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R. v. M

 

[1996] QCA 454

 

IN THE COURT OF APPEAL

 

SUPREME COURT OF QUEENSLAND

 

C.A. No. 194 of 1996

 

Brisbane

 

[R. v. M]

 

THE QUEEN

 

v.

 

M

(Applicant)Appellant

Derrington J

Mackenzie J

White J

Further judgment delivered 11 October 1996

Judgment of the Court

The order made on 20 September 1996 is vacated save that the application is granted and the appeal allowed.  Set aside the sentences of detention imposed below.  Order the applicant to be admitted to probation for a period of 2 years on the following conditions, namely, that the applicant

  1. must not commit another offence during the period of the order; and
  1. must report to an authorised commission officer at Caloundra within 24 hours of his release; and
  1. must report to, and receive visits from an authorised commission officer as directed by the officer; and
  1. must take part in counselling and satisfactorily attend other programmes as directed by the court or an authorised commission officer during the period of the order; and
  1. must notify an authorised commission officer of every change of the offender's place of residence or employment within two business days after the change happens; and
  1. must not leave or stay out of Queensland without the permission of an authorised commission officer; and
  1. must comply with every reasonable direction of an authorised commission officer; and
  1. must reside at the Youth Focus facility at Caloundra or such other place as the authorised commission officer may require.
CATCHWORDS:

Criminal Law - Arson of scouts hall - $186,000 worth of damage - Breaking and entering - 16 years of age at time of offence - No criminal history - Served 6 months - Whether should now be given opportunity of residing in youth residential centre.

Counsel:

Ms D. Richards for the Appellant

Ms L. Clare for the Respondent

Solicitors:

Legal Aid Office for the Appellant

Queensland Director of Public Prosecutions for the Respondent

Hearing Date: 1 August 1996

 

JUDGMENT - THE COURT

 

Judgment Delivered 11 October 1996

 

This proceeding has been reopened pursuant to s.188(2)(a) of the Penalties Sentences Act 1992 in that the Court in delivering its judgment imposed a sentence on 20 September 1996 which was not in accordance with the law.

We refer to the reasons which were delivered on 20 September 1996 where the background in respect of these matters is set out.  The applicant was sentenced as a juvenile.  He was charged with arson, and breaking, entering and stealing each of which is a "serious offence" pursuant to s.8(1) of the Juvenile Justice Act.  Section 121(1) provides that if a child is found guilty of a serious offence the court may:-

order the child to be placed on probation for a period not longer than 3 years; or

make a detention order against the child under sub-s. (2) or (3).  Sub-sections 2 and 3 relate to periods of detention not relevant on this application.

Section 121 does not limit a court's power to make an order under s.120 which deals with sentences generally, s.121(4).  Section 120(1) permits a court, inter alia, to place a child on probation or detain the child.  Section 120(2) provides:-

"Only 1 order allowed by sub-s.(1) may be made by a court in sentencing a child for an offence."

It is thus clear that a child may be sentenced either by way of an order for probation or a detention order but not both.  Section 123 applies if a court makes more than one sentence order against a child charged before it with more than one offence.  Section 123(2) provides that the court may combine more than one of the sentence orders in one order form if each sentence order that the form deals with is:-

  1. of the same type; and
  1. subject to similar conditions.

Section 188 of the Juvenile Justice Act 1992 provides that:-

A child sentenced to serve a period of detention must be released from detention after serving 70% of the period of detention; or

The court may order a child to be released from detention after serving 50% or more and less than 70% of a period of detention if it considers that there are special circumstances, for example, to ensure parity of sentence.

The immediate release order under s.183 appears to be another sentencing option which is akin to a suspended sentence imposed pursuant to Part 8 of the Penalties and Sentences Act.  Thus the order of the court given on 20 September 1996 imposed a sentence which could not lawfully be imposed.

In those circumstances the order should be recast to give affect to the intention of the court.  The applicant has now spent over 6 months in detention in an adult prison which is the equivalent of a more than 12 month sentence.  Accordingly, the periods of detention imposed below in respect of both offences should be set aside and in lieu thereof a period of 2 years probation should be imposed in respect of both offences on the conditions set out in the judgment of 20 September 1996.  The formal orders are:-

The order made on 20 September 1996 is vacated save that the application is granted and the appeal allowed.  Set aside the sentences of detention imposed below.  Order the applicant to be admitted to probation for a period of 2 years on the following conditions, namely, that the applicant

  1. must not commit another offence during the period of the order; and
  1. must report to an authorised commission officer at Caloundra within 24 hours of his release; and
  1. must report to, and receive visits from an authorised commission officer as directed by the officer; and
  1. must take part in counselling and satisfactorily attend other programmes as directed by the court or an authorised commission officer during the period of the order; and
  1. must notify an authorised commission officer of every change of the offender's place of residence or employment within two business days after the change happens; and
  1. must not leave or stay out of Queensland without the permission of an authorised commission officer; and
  1. must comply with every reasonable direction of an authorised commission officer; and
  1. must reside at the Youth Focus facility at Caloundra or such other place as the authorised commission officer may require.

 

IN THE COURT OF APPEAL

 

SUPREME COURT OF QUEENSLAND

 

C.A. No. 194 of 1996

 

Brisbane

 

[R v. M]

 

THE QUEEN

 

v.

 

M

(Applicant)Appellant

Derrington J

Mackenzie J

White J

Judgment delivered 20 September 1996

Further order delivered 11 October 1996

Further order delivered 24 October 1997

Further order of the Court

THE ORDERS MADE ON 20 SEPTEMBER 1996 AND 11 OCTOBER 1996 ARE VACATED SAVE THAT THE APPLICATION IS GRANTED AND THE APPEAL ALLOWED.  SET ASIDE THE SENTENCES OF DETENTION IMPOSED BELOW.  ORDER THAT THE APPLICANT BE ADMITTED TO PROBATION FOR A PERIOD OF TWO YEARS, PURSUANT TO S.120(1)(D) OF THE JUVENILE JUSTICE ACT 1992, ON THE FOLLOWING CONDITIONS, NAMELY THAT:

1.THE APPLICANT MUST REPORT IN PERSON TO THE CHIEF EXECUTIVE WITHIN ONE BUSINESS DAY OF THIS ORDER BEING MADE; AND

2.THE APPLICANT MUST, DURING THE PROBATION ORDER -

(A)ABSTAIN FROM VIOLATION OF THE LAW; AND

(B)CARRY OUT THE LAWFUL INSTRUCTIONS OF THE CHIEF EXECUTIVE; AND

(C)REPORT AND RECEIVE VISITS AS DIRECTED BY THE CHIEF EXECUTIVE; AND

(D)NOT LEAVE, OR STAY OUT OF QUEENSLAND DURING THE PROBATION PERIOD, WITHOUT THE PRIOR APPROVAL OF THE CHIEF EXECUTIVE; AND

(E)NOTIFY THE CHIEF EXECUTIVE WITHIN TWO BUSINESS DAYS OF ANY CHANGE OF ADDRESS OR EMPLOYMENT; AND

(F)RESIDE AT THE YOUTH FOCUS RESIDENTIAL FACILITY AT CALOUNDRA DURING SUCH TIME OR TIMES AS THE CHIEF EXECUTIVE MAY DIRECT.

CATCHWORDS:

CRIMINAL LAW - Arson of scouts hall - $186,000 worth of damage - Breaking and entering - 16 years of age at time of offence - No criminal history - Served 6 months - Whether should now be given opportunity of residing in youth residential centre.

Counsel:

Ms D. Richards for the applicant

Ms L. Clare for the respondent

Solicitors:

Legal Aid Queensland for the applicant

Queensland Director of Public Prosecutions (Queensland) for the respondent

Hearing Date: 1 August 1996

 

IN THE COURT OF APPEAL

 

SUPREME COURT OF QUEENSLAND

 

C.A. No. 194 of 1996

 

Brisbane

 

Before

Derrington J

Mackenzie J

White J

 

[R v. M]

 

THE QUEEN

 

v.

 

M

(Applicant)Appellant

 

REASONS FOR FURTHER ORDER - THE COURT

 

Judgment delivered 20 September 1996

Further order delivered 11 October 1996

Further order delivered 24 October 1997

 

This proceeding has been reopened pursuant to s.188(2)(a) of the Penalties and Sentences Act 1992 in that the Court in delivering its judgment imposed a sentence on 11 October 1996 which was not in accordance with the law.  The Court may reopen a proceeding on its own initiative, s.188(5), and the parties must be given an opportunity to be heard, s.188(3)(a).  That has occurred.

On 1 August 1996 this Court heard the applicant’s application for leave to appeal against sentence.  An order was made on 20 September 1996, which was partly vacated and replaced by further orders on 11 October 1996.  The orders of 11 October 1996 were also made pursuant to a reopening of the original application proceeding under s.188(2)(a) of the Penalties and Sentences Act 1992.

Although the applicant was dealt with as if he were a child by this Court, the terms of the probation order made on 11 October 1996 correspond with the requirements for adult probation orders in s.93 of the Penalties and Sentences Act 1992.  They differ from the requirements of a probation order made under the Juvenile Justice Act 1992, s.132 in a number of material particulars.  The important difference here is that under the Juvenile Justice Act the offender must report to and be supervised according to the instructions of the chief executive of the Department administering the Juvenile Justice Act, s.132(1), whereas an adult probation order requires reporting to and complying with the directions of an authorised Corrective Services Commission officer belonging to a separate office, s.93 Penalties and Sentences Act 1992.  The order made on 20 October 1996 does not comply with the requirements of s.132 of the Juvenile Justice Act insofar as it refers to an “authorised commission officer” as the person to whom the applicant was required to report.

The applicant pleaded guilty on 22 March 1996 to offences committed on 30 June 1995.  His date of birth was 17 September 1978.  He was sentenced by Dodds DCJ on 29 April 1996.  The hearing of the application for leave to appeal from that sentence was on 1 August 1996 and an order made vacating that sentence order and imposing a different sentence was made on 20 September 1996.  Division 9 of the Juvenile Justice Act deals with child offenders who become adults.  A child is a person who has not turned 17 years, s.5.  The circumstances in which such a person must or may be sentenced as an adult are confined by ss.105, 106 to situations where the offence was committed as a child but a finding of guilt does not occur until one year has passed after the offender has become an adult.  Section 107A permits an order made against a person as a child in certain circumstances to be dealt with as an adult order.  Those circumstances are limited to proceedings arising out of the childhood sentence order.  Accordingly there was no power in this Court to impose an adult sentence order on the applicant.

The probation order of 11 October 1996, because of the requirements it contained, was a sentence imposed not in accordance with the law; s.188(1)(a) Penalties and Sentences Act.

Although it would be preferable to treat the applicant as an adult offender (he is now 19 years) there is no power to do so and the appropriate course is to amend the sentence to comply with the requirements of s.132 Juvenile Justice Act.  M has indicated his willingness to comply with such an order, s.133 Juvenile Justice Act.  Should he breach the terms of that order, it would then be open to the court dealing with that breach to apply s.107A of the Juvenile Justice Act.

The orders made on 20 September 1996 and 11 October 1996 are vacated save that the application is granted and the appeal allowed.  Set aside the sentences of detention imposed below.  Order that the applicant be admitted to probation for a period of two years, pursuant to s.120(1)(d) of the Juvenile Justice Act 1992, on the following conditions, namely that:

  1. the applicant must report in person to the chief executive within one business day of this order being made; and
  1. the applicant must, during the probation order -
  1. abstain from violation of the law; and
  1. carry out the lawful instructions of the chief executive; and
  1. report and receive visits as directed by the chief executive; and
  1. not leave, or stay out of Queensland during the probation period, without the prior approval of the chief executive; and
  1. notify the chief executive within two business days of any change of address or employment; and
  1. reside at the Youth Focus residential facility at Caloundra during such time or times as the chief executive may direct.
Close

Editorial Notes

  • Published Case Name:

    R. v. M

  • Shortened Case Name:

    R. v. M

  • MNC:

    [1996] QCA 454

  • Court:

    QCA

  • Judge(s):

    Derrington J, Mackenzie J, White J

  • Date:

    11 Oct 1996

Litigation History

No Litigation History

Appeal Status

No Status