R v Smith[2000] QCA 127

COURT OF APPEAL

McMURDO P

DAVIES JA

HELMAN J

[R v Smith]

CA No 405 of 1999

THE QUEEN

v.

SCOTT ANDREW SMITHApplicant

BRISBANE

DATE 11/04/2000

JUDGMENT

THE PRESIDENT:  Justice Davies will deliver his reasons first.

DAVIES JA:  The applicant pleaded guilty in the District Court on 2 December last year to a number of offences.  They were one of receiving stolen property, two of entering premises and stealing, four of fraud, two of stealing, two of breaking, entering and stealing, one of attempted burglary with intent to commit an indictable offence and six of burglary and stealing.  All these offences were committed between 1 August 1998 and 26 July 1999.

His prior criminal history consisted only of a conviction on 8 April 1999 for possession of property being stolen for which he was fined and one on 29 July 1999 for breach of a bail undertaking for which again he was fined.  They were prior to his sentencing in this case but not prior to the commission of the first of the offences I have just referred to.  It follows from what I have said that he has not previously been sent to gaol.

In respect of the offences the subject of the present application the applicant was sentenced on each count to three months imprisonment and three years probation.  The applicant committed the first three of the offences the subject of the present sentence between 1 August 1998 and 15 October 1998.  Then on 10 November 1998 he was arrested for the offence of possession of property suspected of being stolen.  That arrest did not deter him from his criminal activity.  He committed four further offences in November and December 1998.  Then, on 8 April 1999 he was convicted of the offence of property suspected of being stolen.  He committed another of the offences the subject of the present application on 30 April 1999 only a few weeks after his conviction.  He was then interviewed with respect to the first seven of the offences he had committed on 9 May and he was given a notice to appear.  Nevertheless, he committed another four of these offences between 21 May and 10 June 1999. 

He was again questioned on that day after his girlfriend's car was identified as the getaway car for one of the burglary offences.  He made some admissions in respect of that offence.  He then committed a further six of the offences including three further burglaries in June and July 1999.  He then made admissions with respect to those offences on 28 July 1999.

Most of the property stolen consisted of easily disposable items such as compact discs, stereos, video cassette recorders, computer games and other electronic equipment, jewellery and bicycles.  The value of the unrecovered property was a little under $20,000.  There is no prospect of compensation. 

It was submitted for the applicant here and below that the sentence imposed on him should not include a term of actual imprisonment.  The matters urged in favour of that submission were his youth, the absence of any relevant criminal history, that he had the support of his family, that he was now in full-time employment and that he co-operated with the authorities in making full admissions and pleaded guilty at an early date.

The applicant was, and presumably still is, addicted to heroin and his offending behaviour was in substance to enable him to finance his drug addiction.  That is, as this Court has noted previously, a two-edged factor.  It may be said in his favour that his real weakness of character is that of drug addict rather than robber.  On the other hand it seems reasonably clear that unless he can overcome his addiction his prospects of rehabilitation from a life of crime are poor.

There is nothing which has so far emerged which would indicate that his prospects of overcoming his addiction are good.   It was said on the sentencing hearing that the applicant intended to make an appointment with a person at the Inala Civic Centre in an attempt to deal with his problem but that is apparently all that he had by then done in that regard.  We were told by Mr Moynihan today that since then he has been attending the Inala Civic Centre and has at least so far been drug free.  Nevertheless, it is impossible to say what his prospects of overcoming his addiction are.

Against the applicant in the present case it has been said in this Court more than once that the sentencing regime for youthful offenders has changed somewhat against them by the introduction in 1997 of the amendments to the Penalties and Sentences Act.  Section 9(4) of that Act in the form in which it existed prior to that date though it applied only directly to offenders who had no previous convictions was seen generally as showing at least an indication that those with only minor previous convictions such as the applicant should be somewhat similarly treated.  That is, wherever possible, a non-custodial sentence should be imposed where as here, the offender had not previously had the opportunity of remaining at large under supervision as would be the case if either a probation order or an intensive correction order were imposed.  This view is strengthened by the view which applies generally to offenders by section 9(2)(a) of the Act.

It was nevertheless submitted on the applicant's behalf, despite that change, that either probation together with community service or an intensive correction order should have been imposed but the sentence should not have included a term of actual imprisonment.  It is surprising but the possibility of an intensive correction order does not appear to have been discussed below.  The question of probation was discussed.  That, in my view, should not have precluded the consideration by the learned sentencing Judge of an intensive correction order. 

I am inclined to think that he did not err in failing to impose simply a probation order.  The offences in number and seriousness required a punishment more severe than that. 

The difficulty facing the applicant nevertheless is the compulsive nature of his criminal activity and the unlikelihood that it will cease unless he overcomes his addiction.  On the other hand, if, as I think, an intensive correction order requiring as a condition that he take part in such programmes as may be considered appropriate by his authorised Commission officer in order to assist in overcoming his drug addiction, is more likely to overcome that result than a term of imprisonment.  That being so I think that the sentence imposed below was manifestly excessive in that the learned sentencing Judge, in my view, ought to have imposed such an order.  Nevertheless, as was mentioned during the course of argument, an intensive correction order for a period of imprisonment of less than 12 months would, in my view, not have been appropriate having regard to the seriousness of the offences and their number.

Mr Moynihan, for the applicant, has indicted that the applicant would consent to an order including such a condition.  I would therefore allow the application, grant the appeal, set aside the sentence imposed below and impose in lieu a term of imprisonment of 12 months to be imposed by way of an intensive correction order containing the requirements set out in section 114 of the Penalties and Sentences Act and one that he take part in such drug rehabilitation programme as may be advised by his authorised Commission officer.  It follows from the making of the order which I would propose that a conviction must be recorded.

THE PRESIDENT:  I agree.

HELMAN J:  I find myself in respectful disagreement with the other members of the Court on this matter.  The applicant was sentenced for eighteen serious offences, and in addition there were three separate occasions when the applicant was released, either on bail or with a notice to appear and yet continued to re-offend.  In all the circumstances having regard to the number and gravity of the offences, I am not persuaded that the learned sentencing judge's discretion miscarried and I would refuse the application.

THE PRESIDENT:  The orders are as proposed by Justice Davies.