R v Wright

[1996] QCA 35

COURT OF APPEAL

[1996] QCA 035

MACROSSAN CJ
McPHERSON JA
DAVIES JA

CA No 437 of 1995

THE QUEEN

v.

MICHAEL JAMES WRIGHT                  Applicant

BRISBANE

..DATE 02/02/96

JUDGMENT

THE CHIEF JUSTICE:  We have an application in respect of the sentences imposed upon a young offender.  The applicant was involved in these offences on dates in September of 1994.  There were offences of breaking and entering with intent, breaking, entering and stealing and two cases of wilful damage all involving a complainant Heggarty and then there were three more cases of wilful damage in the night-time.  It was Heggarty's house property under construction which was the subject of the damage caused in the first group of offences.  In the second, a window of a householder was damaged and also two cars were damaged.  The amount of damage caused was, as I shall indicate in a moment, substantial.  There is no doubt about that.

The sentences imposed were these.  For the first four, as I have indicated, involving Heggarty's property the sentence imposed was a three years custodial term.  However, the Judge ordered that it be suspended.  In respect of the remaining three offences, the wilful damage in the night-time, it was ordered that three years probation be served, 240 hours of community service performed and compensation be paid in a figure which it may not be easy to state definitely and finally, because the Judge specified two conflicting bases on which the compensation should be paid.  Other than recording the point of difference between the two approaches, it is not necessary in my opinion to conclude exactly  the effect of the Judge's compensation order.

The area of difficulty is the Judge ordered that compensation totalling $4,985.70 be paid and by a separate part of his order he announced periodic instalments to be paid over a period which would have produced only a total of $3,900.  However, for the approach I adopt I need to take that no further.

The offences involving Heggarty concerned a newly built house or it may have been, as I think I said earlier, a house still under construction in the suburb of Forrest Lake.  The applicant and a co-offender entered the house and splashed paint lavishly around.  To add to the injury, and indeed the insult involved, when the complainant following the first attack upon his property had secured his house, the offenders returned and splashed more paint around, and took away ceramic tiles and other property.  The registration number of the vehicle that the offenders had used was noted and the police were alerted.

A couple of days later, the applicant and two others drove down a road in Kenmore Hills with wheelie-bins attached to the back of the vehicle they were driving and as they went along they threw rocks at parked cars and houses.  Substantial damage was caused in this episode.  A Holden Commodore sustained damage and a Datsun 120Y was also damaged and a bedroom window of a householder was damaged.

The sentencing Judge has recorded a total of $28,000 for the damage and loss caused.  Whether he intended to state that as the total of the damage to the house property alone or the total to all of the property involved together is not entirely clear to me, but there is no need to delay on that.  There was certainly significant damage caused;  that is obvious.  The Judge referred to an orgy of destruction.

Undoubtedly, the conduct was grossly anti-social and, without any doubt either, significant criminal offences were committed in the course of all of this behaviour.  There was every basis for the offences to be treated with due seriousness by the sentencing Judge.  However, the applicant was only a 19 year old at the date the offences were committed.  Certainly he was of an age when he should have learnt to control anti-social tendencies more than he did.  But nevertheless he was still a young man.

He had no previous convictions of any significance.  There was only in his history what has been described to us as a regulatory offence.  It was an offence committed in February of 1993, one of stealing from a shop in respect of which he was convicted and fined $75.  It is true, therefore, to say that the applicant had no significant criminal history.

Nevertheless, it might be thought from those facts I have indicated that there could be some difficulties in the way of the application, that is because of the offences committed and their consequences having in mind the sentences which were imposed, including the suspended sentence, the order for the payment of compensation and the order for probation and community service.

Counsel for the applicant, however, puts her application in effect totally upon the basis that a necessary degree of parity in sentencing was not observed.  The co-offender, Moran, involved with the applicant was dealt with by a different Judge of District Courts in February 1995.  That offender was about the same age and in his case there was an order made that he perform 200 hours of community service and that he serve out a period of three years probation.

Now, from what I have already indicated, it is apparent that the present applicant had an order made for the performance of an additional 40 hours of community service.  He had an order made against him for the payment of significant compensation without there being any contribution under an order made against Moran, and he had also - and it is of significance - a sentence imposed of three years imprisonment, even though it was totally suspended.  Moran, it is true, had no previous convictions at all but the applicant's criminal history was not significant, or not so as to have resulted in different treatment of the two offenders.

The sentencing Judge in the present case made some references to the demands of what might be called parity in the situation.  He announced that he had to recognise the desirability of imposing a like sentence to that imposed upon Moran by another Judge.  He indicated that he observed the desirability of not encouraging feelings of discontent or injustice by departing from that principle but he announced also that he did not intend to follow it slavishly.

In my opinion, the situation of the two offenders being so similar, it was not really open to the present sentencing Judge to depart to such an extent in the level of sentencing that he imposed as compared with the earlier treatment of Moran.  He may well have been of the view - undoubtedly he
was - that the sentences imposed upon Moran were light and unduly light, but they nevertheless should have been recognised by the present Judge as imposing a greater restriction on his freedom to act.  He has departed in a way which can only be regarded as quite significant from the level of sentences imposed on Moran and there is not in the circumstances a factor, in my view, which would justify it.

In the result, therefore, feeling as I do that insufficient recognition has been given to the parity principle, I would allow the application and the appeal against sentence and in lieu substitute an order for the same sentences as were imposed in the case of Moran, that is for three years probation and 200 hours community service.  From some points of view, it is unfortunate that such a conclusion should be necessary but, viewing the matter broadly in my opinion, it is desirable and indeed necessary to come to that conclusion and I would for myself so order.

Mrs Richards, if any such order became the order of the Court, can we take it that the present applicant is aware of what is involved in the order for-----

MRS RICHARDS:  He is already on probation.

THE CHIEF JUSTICE:  Very much aware, yes, of what is involved in the community service and probation order.

MRS RICHARDS:  Yes.

THE CHIEF JUSTICE:  Yes, thank you.

McPHERSON JA:  I do not consider that the reasoning of the majority in Queen v. Lowe compels the conclusion that the sentence should be interfered with on appeal.  I would therefore dismiss the application.

DAVIES JA:  I agree with the reasons from the Chief Justice and the order which he proposes.

THE CHIEF JUSTICE:  That will then be the order of the Court.

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