The Queen v CJG

[2012] QChC 18

[2012] QChC 18

THE CHILDRENS COURT OF QUEENSLAND

JUDGE JONES

THE QUEEN

v.

CJG

TOOWOOMBA

..DATE 17/05/2012

SENTENCE

HIS HONOUR:  This is an application to review a sentence imposed by the learned Magistrate in the Childrens Court at Toowoomba where the applicant was sentenced in respect of one count of attempted unlawful use of a motor vehicle, two counts of enter dwelling and commit an indictable offence and one count of possessing tainted property.  The learned Magistrate sentenced the applicant to 10 months detention with release set after serving 70 percent of that time, that is, effectively, seven months, and a conviction was to be recorded.

At the time the offences were committed, the applicant was aged 15 and at the time of the sentence, as I understand it, had just turned or was nearly 16.

It is not necessary for me, on a review such as this, to have to specifically identify a error in the sentencing discretion exercised below.  But that aside, in my view, the sentence imposed by the learned Magistrate did miscarry in that it failed to have sufficient regard to the sentence imposed on the applicant's older brother, and also, in my view, failed to have sufficient regard to the role the applicant's brother played in all of the offences, and also, failed to have sufficient regard to what appear to be at least some prospects of rehabilitation in the future.

I should note, though, one can have some sympathy for the sentence imposed by his Honour when regard is had to the applicant's criminal history which dates back to when he was about 11 and 12.  It is nothing short of appalling, and it is littered with numerous property offences, burglary, enter, unlawful entry of vehicles.  The list goes on and on.

The background to the offending has been set out in the Crown's submissions.  I don't intend to go into them in any great detail, but the facts as set out are consistent with the observations made in the presentence report which is Exhibit 1 in these proceedings.  It seems quite clear to me that the applicant is a person prone to do whatever his older brother wants him to do.  And, in fact, from my reading of the material, the applicant was in bed asleep prior to these offences occurring, but his brother and a cousin woke him up to go, what is referred to as, "creeping".  But for the intervention of the applicant's brother, it seems to be quite likely that he would have slept the night through.  That, of course, doesn't provide an excuse, but it is a relevant consideration in my view.

In the presentence report, it is, as I've said, noted that the applicant finds it very difficult to say, "No.", to his brother and acts out of a strong sense of loyalty to his brother and also his extended family members.  It is also relevant that the applicant came from a fairly dysfunctional family background.  But as reported in the presentence report, it does appear that more recently this applicant has shown some insight into the sort of behaviour that he has been involved with in the past and has actually showed some signs of taking steps to become a more useful member of the community.  However, given his current level of offending thus far, while one certainly hopes that is the case, one nonetheless feels a degree of reservation about it.  But it is to his credit that he has attended two courses whilst in custody and has expressed an interest in obtaining employment in the rural industry in the more remote areas of Queensland.

On the 23rd of February 2012, the applicant's brother was sentenced in respect of the same offences that I'm dealing with here today.  The applicant's brother was 17 at the time, and as I understand it, in addition to being sentenced in respect of the offences I'm dealing with here today, he was also dealt with on a number of other offences.  He received various sentences.  The level of punishment depended upon the seriousness of the offence but the net effect of the sentence imposed on the applicant's brother was that he effectively was required to serve only two months of actual custody.  Now here, the applicant would have been required to serve some seven months.  The brother was not only older but he was clearly the initiator behind these offences.  The applicant was very much the follower.  It, of course, does not follow that because one person received a more lenient sentence than another that the harsher sentence is wrong.  However, in my view, the applicant here had every right to feel aggrieved and feel that justice had not been done in his case when comparing the sentence imposed on him with that imposed on his older brother.  And I should say here that his older brother had an equally appalling criminal history.

I should note here that His Honour the Learned Magistrate did not have the benefit of the brother’s sentences when dealing with the applicant.  That might explain why the issue of parity was not dealt with below.

I've been referred to a number of cases. I refer to R v. PMS [2011] Childrens Court 30; R v. TX [2011] QCA 068; R v. CDKS [2011] Qld Childrens Court 19; and R v. K [2001] QCA 551. It is not necessary for me to go into detail in respect of any of those cases because, consistent with my own views, the Crown accepts that the sentence imposed below was manifestly excessive in the circumstances and needs to be revisited.

On behalf of the applicant, it is contended that the appropriate sentence would be between five to six months to serve 50 per cent and taking into account time already spent in custody and presentence custody, that an immediate release date be ordered.   The Crown accepts that that would be an appropriate sentence and, as I've said, with custody served and presentence custody, that 50 percent or three months has effectively been met.

One further issue remains in dispute, namely whether the learned Magistrate's decision to record a conviction in respect of those sentences should be set aside.  The cases that I've read on this point indicate that in the case of a young offender, the prima facie starting point is that no conviction be recorded.  However, on balance, I consider, when regard is had to three factors in particular - first, the fact that the subject offences, whilst no violence was involved, are nonetheless serious charges; the second is the applicant's criminal history; and last, the fact that two convictions have already been recorded against him - have led me to conclude that it would not be appropriate to interfere with the learned Magistrate's decision on that point.

Now, can I just pause here?  Then the appropriate sentence - what I propose to do is impose a sentence of six months detention but just say that, having regard to the time - the 84 days spent, the 12 presentence custody - be ordered for immediate release as at today's date.

MR MACDONALD:  Yes, I understand your Honour can frame it that way exactly, your Honour.

HIS HONOUR:  Yes.  Now one thing I've noted is that sometimes there's been - I wouldn't call it a requirement, but that the applicant attend, was it a juvenile youth conference?

MR MACDONALD:  Yes, in this case, we would submit that it's not an appropriate case for that and your Honour doesn’t need to turn your mind to that.

Your Honour, Ms Acreman indicated that your Honour can combine them and make one sentence for all of the offending if your Honour would rather do that, rather than have a separate sentence for each one.

HIS HONOUR:  All right.  I suppose I'm just used to sentencing adults.  So I can make a global sentence for all four offences?

MS ACREMAN:  Yes, your Honour, it is slightly different to sentencing adult offenders but it will make any - if there is an instance of non-compliance in the future, the supervised release order will require one administrative action, rather than four separate ones, your Honour.  Thank you.

HIS HONOUR:  All right.  Well, thank you for that.  In respect of the one count of attempted unlawful use of a motor vehicle, two counts of enter dwelling and committing an indictable offence and the one count of possessing tainted property, you're to be sentenced to a period of six months detention and you'll be required to serve 50 percent of that term. 

And further, I order that, taking into account the 96 days of time served by way of post-sentencing custody and presentence custody, that taking those days into account it be ordered that you be released as at today's date, 17 May 2012.  As I've indicated, the sentence below insofar as it recorded a conviction will not be disturbed. 

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