R v S[2000] QCA 364

COURT OF APPEAL

PINCUS JA

MUIR J

JONES J

CA No 164 of 2000

THE QUEEN

v.

S

BRISBANE

DATE 08/09/2000

JUDGMENT

JONES J:  The applicant was born on 30 November 1985 and is therefore 14 years and 10 months old.  On 16 October 1999, shortly before his fourteenth birthday he committed a number of offences which led to an order being made that he be detained.

For two offences of assault occasioning bodily harm whilst armed and in company the period of detention was for 18 months.  For two offences of common assault and an offence of unlawful use of a motor vehicle the period was 12 months.  The sentences were to be served concurrently.

He was dealt with also at that time for three summary offences, one of which occurred on that same day and the other two on 2 October and 19 October 1999 respectively.  Convictions were recorded for these offences but no penalty was imposed.

The applicant pleaded guilty to all these offences on 26 May 2000 before the District Court at Ipswich.  He was, at the time, represented by counsel.  Also present in Court were Mrs Stewart on behalf of the Department of Families Youth and Community Care and importantly the applicant's paternal grandmother.

For a young person the applicant acquired an alarming criminal record in the period of nine months between January and October 1999 prior to the commission of the offences with which we are now concerned.  Bearing in mind he was only 13 years of age I shall tabulate these in the order in which they were committed and the penalties each attracted.

1.21 January; attempted unlawful use of a motor vehicle.  He was cautioned.

2.23 January; break entering and stealing and wilful damage to property and receiving of stolen property.  Again, he was cautioned.

3.17 February; unlawful use of a motor vehicle.  Probation for 12 months.

4.14 March; disorderly behaviour.  Reprimanded.

5.17 March; unlawful entry of a motor vehicle.  Good behaviour bond for three months.

6.20 March; being drunk in a public place.  Reprimanded.

7.28 March; common assault.  40 hours community service.

8.1 April; three counts of assault occasioning bodily harm.  Probation for 12 months.

9.6 April; assaults occasioning bodily harm and damage to property.  Good behaviour bond for six months, and

10. 8 May; unlawful use of a motor vehicle.  A new probation order for 12 months.

Whilst awaiting for these offences to be dealt with the applicant breached his bail undertaking on 12 May and 28 May and for so doing was placed on a further good behaviour bond for three months.

11. 12 June; use insulting words and obstruct police officer.  Community Service for 60 hours.

The applicant was dealt with for that last offence on 16 September.  On 2 October one of the subject offences of unlicensed driving occurred. 

Turning now to 16 October 1999, the offences of assault whilst armed and in company and common assault occurred when the applicant, with a co-offender, followed a group of four men as they left a night-club at 5 a.m.  Two of the men in the group were aged 25 years, another 28 years and the fourth 18 years.  As this group of men reached their destination the applicant and the co-offender attacked the group whilst armed with thick tree branches.  In the initial attack the applicant struck two of the group with the branch.  When the group scattered in an attempt to get away the applicant pursued one of them and struck him.  He pursued another and attempted to strike that person with his fist.

The applicant and the co-offender left the scene but returned soon after armed with a shovel and a paling.  The police arrived before any further assault occurred.  That attack, on the material before this Court, was unprovoked.  It was vicious and it was persisted in, despite the fact that the applicant and his co-offender were confronting four men.

The applicant's behaviour on this occasion, and generally, has been described as his being "out of control".  The pre-sentence report which is dated 24 March 2000 records at page 5, as the learned sentencing Judge picked up, "an aversion to culturally appropriate discipline, a lack of respect for family and particularly his elders and a desire for freedom from structure and controls".  (Record 9/50)

The sentencing options for a juvenile convicted of these offences are set out in section 120 of the Juvenile Justice Act which ordains six types of penalty.  The first three types are plainly inappropriate.  The next two have been unsuccessfully applied in relation to previous offences - they being probation and community service orders.

The learned sentencing Judge, as he is required to do by sections 109 and 165 of the Act, sought to impose a penalty other than detention but could not identify circumstances and conditions which would allow adequate control over the applicant.

He considered a further probation order with conditions that the applicant reside with his paternal grandmother and that he observe a curfew.  However, the applicant whose consent was necessary for such proposals was not prepared to give his consent at that time. 

Concerns were also expressed to the learned sentencing Judge by Mrs Stewart about the practice of young persons sniffing aerosols which are readily and legally available.  Record 16, line 22.  In the pre-sentence report at page 5, about halfway down the page, the following appears:

"During the period of the offences A was a high level user of alcohol and inhalants.  A stated that family disruptions at this time exacerbated his substance abuse.  He stated that at the time of the offences on 2 October and 16 October he was under the influence of alcohol and at the time of the offence on 19 October 1999 he was intoxicated through inhalation of spray paint."

His Honour, who had the opportunity to see the applicant's interaction with his grandmother and to his reaction to the authority of the Court said of him, at page 21 of the records, "I have never struck anybody as obdurate and truculent and it is consistent with all that I have read in the pre-sentence report and is consistent with his long criminal record."

The learned sentencing Judge thereupon determined he had no option but to order detention.  By reason of section 188 the applicant is entitled to be released after being detained for 70 per cent of the period of 18 months, that is, after a period of 378 days.  He has already been detained for a total of 215 days, 109 of which were served pre-sentence. 

I assume that in the detention centre the applicant's physical requirements are met and that he would not have the opportunity to indulge in substance abuse and that he would be provided with formal education.  In the pre-sentence report, at page 7, the author refers to some of the disadvantages of detention as being, "The applicant would be deprived of many of the supports which would assist in the prevention of further offending and the loss of a valuable opportunity for reintegration into the education system.  He would also be further exposed to other offending young people from whom he may learn more serious forms of offending behaviour."

It must be observed that whatever family supports are available to the applicant they have not worked in the past.  There is a history of his not having a relationship with either of his parents which kept any control over him.  He spent a time residing with an uncle and aunt.  That too proved to be unsuccessful and he refuses to live with his paternal grandmother.

The options therefore for consideration of the other orders are seriously reduced.  In determining whether the sentence imposed is within the appropriate range one has to balance the need for rehabilitation of the offender as required by the Act and the interests of the community.

In making that balance, I for my part do not see that his Honour has erred in the sentence which he has imposed and I would therefore dismiss the application.

PINCUS JA:  I agree.  The only suggestion which Mr Rafter, a very experienced counsel, was able to put up as an alternative to detention was the restoration of the applicant to the custody of his mother, an idea that has failed very badly in the past, indeed, last year.

The Judge had the advantage here of personal interaction with the applicant and that is an advantage we do not have. The other factor that influences me is that although I think the sentence, in the circumstances, is by no means a lenient one, our power to interfere with it should be exercised with care.  It is true, as Mr Rafter says, that the sentence is quite open to review but its openness to review does not entitle us to ignore the respect which is due to the impression which the Judge obtained of the chances of rehabilitation and that impression was plainly a most unfavourable one.

I do not pretend that a sentence of detention will necessarily do the applicant any good.  It may, in fact, do him harm, but one of the functions of the Courts is to preserve order in the community and one of the ways in which we do that is to order detention or imprisonment.  This appears to me to be an appropriate case for the former course and I, also, would dismiss the application.

MUIR J:  I agree with the reasons of Justice Jones and those of Mr Justice Pincus and with the orders proposed.  I too do not regard the sentence as manifestly excessive.  In my view, the learned trial Judge plainly had no desire to impose a custodial sentence but felt compelled to do so in the circumstances outlined by Justice Jones the Judge's approach does not reveal any error.

PINCUS JA:  The order of the Court is application refused.