R v L[2000] QCA 427

COURT OF APPEAL

McMURDO P

MACKENZIE J

HELMAN J

CA No 200 of 2000

THE QUEEN

v.

L Applicant

BRISBANE

DATE 16/10/2000

JUDGMENT

THE PRESIDENT:  The applicant pleaded guilty on 5 June 2000, in the District Court at Townsville, to one count of break enter and steal and one count of unlawful use of a motor vehicle, with a circumstance of aggravation.  The applicant was born on 3 January 1984 and was respectively 15 and 16 at the time of the commission of these offences.

A pre-sentence report was ordered under the Juvenile Justice Act 1992.  On 25 July 2000, the applicant was sentenced to respectively 100 hours community service, with a conviction recorded and nine month's detention, with a conviction recorded and an order for release, after serving 50 per cent of that sentence.  He was also disqualified from holding or obtaining a driver's licence for two years. 

The applicant claims the sentence was manifestly excessive. The applicant had a lengthy criminal history, especially considering his youth.  He first appeared before the Ingham Childrens Court in May 1996 and was reprimanded without conviction for two counts of break enter and steal.  Restitution was ordered.

He appeared again in the Ingham Childrens Court in September or October 1997 and was convicted of stealing and placed on probation for 12 months.  His next appearance was in November 1997, when he was placed on a further 12 month's probation and ordered to perform 75 hours community service, without conviction, these offences constituting a breach of the earlier probation order.

In January 1998 he was sentenced to detention for six months, which was suspended immediately and an immediate release order given for three months, for unlawful use of a motor vehicle, an offence which breached the orders handed down in November 1997. 

In March 1998, he was convicted of entering or being in a dwelling with intent to commit an indictable offence committed in February 1998.  This constituted a breach of the immediate release order imposed the month before.  He was sentenced to three months' detention, again with an immediate release order.  In June 1998, he was convicted of unlawful entry of a vehicle for committing an indictable offence, which was committed in April 1998 and was a further breach of the immediate release order.  He was sentenced to six months' detention.

The applicant was released in about September 1998.  In March 1999 he committed further property offences, for which he was sentenced to six months' detention.  On 28 April 1999 he was convicted and placed on 12 months' probation for using insulting words, assaulting a police officer, obstructing police and stating a false name, these offences having been committed in February 1999.

The offences the subject of this application constituted a breach of that probation order.  The applicant must have been released in about August or September 1999.  In October 1999 he was convicted of using insulting words and obstructing a police officer and was ordered to complete 40 hours community service.  He had completed this community service satisfactorily by the time of his sentence on these matters.  On 23 December 1999 the applicant was placed on a three month good behaviour bond for trespassing.  The offence of unlawful use of a motor vehicle, a part of the subject of this application, was also a breach of that order.

After the commission of the offences the subject of this application, the applicant also committed a breach of the Liquor Act in February 2000, for which he was reprimanded without conviction in April. 

The offences occurred as follows:

On 23 July 1999, an Ingham delicatessen and liquor outlet was discovered with its front glass panel broken and stock valued at over $400 was missing.  The cost of the repair to the glass was $895.  A palm print and blood located at the scene were found to belong to the applicant.

On 19 January 2000, the Ingham Anglican minister's wife inadvertently left the keys to their newly purchased 1998 Holden Commodore inside the vehicle, which was parked under their house.  The next morning, they found the vehicle missing. 

A 15-year-old juvenile, who was later formally cautioned, implicated the applicant, the applicant's brother and a third adult co-accused, Swain.  This applicant and the juvenile took the vehicle and then picked up the applicant's brother and Swain.  Swain then drove the car to Cairns, where the applicant's brother was dropped off.  On the way, the applicant and his brother threw a handbag out of the car.

Swain drove the vehicle into a gutter, causing a flat tyre and other damage to its front.  They then abandoned the car, which was damaged to the extent of $2,243.54. 

At sentence, the applicant's counsel submitted that family support and changed circumstances warranted detention, but with an immediate release order, despite the applicant's poor criminal history.

The applicant was living at the time of sentence with his uncle and his aunt, who worked at the Aboriginal Legal Service and who was instructing counsel at the applicant's sentence.  The pre-sentence report stated that the applicant had, during his years of offending behaviour, succumbed to peer pressure and lack of parental supervision.  He had made friends with an older and more street-wise group and this had involved him in offending behaviour.

The report noted that he had a current placement with his uncle, that he was trying to address his drinking problem and was attempting to stay away from the peers who had been associated with his offending.  He had applied for a traineeship for one year, involving the identification of native plant life and the gathering of seeds and bush areas in North Queensland.  In a letter supporting the applicant's suitability for such a position, which was tendered to the Court, Ms Carmen O'Shea, a teacher from the Barrier Reef Institute of TAFE, said that the position would only be open if she were successful in creating such a position.  There was no definite job offer. 

The applicant had successfully completed community service orders in the past and according to the pre-sentence report, believed a community based order would give him a chance to show his family that he can work.  Community work was available to him and any immediate release order would include re-integrative requirements of skills to address his offending behaviour, drug counselling and assistance in coping with peer group influences.

Mr Devereaux, who appears for the applicant, submits that the last resort of detention was not the only reasonable sentencing option and that in any case, it was not for the shortest possible period:  see ss. 4(c), 109(2)(e) and 165 Juvenile Justice Act 1992.  Mr Devereaux also submits that insufficient weight was given to the applicant's prospects of rehabilitation and suggests that this was demonstrated by the learned sentencing Judge's comment that he would be failing in his duty to the community, were he not to impose a sentence of detention.

Despite the flickering signs of promise that the applicant may be trying to turn his life around, because of his persistent offending and re-offending and the persistent breaching by him of community based orders, the learned sentencing Judge was entitled to conclude that in respect of the offence of unlawful use of a motor vehicle with a circumstance of aggravation, a period of detention was necessary.

In recommending release after serving 50 per cent of the nine month detention period, his Honour effectively recognised the applicant's plea of guilty and any rehabilitative promise. 

Mr Devereaux further submits that it may be inappropriate to impose a term of detention on one offence and on a separate offence, to impose a community service order.

Whatever the situation as to the combination of orders able to be imposed upon adult offenders under the Penalties and Sentences Act 1992, it was not argued that there was anything in the Juvenile Justice Act 1992, which prohibited  such combined orders:  see R v. A; R v. S; Ex parte A-G (Qld) [1999] QCA 503.

The combination of the orders imposed in this case meet the principles of juvenile justice which stress rehabilitation: see for example, s.4(f)(i) and (ii), Juvenile Justice Act 1992.  The applicant has not demonstrated that the combination of sentences was unlawful or otherwise inappropriate. 

I would refuse the application for leave to appeal against sentence.

MACKENZIE J:  I agree.

HELMAN J:  I agree.

THE PRESIDENT:  The order is the application for leave to appeal against sentence is refused.