R v M - [2001] QCA 11

[2001] QCA 11

COURT OF APPEAL

McMURDO P
WILLIAMS JA
MACKENZIE J

CA No 341 of 2000

THE QUEEN

M Applicant

BRISBANE

..DATE 02/02/2001

JUDGMENT

THE PRESIDENT: The applicant pleaded guilty in the District Court at Brisbane to one count of burglary with actual violence in company, one count of serious assault and one count of stealing.

On a second indictment he pleaded guilty to a further
11 counts of breaking and entering premises and stealing, one count of receiving stolen property, seven counts of entering premises with intent, one count of unlawful damage and one count of stealing.

In addition, 14 counts of break and enter premises and steal and three counts of entering premises with intent and one count of stealing were taken into account on a schedule under s.189 Penalties and Sentences Act 1992.

The applicant, a 15-year-old indigenous juvenile, was sentenced to three years' detention for the offence of burglary with actual violence in company and to lesser concurrent periods of detention on the remaining offences. Section 188(1) of the Juvenile Justice Act 1992 means that he will not be released from detention until he has served 70 per cent of his sentence.

The facts of the offences are as follows. Between July 1999 and February 2000 the applicant committed 39 offences of dishonesty, primarily breaking and entering commercial premises, churches, schools, childcare centres, clubs and motor vehicles and stealing property. The total value of property damaged or stolen was $9,884.20; none was recovered and no compensation paid. Some offences were detected because of the location of the applicant's fingerprints, but most resulted from his admissions to police.

The seriousness of these offences is dwarfed by the applicant's involvement in the three count indictment. At about 8.30 p.m. on 11 January 2000 the complainant, an
81-year-old woman who was weak and tired from a stomach infection, was home alone watching television when she heard a noise at her front door. She opened the door thinking it was a visiting grandchild and disturbed three hooded offenders, one of whom was the applicant.

The offenders had loosened the security door from its hinges and when the complainant opened her door one grabbed her in a bearhug and pushed her a short distance up against a table. Another offender took her handbag and the third offender held the door open.

An hour later the applicant was located with another
co-offender near a teller machine in possession of some of the property from the complainant's bag. The applicant declined to take part in a record of interview, but pleaded guilty at an early stage.

The complainant, although not physically injured, naturally became fearful for her security after this incident. She has since died from unrelated causes.

It is impossible not to feel anger towards the applicant for his treatment of the complainant for our society rightly expects its elderly citizens to be nurtured and treated with respect. Every fair-minded person would inevitably feel sympathy for the elderly complainant who…

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 M

Details

AGLC: R v M [2001] QCA 11
Case: [2001] QCA 11
Decision Date: 02/02/2001

CaseChat Overview and Summary

In the matter of the Queen versus M, the applicant was convicted on various counts of burglary, assault, receiving stolen property, unlawful damage, and theft. The applicant, a 15-year-old Indigenous juvenile, committed 39 offences between July 1999 and February 2000, involving breaking and entering various premises and stealing property. The most serious of these offences involved the applicant being part of a group of offenders who broke into an elderly woman's home, causing her fear and distress. The applicant pleaded guilty and was sentenced to three years' detention for the most serious offence and lesser concurrent sentences for the others. The applicant appealed against the sentence, arguing that an alternative sentence should have been imposed instead of detention.

The legal issues before the court were whether detention was the only appropriate sentence for the applicant and, if not, what alternative sentence would be more appropriate. The court had to consider the principles and objectives of the Juvenile Justice Act 1992, which emphasise rehabilitation and reintegration of juvenile offenders, and the applicant's age, maturity, criminal history, and prospects for rehabilitation. The court also had to consider the seriousness of the offences and the need to protect the community.

The court found that while detention was an appropriate sentence option, the sentence imposed was not for the shortest appropriate period and was manifestly excessive. The court considered the applicant's age, early pleas of guilty, and rehabilitative prospects as mitigating factors. The court concluded that the principles and objectives of the Juvenile Justice Act 1992 could best be served by releasing the applicant on an immediate release order and requiring him to serve a substantial period of probation and perform community service. The court allowed the appeal against sentence and set aside the sentence imposed below, ordering that the applicant be sentenced to 12 months' detention to be served by way of an immediate release order on the most serious count, and be placed on probation for two years and perform 200 hours community service on all remaining counts. The court did not record any convictions.

Orders