R v Lang

[1992] QCA 251

COURT OF APPEAL [1992] QCA 251

MACROSSAN CJ
DAVIES JA

LEE J

CA No 181 of 1992

THE QUEEN

v.

MARK SCOTT LANG	Applicant
BRISBANE ..DATE 23/07/92
JUDGMENT

230792
THE CHIEF JUSTICE: This is an application for leave to appeal against sentence. In fact, the
form contains what is an error, obvious on its face, because the words "against sentence" are
crossed out and the words "against conviction" remain. The ground taken, namely that the
sentence was manifestly excessive, makes it clear that that was an error. So far as the notice
relates to conviction, we should formally dismiss that and we would then so order.

The applicant pleaded guilty to 2 offences occurring on the same day, and arising out of the same episode, namely that on 8 May he drove dangerously causing death. That unfortunate consequence occurred in respect of one of his passengers. The second offence, in the course of the same driving, was one of causing grievous bodily harm to another of his passengers. The applicant was a young boy. I think that would be the correct description since he was 1 day short of 15 years of age. He used his father’s car without his father’s permission. In short, he just took it in his father’s absence. I should add that hewas also convicted of unlawful use of a motor vehicle. The same episode encompasses all three offences.

What the learned sentencing Judge did was impose a care and control order for 2 years, acting under the provisions of section 62(1)(g) of the Children’s Services Act. The consequence of his acting under that subsection, of course, involves convictions being recorded and it also has the further consequence that custody of the applicant - or guardianship of the applicant, passes to the director. What happened when the applicant took his father’s car without permission was that he gathered up 2 passengers. They were young friends of his, both 14 year old girls. He proceeded to drive it along the street and drove at a very excessive speed. He drove at a speed which is stated as between 110 and 120 kilometres an hour in an area where there was a speed limit of 60 kilometres an hour. Not surprisingly, in view of his inexperience, he lost control of the vehicle and it struck a power pole. One of his passengers was unfortunately thrown from the vehicle and there were tragic consequences. She suffered severe brain trauma and other injuries from which she died. The second young girl, the other passenger, suffered fractures to her left arm and she is left with some permanent reduction in the range of movement of that arm.

The principal submission made to us is that this boy should have been treated in a way that did not involve his having a conviction, which he would be required to carry the disadvantages of for the rest of his life. A further point made is that he should have been treated in a way which did not pass guardianship to the director, but which left him in the care of his father. His parents were separated, we were told, and he had been in the custody of his father. It is said to us that his later career may be obstructed by the conviction. He is a student - still a student and he hopes to make some career in computers. There is no reason for thinking that there will be any particular aspect in which his later career will be impeded by the conviction, that is, more so in his case, than in any other case where a conviction is recorded against a person.

However, he was indeed a boy only. He pleaded guilty to the extent that that is relevant in a case like this. He had no criminal history. There was no prior evidence of misconduct, misbehaviour or causing trouble. The Judge thought and said that it was a case of stupidity and one agrees with that, momentary stupidity, attributable, no doub, I would add, to his immaturity. References have been tendered which show that he is doing well at school and stating that he is an agreeable young person who relates well with others. There is no sign of any general rebelliousness in his conduct so far as appears.

While the particular tragic consequences are very much to be regretted, and no doubt would have been a strong factor in inducing the learned sentencing Judge to deal with the applicant firmly, I think that countervailing considerations in this case are the fact that the previous behaviour is not shown to be short of anything that it should be; that the offences were committed as a result of momentary stupidity; and that there is no reason to think, especially looking at the references, that the boy will not conduct himself appropriately in the future. He seems to have adjusted to the responsibility of his actions and recognised the seriousness of the consequences, so far as one can detect from the references.

I think it is a case then where it would have been better not to pass the custody and care of the boy from his father, his particular care, not being shown to be deficient in any way, and accordingly, I am persuaded that a supervision order, in this case, would have been more appropriate than a care and control order, even though the events which followed from the boy’s actions were extremely serious. I also think that in all the circumstances, particularly in view of his age, it would be appropriate to deal with this boy on the basis that a conviction is not imposed, and accordingly, I would allow the application and set aside the orders made below, and in each case, make an order under section 62(1)(k)(ii) of the Children’s Services Act, namely, order that the director exercise a supervision over, in relation to the applicant for a period not exceeding 2 years.

DAVIES JA: I agree.

LEE J: I agree.

THE CHIEF JUSTICE: That will be the orders made.

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