R v Tauati

[1996] QCA 407

[1996] QCA 407

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane  C.A. No. 318 of 1996

BeforeMacrossan CJ

Moynihan J
Cullinane J

[R v T]

THE QUEEN

v.

T

Applicant

________________________________________________________________________

MACROSSAN CJ
MOYNIHAN J
CULLINANE J

___________________________________________________________________________

Judgment delivered 18/10/96
Separate reasons for judgment of each member of the court; each concurring as to the orders made.

_________________________________________________________________________

LEAVE TO APPEAL AGAINST SENTENCES GRANTED.
APPEAL ALLOWED.
SENTENCES SET ASIDE. IN LIEU THEREOF:-

(a)THE APPLICANT, SUBJECT TO HIS CONSENTING THERETO, BE ADMITTED TO PROBATION FOR A PERIOD OF 2 YEARS IN RESPECT OF COUNTS 1 TO 4.  CONVICTIONS RECORDED.

(b)IN RESPECT OF COUNT 5 AND COUNTS 1, 2, 3, 4, 6, 8, 9, AND 11 ON EXHIBIT 4 THE APPLICANT IS ORDERED TO BE OF GOOD BEHAVIOUR FOR A PERIOD OF 1 YEAR.

CATCHWORDS:     SENTENCE - Juvenile Justice Act - whether Act permitted convictions to be recorded - whether there was a real dispute that sentences imposed should be set aside.

Counsel:Mrs D Richards for the applicant.

Mrs L Clare for the respondent.

Solicitors:Legal Aid Office for the applicant.

Queensland Director of Public Prosecutions for the respondent.

Hearing date:             9 October 1996

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 18/10/1996.

In this matter there were a number of errors affecting the sentencing process and they have been identified in the reasons of Cullinane J.  A perusal of the record indicates that the errors were substantially contributed to by the manner in which Counsels' submissions were put to the sentencing Judge.

In undertaking the necessary correction of the orders made below, I agree with the approach suggested by Cullinane J and the orders he proposes for the reasons, which in both cases, he sets out.  In the argument before us it was accepted on both sides that the identified errors had occurred and there was substantial agreement on appropriate orders in substitution and thus the Court's task is simplified.  The still youthful applicant has already spent a significant period in detention and this supports the making of the sentencing orders substituted by this Court in a form which otherwise might not have been appropriate.

Orders should be made as proposed by Cullinane J.

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 18/10/96

I agree with the reasons of the Chief Justice and Cullinane J. and the order which they propose.

REASONS FOR JUDGMENT - CULLINANE J.

Judgment delivered the 18th day of October, 1996

The applicant seeks leave to appeal against sentences imposed in the District Court at Brisbane on 2 July 1996.

On that day he appeared before the Court on some 5 counts.

On the same day he was dealt in respect of certain other offences as a consequence of his breaching a community service order and a probation order.

Counts 1 to 4 on the indictment were offences of dishonesty namely two counts of unlawfully using a motor vehicle with circumstances of aggravation, one of housebreaking and one of stealing.  These were all committed when the applicant, who was born on 7 October 1978, was 17 years of age.

So far as count 5 is concerned this was an offence of attempted unlawful use of a motor vehicle committed when the applicant was 15.

So far as the breaches of the community service order and probation order are concerned the applicant had, by virtue of the provisions of the Juvenile Justice Act, to be dealt with as a child.

On counts 1 and 2, the applicant was sentenced to imprisonment for 2 years, on count 3 he was sentenced to imprisonment for 3 years and on count 4 he was sentenced to imprisonment for 1 year.  On count 5 a conviction was recorded and no further action taken. It is necessary to refer in a little detail to what occurred in relation to the breaches of the community service order and probation order.  On 14 October 1994 the applicant had been dealt with for 11 offences the nature of which appear in a schedule which is Exhibit 4 in the record.  In respect of some of these matters the applicant was sentenced to periods of detention, in respect of some he was admitted to probation for 2 years, and in respect of one an order was made that he perform 100 hours community service.  In all of these matters no conviction was recorded.

From a reading of the transcript at the time the applicant was sentenced on 2 July 1996 it appears that His Honour understood and I think it fair to say was led to understand that a community service order was made in respect of all 11 counts.  A similar misunderstanding appears to have occurred in relation to probation.  Acting on this understanding His Honour ordered that convictions be recorded in respect of all 11 offences but otherwise took no further action except for the discharge of the probation order.

It was common ground that the sentencing process had miscarried, His Honour took a course in respect of the matters other than counts 1 to 4 on the indictment before him which was not open as an option under the Juvenile Justice Act.  The court was, so far as all other matters are concerned, obliged to proceed under that Act by virtue of s.107(2)(b) thereof.  The options open to a court when dealing with a breach of a community service order and a breach of probation are contained in ss.156 and 140 respectively.  So far as count 5 on the indictment before the Court on 2 July 1996 is concerned the options are to be found in s.120.

Section 124 of the Juvenile Justice Act limits the circumstances in which a conviction can be recorded.  It was common ground that the circumstances which would have permitted that in respect of count 5 and any of the offences referred to in Exhibit 4 which had resulted in a community service order or probation order did not exist.  In the event His Honour recorded convictions in circumstances where the Act did not permit him to do so and in some instances recorded convictions in respect of matters for which the applicant had already served a period of detention and in respect of which the sentencing judge had not recorded convictions.

It was also common ground that as a consequence of this the sentencing process further miscarried because His Honour having recorded such convictions then took those into account (and as will be seen from his remarks placed some emphasis upon them) in imposing the sentences which he imposed in respects of counts 1 to 4.  His Honour was in fact entitled to have regard only to two convictions of attempted stealing in July 1995.

There was ultimately before us no real dispute that the sentences imposed should be set aside.  The applicant has now served a period of 212 days in custody for the offences that were dealt with on 2 July 1996.

In all of the circumstances I think the appropriate course to take is to grant the application for leave, allow the appeal and order that in respect of counts 1 to 4 he be admitted to probation for a period of 2 years subject to a notification of his consenting to the making of such orders.

So far as those matters in respect of which the applicant falls to be dealt with under the Juvenile Justice Act are concerned it was suggested by the applicant and it was not contested by the respondent that an appropriate order to make would be that under s.120(b) of the Juvenile Justice Act the applicant to be ordered to be of a good behaviour for a period of 1 year.

Where a court makes an order under this provision there is no power to order that a conviction be recorded and it follows that the order by His Honour recording a conviction in respect of those matters should be set aside.

The offences then in respect of which such orders are made are by reference to Exhibit 4, counts 1 and 2 (unlawful use of a motor vehicle), count 4 (assault occasioning bodily harm while armed and in company), counts 3, 6 and 8 (breaking and entering) counts 9 and 11 (stealing).  A similar order should be made in respect of the fifth count on the indictment on which he appeared before the court on 2 July 1996.

The formal orders should be: leave to appeal against sentences granted.

Appeal allowed.  Sentences set aside.  In lieu thereof:-

(a)the applicant, subject to his consenting thereto, be admitted to probation for a period of 2 years in respect of counts 1 to 4.  Convictions recorded.

(b)In respect of count 5 and counts 1, 2, 3, 4, 6, 8, 9, and 11 on Exhibit 4.

The applicant be ordered to be of good behaviour for a period of 1 year.