The Queen v Gage[1998] QCA 243

COURT OF APPEAL

de JERSEY CJ

DEMACK J

HELMAN J

CA No 82 of 1998

THE QUEEN

v.

CHRISTOPHER RICHARD GAGE                    Applicant

BRISBANE

DATE 18/06/98

JUDGMENT

DEMACK J:  This is an application for leave to appeal against sentences imposed by Judge Pratt, QC in the District Court on 26 February 1998.The applicant is aged 17 years having been born on 12 July 1980.In the last year or so of those 17 the applicant has committed an appalling number of offences and some of those were committed while he was still a juvenile and some after he had attained the age of 17 years.

The matter, when it came before Judge Pratt, involved not only fresh offences that were presented for the first time on indictment before the Judge but also breaches of orders made in the previous year by Judge Forno, QC and also breaches of orders made in the Magistrates Court in 1997.

It is necessary to refer to all of these briefly to put in context what Judge Pratt was dealing with.On 19 June 1997 Judge Forno dealt with the applicant for five charges of stealing, one charge of breaking and entering with intent, one charge of entry of a dwelling house with intent, one charge of armed robbery in company with personal violence, and a charge of breaking, entering and stealing.In respect of that charge of armed robbery, the order was that the applicant be placed on probation for two years with special conditions to submit to alcohol and drug counselling as directed.In respect of all of the other charges orders for community service were made.The bulk of those were orders that the applicant serve 120 hours community service, the sentences to be served concurrently.But in relation to a stealing charge a further 20 hours was ordered.The total then was 140 hours community service.

The appearances before the Magistrates Court occurred relevantly in September 1997.On the 10th day of that month there were two charges of dishonesty and the applicant was ordered to serve three years probation.These offences were committed in August 1997 and consequently committed when the applicant was an adult.Virtually as soon as the applicant had been dealt with by Judge Forno he resumed committing offences and two of those on the indictment before Judge Pratt were committed while he was still a juvenile and the others were committed in the period from July through to October.

The pattern seems to have been that he committed a number of offences, was investigated by the police, charged and released on bail and he then went out and committed further offences.It was said that he had a heroin addiction problem since he was aged 14 years.Eventually he was kept in custody after committing some offences in September and by the time he appeared before Judge Pratt he was said to have no longer a heroin addiction problem because he had gone "cold turkey".

The sentences that were imposed by Judge Pratt included a three-year sentence in respect of the armed robbery that had been previously dealt with by Judge Forno.On the material before Judge Pratt there could be no doubt that the applicant had breached the probation order in respect of that offence.At the time when the applicant was before Judge Forno a report was obtained from the Families Youth and Community Care Department and no doubt Judge Forno acted upon that report.Section 164 of the Juvenile Justice Act requires that a Court make a detention order against a child only if it has first ordered the Chief Executive to prepare a pre-sentence and received and considered the report.

In Q v. T [1995] 2 Queensland Reports 192 this Court held that a pre-sentence report had to be in writing and that the Court had no power to make a detention order against the child unless the requirements of this section were complied with.

It is clear enough that when His Honour imposed that sentence he had not sought a fresh pre-sentence report and it does not seem clearly enough to have been brought to his attention that that should have been done.

The other sentences that were imposed by His Honour in respect of the adult offences include a sentence of two years for four charges of housebreaking and 18 months for charges of breaking and entering and stealing. Various other charges were imposed for charges of fraud and other offences of dishonesty.

Mr Devereaux has pointed us to section 188 of the Juvenile Justice Act which provides that unless a Court makes an order under subsection 2 a child sentenced to serve a period of detention must be released from detention after serving 70 per cent of the period of detention.

Here Judge Pratt imposed, as I have said, in respect of the charge of robbery in company with violence, a sentence of three years with the recommendation for parole after 12 months.   That was a sentence imposed in respect of an offence committed by the applicant when he was a juvenile.It would seem that if His Honour had his mind directed towards section 188 he would have imposed a sentence of two years possibly and ordered the service of 12 months under section 188.Indeed if he had looked at the 70 per cent and had had in mind that the incarceration should last only 12 months he may have imposed a lesser sentence for the head sentence.

The thing that has exercised my mind and concerned the Court has been the question whether the proceedings that were taken before Judge Pratt in respect of the earlier sentences imposed by Judge Forno can stand and if they cannot what should happen.

After discussion it appears that if the sentences imposed by Judge Pratt, in respect of the sentences previously imposed by Judge Forno, are quashed then the community service orders that were previously made in June 1997 would now in effect lapse because it is almost to the day 12 months since they were imposed.The order for probation for two years would remain but if the sentences imposed on the applicant as an adult remain and he is released on parole after 12 months, effectively the probation period would also expire at about the time of his release.

The probation order made by the Magistrates Court for three years was of course effectively set aside by Judge Pratt and a sentence of imprisonment imposed in respect of those charges.Consequently that probation order has also disappeared. Although it is not the happiest of solutions to the present problem it seems to me that if the orders made by Judge Pratt in respect of the previous sentences imposed by Judge Forno are set aside because no pre -sentence report was obtained and if the sentences imposed on the applicant in respect of the offences he committed while an adult remain then the intention Judge Pratt had of requiring him to serve 12 months incarceration would be fully met and the difficulties that arise because of non-compliance with section 164 of the Juvenile Justice Act would be dealt with.

So in my opinion leave should be granted, the appeal should be allowed, the sentences imposed by Judge Pratt in respect of the breaches of the sentences imposed in the District Court on 19 June 1997 should be quashed otherwise the sentences imposed on the applicant as an adult should stand and I would recommend that the Department of Families, Youth and Community Care take no further action in respect of breaches of the sentences imposed by Judge Forno on 19 June 1997.

THE CHIEF JUSTICE:  I agree.Following this course would respect the sentencing Judge's fundamental intention which was that the applicant actually be detained for 12 months.At the same time it overcomes the difficulty created by non-compliance with section 164.

I am quite satisfied that to remit the matter and require the production of a pre-sentence report would simply waste public resources in view of the attitude expressed here by both the applicant and the Crown.

The Crown has urged us to proceed in this way as indeed has the applicant.It involves no contravention of the legislation and also has the advantage of being just and sensible.

HELMAN J:  I agree.

THE CHIEF JUSTICE:  The orders will be as indicated by Justice Demack.