R v L

[1995] QCA 207

[1995] QCA 207

COURT OF APPEAL

PINCUS JA
de JERSEY J
AMBROSE J

CA No 117 of 1995

THE QUEEN

v

L  Applicant

BRISBANE

..DATE 26/04/95

JUDGMENT

PINCUS JA:  Mr Justice de Jersey will deliver the first judgment.

de JERSEY J:  The applicant committed a series of offences in October 1994 when he was 14 years nine months old.  When he was sentenced he was 15, having pleaded guilty.  The most serious of the offences was arson involving a motor vehicle.  He was with two other boys.  He lit a piece of paper which he put on a pillow in the car, which was a Ford Laser.  The car caught fire and was totally destroyed.  It was valued at $4,500.  Inside were personal belongings worth $1,130, including, unfortunately, the owner's wedding dress.  All of them were destroyed.

Although the car was insured, the owner had to bear an excess of $550.  The learned Judge made a detention order for one year coupled with an immediate release order.  The effect was similar for that of a suspended sentence.  The Judge described the offence as too serious to warrant any lesser response.  Before imposing the sentence he invited comment from the applicant's counsel and there was no opposition to it.  The Judge added that he could not see his way clear to avoiding detention.

The applicant also committed other offences on the same night, again in company with the others; burglary of a garage, wilful damage of wheelie bins awaiting collection and stealing.  The three boys broke into cars and stole small amounts of money.  They broke into the garage area of a house and stole money from inside the car inside the garage.  They set fire to a towel protruding from another car window.  They set fire to and destroyed the five wheelie bins, causing $435 worth of damage.

For the burglary and wilful damage the applicant was given two years probation and 60 hours community service for the stealing.  No convictions were recorded for any of the offences, including the arson of the motor vehicle.  Counsel for the applicant submitted that the overall effect of the orders was manifestly excessive, pointing out that the applicant ultimately co-operated with the police and pleaded guilty and that he had personally apologised to the complainants.  The other points, obviously, to be made are his age at the time, 14 years and nine months, and his lack of any prior criminal history.

Counsel also pointed out, with relation to the detention order in particular, that even coupled with an immediate release order, that is a last resort order, see Section 109, sub-section 2, paragraph (e) of the Juvenile Justice Act.  The Judge must be taken to have been conscious of that.

The question is whether, having regard to the seriousness of the offence of arson especially, that approach was open in light of other features, in particular, I would say, the applicant being only 14 when he committed the offence and being a first offender. The applicant has in fact already completed half of the intensive care program which was part of the immediate release order, see Section 177, sub-section 1, paragraph (a) of the Juvenile Justice Act.  It was accepted before us that it would be beneficial to the applicant, were he to complete that intensive care program.

That aside, if the order for detention and immediate release could not lawfully have been made in that it could not be considered the only appropriate order in the circumstances, then notwithstanding the applicant's counsel's lack of demur before the sentencing Judge, we should set that order for detention aside and not maintain it just to serve the collateral end of facilitating the completion of that care program.

With great respect to the learned Judge I have to say that I do not consider that a detention order, albeit it coupled with provision for immediate release, was the only appropriate sentence here in terms of Section 165 in that notwithstanding the gravity of the arson, probation and community service would have provided appropriate alternatives once one acknowledges the very young age of the offender and his lack of prior criminal history.  And of course, the other matters in the record, to which I need not go.

I would therefore allow the application and set aside the detention order and the order for immediate release and make a probation order in respect of the arson on the same terms as apply to the probation order made in respect of the other offences but adding a special condition, that is that the applicant complete the intensive care program to which he is currently subject as part of the detention and immediate release orders.

Now I have gathered from the attitude of counsel for the applicant that he would accept that the applicant should complete that program and would accept it as part of a probation order, were such an order to be made on terms the same as the existing terms coupled with that one but perhaps Mr Rafter you might, for my own benefit anyway, give that assurance now.

MR RAFTER:  Yes, I can give that assurance, Your Honour.

de JERSEY J:  Thank you.  I might also say that I am assuming that the authorities would facilitate the completion of the program by the applicant notwithstanding that it would be done pursuant to a probation order and not pursuant to a detention and immediate release program but I am confident in that assumption and I am sure that the authorities would do everything to ensure that that occurred.

Now there are two other matters to which I should refer.  There was specific additional complaint about a requirement of the existing probation order that the applicant not leave his home between 7 pm and 7 am unless accompanied by one of his parents but that was plainly within the Judge's discretion and it was indeed accepted by the applicant so there really is nothing in that complaint in the end.

Secondly, there was some muted complaint about an order for compensation which was made.  The learned Judge ordered that the applicant pay $1,200 compensation to the owner of the burnt vehicle by $200 instalments over six months.  He accepted that the applicant could not pay it but he made the order because the boy's parents said that they would pay the amount and the boy accepted a moral obligation to repay them when he began earning money himself.

The Judge specifically pointed out to the boy's parents that he, the Judge, could not compel them to make the payment but the father informed the Judge that he was prepared to make it and that he would accept such an order.  In those circumstances it would have been contrary for the Judge not to have made the order and thereby to have removed the prospect of the owner receiving the compensation she deserved.

There was reference by counsel for the applicant to Section 197 of the Juvenile Justice Act which relates to orders made against parents and in point of strictness, of course, that did not apply here because the order was made against the applicant.  I consider that the learned Judge was able to make the order on the basis upon which he proceeded, that is that the applicant might be expected to repay in due course his parents who effectively volunteered a payment which would maximise the prospect of compensation to the injured party.

I would allow the application on the basis which I have indicated.

PINCUS JA:  I agree.

AMBROSE J:  I agree.

PINCUS JA:  The orders will be as indicated by Mr Justice de Jersey, and no conviction will be recorded.