R v J

[2000] QCA 274

[2000] QCA 274
COURT OF APPEAL

de JERSEY CJ
THOMAS JA
MULLINS J

[R v J]

CA No 109 of 2000

THE QUEEN

v.

J.  Applicant

BRISBANE

..DATE 13/07/2000

JUDGMENT

THE CHIEF JUSTICE:  While aged between 15 and 16 years and over a nine month period in 1999, the applicant committed a number of offences in the city of Ipswich.  They were covered by four indictments.  He pleaded guilty and the learned judge sentenced him to periods of detention which she ordered, save in one instance, be served cumulatively, aggregating to 18 months of which he was to serve 50 per cent.

Significantly, at the time of committing these offences the applicant was on probation.  He had been placed on probation for a period of two years on 20 January in 1999, in other words, shortly before this spate of offences commenced in relation to an offence of robbery with actual violence.  When he committed some of these offences he was also on bail in relation to other charges.

Prior to being sentenced by the learned judge, the applicant had never been in custody before but he had previously developed a not insubstantial criminal history, including convictions for dishonesty and property offences and a robbery with actual violence to which I have referred. 

Prior to being dealt with in respect of these offences and either before or part way through the period covered by these offences, the applicant was, in relation to other offending, given reprimands, bonds, probation and community service.  The learned judge took the view that other sentencing options had not worked and that both deterrence and protection of the community required the approach which she took.  She was, of course, alive to his youth, his pleas of guilty and that he had not previously been detained in custody. 

The first indictment covered four counts of breaking and entering premises and stealing and two of wilful damage to property.  The applicant entered three schools and a bowling club by either smashing or removing louvres from windows.  Inside he stole small amounts of money and damaged property.  On one occasion he stole a laptop computer valued at approximately $3000.

The total value of the property taken and the cost of rectifying damage done to the premises involved in these counts was $6268.  The second indictment covered four counts of breaking and entering premises and stealing and one of entering with intent.  On five occasions, in company with other offenders, the applicant broke into and entered a school building and a mobile dental or Life Education vehicle by either forcing or smashing through doors.

Small amounts of money were taken together with limited amounts of property but there was damage to the buildings and the vehicles which aggregated in terms of rectification to an amount of approximately $1900.  The third indictment charged assault occasioning bodily harm while armed.  The applicant approached the complainant who was walking along a street.  The applicant was armed with a wheel brace.  The complainant tried to escape.  The applicant pursued him, caught him and assaulted him by striking his head legs and back with the wheel brace.

There was some bleeding from the head.  The applicant apparently explained that conduct on the basis that it amounted to retaliation for the complainant's having harassed him on a previous occasion and implicating him in other offences.

The fourth indictment covered one count of breaking and entering premises and stealing and two of unlawful entry of a motor vehicle with intent to commit an indictable offence.  The applicant broke into and entered the administration block of a school by smashing a window and stealing 18 cartons of flavoured milk.

In relation to the other counts, on two occasions he unlawfully entered motor vehicles, once by levering open a quarter-glass window, and stealing property contained within them.  The final indictment charged stealing.  He broke and entered a vehicle by smashing the quarter-glass window and stole a wallet which had been left on the dashboard.  It contained $15.

Particular exception was taken to the sentencing judge's observation in these terms, referring to the applicant and his co-offender:

"The pair of you hit this city like a two man crime wave, breaking into and vandalising schools in the area, leaving children whose classrooms and property had been violated to be traumatised and disadvantaged by the things you have deprived them of."

In fact, the applicant apparently did not enter classrooms as such, but I think that by the by.  The remarks were substantially justified.

Indeed, what followed deserves report here.  Her Honour went on to say:

"I do not think I should need to tell you that the community here is heartily sick of footing the bill for anti-social youths like yourselves who seem to do as they please, disregarding the rights of everyone else."

It is of some significance that her Honour was dealing with this matter in Ipswich and must be taken to have been familiar with local conditions and reasonable local expectations.  In any case, what she said to the applicant amounted to a reprimand.  She was not endeavouring to indicate in a precise way the basis for the sentencing approach she adopted.

The substantial complaint is that the sentence imposed offended the totality principle, that there was no justification for adopting a cumulative approach; that insufficient weight was given to the objective of rehabilitation.  There was complaint to the effect that her Honour allowed insufficiently for the applicant's youth and dysfunctional family background.

Mr Moynihan, who appeared for him, sought an immediate release order.  In the present situation, the applicant has served some three months detention.

I do not accept the criticisms which have been levelled at her Honour's approach.  I do not think that the sentence of 18 months to serve 9, which has been visited upon the applicant, sits in disconformity with the cases to which we have been referred.  Processes of precise comparison of cases rarely prove decisively fruitful in the end.

The cases to which we have been referred give general indications as to the way courts might approach these matters. I do not think that the approach taken here by her Honour sits uncomfortably with such as may reliably be gathered from them.

Her Honour was not obliged, in my view, to give the applicant yet another non-custodial response.  It is highly significant that he offended and substantially, although the value of the property may not have been huge, while on probation and in part while on bail.  This was an appropriate occasion to visit upon the applicant an ordinarily deterrent sentence, notwithstanding his youth.

As to the quantum of the term he is required to serve, it may be that her Honour could have been persuaded to impose a somewhat lesser term but I do not think that we in this Court now would be justified in interfering with the term actually imposed.  I would therefore refuse the application.

THOMAS JA:   I agree that it was appropriate that this applicant be required to serve a period of detention.  In my view an immediate release order, which was sought and which is now again sought, would not meet the seriousness of the offences.  The applicant had been given a series of community-based options previously and he had not taken advantage of these.

The protection of the community was, I think, a valid point in the present matters.  We have been referred to a number of cases involving the sentencing of juveniles.  In particular, mention may be made of Livett, CA 327 of 1998,
4 December 1998; Speechley ex parte Attorney General,
CA 510 of 1994, 21 February 1995; Holley, CA 375 of 1997,
1 December 1997; Hardy, CA 244 of 1994, 23 August 1994; and Doctor, CA 375 of 1998, 13 April 1999.

It is true that in Holley and Hardy sentences of detention of two years resulted, and in Doctor three years resulted.  However, in each of those cases the criminal offences were far more serious and resulted in far more harm to the community than those involved in the present matter.  In the other cases which I have mentioned, considerably more moderate responses resulted from the courts, including this court.  Speechley is merely an example of an adult offender where a sentence of 12 months fully suspended was allowed to stand.  Livett however is fairly comparable with the present matter, and, if anything, more serious.  The Court of Appeal, noting that he had served three months detention by the time of the appeal, made an immediate release order, conditional of course upon his submitting to an appropriate program.

Having looked at the cases, I think that the sentences imposed here were too high for the conduct involved.  Overall there were 16 offences, the most serious of which was breaking, entering and stealing.  Only a total of $8000 was involved in all of the offences.  In placing the present case in the scale of sentencing and endeavouring the maintain consistency, I am of the view that a total effect of sentences should not have been greater than 12 months and that 12 months detention with release after serving 50 per cent is the effective sentence that should have been imposed.

I would accordingly grant leave to appeal, allow the appeal and set aside the sentences, including in particular the recommendation that they be served cumulatively.  In place I would frame sentences which avoid the use of cumulative sentencing and would impose 12 months detention in relation of each of the breaking and entering offences.  Those offences are contained within indictments 62 of 2000, 473 of 1999 and 54 of 2000.

With respect to all of the other offences contained in the five indictments which are in issue, I would reimpose the same sentences as the learned sentencing judge but indicate that all sentences are to be served concurrently.  I would also order release after 50 per cent of the sentences has been served.

MULLINS J:  The offences occurred over a period of nine months.  The offending conduct occurred while the applicant was on probation in relation to an offence of robbery with actual violence.  Some of the offending conduct occurred while the applicant was on bail for some of the subject offences.

Having regard to the applicant's prior criminal history, a detention order without an immediate release order was appropriate.  I agree, however, with the reasons of his Honour Justice Thomas that the total sentence of 18 months is excessive.  I therefore agree with the orders proposed by his Honour Justice Thomas.

THE CHIEF JUSTICE:   The order of the court is grant leave to appeal against sentence, allow the appeal, vary the term of detention imposed below in respect of each of the counts of breaking and entering and stealing to 12 months, delete the requirement that terms be served cumulatively, order that all terms be served concurrently, order that the appellant be released from detention after serving 50 per

cent of the sentence, convictions to be recorded as ordered below.

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