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R v AAL

 

[2010] QCA 146

  

SUPREME COURT OF QUEENSLAND

  

PARTIES:

FILE NO/S:

DC No 9 of 2009

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

DELIVERED ON:

15 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2010

JUDGE:

Holmes JA, Cullinane and McMeekin JJ

Judgment of the Court

ORDER:

  1. The application for leave to appeal is granted
  2. The appeal is allowed
  3. The sentence is varied to include an order that the applicant be released after serving 50% of the period of three years detention imposed in the Children’s Court at Townsville on 11 December 2009

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to arson – where applicant sentenced to three years detention – where applicant had a prior criminal history – where arson committed whilst applicant on probation – where applicant also pleaded guilty to a further offence of wilful damage committed whilst awaiting sentence for the primary arson offence – where it was common ground that the arson occurred due to the criminal negligence of the applicant rather than a deliberate act of arson – where applicant admitted to the commission of the crime when no longer under suspicion – whether special circumstances existed to warrant that the applicant serve a proportion of detention less than the 70% provided for under the Juvenile Justice Act 1992 (Qld)

Juvenile Justice Act 1992 (Qld), s 227(2), s 208

AB v The Queen (1999) 198 CLR 111, [1999] HCA 46, applied

COUNSEL:

F Richards for the applicant

A Anderson for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

[1]  THE COURT:  The applicant who was born on 21 October 1991 seeks leave to appeal against a sentence of three years’ detention imposed on him by the Children’s Court on 11 December 2009 for the offence of arson.

[2] He was dealt with on the same day for various other offences committed somewhat later and was placed on probation or received lesser sentences.

[3] At the time of the arson he was 15.  He had a history of offending, largely involving property and dishonesty offences.  Of particular relevance was the fact that he was then subject to a six month probation order for lighting an unauthorised fire and certain other property offences also said to have involved the lighting of fires.

[4] Whilst he was awaiting sentence in respect of this matter, he pleaded guilty to a charge of wilful damage arising out of his setting fire to toilet paper in a service station toilet.  The fire was extinguished by staff at the service station.  The applicant had locked the door after starting the fire.

[5] In the early hours of 13 September 2007, a warehouse was destroyed by fire in Townsville.  Three businesses were conducted at the warehouse.  The combined loss and damage was estimated at just under $3 Million. 

[6] The fire was extinguished over a number of hours.  On investigation the seat of the fire was found to be an inner spring mattress under a demountable building next to the warehouse.

[7] The applicant was found in the area of the fire.  He denied any knowledge of it.

[8] Subsequently on 25 October 2007, the police spoke to the applicant about other matters.  At that time he volunteered that he had been responsible for the fire.  He informed the police that he initially lit a fire to keep warm but that it got out of control.  He told them that he tried to find something with which to put it out but then panicked and left.  He went to a park nearby until daylight when he went home.

[9] On his behalf the Court was told that on the night of the arson the applicant lit a small fire with twigs and grass to keep warm.  He went looking for discarded cigarettes and whilst he was away the fire started to spread initially to an area under the building and then to the building.  It was said that there were no mobile phones or public phones which could have been used to seek assistance.

[10]  It is common ground that the matter was dealt with upon the basis that the applicant’s criminal responsibility arose not from a deliberate act of arson on his part but rather because of his criminal negligence or as it was put to the sentencing Judge, because he acted “with reckless indifference to the likely consequences of starting a fire”.

[11]  When the applicant came before the Children’s Court he had already spent some 376 days in detention and a period on conditional bail.

[12]  The learned sentencing Judge had the benefit of pre-sentence reports including the report of a psychologist.  The applicant was assessed as being of border line intelligence.  The psychologist expressed the view that he possessed a tendency towards criminal proneness and his “firesetting assessment indicate[d] that he require[d] a dynamic-behavioural multi-faceted intervention plan, as the risk of further offending is high.”

[13]  His recommendation was expressed in these terms:

“It is recommended that the applicant participate in a dynamic-behavioural multi-faceted case management plan that includes his family.  Furthermore, if possible a referral to the ‘Fight Fire Fascination’ program, and a referral to a Doctor or Mental Health Team, Psychiatrist be made to consult the use of medication concerning his level of depression.”

[14]  In passing sentence, the learned sentencing Judge referred to the applicant’s failure to take advantage of probation and his continued offending whilst subject to such an order, the arson count being one of the offences committed whilst on probation.  In addition he referred to the very significant financial loss and interruption to the three businesses.  He noted that whilst the applicant may not have intended the destruction of the building he “did nothing to try and expedite any form of assistance to prevent that [loss]”.  He also referred to the fact that the applicant whilst awaiting sentence on the arson count was charged with a further offence involving the lighting of a fire.

[15]  The learned sentencing Judge whilst noting that the psychologist thought that the applicant might benefit from participating in certain courses had also expressed concern about his capacity to remain out of trouble in the future.

[16]  His Honour ultimately concluded that notwithstanding the psychologist’s recommendation as to a suggested programme and notwithstanding the lengthy time which the applicant had spent in pre-sentence detention, some order resulting in the applicant’s immediate release was not appropriate.

[17]  Counsel for the applicant was inclined initially to put the case on two alternative bases, namely that the three years’ detention was manifestly excessive or alternatively that an order should have been made under s 227(2) of the Juvenile Justice Act 1992 (Qld)[1] ordering the release of the applicant from detention after serving a proportion of the detention less than the 70% provided for.  It was the latter that he ultimately relied upon.  This can only be done if the Court considers there are special circumstances.

[18]  Section 208 of the Act gives expression to the fundamental policy that detention is to be ordered only if no other sentence is appropriate to the circumstances of the case. 

[19]  The Court was referred to a number of judgments of this Court and of the Childrens Court.

[20]  In our view the order that the applicant be held in detention for three years cannot be regarded as falling outside of the relevant range. 

[21]  There are undoubtedly serious features of the applicant’s conduct and the learned sentencing Judge justifiably emphasised these.

[22]  On the other hand there were important factors in the applicant’s favour.

[23]  He volunteered to the police his role in what had occurred at a time when it would appear he was not, or was no longer under, suspicion.  It would seem that without his confession the matter would have remained unresolved.

[24]  In AB v The Queen (1999) 198 CLR 111 Hayne J spoke of the importance of such a consideration at para 113:

“An offender who confesses to crime is generally to be treated more leniently than the offender who does not.  And an offender who brings to the notice of the authorities criminal conduct that was not previously known, and confesses to that conduct, is generally to be treated more leniently than the offender who pleads guilty to offences that were known.  Leniency is extended to both offenders for various reasons.  By confessing, an offender may exhibit remorse or contrition.  An offender who pleads guilty saves the community the cost of a trial.  In some kinds of case, particularly offences involving young persons, the offender’s plea of guilty avoids the serious harm that may be done by requiring the victim to describe yet again, and thus relive, their part in the conduct that is to be punished.  And the offender who confesses to what was an unknown crime may properly be said to merit special leniency.  That confession may well be seen as not motivated by fear of discovery or acceptance of the likelihood of guilt; such a confession will often be seen as exhibiting remorse and contrition.”

[25]  The learned sentencing Judge does not appear in his sentencing remarks to have referred to this consideration. 

[26]  The criminality involved in the deliberate setting fire to a building is of a considerably higher order than that involved here and full allowance has to be made for this in imposing sentence.  As has already been mentioned, the applicant had already spent some 376 days in detention at the time of sentence.

[27]  We think that these circumstances should be regarded as special in the relevant sense and justify setting a release date prior to the expiration of 70% of the term.

[28]  We would in the circumstances of this case regard an appropriate order to be that the applicant be released after serving 50% of the period of detention.

[29]  We would therefore grant the application, allow the appeal and vary the sentence by including an order that the applicant be released after serving 50% of the period of three years’ detention imposed in the Children’s Court at Townsville on 11 December 2009.

Footnotes

[1] Now titled Youth Justice Act 1992 (Qld).

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Editorial Notes

  • Published Case Name:

    R v AAL

  • Shortened Case Name:

    R v AAL

  • MNC:

    [2010] QCA 146

  • Court:

    QCA

  • Judge(s):

    Holmes JA, Cullinane J, McMeekin J

  • Date:

    15 Jun 2010

Litigation History

Event Citation or File Date Notes
Primary Judgment - - Criminal
Appeal Determined (QCA) [2010] QCA 146 15 Jun 2010 -

Appeal Status

{solid} Appeal Determined (QCA)