R v Smith[2000] QCA 344

COURT OF APPEAL

McPHERSON JA

THOMAS JA

ATKINSON J

Appeal No 144 of 2000

THE QUEEN

v.

GLENN WAYNE SMITH

BRISBANE

..DATE 21/08/2000

JUDGMENT

McPHERSON JA:  I'll ask Justice Atkinson to give the first judgment in this matter.

ATKINSON J:  This is an application for leave to appeal against a sentence imposed for a breach of probation.  The applicant, Glenn Wayne Smith, was 16 years old when on 24 March 1999 he committed the offences of entering premises with intent and attempted robbery with a circumstance of aggravation. 

The circumstances of the offences were that the complainant was working in his first floor office around midnight on 24 March 1999.  Because of the heat he had a door leading to a balcony on his first floor office open.  He looked up and saw the applicant who was armed with an iron bar, commonly known as a jemmy, which he had used to enter the building.  The applicant held the jemmy above his head in a threatening manner and demanded the complainant's money.

A struggle ensued and a glass table in the office was smashed during that struggle.  The complainant overpowered the applicant, taking the jemmy from him, and restrained the applicant in a choke hold whilst he contacted the police by telephone.  The applicant convinced the complainant to release him from the neck restraint because he was choking. He then fled but was trapped in a locked foyer until police arrived.  He declined to be interviewed.

The applicant was sentenced as a juvenile when he was aged 17 on 20 August 1999 to six months detention and 12 months probation with special conditions to undergo drug and alcohol programs as directed.  Because of the time he had already spent in custody he was released on home placement.

However, he subsequently breached his probation order, failing to report after 16 November 1999.  His reporting history prior to that was inconsistent although he had reported a number of times.  He was convicted on 12 January 2000 of stealing, wilful damage and housebreaking on 25 November 1999 for which he was sentenced to two years probation with restitution of $350 ordered; and on 6 March 2000 of wilful damage for which he was fined $250.

The applicant gave an early indication of his intention to plead guilty to the breach of probation.  He was sentenced on 5 May 2000 after his plea of guilty to two years imprisonment on the charge of entering premises with intent and two and a half years imprisonment for the attempted armed robbery.  The sentences were ordered to be served concurrently and 122 days said to have been spent in custody under the original detention order and the 62 days in custody pending re-sentence were declared to be time already served.  It transpires that he had in fact spent 149 days in custody under the first order from 24 March to 20 August 1999. 

By this time the applicant was no longer a juvenile and so came to be sentenced under section 107A and 107B of the Juvenile Justice Act 1992.  Section 107A provides that when a sentence is given against a person as a child and a proceeding arising out of that sentence is taken before a court after the person becomes an adult, then the court may decide to deal with the person as if the offence were committed as an adult.

Section 107B(1) provides that a court sentencing an offender as an adult has jurisdiction to sentence the offender in any way that an adult may be sentenced.  That provision is subject however to subsections (2) and (3) which provide that the court must have regard to the fact that the offender was a child when the offence was committed and the sentence that might have been imposed on the offender if sentenced as a child.  The court cannot order the offender to serve a term of imprisonment longer than the period of detention that the court could lawfully have imposed on the offender if sentenced as a child or to pay a greater fine, restitution or compensation than the court could have ordered the offender to pay if sentenced as a child. 

In this case the maximum sentence that the child was liable to serve for these offences was five years for entering premises with intent (see section 120(1)(f)(ii)(A) of the Juvenile Justice Act) and seven years for the attempted robbery with the circumstance of aggravation (Juvenile Justice Act, section 121(2)).

The applicant's appeal is on the ground that the sentence was manifestly excessive.  That this is so can be seen from the permissible range together with a number of matters which the learned sentencing Judge failed to take into account or to give sufficient weight which caused the sentencing discretion to miscarry. 

These include, firstly, the applicant's youth.  He was only 16 years at the time of the offences and 18 years at the time of re-sentence.  Youth has always been regarded by the courts as a relevant factor in the sentence imposed upon a person even where that person has a criminal record as has the applicant:  see R v. Bainbridge (1994) 74 A Crim R 265; R v. Taylor and Napatali; ex parte Attorney-General, CA No 157 of 1999, CA No 158 of 1999, 20 August 1999 per Justice McPherson at [15] and per McMurdo P at [5]. 

The age of the offender is specifically included in the factors listed under section 9(4)(h) of the Penalties and Sentences Act and section 107B(2)(a) of the Juvenile Justice Act. 

The second important matter which it appears from the length of the sentence that the learned sentencing Judge failed to take into account or at least to give sufficient weight was the applicant's plea of guilty both to the original offences and to the breach of probation.  A plea of guilty should have been taken into account when sentencing was imposed.  This obligation arises from section 13(1)(a) of the Penalties and Sentences Act 1992.  The court has the discretion to reduce the sentence that it would have imposed had the offender not pleaded guilty but must state in open court that it took into account the guilty plea in determining the sentence imposed.

If the court does not reduce the sentence of an offender who pleaded guilty, then the sentencing Judge must also state in open court the fact that he or she did not do so and the reasons for not reducing the sentence.  The failure to make such a statement does not invalidate the sentence but is a relevant factor on appeal.

In this case the learned sentencing Judge made no mention of whether or not he had taken the guilty plea into account in the sentence imposed.  His Honour did not give any explanation for failing to take the plea into account.  As a matter of law the plea of guilty should have been taken into account in this case.

As the High Court observed in Siganto v. The Queen (1998) 194 CLR 656 at 663 to 664:

 "... a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial.  The extent of the mitigation may vary depending on the circumstances of the case.  It is also sometimes relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence."

The learned sentencing Judge's remarks failed to indicate whether or not he took this important consideration into account.  It would seem apparent from the severity of the sentence imposed that he failed to do so.

A substantial cause of this youthful offender's original offending, breach of probation and re-offending is his addiction to heroin.  The applicant had a dysfunctional upbringing and a troublesome education and a lack of employment opportunities which together made him more vulnerable to the temptation of drug addiction.  That addiction in turn leads to crime to support and pay for the habit.

The relevance of this factor was recognised in the Court of Appeal in The Queen v. Hammond [1997] 2 Qd R 195 at 199 to 200:

 "The true relevance of drug addiction as a factor contributing to the commission of crime and its effect in the sentencing process has never been adequately explained.  In our view it is a factor that may help an offender to the extent of showing that his or her descent into the crime in question was a secondary consequence of desperation produced by a human weakness rather than a primary choice.  It may be inferred in many cases (and the present case is very much in point) that the offender would almost certainly never have become a thief but for loss of control of an ordered life through drug addiction.  The proposition that the results of drug addiction are self-inflicted is half true and therefore dangerous.  The offender must of course be held responsible for his or her own actions.  The drug addiction is not an excuse; but it is a factor that may tell the court that the real weakness of character is that of a drug addict rather than that of a robber.  That may be by no means inconsequential.  It is however a two-edged factor; it may also tell the court that rehabilitation is going to be difficult."

In this case the applicant's history shows that rehabilitation will be extremely difficult.  He has had the benefit of probation orders with drug rehabilitation conditions, but they have not been successful in dealing with his offending behaviour.  It was therefore appropriate to consider a period of actual imprisonment.

The learned sentencing Judge correctly took into account the seriousness and prevalence of the original offences for which he was charged, but failed to take into account the matters to which I have already referred, and the fact that this was only one isolated attempted robbery which was not premeditated or sophisticated.  The applicant was not in company, nor did he attempt to disguise his identity.  The applicant was not expecting to find a person in the commercial premises when he entered them at midnight.  He was easily overpowered and detained.

An analysis of comparable cases also suggests that the sentence imposed was manifestly excessive.  In R v. Cross, CA No 16 of 1996, 26 April 1996, for example, the applicant had a sentence of two years' imprisonment reduced to 18 months for attempted armed robbery.  The applicant in that case had pleaded guilty to that offence and also receiving stolen goods.  The circumstances were that the applicant, who was 20 years old at the time, and was one of five young men who went into the complainant's unit where the complainant was struck by others who were carrying baseball bats and a demand was made for money or property. 

Clothing and other items of property were removed from the unit by the group of young men and the applicant received some of those items of property.  The motive of the attack was revenge for the complainant's having supposedly informed on another who was the ring leader of the invading group.  The applicant had a prior criminal record consisting primarily of drug offences, stealing and attempted false pretences.  The offence was committed whilst he was on probation as were prior offences.

In all of the circumstances I would grant the application, allow the appeal and impose a sentence of 18 months imprisonment on both charges to be served concurrently with a recommendation for parole after six months.  I would declare the period of imprisonment between 24 March 1999 and 20 August 1999 of 149 days and 4 March 2000 to 5 May 2000 a period of 62 days as time already served.  That is 211 days declared pursuant to section 161 of the Penalties and Sentences Act.

McPHERSON JA:  I agree.

THOMAS JA:  Yes.  I also agree.

McPHERSON JA:  The sentence will be as Justice Atkinson has expressed it.

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