The Queen v B[1997] QCA 188

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 203 of 1997

Brisbane

[R. v. B]

THE QUEEN

v.

B

(Applicant)

Dowsett J.

Mackenzie J.

Helman J.

Judgment delivered 27 June 1997

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.  APPEAL ALLOWED.  SENTENCE BELOW SET ASIDE AND A PROBATION ORDER FOR A PERIOD OF TWO YEARS CONTAINING THE REQUIREMENTS PROVIDED FOR IN SECTION 132(1) JUVENILE JUSTICE ACT 1992 SUBSTITUTED.  CONVICTIONS NOT RECORDED.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 203 of 1997

Brisbane

[R. v. B]

THE QUEEN

v.

B

Applicant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 27 June 1997

On 10 March this year the applicant, who was born on 10 April 1981 and so is a child as defined in s. 5 of the Juvenile Justice Act 1992, came before the Southport District Court on two counts of stealing from the person (counts 1 and 2), one count of robbery (count 3), and two counts of robbery with personal violence (counts 4 and 5).  He pleaded not guilty to count 1 and guilty to the remaining counts.  The case was then adjourned and came on again on 29 April when a nolle prosequi was entered on count 1 and the applicant was discharged on that count.  The learned sentencing judge, having received a pre-sentence report dated 18 April 1997 from a Family Services officer of the Department of Families, Youth and Community Care, then proceeded to hear submissions concerning the appropriate orders to be made on the counts to which the applicant had pleaded guilty.  Having done so his Honour sentenced the applicant to detention for twelve months.

The applicant has applied for leave to appeal against the sentence on the ground that it was manifestly excessive in the circumstances.

The offences for which the applicant was sentenced were all committed in and around the Pines shopping centre at Elanora on the Gold Coast in the middle of 1996.  The victim of the offence alleged in count 2, which was committed on 14 June 1996, was a school boy from whom the applicant stole $5.00 in the shopping centre carpark.  The victim of the robbery alleged in count 3, which was committed on 19 June 1996, was a pensioner.  She was in the shopping centre carpark when the applicant ran up behind her, struck her on the right shoulder, and snatched her handbag from her right hand.  He stole the handbag, a purse, and $120.00 in cash.  Immediately after the incident the pensioner suffered an asthma attack, and she was unable to regain her breath immediately because her medicine was in the stolen handbag.  She suffered bruising to her wrist and shoulder.  The victim of the offence alleged in count 4, which was committed on 26 June 1996, was another pensioner, who was aged sixty-nine years.  She was in the underground carpark of the shopping centre when the applicant grabbed her left arm and the strap of her handbag.  He stole the handbag, a purse, and $160.00.  The victim of the offence alleged in count 5, which was committed on 7 July 1996, was a boy aged sixteen years who was walking along Guineas Creek Road near the shopping centre.  The applicant approached him, punched him three times causing him to fall to the ground, and then kicked him twice.  The applicant stole the boy's mobile telephone, a wallet, and $10.00 in cash.

The applicant was interviewed by police officers on 26 June 1996 when he admitted that he had committed the offences alleged in counts 2, 3, and 4.  He was arrested and later granted bail.  He was again interviewed on 8 July 1996 and admitted to the offence alleged in count 5, which was committed when he was at large on bail in connexion with the three earlier offences.

The applicant's early home life was not happy.  His parents separated as a result of his father's drunkenness, drug taking, and violent behaviour.  Before the commission of the offences the applicant had been expelled from school and had left home.  His mother, with whom he had lived, had insisted that his behaviour in the home improve, or, if it did not, he leave home.  The applicant chose to leave home.  He had no money after he left home and the offences were committed to obtain money for food.

Following the applicant's arrest for the offence alleged in count 5 he came before the Children's Court at Southport on 9 July 1996 where he was refused bail.  He remained in custody for four days.  On 12 July 1996 a further application for bail was made and he was granted bail on his own undertaking with a number of conditions: that he attend a rural training course on a station near Rockhampton for two months, that he otherwise reside with his mother at Currumbin, that he obey her house rules, and that he observe a curfew between the hours of 6.00 p.m. and 6.00 a.m.  The applicant completed the training course and then worked as a labourer for a carpenter at Moranbah, who thought him both reliable and enthusiastic in his work.  He then returned to live with his mother at Currumbin and remained with her until he was sentenced.  Prior to his being sentenced he had been employed by a signwriting company at Burleigh Heads from October 1996.  He was found by that employer to be honest and reliable.

The applicant had been before a court only once before he committed the offences for which he was sentenced: on 31 January 1995 he came before the Children's Court at Southport on a charge of stealing, for which he was reprimanded.  He was again before that court on 4 November 1996 charged with a minor drug offence.  No conviction was recorded and he was reprimanded.

Mr D. Lynch, who appeared before us for the applicant, relied on a number of matters on his behalf: that the applicant was just fifteen at the time of committing the offences, his family circumstances at the time when the offences were committed, the change in his circumstances since the commission of the offences, that he was employed when he was sentenced, that the applicant had made offers of compensation, his co-operation with investigating police officers, his pleas of guilty, and his expressions of remorse which were conveyed to the learned sentencing judge.

A court must have regard to the general principles of juvenile justice when sentencing a child: s. 109(1)(b) of the Juvenile Justice Act.  Those principles are set out in s. 4 of that Act.  His Honour made it plain that he had given consideration to the important principle that a child should be detained in custody for an offence only as a last resort: see s. 4(c)(i) previously numbered 4(b)(i), and also s. 109(2)(e) and s. 165.  Those and other provisions of the Act were discussed recently in R. v. F and P (unreported, C.A. nos. 114 and 112 of 1997 respectively, reasons for judgment delivered on 2 May 1997).  His Honour said that he had given careful consideration to the contents of the pre-sentence report - in which, after setting out the sentencing options, the author gave a summary emphasizing the advantages of community-based orders - and to the submissions of the applicant's solicitor, who urged his Honour to make non-custodial orders.  His Honour concluded, however, that a detention order was the only option open to him in the circumstances.  In arriving at that conclusion, his Honour took into account a disturbing feature of the case: that the offence alleged in count 5 - the most serious because it was the most violent - was committed at a time when the applicant was at large on bail.  His Honour observed that the offences were serious - which is undoubtedly so when one considers the effects on the victims apart from the loss of their property, were offences becoming more prevalent in the area in question, and were being committed by people about the age of the applicant.

The prevalence on the Gold Coast of violent offences of the kind in question, perpetrated on the weak and vulnerable, is no doubt a matter that weighed heavily with his Honour, and properly so.  It should also be observed that his Honour was, as a judge resident in the area, well able to assess the prevalence of such offences from his day-to-day working experience.

Giving the matters which led his Honour to make the order he did their full weight, we are nonetheless persuaded, with respect to his Honour's decision in a difficult case, that his sentencing discretion miscarried.  In our view his Honour failed to give sufficient weight in his deliberations to three important aspects of this case:  first, the substantial improvement in the applicant's behaviour since 12 July 1996; secondly, his acceptance of his mother's authority and return to her care; and thirdly, the fact that he had not had in the past the benefit of the supervision and guidance provided pursuant to a probation order.  Those considerations lead us to conclude that an outcome less severe than the last resort of an order for detention was called for.  We therefore conclude that the applicant should have leave to appeal against his sentence, the appeal should be allowed, the sentence imposed below should be set aside, and, subject to the applicant's indication to the Court forthwith in writing of his willingness to comply with the requirements of the next order we propose, a probation order for a period of two years containing the requirements provided for in s. 132(1) of the Juvenile Justice Act should be substituted.  Convictions should not be recorded.