R v v

[2003] QCA 101

SUPREME COURT OF QUEENSLAND

CITATION:	R v V [2003] QCA 101
PARTIES:	R
v
V 10
(applicant/appellant)
FILE NO/S:	CA No 20 of 2003 DC No 167 of 2002 DC No 175 of 2002 DC No 59 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application

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ORIGINATING COURT:	District Court at Townsville
DELIVERED EX	12 March 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	12 March 2003
JUDGES:	de Jersey CJ, Davies and Williams JJA
Separate reasons for judgment of each member of the Court, 30
each concurring as to the orders made
ORDER:	1.  Application for leave to appeal against sentence
granted
2.  Appeal allowed only to the extent of setting aside
orders recording convictions in respect of all offences except in relation to the count of armed robbery in company

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CATCHWORDS:	CRIMINAL LAW - JURISDICTION, PRACTICE AND
PROCEDURE - JUDGMENT AND PUNISHMENT -
SENTENCE - FACTORS TO BE TAKEN INTO
ACCOUNT - PARITY - CO-OFFENDERS -
DISCRIMINATION CO-OFFENDERS - where applicant
sentenced to 12 months detention, three years probation and
community service - where co-offender sentenced to six
months detention - where applicant 12 months older than co-
offender, brandished a knife in respect of one offence and had 50
a substantially greater prior criminal history than co-offender - whether sentence manifestly excessive Juvenile Justices Act (Qld) 1992, s 125
R v D [2003] QCA 32; CA No 375 of 2002, 14 February

2003, cited

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COUNSEL:	R A East for applicant/appellant B G Campbell for respondent
SOLICITORS:	Legal Aid Queensland for applicant/appellant Director of Public Prosecutions (Queensland) for respondent

THE CHIEF JUSTICE: I would invite Justice Davies to deliver	10
the first judgment.
DAVIES JA: The applicant pleaded guilty in the District Court at Mackay on 21 January 2003 to a total of 37 offences. The
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most serious of these was one of armed robbery in company on 9
March 2002. The others were one of entering premises and
stealing on 19 March 2002 and twenty four offences of burglary
and stealing, one of burglary, five of burglary by breaking, four of stealing and one of attempted burglary all between 1 July 2002 and 2 August 2002. The learned sentencing judge	30
also dealt with offences for which probation and community service had been ordered in a Children's Court on 12 December 2001 and for which probation was ordered in the District Court on 12 June 2002.
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The applicant was sentenced to an effective sentence of 12
months detention, three years probation and 187.5 hours
community service. The maximum period of detention, which was
one of 12 months, was imposed in respect of the offence of
armed robbery. The probation and community service were	50
imposed in respect of lesser offences. 165 days were declared to be served under the sentence, which Mr Campbell has pointed out that of the period required to be actually served, there

will be only ninety days in effect required to be served. having been born on 20 June 1986. He had a substantial criminal history to which I will refer later. He seeks leave to appeal against the sentences imposed.	2	60
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The relevant chronology of his offending behaviour was as follows.

On 12 December 2001 he appeared in the Mackay Children's Court

and was placed on probation for 12 months and ordered to	20
perform 40 hours of community service for offences of unlawful
entry of a vehicle. Then on 9 March 2002, less than three
months into his probation period, he committed the offence of
armed robbery in company. He held up a fisherman at
knifepoint whilst his co-offender stole tobacco. His co-	30
offender was sentenced to detention for 6 months and placed on
probation for 12 months on 23 October 2002. There is a
complaint of lack of parity of the applicant's sentence with the sentence imposed on his co-offender and I will return to that question.	40
Then on 19 March 2002 he committed the offence of entering
premises and stealing. He and his co-offender broke into a
laundromat and stole coins. Then on 12 June 2002 he appeared
in the District Court of Mackay and placed on 12 months	50

probation for 10 offences of entering a dwelling and stealing,
five of stealing, one of entering premises and stealing, one
of unlawful entry of a motor vehicle, one of wilful
destruction, one of entering a dwelling with intent, one of
breaking, entering and stealing and one of attempted entry of
premises with intent. The value of the property stolen or
damaged in these offences was over $4,800. 3 60

On 19 June 2002 he again appeared in the Children's Court at	10
Mackay, this time in relation to drug offences and possession of tainted property. He was placed on a further 12 months probation and ordered to perform 100 hours community service. The drug offences related to cannabis.
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Then between 1 July 2002 and 2 August 2002 he committed 35 offences as I have already described. These involved property stolen or damaged of over $3,700 in value.
It is plain that all of these offences were committed during	30
the course of at least one probation order, many of them
during periods of more than one probation order. Some of
these offences to which I have referred came to light only
because of the applicant's willingness to confess them to
police during the course of a drive during which he identified	40
places at which he committed various offences.
The learned sentencing judge described the applicant's prior criminal history as appalling for someone his age. That is, in my view, an accurate description. It consists of multiple	50
offences, commencing at the beginning of 1998 and occurring at
regular intervals since then. Most of them were offences of
dishonesty but some involved violence including apparently
more than one assault occasioning bodily harm in 1999.

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Unsurprisingly the applicant has a poor family history and a

history of drug and alcohol misuse. He has had poor schooling

and has an IQ similar to that of a Grade one child. Two

pre-sentence reports were before the learned sentencing judge.

The second of those indicated that there had been some	10
positive changes in the applicant's behaviour indicating that he had become more settled and possibly maturing. But what is plainly evident from both reports in my view is that he will require supervision for quite some time.
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The main point in the sentence application appears to be an assertion of lack of parity between the sentence imposed on the applicant and that imposed on his co-offender in the armed
robbery and one other offence. It was submitted that although
there was some basis for imposing a higher sentence on the	30
applicant than on his co-offender, the difference between a six month detention order in respect of his co-offender and a 12 month detention order in respect of the applicant is manifestly excessive. I do not agree.
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The applicant was 12 months older than his co-offender, often
an important difference at 15½ years of age. It was he rather
than his co-offender who was armed with and brandishing a
knife in a threatening manner at their victim and he had a
substantially greater prior criminal history than his co-	50
offender. Moreover the applicant here was sentenced for the
totality of his criminal conduct and the effective sentence of
detention for 12 months should be seen in that light.

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There were a large number of other offences, many of them

serious. In one of the other offences I have described, for example, he was found in a house by an elderly woman who was no doubt frightened by being confronted by the applicant.

Moreover the total amount of property involved in the other	10
offences was quite substantial.
The sentences which were imposed by the learned sentencing
judge were, in detail, as follows. He was re-sentenced to six
months detention in respect of the offences dealt with in the	20
District Court of Mackay on 12 June 2002, he was sentenced to
12 months detention for the armed robbery, he was sentenced to
six months detention for the burglary offence and he was
sentenced to three years probation and 187.5 hours community
service in respect of each of the other offences other than	30
those to which I have already referred. Convictions were recorded in respect of all offences.
In R v D [2003] QCA 32, an application for leave to appeal
against sentence by the applicant's co-offender in the armed	40
robbery count, this Court, having regard to s 125 of the
Juvenile Justice Act 1992, granted leave to appeal only to the
extent of setting aside the recording of convictions on
offences other than the armed robbery offence. I would be
inclined to do the same here.	50

Accordingly I would grant leave to appeal and allow the appeal only to the extent of setting aside orders recording convictions in respect of all offences except in relation to the count of armed robbery in company.	6	60
THE CHIEF JUSTICE: I agree.
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WILLIAMS JA: I agree.

THE CHIEF JUSTICE: The order of the Court is that indicated by Justice Davies.

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