R v K - [2001] QCA 551

[2001] QCA 551

COURT OF APPEAL

McPHERSON JA
DAVIES JA
THOMAS JA

CA No 237 of 2001

THE QUEEN

K (Applicant)

BRISBANE

..DATE 29/11/2001

JUDGMENT

McPHERSON JA: On 23 May 2001 and 13 August 2001 the applicant, who was born on 21 July 1984 and so was 17 years of age at sentencing, pleaded guilty in the Childrens Court to a total, according to my calculations, of some 16 counts of offences spread across two indictments.

On 24 August 2001, he was sentenced to probation for two years on count 5 on one of the indictments, which seems to have been selected for that purpose more or less at random. With respect to the other offences, he was sentenced to 12 months' detention, to be released after serving 50 per cent of that detention period. Convictions were recorded and 22 days pre-sentence custody were taken into account.

Of the 16 offences, there was a total of 10 counts of wilful damage by graffiti, which is an offence that can now, with circumstances of aggravation, carry a maximum penalty of five years, or in some circumstances, as much as seven years. There were also two counts of break, enter and steal or of burglary, and three counts of unauthorised use of a motor vehicle. The total loss sustained by the various property owners affected is estimated at more than $29,000.
Of these, the most serious were counts 18 and 19, which involved breaking into a house and stealing some $3,670 worth of property, and then taking a BMW motor vehicle, which was driven away and wrecked in a collision with a power pole. In fact, the vehicle seems to have been valued at $54,000 and was a write-off, but it is said that the owner ended up out of pocket by $10,000, possibly (I do not know) because of a discrepancy in insurance moneys that he received. At all events, that figure of $10,000 was the amount used in the calculation of the $29,000 to which I have referred. In addition to that, a Mazda vehicle was stolen and sustained some $1,900 worth of damage.

The other major contributor to the loss came from a graffiti offence involving, it is said, the etching of words on glass sliding doors at a shopping centre, which presumably had to be replaced, at a cost estimated at $7,317. There is no prospect of any compensation or restitution payment from the applicant offender himself.

At a time when he was on bail, seven of these offences were committed, either on New Year's Day 2000 or on the day after it, in the company of two somewhat older young men with bad criminal records who, in fact, did the driving and smashing of the cars. They were sentenced as adults to effective terms of imprisonment of approximately six months in each case.

The learned sentencing Judge in the present case was provided with copies of the sentencing remarks in those cases, and may have been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v K

Details

AGLC: R v K [2001] QCA 551
Case: [2001] QCA 551
Decision Date: 29/11/2001

CaseChat Overview and Summary

The case of R v K is an appeal against a sentence imposed on a juvenile offender, who was 17 years old at the time of sentencing. The applicant, K, had pleaded guilty to a total of 16 counts of offences across two indictments, including wilful damage by graffiti, break, enter and steal or burglary, and unauthorised use of a motor vehicle. The total loss sustained by the various property owners affected amounted to more than $29,000. The applicant had a history of offending from the age of 11, and was sentenced to probation and short terms of imprisonment for previous offences. However, at the time of the major offences, the applicant was on bail and his probation was not actively being enforced. The sentencing judge considered the applicant's background and family circumstances but ultimately imposed a period of detention, which the applicant appealed.

The legal issues in this case involved the sentencing discretion under the Juvenile Justice Act 1992. The applicant argued that the sentence imposed was inappropriate given his age, the fact that he had been making progress towards rehabilitation, and the lesser sentences imposed on the older offenders who accompanied him during the commission of some of the offences. The appeal court was required to determine whether the sentencing discretion had miscarried in imposing a period of detention instead of making an immediate release order under s 176 of the Act.

The appeal court found that the sentencing discretion had miscarried in this case. The court considered that the applicant's age, his progress towards rehabilitation, and the lesser sentences imposed on the older offenders were relevant factors that should have been given greater weight in the sentencing decision. The court noted that the dominant principle under s 4 and s 165 of the Juvenile Justice Act is that child offenders should be detained in custody only as a last resort. The court also considered that the applicant had expressed his willingness to comply with the requirements of an immediate release order, and that the Resource Officer, Area Youth Justice Service, had already prepared the report required by s 177(1) of the Act.

The appeal court allowed the application and appeal against sentence, ordering that the sentence of detention imposed on 24 August 2001 be immediately suspended and that the applicant be immediately released from detention. The court also ordered that the applicant participate in a program in accordance with or to the effect of that recommended in the pre-sentence report of Mr G Peyton-Smith, and that he abstain from violation of the law for three months from 29 November 2001. The order did not disturb the recording of convictions which took place on 24 August 2001.

Orders