The Queen v H

[1992] QCA 445

COURT OF APPEAL  [1992] QCA 445

PINCUS JA
de JERSEY J
WHITE J

CA No 246 of 1992

THE QUEEN

v.

HApplicant

BRISBANE

DATE: 22 OCTOBER 1992

JUDGMENT

PINCUS JA: This is an application for leave to appeal against sentence. The applicant is a boy who was born on 13 July 1977, and he appeals against sentence imposed under the Children’s Services Act, which remitted him to care and control for 2 years and recommended strict custody for a period of 4 months. The occasion of his being so sentenced was that the applicant was involved in a series of related incidents on 7 August 1992, and in consequence of that, he was convicted of an offence of doing wilful and unlawful damage.

He was also charged at the same time with other related offences, namely indecent language and resisting a member of the police force in the execution of his duty.  It does not seem to be necessary to say anything about those, other than to mention that, in respect of the indecent language charge, the applicant was admonished and discharged; in respect of resisting a police officer, he was convicted and ordered into the supervision of the department for 6 months.

The complaint relates to the sentence imposed in respect of the wilful and unlawful damage charge.  The Magistrate convicted the applicant on that charge, and ordered him into the care and control of the Department for a period of 2 years with 4 months in strict custody.  There was also a restitution order made in relation to that matter.

The sole complaint which Mr Alcorn, who appears for the applicant, makes concerns the recommendation of 4 months in strict custody.  He says, in effect, that the sentence reflected an unduly serious view of the incident in which the applicant was involved, and it is perhaps necessary to say something about what that incident was.

There is a statement from the man called Donoghue, who says that he went on the day in question (7 August 1992) to a youth centre in Chinchilla, and saw there one Blower, who was the treasurer and vice-president of the centre, talking to the applicant about his language, which was said to be obscene.  Blower asked the applicant to leave.  The applicant would not go, and continued swearing.  He started to walk out of the room which he was in.  Blower and Donoghue followed him.  The applicant was still using obscene language.  He offered to fight one or both of them.  Then they kept on asking him to leave, the applicant swung a punch at Donoghue which hit him on the bottom lip.  The applicant started swinging, tried to punch again.  People took hold of him.  He continued with his bad language and, to cut a long story short, was ultimately, after further difficulty, and causing serious damage to the premises, evicted.  It is not suggested that this was in any way excusable other than, as Mr Alcorn says, he had taken liquor at the time.

The applicant apparently has not performed very well to date in relation to the laws of the country and the laws of the State.  He has a series of convictions starting at the age of 10; the most recent group were committed in February this year, involving 5 counts of breaking and entering, and 2 counts of unlawful use of a motor vehicle.  In respect of those offences, the applicant was given a similar penalty - that is, he was committed to care and control for 6 months.  On that occasion the recommendation was for 3 months strict custody.  It appears that if he served that period of strict custody he must have come out at the beginning of July, and about a month later committed the offences with which we are now concerned.

The only other matter that seems to me to be relevant is that during the period when the matter was being heard in the Magistrates Court, according to the evidence before us (which is not disputed), he behaved in a way which apparently did give the Magistrate the impression that he simply did not care what was happening and what he had done.  The circumstances are such that the Magistrate, faced with the difficult problem of a recalcitrant, persistently recalcitrant child, has taken the view that a slightly longer period of strict custody than had previously been ordered was appropriate.  I am far from thinking that he was wrong in doing that, and I would dismiss the application.

de JERSEY J:  So would I for those reasons.

WHITE J:  Yes, I agree for the reasons expressed by the learned presiding Judge.

PINCUS JA:  The order will be the application is dismissed.