The Queen v Whitehouse[1998] QCA 200

COURT OF APPEAL

McPHERSON JA

DEMACK J

HELMAN J

CA No 135 of 1998

THE QUEEN

v.

GORDON KEITH WHITEHOUSE (Applicant)

BRISBANE

DATE 26/06/98

JUDGMENT

HELMAN J:  On 23 March this year in the District Court at Southport the applicant pleaded guilty to twenty-three counts of property offences on two indictments, two counts on one and twenty-one on the other.  Three of those offences were committed before his seventeenth birthday.  The learned sentencing judge adjourned further hearing of the case until 27 April, to enable a pre-sentence report to be made pursuant to the provisions of the Juvenile Justice Act 1992.  A report dated 24 April was provided, and on 27 April the applicant pleaded guilty to six further counts of property offences on a third indictment.  In the result he had pleaded guilty to:

twelve counts of breaking, entering and stealing; two of breaking, entering and wilfully damaging property; one of breaking and entering with intent, three of attempted breaking and entering with intent; one of stealing, seven of unlawfully using a motor vehicle with a circumstance of aggravation, one of unlawfully using a motor vehicle, one of attempting unlawfully to use a motor vehicle, and one of bringing stolen goods into Queensland.

His Honour sentenced the applicant to detention for fifty-five days for each of three of the offences:  the two of breaking and entering and wilfully damaging property, and one of breaking, entering and stealing.  Those were the three offences which were committed before the applicant's seventeenth birthday when he ceased to be a child as that term is defined in the Juvenile Justice Act.  The applicant had been in custody for fifty-five days, which period was treated as time served under the sentences of detention.  The sentences for those three offences are not the subject of any complaint, but the remainder are.  The applicant says that the other sentences were manifestly excessive. 

On each of the remaining counts of breaking, entering and stealing his Honour sentenced the applicant to imprisonment for five years, on the count of breaking and entering with intent to imprisonment for three years, on each of the counts of attempting to break and enter with intent to imprisonment for two years, on the count of stealing to imprisonment for two years, on each of the counts of unlawfully using a motor vehicle with a circumstance of aggravation to imprisonment for four years, on the count of unlawfully using a motor vehicle to imprisonment for two years, on the count of attempting unlawfully to use a motor vehicle to imprisonment for one year, and on the count of bringing stolen goods into Queensland to imprisonment for two years.  His Honour recommended that the applicant be considered for parole after having served two years. 

The goods stolen were bicycles, car accessories, alcoholic liquor, jewellery, gold coins, watches, golf clubs and accessories, and clothing.  The value of property not recovered and the damage to buildings was assessed at $174,597. 

A chainsaw was used on one building, but the most serious aspect of the case was the number of ram-raids - smashing into buildings in stolen cars - to which the applicant was a party.  There were six in all of those incidents.  At the time of the commission of all but one offence alleged on the indictment which contained twenty-one counts the applicant was on probation, and three other offences alleged on that indictment were committed while he was the subject of an immediate release order. 

His Honour noted that as a child the applicant had had a very bad criminal record, but his Honour added that in saying that he was conscious of the fact that in sentencing the applicant as an adult there were limitations on how much of it he could have regard to. 

In sentencing the applicant as an adult his Honour had regard to the number of offences he had committed, the seriousness and prevalence of those offences, and the fact that a number of them were ram-raid offences.  His Honour also had regard to the damage that had been caused in committing those offences, and the value of unrecovered property. 

His Honour took into account the fact that the applicant had pleaded guilty to the charges, and to the fact that he had co-operated with the police officers when the offences were being investigated, revealing to the officers many of the offences which might otherwise not have come to light had he not been so co-operative.  His Honour also, of course, took into account the youth of the applicant.

The applicant's history of committing offences as a child was, as I have mentioned, before his Honour.  It revealed a number of convictions including convictions for robbery, assault, unlawful use of motor vehicles, stealing, serious assaults, assaults occasioning bodily harm, and escaping from lawful custody.

Before us, Mr Hunter, on behalf of the applicant, relied on the fact that this was the first time that the applicant had been sentenced to a term of imprisonment, and argued that the sentence failed properly to give effect to the applicant's extreme youth and his co-operation with the police.  Mr Hunter submitted that the recommendation for parole, which would result in the applicant's being released on parole only six months earlier than the automatic half-way point, did not give sufficient discount for the applicant's co-operation.

Mr Hunter referred us to two unreported decisions of this Court which he said were comparable in some respects with this case, while conceding that this case reveals more serious offences.  They were:  R v. Hough (C.A. no 199 of 1991, 8 November 1991) and R v. Brodie (C.A. no 369 of 1995, 15 November 1995).  Mr Hunter conceded that the range within which the sentence should have been imposed was imprisonment for three to four years and urged that a recommendation for parole after twelve to eighteen months would have been appropriate.

It appears to me that this case is in a different category from the ones to which Mr HUnter referred in this respect:  that there were six instances of ram-raid offences here and the amount of damage done and property lost was substantial, whereas neither of the cases to which he referred us could be said to have involved offences of such gravity, although they were cases of offences by young persons.  The ram-raids and the amount of property lost and damage done lead me to conclude that the sentence imposed by his Honour was within the range of a proper sentencing discretion, and that the recommendation made by his Honour adequately reflected the mitigating factors apparent in this case.  In the result I should refuse the application.

McPHERSON JA:  I agree.

DEMACK J:  I agree.

McPHERSON JA:  The order is that the application for leave to appeal is dismissed.