R v Jang; ex parte

[2000] QCA 103

[JANG & Anor v ATTORNEY-GENERAL OF QUEENSLAND]
  [2000] QCA 103

COURT OF APPEAL

McMURDO P
THOMAS JA
ATKINSON J

CA No 375 of 1999
CA No 376 of 1999

THE QUEEN

v.

WHAYNE PHILLIP JANG and
NICHOLAS RONALD BOWER  (Respondents)

and

ATTORNEY-GENERAL OF QUEENSLAND             (Appellant)

and

CA No 383 of 1999

THE QUEEN

v.

NICHOLAS RONALD BOWER  Applicant

BRISBANE

..DATE 30/03/2000

JUDGMENT

THE PRESIDENT:  Justice Thomas will deliver his reasons first.

THOMAS JA:  These appeals centre around an incident in which Jang, Bower and another youth deposited two soda bombs near an external door of the Queensland Aids Council in Shaw's Arcade in Townsville.  The first duly exploded with a loud bang and a flash of light, attracting the attention of the regional co-ordinator.  He saw smoke and, while standing in the doorway, heard a second explosion which resulted in his being struck in the shoulder by something that felt like a fast moving squash ball.  The residual fire or embers were extinguished with a fire extinguisher.  Slight damage was done to the carpet. 

Jang and Bower were each sentenced to nine months' imprisonment for their part in the offence, which was described as unlawfully depositing an explosive substance
under such circumstances that it might cause injury to another person or damage property.  It was laid under section 470A of the Code.  Jang was also sentenced to three months' cumulative imprisonment in respect of a burglary count and, upon resentencing, for certain offences with respect to which he had formerly been granted probation. 

In respect of both Jang and Bower, the Attorney-General has appealed against the sentences imposed, contending that they ought to be increased.  In addition, Bower has applied for leave to appeal on the ground that his sentence was manifestly excessive. 

Both Jang and Bower are young persons, each being 18 years old when the offence occurred on 10 June 1999.  Bower had turned 18 only a few days previously.  Each had a criminal history, Jang's more serious than that of Bower.  Jang's criminal history, however, commenced only four months before the incident in question with a number of breaches of bail undertakings.  These were followed by an order by District Court Judge Forno on 10 May 1999 of probation for three years with imprisonment for 40 days, which was the time that he had served prior to that sentence.  Those orders were made in respect of nine principal matters, the most serious of which was going armed so as to cause fear, while other offences include entering premises and unlawful use of a motor vehicle.  Only a few weeks later, he committed the present burglary and a few weeks after that, the present deposit of explosives.  He and Bower were arrested six weeks later.  Jang was then brought before a Magistrate for breach of the earlier community service order in respect of bail matters and was resentenced to two and a half months' imprisonment on those matters.  This kept him in custody until the time of the present sentences.

Bower was also in custody when sentenced for the present matters.  He had been ordered to serve two years' probation on 30 June 1998 for three offences, including entering premises and committing an indictable offence.  On 28 May 1999 he had been sentenced to six months' imprisonment, fully suspended for two years, for entering a dwelling with intent and for possession of dangerous drugs.  Within a few weeks of his arrest on the present matters, he was dealt with in the Magistrates Court for breach of the earlier probation order and resentenced to six months' imprisonment in respect of the earlier offences of entering premises, along with concurrent imprisonment on further charges relating to possession of drugs.  The nine month sentenced imposed on the present matter was made cumulative upon the six months imposed on 17 August 1999.  That is to say, he was given, in effect, consecutive terms of imprisonment totalling 15 months for the earlier offences and the present offence.  It is also worthy of note that Jang was given the equivalent of three consecutive terms of two and a half months, nine months and three months, totalling in all 14 and a half months.

The soda bombs consisted of a sparkler, some aluminium foil and a small carbon dioxide soda bulb.  The soda bulb and sparkler are apparently placed together and alfoil wrapped around them.  The sparkler is lit and in due course its heat is transmitted to the soda bulb until it explodes.  On the morning in question, Jang, Bower and another youth purchased the ingredients.  They initially intended to blow up some letter boxes but later decided to let them off in town.  Someone, no one nominated which one, suggested that they be let off at the Aids Council.  This led to their being lit and placed in the position earlier mentioned. 

A woman who worked in an adjoining office saw some young men doing something and then disappear.  She heard a sound like air or water rushing, presumably the noise of the sparklers, and saw what looked like a fire.  She saw two objects on the carpet and was going to pick one up when her superior warned her not to do so.  They considered getting a fire extinguisher and the explosions occurred.  The offenders had gone to a point in Hale Street and observed the commotion that ensued.

Six weeks elapsed before the police located Jang and Bower.  The third member, Gately, has not been yet located.  They spoke initially to Jang, who implicated himself and the other two.  When police asked him why, he said:

"Just because they're faggots."

He said he had a gripe against them but did not go into detail.  He said he had not intended to hurt anyone but to scare them and that he realised that the resulting fire may have damaged property. 

Bower was located later the same day.  He told police that he had a gripe against a gay person and that he had been kicked out of a share house some time before so that a gay man could move in.  He said they did not prepare the bomb with intent to hurt anyone.  He had no idea what a soda bomb would do when it was set off.  It was just a prank, it was not meant to hurt anyone. 

The victim impact statements were given by the adjacent office worker and by the regional co-ordinator of the Council.  The former said that the event caused her to shake and feel scared and shocked.  She became cautious of strangers and suspicious of unusual noises at work.  She decided not to re-apply for her job because of the offence.  The co-ordinator said that he had short term bruising.  He was upset, angry and shocked and had become somewhat wary.  He had two counselling sessions.

The Crown Prosecutor accepted that the devices were placed with no intent to harm anyone.  Indeed, had such intent been alleged, a far more serious charge would need to have been laid which carried a maximum penalty of 14 years' imprisonment.  The maximum penalty for the offence with which Bower and Jang were charged was two years. 

In the proceedings below, the learned Crown Prosecutor submitted that the offence called for a period of imprisonment but did not indicate any particular period that was suggested as appropriate.  It would have been difficult to do so as there do not appear to be any precedents which provide any guide to the range of appropriate sentence.

Both offenders are young and they pleaded guilty upon an
ex officio indictment.  The learned sentencing Judge rightly noted that these matters required some measure of leniency.  He noted that the devices were small and of a fairly primitive nature.  Nevertheless, there was a potential for harm.  The learned sentencing Judge further considered that there was no reason for distinguishing between the two offenders.  It was a joint exercise and each participated to the same extent.  Both were on probation at the time of the offence.

Mr Bullock, on behalf of the Attorney-General, submitted that Jang's criminal history, in particular, shows a continuing contempt for authority.  There is some force in this submission although, as Mr Devereaux for Jang points out, his first entry is dated less than four months before the commission of the relevant offence which was committed during a period when he was living in a shelter for homeless youth.  It would seem that Jang has and always has had a supportive family.  He chose to get into bad company and to stay with it.  He started to offend by early 1999 and his criminal history occupies quite a short period.  Even so, he has an unsatisfactory community performance and is considered not suitable for further community-based orders.

Mr Bullock also submitted that Bower's criminal history reveals a contempt for the law.  His history is, of course, less serious than that of Jang.  Although both criminal histories are worrying, they are not of such depth or duration as to destroy hopes for rehabilitation in due course.  The imposition of unduly long custodial sentences at this point in their lives is not the best recipe for such an outcome.
By the same token, the offence was serious and the aspect of general deterrence against such conduct is very important.  This is particularly so when the misconduct is the product of prejudice and is directed against a particular symbol such as the AIDS Council office.  This was not an attack designed to cause harm to any person but it was a show of prejudice against a particular segment of society.  That is an aggravating feature which makes the excuse of only a prank inappropriate.

Mr Devereaux submitted that the sentence of nine months' imprisonment suggests that the learned sentencing Judge must have started with a sentence in mind in the range of 12 to 15 months and then reduced it to take account of the respondents' youth and early pleas of guilty.  Having regard to all relevant factors in this case, that seems to be an accurate submission.  It illustrates, in my view, an acceptable response on the part of the learned sentencing Judge, having regard to the fact that the maximum penalty available was two years.  As mentioned earlier, the position of both Jang and Bower was complicated by the imposition of sentences for other matters both before and subsequent to the sentences that have been principally argued respecting the explosives charge.  Whilst each of these additional sentences was in itself perfectly appropriate and whilst the combined sentences are also appropriate having regard to the totality principle, the total effect of continuous service of imprisonment on such young offenders has to be kept in mind.  A longer overall term would not, in my view, have been sensible or appropriate.

In my view, the sentences imposed on Jang and Bower could not be described as manifestly inadequate.  In turn, the sentences imposed on Bower could not be described as manifestly excessive.  Indeed, in my view, the response of the learned trial Judge was perfectly appropriate.

It follows that the appeals of the Attorney-General should be dismissed and that the application of Bower should be refused.

THE PRESIDENT:  I agree with the orders proposed by Justice Thomas and with his reasons.  The serious aspect of this offence is that it was an unprovoked attack on a community organisation working for the public good.

It is an aggravating factor that the offenders saw their attack as one against homosexuals, a minority group vulnerable to the effects of acts of prejudice like this.

Of course, the AIDS Council does not solely assist the homosexual community but assists all who are affected, directly or indirectly, by the insidious AIDS virus and play their wide educative role in the general community.  It is appalling that such a worthwhile community group should be subjected to an attack such as this.

On the other hand, the offenders were youthful and pleaded
guilty.  Their offence demonstrates their immaturity and lack of insight.

For the reasons given by Justice Thomas, the sentences imposed in each case were within proper range.

ATKINSON J:  I agree with the reasons of the President and Justice Thomas and with the orders proposed by Justice Thomas.

THE PRESIDENT:  The orders are that the appeals are dismissed and the application refused.

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