R v Wilson[2000] QCA 318

SUPREME COURT OF QUEENSLAND

1. THE COURT: Kristy Wilson applies for leave to appeal against sentences imposed in the District Court at Brisbane where she pleaded guilty on 6 April 2000 to a charge of entering a dwelling house with intent. The offence took place at Caboolture at about 5.30 pm on 16 October 1999.  A rock was thrown at and broke the glass panel of the door and the applicant's male companion is said to have entered and "ransacked" the house. In the result, however, nothing was taken from it.  Neighbours, who saw what was happening, called the police. When they arrived, the applicant, who was keeping watch outside, shouted out "Get out. The cops are here". The applicant escaped into nearby bushland, where she was found crouching in an effort to avoid detection.  She at first denied any part in the break-in, but later pleaded guilty. Her accomplice was successful in escaping.

2. Her conviction of this offence had the effect of resurrecting an earlier offence of entering a dwelling house for which she had been sentenced in the District Court at Brisbane on 21 June 1999. That offence had been committed on 5 August 1998, when the applicant and another person had entered a dwelling house. Again, the place was ransacked. Food was thrown around and two carloads of property were removed. At the sentence hearing on 21 June 1999, Shanahan CJ DC imposed a probation order for a period of three years. At the hearing on 6 April 2000 for the later offence committed on 6 October 1999, the learned sentencing judge revoked the probation order made on 21 June 1999, and imposed a sentence of imprisonment for three months for the first offence and a further sentence of three months, to be served concurrently, for the second offence. His Honour's intention in doing so was, he said, that when the applicant came out of gaol she could "start with a clean sheet, no probation, no community service, no compensation, no good behaviour bond …".

3. The applicant had spent 21 days in custody before obtaining bail pending this appeal. The results of the orders under appeal, if they stand, is that she will be returned to prison to serve the remainder of that sentence. There will be no supervision of any kind when she completes her prison sentence. She was only 17 years old at the time of the first offence, having been born in Victoria on 23 July 1981. She was therefore 18 years old at the time of the second offence in October 1999. She had reached only grade 9 at Caboolture High School, and she was unemployed. Her mother had left her with her father when the applicant was only three years old. He was a drug addict with a heroin addiction, and since about 1995 or 1996 she has been using heroin and amphetamines herself. She is said to have been under the influence of a man older than herself, who is about 26 or 27 years of age. He may have been the person with whom she committed these two offences in August 1998 and October 1999.

4. Her performance under the probation order imposed in June 1999 was by no means satisfactory. A report from Mr Hadley of the Caboolture Community Corrective Service says that the applicant had not pursued assistance offered her by various employment agencies. During the early stages of her supervision under that order the applicant voluntarily admitted herself, along with her partner, to the Fairhaven Drug Rehabilitation Centre, but soon afterwards she and her partner, who, Mr Hadley says, "is also known to this service", discharged themselves from that centre. She was referred to a drug and alcohol counsellor, and since 13 January 2000, she had, when Mr Hadley wrote his report on 1 March 2000, been continuing that treatment. She had been directed to attend a cognitive skills programme commencing on 4 October 1999; but failed to attend. She again failed to attend a subsequent programme beginning on 14 February 2000. However, Mr Hadley considers that in recent times the applicant has been "far more motivated" to address the problems of her life. Possibly that was because she knew she was facing sentencing for the offence committed on 16 October 1999; but Mr Hadley says that the service is willing to persevere with her supervision should she be admitted to further community based supervision. She should, however, have it made clear to her that no further leniency will be extended if she does not comply with the conditions of any such order.

5. There is some prospect that the applicant may succeed if given another chance. She claims to have stopped using drugs. She also says that she has broken free of the older man who for some years has been exercising control over her life. It is unlikely that this more hopeful state of affairs will continue if she is returned to prison, and she then emerges without any form of supervision or assistance at all. That would not be in her best interests or those of anyone else. What she needs is a period of close and continuing supervision to ensure, so far as possible, that she does not return to her old ways and to her older male companion. If she survives that period without further offending or breach of condition, she may yet make something of her life. Otherwise, she faces the prospect of further court appearances and future terms of imprisonment. She is not likely to be given another chance to reform if she does not take advantage of the opportunity now being offered to her.

6. The orders that will be made are as follows:

7. Leave to appeal is granted.

1. The appeal is allowed.

2. The orders made on 6 April 2000 are set aside.

3. In relation to:

• 1 count of housebreaking on Indictment 1909/99;
• 1 count of entering a dwelling with a circumstance of aggravation on Indictment 409/2000 -

In lieu a sentence of 12 months imprisonment is imposed to be served by way of intensive correction order incorporating the general requirements under s 114(1)(a) to (i) of the Penalties and Sentences Act that the applicant:

1. must not commit another offence during the period of the order, and

2. must report to an authorised corrective services officer within 64 hours; and

3. must report to, and receive visits from, an authorised corrective services officer at least twice in each week while the order is in force; and

4. must take part in counselling and satisfactorily attend other programmes as directed by the court or an authorised corrective services officer during the period of the order; and

5. must perform in a satisfactory way community service that an authorised corrective services officer directs during the period of the order; and

6. must during the period of the order, if an authorised corrective services officer directs, reside at community residential facilities for periods (not longer than seven days at a time) that the officer directs; and

7. must notify an authorised corrective services officer of every change of the offender's place of residence or employment within two business days after the change happens; and

8. must not leave or stay out of Queensland without permission of an authorised corrective services officer; and

1. must comply with every reasonable direction of an authorised corrective services officer.

With an additional requirement pursuant to s 115(1)(b) that the offender submit to drug and alcohol treatment and counselling as directed.

4. Convictions are recorded in relation to each offence.

8. The applicant has in writing dated 1 August 2000 signified her agreement to this order and agreed to comply with it.