R v Peterson

[1994] QCA 387

IN THE COURT OF APPEAL [1994] QCA 387

SUPREME COURT OF QUEENSLAND

C.A. No. 197 of 1994

Brisbane

[R v. Peterson]

T H E Q U E E N

v.

ROBERT LEE PETERSON

(Applicant)

Fitzgerald P McPherson JA Ambrose J

Judgment delivered : 05/10/1994
Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL GRANTED. THE APPEAL AGAINST THE SENTENCES IMPOSED IS ALLOWED AND IN LIEU THEREOF, IN RESPECT OF EACH OFFENCE COMMITTED AS AN ADULT UPON WHICH A CONVICTION WAS RECORDED, A SENTENCE OF IMPRISONMENT IS IMPOSED TO HAVE EFFECT FROM THE DATE OF CONVICTION ON 3 MAY 1994, TO THE DAY AFTER THE

M AKING OF THIS ORDER.

IN ADDITION WITH HIS CONSENT, A PROBATION ORDER HAVING EFFECT FROM 3 MAY 1994 IS MADE REQUIRING THE APPELLANT TO BE UNDER THE SUPERVISION OF A COMMUNITY CORRECTION OFFICER FOR A PERIOD OF

T HREE YEARS UPON THE USUAL TERMS OF A PROBATION ORDER.

A CONDITION OF THE PROBATION ORDER IS THAT THE APPELLANT WILL RECEIVE SUCH MEDICAL PSYCHOLOGICAL AND PSYCHIATRIC EXAMINATION, TREATMENT, COUNSELLING AND ADVICE AS MAY REASONABLY BE REQUIRED BY HIS COMMUNITY CORRECTIONAL OFFICER FOR HIS ADDICTION TO, OR HABIT OF TAKING DANGEROUS DRUGS AND ALCOHOL.

CATCHWORDS: CRIMINAL LAW - Appeal against custodial sentences - Substantial criminal history as a minor - Pleaded guilty in Magistrates Court to offences - Applicant is still young and has never had the advantage of a probation order entailing regular counselling.

Counsel:  D. Rangiah for the Applicant

L. Clare for the Respondent

Solicitors:  Boystown Legal Service for the Applicant

Director of Prosecutions for the Respondent

Hearing Date:  5 August 1994

REASONS FOR JUDGMENT OF THE COURT

Judgment delivered : 05/10/1994
This is an application for leave to appeal against six custodial sentences imposed on 3 May 1994.

The applicant was born on 27 January 1977.
On 3 May 1994 he pleaded guilty in the Magistrates Court at

Wynnum to eight offences. With respect to six of those offences he was sentenced to imprisonment for one year. On the first offence a conviction was recorded but no penalty imposed; on the eighth offence under the Traffic Act a penalty was imposed, against which leave to appeal is not sought.

Particulars of the offences in respect of which he was
sentenced are:
(1)Stealing on 21 November 1993 (i.e. at a time when he was 16

years of age) - a conviction recorded, no penalty imposed.

(2)On 26 March 1994, unlawful use of a motor vehicle - 12 months

imprisonment.

(3)On 12 April 1994, unlawful use of a motor vehicle, with the circumstance of aggravation that it was used for the purpose of facilitating the commission of an indictable offence - 12 months imprisonment.
(4)12 April 1994, break and enter a dwelling house - 12 months

imprisonment.

(5)12 April 1994, stealing a compact disc player, two watches

and a sum of money - 12 months imprisonment.

(6)Between 19 April 1994 and 22 April 1994, unlawful use of a motor vehicle without the consent of the person in lawful possession - imprisonment for 12 months.
(7)On 20 April 1994 - stealing petrol - sentenced to

imprisonment for 12 months.

(8)On 3 May 1994, the applicant was also convicted of an offence under the Traffic Act resulting in his disqualification from holding or obtaining a driving licence. There is no application for leave to appeal with respect to this punishment.

It is unnecessary to analyse with particularity the criminal history of the applicant at the time of his sentences. It suffices to say that all his criminal history related to offences committed while he was under the age of 17 years.
His criminal history between the ages of 12 and 16 years
shows that he was during this period convicted of:
7 unlawful use of motor vehicles;
9 break and enter offences;
5 stealing offences;
15 wilful damage offences;
2 dangerous driving offences;
2 assaults occasioning bodily harm and other assault offences
2 breaches of the Bail Act.
In 1991 he was put under care and control with 12 months strict
custody. In 1993 he was again put under care and control with
four months strict custody.

It is not entirely clear that convictions with respect to all those offences were recorded. It seems that the convictions which led to orders that he be held in strict custody were recorded. Although other convictions were referred to, it seems not all those to which reference was made were recorded. If not recorded of course, they were not admissible upon the applicant's conviction as an adult.

Under s.114 of the Juvenile Justice Act, a court is entitled, when imposing sentences upon the applicant as an adult, to have regard to his convictions for offences as a child which were recorded. For the purpose of this application it will be assumed that all convictions to which reference was made were considered upon sentence.

The applicant has been in custody in respect of the offences to which he pleaded guilty on 3 May 1994 from the date of conviction to the present time. In all, therefore, the applicant has been in custody for a little over three months.

When imposing the penalties against which the applicant seeks leave to appeal, the Magistrate said:

"The defendant has shown no remorse and his prior history shows a trend to be a recalcitrant recidivist who shows little or no intention of mending his ways. The offences he has committed are numerous and he has a lengthy history. In spite of his youth and the fact that imprisonment should be a last resort, I find that in this case a sentence of imprisonment is the only appropriate sentence."

It appears that the applicant was using dangerous drugs at the time of the offences to which he pleaded guilty.

On behalf of the applicant it is contended that the
sentencing discretion of the Magistrate miscarried in that he
failed to give sufficient attention to these matters -
(1)The applicant is still quite young.

(2)The applicant was a user of drugs at the time of the

commission of the offences.

(3)The applicant co-operated fully with investigating police

officers and made prompt admissions of guilt.

(4)The applicant entered early pleas of guilty - that is he pleaded guilty on the day he was apprehended in connection with the offences.
(5)The applicant has never been given an opportunity to take

advantage of a probation order.

(6)The offences to which he pleaded guilty were all committed
within a relatively short time of his attainment of his
majority on 27 January 1994.
While reference to the criminal history of the applicant at

the time of sentence supports the observation of the Magistrate that it showed "a trend to be a recalcitrant recidivist who shows little or no intention of mending his ways", the inescapable fact is that he has never had the advantage of a probation order entailing regular counselling with a view to dissuading him from a continuation of the anti-social behaviour which had resulted in his many recorded convictions between the ages of 12 and 17 years.

The applicant has spent a period of about 3 months in prison. It may be that his experience of prison life for a relatively short period is a factor which will assist in his rehabilitation to a lifestyle which will not include the anti-social behaviour which has produced such a bad criminal history in a child.
The Court takes the view that the applicant ought to have been offered probation after a relatively short term of imprisonment in the hope (if not in the expectation) that the counselling and other facilities available to him as a probationer might encourage or assist in his rehabilitation.
Of course, if having been granted probation the applicant breaches its terms, then he may be dealt with again and sentenced for the various offences to which he has pleaded guilty.

The application for leave to appeal is granted. The appeal against the sentences imposed is allowed and in lieu thereof, in respect of each offence committed as an adult upon which a conviction was recorded, a sentence of imprisonment is imposed to have effect from the date of conviction on 3 May 1994, to the day after the making of this order. In addition with his consent, a probation order having effect from 3 May 1994 is made requiring the appellant to be under the supervision of a community correction officer for a period of three years upon the usual terms of a probation order. The appellant is to report in person within 24 hours after release on probation to the community correctional officer at Brisbane. A further condition of the probation order is that the appellant will receive such medical psychological and psychiatric examination, treatment, counselling and advice as may reasonably be required by his community correctional officer for his addiction to, or habit of taking dangerous drugs and alcohol.