R v Ross[2000] QCA 49

COURT OF APPEAL

DAVIES JA

THOMAS JA

WILSON J

CA No 406 of 1999

THE QUEEN

v

KENNETH ALLAN ROSS Applicant

BRISBANE

DATE 29/02/2000

JUDGMENT

WILSON J:  This is an application for leave to appeal against a sentence imposed by a District Court Judge on 2 December 1999. 

The Crown presented an ex officio indictment charging the applicant with a large number of property offences - one count of aggravated burglary, 13 counts of entering premises and stealing, 1 count of the attempted entry of premises with intent, 1 count of stealing, 1 count of breaking and entering premises and stealing, 2 counts of entering premises with intent, and 3 counts of the unlawful use of motor vehicles.

He was also charged with summary offences, namely, 5 counts of the possession of tainted property, 1 count of the possession of a knife in a public place and 2 counts of the possession of a dangerous drug, being small quantities of marijuana. 

He pleaded guilty to all of the charges.

The applicant was born on 7 June 1981.  The offences were committed in a seven week period in June, July 1999; that is, in the period immediately before and after his 18th birthday.

Most of the indictable offences concerned unlawful entry into motor vehicles and the theft, or intended theft, of contents.  The most serious offences, counts 18 and 19 on the indictment, were committed on 21 July 1999.

The applicant walked into an open shed in the back yard of the complainant's residence where he found a jemmy bar.  He took the jemmy from the shed and walked to the house where he used the jemmy to prise open a window.  He entered the house and ransacked several rooms.  After about 15 minutes he was disturbed by the arrival home of the complainant.  He escaped running through the house and causing damage as he went.  When subsequently apprehended by the police he was carrying a knife which he had taken from the house in order to threaten anyone who tried to apprehend him.

These offences were committed while he was on bail for offences committed on 21 June 1999, that is counts 6, 7 and 9 on the indictment.

After his arrest on 21 July 1999 he co-operated fully with the authorities and fully admitted all the other offences, in relation to some of which the police had no other evidence.  The prosecutor told the sentencing Judge that the total amount of compensation was approximately $8,400. 

He was again granted bail by a Magistrate with a surety of $5,000.  He was unable to raise the surety and spent 93 days in pre-sentence custody before being granted bail by a Supreme Court Judge.

In relation to the indictable offences, the sentencing Judge imposed a period of imprisonment of six months to be followed by three years' probation.  He declared the time already spent in custody to be deemed time already served under the sentence.  In relation to the summary offences, he imposed one month's imprisonment to be served concurrently with each other and with the six months.

One peculiarity of the sentences was that, having regard to the time spent in pre-sentence custody, the prisoner would be eligible for parole at the time of sentence. 

He was released on appeal bail on 12 December 1999, eight days into the balance of the sentence.  Since his release he has performed satisfactorily on probation.

The applicant's counsel has submitted to this Court that the sentence was manifestly excessive and that in circumstances where the youthful offender had served 93 days in pre-sentence custody, the appropriate sentence would have been three years' probation. 

The applicant's criminal history included a number of offences of dishonesty in the 12 months leading up to the commission of these offences which had been dealt with in Magistrates Courts.  He had previously failed to comply with community service orders.

At the time these offences were committed, the applicant was living with friends. He had an addiction to methylamphetamines.  The bail granted by the Supreme Court was conditional on his attending a drug rehabilitation program.  His counsel told the sentencing Judge that he had kicked his drug habit and was now residing with his mother.

He had left school before completing year 10 and had a record of employment in unskilled jobs.

Courts hesitate before sending youthful offenders to prison, where they are at risk of mixing with hardened criminals.  In many cases, their rehabilitation, which is in the interests of the community as well as such offenders, is more likely to be achieved by supervision in the community.  On the other hand, a short term of imprisonment may be necessary as a deterrent to the particular offenders and to other like-minded young people.

In all the circumstances of this offender, I consider that the sentence imposed on the indictable offences was excessive.  I would grant leave to appeal, set aside the sentence on the indictable offences, and in lieu thereof, impose the following sentence in respect of each matter;  imprisonment for three months; a declaration that the time already spent in custody (that is, the pre-sentence custody and the post-sentence custody) be deemed time already served under the sentence.  In other words, it would be my intention that he be released from custody upon the rising of the Court.

I would order that upon his release he be on probation under the supervision of an authorised Corrective Services Commission officer for a period of three years dating from 2 December 1999.  I would not interfere with the sentences on the summary offences, and would repeat the declaration in respect of time already served with respect to those sentences.

DAVIES JA:  I agree.

THOMAS JA:  I agree.

DAVIES JA:  The sentences are as indicated by Justice Wilson.