R v J

[1995] QCA 249

[1995] QCA 249

COURT OF APPEAL

DAVIES JA
MOYNIHAN J
AMBROSE J

CA No 55 of 1995

THE QUEEN

v

J  Applicant

BRISBANE

DATE 27/04/95

JUDGMENT

DAVIES JA:  The applicant before this Court committed an offence on 24 May 1993.  That offence was one of stealing with actual violence whilst pretending to be armed with a dangerous weapon and using personal violence in company.

The offence was committed in company with the applicant's cousin.  The applicant is a young man of 17 having been born on 9 May 1977.  His cousin was older.  The applicant was then aged only 16, having just turned 16.  The cousin was the main offender in the commission of this offence which involved stealing a pizza and a small amount of money from a delivery driver.  The offence was at the bottom end of the scale of offences of this kind as was recognised by the sentence which was imposed on him which was an order for performance of 120 hours of community service.

The applicant commenced in a fashion to perform community service in accordance with that order but it is fair to say that his performance of it was appalling.  He failed to turn up on many occasions when he had promised to do so.  He rarely completed a full day's work notwithstanding a number of concessions which were made to him allocating him to perform lighter duties, a worker assigned to him to transport him to and support him at his work.  He gave a number of contradictory excuses for his failure to attend and his absences on many occasions were unexplained.  After a number of warnings he eventually came back to the Court for re-sentence for the offence for which he had been ordered to perform the community service.

By that time he had however performed 75 of the 120 hours of community service, a matter which is of some relevance in deciding what was the appropriate sentence to be imposed on this occasion.  The learned sentencing Judge imposed a sentence on the applicant that he be detained for a period of 12 months with a recommendation that he be released after serving two-thirds of that sentence.  The provisions of the Juvenile Justice Act provide in effect that the applicant may be released at 70 per cent of the term imposed or as low as 50 per cent but no lower than that.  The effect of the learned sentencing Judge's recommendation therefore was only slightly to reduce the date upon which, had there been no recommendation, the applicant would have been eligible for release on parole in any event.

The applicant was an extremely young man, 16 at the date of the offence.  The breach of his community-based order was not by the commission of another offence.  In fact, he has gone some two years without having committed another offence, a matter which is also relevant in determining, in my view, what the appropriate sentence and appropriate sentencing range is.

Having regard to the extreme youth of the applicant, the very minor previous criminal history, it being only for an offence of obscene language, the good record so far as failing to commit any other offences since the commission of the offence to which I have referred and the fact that the applicant has already completed 75 out of 120 hours community service, in my view the sentence which was imposed was manifestly excessive.

I would therefore allow the application and the appeal, set aside the sentence which was imposed below, and substitute in lieu a sentence of six months detention.

DAVIES JA:  Is the applicant in gaol or is he on bail?

MR ALCORN:  He's in gaol, Your Honour.  He's in custody.

DAVIES JA:  He's in gaol.

MR ALCORN:  Yes.

DAVIES JA:  And he would have served then already how much of that term?

MR ALCORN:  He's been in the youth centre since that sentence was imposed.

DAVIES JA:  Which is?

AMBROSE J:  16 January.

DAVIES JA:  That will not upset things.

DAVIES JA:  Those are the orders which I would make.

MOYNIHAN J:  I agree with the orders and the reasons given by the presiding Judge.

AMBROSE J:  I agree also and simply add that the co-offender that was sentenced back in 1993 spent six months in custody and was then released on probation and in my view that is also a relevant factor to keep in mind when considering the application.  I agree otherwise with what has been said.

DAVIES JA:  The orders are as I have indicated.