R v S & W

[1999] QCA 300

COURT OF APPEAL  99.300

99.301

McMURDO P
PINCUS JA
CULLINANE J

CA 159 of 1999
CA 160 of 1999

THE QUEEN

v

S AND WApplicants

TOWNSVILLE

..DATE 30/07/99

JUDGMENT

PINCUS JA:  These are applications by S and W for leave to appeal against sentence.  Each applicant was convicted of numerous offences, committed, in general, over a period of two months in November and December 1998, at a time when each of them was 15 years of age.

S was sentenced to six years detention, and an order was made that he be released after having served half of that period.  W had an immediate release order, and a conviction was recorded in relation to him.

As to S, the contention made on behalf of the applicant, is that his punishment should be reduced to a period of between two and four years.  If one reduced it, for example to three years, that would be a halving of the penalty which was imposed by the learned sentencing Judge.

The only complaint made with respect to the applicant W, was that, it was said, the primary Judge erred in the exercise of his discretion, in that he recorded a conviction and should not have done so, in view of W's past good record and his youth, and, it was said, his remorse.

I have said the offences were numerous.  In the case of S, there were 58 offences - in the case of W, 34,  some by the applicants jointly.

The offences are so numerous, indeed, that it is not practicable or necessary to give a complete account of them.  Nevertheless, some samples are useful.

What happened in essence was, there was a rampage of breaking into Cairns houses and looting them, together with offences relating to the use of motor vehicles and burning of material inside houses.  That is a generalisation, but the flavour of the matter may perhaps be captured by quoting some of what the Prosecutor told the Judge below.

This relates to one of the offences which was arson - a house was burnt down.  “When the prisoner S was interviewed, he told police he entered via the front window with W and another third person and the fourth person G was outside.  He told police he was looking for money.  He told police he set fire to a Barbie doll in the bedroom.  He told police subsequent to that clothes caught on fire and then the house.  They all decamped the house when the fire started.  He told police he had set the doll on fire for fun.  He threw the lit doll into the clothes as he thought he might get burnt from the doll being lit.  He told police he made no attempt to put the fire out and he went on to say - “The police officer asked, 'What happened after the fire started?' 'We just cruised.  We just left' and the police officer asked, 'So you were more worried about being burnt than putting the fire out?' 'Yeah'.”

W, I should add, said that he was not in the room when S lit the doll, but he did say that upon seeing the fire, he, W decamped from the place with the others, and as I have mentioned, the house burnt down.

In relation to another group of offences, counts 21 and 25, the Prosecutor said this:  “Some time overnight on Saturday [14 December] entry was gained by the screen door for the lounge room.  A wallet and car keys were stolen.  The people were home asleep when the prisoners broke in.  The vehicle was located at Manoora [that's a vehicle which had been taken].  It appeared the vehicle had been driven through a reserve, a parkland area and there was donuts and skid marks on the reserve and there was damage to the right-hand side of the vehicle and the stereo was missing.  The vehicle keys were not recovered.  Prisoner S told the police he went through the window, took the keys from where the people were sleeping, so he went into the bedroom to remove the keys...he stole a wallet that contained $40, took the car, drove around town before dumping it at Manoora.  The prisoner W told police he acted as a look out.  They pushed the motor vehicle down the driveway before starting it so as not to waken the complainants.  They drove to Murray Street and then gave it to a friend who trashed the vehicle.”

Another passage in the outline given by the Prosecutor below, which perhaps is worth mentioning, is in relation to counts 29 and 30 which involved both the applicants.  “This is Christmas Eve, Your Honour” said the Prosecutor.  “The complainant returned home on Christmas Eve to find a number of holes kicked through the fibro wall which was used to gain entry to the house.  The house had been searched, ransacked, Christmas presents had been unwrapped.  The property stolen included a set of car keys and jewellery, a drill.  The vehicle was later located in English Street at Manunda.”  I will leave out a passage there.  “Your Honour the prisoners absolutely spoilt Christmas for the children of that complainant - to arrive home and find Christmas presents unwrapped, items stolen and the vehicle missing.”

The last passage I will read relates to counts 42 to 44, again involving both applicants.  “The complainant was on holidays, he's at Creek Place at Bayview Heights.  That's where one of the vehicles was recovered.  A hole had been smashed in the window.  The sofa in the lounge room had raspberry topping poured all over it, a quantity of hats and the vehicle was stolen, which was parked in the carport.  Prisoner W told police he drove to the address in a stolen motor vehicle from the previous one.  He told police he later returned in the Magna, which is the complainant's car, to 10 Creek Place, which is just up the road, this is number 4 Creek Close, he returned to 10 Creek Close, as the Magna was low on fuel.”

Now, the offences which were committed, to set them out in a more formal way, were, in relation to S, 29 counts of housebreaking, eight of burglary, 13 offences of unlawful use of a motor vehicle, one of wilful damage, one of attempted arson, one of arson (that being the burning down of the house I have already mentioned) two of breaking, entering and stealing, one of attempted unlawful use of a motor vehicle, one of attempted burglary and one of unlawful entry to a motor vehicle, a total of 58 counts.

In relation to W, there are 18 offences of housebreaking, three of burglary, a total of 12 unlawful use of a motor vehicle, one of wilful damage, a total of 34 counts.

S had a significant criminal history, and W not.  As to S's criminal history, it is notable that at all times while these offences were being committed, he was on probation, having been sentenced to one year's probation on three separate occasions, and the period of one year covered this two month orgy of criminality.

The other matter which is worth mentioning in relation to both of them, is that the period of criminality which I have mentioned of two months, was interrupted, in a sense, by the authorities on a number of occasions.  On 3 December, a warrant was executed on a house which was occupied by both applicants, and property which had been stolen was recovered, and that was obviously a matter that must have come to their knowledge.  On 4 December, S was arrested.  On 23 December, he, S appeared in the Children's Court.  Now, he was remanded but bailed, and it will be recalled that it was on the following day, 24 December, that he committed the Christmas Eve offences, which seem to have been particularly heartless, at least in my view.

The attitude which S had to the offences while they were being committed, appears from two places in the record.  It was said by the man G, whom I mentioned, that he thought S had burnt the house down for fun, and that both the prisoners, S and W were always bragging about stealing, and it was said in the report relating to S - perhaps it is worthwhile reading the passage - 

“[S] states that he first became involved in offending because it seemed to be common within the social circles he moved in and it looked like fun.  He tried it and it was fun.  Initially, he offended to impress older boys and emulate them.  Gradually his offending escalated to the point where it became a competition with other offenders for status as well as material gain.  He was the leader of the pack and never a follower.  He got carried away and thought he wouldn't get caught.”

One may be pardoned the observation that he does not appear, despite his contacts with the law previously, to have had any apprehension about punishment.  That is, he does not seem to have been deterred, so far as one can tell from that observation, by the prospect that, being a person who had offended on many occasions in the past and being engaged in this outburst of repeated criminality over two months, he would ever be punished for these things.  Therefore the deterrence aspect does not seem to have worked with him at all, really.

The argument which was advanced on behalf of S with respect to these numerous offences, mainly consisting, as I have mentioned, of breaking into houses and stealing their contents, is that the case of Richards shows that the penalty imposed was excessive.  Richards is a case in which the judgment was given on 25 August 1995, CA No 188 of 1995.  It is enough, I think, to point out that since Richards was decided, the penalty has been substantially increased, that is, from seven years to 10 years.  It will be noted that the 10 year penalty is not actually the maximum.  It is possible to go higher if the court considers the offence to be a particularly heinous offence having regard to all the circumstances.  And the court in this case did not consider the offences to be particularly heinous, although one might wonder how heinous they would have to be.  There was a period of 10 years imprisonment which could have been imposed, and that which was imposed was six years only.

It is also notable that the learned primary Judge took the view that instead of imposing a sentence which would have led to a longer period of incarceration, he found that there were special circumstances justifying an order that the applicant be released after having served 50 per cent only.  Whether or not that is regarded as a generous view, it certainly was an order which substantially mitigated the effect of the penalty upon S.

The view which I take of the matter then is that this is a particularly bad outburst of criminal activity, seriously affecting numerous victims, some of whom have put in victim impact statements saying just what one would expect them to say about coming home and finding their house destroyed or ransacked; the argument that the Judge treated the applicant S too harshly seems to be essentially without substance.  The Prosecutor told the Judge below that it was not possible to determine how much was taken and destroyed by way of property, but the estimate given was some half a million dollars.  My view of the matter then is that the application by S should be refused. 

As to W, I have mentioned that the only complaint made about W is the conviction.  I agree that there is some substance in the applicant's contention that it is particularly important in the case of young people not to ruin their reputation early by recording a conviction if that is not absolutely necessary, and I have taken into account in favour of W that he was not as criminally involved as was S.  In particular, that relates to the offence of arson which I have mentioned.  Nevertheless, taking into account his previous good record and his age, the extent of the criminality, in my opinion, is simply too great to warrant the conclusion that the primary Judge erred in recording a conviction.  The only matter which seems to me to be necessary to deal with in relation to W is to make some reference to the fact that the Judge expressed the opinion that he should not be given credit for presentence custody. 

The order which I would therefore propose in relation to S is that the application for leave to appeal be refused. In relation to W I would express the view that the applicant W's entitlement to credit for presentence custody depends entirely upon the terms of section 174 of the Juvenile Justice Act 1992 and is unaffected by the remarks which the learned sentencing Judge made on that subject. Otherwise I would dismiss W's application.

THE PRESIDENT: I agree with the comments made by Mr Justice Pincus in regard to the applicant S, and with the orders he proposes. In respect of W I would only add this. The learned sentencing Judge did not specifically discuss the considerations set out in section 125 of the Juvenile Justice Act 1992 when recording the conviction against W. No doubt he had consideration to the fact that the applicant W had no prior convictions and that this was his first appearance before a Court. He was cooperative with the authorities. He was 15 years at the time he committed these offences. He had demonstrated some remorse and had some prospects of rehabilitation.

On the other hand, the offences to which he pleaded guilty were most serious and numerous.  W knew that S had been arrested and bailed during the period W was involved in the commission of these offences and still continued to offend with S during that period.  There was no particular submission put forward that the recording of a conviction would cause more than the normally expected consequences in W's case.

Bearing in mind all these factors, although another Judge may not have recorded a conviction in these circumstances, it cannot be said that the recording of a conviction was a miscarriage of the sentencing discretion.  Accordingly I agree with the orders proposed by Mr Justice Pincus in respect of W.

CULLINANE J:  I agree that in each case the application should be refused for the reasons which Mr Justice Pincus has given.

THE PRESIDENT:  The orders are the applications for leave to appeal in each case are refused.

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