R v D[2000] QCA 102

COURT OF APPEAL

DAVIES JA

McPHERSON JA

MOYNIHAN J

CA No 415 of 1999

R

v

D (Applicant)

BRISBANE

DATE 29/03/2000

JUDGMENT

DAVIES JA:  I will ask Justice McPherson to deliver his reasons first.

McPHERSON JA:  The applicant is an Aboriginal youth, 15 or 16 years old at the time of the offence, who was convicted after a trial in the District Court at Ipswich of occasioning bodily harm.  He was sentenced under the Juvenile Justice Act to a period of detention for 12 months and now seeks leave to appeal against the sentence on the ground that it is excessive.

The victim of the assault was a male university student who was walking with his girlfriend, Linda, through the city streets in the early hours of the morning.  He was approached by two Aboriginal youths who asked him for a lighter and then for cigarettes.  When he said he had none they attacked him and forced him to the ground.  They started kicking him and were joined in this by some four, or it may have been six, other youths of whom the applicant was one.  The applicant denied having participated in the assault; but Linda, in her evidence at the trial, said that all of the youths were kicking the victim and were doing so around the head. 

She herself was threatened by some girls who were there, and, despite the risk to herself, tried to defend the victim and to get help.  A passing motorist called the police and, at some risk of injury or damage to his car, followed some of the assailants.  The applicant, who was one of the last to leave the scene, was caught.  The others seem to have got away.

The injuries sustained by the victim were not inconsiderable.  He received a cut lip which required 40 to 50 stitches.  He suffered concussion, burst blood vessels in the left eye, severe swelling and many facial cuts, and abrasions.  He now has to live with significant permanent scarring to his face - that is, in the lip area.  His lower lip is still swollen because of all the scar tissue that is there, and it may never return to normal.  He suffered a large bruising on his back, and, after the injury, he was for some time able to drink only through a straw before the stitches were removed.  He had to take some time off his studies which, of course, made it harder for him to catch up later, and he spent time going to doctors.  Needless to say, he is now less confident both generally and in relation to his associations with other people than he was before.  I have the greatest sympathy for him in regard to this quite unprovoked assault which he suffered.

The applicant himself, although young, already has a criminal history, although this is his first conviction for violence to the person.  Summing it up as best I can, he appears to have had in all seven convictions for wilful damage, 12 for breaking and entering and four for unlawful use of a motor vehicle.  These convictions have been recorded on three separate occasions between September 1997 and September 1999.  He has been placed on probation and ordered to perform community service which, it is reported, he has successfully completed, although at the time of this offence on 14 March 1999 he was subject to a probation order or a bond dating, it would seem, back to 14 July 1998.  It was imposed by the District Court at Kingaroy, and was followed by a further conviction after this incident and an order for community service on 22 September 1999.  We were told that 175 hours of community service remains to be performed under that order.  The applicant was warned on the last occasion when he was before the Court that he would end up in gaol if he re-offended.

According to the presentence report provided to the trial Judge, the applicant's real problem is alcohol abuse.  He has been drinking to excess ever since he was a child and he was drunk when this offence took place, having been drinking on that day it is said for about eight hours.  The report says he lacks insight into his problem and needs to realise that drinking is the cause of his offending behaviour and that, until he does so realise it, his condition will not improve.  The presentence reporter said that the sentencing options on this occasion were probation with a community service order, an immediate release order, and detention.

The problem with the first, and to my mind to some extent with the second of these, is that they have already been put to the test and do not seem to have succeeded in effecting an improvement in the applicant's behaviour.  A period of detention is perhaps unlikely to prove more successful; but the offence here was a serious example of its kind and detention would, one would hope, at least prevent the applicant from re-offending for the limited period of the detention, and perhaps have the desirable result of separating him from alcohol possibly permanently. 

Some form of treatment, though we were told it was not extensive, for his alcohol addiction is, it would seem, available in detention.  Under the Juvenile Justice Act he would serve 70 per cent of the period of detention before release.  Realistically, there seems to me to be no other sentencing option now apart from an order for detention.  One does not lightly place an Aboriginal youth in detention but no real alternative I think is available. 

The question remains whether the period of 12 months was too long.  On one view of it, and having regard to the injuries suffered by the victim in this case, one could not regard it as too long.  On the other hand, this is as I have said, the first instance of an offence of personal violence being committed by the applicant, and it is also a case where his participation, although not in doubt, is nevertheless so far as its extent is concerned somewhat obscurely conveyed by the evidence. 

I think it is probably right to take a limited view of his part in the offence, and both for that reason and for the others I have given I have come to the conclusion that a period of detention of 12 months is too long in this particular case. 

In the result I would allow the appeal and vary the sentence imposed by reducing the term of detention from 12 months to six months.  I would also recommend that the Department consider that, on release of the applicant, he be returned to the Jessie Budby Healing Centre where he was admitted shortly before sentence and was receiving rehabilitative treatment in relation to his alcohol problem.  Those are the orders that I propose.

DAVIES JA:  I agree.

MOYNIHAN J:  I am content to adopt the recitation of the facts by McPherson JA.  I would simply add that the sentencing Judge recorded that offences of the kind with which he was dealing were not uncommon in the area.  I am completely unpersuaded that any basis has been shown for interfering with the sentence which seems to me to strike the appropriate balance between the considerations peculiar to the accused as a juvenile, his history, community concerns and the need to deter others from committing offences of this kind.  I would therefore refuse the application.

DAVIES JA:  The orders are as indicated by Mr Justice McPherson.

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