R v Simmons

[1992] QCA 36

COURT OF APPEAL [1992] QCA 036

PINCUS JA
McPHERSON JA

THOMAS J

CA NO. 348 OF 1991

THE QUEEN

v.

DAVID PATRICK SIMMONS	Applicant
BRISBANE
... DATE 25/2/92

JUDGMENT
PINCUS JA: My brother Thomas will deliver the first judgment.

THOMAS J: The applicant was convicted of breaking, entering and stealing in the Magistrates Court at Wynnum on 16 December 1991. The breaking and entering occurred in a chemist's shop in that district. He was sentenced to two years' imprisonment with a recommendation that he be considered for parole after nine months. In addition he was required to serve a further month's imprisonment if he failed to make restitution of $840.

It follows that the effect of minimum custodial sentence imposed, in practical terms, would be ten months having regard to the fact that he would be in custody during the period when restitution had to be made.

The stealing involved a quantity of drugs. They were found in the bedroom of the applicant and the bedroom of a co-accused and a substantial quantity was found through a manhole in the ceiling area of the flat which they occupied.

At the time of sentencing the applicant was 18 years old, having been born on 9 March 1973. He pleaded guilty at the first opportunity. He was affected by alcohol at the time of the offence. He had experienced a particularly difficult upbringing. He had lived in a boys' home substantially since the age of 12 and had no family support.

Unfortunately the criminal record disclosed in the material shows a lawless life from about age 13.

It commenced with a recorded conviction of assault, robbery and theft in 1986 when he was aged 13 to about 15 when he was generally given into the charge of the Community Welfare Department with respect to a succession of offences; during age 16 to 17 he was generally placed in youth training institutions for offences which he apparently continued to commit. Having reached the age of 17 he was dealt with in a Court on 30 July 1990 on charges of burglary and theft. On that occasion he was sentenced to nine months' imprisonment but the sentence was suspended under Victorian legislation. Accordingly a custodial sentence was not in fact served.

The Crown submits that the prevalence of the offence of which he was convicted had reached plague proportions and indeed the Magistrate so commented in his notes regarding the sentence. The Magistrate further commented that such offences were invariably committed by young men, that the applicant had a shocking criminal record for an 18 year old, that leniency because of youth was not warranted and that he would be better on parole than probation.

The critical question in the present case, to my mind, is whether the material shows that this young person has placed himself beyond the reasonable prospect of rehabilitation. Such a consideration persuaded the Court of Criminal Appeal in Grosser CA 298 of 1985, 28 November 1985, to set aside a relatively substantial custodial term and replace it with six months' imprisonment together with a probation order.

The circumstance that influence me in the present matter is that to all intents and purposes he did not commit an offence and was free of criminal activity for the period of 17 months prior to the present offence. It may also be noted that it was an isolated offence, that is to say not part of a series of depredations. It was committed under the influence of liquor, and the motivation of the young offenders was said to be to experiment with the drugs that they found in the chemist shop. It was not suggested that they were addicted to those particular drugs.

It would seem then that despite the unfortunate criminal history rehabilitation should not be regarded as out of the question for this particular applicant. He has never had the benefit of a probation order. It is true that he seems to have had something equivalent to a supervision order at ages 13 and 14, but I do not regard that as necessarily equivalent to the benefit of a probation order extended to an 18 year old.

The effect of the present sentence of two years with a minimum custodial component of 10 months in practice may very well shut the door on rehabilitation. To extend the chance of probation at this stage would in my view be regarded as the last chance to be extended to him. I have some difficulty in determining whether the appropriate option should be a probation order after six months' imprisonment or whether there should be a more generous reduction of the term by the provision of parole. We were informed that through recent developments parolees are now more strictly supervised and counselled then persons on probation. Be that as it may, the benefits of probation orders are well known to the Courts and I do not think that option inappropriate in the present case if some opportunity is to be given to the applicant.

Accordingly I would express my view that the sentence imposed was in the circumstances manifestly excessive because it failed to give sufficient consideration to the prospects of rehabilitation.

I would therefore be prepared to set aside and substitute a sentence of six months' imprisonment together with a probation order for three years, subject to receiving notification of the consent of the applicant. Subject to receiving such consent I would grant leave to appeal, allow the appeal and substitute the order that I have proposed.

PINCUS JA: I agree.

McPHERSON JA: I agree.

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