R v T

[1996] QCA 351

[1996] QCA 351

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 57 of 1996

Brisbane

BeforeMacrossan CJ

Shepherdson J
Byrne J

[R  v. T]

THE QUEEN

v.

T

(Applicant)

Macrossan CJ
Shepherdson J
Byrne J

Judgment delivered 20/09/1996

Separate reasons for judgment of each member of the Court, Macrossan CJ and Shepherdson J concurring as to the form of the order.  Byrne J dissenting in part.

Application for leave to appeal against sentence refused.  Sentences ordered below to stand and declare that the custodial period of 268 days must be counted as part of the twelve months (and six months) periods of detention ordered to be served on the resentencing and the custodial period of 129 days (and no more) must be counted as part of the periods ranging up to two years ordered to be served for the second group of offences.

CATCHWORDS:     CRIMINAL LAW - Sentence - whether manifestly excessive - resentencing for breach of community service order - effect of pre-sentence custody - Juvenile Justice Act 1992 s.174(1)

R v. R [1996] Qd.R 69.

Counsel:Ms K.M. McGinness for the appellant.

Mr B. Butler SC for the respondent.

Solicitors:Legal Aid Office (Queensland) for the respondent.

Director of Public Prosecutions (Qld) for the respondent.

Hearing Date:              24 April 1996

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 20/09/1996.

This application for leave to appeal against sentence directs attention to matters involved in the construction of provisions of the Juvenile Justice Act 1992 considered in conjunction with a decision of this Court in R v. R [1996] 1 Qd. R. 69.

Shepherdson J. has detailed the circumstances involved in the application and quoted the relevant statutory provisions.

Putting aside particular questions of construction of the legislation, it can first be stated that, taking into account the criminal conduct involved in the offences with which the learned sentencing judge had to deal, the sentences pronounced were not excessive and this is so even after allowing for the very young age of the applicant.  The sentencing judge proceeded carefully and took account of all relevant considerations.  The applicant showed himself to be a particularly determined offender who, notwithstanding previous opportunities offered to him, exhibited an unrepentant disregard of the law.  He had involved himself in a great number of serious offences and caused considerable financial loss to his victims.  Unfortunately, also, he had demonstrated that non-custodial orders were not effective to discourage his repeated offending.  The sentences pronounced did not exceed the limits of what was reasonable in the circumstances.

Turning now to the particular problems of construction which received attention in the course of submissions, essential features of the case can be stated.

The applicant was born on 8 February 1981 and consequently provisions relevant to sentence in his case are to be found in the Juvenile Justice Act 1992.

There was one group of numerous offences for which the applicant was sentenced on 24 April 1995 (the first group of offences). With respect to some of the offences in that group, the applicant was ordered to serve twelve months detention, and for others dealt with at the same time, he was placed on probation for two years or ordered to perform sixty hours of community service. Prior to being sentenced on 24 April 1995, the applicant had been in custody for 268 days, so the effect of s.174(1) was that a period of that length had to be counted as part of the period of detention ordered. A further effect of the Act which applied in his case was that he had to be released after he had served seventy per cent of the period of detention ordered (see s.188(1)). The result was that the applicant was, at the date of sentence, entitled to be released immediately from custody since the period previously spent on remand exceeded seventy per cent of the twelve month custodial sentence ordered.

Unfortunately, the applicant recommenced offending very soon after his release. Numerous further offences spread between 28 July 1995 and 13 October 1995 resulted in his being taken into custody again at the end of that period. This further group of offences (the second group of offences) was dealt with by the sentencing judge first on 21 January 1996 and then sentences were pronounced on 19 February 1996. By the date last mentioned, the applicant had spent 129 further days in custody following his apprehension in October 1995. The sentences for the second group of offences were for detention terms ranging from four months up to two years, all to be served concurrently. Once again, in the detention periods ordered, the applicant became entitled to credit, this time for the 129 days in custody. This clearly followed from s.174(1).

Having pronounced the sentences for the second group of offences, the judge was called upon to deal with the breaches of the orders of probation and community service made in April 1995. Specific powers available to deal with breaches of orders of these kinds are to be found in s.140 and s.156 of the Act. The judge, in dealing with the breaches, exercised the powers referred to in s.140(1)(c) and s.156(1)(c) discharging the orders previously made and going on to resentence the applicant for the offences which had originally resulted in the making of those orders. For the offences for which probation had been ordered, the applicant was resentenced and ordered to be detained for one year. For the offences for which community service had been ordered, the applicant was resentenced and ordered to be detained for six months. Those sentences were ordered to be concurrent as amongst themselves and concurrent also with the sentences passed on the same day for the second group of offences.

During the sentencing and resentencing proceedings taking place on 19 February 1996, counsel did make some brief reference to the earlier period of 268 days spent in custody, intending perhaps to draw attention to the possibility that an allowance for that period would, once again, be made.  The judge seems to have been of the view that in resentencing for the particular offences in the first group, even if credit for the period of 268 days spent in custody should, in strictness, be allowed against the term of one year and the term of six months, there would be no practical effect since further sentences ranging up to two years had just been imposed.  The lack of practical effect in the circumstances of this case can be conceded.  The result in the sentencing judge's view was that for the terms ranging up to two years for the second group of offences (or more strictly, seventy per cent of them), there would be a reduction against the terms of 129 days, the second period spent in custody, but no more than 129 days, and in particular there would be no further reduction of 268 days against the term imposed for the second group of offences.

In the course of argument on the present application, it was submitted that the effect of the Act in combination with the decision in R v. R (supra) required that a total of the two periods spent in prior custody, i.e. a total of 397 days, had to be credited against the detention terms applicable for the second group of offences.  This submission should not be accepted.

After being released from custody on or about 24 April 1995, the applicant, within the meaning of s.174(1) ceased to be "held in custody pending the proceeding for (any) offence (i.e. for any of the first group of offences)". In fact, at least conditionally, the proceeding for all of the first group of offences dealt with in the April 1995 sentences had come to an end. However, because probation and community service orders had been made in that proceeding, there was a potential that, in the event of breach of those orders, the proceeding would be revived. Section 140(1)(c) and s.156(1)(c) are in similar terms and contemplate, as one available option, a discharge of the orders and a "resentence ... for the offence for which the order was made". Under the Act the court, dealing with breaches of probation and community service orders, if it decides to resentence a child for the offences in respect of which those orders were made, does so "as if the child had just been found guilty before the court of that offence": see ss 140(1)(c) and 156(1)(c). This language gives some support to the concept that the proceeding for the original offence is, in this event, reopened and extended to the date of resentencing. The Act does not declare that breaches of probation orders and community service orders become separate (i.e., new) offences, and thus there is removed from consideration one factor which might otherwise have had to be allowed for in the construction of s.174(1). If, then, the proceeding involved in the resentencing for breach under s.140 and s.156 is regarded as the original although now extended proceeding for the offence which resulted in that proceeding, the consequence in the present case is that the 268 days should be regarded as a period for which the applicant was held in custody pending a proceeding in which there were orders made both in April 1995 and, on resentencing, in February 1996. Section 174(1) should be accorded this effect in the present case. The result then is that the period of 268 days spent in custody should be regarded as part of the period of detention ordered to be served on the resentencing for the earlier offences which had resulted in probation and community service orders. This is so although there is a lack of practical effect in the circumstances of this case.

The effect attributed above is both just and convenient as well as being in conformity, it is suggested, with the words of the Act.  The effect can be considered in terms of a simplified example.  An offender is detained on remand for, say three months for a single offence for which an order is made placing him on probation and he subsequently breaches the probation order so that he is resentenced for the original offence and ordered to serve a term of detention for six months.  The proposition that in these circumstances the three months earlier spent in custody should be counted as part of the six months detention period, would not seem in any way strange or unacceptable.

On the other hand, it could not be said that the applicant in the present case had been held in custody for any of the 268 days "pending the proceeding" for offences in the second group. The proceeding for those offences had not commenced until after the commission of the last of them on 13 October 1995. The situation, therefore, does not fall within the literal wording of s.174(1) and also it should not be regarded as comprehended by the pronouncement, of an essentially practical nature, made in R v. R.  That case provided a solution appropriate in a case where a detainee remained in continuous detention, and at different dates within the period of detention came to be charged with separate offences for which he was eventually sentenced in a single sentencing procedure.  The important aspect of the decision in R v. R is contained in these words in the reasons of Thomas J at 72 with which the other members of the Court agreed:

"Whenever there is a sentencing procedure covering multiple offences, the pre-sentence custody may, in appropriate cases, be declared to be applicable to all such matters as are included in the same sentencing exercise."

Whether the solution adopted in R v. R may be capable of extension in particular circumstances to other cases is a question that may be put aside for the moment, but the decision does not apply in a case like the present because the 268 days had been spent in custody exclusively in connection with a proceeding which had been wholly concluded and not yet, on the view taken in these reasons, revived and enlarged. The revival and enlargement does not occur until the judge, in dealing with breach situations, decides to exercise the particular powers available under ss 140 or 156 by resentencing, perhaps to terms of detention, whereupon it will be seen that the child has been held in custody for a period that is relevant under s.174(1).

The applicant's two periods of custody in the present case are attributable to distinct offence proceedings and neither s.174 nor any other provision of the Act requires the 268 days to be counted as part of the periods of detention ranging up to two years which the applicant is required to serve under the sentencing orders reviewed in this application and nothing in R v. R (supra) requires any different conclusion.

The sentences ordered below should stand and it should be declared that the custodial period of 268 days must be counted as part of the twelve months (and six months) periods of detention ordered to be served on the resentencing and the custodial period of 129 days (and no more) must be counted as part of the periods ranging up to two years ordered to be served for the second group of offences.  The application for leave to appeal against sentence should be dismissed.

REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 20 September 1996

This is an application for leave to appeal against severity of sentences imposed by the Childrens Court of Queensland.

On 19 February 1996 the learned Childrens Court Judge sentenced the applicant for 2 different lots of offences.

The first lot concerned offences committed between 28 July 1995 and 13 October 1995, both dates inclusive.  There were 10 offences in all and they were:-

•Four unlawful use of a motor vehicle with a circumstance of aggravation.

•Two of assault occasioning bodily harm while armed.

•One of housebreaking.

•One of stealing.

•One of wilful damage to property.

•One of dangerous driving.

On 22 January 1996 the applicant had pleaded guilty on indictment to each of these offences and sentencing occurred later.  In respect of the 4 unlawful use offences, the housebreaking and the stealing offences the applicant was sentenced to be detained for 2 years, and in respect of the assaults occasioning bodily harm while armed, and the dangerous driving, he was sentenced to be detained for 1 year.  For the wilful damage he was sentenced to be detained for 4 months.  These sentences were concurrent.

Acting pursuant to s.174 of the Juvenile Justice Act 1992 the learned judge ordered that a period of 129 days from 13 October 1995 to 19 February 1996 during which the applicant had been held in custody pending completion of the proceedings for the above 10 offences be counted as part of the period of detention that was to be served in a detention centre.

The second lot of offences for which the applicant was sentenced on 19 February 1996, was part of quite a large number of offences for which the applicant had been dealt with by the same learned Childrens Court Judge on 24 April 1995.  It is unnecessary to state the exact number of offences for which the learned Childrens Court Judge dealt with the applicant on 24 April 1995.  The applicant had pleaded guilty on indictment to 31 offences, and had admitted guilt in relation to a number of other offences which had been detailed in Exhibit 1 before His Honour.  The offences detailed in Exhibit 1 were taken into account when His Honour sentenced the applicant on 24 April 1995.

On 24 April 1995 the learned judge sentenced the applicant for the 31 offences; he sentenced the applicant to 12 months detention for each of 11 housebreaking offences and for 1 burglary offence; with respect to 13 stealing offences the applicant was placed on probation for 2 years, and with respect to 4 offences of wilful damage, one of wilful destruction, and one of assault occasioning bodily harm he was ordered to perform 60 hours community service.

Before being dealt with on 24 April 1995 the applicant had spent 268 days in custody on remand in respect of the offences in the indictment then before His Honour. Pursuant to s.174 of the Juvenile Justice Act the learned Childrens Court Judge ordered on 24 April 1995 that the period of 268 days held in custody pending the completion of the proceedings must be counted as part of the period of detention that was served in a detention centre.

On 19 February 1996 His Honour was confronted with proceedings for breaches by the applicant of the probation order and the community service order which he had made on 24 April 1995.

Breaches of these 2 orders occurred when the applicant committed what I have called the first lot of offences.  His Honour also had evidence that the applicant had failed to perform the 60 hours community service.

I should add that by reason of the 268 days spent in custody prior to the 24 April 1995, and by reason of a statutory 30 per cent remission in the 12 months detention which was imposed on the applicant on 24 April 1995 (see s.188 (1) of the Juvenile Justice Act) the applicant was released from custody on 24 April 1995 or the following day, and both community based orders then began to operate.

On 19 February 1996, after he had sentenced the applicant for what I have called the first lot of offences, the learned Childrens Court Judge discharged each of the probation order and the community service order which he had made on 24 April 1995, and proceeded to re-sentence the applicant for the offences for which these 2 orders had been made.  With respect to the offences for which he had earlier ordered probation, His Honour, on 19 February 1996 re-sentenced him and said "The sentence is that you be detained for a period of 1 year."  He went on to say "With respect to the offences for which community service was ordered the sentence is that you be detained for a period of 6 months.  They are all concurrent and concurrent with the sentences imposed on the present indictment."

After the learned Childrens Court Judge had pronounced the sentences on the applicant, his counsel referred His Honour to s.174 of the Juvenile Justice Act, and submitted that the 268 days for which the applicant had been held in custody pre-24 April 1995 must be counted as part of the periods of 1 years detention and 6 months detention imposed when His Honour re-sentenced the applicant for the offences for which the 2 community based orders had been made on 24 April 1995.  The learned judge declined to act on this submission.  In further comments to the applicant's counsel, His Honour pointed out that all the periods of detention which he had that day imposed were concurrent.  He said "The period he's entitled to under the 2 years detention order is the period of 129 days and nothing more ... and I so order."  He added "It would be ludicrous to go back and allow the other period.  It wouldn't make any sense.  If it were allowable the head sentence would have to go up and there's no point about that because it's an artificial adjustment and the court shouldn't be involved in artifice least of all this Court."

The present application concerns only the 2 years detention imposed for the first lot of offences i.e. the offences committed between 28 July 1995 and 13 October 1995.

Before turning to that application it should be said that this case has raised another matter which in my view should be determined by this Court, and that is whether or not when re-sentencing on 19 February 1996 for the offences in respect of which community based orders had been made on 24 April 1995, the learned Childrens Court Judge should have allowed, pursuant to s.174, for pre-sentence custody and if so, in what amount.

I now turn to the application relating to the 2 years detention.

The circumstances of each of the first lot of offences can be briefly stated.

On 28 July 1995 a car was taken from Pacific Fair Shopping Centre; it had been locked but broken into and a screwdriver used in the ignition to start it.  Later the same day the applicant was driving it when it collided with a tree; the vehicle which was valued at $18,000 was a "writeoff".  In the collision the applicant broke his leg.

He was arrested and given bail for this offence.  While on bail for this offence he committed a number of offences.  On 11 September 1995, during the daytime he broke into a house at Mitchelton, and stole clothing and an air rifle as well as other property including jewellery and the value of the property stolen was $8,000.  On the same day, in two separate incidents the applicant fired air pellets at persons in the street.  In the first incident he fired a number of pellets at two persons one of whom was seated in a car and the other talking to that person.  One of these persons was struck in the back by a pellet and a number of pellets struck the car causing it damage.  On the second occasion pellets from the air rifle struck a woman twice in the arm and shoulder.  She was walking in the street.  The injured complainant experienced pain but the wounds were not significant.  When interviewed by police the applicant said that he had fired at the people to "scare the shit out of them" and said that he had done it for fun as he had nothing else to do.  He was charged with these offences, granted bail, and then committed further offences.  On 14 September 1995 two cars were taken from shopping centres and ignition and door locks damaged.  About a month later a police officer observed the applicant break into a Mazda motorcar.  When a police car approached, the applicant, who was then in the Mazda motorcar, swerved out in front of it and sped away at speeds up to 120 km.p.h.  He drove dangerously, on occasions driving on the wrong side of the road.  Twice he lost control and spun the car out of control.  Finally, the car mounted a traffic island and struck a sign.  The applicant alighted and fled on foot but was caught by police.  Damage of $2,800 was caused.

Before sentencing the applicant on 19 February 1996, the learned Childrens Court Judge had received a report concerning the first lot of offences.  This report reviewed in some detail the applicant's family background and noted that at age 12 the applicant had left Cherbourg and gone to stay with his maternal aunt in Brisbane, and that it was at this time he began offending.  The report said the applicant's behaviour rapidly deteriorated as his offending escalated, that he began spending periods at the homes of friends and living on the street, and that he was associating with older recidivist offenders and developing a pattern of increased offending.

The report recounted that in July 1994 the applicant was remanded in custody for a number of offences and had spent a total of 9 months in custody on remand interspersed by two brief periods when he was released on bail.  The report referred to the proceedings on 24 April 1995, and to the fact that the Department of Family and Community Services had arranged for the applicant to live with a Ms Vera Graham of Woodridge, and for him to follow an intense support programme to assist him with returning to education and re-integration into the community.  The report referred to the fact that in July 1995 the applicant "went missing from his place"; that he was located and refused to return to live with Ms Graham without giving any clear reasons other than he wanted to "live with his mum".  The report noted that at that time the applicant began to reoffend.  The report, which is quite extensive, discussed a number of sentencing options which were then open to the learned sentencing judge and described the applicant as "a young aboriginal person who presents as a socially mature yet emotionally immature young person, who is impressionable and easily led" and who "at such a young age has had a most unfortunate experience of family and still has strong feelings of anger and resentment towards his stepfather".  It is unnecessary to refer further to the report and there is nothing in His Honour's sentencing comments to suggest that he failed to take into account the contents of that document.

In support of the application for leave to appeal against the severity of sentence the applicant's counsel submitted that taking into account the applicant's youth (he was 15 years at the time of the order of 19 February 1996), his pleas of guilty and the time already served in detention i.e. the 268 days before 24 April 1995, and the 129 days prior to 19 February 1996 a sentence of 2 years detention without any recommendation is manifestly excessive.

The learned sentencing judge in his comments leading to the 2 years detention order, referred to the events of 24 April 1995, when he had dealt with the applicant for offences which had caused damage of the order of $67,000-, that in the offences committed between 28 July and 13 October 1995 the damage was of the order of $31,000-, that the applicant had spent 268 days in custody before 24 April 1995, and he reminded the applicant of the warning he had given the applicant on that day when he made the probation order and he further reminded the applicant that he had then agreed to observe the terms of that order in all respects.  His Honour referred to the fact that some 3 months after the 24 April 1995, the applicant had begun committing offences again and "carried on right through to October".

His Honour was aware that these offences were committed when the applicant was 14 years old. In imposing the 2 years detention order, His Honour declined to make any recommendation for early release pursuant to s.188(2).

In comments made after having imposed the sentence of 2 years detention His Honour said:-

"I was considering a higher actual period of detention.  ... in the end I thought 2 years without any recommendation, in view of the fact he was 14 at the time and he has had no proper up-bringing because he has had no parental influence in his life to speak of - I thought that 2 years without any recommendation would be fitting for this case."

In my respectful view, the learned Childrens Court Judge's exercise of the sentencing discretion did not miscarry; nor is the 2 years detention manifestly excessive.

I would dismiss the application for leave to appeal against sentence.

I turn now to the further matter which has been raised. This requires consideration of s.174 of the Juvenile Justice Act.  That section relevantly reads:-

"174.(1)If a child is sentenced to a period of detention for an offence, any period of time for which the child was held in custody pending the proceeding for the offence must be counted as part of the period of detention that is served in a detention centre.

(2)A period of time for which a child is also held in custody on sentence for another offence is not to be counted for the purposes of subsection (1).

(3)Any period of custody of less than 1 day is not to be counted under subsection (1)."

The argument is that under s.174 (1) the 268 days held in custody must be counted as part of the period of detention ordered on 19 February 1996 when the learned Childrens Court Judge re-sentenced the applicant for the offences in respect of which His Honour had made the 2 community based orders on 24 April 1995.

When the learned judge was sentencing the applicant on 24 April 1995, he had before him a person who pleaded guilty to a number of offences some of which were "serious offences" (see the definition of "serious offence" in s.8 of the Juvenile Justice Act 1992) and others which were not so categorized. In imposing the probation order and the unpaid community service order His Honour was acting under s.120 of the Juvenile Justice Act - the offences for which these orders were made were not serious offences.

When sentenced on 19 February 1996 to serve the 2 years detention for the first lot of offences the applicant was a child who was then subject to a probation order and who had been found guilty of 10 indictable offences by virtue of his pleas of guilty of the offences committed between 28 July and 13 October 1995. Section 137(1) of the Juvenile Justice Act applied.  Under s.137(2)  the Court was empowered to act under s.140 of the Juvenile Justice Act. It appears to me that when the learned judge re-sentenced the applicant on 19 February 1996 he acted under s.140(1)(c). That section relevantly provides:-

"140(1)a court that acts under this section may -

…

(c)discharge the probation order and re-sentence the child for the offence for which the order was made, as if the child had just been found guilty before the court of that offence; ... ."

In effect then the learned sentencing judge re-sentenced the applicant on 19 February 1996 as if he had just been found guilty of the offences in respect of which His Honour had made the two community based orders on 24 April 1995.  On such re-sentencing the punishment should be more than nominal (R. v. Gills (1986) 1 Qd.R459).

I return now to s.174(1). In my view, on 19 February 1996 the learned judge when re-sentencing the applicant did sentence him to a period of detention for the offences in respect to which he was re-sentencing him. Under that sub-section "any period of time for which a child was held in custody pending the proceeding for the offence must be counted as part of the period of detention that is served in a detention centre".

Although the result may at first sight seem ludicrous, the proper interpretation of the statute must mean that when His Honour made a detention order of 1 year when re-sentencing for the offences for which probation had been earlier ordered and a detention order of 6 months for the offences for which community service had been earlier ordered, the 268 days must be counted as part of each of those periods of detention.  Such a result is just because it means that all the offences forming part of the second lot of offences will have been accorded the same treatment by counting the 268 days as part of the period of detention.

It is beyond dispute that the offences which I have called the "second lot of offences" included offences where, in the events which have happened, the applicant on two separate occasions was sentenced to two different periods of detention.  On each of those occasions the applicant had been held in custody "pending the proceeding for the offence" (sub-section 174(1)) and that period of custody was 268 days.

On one view of this matter it may be thought that the use of the community based order procedure and the subsequent activation of s.140(1)(c) of Juvenile Justice Act has resulted in what, in the circumstances of the present case, amounts to a most unsatisfactory result in that the applicant effectively has received no punishment at all for the offences in respect of which he was re-sentenced on 19 February 1996.

Quite plainly, what has happened in the present case is this. There was a period of 268 days pre-sentence custody for the offences charged on indictment for which the applicant was dealt with on 24 April 1995 and there was a period of 129 days pre-sentence custody for the "first lot of offences" as I have earlier defined them. It appears from the record of proceedings before His Honour that the calculation of pre-sentence custody referred to in s.174 is an administrative matter. In my respectful view the learned sentencing judge was quite correct to treat the 129 days as part of the 2 year detention which he imposed, but with respect when His Honour made the detention orders of 1 year and 6 months respectively he erred in not counting the 268 days as part of the detentions he then ordered. I agree with the Chief Justice in the form of order and declaration that should be made.

In my view the result for which I contend is not in conflict with the decision of this court in TheQueen v. Richards (C.A.) 188 of 1995 in which judgment was pronounced on 25 August 1995.

REASONS FOR JUDGMENT - BYRNE J

Judgment delivered: 20/09/1996

Shepherdson J sets out the circumstances material to the sentences the subject of the application for leave to appeal: viz those for the offences committed between 28 July and 13 October, 1995.  Especially in view of the gravity of the offences, and that they were committed during the subsistence of orders for probation and community service, the sentences are not excessive.  I agree generally with Shepherdson J's reasons for that conclusion.

Two points concerning s.174(1) of the Juvenile Justice Act 1992 were raised before the sentencing judge. One was whether the 268 days spent in pre-sentence custody before 24 April 1995 should be "counted as part" of the periods of detention (one year; six months) imposed on the re‑sentencing. The sentencing judge thought the question of no practical significance because, on the same day, he imposed a concurrent two year sentence for offences committed between late July and mid-October 1995. We were not invited to express an opinion on that issue. The second point was whether that 268 days must be counted as part of the two years detention imposed for those later offences constituting the contraventions of the probation and community service orders. This point has significance for the length of detention. His Honour dealt with it by purporting to order that only the 129 days between apprehension on 13 October 1995 and sentencing on 19 February 1996 should be counted as part of the two years. The applicant, however, contends that, as s.174 was construed in R. v. CDR (No 2) [1996] 1 Qd.R. 69, both the 268 days in custody before 24 April 1995 and the 129 days after 13 October 1995 must be counted as part of that two years.

Section 174 is set out in the reasons of Shepherdson J.

On 19 February 1996 the applicant was sentenced to two years detention for offences committed between late July and mid-October 1995. In accordance with s.174(1), any period during which he was held in custody "pending the proceeding for the offence" must be counted as part of that two year period of detention. As at 19 February 1996, the applicant had been in custody "pending" a "proceeding" in respect of the offences for which he was sentenced to two years detention for only the 129 days since his apprehension on 13 October 1995. The 268 day period relates to time in custody before the sentencing on 24 April 1995. Accordingly, the applicant cannot actually have been in custody before 24 April 1995 "pending" some "proceeding" for an offence committed after that date. But he contends that s.174, as interpreted in R. v. CDR (No2), operates in such a way that the 268 days must be treated as time in custody pending a proceeding for the offences committed afterwards. The argument is this: (i) when re-sentenced on 19 February 1996, the applicant was necessarily dealt with as if he "had just been found guilty" of the earlier offences: see s.140(1)(c) and s.156(1)(c): (ii) by then he had been "held in custody" other than "on sentence for another offence" (see s.174(2)) for both the 268 days prior to 24 April 1995 and the 129 days from 13 October 1995; and (iii) the reasoning in R. v. CDR(No 2) means that both the 268 days and the 129 days must be counted as part of the two years detention because the re-sentencing took place when he was sentenced for the later offences.  The first two propositions are correct.  It is unnecessary to discuss the third.  The submission confronts a fundamental difficulty.

Section 174(1) requires that the period during which a child is held in custody "pending the proceeding for the offence" must be counted as part of any period of detention imposed on the offence. What, then, is the relevant "proceeding" when a child is dealt with for breach of probation or contravention of a community service order? Is it that which led to the non-custodial order initially, or is it instead the process which brings the child before the Court to be dealt with under s.140 or s.156? For if it is the latter, s.174(1) does not require the 268 days to be counted for any presently relevant purpose.

So far as they have continuing significance, the proceedings instituted in respect of the offences committed before 24 April 1995 resulted at first in probation and community service, not detention. The detention orders imposed in February 1996 were a consequence of breach proceedings, as these new steps may be concisely described. It is, I think, an ordinary use of language to speak of an application to re-sentence for a breach of probation or community service as a "proceeding". And s.140(5) and s.156(5) both call such a step a "proceeding" in the Court. Where a child is re-sentenced under s.140(1)(c) or s.156(1)(c), it would therefore accord with ordinary usage and with pertinent provisions of the Act to regard the breach proceeding as the relevant "proceeding" for the purpose of s.174(1).

Such a construction of s.174(1) also avoids the curious consequences which could attend the interpretation for which the applicant contends: for example, an occasional need to fix an especially heavy sentence to achieve a proper outcome; or times when even the maximum sentence might prove inadequate. On the other hand, no inconvenient or surprising outcome is involved in the construction which appeals to me. Where s.174(1) does not operate to require time in custody awaiting sentence to be counted, the judge moulds the sentence to make such allowance for it (if any) as circumstances require.

On the interpretation of s.174(1) I prefer, the applicant was not held in custody pending the proceeding under s.140 and s.156 before his apprehension on 13 October 1995. So, in my opinion, only the 129 days fell to be counted as part of the detention to be served in respect of the re-sentencing, which makes it unnecessary to consider R. v. CDR (No.2).

The application should be refused.