R v P

[1996] QCA 317

IN THE COURT OF APPEAL [1996] QCA 317

SUPREME COURT OF QUEENSLAND	C.A. No. 234 of 1996
Brisbane [R v. P]

T H E Q U E E N

v.

P

(Applicant)

Thomas J
De Jersey J

Dowsett J

Judgment delivered 30 August 1996

Joint judgment of Thomas J and de Jersey J, Dowsett J dissenting

APPEAL AGAINST SENTENCE ALLOWED. ORDERED THAT THE APPLICANT BE

RELEASED AFTER SERVING FIFTY PERCENT OF THE DETENTION.

CATCHWORDS:	CRIMINAL LAW - Sentence - Applicant sentenced to detention for six months for two counts of arson of school buildings - Whether a custodial sentence ought to have been imposed.
Counsel:	Ms D Richards for the Applicant Mr T. Winn for the Respondent
Solicitors:	Legal Aid Office for the Applicant Director of Public Prosecutions for the Respondent

Hearing Date: 20 August 1996

JOINT JUDGMENT - THOMAS and de JERSEY JJ
Delivered the 30th day of August, 1996

We have had the advantage of reading the reasons for judgment of Mr Justice Dowsett. In our respectful view, it fell within the discretion of the learned judge to impose a sentence of 6 months detention for the counts of arson.

There were certainly powerful features favouring a non- custodial penalty: the applicant's youth, his lack of prior criminal convictions, that the incident was out of character, his apparent remorse, his disrupted home life, the good prospects of rehabilitation, and that he may well to some extent have acted under the influence of a slightly older youth with a criminal past.
But as the learned judge indicated, there were also powerful features the other way, especially the need to deter, as strongly as compassionately possible, the commission of arson at schools. In our view, the judge was right to identify that consideration particularly, as distinguishing the case from Aufai (C.A. No.50 of 1995). That case does not support the proposition that no juvenile offender without previous convictions may be sentenced to detention.

There has been much publicity given to the apparent prevalence of this offence at schools, and to the consequent disruption to the education of children, with sometimes massive losses financially and in terms of community effort. The sentencing judge is in a specially advantageous position, as President of the Children's Court, to discern trends in this area: it seems very often that it is children who commit these offences at schools. He said:-

"I have been concerned for some time about the incidents of what I call "school offences". These offences involved breaking into schools and committing acts of vandalism therein. The most common form of vandalism is wilful damage or destruction of property, including fire damage.

According to figures furnished by the Department of Education, the estimated loss to the department so far for the financial year 95/96 caused by school fires is $3M and the estimated loss for the same period for property damage other than fire damage is $2.7M, a total of $5.7M for the current year not yet ended. These figures speak for themselves. They need no elaboration. The loss so incurred is a drain on the public purse.
As a consequence of the damage done to the classrooms, the school principal was forced to rehouse about 100 students in other classrooms at considerable inconvenience. It seems to me that there is a limit to the community's tolerance of this class of offence.

In the light of experience gained in the Children's Court over the past two and three-quarter years, I am of opinion that school offences, both in seriousness and quantity, have reached an unacceptable limit. Unless sentences of general deterrence are imposed, it is unlikely that the tide can be turned back. But, truism or not, in the end each case must be decided on its own facts."

This court should give considerable weight to that view of the judge that there is a demonstrable, higher than usual need for general deterrence with relation to this particular species of offence.

The present matter falls close to the borderline where a custodial sentence for a juvenile with no previous convictions was called for. The mitigating circumstances were such as to call for consideration of every option that would make the imprisonment least injurious to the goal of rehabilitation.

Certainly six months' detention is not of itself a long

sentence.
The difference between a recommendation for release after serving fifty percent of the detention and the standard seventy percent service required by s.188(2) of the Juvenile Justice Act is in this case the difference between his being able to complete year 11 and his loss of that year. Perhaps the consequences of making such a recommendation were presented to this Court more starkly than they could have been to the learned sentencing judge. By the time of the appeal he had completed three months in custody (91 days) and we were specifically informed that he would be able to complete grade 11 at the same school if now released, but that he would not be able to do so if he needs to serve the statutory balance.
The factors which would justify such a recommendation in this case include that circumstance, along with the fact that he had gone back to school despite earlier disruption and had a genuine intention of completing grades 11 and 12, as well as a desire for tertiary education. Other relevant factors include the established interest of his father and others in providing proper supervision upon his release; better than average evidence of remorse; the absence of previous convictions despite a disrupted life; and the isolated nature of his criminal activity during enforced absence from a normally busy sporting routine because of an injury suffered at work.

The inclusion of a recommendation that he be released after serving fifty percent of his sentence would by no means be a minor adjustment in a case such as the present. It is a factor that justifies appellate intervention notwithstanding that we are in agreement with the determination of the learned sentencing judge on the principal question whether a custodial term was appropriate.

We would therefore allow the appeal and add to the sentence an order that the applicant be released from detention after serving fifty percent of the detention.

REASONS FOR JUDGMENT - DOWSETT J.

Judgment delivered 30/08/1996

This is an application for leave to appeal against sentence. The applicant was born on 11th April 1979. On 25th May 1996 he was convicted on his own plea of three counts of breaking and entering with intent, two counts of wilful destruction, two counts of arson and one count of wilful damage. On each of the arson counts he was sentenced to detention for a period of six months to be served concurrently and on the remaining counts, he was admitted to probation for a period of two years. Convictions were recorded in connection with the arson counts.

All of the offences arose out of one incident involving the applicant and another young person called Guilck who was some months older. On 2 December 1995 they broke into three demountable classrooms at the Algester Primary School, setting fire to two of the classrooms and otherwise causing damage to furniture, fittings and equipment. The two offenders had been drinking at a nearby bowls club and after leaving those premises, they went to the school and broke into the classrooms. The applicant asserted that he was acting under Guilck's influence, although there was some suggestion that the applicant had told another person, one Ramm, that he had played a rather more prominent role in events. In particular, the applicant denied having lit the fires, saying that Guilck lit each of them.

When Guilck was apprehended by the police, he initially denied involvement in the matter but subsequently admitted it and implicated the applicant. The police approached the applicant, and he also admitted his involvement. The learned sentencing judge did not find it necessary to resolve the question of the respective roles of the two offenders, proceeding upon the basis that, "...each aided the other. The one complimented the other. You did it together." The cost of restoration of the damage was $122,801.00. There was a further loss attributable to damaged equipment totalling about $10,000.00.

The applicant comes from a broken home. He lives with his father, having been rejected by his mother. He left school at the end of grade 10 to take up an apprenticeship. He lost his apprenticeship as a result of a football injury. At the time of the offences, he was working at Woolworths, and it was there that he met Guilck. Prior to his being sentenced, he had returned to school and was hopeful of completing years 11 and 12. It is said that he demonstrated remorse by apologising to the principal of the school when he was taken there by the police in the course of their investigation. He has been very active in football activities and has performed community work in connection with his football club. He is anxious to undertake tertiary studies. He has no criminal history. He has spent 91 days in custody pursuant to the order. Psychiatric and Family Services' reports support the assertion that he is remorseful, that his misconduct was out of character and that he has prospects of rehabilitation.

The application for leave to appeal relates only to the sentences imposed in respect of the arson counts. In effect, it is submitted that a non-custodial sentence ought to have been passed in respect of each of those counts. In fixing the sentences, the learned sentencing judge referred to the decision of this Court in R v Aufai (C.A. No. 50 of 1995 - judgment delivered 6th June 1995). In that case, the Court considered an application for leave to appeal against sentence by a 16 year old youth of Samoan descent who had been convicted of arson with an associated conviction for breaking and entering with intent. The offences had been committed in company with an older person, but Aufai was the principal offender. He had been sentenced to 18 months detention with an order for release after serving one half of that term in respect of each of the offences of which he was convicted.

Aufai had been employed at a factory at which packaging was manufactured. During the week before the commission of the offences, he told a number of his co-employees that he intended to burn down the factory and persuaded some of his friends to join him in the enterprise. On the night in question, he and other co-offenders broke and entered the factory, spread paint thinner about it and lit the fire. The fire caused damage estimated at $73,000.00 before it was extinguished by shift workers employed in a nearby factory. Had the factory been destroyed, the damage might have been as much as $5 million. When interviewed by the police, Aufai made admissions and said that he had done it because he did not like the way his employer ran the staff. He admitted that it was his idea to burn down the factory. At p.3 the Court said:-

"There can be no doubt that arson may be a very serious offence. It carries a maximum term of life imprisonment, or in the case of a person of Aufai's age, 10 years detention. But at least where it does not involve a serious risk to human life, sentences for it have rarely exceeded 3 to 4 years imprisonment, as a summary of cases which have come before this Court and Court of Criminal Appeal since 1980, tendered by Mr Hamlyn-Harris who appeared for Aufai, shows.

There was no serious risk to human life in the present case. Moreover although Aufai planned the offence, in the sense that he had formed that intention some time before he committed it, it does not have the characteristics of a sophisticated criminal operation. On the contrary he had nothing to gain from it, he told his co- workers of his intentions beforehand and he admitted his involvement to them afterwards. Although his act had serious economic consequences and was deliberate, his age and background provide some explanation for it."

(There follows an outline of Aufai's background, including a rather dislocated family life in New Zealand and Samoa.)

At p. 5, the Court continued:-

"Aufai's extreme youth and absence of any prior criminal history, the circumstances giving rise to the commission of his offence, his remorse and what appears to be very good prospects of rehabilitation are together, in our view, strong reasons for giving Aufai the benefit of a non-custodial sentence, having regard also to the seriousness of the offence, if such a sentence is consistent with the pattern of previous sentences."

At p. 7, the Court said:-

"The pattern of sentences which emerges from that schedule and those cases, in our view, supports the conclusion that, in the case of each of the applicants, the appropriate sentence should have been a non-custodial one. The Director of Prosecutions also produced schedules of sentences imposed at first instance upon 16 and 19 years old respectively for arson of a building. These were too few in number (none were produced for 17 or 18 years old), especially in respect of offenders who had no previous criminal history, to enable any safe inference to be drawn. Nevertheless there was nothing in them which requires a conclusion other than that expressed above."

In those circumstances, the Court set aside the sentence of detention and imposed a

period of probation.

In the present case the learned sentencing judge commenced his deliberations with a consideration of Aufai but then had regard to evidence establishing the prevalence of offences involving damage to schools. This evidence indicated that the estimated loss to the Department of Education for the financial year 1995-6 as at the date of sentence (15th April 1996) was $3 million attributable to damage by fire and $2.7 million attributable to other causes. His Honour said at p.30 of the record:-

"It seems to me that there is a limit to the community's tolerance of this class of offence. In the light of experience gained in the Children's Court over the past 2¾ years, I am of the opinion that school offences, both in seriousness and quantity, have reached an unacceptable limit. Unless sentences of general deterrence are imposed, it is unlikely that the tide can be turned back. But, truism or not, in the end each case must be decided on its own facts."

His Honour then sought to distinguish Aufai upon four bases namely:-
(1)That in the present case two fires were lit;

(2)That in the present case there was extensive wilful damage to property apart from fire

damage;

(3)The overall loss here was considerably more and the consequences more serious; and
(4)The prevalence of school offences.

These bases of distinction are not of uniform persuasiveness. The fact that in the present case, two fires were lit rather than one could be said to show a greater degree of determination than in Aufai's case. On the other hand, Aufai clearly acted in a far more premeditated way than did the present applicant. His intention to set fire to the factory was formed well in advance and he was the principal instigator. Further he enlisted others in his plan. In the present case, on any view of the evidence, the undertaking was on impulse, and it is at least possible that the applicant was not the principal instigator.

That there was extensive wilful damage to property apart from the fire damage is of only marginal relevance in view of the fact that such damage was the subject of other counts on the indictment. If the applicant is to be punished for such additional damage, that objective should be reflected in the sentences attributable to those other counts. As to the allegation that the overall loss in this case was considerably more and the consequences more serious, this was undoubtedly so in dollar terms, although the difference between $73,000.00 and $132,000.00 may be relatively insignificant where the question depending upon it is whether or not a custodial order should be made in respect of a young offender.

The true basis for distinction upon which reliance was placed by the learned sentencing judge was the perceived prevalence of so called "school offences". I do not cavil with his Honour's suggestion that offences against school property have become prevalent. In particular, arson directed at school buildings appears to be a depressingly common event. I also do not challenge the suggestion that the prevalence of such offences suggests the need for more stringent penalties where such offences are detected. However such prevalence does not mean that the sentencing court should disregard other considerations normally relevant to the sentencing process. The thrust of Aufai was that a young offender from an unsettled background with no previous convictions and apparently good prospects of rehabilitation may deserve another chance despite the relative seriousness of his offence although, of course, there will be occasions on which such an offender must be sentenced to detention. Whilst school offences, including school arson offences, may be more prevalent than offences of the kind with which the Court was concerned in Aufai, Aufai's criminal conduct was more serious than that of the present applicant, given his principal role, his clear determination to undertake this criminal misconduct, persevered in for some time, and his recruitment of others. Whilst more damage was done in the present case and there was damage other than fire damage, the extent of the damage was largely attributable to chance rather than to the degree of criminality of the conduct involved. It is difficult to see how the interests of justice are served by the present applicant's being treated more severely than was Aufai.

I find myself unable to accept the bases for distinguishing Aufai advanced by his Honour as appropriate in the circumstances. I consider that the learned sentencing judge attached too much significance to prevalence of school offences and too little weight to the antecedents of the applicant. In the case of a young offender, the prospects of rehabilitation must always weigh very heavily in the sentencing process. This applicant had returned to school prior to his being sentenced and had prospects of completing his secondary schooling. We are told that if he is released now, it is still possible that he can finish Grade 11 in the course of this year.

His Honour placed reliance upon a decision of the Western Australian Court of Criminal

Appeal in S (A Child) (1992) 60 A.Crim.R. 121 when the Court said at p.134:-
"It is accepted that, in general, juvenile offenders are treated differently from adult

offenders. As a general proposition the question of rehabilitation is the primary or dominant consideration in the approach to the sentencing of juveniles. In some cases, however, imprisonment at juvenile detention is appropriate.

The general approach was considered in detail in Yorkshire (unreported, Court of Criminal Appeal, WA, Library No 7169, 2 May 1988); and see Kalolo (unreported, Court of Criminal Appeal, WA, Library No 6215, 14 May 1986); and Koppen and Horrocks (unreported, Court of Criminal Appeal, WA, Malcolm CJ, Wallace and Wallwork JJ, Library No 8418, 1 March 1990).

While the courts have been reluctant to impose sentences of detention imprisonment on young offenders, particularly first offenders and especially juveniles, it must be recognised that in some cases no other alternative is appropriate.

There will also be cases where it will be appropriate for a juvenile to be sentenced to adult imprisonment, but they will be rare."

Although these observations are undoubtedly correct, they say nothing about when detention will be necessary. For my part, I doubt that prevalence of the offence alone will often justify detention in the case of a young first offender with prospects of rehabilitation.

It was suggested that we might interfere by way of a recommendation for release under s.188(2) of the Juvenile Justice Act. The attraction of this course is that if we were to order release after service of 50% of the period of detention (which would mean that the applicant would be released immediately) he could complete his grade 11 studies during the current school year. Although this approach would achieve the desirable outcome of releasing the applicant, it would not correct the error in sentencing principle which, in my view, is demonstrated by the lack of comparability between this sentence and that in Aufai. That approach would also look very much like "fine tuning", which is not the function of an appellate court.

In the circumstances, I consider that the sentencing process has miscarried in that his Honour allowed prevalence of the offence to operate so as to exclude from his consideration the possibility of a non-custodial sentence which was clearly indicated by the decision in Aufai. This case clearly called for a similar order. I would grant leave to appeal and allow the appeal to the extent of setting aside the orders in connection with the two arson counts, substituting therefor orders that in respect of each count the applicant be admitted to probation for a period of two years, subject to his consent being given in the usual way. I assume that there will be no difficulty in that respect, given that he has consented to probation orders in respect of other offences. I should add that the applicant also urged us to set aside the recording of convictions in connection with the arson counts. I consider that the seriousness of the offences renders this course inappropriate.