R v Arana[2000] QCA 184

COURT OF APPEAL

de JERSEY CJ

McMURDO P

DUTNEY J

CA 441 of 1999

THE QUEEN

v.

EDWIN ERIQUE ARANA Appellant

ROCKHAMPTON

DATE 16/05/2000

JUDGMENT

THE CHIEF JUSTICE: Edwin and Douglas Arana were members of an organised graffiti gang operating in Townsville.  Edwin pleaded guilty to 48 counts of wilful damage.  He was 17 and 18 years old when he committed them.  The restoration costs, we are told, amount to $44,000.  He had no conviction for any prior offence although, around this time, he did commit a stealing offence for which he was subsequently convicted.  He was given three years probation and 240 hours community service, the maximum, for the first 37 offences.  The other 11 were committed at a time when the maximum penalty had increased from two years imprisonment to five years imprisonment. 

Influenced by that, for those 11 other offences, the learned Judge sentenced the applicant, Edwin, to six months imprisonment suspended for three years.  That was inconsistent with Hughes 2000 QCA 16 where the Court held that a suspended term may not be imposed concurrently with probation or community service.  That sentence, unfortunately, will therefore have to be set aside.

Edwin sought leave, however, to appeal against the whole penalty imposed upon him which raises the issue what should be done consequent upon the necessary setting aside of the suspended imprisonment.  Relevant to that is the learned Judge’s correct perception that the increase in the maximum penalty warranted sterner treatment in respect of the later 11 offences.   The applicant’s brother, Douglas, pleaded guilty to more offences, 81, and was sentenced to 12 months imprisonment.  Douglas was two years older than Edwin, had a prior criminal history including 39 graffiti offences and was not a candidate for community service.  The cost of restoring his destruction was about $100,000.

One response to the problem with Edwin created by the impermissible imposition of the term of imprisonment wholly suspended would be an order that the probation and community service already ordered apply to all offences, that is including the 11 later offences. 

Two points arise.  The first is whether that course would involve paying merely lip service to the signal sent by the legislature in increasing the maximum penalty.  And second, whether that would create unjustifiable disparity between the treatment of Edwin and Douglas leaving Douglas with a reasonable sense of grievance.  Douglas, I should say, has abandoned his application for leave to appeal against sentence.

As to the question of disparity, I should say at once that the sentence imposed on Douglas was entirely justified.  The prevalence of this disgraceful form of offending warrants strongly deterrent sentences.  Especially having regard to the extent of Douglas’ offending and his previous similar offending, twelve months imprisonment was a perfectly proper penalty.

There are real distinctions between the positions of the two brothers.  Most significant are the extent of offending; 48 offences as against 81, damage of the order of $44,000 as against $100,000, and the fact that Douglas had most significant prior offending relating, as it did, to graffiti, unlike Edwin.  In addition, there was a two year age difference and as the Judge held Douglas to an extent led Edwin along.  Those distinctions do sufficiently justify a substantial difference between the penalties to be imposed on the two.

But then there is the question of the increase in maximum penalty.  To my mind, the signal sent by that should not be ignored.  The Court is placed, as I see it, in a very difficult situation on the hearing of this application.  Removing the order for suspended imprisonment without more will leave Edwin subject only to probation and community service orders. 

In my view, that alone is frankly an inadequate response in terms of penalty to vandalism of this magnitude.  The community would rightly expect a sterner response.  In terms of sterner response, I would see within the range of options realistically, for this sort of offending, at least an intensive correction order which the legislature, in its wisdom, equates with imprisonment, or even possibly an order for wholly or partially suspended imprisonment.  A further option would be a short term of imprisonment followed by probation.

People who carry out this sort of offending should be under no illusion but that the Court will respond in a salutary way determined to secure maximum general and special deterrence.  The difficulty about our intervening now to strengthen the penalty imposed in that way is that, for example, imposing an intensive correction order would involve elevating the penalty necessitating our calling on the applicant and he would likely abandon his appeal.

In that situation there would remain on the books, as it were, an impermissible order of the Court allying suspended imprisonment with a community based order and nothing would be achieved.  Likewise I believe there is an argument, at least in theory, that replacing the community orders made in respect of the first 37 offences now with an order for suspended imprisonment.  If, say, the six months imprisonment suspended for three years were to be transposed on to all of the offences, there would be, in theory, an argument that that, likewise, involved an increase in penalty for those first 37 offences which would warrant giving the applicant the right to withdraw his application should he seek to do so.

In practical terms, therefore, I see the Court as hamstrung.  For my part, I would, in setting aside the term of suspended imprisonment, very much like to be able to impose on this young man, an intensive correction order which would involve substantial supervision and community work and leave him under jeopardy of having to serve a term of imprisonment should he fail to comply with the terms of the order.  But that is not to be because of the way in which this matter has unfolded.

I see, myself, in the end, as having no option therefore but to agree on a course which will involve setting aside the order for suspended imprisonment which should never have been made and extending to all 48 offences the order for probation and community service currently applicable only to the first 37.

I would dismiss as a matter of formality, the application currently before the Court made by Douglas so far as that has not already occurred.  I would allow the application of Edwin Arana, to the extent of setting aside the order for suspended imprisonment imposed for counts 38 to 48 and order that the probation and community service ordered in respect of counts 1 to 37 apply also to counts 38 to 48.  The applicant’s consent to that may be taken to have been given.   There is no question in my mind that a conviction should be recorded for this sort of offending.

THE PRESIDENT:  The applicant pleaded guilty on 10 February 1999 in the District Court at Townsville to 48 counts of wilful damage.  The offences occurred between October 1996 and March 1998.  The applicant and his brother, Douglas, were part of a graffiti gang known as the ILA  (Invading Like Aliens). 

The applicant sprayed graffiti on 27 different properties including trains, public amenities, community organisations and private homes in the Townsville area.  On occasions, the same property was re-targeted.  In March 1998, the applicant’s premises were searched and graffiti creating equipment was located including references to the tags, FINO and FONZO, used by the applicant in his offending. 

He initially denied involvement but later agreed he was responsible.  He refused to implicate others.  The total amount of damage attributed to this applicant totalled $43,850.  His damage bill would have been higher if it were calculated on a joint and several liability basis.   The maximum penalty for these offences increased from two to five years on 1 July 1997.   Counts 38 to 48 were committed at this time. 

The appellant’s brother also pleaded guilty to 81 similar offences involving over $100,000 worth of damage.  He had prior convictions for 39 like offences and as The Chief Justice has noted, his appeal has been abandoned.  Clearly that sentence was well within range.

The learned sentencing Judge properly recorded convictions and placed the applicant on three years probation and imposed 240 hours community service on counts 1 to 37.  No complaint is made in respect of that sentence.  As to counts 38 to 48, the applicant was sentenced to six months imprisonment suspended for three years.

This Court has held that under the present adult sentencing regime, a suspended sentence cannot stand concurrently with a probation order.  (See R v. Hughes QCA 16)

The applicant also claims the sentence was manifestly excessive as the applicant pleaded guilty, was only 17 to 18 years at the time of the offences, had no prior convictions and has not re-offended since March 1998. 

Despite these mitigating factors, I do not see the sentence as manifestly excessive because of the large number of offences committed over a lengthy period involving almost $44,000 worth of property with no prospect of compensation.  Principles of general and particular deterrence in respect of this prevalent offence also support a firm sentence.  Indeed, an intensive correctional order was plainly a sentencing option that would have been appropriate in this case.  As to comparable sentences demonstrating the seriousness of such conduct, see for example, R v. Sullivan 19 of 1994 delivered 29 March 1994. 

But Hughes has the effect that a non custodial sentence cannot stand contemporaneously with the suspended sentence under the present adult sentencing regime.  I have said on a number of other occasions that this is often regrettable.  What can be, as here, a sensible sentencing package combining the benefits to both the offender and the community of probation and community service with the added big stick of a suspended sentence, is often appropriate, but unlawful.  In my view, legislative intervention is needed to remedy this.

Because the combined sentences imposed are currently unlawful, the applicant must be sentenced to either probation and community service or a suspended sentence but not both simultaneously.  Because of his age, his lack of prior convictions, the obvious need for supervision and the fact that his older brother was a repeat offender, in my view the former sentencing option is preferable. 

This will mean he will be subject to supervision for three years and breach of his probation or failure to complete the community service will bring him back before the Courts to be dealt with.   I agree with the orders proposed by The Chief Justice.

DUTNEY J:  I agree with the order proposed by The Chief Justice and the reasons given by The Chief Justice and The President.  I think the community is entitled to expect that persons who commit this type of offence, if they are not to serve an actual term of imprisonment, should be made to make some meaningful contribution to the community by way of recompense and I would expect that any breach of the current community orders would be firmly dealt with.

THE CHIEF JUSTICE:  The orders are as I have indicated.