R v S

[1995] QCA 559

IN THE COURT OF APPEAL	[1995] QCA 559
SUPREME COURT OF QUEENSLAND	C.A. No. 400 of 1995
Brisbane
Before	Fitzgerald P. Davies J.A. McPherson J.A.
[R. v. S]

T H E Q U E E N

v.

S (Applicant)

FITZGERALD P.
DAVIES J.A.

MCPHERSON J.A.

Judgment delivered 13/12/1995

JOINT REASONS FOR JUDGMENT FITZGERALD P. AND DAVIES J.A., SEPARATE

REASONS OF MCPHERSON J.A. CONCURRING AS TO THE ORDER.

Application for leave to appeal against sentence refused.

CATCHWORDS:	CRIMINAL LAW - sentences - Childrens Court - unlawful use of a motor vehicle - dangerous driving - frequent offender - pre-sentence report
Counsel:	Ms D. Richards for the Applicant M. Byrne Q.C. for the Crown
Solicitors:	Legal Aid Office for the Applicant Queensland Director of Public Prosecutions for the Crown
Date(s) of Hearing:	5 December 1995

REASONS FOR JUDGMENT - FITZGERALD P. AND DAVIES J.A.

Judgment delivered 13/12/1995

This is an application for leave to appeal against sentences imposed in the Childrens Court on 7 September 1995 following the applicant’s conviction on 1 August 1995 on two counts of unlawful use of a motor vehicle and one count of dangerous driving. The applicant was born on 13 March 1979, and was aged 15 years when he committed the offences and 16 years when he was sentenced.

The applicant has an appalling history of offences for one so young. He commenced offending on 10 February 1992 when aged 12 years and since then has frequently offended and been given numerous opportunities. He has been admonished and discharged, placed in care and control, placed on probation, ordered to perform community service, sentenced to detention followed by immediate release orders, and required to serve periods of detention. He has escaped from detention on numerous occasions. Many of his offences involve dishonesty, including breaking and entering, stealing, receiving and, on 28 occasions, unlawful use of motor vehicles. At the time of the present offences, he was on probation and an escapee from detention for other offences of unlawful use of motor vehicles.

On 20 or 21 September 1994 he escaped from detention and almost immediately took a car from outside a suburban residence. When the car was recovered, it had sustained damage of approximately $7,000. That was the first offence for which the applicant was sentenced on 7 September 1995, when he was sentenced to detention for 12 months.

After the applicant was apprehended following his escape from detention on 20 or 21 September 1994, he escaped again on 24 October. He was again apprehended and, on 27 October, he was dealt with for his latest escape and another charge of unlawful use of a motor vehicle.

Subsequently, he again escaped and, on 22 February 1995, took a motor vehicle from outside the workplace of its owner. He was seen by police who attempted to intercept him, leading to a chase throughout suburban Brisbane at about 1.30 p.m. on a Wednesday afternoon. The applicant drove through red traffic lights, at speed, narrowly avoided other vehicles, accelerated to up to 120 kph whilst driving past a primary school and a shopping centre, overtook other vehicles, drove into on-coming lanes, and swerved through traffic. Ultimately, there was a collision, causing damage of about $485. The applicant was apprehended because his vehicle could not be driven any further. On the charge of unlawful use of a motor vehicle and dangerous driving related to that incident, the applicant was sentenced to a further period of 18 months’ detention, concurrent with the period of detention imposed for the earlier offence.

Quite obviously, no complaint could be made of the sentences imposed upon the applicant if matters stopped there. However, on about 24 March 1995, the applicant’s periods of detention ended and he was released on bail in respect of the offences to which the present sentences relate. The applicant’s submissions were that he had made fundamental changes to his life in the period between his release on bail and his sentence for these offences, including leaving the area where he previously lived and his old associates and moving to a new suburb with his mother and step-father, gaining employment and impressing his employers, and abiding by his bail conditions. Reliance was placed upon a pre-sentence report obtained from the Department of Family Services and Aboriginal and Islander Affairs dated 18 August 1995 and an addendum dated 6 September 1995, which indicated that the applicant has a realistic appreciation of the seriousness of his behaviour and of the risk that he would re-offend accompanied by a strong determination not to do so. The report suggested that his offending had been extremely impulsive and possibly related to emotional crises in his life or in his family, and that he had a strong desire not to return to detention because of his past experiences there. Sentencing options put forward by the Family Services Officer included probation, community service or detention, with the option of an immediate release order. The report dated 6 September 1995 includes the following two paragraphs:

“I have ... been informed by S’s former Family Services Officer, that his compliance with probation and community service was poor, with irregular reporting, and he frequently reoffended soon after community based orders were made. During his last Fixed Release Order, (that is, the non-custodial period of a Detention Order,) his reporting was excellent.

The fact that S has not reoffended since February 1995, although he has certainly had the opportunity to do so, is some practical indication that his life has taken a new, law-abiding direction, given his previous frequent offending patterns.”

Understandably, much reliance was placed upon these statements by counsel for the applicant, and it was submitted that the sentencing judge had failed to take any or any proper account of the evidence in the applicant’s favour or the relevant provisions of the Juvenile Justice Act 1992. It was submitted that an appropriate order would have been a sentence of six months’ detention with an immediate release order.

However, a perusal of the sentencing judge’s remarks does not indicate that his Honour overlooked any of the matters to which the applicant referred, but suggests that, rather, he formed a less favourable view of the applicant and his reformation than the Family Services Officer. His Honour took account of the applicant’s history of offending, the circumstance that the offences were committed while he was unlawfully absent from detention and the very serious dangerous driving. Once his Honour declined to act on the optimistic opinion of the Family Services Officer, as he was entitled to do, the sentences which he imposed were well within the range of a proper exercise of his sentencing discretion.

Accordingly, in our opinion, it cannot be said that there is a discernible error in the sentencing judge’s approach or that the sentences are manifestly excessive. The application should be refused.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 13th day of December 1995

I agree. The only substantial question for decision on appeal is whether the learned sentencing judge is shown to have been wrong in his conclusion that the applicant had not yet firmly set himself on the path of reform.

In my opinion, it is not possible to say on the material before us that the conclusion reached by his Honour was not a reasonable or permissible one. The applicant had a record of systematic offending over a long period. The dangerous driving with which he was charged on this occasion involved an obvious risk of severe injury to innocent members of the public, and represented an escalation in the kind and seriousness of offences he was previously disposed to commit. It followed not long after a specific warning had been given to him in the Children's Court on the last occasion when he was before that Court in late July 1994 of the consequences that were likely to follow if he re-offended.

The fact that in the period before being sentenced on this occasion he had refrained from committing further offences is no doubt to his credit; but, as the learned judge plainly considered, it was capable of being explained as a response to the prospect of his coming before the Court to be sentenced again. In view of his past disobedience to the conditions of earlier rehabilitative forms of treatment it was not a reliable assurance of future good behaviour on his part.

One does not like to see an adolescent condemned to detention, particularly where, as in this instance, there are indications that he is a capable and intelligent youth. But there is reason to suppose that the opportunities which are said to be available to him will survive the period of his detention. His stepfather is prepared to employ him as an apprentice in the building industry. If the applicant's efforts at reform are genuine he will on his release justify the confidence that others say they have in him. In the meantime the community is entitled to some better protection from his criminal activities than his bare assurance that he has no intention of re-offending.

The application for leave to appal should be dismissed.