms and conditions of these orders, the orders of the Court are:-

1.          That leave to appeal be granted and the appeal allowed;

2.          That the order that in each matter the child be detained for a period of 18 months plus the period of 84 days already served be set aside;

3. That pursuant to s.123 of the Juvenile Justice Act, the applicant be placed on probation for 2 years on counts 1, 2 and 4 (attempted housebreaking, housebreaking and housebreaking respectively) subject to the conditions in s.132 of the Act and to a condition that the applicant reside at the Piabun Aboriginal Corporation's residential programme near Kenilworth unless permission is given in writing by the appropriate officer of the Department of Families Youth and Community Care to do otherwise;

4. That pursuant to s.123 of the Juvenile Justice Act, the applicant perform 60 hours community service on counts 3 and 5 (stealing), on the conditions in s.147 of the Act;

5.          Convictions are not recorded;

6.          Liberty to apply.

___________________________________________________________________________

CATCHWORDS:	CRIMINAL LAW - housebreaking and stealing - 14 year old offender with substantial criminal history - previous non-custodial orders ineffective - whether 15 months effective detention is excessive - whether an appropriate sentencing option providing real prospects for rehabilitation is available.
Juvenile Justice Act 1992 ss123, 133, 146, 147, 188 R. v. Carmichael CA No. 160 of 1996 considered.
Counsel:	Ms D.J. Richards for the applicant. Mr P. Rutledge for the respondent
Solicitors:	Legal Aid Office for the applicant. Queensland Director of Public Prosecutions for the respondent.
Hearing date:	31 July 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	C.A. No. 176 of 1996
Before Derrington J.

Mackenzie J.

White J.

[R. v. Henningsen]

THE QUEEN

v.

JASON PAUL HENNINGSEN

(Applicant)

REASONS FOR JUDGMENT - THE COURT

Judgment Delivered 16 August, 1996

The applicant pleaded guilty to 2 housebreakings, one attempted housebreaking, and 2

offences of stealing money from houses. The offences occurred on 3 days within a 10 day

period. Over $1,000 was stolen in total. He has sought leave to appeal against an order that he

be detained for a period of 18 months, plus the period of 84 days already served at the time of

sentencing. The applicant was 14 years of age. At the time of sentence he had been before the

Children's Court on several separate occasions from November 1994 onwards for a variety of

offences including 8 offences of similar kinds to those with which he was charged on this

occasion. He had served periods of detention and had had non-custodial orders including

probation. He was on probation at the time of the present offences. He has accumulated a very

bad record in a short time.

The pre-sentence report provided to the sentencing judge stated that the applicant lacked

support and discipline at home and was immature, illiterate and inarticulate. His performance

on probation was inadequate. He showed no remorse for the offences and continued to associate with "other offenders and an offending lifestyle". In discussing the sentencing options

the Family Services officer observed that the applicant had offered no reason to believe that he

would comply with another probation order or accept guidance and direction under it. He said

that the accused's background and attitudes may indicate the appropriateness of a detention

order. He did however say that the applicant's attitude towards his offending had been tempered

by the time he had spent in custody and that he was now more likely than at any previous time

to respond to non-custodial orders, particularly an immediate release order. Conditions of an

immediate release order, if that had been imposed, were set out in the report. Because of the

short duration of such an order, there were good reasons for not choosing that option.

The sentencing judge took the view that protection of the community had become a very

important consideration having regard to the record of the applicant and the fact that he had not

responded to non-custodial orders. At the time of hearing the appeal the applicant had been in

detention for 180 days. It was submitted that because of s.188 of the Juvenile Justice Act 1992

the effect of the sentence would be that the applicant would spend about 15 months in strict

custody for the offences and that such a period would be counter-productive to his

rehabilitation. While the factors in favour of the applicant in the recent decision of the Court of

Appeal in R. v. Carmichael (CA No. 160 of 1996) are not to be found in the present case, the

Court there referred to the strong preference for reintegration into the community over detention

in the Juvenile Justice Act.

At the conclusion of submissions, the Court was concerned that the detention order

made under which the child has spent over 180 days in custody, with the prospect of another 9

months in detention before he is eligible for release was manifestly excessive, but was also

concerned, as was the learned sentencing judge, that the applicant's response to non-custodial

orders had been such that, if simply released into his previous environment, the chance of his reoffending was high. With these factors in mind, the Court sought further information as to

whether there was any program, especially within the Aboriginal community, into which the

applicant might be released but receive direct supervision.

The presentence report provided to the sentencing judge had expressed some hope that

the period spent in custody made the applicant more amenable to a non-custodial order than

previously. Further inquiries made as a result of this Court's request have established that the

applicant would be accepted into the Piabun Aboriginal Corporation's residential programme

near Kenilworth if released from detention. Piabun is also a registered community service

agency. On a previous occasion, a probation order had included a special condition that he

reside at Piabun or such other place as directed but he was unable to be placed at Piabun for

good administrative reasons.

Notwithstanding the applicant's bad history of non-compliance with non-custodial

orders, the period of detention imposed upon him was manifestly excessive. Now that a place is

available for him at Piabun, and having regard to the period of almost 6½ months already spent

in detention, he can be appropriately dealt with by imposing periods of probation and

community service, with a special condition that he reside at Piabun unless otherwise permitted.

That condition is necessary to prevent repetition by the child of the kind of offences for which

the probation order is made and to facilitate the process of rehabilitation. If he were simply to

be released into his former environment, all indications are that there would be a substantial risk

of similar offences occurring.

As community service is available at Piabun, according to the departmental report, and

there is no reason advanced that the applicant is or will be unsuitable to perform it, the Court is

satisfied that a period of a total of 60 hours community service should also be ordered.

These orders can only be made if the child is willing to comply with their requirements.
(s.133, s.146 Juvenile Justice Act 1992). The Court was told that entry to the Piabun scheme

was on the basis of mutual acceptance by the proposed participant and those who run the

project. While the applicant's acceptance for the scheme implies that he is prepared to go there,

there is no formal communication on the record of willingness to comply with the terms and

conditions of the orders. Such formal indication must be given before the orders can come into

operation. Subject to such willingness being communicated to the Registrar, the formal orders

are the following:-

1.          That leave to appeal be granted and the appeal allowed;

2.          That the order that in each matter the child be detained for a period of 18 months

plus the period of 84 days already served be set aside;

3. That pursuant to s.123 of the Juvenile Justice Act, the applicant be placed on

probation for 2 years on counts 1, 2 and 4 (attempted housebreaking,

housebreaking and housebreaking respectively) subject to the conditions in s.132

of the Act and to a condition that the applicant reside at the Piabun Aboriginal

Corporation's residential programme near Kenilworth unless permission is given

in writing by the appropriate officer of the Department of Families Youth and

Community Care to do otherwise;

4. That pursuant to s.123 of the Juvenile Justice Act, the applicant perform 60

hours community service on counts 3 and 5 (stealing), on the conditions in s.147

of the Act;

5.          Convictions are not recorded;

6.          Liberty to apply.