R v Schoolderman

[1992] QCA 241

COURT OF APPEAL [1992] QCA 241

MACROSSAN CJ McPHERSON JA PINCUS JA

CA No 146 of 1992

THE QUEEN

v.

JODY SCOTT SCHOOLDERMAN

(Appellant)

BRISBANE

..DATE 15/7/92

JUDGMENT

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THE CHIEF JUSTICE: The applicant, on 23 April 1992, pleaded

guilty to two charges. They were that on 6 January he broke

and entered a school house and stole some property there. The
property was valued at $140. The second charge was that on

the same clay he entered other school premises with intent and

broke out. Property was taken also from those second premises

valued apparently at $20. In respect of the first matter he
was fined $200 and ordered to make $140 restitution, and in
respect of the second matter he was again fined $200 and was

ordered to make $20 restitution.

The applicant has been involved in some other criminal

activity. The material which we have before us shows that on 8 January 1992 he broke into certain premises, a garage. The

material is not altogether clear. There may have been a breaking into two different premises. Two offences were

committed in the course of this activity on 8 January. He

broke, entered and stole. There were items stolen which were

in two separate ownerships. From one owner apparently there

were stolen two boogie boards and a wet suit, and from the second owner a surfboard. Then, a few days later, at some time between 10 and 13 January, he unlawfully used a motor

vehicle which was taken from a caryard. For those offences,
committed on 8 January and on a date between 10 and 13

January, he was dealt with on 24 January 1992, convicted and

placed on probation for 18 months.

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The matters that we are directly concerned with, and for which

the applicant was dealt with on 23 April, occurred on 6

January, that is before the other offences I have described in

respect of which he was dealt with on 24 January -i.e. earlier

than 23 April. The applicant is a 17 year old. He was in very

poor circumstances at the time of all of the four offences

which I have described. He was living in a refuge, and the

Magistrate, on 23 April, was told that the applicant had

committed the offences to obtain food to eat. He didn’t take

food but perhaps it was intended to convey that it was to

obtain property so that he could get food to eat. At the time

he was dealt with on 23 April he was back living with his

grandmother and seemed to have established himself, to some

extent at least, in his school and was taken back into school

life. It is not entirely certain that when he was dealt with

on 23 April 1992 the Magistrate then dealing with the matter
correctly understood or was clearly told the sequence of the
offences, but whether that is so or not we cannot be sure, and

perhaps indeed he did. In any event, he decided to deal with

the two offences before him in a way differently from the

earlier treatment where probation had been imposed. As I have
already said, he dealt with the matter by imposing fines in
each of the two cases before him and ordering that restitution

be made.

Having in mind the youth of the applicant and the particular

circumstances in which he was placed at the time he committed

his offences, and, importantly, the fact that they were

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committed, all four and maybe five, over the space of some few

days, perhaps no more than a week, this would seem to be a

case where the total course of conduct should have been viewed
as something rather like a single episode. I consider that,

in respect of the matters we are concerned with, the penalty

was inappropriate and excessive and that the appropriate way

to deal with the applicant would have been by making probation

orders. The orders for restitution should, of course, be

maintained as special conditions of those probation orders.

I would be disposed to grant the application and allow the

appeal in both cases, setting aside the orders made below and in lieu ordering that in each case the applicant be placed on

probation for a period which will expire 18 months from 24

January 1992 with a special condition, in the first of the two

offences, that he pay $140 by way of restitution, payable to

the Sheriff of this Court for transmission to the Minister for

Education, and on the second offence of 6 January, that he pay

$20 restitution to the Sheriff for transmission to the

Minister, the payments to be made in each case within three

months. I would record then that we are instructed that the
applicant has consented to the making of such orders. He is
already aware of what is involved since he has been already

placed on probation.

In each case, the probation orders will require the

probationer to report in person to the probation officer

appointed in his case within 24 hours of the date of the order

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now made on appeal. The further terms of the probation order

will be the standard ones referred to in s 199 of the Act.

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