R v Smart

[1997] QCA 326

[1997] QCA 326

COURT OF APPEAL
PINCUS JA
SHEPHERDSON J

WHITE J

CA No 207 of 1997
THE QUEEN
v.

CHRISTOPHER BARRY SMART

BRISBANE
..DATE 06/08/97

JUDGMENT 1978, was convicted in the District Court at Brisbane, after a trial, of two offences of housebreaking and two of stealing. The primary judge sentenced the applicant on each of the break and entering counts to 12 months imprisonment and on each of the stealing counts to six months, all to be served concurrently.

The circumstances of the offences were, in outline, as follows. The applicant broke into a neighbour's house on two occasions; the first time he stole a bag, cash, computer games and remote controls for a video recorder and television; three days later he came back for a video recorder and television set. The applicant was convicted on fingerprint evidence. He gave evidence on oath giving an explanation for the fingerprints which the jury rejected and which the learned primary Judge thought highly improbable.

The criminal history of this applicant is as follows; he was, as I stated, born on 5 September 1978, so, he turned 18 on 5 September 1996, having committed the offences in question on 30 May 1996 and 3 June 1996 while he was 17 years of age. It appears from his criminal history that he was sentenced in the Magistrates Court in May 1996 in respect of two offences, possessing a dangerous drug and possessing a thing in connection with smoking a dangerous drug. The judge who heard the case the subject of the present application was told that the police found a pipe

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and a very small quantity of marijuana in the applicant's house and this brought about these charges which produced an order for probation for nine months and an order for community service for 70 hours. On the same occasion, it appears, the police found a keycard which the applicant claimed to have found at a football ground. There was a charge of stealing it is said, stealing by finding, no conviction was recorded and the applicant was given a bond.

It therefore appears that we have here a 17-year-old person who prior to the offences in question had committed only relatively minor offences; one relating to marijuana and the other relating to stealing in respect of which no conviction was recorded.

The primary judge during sentencing the applicant made these remarks among others:

"These were serious brazen offences. Significant property was stolen, somebody's house was violated on two occasions. of any restitution. No remorse has been demonstrated by this person, who has come along and told a cock and bull story that nobody would ever accept in the vain hope of overcoming insurmountable circumstantial evidence."

His Honour then went on to mention that the applicant was, at

the time the offences were committed, on probation and on
a good behaviour bond. He then imposed the sentences
which I have mentioned.

Mr Alcorn, who has appeared for the applicant today, has drawn
our attention to statements which were made to the

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primary judge concerning the background of the applicant.
Mr Alcorn informed us, of course, that he was 17 at the
time of the offences, and he was at the time when he was
sentenced, which was in May last, living with his father;
his parents had separated a few years before. An
incident which occurred when the applicant was an infant
had affected his life, that is that there was a fire in a
car the consequence of which an even younger person, the
applicant's brother, was killed and the applicant who was
at the time only three years old had been rescued. The
judge was informed that the applicant's mother had,
somewhat irrationally, accused the applicant of being
responsible for the death of the brother and this had
caused major strains in the relationship with the mother.
The subsequent history was that the performance of the
applicant deteriorated in high school, he having been an
average student at primary school; he got a job at

Woolworths and he lost this job, as Mr Alcorn says,

indirectly as a result of these charges.

The Crown represented by Mrs Clare has helpfully given us a schedule of break and enter offences which have come to the Court of Appeal. The general pattern of the schedule is such as to induce Mrs Clare to submit, as I understand her, in effect, that one would not expect the sentence for offences of this kind in these circumstances to exceed six months.

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The case upon which Mrs Clare particularly relied is a

decision of this Court in Cole v. Doolan (C.A. No. 205 of 1994, judgment delivered 22 August 1994). It is a decision given by a Court consisting of the Chief Justice, Justice Davies and Mr Justice Ambrose. The age of the offender in that case does not precisely appear but he was when he came before the Court of Appeal 18 years of age. Mr Justice Ambrose who gave the principal judgment explained, in effect, that the applicant had for a period of five years had substantial trouble with the law. He had been sentenced as a child to a period of strict custody and had served terms of probation and imprisonment with the longest sentence being nine months.

He was convicted of an offence of housebreaking in the Magistrates Court and he was sentenced to imprisonment for 12 months. On appeal that sentence was reduced to six months. On the face of it, the case does not appear to be closely comparable with the present as a breaking and entering sentence because the offender there had a much more substantial criminal history. On the other hand, it appears from the judgment of Mr Justice Ambrose that counsel for the offender there had been told on the morning of the hearing that his client had received psychiatric counselling for schizophrenia and had attended for the requisite treatment on a regular basis.

It would appear that that information assisted the Court

in reaching its decision.

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The other cases in the schedule, which Mrs Clare has been good

enough to give us, do not, as far as I can see, assist
the Crown any more than the case of Doolan does. There
has also been discussion during the course of the
argument of the schedule which was presented by the Crown

in Bainbridge

(1993) 74 A.Crim.R. 265, and Mrs Clare was good enough to tell Bainbridge still represents serious offences; those for armed robbery and armed robbery in company. Nevertheless, the schedule to be found there is of assistance as a useful comparison. The Court's judgment summarises the schedule presented in that case; I will, to some extent, paraphrase. The schedule collected sentences imposed between 1988 and 1992 upon 17 year old offenders for armed robbery or armed robbery in company. It showed that during that period 28 sentences were imposed on 17 year old offenders for offences of one or other of the kind mentioned. Fifteen of those sentences were non-custodial. Of the 13 us that as far as she knows
accurately enough the pattern of sentencing in the

non-custodial sentences imposed, 8 of them involved offenders

with relevant previous convictions. Thus of the 28
sentences imposed, only 5 involved a custodial term where
the offender had no relevant previous convictions. Of
those 5, 1 was of nine days and 2 were of six months, all
with substantial periods of probation.

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The schedule does indicate the general nature of the criminal

history in each case and it is notable that the criminal
history in a number of the cases is very substantial
indeed, whereas here it was relatively trivial. The
judge was plainly influenced by the circumstance that the
applicant had pleaded not guilty and put the community to
the expense of a trial. Not only that, but the applicant
had given evidence which the judge regarded, as I have

said, as of a highly plausible character.

Nevertheless, it seems to me clear that if one has regard to the sentencing information which has emanated from the offences, and with respect to the more serious offences of armed robbery and armed robbery in company, a sentence of 12 months is unusually high for a 17 year old offender (convicted of breaking and entering) who has never been to gaol before and whose previous criminal record is not very significant, as is the case here.

I keep in mind that the applicant had the problem with his

mother with relation to the death of his younger brother, to which I have referred, and I also keep in mind against him that, at the time he committed these offences, he had recently been before the Court, sentenced to probation
and also given a good behaviour bond in respect of the
keycard.

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Nevertheless, it appears to me that the sentence cannot stand.

It is, in my opinion, plainly beyond the proper range

for a 17 year old offender charged with first offences of breaking and entering of this character, not on any grand scale, but of what might be called an ordinary sort.

I would, therefore, grant the application, allow the appeal and reduce the sentence. It seems to me unnecessary to determine precisely what would have been an appropriate sentence had the matter come before the Court as a Court of first instance. In fact, the applicant has served a little more than three months. I would replace the sentence imposed below by a sentence expiring today and order that the applicant, subject to his consent, be placed on probation for a term of 18 months.

I also have in mind making an order in respect of counselling of this applicant because it seems to me that it could conceivably do this young man good. I would wish counsel appearing before us today to say something if, in fact, the view which I have expressed turns out to be the view of the Court.

SHEPHERDSON J: This applicant went twice to a neighbour's house four doors away - within a space of five days and on each occasion committed the offences of which he was found guilty by a jury. These were deliberate premeditated offences and within one month

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before they were committed the applicant had been before
Courts on two occasions.

On the first of these, 8 May 1996, he had been offered and taken probation and on the second, on 28 May 1996, he had been placed on a good behaviour bond. Both were non- custodial penalties. The first of the offences now before the Court was committed on 30 May. It was not surprising therefore that the learned District Court Judge should sentence the applicant to a term of imprisonment. The question is whether he erred in the exercise of his sentencing discretion in imposing the term of imprisonment which he did. The applicant has failed to satisfy me that there was any such error. Further, he has failed to satisfy me that the sentences imposed were manifestly excessive. The penalties imposed in my view adequately reflected the criminality of this applicant for which he was being punished.

I do not regard the terms of 12 months imprisonment for the breaking and entering offences and six months for the stealing offences as containing any element of punishment for breach of the probation order or the bond. I would refuse the application.

WHITE J: I agree with the orders proposed by the learned
presiding Judge for the reasons which he has expressed.

PINCUS JA: Now, Mrs Clare and Mr Alcorn, what should we say about counselling the Court is of the view that there

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should be some counselling as a condition of the order? you give us some assistance?
MRS CLARE: If I can just find the-----
PINCUS JA: This can be done under section 94 which allows us to require that he submit to medical, psychiatric or psychological treatment. Psychological treatment seems to encompass counselling.
MRS CLARE: Yes. That is so. In the general requirements of the probation order of course it is left to the discretion of the probation officer but-----
PINCUS JA: Yes. We wanted to make it something stronger. Is it sufficient that we order or that we recommend counselling in a general way; would that work?
MRS CLARE: It will stand as a recommendation. I do not know - I am sure it will be taken and considered more strongly than if it was simply left-----
PINCUS JA: Then if there were no such recommendation.
MRS CLARE: Yes.
PINCUS JA: Anything you want to add, Mr Alcorn?
MR ALCORN: No, Your Honour. It is just that the Court can make it an additional requirement that he undergoes counselling pursuant to section 94.
PINCUS JA: Yes. Well, as has been pointed out by your opponent under the general requirements of the probation order he has to do that anyway but the Court wanted to make something a bit stronger. You will have to get his consent, we cannot make the order until you do, and you will let us know when the consent is given.
MR ALCORN: Yes, Your Honour.

PINCUS JA: And we will adjourn the case to allow that to happen because it is conceivable and it has happened once in my experience they simply refuse to take probation.

PINCUS JA: The orders will be application granted, appeal allowed, sentences imposed below set aside. In lieu, in respect of each of the offences the applicant will be sentenced to a term of imprisonment expiring today and that subject to his consent, an order be made

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for 18 months probation. The Court recommends that the
applicant receive such psychological, psychiatric
treatment or counselling as appears to the corrective
service authorities to be appropriate.

PINCUS JA: You will get back to us when you have asked him for consent, will you?

MR ALCORN: Yes.
PINCUS JA: And tell the Registrar about it.
MR ALCORN: Yes.

PINCUS JA: Is there anything else we need to do, Mrs explain the probation order to him.
MR ALCORN: Yes, Your Honour.
PINCUS JA: As the Act requires.
MR ALCORN: Yes.
PINCUS JA: And get his consent if he is willing to consent.
MR ALCORN: Yes.
PINCUS JA: Let us know you have done both those things.

MR ALCORN: I will do that, Your Honour.

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