R v Taylor

[1996] QCA 117

[1996] QCA 117

COURT OF APPEAL

DAVIES JA
McPHERSON JA
BYRNE J

CA No 32 of 1996

THE QUEEN

v

T  Applicant

BRISBANE

DATE 26/04/96

JUDGMENT

BYRNE J:  This is an application for leave to appeal against sentence imposed in the Children's Court at Ipswich on 1 February this year.  The sentence was consequent upon the applicant's conviction of two charges of wilful and unlawful damage to property which were entered on 21 December 1995 on his pleas of guilty.

The Magistrate imposed a sentence of two months' imprisonment and ordered that that sentence be served cumulatively upon a sentence of 15 months imprisonment which the applicant was serving at the time.

The offences of wilful and unlawful damage to property occurred on 30 March 1995.  On that day the applicant entered the grounds of the Bundamba State High School in company with two other youths.  They were seen kneeling beside motor vehicles.  Hissing noises were detected from the vehicles and an inspection revealed that the front tyres of the two vehicles had been cut.  These offences had been committed by the applicant and others.  Repairs of the tyres cost $220.00.

The principal ground offered in support of the application is related to the sentence which the applicant was serving at the time he was sent to detention for two months in respect of the two additional offences mentioned.

The applicant was dealt with in the District Court at Ipswich on 6 October last year in respect of 21 offences.  These had been committed between 22 January 1995 and 3 July 1995.  In other words, the additional offences for which he was dealt with in the Children's Court at Ipswich occurred at about the midpoint of the 21 offences for which he was dealt with in the District Court.

A sentence of 15 months detention was imposed in the Ipswich District Court in respect of those 21 offences.  They also included property offences, including wilful damage to property; and many of the offences for which the applicant was ordered into detention for 15 months appear to have been more serious than those which led to the sentence of two months' detention earlier this year.

The submission which has been advanced on behalf of the applicant principally is that it is most unlikely that, had the matters dealt with in the Children's Court been dealt with in the District Court at Ipswich, the 15 months detention which had been ordered would have been increased appreciably or at all.  Indeed, it is conceded for the respondent that it is unlikely that the first sentence of 15 months would have been increased if those two offences had been dealt with at the same time.

The material before us does not disclose any particular reason for the two offences not having been dealt with with the other 21.  It seems that the identity of the applicant as the offender was known at the time he was dealt with in the Ipswich District Court.

In my view there is a deal of substance in the concession made on behalf of the respondent that it is unlikely that if these additional offences had been dealt with there would have been any additional impact upon the period of detention imposed in the District Court at Ipswich.

In these circumstances, it seems to me that the appropriate course is to grant the application and to allow the appeal, setting aside that part of the sentence which ordered that the period of detention be served cumulatively.  The consequence would be that the detention of two months ordered by the Magistrate would stand but that it would be required to be served concurrently with the 15 months detention ordered in the Ipswich District Court.

DAVIES JA:  I agree.

McPHERSON JA:  I see no reason for disturbing the sentence.  Considered on its own the act of slashing the tyres of a car, without any apparent reason at all for doing so, justified a sentence of two months imprisonment.  However, it is said that because the applicant had, on other occasions, committed so many other offences he should not be further punished for this offence.  There is no logic that I can identify in such an argument.

However, the real explanation seems to be that, had the subject offence been dealt with along with others for which 15 months detention was imposed by the District Court on an earlier occasion, the sentence of 15 months detention would not have been increased because of the inclusion of this offence.  The same sentence would have been imposed.

The matter is further explained by saying that there are constraints on the sentencing of juveniles which must, in terms of the statute, be obeyed in considering offences of this kind; and that the District Court Judge, in this instance, was nearing the outer limits of the sentence he could, in any event, have imposed.  Adding in another one would not have induced him to make it any larger.

For my part I cannot see why, once that restraint has been removed, it is a matter of any significance.  In this case it was removed because the applicant had become an adult by the time he was sentenced.  It does not seem to me that we can, on any reasonable basis, justify an exercise of discretion in favour of the applicant because of a matter which seems to me to be one which was irrelevant when the sentence that is the subject of this application was dealt with.

I would refuse the application.

DAVIES JA:  The application is allowed with the orders as indicated by Mr Justice Byrne.