R v S[2000] QCA 24

DAVIES JA:  The applicant, who is 17 years of age, pleaded guilty in the District Court on 30 June last year to 112 offences, 30 of burglary, 52 of stealing, 24 of housebreaking, two of unlawful entry of a motor vehicle with intent and one each of entering premises with intent, breaking, entering and stealing, attempted housebreaking and wilful damage.

The offences were committed between 21 January 1997 and 12 October 1998. Many of them are related so the total number of episodes of offending is only a little more than half the total number of offences.

We were told by Mr Moynihan for the applicant this morning that there is an application for leave to extend time in which to appeal against convictions in respect of two of the alleged offences, those being of unlawful entry of a motor vehicle. Our attention has been drawn to the fact that at the date of commission of those offences, which was on 10 June 1997, there was in fact no such offence. The convictions on those counts, which were counts 7 and 8, should therefore be set aside. That will not materially affect in any way the application for leave to appeal against sentence which is before us. On 30 August last year the applicant was sentenced, in respect of each of those offences, to two years detention. Forty-three days of pre-sentence custody was declared to be time already served and he seeks leave to appeal against each of those sentences.

It also appears from what we have been now told that at the time, counts 2, 4, 6, 9, 11, 13, 15 and 17 were committed the maximum sentence for those offences was 18 months. So that at least the applications for leave to appeal against sentence will have to succeed in respect of those counts but again that will not affect the substantial application before this Court.

When these offences were committed the applicant was aged between 14 and 16. All but a few of them were committed with a co-offender and involved the co-offender entering unlocked motel rooms and stealing personal property and cash from the occupants while the applicant kept a lookout outside. On most occasions the rooms were occupied but the occupants were asleep. On a few occasions the occupants woke up and the applicant and his co-offender ran away.

The proceeds were shared between the co-offender and the applicant. The total value of property and money involved in all of these offences was a little under $40,000.

The applicant told the Family Services officer that he became involved in this pattern of offending through his friend and co-offender who, he said, made it sound so easy that he wanted to get involved. That is not to say that all of the offences were committed with a co-offender or that indeed any of them were committed under the influence of an older person. Some of the offences the subject of this application were committed by the applicant on his own.

He also committed several other offences which had been made the subject of a six months probation order in October 1997 and further probation and community service orders in the following month. He was in breach of those probation orders by his commission of some of these offences and some of them were also committed whilst he was on bail.

The applicant's personal and family history is one which is familiar in cases of this kind. He comes from a family which appears to be severely dysfunctional. All of the male adults in his family including his father smoke cannabis. In fact, he said he was ejected from his home for stealing his father's cannabis. He has a poor relationship with his father. He is himself dependent on cannabis and appears to have an alcohol problem.

Of considerable concern is his lack of motivation to overcome his drug and alcohol dependence or indeed to cease further criminal activity. Attempts at rehabilitation including a period spent in a share house for that purpose failed. He was frequently under the influence of drugs, was abusive to staff and even threatening to other youthful residents, harassing some of them. He said he had no intention of changing. His prospects of rehabilitation at present therefore appear to be poor.

Before this Court it was conceded by Mr Moynihan that a period of detention was inevitable. However, it was submitted that that should be a period of 12 months detention with release after serving 50 per cent of that term rather than the sentence which was in fact imposed, or at the very least, that an order should be made for release after 50 per cent of the term which was in fact imposed.

In support of those contentions Mr Moynihan pointed to the applicant's age and the fact that he had not previously been sentenced to detention, his co-operation with the police, the absence of any criminal history apart from this spate of offences and the fact that a major cause of his offending appears to have been his drug dependence. This last factor, however, tells against the applicant when taken together with his apparent lack of motivation to overcome that dependence.

It is true that at the sentence hearing it was submitted that he had for some time abstained from the use of drugs and alcohol and that he had not re-offended for some time. However, in view of the reports from a Family Service officer, the Deputy Chairman of the Youth Rehabilitation Centre where he was resident for some time and a clinical psychologist, the learned sentencing Judge was right to express cynicism about the reality of the applicant's prospects of rehabilitation.

Three decisions of this Court were cited as comparable authorities: L, CA 327/98, 4 December 1998; C, CA 160/96, 19 July 1996; and Holley, CA 375/97, 1 December 1997. The last of these in which the Court refused an appeal against a sentence of two years detention is the closest in comparability to this.

In that case the offences appear to have been of greater magnitude. They included one of armed robbery in company and the totality involved was over $100,000 in value. The applicant in that case also had a substantial prior criminal history. On the other hand, in that case, there were at least some signs of rehabilitation. I should have also added that the offending of the offender in that case was said to be principally for financial gain whereas the offending here on the part of the applicant was apparently substantially to feed his drug dependence. But on the other hand, as I was about to say, in that case, there were at least some signs of rehabilitation and there are no apparent signs here.

Balancing those factors as best I can, I cannot see any substantial difference between that case and this. It follows, in my view, that when one takes into account that the two-year term in that case had added to it an additional period of probation but on the other hand, provided for release after 50 per cent there is very little difference in the totality between the sentence which was imposed in that case and that which was imposed here.

I would therefore set aside the convictions on counts 7 and 8, that is, the two alleged offences of unlawful entry of a motor vehicle with intent. I would grant leave to appeal and allow appeals against sentence in respect of counts 2, 4, 6, 9, 11, 13, 15 and 17, set aside the sentences imposed there and impose in each case sentences of 18 months imprisonment but I would otherwise refuse the application for leave to appeal against sentence.

THOMAS JA:  I agree. I would add that in Holley there was a 50 per cent recommendation attached to the order of detention. That is to say, the applicant was ordered to serve only 50 per cent of that detention.

I have considered whether such an order should be made here to be reasonably consistent with Holley. However when I consider that Holley was accompanied by an appropriate probation order, whilst in the present case counsel for the applicant has no instructions which would allow proper consideration to be given to this, I do not think that overall it can be said that the present sentence is manifestly excessive. Whilst probation might be thought to be a desirable option which this Court may well have wished to consider accompanied by conditions such as urine testing which would give maximum benefit towards supervising drug problems, there is simply no indication on behalf of the applicant that he would be willing to cooperate. Having regard to his recalcitrant attitude which is well documented that seems to be an option beyond the reach of this Court.

In all the circumstances then I do not consider the sentence to have been manifestly excessive and I agree that the application should be refused.

BYRNE J:  I agree with both the presiding Judge and Justice Thomas.

DAVIES JA:  The orders are as I have indicated.