R v L

[1998] QCA 461

[1998] QCA 461

COURT OF APPEAL

de JERSEY CJ
McPHERSON JA
CHESTERMAN J

CA No 327 of 1998

THE QUEEN

v.

L  Applicant

BRISBANE

DATE 04/12/98

JUDGMENT

THE CHIEF JUSTICE:  The applicant was born on 8 October 1982.  Between February 1997 and July 1980 he committed a spate of offences.  He was then aged between 14 and 15 years.  He pleaded guilty to those offences in September 1998 when he was almost 16 years old.  For two offences of armed robbery in company the learned District Court Judge sentenced him to 18 months detention with an order for release after he had served 50 per cent of the terms.  Convictions were recorded.

He also pleaded guilty to other indictable offences, two of wilful damage, five of stealing, six of unlawfully using motor vehicles, one of breaking, entering and stealing, four of breaking and entering with intent and one of the unlawful use of a motor vehicle with a circumstance of aggravation.

Other indictable offences were taken into account under s 189 of the Penalties and SentencesAct.  They were nine of stealing, four of unlawful use of motor vehicles and four of housebreaking.  For those other indictable offences he was sentenced to 12 months detention concurrently again with an order for release after 50 per cent.

He pleaded guilty as well to nine counts of disposal of tainted property dealt with in the District Court under s 651 of the Criminal Code attracting another two months concurrent detention.  He seeks leave to appeal against all of the sentences on the ground that they are manifestly excessive.

He contends that on the armed robbery counts 12 months detention should have been imposed suspended however on an immediate release order and that for the other offences probation or community service or detention immediately suspended should have been imposed with no convictions recorded in any case.

The first armed robbery involved the applicant with three others, one drove a getaway car, the other three including the applicant entered a country service station at 1 a.m.  They wore balaclavas, two carried knives and the applicant a length of PVC hosing.  They threatened the two staff and decamped with $1,358.

The second offence occurred about a fortnight later at the same place at 2.50 a.m., two different employees were there, applicant entered with two others similarly armed and again wearing balaclavas.  They threatened the staff, money was stolen in the amount of approximately $16,700.

The other indictable offences, together with the further offences taken into account under s 189, involved loss to the community of more than $23,000. The sale of the tainted property related to some of that stolen netting the applicant between $1,800 and $2,100.

The applicant committed these offences after leaving home in March 1997.  He had no prior criminal history.  He made full admissions, pleaded guilty and apologised to his victims.

A report from the Department of Families, Youth and Community Care refers to conflict prior to his leaving home and to his subsequent involvement with drugs.  The author expressed this view as to his prospects of rehabilitation:

"L understands he is responsible for his actions even though he feels he was not in control of them due to the drugs and lack of maturity.  L is an intelligent person and is able to adopt a more appropriate lifestyle and take more control over his actions and stop offending if he wants to."

In an addendum to that report, following his having spent a period on remand the author said this as at 14 August 1998:

"L has made a dramatic change to his lifestyle and attitude in the later part of the remand period.  Because of this on 1 July 1998 L presented himself at Caboolture CIB stating that he wished to assist police with numerous offences he had committed.  L believed he needed to start taking responsibility for his actions and the trauma he'd caused people in the past.  L attributed this change of behaviour to his attendance at the Ross McKechnie's Rural Training Course at Toogoolawah where for the past three months he's experienced a structured rural working lifestyle and with the support of the staff ceased his drug intake.

L has had time to reflect on his past offending behaviour and the impact that this has had on his parents and the victims.  L is more honest and open about how ashamed he feels for what he did.  L realises the seriousness of his crimes but at the time he did not give it much thought because he was drug affected.  He now has insight and is able to express how he's traumatised so many people for his own selfish need.

L no longer associates with the co-accused as he realises the influence they've had over him at the time.  L believes he needs to remain at Toogoolawah to cement these changes and rehabilitation for the rest of the year.  He has set sound goals for next year with a view of attending TAFE to complete Year 10 and hopefully attain an apprenticeship in carpentry.  L believes with the on-going support of his parents Ross McKechnie and departmental staff he will be able to maintain the momentum of rehabilitation and not re-offend."

There was as well as that material before the learned sentencing Judge a report from Mr McKechnie which was favourable to the applicant and included this passage:

"It is my intention to find him work in the country for six months or so until TAFE starts next year to show him the real value of life from the land point of view and the hardships and quality of life that country people endure.  L is not the sort of person I think who should be locked in gaol as this would only teach this beginner to become a better criminal."

All Judges who sentence juvenile offenders may be taken to be closely aware of the relevant principles many of which, but not all of which, are set out in s 109 of the Juvenile Justice Act.

This sentencing Judge does appear to me to have given careful consideration to the matter.  It was, however, submitted for the applicant that the Judge gave apparently insufficient weight to matters of mitigation.

Against this there are the circumstances that he committed very serious offences over an extended period involving substantial financial loss to the public.  I believe the learned sentencing Judge was rightly strongly influenced by the gravity of the offending especially of course the armed robberies and importantly the consequent effect on the victims.  The Judge took what he described as the most lenient course he could for what he described as a horrible litany of offences.

We were pressed with the view that there was a change in the applicant's approach to life, worked through his attendance at the Ross McKechnie Rural Training Course.  This of course is frequently paraded before the Court of Appeal and before sentencing Judges and Courts have become I believe rightly sceptical about such claims when they are advanced to warrant lenient treatment.

There needs to be some reassurance that the change has indeed occurred and that something might be built upon it.  In my view that reassurance was sufficiently established in this case by the addendum report of the officer of the Families, Youth and Community Care Department dated 14 August 1998 from which I have read and by the handwritten report from Mr McKechnie which has a convincing flavour of sincerity about it.

The issue is whether that particular consideration, in other words, a substantial prospect of real rehabilitation which may well be thwarted utterly by continued detention, should have dissuaded the learned sentencing Judge from suffering the applicant being detained for a period of nine months.

He has now been in custody for three months.  I consider that the sentence which was imposed with all respect to the learned Judge was in fact manifestly excessive in light of the particular material relating to rehabilitation to which I have referred.  Now I stress that rehabilitation is but one of the considerations with which the Court should be concerned.

I pause before giving that substantial sway in a case like this where the crimes which have been committed are of considerable gravity and consequence.

However, especially bearing in mind that we are here dealing with a young juvenile aged between 14 and 15 years at the time of the commission of the offences and having no other prior criminal history I believe that the learned Judge should have been influenced by that material to contemplate his being detained at least for a substantially shorter period than the nine months he prescribed.

Having reached the view that the sentences imposed were in that respect manifestly excessive I would order that the appeal be allowed, leave granted and that the orders for detention made by the learned Judge varied to provide for the applicant's immediate release conditional upon his submitting to an appropriate program under the auspices of the Department of Families, Youth and Community Care providing amongst other matters considered appropriate by that department for his resuming attendance at the Ross McKechnie's Rural Training Course at Toogoolawah for the period between now and his commencement of a TAFE course as soon as may be in 1999 and that his attendance at that course be a further condition of the program to which I have referred.

I contemplate that the program would include such other conditions as the department considers reasonable.

McPHERSON JA:  I agree.

CHESTERMAN J:  I agree.

THE CHIEF JUSTICE:  Mr Meredith, is that sufficiently clear the terms of that order?

MR MEREDITH:  Yes, Your Honour, I would have thought abundantly clear.

THE CHIEF JUSTICE:  Those are the orders.