R v M

[1996] QCA 349

IN THE COURT OF APPEAL	[1996] QCA 349
SUPREME COURT OF QUEENSLAND
Brisbane	C.A. No. 194 of 1996
[R. v. M]

THE QUEEN

v.

M

(Applicant) Appellant

Derrington J Mackenzie J

White J

Judgment delivered 20 September 1996
Judgment of the Court

Application granted. Appeal allowed. Sentence of detention imposed by Court below to be suspended after six months and Appellant to be released on following terms:

The appellant:

1.must not commit another offence during the period of the order; and

2.must report to an authorised commission officer at Caloundra within 24 hours of his release;

and

3.must report to, and receive visits from an authorised commission officer as directed by the

officer; and

4.must take part in counselling and satisfactorily attend other programmes as directed by the

court or an authorised commission officer during the period of the order; and

5.must notify an authorised commission officer of every change of the offender's place of

residence or employment within two business days after the change happens; and

6.must not leave or stay out of Queensland without the permission of an authorised commission

officer; and

7.must comply with every reasonable direction of an authorised commission officer; and

8.must reside at the Youth Focus facility at Caloundra or such other place as the authorised

commission officer may require.

The period of 38 days spent in detention on these charges prior to sentence is to be treated as time served in respect of the period of 6 months.

CATCHWORDS:Criminal Law - Arson of scouts hall - $186,000 worth of damage - Breaking and entering - 16 years of age at time of offence - No criminal history - Served 6 months - Whether should now be given opportunity of residing in youth residential centre.

Counsel:	Ms D. Richards for the Appellant Ms L. Clare for the Respondent
Solicitors:	Legal Aid Office for the Appellant Queensland Director of Public Prosecutions for the Respondent

Hearing Date: 1 August 1996

JUDGMENT OF THE COURT

Judgment delivered 20 September 1996

This is an application for leave to appeal by the above named who has been convicted of arson of a scouts hall causing damage of a value of $186,000, and of breaking, entering and stealing a carton of fruit-juice.

At the time of the offence he was sixteen years of age and had no criminal history. At his suggestion, he and a friend broke into the hall at about midnight. After they stole the fruit-juice, his accomplice left and he followed soon after, saying that he had lit up some plastic. The hall was totally destroyed.

He was spoken to by the police but gave a false alibi and subsequently refused a formal interview. He was arrested about seven days after the offences.

He failed to appear at the District Court sittings to which he was committed and was apprehended about six months later.

He pleaded guilty soon after but his sentence was delayed for a pre-sentence report. At his first interviews for this purpose, he said he was very remorseful and clearly indicated that he had been responsible; but on a second interview he denied lighting the fire, claiming that someone else must have done it after he left. However, this was not maintained in submissions made on his behalf before the learned sentencing judge.

He had had a happy childhood and a suitable upbringing, but his family decided to move to Queensland in order to remove his older brothers from troublesome associates but the family did not settle down. When the older brothers again became involved in criminal behaviour, the family developed a bad reputation.

The applicant's father died two years ago following complications from an operation and this adversely affected the entire family, though his brothers' offences ante-dated that event.

The applicant himself left school half way through grade 10 to obtain employment and he seems to have been reliable in that respect until he says he developed a work-related back injury and became disinterested in further employment.

His mother has moved away from her sons and lives at an unknown address because she wishes to rid herself of the troubles her sons have brought upon her. His brothers are both now in prison and he has no other family.

He was sentenced to two years' detention on the arson count and one year's detention on the charge of breaking, entering and stealing. At the time of the sentence he had served thirty- eight days in custody while a pre-sentence report was being obtained. This form of punishment follows from his being under seventeen years of age at the time of the offences although he was above that age at the time of the sentence. However for some time he was held in custody in a place of adult detention on remand in respect of a number of further offences committed after his seventeenth birthday but before his sentence on these matters. He has since been given a suspended sentence on those counts.

The learned sentencing judge was of the view that an immediate return to the community through an immediate release order was not appropriate, and that deterrence, both individual and general, was necessary. Having regard to the seriousness of the arson, he was justified, but the duration of the detention ordered is of some concern. In many cases that are broadly comparable, though perhaps less serious, probation and/or community service has been ordered in respect of offenders who were, as the applicant was at the relevant time, still children. See Hart C.A. No. 255 of 1992, Hunia C.A. No. 308 of 1994 and R v. Aufai C.A. No. 50 of 1995.

The applicant has now been in custody for approximately twenty-three weeks and as it has been indicated he has served most of this in an adult prison. On normal parole arrangements this would be the equivalent of a sentence of almost a year's imprisonment. This might well be thought to be close to sufficient to meet the considerations remarked by the learned sentencing judge particularly by comparison with other cases that were not drawn to his attention.

The applicant now has an opportunity of residing in a youth residential centre where he could receive supervision and training if he is put on probation. It is desirable that he now be given the opportunity of rehabilitation through this facility after he has served six months' detention.

This can be achieved by varying the sentence so that the detention to which he was sentenced be suspended after six months and he then be released on probation for a period of two years on the usual terms and conditions but with the added condition that he reside at the Youth Focus residential facility at Caloundra during such time or times as his community correctional officer might direct.

The application is allowed and the sentence below varied on the following terms:

On each count, the sentence of detention imposed by the Court below is to be suspended after six

months and he is to be released on the following terms.

The appellant:

1.must not commit another offence during the period of the order; and

2.must report to an authorised commission officer at Caloundra within 24 hours of his release;

and

3.must report to, and receive visits from an authorised commission officer as directed by the

officer; and

4.must take part in counselling and satisfactorily attend other programmes as directed by the

court or an authorised commission officer during the period of the order; and

5.must notify an authorised commission officer of every change of the offender's place of residence or employment within two business days after the change happens; and
6.must not leave or stay out of Queensland without the permission of an authorised commission

officer; and

7.must comply with every reasonable direction of an authorised commission officer; and

8.must reside at the Youth Focus facility at Caloundra or such other place as the authorised

commission officer may require.

The said period of six months after which the said detention is to be suspended is to take into account the period of thirty-eight (38) days spent in detention on these charges prior to sentence.