R v Taylor

[1995] QCA 243

[1995] QCA 243

COURT OF APPEAL

PINCUS JA
de JERSEY J
AMBROSE J

CA No 28 of 1995

THE QUEEN

v

T

BRISBANE

DATE 26/04/95

JUDGMENT

PINCUS JA: This is an application for leave to appeal against sentence. The applicant, who was born on 17 March 1977, killed his father on 6 January 1992 when he was a few months short of his fifteenth birthday. At his trial in August 1992 he was convicted of manslaughter and under section 63 of the Children's Services Act 1965 ordered to be detained during Her Majesty's pleasure. It should be mentioned that there were some favourable reports as to his behaviour during detention.

The present application relates to the result of a resentencing which took place on 14 December 1994, it being governed by clause 3 of schedule 2 of the Juvenile Justice Act 1992. Under that provision Fryberg J found that the offence in question was not a "particularly heinous offence" within the meaning of section 121(3) of the Juvenile Justice Act 1992, with the result that the maximum period of detention which could be imposed was 10 years. His Honour discharged the order made under the Children's Services Act 1965 on 13 August 1992 and His Honour ordered that the applicant be detained for six years and 11 months from that date. His Honour took into account a period of about seven months during which the applicant was held in custody prior to the sentencing on 13 August 1992 in arriving at the period of six years and 11 months. The Judge under section 188 of the JuvenileJustice Act 1992 found that there were special circumstances which justified an order, which His Honour made, that the applicant be released from detention after serving 65 per cent of the period of detention.

The applicant, who had previously had little to do with his father, was spending Christmas holidays with him.  The father and son were at an abandoned gold mine of which the father was caretaker when an argument developed one afternoon.  The father then went to sleep in a chair and a little later, the applicant took down a rifle and shot him through the head.

The applicant then took the father's wallet and vehicle and drove to the home of people who had previously fostered him and told them what had happened.  When the applicant discussed the matter with the police he said he could not remember firing the shot and later said he could not believe he had done it.  When asked whether he intended to kill his father, he said he did not know what he intended.

The applicant has had an unfortunate unbringing, but it is not a case in which it is said that the father was killed for abuse of his son.  The applicant told a psychologist who interviewed him that he was angry that his father had left the applicant and his mother when the applicant was very young and his father had not bothered to contact him until he was about 10 years old.  When discussing the shooting with the same psychologist the applicant said that he was angry and was fed up with arguments, but there was no suggestion that the father had done anything in particular to provoke the shooting.  The applicant complained of having been very bored at the mine site.

The applicant was brought up by his mother after his father left home, but had a bad relationship with her and she found difficulty in controlling him.  She complained of his having missed school, kept bad company and committed property offences.  She alleged that he had been expelled from school for uncontrollable behaviour and had threatened to kill his mother and his grandmother while they were sleeping.

On one occasion in 1991 during what is described as an office interview the applicant assaulted his mother in the presence of the interviewer.

Two aspects of the applicant's disposition which deserve particular mention are that although he expressed regret for having killed his father he has to some extent rationalised this, suggesting, as Mr Rafter has pointed out, that he "did society a favour" by killing his father.  Secondly, it is a matter of concern that professional opinion has been expressed, as Mr Rafter has also pointed out, that the applicant may be a continuing danger to others.

The primary Judge took the view, suppported by reports which he had before him, that at least in some ways the detention had been to the advantage of the applicant, that is the detention from the beginning of 1992 until December 1994.  It appears that there was reason to be concerned that the educational advances which the applicant had made while in detention would proceed no further once he was released.

The impression gained from the material is that the applicant's future is dubious and one must suspect that there is at least a possibility of a risk that he may commit further violence.  His having shot his father dead while the latter was asleep has not, it appears, engendered much remorse in him.  It seems clear that the Judge was right to think that the applicant should properly serve a further period of detention and it is difficult to see any sound basis for the assertion that the period ordered was too severe.  I would refuse the application.

de JERSEY:  I agree.

AMBROSE J:  I agree also.

PINCUS JA:  The application is refused.