R v O

[2003] QCA 472

SUPREME COURT OF QUEENSLAND

CITATION:	R v O [2003] QCA 472
PARTIES:	R v O (applicant)
FILE NO/S:	CA No 296 of 2003 CC No 1 of 2003 CC No 139 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING  COURT:	Childrens Court at Townsville
DELIVERED EX	29 October 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	29 October 2003
JUDGES:	McMurdo P, Williams JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE - JUVENILE OFFENDERS – OTHER MATTERS – where applicant pleaded guilty to numerous property offences and one count of assault occasioning bodily harm – where, in respect of offences committed by the applicant while on bail, she was sentenced to 12 months detention with a 3 month immediate release order – where, in respect of the remaining offences, applicant sentenced to 2 years probation with conditions and ordered to serve 200 hours of community service – whether recording of convictions and the sentences imposed manifestly excessive
Juvenile Justice Act 1992 (Qld), s 176, s 4, s 109, s 165, s 150, s 208
R v B [2003] QCA 24; CA No 408 of 2002, 7 February 2003, distinguished R v B [1995] QCA 231; CA No 551 of 1994, 9 June 1995, distinguished R v C & M [2001] Qd R 636, followed
COUNSEL:	K M McGinness for the applicant K A Holliday for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: The applicant child, aged 16 at the time of
sentence and 15½ at the time of the offences, pleaded guilty
in the Childrens Court of Queensland at Townsville on the 27th

of May 2003 to multiple offences. The first indictment	10
charged four counts of burglary committed between 3 and 14
July 2002. The second indictment charged seven counts of
burglary and stealing, 10 counts of receiving and one count of
stealing. These offences occurred between June and 31 August
2002, when the applicant was detained in custody. The third	20
indictment, brought without committal proceedings, charged one
count of burglary by breaking in company, one count of
stealing, nine counts of burglary and stealing and one count of assault occasioning bodily harm. These offences occurred between June and August 2002. A large number of the offences	30
were committed whilst the applicant was on bail. The
applicant was sentenced in August 2003, after a presentence
report was prepared. In respect of the offences committed by her on bail, she was sentenced to 12 months' detention with a three-month immediate release order under s 176, Juvenile	40
Justice Act 1992 (Qld), as it then applied.
In respect of the remaining offences, she was sentenced to two
years' probation, with a series of additional conditions
tailored to her needs, and 200 hours' community service.	50
Convictions were recorded in respect of all offences. Ms
McGinness, who appears for the applicant, contends that the
sentence of detention with an immediate release order, imposed
for the offences committed whilst on bail, is manifestly
excessive, as is the recording of convictions on all offences.
60
She contends that a lengthy period of probation and/or
community service was open in respect of all offences and, in
the circumstances, that penalty should have been imposed,
rather than detention by way of an immediate release order and
that no convictions should have been recorded.	10
The applicant had some criminal history. She was cautioned in
respect of a number of property offences on the 22nd of May
2002 and again on the 23rd of May 2002, and reprimanded on the
12th of June 2002 in respect of the offence of entering or	20
being in premises and committing an indictable offence and break. She was placed on a 12-month probation order on 26 June 2002, at the beginning of the time period when she
committed the offences presently for this Court's
consideration. She was placed in detention on 31 August 2002,	30
having breached her bail, but was released again on the 30th of October 2002, when she was placed on a conditional bail program.
The report prepared by the Department of Families addressing	40
the question of bail, relied on at the sentencing proceedings,
indicated that since the applicant was placed on the
conditional bail program, her behaviour had improved and she
was maturing and becoming more responsible. She has developed
a number of skills, including budgeting, cooking and health	50
and personal hygiene and has learnt how to link into community
support agencies, including the Townsville Aboriginal Health Service Women's Centre, Centrelink and Youth Housing. These skills were particularly important because the applicant was pregnant at that time. She has since given birth to a little	60
boy. During the bail program she also took part in a sewing
program, making clothes for children in East Timor, until her
doctor ordered that she stop. It seems that she made
remarkable progress whilst on bail and refrained from illegal	10
substance abuse, including paint sniffing, and was strongly motivated by the birth of her child to keep out of trouble. She did not reoffend, after being released from custody on the
31st of October 2002, prior to her sentence.
20
The applicant's offending behaviour was extremely serious. It
resulted in over $34,000 of property remaining unrecovered or
damaged. She had no prospect of making restitution. The
burglary offences related to private homes, which the
applicant broke and entered with other youths, and included	30
assorted acts of vandalism, some of which were personally
perpetrated by the applicant. The offence of assault
occasioning bodily harm was also concerning. The complainant
was a worker in a Townsville store. When the applicant went
to leave the store another employer asked to look under her	40
jumper, believing she had some store property concealed. The
applicant became angry and then confronted the complainant,
who was not involved in the confrontation with the applicant. She pushed the complainant in the chest and struck her in the face with a clenched fist. The complainant suffered a split	50
lip, sore jaw and neck. The applicant spent 61 days on remand
for these offences.
60
After the presentence report was presented to the Court in
June 2003, the applicant agreed to take part in community
conferencing with her victims before being sentenced.
Unfortunately, it seems that this community conferencing,
which was in its infancy in the Townsville area, was far from	10
successful. The large number of complainants, who were
understandably distressed, apparently frightened the
applicant, who then behaved inappropriately towards them. Two victims were so disgusted with her attitude that they left the conference. Unfortunately the applicant did not show the	20
maturity or remorse which would have assisted in mitigating the serious aspects of her offending.
Some sort of agreement was reached between the limited number
of complainants who attended the conference, in that the	30
participants agreed that the applicant would perform 200
hours' community service, preferably working in the human
services field, and that she undertake to be of good behaviour
for a period decided by the Court, but preferably the maximum
period. On questioning the officer from the Department of	40
Families, his Honour extracted information that suggested the
victims had not been informed of all relevant facts, including the applicant's previous history and that some of the offences had been committed whilst on bail.
A number of tendered victim impact statements graphically	50
demonstrated the traumatic effects of the applicant's
offending on the lives of the victims.
60
The presentence report noted the applicant's severely deprived
and dysfunctional family background and observed that three
factors contributed to her commission of these offences:
first, her relationship with her anti-social partner, C, and
his family; second, a compulsion to steal and, third,	10
volatile substance abuse. She has made progress in addressing
these factors. Much of her offending has been to please her boyfriend and his family by providing them with the proceeds of the offences and elements of domestic violence were present
in her relationship with C. Both he and his family are known	20
offenders. To manage and monitor the influence of C, the
child protection team had sought a child protection order on
her baby. It seems that at sentence she was still having
contact with the family, although C had recently been placed
in custody. Nevertheless, the report noted that the applicant	30
had been motivated to develop her independence and to ensure
the safety of her child. She demonstrated an ability to
budget and plan for the birth of her child and seemed to have
addressed her compulsion to steal. She has not abused
substances since she realised she was pregnant. She accepted	40
the blame and her responsibility for the commission of these
offences, which the report noted was an improvement on her
original attitude, namely that it was funny to break into
people's houses. She said that having met someone whose home
was burgled she now realised the impact on home owners of such	50
offences. The author of the report considered that probation
was a realistic sentencing option especially when coupled with
conditions of the kind later imposed by his Honour. A
community service order could be served in an agency where the
60
applicant could take her baby son. If a detention order were
imposed it would be served at the Brisbane Youth Detention
Centre where the applicant would have access to programs
designed to develop her personal, employment and social skills
and it may be possible for her to take her infant into the	10
centre. A period in detention would, however, be detrimental to the good progress she had made notwithstanding the gravity of her offending. The report noted that:
1994, 9 June 1995 and R v B [2003] QCA 24; CA No 408 of 2002,	40
7 February 2003.
In all but the matter of B, the children involved, who had
convictions recorded set aside by this Court, were much
younger than this applicant and that was a significant reason	50
in this Court's determination. In B, the learned sentencing whether or not to record a conviction. In exercising that discretion for the first time this Court determined that a conviction should not be imposed there. It should also be noted that in B the applicant attended the police station with his mother and admitted his liability for his offending before being contacted by police.	60
10
The applicant has particularly emphasised the case of R v B.
But that case too can properly be distinguished by B's age at
the time, 13 compared to 15½ here. Additionally, B was
sentenced for 11 offences whereas this offender has been
sentenced for 34 offences. B's offences were committed over	20
three days just after being placed on probation. Here, the
offences occurred over a three-month period. Whilst this
offender had only been placed on probation at the beginning of
the three-month period of offending, she continued to offend
for that extended period and committed many of the offences	30
whilst on bail. For these reasons this case is quite different to that of B.
None of the cases to which we have been referred demonstrate
that the learned primary Judge erred here in determining that	40
a conviction should be recorded because the offences were
committed whilst on probation and many of them whilst on bail.
It is also relevant that the applicant was 15 and a half at
the time of the spate of her serious offending. In these
circumstances it cannot be said that the learned primary Judge	50
erred in exercising his discretion to record convictions even
though another Judge may not necessarily have reached the same
conclusion.
60
The applicant also relies on the provisions contained in ss 4,
109 and 165 of the Juvenile Justice Act 1992 (Qld) as they
were at the time of the sentence. Those provisions are now contained in Schedule 1 para 17 and ss 150(2)(b) and 208 of the Act in its present form. They emphasise the juvenile	10
justice sentencing principle that a Court should only make
detention orders against a child as a last resort. Detention
includes detention by way of an immediate release order and it
is clear that a penalty involving detention by way of an
immediate release order can only be imposed after considering	20
all other available sentences and taking into account the
desirability of not holding a child in detention and that no
other sentence is appropriate in the circumstances of the
case, (see R v F & P CA No 114 of 1997, 2 May 1997 and R v C &
M [2001] QdR 636), a principle also followed in R v B, cited	30
earlier. The fact remains that the purpose of a conditional
release order is to provide a final option to detaining a
child where detention is the only appropriate sentence: see s
219 of the current Act and s 175 of the Act at the time of
sentence.	40
The presentence report recognised that an immediate release
order was a final option to a detention order and that one of its benefits was that it was highly intensive and structured; something which could only benefit the applicant with her	50
unfortunate history. The author of the report was merely
concerned that such an order could only remain in place for
three months, whilst this applicant needed long-term
supervision and assistance. The combination of orders imposed
60
here by the Judge meant that the immediate release order,
coupled with a probation order for two years, gave the
applicant the benefit and control of the extended period of supervision. It was an appropriate sentence. Importantly, his Honour did not impose the immediate release order without	10
turning his mind as to whether detention was the only
appropriate penalty in the circumstances. He decided that it
was. In doing so he complied with the spirit of the
principles of juvenile justice set out in the Act and did so
only after considering all the alternative sentencing options.	20
I am not persuaded that he erred in any way. He was entitled
to conclude a detention order to be served by an immediate
release order was the most lenient penalty he could impose,
taking into account the extent of the offending, the
seriousness of the offences, the age of the offender and the	30
fact that the offences were committed whilst she was on
probation and many of them whilst she was on bail. Although
the combination of penalties was a significant punishment for
a 16 year old single mother with the applicant's background
and a lighter overall penalty perhaps could have been imposed,	40
I am not persuaded that the total sentence was manifestly
excessive or that the learned sentencing Judge erred in any
way in determining that detention by way of an immediate
release order was the only appropriate penalty, when coupled
also with the probation and community service in respect of	50
the offences not committed whilst she was on bail.
appeal against sentence. WILLIAMS JA: Whilst I agree with all that's been said by the
It follows that I would refuse the application for leave to own for arriving at that conclusion.	60
10
As has already been noted, the applicant was dealt with in the
Children's Court on the 12th of June 2002 for an offence of
entering premises and committing an indictable offence,
committed on the 31st of May 2002. She next appeared in the
Townsville Children's Court on the 26th of June 2002 and was	20
dealt with for offences of attempting to enter a dwelling house, and receiving property, offences committed on the 14th of June 2002.
It is not clear when the applicant was apprehended with	30
respect to those offences dealt with in the Court on the 26th of June 2002, but in my view it is of great significance that one of the offences with which the Court is now concerned was committed on the 24th of June 2002, and that offence involved entering a dwelling house and stealing a large quantity of	40
jewellery. In all, property valued at over $17,000 was taken
on that occasion. Some $9,910 in value of the property has
been recovered, leaving $8,305 outstanding. Then on the 28th
of June, some two days after she was dealt with in the Court,
another offence was committed of entering a dwelling house,	50
and again removing a substantial quantity of property. The
material indicates that $3,300 worth of property taken on that
occasion is still outstanding.
60
Those are two of the offences with which the Court is now
concerned. In all, between 3 June 2002 and 30 August 2002, 33
offences of dishonesty were committed, and one offence of
assault occasioning bodily harm. The break-up is 19 counts of
burglary and stealing, one count of burglary by breaking in	10
company with property damage, one count of burglary by
breaking in company, 10 of receiving, and two of stealing. In
all, property valued at $34,000 remains outstanding, and a
compensation order was sought in that sum. That was nowhere
near the total amount of property taken by the applicant in	20
the commission of the 33 offences of dishonesty.
Given all of that, in my view, the learned sentencing Judge
was quite justified in concluding that a probation order was
entirely inappropriate, and that the only way of dealing with	30
the applicant was by the imposition of a detention order coupled with an immediate release order. The sentencing remarks, in my view, addressed all the relevant considerations
required to be taken into account by the Juvenile Justice
legislation.	40
In my view, it was also appropriate, given the vast amount of
money involved, the serious nature of the offences, and the
regular offending, to impose convictions with respect to the
charges. In my view, the decision of this Court in R v B	50
[2003] QCA 24 can be readily distinguished. There the
offender was much younger, and the offences were committed
over a much shorter period of time. I agree that, in the
circumstances, the application should be refused.
60
MACKENZIE J: I agree with what has been said by the President
and by Justice Williams. The learned sentencing Judge had to
fashion a sentence that had due regard to the principles of
juvenile justice. In my view, it was open to him to conclude	10
that a detention order in respect of the offences committed
while on bail, with immediate release, and the intensive
treatment of the offender that would ensue from that was an
option that was clearly open to him. He could, in other
words, decide that that was the only course reasonably open.	20
The overall sentence was clearly designed to get the best
possible chance of rehabilitation to the applicant, having
regard to her most unfortunate antecedents. I therefore agree
with the orders proposed.	30
THE PRESIDENT: The appeal - application for leave to appeal against sentence is refused.

"Alternatively, a sentence to detention may be suspended	20
in favour of an immediate release order (IRO) for up to three months…
Such an order is highly intensive and structured and would provide [the applicant] with an opportunity to remain in the community and to provide a positive

Mrs McGinness, in her very thorough argument, has referred us contribution. However given the short time frame, i.e. a sentence to probation could offer." 30

to a number of cases. R v R & K [2000] QCA 490; CA Nos 198
and 199 of 2002, 28 November 2000; R v H [2000] QCA 196; CA No
51 of 2000, 25 May 2000; R v B [1995] QCA 231; CA No 551 of

-----	40
50
60