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  • Unreported Judgment

R v AL

 

[2003] QCA 189

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

DELIVERED EX TEMPORE ON:

8 May 2003

DELIVERED AT:

Brisbane

HEARING DATE:

8 May 2003

JUDGES:

McMurdo P, Williams JA and Holmes J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – JUVENILE OFFENDERS – DETENTION IN TRAINING CENTRE AND OTHER REFORMATORY SENTENCES – where applicant convicted of 39 offences – where applicant on probation at time of offending – where presentence report indicated that applicant showed little inclination to address his offending behaviour – where sentenced to 18 months detention with a further probation order for a period of two years – whether inappropriate to impose period of probation after a reasonably lengthy period of detention

Juvenile Justice Act 1992 (Qld), s 121C

COUNSEL:

B G Devereaux for the applicant
M J Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA:  The applicant pleaded guilty on 28 January 2003 to some 39 charges which were contained in three indictments presented to the Court.  Those charges included one of arson, one of burglary, one of attempted burglary, 14 unlawful entry or use of a motor vehicle with a circumstance of aggravation, two attempted unlawful use of a motor vehicle with a circumstance of aggravation, 10 of stealing, three of receiving, and three of wilful damage.  The offences were committed between 16 March and 21 October 2002.

The most serious of the offences was that of arson.  That offence was committed on 15 May 2002.  The applicant and another person were playing near an excavator, they entered it, soaked rags with petrol from its fuel tank and set it alight.  It was destroyed.  Its value was $50,000.

The offences were made more serious because the applicant had been before the Townsville Childrens Court on 2 April 2002 and then had been placed on probation for 12 months with a community service order requiring him to perform 200 hours of community service.  Those orders were made with respect to a large number of property offences which were dealt with in the Childrens Court on that date.

The applicant was aged between 15 and 16 at the time the offences were committed.  He was 16 at the time of sentence having been born on 11 August 1986.

A presentence report was obtained prior to the sentence being imposed.  It indicated that attempts by the probation case worker to have the applicant address his offending behaviour through probation were met with resistance.  The report said that:

"After completing only a few hours of the community service order imposed on 2 April 2002 the applicant's willingness to participate reduced dramatically and he eventually did not make himself available to participate in community service at all.  The applicant advised his case worker that he had decided not to participate in any further community service."

The report also says that:

"The applicant has shown little insight into the negative impact that his association with offending peers had on his own current association.  He stated that if he was released into the community he would continue to associate with some of his offending peers."

The applicant acknowledged for the purposes of that report that he had experimented with alcohol and marijuana and indicated that alcohol and marijuana made him feel less inhibited and less fearful of authority figures such as the police.  In consequence, the author of the report said that the applicant had shown little insight into the impact of his offending on victims and he did not wish to explore that issue further.  The report concluded by noting that:

"The applicant was not willing to comply with the requirements of another community service order."

In those circumstances, given the number, the serious nature of the offences and the fact that the offending in question had commenced within virtually a few days of being placed on probation, I am of the view that the only realistic option available to the sentencing Judge was to convict the applicant and make a detention order.

When the matter came on for sentence, the applicant had already served 185 days in detention.  The order imposed was 18 months detention for the 39 offences in question.  Given the fact that time had already been served in detention, the applicant would be entitled to release after serving 70 per cent, and that means that his release date would be 12 August 2003.  I also mention that the sentencing Judge disqualified the applicant from holding a drivers licence for a period of three years consequent upon the driving offences.

The sentencing Judge then turned to the breach of the earlier probation order established by the plea of guilty to the 39 additional offences.  Given what was contained in the presentence report, the learned sentencing Judge concluded that the applicant would require a significant period of supervision after his release from detention.  Because of that, he thought it appropriate to make a further probation order for a period of two years with respect to the breach of the earlier order.  That probation order would run until 28 January 2005, being for some 15/16 months after his release from detention.

The principal point raised by counsel for the applicant on this application for leave to appeal is that the total sentence as structured offended at least the philosophy underlying section 121C of the Juvenile Justice Act 1992.  It was said that that philosophy suggested that it was inappropriate to impose a period of probation after a reasonably lengthy period of detention.

In my view, the sentence as structured is not expressly prohibited by the legislation.  It seems to me that the applicant is able from the outset to comply with the requirements of the probation order and particularly given the observations in the presentence report, it is desirable, in my view, that he be subject to supervision for a reasonably lengthy period after his release from detention.

As I have said, detention was the only appropriate penalty to impose with respect to the 39 charges dealt with by the sentencing Judge on 28 January 2003.  In the circumstances, I cannot see that there is any error in the structure of the total sentence such as would warrant this Court interfering.  The application for leave to appeal against sentence should be refused.

THE PRESIDENT:  As Judge of Appeal Williams has demonstrated, the combination of sentences is not manifestly excessive given the serious and persistent nature of the offending and the juvenile's personal circumstances set out in the presentence report.  The offence of arson was especially serious.  It is an additional aggravating feature that many of the offences were committed whilst the juvenile was on probation.

The presentence report indicated that whilst in detention the applicant could be assisted to plan his future goals of living as a non-offending member of society.  It is plain that he will need some extensive supervision upon his release.  The combination of sentences imposed was not prohibited by the Juvenile Justice Act 1992 (Qld) nor did it offend the philosophy of that Act.  The combination of effectively a further period of actual detention of just over six months (he will be released after serving 70 per cent of the sentence and he had already served approximately six months at the time of his sentence, which is deemed to be time served under the sentence), followed by a period of probation, was completely appropriate.

The application for leave to appeal against sentence should be refused.

HOLMES J:  I agree with the reasons of both the President and Justice Williams and with the order proposed.

THE PRESIDENT:  That is the order of the Court.

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Editorial Notes

  • Published Case Name:

    R v AL

  • Shortened Case Name:

    R v AL

  • MNC:

    [2003] QCA 189

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Williams JA, Holmes J

  • Date:

    08 May 2003

Litigation History

No Litigation History

Appeal Status

No Status