R v S

[1996] QCA 361

[1996] QCA 361

COURT OF APPEAL

DAVIES JA
LEE J
FRYBERG J

CA No 306 of 1996

THE QUEEN

v.

S  Applicant

BRISBANE

DATE 13/09/96

JUDGMENT

DAVIES JA:  The applicant, who is 14 years of age, seeks leave to appeal against a sentence of 18 months detention imposed on him in the Children's Court, on 17 June this year for two offences, one of robbery in company on 25 August last year and one of attempted robbery in company on 21 October last year.

These offences do not, however, reflect the full extent of the criminal conduct of which the applicant was convicted and for which he was sentenced on that date.  It is convenient to set out that conduct in more or less chronological sequence.  Between June and October 1995 the applicant wilfully and unlawfully damaged property on 46 occasions.

Eleven of them were the subject of indictment, the others, the subject of a list lodged pursuant to section 189 of the Penalties and Sentences Act.  These were all or mostly for spraying of graffiti.  For these, as for all offences other than those I have already referred to of robbery in company and attempted armed robbery, he was sentenced to two years probation.

The offence on 25 August 1995 involved an attack with at least three other offenders at night on a 17-year-old male walking over a railway station footbridge to a car park.  The applicant initiated the took part in the violence, which included kicking the youth in the head when he was on the ground.  It was fortunate that in the course of this assault and robbery the victim was not seriously injured.

Then in August and September the applicant was involved in 10 breaking and entering offences, some also involving stealing and one also involving unlawful use of a motor vehicle taken from the garage of a house.  On 20 October, only a few days after he had been placed on three months probation for breach of bail and behaving in a disorderly manner, the applicant broke into 25 motor vehicles, causing damage to all of them and in some cases, he stole property from them.

On the following night, he committed the offence of attempted armed robbery in company.  He and another offender entered a shop with stockings over their heads, the other offender carrying a rifle, the applicant carrying a metal bar.  In the shop was the store owner, his wife, his 15-year-old daughter and his four-year-old son.

There was a scuffle during which the applicant struck the owner's head twice with the metal bar.  He and his co-offender then fled without completing the robbery.  The store owner was hospitalised overnight, with head lacerations and he had subsequent dizziness and the incident had adverse psychological effects on him and on other members of his family.

In the applicant's favour his only previous convictions were two for behaving in a disorderly manner and for breach of the Bail Act.  These were the offences for which he was sentenced on 12 October.  Also in his favour is his extreme youth and the fact that all the offences were committed over a relatively short period of time.  It should also be noted that he was co-operative with the police and pleaded guilty to all offences.  His pre-sentence report was also reasonably favourable.  He had been in custody for 239 days before sentence and it was noted that he had an alcohol problem for which he was receiving by then counselling and it appears that at least so far, he has been moderately successful in his rehabilitation course.

He has shown an interest in further education and passed some examinations and he has exhibited some talent as an artist.  There are no doubt a number of factors which have contributed to his criminal conduct.  I have mentioned his alcohol problem.  He is also apparently vulnerable to peer group influence and some of the boys in the group with which he associated were older than he was.

Nevertheless, I should say that he appears to have been a ringleader in the commission of a number of the offences in which he was involved.  His mother was apparently a major influence in his life and she died in 1993.  His father has been absent a great deal of the time.  The family is a Tongan family and he has spent some of his time in Tonga.

He is nevertheless supportive of the applicant, as also is the community of which he is part and his church.  It is not submitted by Mrs Richards who appeared on his behalf that it was inappropriate to order detention.  She did, however, submit that the period of detention ordered was too long and that an appropriate term would have been 12 months, with a recommendation for his release after serving 50 per cent of that term.

The consequence of the sentence imposed in this case without any recommendation is that he will be required to serve 70 per cent of the period for which he has been detained, which would include the 239 days already referred to.  As Mrs Richards conceded, the order which she submitted was the appropriate order would have seen his immediate release upon sentence by the learned sentencing Judge.

That may have had the disadvantage that the applicant would not have seen himself as being appropriately punished by a period of detention by the sentencing Judge.  One of the applicant's co-offenders in the offence of robbery in company with violence was sentenced to 12 months detention, to be released after serving 50 per cent of the sentence.

It was submitted that he was a little older than the applicant and that he had more previous convictions.  However, he was involved in fewer offences - substantially fewer offences, it appears, than the applicant and in particular in was not involved in the offence of attempted armed robbery which because of the circumstances I've already mentioned, in particular hitting the defenceless man over the head with an iron bar was it seems to me the most serious of the offences which were committed.

There is very little substance, in my view, in an argument that in order to achieve parity of sentencing the applicant should receive a sentence of the same duration as the other boy.  Indeed, it might be said that there may be a lack of parity if that were done.

Moreover, although it is true, as Mrs Richards as pointed out, that pursuant to section 109(2)(d) of the Juvenile Justice Act it would not be correct for this Court to impose a more severe sentence on this boy if we thought he lacked sufficient parental support - that is, more severe perhaps than one which would have been imposed on a boy who had that support - it is nevertheless not irrelevant to note that he appears to have progressed reasonably well under the presumably strict supervision of the detention which he has so far undergone.

In those circumstances I am not satisfied that the sentence imposed on the applicant was excessive, and I would refuse the application.  I should say further that there is no information before this Court as to what has happened with respect to the breach of probation which occurred as a result of the conviction and sentence for these offences, but I would not think it correct that the applicant here should incur any further additional penalty for that breach.

LEE J:  I agree.

FRYBERG J:  I also agree.

DAVIES JA:  The order is as I have indicated.