R v U

[1995] QCA 584

[1995] QCA 584

COURT OF APPEAL

DAVIES JA
MACKENZIE J
HELMAN J

CA No 422 of 1995

THE QUEEN

v

U  Applicant

BRISBANE

DATE 20/10/95

JUDGMENT

DAVIES JA:  The applicant was convicted in the Magistrates Court on his own plea on 6 September of three offences of break and enter with intent, one of entering with intent, one of attempted breaking and entering with intent and two of stealing.  Those offences occurred between 8 and 28 August this year.

On 27 September he was sentenced by the Magistrate to three months detention with an immediate release order, conditioned upon his participating in a program which involved his occupation; learning to be stockman and jackaroo at a cattle property.

The applicant is 14 years of age, having been born on 5 July 1981.  The offences, the dates of which I have already mentioned, were in brief as follows.

At midday on 8 August 1995 he entered the home of Theresa Neal at Yarrabah by removing a louvre.  He stole a beanie from the house.  On 13 and 14 August he and another juvenile smashed a large hole in a fibro gable end of Popeye Henry's Grocery and Takeaway Store.  They climbed through the ceiling and took some chocolates, chips and soft drinks.  A few days later, on 18 August, he entered the home of a man through an open window and took $380 from the man's wallet.  The fourth offence consisted of between that night and the next day he and another juvenile breaking into Smackers Fish and Chip Shop by breaking a padlock off the door with a shifting spanner, and again they stole some chocolates, drinks and packets of chips.  And the final offence was again against Popeye Henry's Grocery and Takeaway store on 28 August this year.  At night he climbed on the roof of that store, smashed a hole in the fibro eave with a hammer and when he saw the police coming he ran into the bush.

One of these offences was committed before and the others after his appearance in the Magistrates Court on 9 August 1995 where he was given 25 hours community service for breaking and entering with intent.  In view of the urgency with which this matter came on before this Court, neither counsel has been able to provide us with particulars for that offence and perhaps more specifically whether it occurred at about the same time as this spate of other offences to which I referred.

It is of course of some significance and disturbing significance that most of these offences took place after his appearance in Court in respect of that offence.  The applicant as I have said is only 14 years of age.  He is of Aboriginal descent and has grown up in the Yarrabah Aboriginal Community where he has lived for most of his life.  He has good family support and he wishes and his family wish him to return to live with them.

He has, as I have indicated, only one prior conviction. In this case he cooperated with the police and he pleaded guilty at an early stage. Mr Rafter who appeared for him before us pointed out the provisions of s 109(2)(e) of the Juvenile Justice Act to the effect that an order for detention should be imposed only as a last resort.  And the pre-sentence report which we have had the opportunity of considering strongly supported the making of a probation order rather than the order which the learned Magistrate in fact made.

The making of a probation order has in effect been conceded as an appropriate order by Mrs Clare who appeared for the respondent in this appeal.  In my view also, that is an appropriate order particularly having regard to his age, but also having regard to the fact that he has only one prior conviction and he has some family support, there being in all the circumstances advantage in his returning to his family who can give him support which he plainly needs.

I would accordingly grant the application for leave to appeal and the appeal, set aside the order which was made and make an order that the applicant undergo 12 months probation on the usual terms but also with conditions that he not leave his home between 7 pm and 7 am unless accompanied by one of his parents or a responsible adult member of his family or extended family, and that he attend such special programs as may be directed by his supervising officer.

MACKENZIE J:  I agree generally with what Mr Justice Davies has said.  In my view it was not within the limits of a proper sentencing discretion having regard to the Juvenile Justice Act to make a detention order in this particular case. Even with an immediate release option order, the Legislature has declared in s 109(2)(e) of that Act that the detention of children should be imposed only as a last resort. The matter has not got to that stage in this case. However, the appellant should be advised that the Court is not taking a soft option. If he does not take the opportunity given to him on this occasion and cease being a nuisance in his local community the time will quickly come when it can be properly said that detention order is the last resort and he will find himself in that situation. I agree with the orders proposed.

HELMAN J:  I also agree.  I think there are two features of this case that are of concern.  The first is that some of these offences were committed soon after the applicant had appeared in Court to be dealt with for another offence, and the second feature is that there are, as Mr Rafter for the applicant conceded, no mitigating circumstances.  However, in view of the applicant's age I think that I must agree that the sentence imposed was manifestly excessive.

DAVIES JA:  The order is that I have indicated.

MR RAFTER:  Is the Court ordering that convictions be recorded?

DAVIES JA:  No.  We will order no conviction be recorded.