R v M

[1995] QCA 531

IN THE COURT OF APPEAL	[1995] QCA 531
SUPREME COURT OF QUEENSLAND	C.A. No. 268 of 1995
Brisbane
Before	Fitzgerald P. Davies J.A. Moynihan J.
[R. v. M]

T H E Q U E E N

v.

M (Applicant)

FITZGERALD P.
DAVIES J.A.

MOYNIHAN J.

Judgment delivered 05/12/1995

SEPARATE REASONS FOR JUDGMENT OF FITZGERALD P., DAVIES J.A., AND

MOYNIHAN J., CONCURRING AS TO THE ORDERS.

Application for leave to appeal against sentences allowed.
Appeal allowed.
Substitute a sentence of detention for two years for the burglary offences but otherwise impose
the same sentences and order that the sentences of detention be immediately suspended and
the applicant released.
Further order that the applicant participate as directed by the chief executive for a period of
three months in the program identified in the addendum dated 17 November 1995 to the pre-
sentence report dated 2 May 1995 and that during such period of three months the applicant

refrain from violations of the law.

CATCHWORDS:	CRIMINAL LAW - sentence - Childrens Court - burglary, indecent assault, wilful damage - serious assault - serious offences - extensive criminal history RE-SENTENCING - miscarriage of sentencing process - s. 166(1) Juvenile Justice Act 1992 IMMEDIATE RELEASE ORDER - appropriate structured program available on release: s. 179 Juvenile Justice Act - applicant must have expressed a willingness to comply with the proposed order: s. 178 - report submitted of applicant’s behaviour whilst in detention.
Counsel:	Ms K.M. McGinness for the Applicant M.J. Byrne Q.C. for the Crown
Solicitors:	Legal Aid Office for the Applicant Queensland Director of Public Prosecutions for the Crown
Date(s) of Hearing:	15 August 1995

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 05/12/1995

The applicant, a 16 year old boy of Aboriginal and South Sea Islander descent, seeks to appeal against sentences imposed in the Children’s Court at Mackay on 9 June 1995 for offences which occurred on 31 December 1994 and 1 January 1995. He was sentenced to detention for three years for burglary, one year for indecent assault, three months for wilful damage, and three months for serious assault, after pleading guilty to all offences except the indecent assault. All sentences were ordered to be served concurrently, effective from 12 April 1995, to take account of the period spent by the applicant in pre-sentence custody. Because no other order was made, the applicant is required to remain in detention for 70% of the period for which he was sentenced, that is, until mid-May 1997: Juvenile Justice Act 1992, sub-s. 188(1).

The applicant has a prior criminal history consisting of stealing and assault, including one offence of assault occasioning bodily harm, and the offences for which he was sentenced were serious.

At about 11.15 p.m. on 31 December 1994, he entered the home which the complainant shared with her three daughters, aged 15, 13 and 4 years, and, with a view to obtaining sexual intercourse, threatened the complainant with a knife. He fled when the complainant turned on the light.

About 12 hours later, the applicant was seen by police spraying paint onto the metal roller door of a real estate agent’s premises, causing $280 damage.

When subsequently apprehended by a police officer, the applicant broke free, punched the police officer in the face a number of times, and fled. When he was subsequently caught, he again assaulted the police officer by punching him in the eye region. The police officer required four stitches above his right eye, suffered bruising and swelling around the whole eye region, and experienced tenderness to the left side of his face.

In sentencing the applicant, the sentencing judge did not comply with sub-s. 166(1) of the Juvenile Justice Act and made certain remarks which the prosecution did not seek to sustain in this Court, indicating a miscarriage of the sentencing process. In the circumstances, it was accepted that it is appropriate for this Court to re-sentence.

The prosecution emphasised the seriousness of the offences and the applicant’s prior criminal history, together with the chances which had previously been given him; he had been sentenced to community service on prior occasions - which he had successfully completed - and was on probation at the time of these offences.

On the other hand, reference was made by his counsel to the applicant’s youth, his potential for rehabilitation, and the other considerations referred to in ss. 109 and 165 of the Juvenile Justice Act. It was submitted that detention should not be ordered, and further that the periods of detention which the sentencing judge ordered were too high. In any event, it was said that any order for detention should be accompanied by an immediate release order pursuant to sub-ss. 120(1)(f), 121(1), (2) and (4) and s. 176 of the Juvenile Justice Act, or at the very least a recommendation for release after serving 50% of his sentence under sub-s. 188(2) of the Act.

In addition to the pre-sentence report which was available to the sentencing judge, this Court has a report from the Department of Family Services and Aboriginal and Islander Affairs subsequent to sentencing which indicates that the applicant’s behaviour in detention has been “exceptional”, to adopt a word used by the relevant Caseworker at the Cleveland Youth Detention Centre in Townsville where the applicant is confined.

Other aspects of the report are also extremely favourable to the applicant. He is “extremely compliant and cooperative” and “well liked and polite”. He is actively participating in programs available at the Centre in “school, physical recreational and art courses”. He is involved in a computer-music program and painting, and is considered “extremely artistic”. He has impressed staff “with his maturity in dealing with other peers within the Centre who are confrontational in their manner and physically strike out at other youth. M responds to this behaviour by walking away and later discusses how ridiculous the behaviour of his peer was”. He has acknowledged the enormity of his conduct and situation, and the report says:

“During M’s sessions with his caseworkers at Cleveland he has shown remorse about his offending behaviour and has the ability to understand how his own behaviour has affected his victims in the past and present. M is able now to comprehend the full consequences of his previous anti-social behaviour and has indicated he will not re-offend in the future.”

The report concludes with reference to the applicant’s “positive influence on his peers”, and a statement that, once he leaves detention, “it is highly unlikely he will return”. Further, the fax cover sheet with which the report was sent to the Legal Aid Office (Qld.) for use before this Court says:

“I hope he gets an IRO - he deserves it. He’s a great kid - quite different to the

norm in here.”

(An IRO is an Immediate Release Order.)

After the hearing in this Court, an addendum to the additional pre-sentence report was provided, indicating that the appellant is suitable for release from detention under an immediate release order, that an appropriate program in which the applicant may participate is available on his release under such an order (Juvenile Justice Act, s. 179) and that the applicant has expressed willingness to comply with the requirements of the proposed order (s. 178).

Under sub-s. 109(2) and s. 165 of the Juvenile Justice Act, detention must not be imposed if another appropriate sentence is available and, if imposed, detention must be for the minimum period appropriate.

It is perhaps because of an expectation that those restrictions will have been scrupulously observed that an order may not be made for the release of a child from detention until he or she has served at least 50% of the period of detention ordered, and then only if there are “special circumstances”: sub-s. 188(2).

Further, there is no power to order a child to be released into a “structured program” after serving a period of detention which is only part of the detention imposed; under Part 5 Division 7 Subdivision 2 of the Juvenile Justice Act, such an order must be made for immediate release - i.e., immediate suspension of a detention order when a sentence of detention is imposed - or not at all.

I have no doubt but that the applicant must be sentenced to a period of detention; the offences for which he is to be sentenced are so serious, and his criminal record such, that detention is the only appropriate sentence. Further, at least if he had not already served a substantial period in custody and conducted himself in an exemplary fashion, it might be very difficult, if not impossible, to justify an immediate release order.

On the other hand, the broad legislative policy manifest in the Juvenile Justice Act, especially ss. 109 and 165, and the community’s, as well as the applicant’s, best interests all point to his early release, and, more particularly, to his immediate release into a “structured program”. However, a question remains whether such a course is open.

The applicant’s application for leave to appeal is effectively brought under sub-s. 668E(3) of the Criminal Code: see s. 87 of the Juvenile Justice Act. In R. v. Cornale [1993] 2 Qd.R. 294, two members of this Court held that the power of this Court under sub-s. 668E(3) of the Code is limited to imposing the sentence that should have been imposed in the circumstances which prevailed at the time when the applicant was originally sentenced. If given its full potential operation, Cornale might indicate that the Court should not even receive material not before the sentencing judge, at least if it relates to subsequent events, although that occurs from time to time, almost always without objection. (See also ss. 110, 164 and 179 of the Juvenile Justice Act.)

Further, Cornale might require the Court to ignore the period which the applicant has spent in custody since 9 June 1995 and his remorse and progress to rehabilitation in that period; unless on the material before the sentencing judge an immediate release order was appropriate, Cornale might suggest one cannot be made now although an immediate release order is called for as circumstances presently exist. Again, it might be another consequence of Cornale that, if detention of three years was appropriate when the applicant was initially sentenced, leaving the applicant to serve at least another year even if an order for early release under sub-s. 188(2) should be made, the applicant must receive such a sentence although it is now clear that he should not spend that time in detention. In effect, the only significance of the time spent in detention by the applicant since he was first sentenced would be that it will reduce the remaining period which he must spend in detention.

Cornale did not involve the sentencing of a child under the Juvenile Justice Act, and in essence was confined to the narrow question whether an additional statutory power under the Penalties & Sentences Act 1992 which had not commenced to operate when Cornale was first sentenced could be used for his benefit. A majority of the Court held that that could not be done. Since that time, it has been seen that to give Cornale a wider operation, perhaps wider than intended, could lead to injustice: see Poulton v. Welling (C.A. No. 473 of 1994, 5 May 1995) and Thiry v. Stuart (C.A. No. 283 of 1995, 17 November 1995).

It is unnecessary to consider all issues which might be raised by Cornale to decide the present application. In my opinion, the literal term of sub-s. 668E(3) of the Code, which underlay the decision in Cornale, must yield to the objectives (s. 3) and principles of juvenile justice (s. 4) in the Juvenile Justice Act, especially objective 3(e) and principles 4(b), (c), (e), (f) and (g), and the provisions of the Act to which reference has earlier been made, especially ss. 109 (particularly sub-s. 109(2)), and 165. The Juvenile Justice Act contains a clear legislative intent against extending a child’s detention for any longer than necessary: R. v. Johnston (C.A. No. 348 of 1995, unreported, 21 November 1995).

Accordingly, I would grant the application, allow the appeal, substitute a sentence of detention for two years for the burglary offence but otherwise impose the same sentences, and order that the sentences of detention be immediately suspended and the applicant released: Juvenile Justice Act, s. 176. It is further ordered, in accordance with sub-s. 177(1) of the Juvenile Justice Act, that the applicant participate as directed by the chief executive (as defined in the Juvenile Justice Act) for a period of three months in the program identified in the addendum dated 17 November 1995 to the pre-sentence report dated 2 May 1995 and that, during such period of three months, the applicant refrain from violations of the law.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered the 5th day of December 1995

The facts relevant to this application are fully set out in the reasons of the President and I shall not repeat them here. The question is whether, in the light of events which have occurred since the date of the sentence under appeal, which give a better insight into the applicant's prospects of rehabilitation than was available to the learned sentencing Judge, this Court may and should impose a sentence different from that which was imposed and which was appropriate on the facts then known. The question arises because of a report from the Department of Family Services and Aboriginal and Islander Affairs obtained after the sentence under appeal was imposed, the terms of which are more fully set out in the President's reasons. That report indicates that observations of the applicant's conduct since the sentence was imposed prove that he has exceptionally good prospects of rehabilitation.

In R. v. Cornale [1993] 2 Qd.R. 294 McPherson and Pincus JJ.A. held that s.668E(3) of the Criminal Code prevented this Court from imposing a sentence which, at the time the sentence under appeal was imposed, could not, at law, have been imposed but which was permitted by an amendment made before the hearing of the appeal. That sub-section provides:

"(3) On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."

Their Honours reached that conclusion by equating "such other sentence" with "some other sentence (which) should have been passed" thereby limiting the sentence which this Court may impose to that which legally could have been imposed at the time of the sentence under appeal. In doing so they were saying no more, in effect, than that an appeal under s.668E(3) is an appeal strictly so called; cf. Quilter v. Mapleson (1882) 9 Q.B.D. 672 at 676, Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan (1931) 46 C.L.R. 73 at 112-3. The question here, in my view, is whether that provision also limits the evidence which this Court may consider to that which was adduced or could have been adduced at the time of the sentence under appeal.

I do not think it does. It is possible to say of evidence such as that contained in the above report that it shows what sentence should have been passed at first instance because it shows what the applicant's prospects of rehabilitation then were. Such a construction of the sub-section is not inconsistent with the above joint judgment in Cornale or with the judgment of this Court in Poulton v. Welling (C.A. No. 473 of 1994, unreported, 5 May 1995). Consequently the principle stated in Cornale does not preclude this Court from considering that report.

It does not follow that the report should automatically be received by the Court. There are well known restrictions upon receipt of evidence on an appeal strictly so called which it is unnecessary to canvass here. But the circumstances of this case, including the fact that this Court is required to resentence the applicant, are sufficiently exceptional to justify it in considering the report. And because it shows, as I have said, that at the time of sentence, the applicant's prospects of rehabilitation were exceptionally good, orders of the kind proposed by the President were and are appropriate notwithstanding the seriousness of the offences of which the applicant was convicted and his prior criminal history.

I should add that I would not have been prepared to reach that conclusion on the basis of the reasons adopted by the President. In particular I am unable to agree that the objectives and principles stated in ss.3 and 4 of the Juvenile Justice Act or ss.109 or 165 of that Act require a different construction of s.668E(3) of the Criminal Code in the case of juvenile offenders from that which it bears in the case of adult offenders: cf. s.9 of the Penalties and Sentences Act.

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 5/12/1995

I have read the reasons for judgment prepared by the President and by Davies JA. The relevant facts are canvassed in the reasons prepared by the President and it is unnecessary for me to repeat what is there said. It also emerges from those reasons that the sentencing process having miscarried this Court is engaged in re-sentencing the applicant.

What is in my view exceptional about this case is that the Court embarks on that task equipped with a knowledge of events subsequent to the original sentence which provide an explanation (but not a justification) for the applicant’s conduct reflected in the offences and indicating that he has outstanding prospects of rehabilitation which, bearing in mind that he has served a term in custody pending the outcome of his application, would be enhanced by an immediate release order.

This occurs in the context of broad legislative policy manifest in the Juvenile Justice Act, ss.3, 4, 109 and 165 indicating that a child should not be in custody for any longer than is necessary. I agree that R. v. Cornale (1993) 2 Qd.R. 294, which is canvassed in the reasons of both the President and of Davies JA does not in the present case prevent the Court from taking account of the matters which have emerged since the applicant was originally sentenced.

I agree with the order proposed by the President.