R v Rizos

[1994] QCA 581

GEORGE RIZOS	Applicant
BRISBANE ..DATE 02/12/94

COURT OF APPEAL

[1994] QCA 581

DAVIES JA
McPHERSON JA

DOWSETT J

CA No 449 of 1994
THE QUEEN
v.

JUDGMENT leave to appeal against a sentence imposed under the Juvenile Justice Act in the District Court in Toowoomba in respect of a charge, to which he pleaded guilty, of riot with circumstances of aggravation. The events surrounding the offence occurred on 19 March 1994 at about 7.15 p.m. when what may be described in a neutral way as trouble began among a section of the boys at the Westbrook Detention Centre.

The misconduct developed to the point where damage was done to the building itself including the smashing of windows and the destruction of other property such as furniture and the starting of fires. The applicant was, at the time, in the remand section and he was heard banging on the door of his room calling out "Let me out, I want to blow something up".

Eventually the door to his room was opened and the applicant joined others in the institution who were misbehaving. The applicant was seen to be smashing windows, lights, other fittings, doors and parts of the plumbing. He was observed to be lighting fires and at one stage was seen to be dragging a lighted towel around the concrete floor inside the cell blocks.

He was also seen with an iron bar breaking glass in the dormitory and hitting the door and the roof. He struck an alarm box saying, "That takes care of the riot alarm". He was also seen in company with some seven others equipping

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themselves with steel rods from louvres and smashing windows, riot. It should be noted that the riot had started before the applicant was released from his cell, but the Crown Prosecutor at the sentencing proceedings submitted that the culpability of the offenders was in an ascending or descending scale of seriousness, in which the applicant fitted near the top of the second category, there being more serious categories above and below that class of offender.

lights, fittings, doors and plumbing within the area.

On the application, no challenge was made to any of the relevant facts of the offence, but the complaint is directed to the sentence which was imposed, which is said to be excessive. The sentence which the Judge imposed in this case on an occasion when a number of the participants in the riot were dealt with was, in respect of the applicant, detention for eight months with a recommendation for early release after serving 50 per cent of that sentence.

The contention of the applicant is that the sentence should be set aside entirely and that there should be an immediate release order coupled perhaps with probation, community service or the like. The applicant was 15 years old at the time of the offence and 16 at the date of sentencing. He had never previously been dealt with for an offence although he had committed a series of offences in respect of which he was on remand awaiting sentence.

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He in due course pleaded guilty to those charges and was sentenced for the offences on 22 March 1994. That appears from the applicant's criminal history and the record which shows that he was dealt with in the District Court at Brisbane for stealing, for wilful and unlawful destruction of property, making an explosive instrument, a further offence of wilful damage to property, entering a dwelling house with intent and then breaking out, and attempted arson. Without going in detail to those matters, the effective sentence in the case of those offences or one or more of them, was an order for detention for 18 months to commence on and from 4 October 1993, the result being that in effect the applicant received credit for his period on remand from the time when it began.

The result of that sentence was that the penalty imposed on him was or would have been worked off around about the beginning of July. He was then released, and brought back before the Court in October when the sentence now under consideration was imposed. The submissions on behalf of the applicant rely essentially on the proposition that the applicant was treated harshly having regard to his previous (as it was suggested) good record and the remorse he had shown and the behaviour which was evident in his conduct since sentencing.

These were personal factors which the Judge was entitled to take into account and which he, to some extent, did take into account in making the recommendation for parole after 50 per cent of the sentence had been served. That was the maximum

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that could have been given on that account having regard to
the provisions of section 188 of the Juvenile Justice Act.

It was scarcely possible for the applicant to have expected a lesser head sentence than that imposed having regard to the need for deterrence in relation to an offence like this. Offences committed in institutions, particularly those involving large scale riots and participation in them, would be very difficult to deal with if some condign form of deterrent was not available. The only form which it can take is an addition to sentence or, in this case, by adding a specific sentence to the period of remand.

It is also, in my opinion, not correct to treat this young man as an individual without previous offences simply because at the time at which the riot occurred, he was on remand and had not yet been sentenced for an offence for which he was later dealt with on his own plea of guilty. On the basis, therefore, of what has been put before us in regard to the sentence and its severity, as it is submitted, I would not interfere with the sentence that was imposed by the learned Judge below.

There are, however, two other matters to which our attention was called in the course of the hearing of the application in this Court.

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They arise from a report that was submitted by his Honour the sentencing Judge in the form of a supplementary report that is bound as part of the record without setting it out in detail. His Honour chose to advise in that supplementary report that the group of whom the applicant was one behaved very badly in Court on occasions when they were before his Honour for sentencing. In particular, he said that Rizos throughout was clearly the ringleader and provoked others to behave badly.

It was suggested that had his Honour been intending to take that into account in arriving at the proper sentence which he opposed, then he was bound in accordance with dictates of fairness or natural justice, to have informed counsel for the applicant then before the Court so as to enable him or her to make submissions on the accuracy of the Judge's observation or on the relevance of what he claimed to have seen. The decision relied on in that regard is Government Insurance Office v. Bailey (1992) 27 NSWLR 304. All that may very well be correct. It may also be that an instance like this is one that the Judge may use, not with the view to increasing sentence, but as a reason for not reducing it beyond a level which he might otherwise have chosen because of a perceived lack of remorse on the part of the applicant.

The difficulty the applicant faces in that regard in this Court is that there is really no evidence at all that the Judge took the matter into account that is mentioned in his

supplementary report. It is perhaps not quite clear why the

Court was favoured with such a report in this instance, but

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there is simply nothing to show that it unfairly influenced
the Judge's conclusion with respect to this applicant in a way
which it ought not to have done. The same is really true of
the other point that is made also in relation to the
supplementary report.

From that, it appears that the Judge was referred to the sentences which the applicant had received in March 1994 in respect of the offences to which he pleaded guilty and was sentenced at that time. His Honour then records in his supplementary report that he received some transcript of the six appearances before the relevant District Court Judge on that occasion, and he attaches copies of those transcripts to his report. There is again no reason to suppose that the transcript was used in arriving at the sentence imposed in this case. Indeed, the form of the supplementary report to my mind strongly suggests that the Judge did not see that transcript until after he had imposed the sentence with respect to which leave to appeal is now sought. In any event, it is not clear that it played any part in the determination of the sentence now appealed against.

I should, for my part, add that I am by no means persuaded that for a Judge to look at the transcript of sentencing or sentencing remarks that arose from a previous sentence to which he is referred in the course of imposing a current sentence is improper. But that is not a question that the Court need decide on this occasion, and I would defer its consideration to some future occasion.

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In all the circumstances, I can see no basis for interfering with the sentence in this case. It was not inappropriate as a head sentence for the serious offence that was involved. It was necessary in my view as a deterrent. The Judge took into account the personal considerations in relation to the applicant that have been pressed before us, and he arrived at a conclusion which, to my mind, seems appropriate for the occasion. I would refuse the application for leave to appeal.

DAVIES JA: I agree.

DOWSETT J: I also agree.

McPHERSON JA: The application for leave to appeal is dismissed.

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