R v J

[1995] QCA 516

IN THE COURT OF APPEAL	[1995] QCA 516
SUPREME COURT OF QUEENSLAND	C.A. No. 348 of 1995
Brisbane
Before	Macrossan C.J. Fitzgerald P. Pincus J.A.
[R. v. J]

T H E Q U E E N

v.

J (Applicant)

MACROSSAN C.J. FITZGERALD P.

PINCUS J.A.

Judgment delivered 21/11/1995

JOINT REASONS FOR JUDGMENT OF MACROSSAN C.J. AND FITZGERALD P., SEPARATE REASONS FOR JUDGMENT OF PINCUS J.A. CONCURRING AS TO THE ORDERS.

Application for leave to appeal against sentence granted.
Appeal allowed in relation to sentence of 4 years’ detention imposed for the first group of
offences identified in the judgment.
In lieu, the applicant is sentenced to three years’ detention for those offences and it is ordered

that the applicant be released from detention after serving 50% of that period.

CATCHWORDS:	CRIMINAL LAW - sentence - substantial criminal history - dependency on drugs - punishment directed towards rehabilitation
Counsel:	H. Jones for the Applicant Mrs L. Clare for the Crown
Solicitors:	Legal Aid Office for the Applicant Queensland Director of Public Prosecution for the Crown
Date(s) of Hearing:	15 November 1995

REASONS FOR JUDGMENT - MACROSSAN C.J. AND FITZGERALD P.

Judgment delivered 21/11/1995

This is an application for leave to appeal against sentences imposed in the District Court at
Brisbane on 18 August 1995.

The applicant is a 16 year old boy born on 12 September 1979. He was 14 when the first 14 offences for which he was sentenced were committed between 17 February 1994 and 23 June 1994, and 15 when the remaining 19 offences were committed between 11 December 1994 and 25 January 1995. Despite his youth, when he committed the first of these offences he already had a substantial criminal history, commencing in 1993. Further, during the period in which he committed the first 14 of the present offences, he was before courts on a number of occasions in relation to other matters, and before the second period in which the remaining 19 offences were committed, he had already spent some time in detention; indeed, he spent most of the period between the two series of offences in detention. Earlier, before any of the present offences were committed, he had been given the benefit of community based orders, including probation and community service orders; all the present offences were committed in breach of earlier probation orders, and many while he was on bail. Finally, in relation to his other offending, he escaped from detention while being held in relation to the present offences. The sentencing judge found that that detention extended from 21 January 1995 to 17 June 1995, when he escaped, and, after his recapture, from 4 July to 26 July 1995; in all, a period of 171 days.

Neither the applicant nor the prosecution considered it necessary to recite the details of the various offences to which the present application relates, which were the subject of three indictments. The applicant cooperated with the police and pleaded guilty at an early stage to all offences. The third indictment was presented ex officio. For the purpose of sentencing, the offences were broken into three groups. The first group consisted of one count of breaking entering and stealing and three of housebreaking, for which the applicant was sentenced to four years’ detention with an order that the period of 171 days pre-sentence custody be time already served under that sentence. The second group consisted of four counts of housebreaking, for which the applicant was placed on probation for three years from his release under the previous sentence, with a number of special requirements, including medical, psychiatric, psychological and drug assessment and treatment. The third group consisted of 1 count of breaking and entering with intent, two of housebreaking, 13 of stealing, two of unlawful use of a motor vehicle, two of attempted stealing, four of unlawful use of a motor vehicle with a circumstance of aggravation, and one of wilful damage; for those offences, the applicant was sentenced to a further 18 months’ detention, concurrent with the period of four years’ detention earlier referred to. Some of the counts of breaking entering and stealing and housebreaking involved wanton acts of vandalism, with foodstuffs such as eggs, cordial, sauce and milk thrown around; on another occasion photocopier toner was strewn over school furnishings, and on a further occasion a knife was plunged through bedding. Overall, the offences in which the applicant was involved caused damage of about $50,000.

The applicant, like so many other young offenders, comes from a home involving alcohol and drug abuse by his father, occasional domestic violence, poor financial management and a marriage breakdown. The applicant also is at least psychologically, if not physically, dependent on illegal drugs and is a heroin user, and, as is again common, stole to obtain money to buy drugs. Not surprisingly, in the circumstances, he associated regularly with other delinquent teenagers.

The sentencing judge made quite extensive comments, and there is no suggestion that he overlooked any material consideration. Nonetheless, counsel for the applicant and for the prosecution agreed that the period of four years’ detention is longer than seems justified by such cases as Hough (C.C.A. No. 199 of 1991, unreported, judgment delivered 8 November 1991); Danastas (C.A. No. 425 of 1994, unreported, judgment delivered 29 November 1994); Richards (C.A. No. 188 of 1995, unreported, judgment delivered 25 August 1995), and the Childrens’ Court decision of MacPherson (unreported, judgment dated 20 July 1995). Further, the omission of an early release order under sub-s. 188(2) of the Juvenile Justice Act 1992 suggests that the applicant’s early guilty pleas and other cooperation might not have been adequately recognised. An early release order would also help to ensure that the applicant is subject to appropriate supervision and control for a substantial period after he is released from detention so that he can be required to confront and overcome his drug dependency: cp. Phillips (C.A. No. 191 of 1993, unreported, judgment delivered 25 October 1993).

Despite his conduct over the last two to three years, the applicant is still young and, while detention is inevitable, in my opinion the Court should proceed on the basis that rehabilitation is a real possibility. His punishment should therefore be directed primarily to that end, and his detention should be no longer than is necessary; such a course best accords with the principles of juvenile justice in s. 4 of the Juvenile Justice Act, especially sub-ss. 4(b)(1) and 4(e). The sentence of four years detention without an order for early releases seems to me likely to hinder, rather than facilitate, the appellant’s rehabilitation, and, in the circumstances, is manifestly excessive.

Accordingly, we would grant the application and allow the appeal in relation to that sentence, which was the only sentence challenged, despite the form of the notice. A sentence of three years’ detention, with an order that the applicant be released from detention after serving 50% of that period should be substituted.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 21/11/1995

I have read the joint reasons for judgment of the President and the Chief Justice and agree with the orders their Honours propose. I also agree with the view expressed in those reasons that rehabilitation of the applicant is a real possibility.

Nevertheless, the applicant’s history is particularly unimpressive and there is some ground for doubt on the question whether he will be inclined to respond favourably to leniency; in the past he has not done so. But I agree that the sentences fixed below should be abbreviated in the way their Honours propose.