The Queen v Knight[1997] QCA 55

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 524 of 1996

Brisbane

THE QUEEN

v.

GARTH WENDAL KNIGHT

(Applicant)

Macrossan CJ

McPherson JA

Byrne J

Judgment delivered 21 March 1997

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE IS DISMISSED.

CATCHWORDS: CRIMINAL LAW - ASSAULT - Juvenile Justice Act (1992) ss. 105 & 106 - Treated as adult - “Undue delay” of prosecution.

Counsel:  Ms. K. McGinness for the applicant

Mr D. Bullock for the respondent

Solicitors:  Legal Aid Office (Qld.) for the applicant

Director of Public Prosecutions (Qld.) for the respondent

Hearing Date:  26 February 1997

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21 March 1997

The applicant was born on 10 November 1977.  He was about 6 months short of his 17th birthday when on 30 May 1994 he occasioned bodily harm to two fellow students and a teacher at a TAFE College at Benowa by committing separate assaults on each of them.   Being a person who had not turned 17 years, the applicant was then a “child” as defined in s. 5 of the Juvenile Justice Act 1992.

In terms of the Act the applicant became an adult on 10 November 1994.  On 18 August 1995 he was charged with three counts of assault occasioning bodily harm arising out of his conduct on 30 May 1994.  There was a committal hearing in February 1996.  It was nevertheless not until 11 November 1996 (the day after his 19th birthday) that he was arraigned before the District Court at Southport.  He pleaded guilty to all three offences.  On the first two counts he was sentenced to probation for 2 years.  On the third count of assault on the teacher, which was the most serious of the three, he was sentenced to 240 hours community service.  He has committed further offences since becoming an adult.

He now applies for leave to appeal against the sentences imposed.

Sentencing an adult for an offence committed as a child is the subject of ss. 105 and 106^[1] of the Juvenile Justice Act 1992.  In ss. 105(1) and 105(2) a distinction is made according to whether proceedings for the offence are started only after the offender’s 18th birthday, or are started before but are not completed until after that birthday.  The distinction is related to the procedure to be followed, and has no apparent relevance to the sentence to be imposed.  In either case the offender is to be sentenced as an adult: see s. 105(1)(b) and s. 105(2)(d).

Section 105 must be read with s. 106 of the Act.  Section 106(1) provides that in sentencing an offender as an adult under s. 105, the court has jurisdiction to sentence the offender in any way that an adult may be sentenced.  That provision is qualified in s. 106(2) by requiring the court to have regard to (a) the fact that the offender was a child when the offence was committed; and (b) the sentence that might have been imposed on the offender if sentenced as a child.  Section 106(3) adds the further restriction that the term of any sentence of imprisonment, or the amount of any  fine, restitution or compensation, must be limited to that which might have been imposed on the offender if sentenced as a child.

The difficulty here arises from the operation of s. 105(3).  It provides that an offender “must not be treated as an adult” under s. 105 if the court is satisfied that there was “undue delay on the part of the prosecution in starting or completing the proceeding”.  Section 105(3) does not in terms say that the offender is to continue to be treated as a child; but the term “adult” is defined in s. 5 to mean “a person who is not a child”.  Since under the Act there is no intermediate category between child and adult, it appears to follow that what is meant is that, if s. 105(3) applies, the offender is to be treated (and therefore sentenced) as a child. The purpose of s. 105(3) is no doubt to ensure that proceedings for offences committed by  children are not left in abeyance until some time well after the offender becomes an adult.  One may to some extent sympathise with that policy; but s. 105(3) has the potential to produce unexpected and perhaps even absurd results.

The notion of artificially treating an older (and perhaps very much older) person as a child for the purpose of sentencing is fraught with problems that are bound to increase as that person grows older.  It seems  a clumsy method of promoting expedition on the part of the prosecution,  and it is one of which an aging child offender might sometimes be tempted to try to take advantage in order to avoid a heavier sentence.  Conversely, however, there are some provisions in the Act that do not necessarily operate so favourably to a person being sentenced as a child as the corresponding provisions of the Penalties and Sentences Act 1992 applicable to a person being sentenced as an adult.  An example that springs to mind is s. 188(1) of the Juvenile Justices Act, which requires a child to be released from detention after (but ordinarily not before) serving 70% of a period of detention imposed.  By contrast, an adult serving a sentence imposed under the Penalties and Sentences Act 1992 may receive from the sentencing court the benefit of an early recommendation for parole under s. 157(2) of the Act; and, even without a recommendation, may expect to be considered for parole at or soon after having served at least half of a term of imprisonment to which he was sentenced: Corrective Services Act 1988, s. 166(1)(b). 

In that respect and in some others that could be mentioned, it is evident that insufficient attention was given to the interaction of the various statutory regimes regulating sentences and sentencing.  The operation of s. 105(3) has since been curtailed by an amendment to the Act, which permits the offender to be sentenced as an adult if he has committed further offences after turning 17.^[2]  By good fortune or perhaps careful management, the applicant avoided that provision, which came into force a week after he was sentenced.

In the present case the proceedings against the applicant were started but not completed before his 18th birthday.  For what it matters, his case therefore falls within s. 105(2) rather than s. 105(1).  He contends that by virtue of s. 105(3) he ought to have been sentenced as a child or “not ... treated as an adult”, and that, as such, he was on being sentenced reasonably entitled to expect nothing more severe than admonition and discharge for the offences committed; or, at worst, an order to perform community service not exceeding in duration the maximum of 120 hours specified in the case of a child under s. 120(1)(e)(ii) of the Act.

It was, however, for the applicant to show that, within the meaning of s. 105(3), there was “undue delay on the part of the prosecution” in starting or completing the proceeding with respect to the offences charged.  Delay there certainly was.  The offences were committed on 30 May 1994, when he was a child; but the proceedings with respect to them were not started until 18 August 1995 (which was before he turned 18), and they were completed by his plea of guilty only on 11 November 1996, which was the day before his 19th birthday.  Section 105(2)(b) speaks of a proceeding not being “completed to a finding of guilty ...”; but under s. 5 the court’s acceptance of a plea of guilty is the equivalent of a “finding of guilty” for that purpose.  However, before s. 105(3) can operate to displace s. 105, there must be not merely delay but “undue” delay; and it must be delay “on the part of the prosecution”.  For this purpose the applicant relies not on the period that elapsed between the commencement of the proceedings by service of the summons on 18 August 1995, and their completion on 11 November 1996; but on the lapse of time between the commission of the offences on 30 May 1994 and the commencement of the proceedings on 18 August 1995.

There is not much information in the record to account for what happened during that period.  From the prosecutor’s statement at the sentence hearing, it emerges that, when on 30 May 1994 the applicant hit the back of the complainant in count 1 with a metal object, the applicant exclaimed “You can’t prove anything.  No one saw me”.  The incident was reported to a teacher at the college.  As to count 2, the applicant hit the complainant a blow “of considerable severity” with a clenched fist below the eye, and then again on the jaw.  The matter was reported but, it seems, only to other students.  In the case of the assault on the teacher, the complainant was hit with a clenched fist below his left eye.  The prosecutor’s statement records that the incident the subject of count 3 was reported  to the police. 

The court was  told that attempts were made to find the applicant, and on 26 April 1995 his place of residence was located.  He was then living with his parents at Marsden, and the investigator who went there was informed by the applicant’s father that the applicant could not be spoken to at that time because of his medical condition.  The father also said that they did not have a telephone at that address.

The police returned about a fortnight later and again spoke to the applicant’s father, who said the applicant was out.  Apparently a calling card was left, and over the next week two calls were made by the applicant to the police but at times when the police investigator happened not to be on duty.  According to the arresting officer’s written statement at committal, he heard nothing more from the applicant until 18 August 1995, when the initiating summons was issued and served.  The only other matter of relevance mentioned at the sentence hearing was that the proceedings might have been “slowed down” by the movement of police records from one district to another.  Marsden is, it may be inferred, in a different police district from Benowa.

It is evident that proceedings were not instituted with alacrity; but it is also difficult to avoid the impression that the applicant himself shared responsibility for some of the delay.  At the sentence hearing he gave no account or explanation of his whereabouts or address at or after 30 May 1994, and there is nothing to suggest that locating and serving him with the summons would have been a simple matter.  He was not obliged to facilitate his own prosecution; but that does not mean that there was undue delay on the part of the prosecution in starting the proceedings for these offences.  If there was “undue” delay between 30 May 1994 and 18 August 1995, the applicant himself appears to have contributed to it.

At all events, there is on this appeal no firm basis for holding that the sentencing judge was wrong in regarding the statutory prerequisite to the operation of s. 105(3) as not being satisfied on the material before him.  There is nothing concrete to show who was responsible for the delay.  On that footing, the sentencing process was governed by s. 106.  Under the provisions of that section, the applicant fell to be sentenced as an adult, subject to the limitations imposed by s. 106(2) and s. 106(3).  Those provisions of the Juvenile Justice Act do not restrict the power of a court to place a person on probation with his consent (which was given by the applicant here), or to require him to carry out the maximum of 240 hours of community service fixed under the Penalties and Sentences Act.  Apart from the submission based on s. 105(3), it was not suggested that the sentence imposed was inappropriate or excessive.

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