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

v.

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 influenced by those sentences in arriving at the sentence now under appeal.

However, at the time the applicant committed those offences, he was only 15 years old, and the older offenders were, it might be thought, dealt with somewhat leniently for the crimes and damage they committed.

The applicant has a record of a considerable number of offences committed as a juvenile, first in 1995, when according to my calculations, he was only 11 years old, and most of the remainder of the offences in 1998, when he was 14.  They consist mainly of break and enters and also a number of drug offences.  For some of these he was fined or received community service.  For others he was, on occasions in 1999, sentenced to short terms of imprisonment, and also in March 1999, to probation for 12 months; again for two years in April 1999; and once more for 12 months in May 1999.  The two year probation period was still current when the major offences were committed in the first two days of January 2000.  No one seems to have been actively supervising or trying to enforce the fulfilment of that probation, but his Honour took it into account adversely to the applicant in sentencing him.

The matters referred to argued for a period of detention, which his Honour felt compelled to impose.  There were, however, some factors in mitigation.  The applicant, who was from a seriously dysfunctional family, came here from New Zealand.  His mother moved in with his step-father, who had the misfortune to be involved in an accident which rendered him paraplegic.  This inevitably caused difficulties for other members of the family, and the children were, apparently, left to come and go as they pleased, without proper discipline.  At an early age, the applicant began to indulge in drug and alcohol consumption, as a result of which he began committing the offences I have referred to.

His Family Services officer considers that the applicant has recently markedly changed his attitude.  Since the spate of offences giving rise to the subject sentences, he has, while on bail, returned to the property which his step-father now owns, and has begun helping him with the small crops that are grown there.  He is, it is reported, working long hours on seven days a week, and has been given an area of two or three acres of his own to cultivate, which he is doing with some vigour and assiduity.  Since the offences the subject of this appeal, he has been convicted of only one offence, committed during 2001 in connection with a minor drug matter, for which he was fined in June 2001.  This gives some substance to the impression that he is succeeding in rehabilitating himself. 

The Family Services officer recommended that the applicant be given the benefit of an immediate release order, to enable him to pursue his present intuition of applying himself to farming as a career. Under s 177 of the Juvenile Justice Act 1992, such an order would have been limited to a program lasting only three months, which his Honour regarded as far too short a punishment for what was done. His Honour considered that nothing less than detention would suffice as a punishment for these offences.

It seems to me that in the circumstances of this case, where the applicant was, for the first time, making progress towards rehabilitation and to reintegrating himself successfully into his family, that conclusion gives too little weight to the dominant principle under s 4 and s 165 of the Juvenile Justice Act, that child offenders should be detained in custody only as a last resort, and also to the fact that the applicant was only 15 years of age at the time of the most serious of these offences, which were committed in the company of persons who were older than he.  In circumstances like the latter, considerations of parity in sentencing have much less force than they have on the sentencing of co-offenders of the same age or level of maturity.

In short, it seems to me that in imposing a period of detention, instead of making an immediate release order under s 176 of the Act, the sentencing discretion must, in some respects, have miscarried.

The problem is what should be done about it now.  The applicant was sentenced more than three months ago on 24 August.  By now he must be more than half-way to release from the period of detention, taking into account the effective period of six months he was to serve, less the 22 day pre-detention period of custody.

Making an immediate release order would, under s 176 of the Act, involve suspending the sentence of detention, which he is now undergoing, and ordering the applicant's release, in accordance with the requirements of s 177 of the Act.

Under s 178 of the Act, the child must be willing to comply, but we are informed by Mr Weston of counsel that the procedure and its requirements have been explained to the applicant, and that he has expressed his willingness to undergo that process to those who act for him in this matter.

The Resource Officer, Area Youth Justice Service, has already prepared the report required by s 177(1) of the Act, which is at pages 49 to 50 of the Appeal Record.

My conclusion, therefore, is as follows.  That the application and appeal against sentence should be allowed, without disturbing the term of two years' probation imposed on count 5 of indictment number 547 of 2000.  It should be ordered that the sentence of detention imposed on 24 August 2001 be immediately suspended, and that the applicant be immediately released from detention. 

The applicant having expressed his willingness to comply with the requirements of this order in respect of the other offences to which he pleaded guilty, it should be ordered that for three months from 29 November 2001, he participate as directed by the Chief Executive in a program in accordance with or to the effect of that recommended in the pre-sentence report of Mr G Peyton-Smith at pages 49 to 50 of the Appeal Record, and further, that during that period, he abstain from violation of the law. 

That is the order that I propose should be made.

DAVIES JA:  I agree.

THOMAS JA:  I agree.

McPHERSON JA:  The order will be as I have stated it. 

...

McPHERSON JA:  To make it clear, I will say it is not intended to disturb the recording of convictions which took place on 24 August 2001.

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