R v P

[2003] QCA 485

SUPREME COURT OF QUEENSLAND

CITATION:	R v P [2003] QCA 485
PARTIES:	R v P (applicant)
FILE NO/S:	CA No 297 of 2003 DC No 2155 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING  COURT:	District Court at Brisbane
DELIVERED EX	4 November 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	4 November 2003
JUDGES:	McPherson and Williams JJA and Mullins 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 – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – JUVENILE OFFENDERS – RELEVANT PRINCIPLES – where applicant a juvenile convicted of stalking – where sentenced to two years probation with special conditions that he not have any contact with complainant and that he participate in assessment, counselling and treatment programs – where applicant suffers from mental illness which affects his behaviour – where no remorse shown – where risk of reoffending according to medical expert – whether applicant was sentenced for his condition and not the offence – whether sentence was motivated by protection of complainant – whether sentence imposed for purpose of rehabilitation of applicant
COUNSEL:	R D Green for the applicant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: The applicant pleaded guilty on 25 August 2003 to an offence of stalking with threatened violence. The constituting acts were committed between the 13th of June and the 1st of August 2001.

The applicant was sentenced to two years probation with special conditions that he not have any contact, direct or indirect, with the person the subject of the stalking and also that throughout the period of the probation order he participate in assessment, counselling and treatment programs as required.

The applicant was born on the 21st of August 1986 which means that he was just turning 15 when the offence was committed and aged 17 at the time of the sentence.

Relevantly the applicant was a student at a State High School and a participant in their special education unit. The complainant was a teacher at that unit.

The events in question appear to have been precipitated by the complainant reporting to police some misbehaviour of the applicant directed to another teacher. That resulted in the police speaking to the applicant and his being suspended from a pistol club.

Shortly after that, on the 15th of June 2001, the applicant approached the complainant at the school. He, in effect, detained her in her office, prevented her using the telephone and made threats to her to the extent that she was concerned for her own safety. Later on he returned and spat on the complainant's shoes.

His explanation for that incident was that he was motivated by her conduct in reporting him to the police resulting in his being suspended from the pistol club.

Other concerning acts were committed on the 25th of July 2001, 31st of July 2001 and 9th August 2001. On the first of those occasions the applicant jumped on to the complainant's car as she was driving out of the car park and walked across the bonnet. On the second occasion he made three abusive telephone calls to the complainant at work in the course of which he said, "You had better watch your back I'm going to get you." On the 9th of August there was a further telephone call in the course of which a threat to kill was made.

After those incidents the complainant complained to the police sentence was explained because the applicant had pleaded not guilty to the charges and the matter was listed for hearing. It was on the morning of the hearing that belatedly the applicant changed his plea to guilty in circumstances which do not indicate any remorse on his part or any understanding of the seriousness of the charge to which he pleaded guilty.

and there was some contact between the police and the
applicant. Thereafter the applicant again telephoned the
complainant on 13 August and threatened her. On the 20th of
August the applicant was unlawfully in the school grounds and
was escorted off them by other persons. A number of other
telephone calls were made. As a result of all that conduct
the complainant was fearful for herself and her daughter.

Of critical significance was a report from a clinical psychologist, Dr Tony Attwood, which was placed before the sentencing Judge. It disclosed that the applicant suffers from Aspergers syndrome which is a condition associated with a distinct profile of linguistic and cognitive skills and has a secondary mood disorder component.

Dr Attwood said that his primary concern with respect to the applicant was as to "future management and the risk of possible further offences." In Dr Attwood's view the applicant needed treatment and counselling and he was of the view that the applicant was "socially and emotionally immature with attitudes and behaviour that are of great concern."

He went on to say that the applicant requires access to a range of services due to the severity of the diagnosis and he also expressed the view that the applicant did not have the capacity for full independent living.

It was in that context that the learned sentencing Judge Court was that the applicant had not been sentenced for the offence that he had committed, but because of the disorder from which he suffered. Also it was said that the sentence was motivated by the sentencing Judge's desire to afford protection to the victim.

imposed probation for a period of two years, the maximum which
may be imposed under the Juvenile Justice Act and also
incorporated into the probation order the requirements for
treatment and not having any contact with the complainant.

On the latter aspect it is significant to note that in this Court counsel submitted that the position of the complainant could have been protected by the making of a restraining order, yet before the sentencing Judge it was specifically submitted by him that a restraining order was not appropriate.

The Juvenile Justice Act does make it clear that a child should be dealt with in a way which would give the child, "the opportunity to develop in responsible, beneficial and socially acceptable ways" and also highlights the importance of rehabilitation when dealing with a juvenile offender.

In my view those were the factors which affected the learned sentencing Judge's decision to make the penalty a two year probation order with the conditions which I have indicated.

In my view that was an appropriate penalty to impose and I am of the view that no basis has been established entitling this Court to interfere with that sentence.

In my view the application for leave to appeal against
sentence should be refused.
McPHERSON JA: I agree.

MULLINS J: I agree.

McPHERSON JA: The order is that the application is refused.

-----