R v M[2001] QCA 11

COURT OF APPEAL

McMURDO P

WILLIAMS JA

MACKENZIE J

CA No 341 of 2000

THE QUEEN

v.

MApplicant

BRISBANE

DATE 02/02/2001

JUDGMENT

THE PRESIDENT:  The applicant pleaded guilty in the District Court at Brisbane to one count of burglary with actual violence in company, one count of serious assault and one count of stealing.

On a second indictment he pleaded guilty to a further 11 counts of breaking and entering premises and stealing, one count of receiving stolen property, seven counts of entering premises with intent, one count of unlawful damage and one count of stealing. 

In addition, 14 counts of break and enter premises and steal and three counts of entering premises with intent and one count of stealing were taken into account on a schedule under s.189 Penalties and Sentences Act 1992.

The applicant, a 15-year-old indigenous juvenile, was sentenced to three years' detention for the offence of burglary with actual violence in company and to lesser concurrent periods of detention on the remaining offences. Section 188(1) of the Juvenile Justice Act 1992 means that he will not be released from detention until he has served 70 per cent of his sentence.

The facts of the offences are as follows. Between July 1999 and February 2000 the applicant committed 39 offences of dishonesty, primarily breaking and entering commercial premises, churches, schools, childcare centres, clubs and motor vehicles and stealing property. The total value of property damaged or stolen was $9,884.20; none was recovered and no compensation paid.  Some offences were detected because of the location of the applicant's fingerprints, but most resulted from his admissions to police.

The seriousness of these offences is dwarfed by the applicant's involvement in the three count indictment. At about 8.30 p.m. on 11 January 2000 the complainant, an 81-year-old woman who was weak and tired from a stomach infection, was home alone watching television when she heard a noise at her front door. She opened the door thinking it was a visiting grandchild and disturbed three hooded offenders, one of whom was the applicant.

The offenders had loosened the security door from its hinges and when the complainant opened her door one grabbed her in a bearhug and pushed her a short distance up against a table.  Another offender took her handbag and the third offender held the door open.

An hour later the applicant was located with another co-offender near a teller machine in possession of some of the property from the complainant's bag. The applicant declined to take part in a record of interview, but pleaded guilty at an early stage.

The complainant, although not physically injured, naturally became fearful for her security after this incident.  She has since died from unrelated causes.

It is impossible not to feel anger towards the applicant for his treatment of the complainant for our society rightly expects its elderly citizens to be nurtured and treated with respect. Every fair-minded person would inevitably feel sympathy for the elderly complainant who was entitled to enjoy the security of her own home. The emotions naturally aroused in the commission of such offences cannot, however, deflect Judges from sentencing upon established principles.

The applicant was 14 and 15 years old at the time of these offences and is subject to the Juvenile Justice Act 1992 which stresses rehabilitation and reintegration into the community of juvenile offenders, (s.3(e)); that a child should be detained in custody for an offence only as a last resort, and for the shortest possible period (ss. 4(c)(i), 109(2)(b) and (e), 165 and see also R v. F and P CA No.112 of 1997, CA No. 114 of 1997, delivered 24 April 1997); and the age, maturity and, where appropriate, cultural background of the child are relevant considerations in a decision made in relation to a child under the Act (s.4(j)).

The applicant had no previous convictions, but he did have a criminal history.  In the Holden Hill Magistrates Court in South Australia 1996 he was fined for driving with an excess blood alcohol level.  In South Australia he was dealt with by way of family conferencing on 23 April 1996 for one count of arson and placed on an undertaking for three months; in 1997 for breaking and entering a building and committing an offence he was placed on a 12 months' undertaking and for interfering with a motor vehicle without consent and larceny he was placed on an undertaking for three months.  The applicant has not however had the benefit of probation or supervision. 

It is an aggravating factor that after the applicant committed the offences upon the elderly complainant he committed three further property offences whilst on bail. 

The presentence report indicated that the applicant was an indigenous youth who had returned to reside with his mother in Caboolture in January 1999 after previously residing with his father in South Australia. His parents separated when he was eight.  He did not re-enrol at school and committed these offences through a combination of boredom, negative peer influences and the abuse of alcohol and marijuana. He has formed a relationship with a young woman which has produced a child in September last year. The presentence report noted wrongly that the applicant had no previous history of offending.  If given probation the department would assist the applicant in completing courses or employment and would address his alcohol and drug use through counselling, if necessary. 

The applicant demonstrated remorse to the writer of the report and also to the Judge in Court. The report noted that the applicant is showing signs of maturing and working towards being a responsible parent and noted it would be more beneficial for him to remain in the community in a well-structured program so as to continue to adopt skills for a more appropriate lifestyle and to offer ongoing support to his partner and daughter.

The applicant pleaded guilty at an early stage in some instances by way of ex officio indictment and was largely cooperative with the authorities. 

The applicant submits that as detention was not the only appropriate order a sentence of probation and community service or an immediate release order should have been imposed.

The respondent concedes the sentence imposed was manifestly excessive in all the circumstances, especially taking into account the applicant's youth and plea of guilty and submits that a period of detention served by way of an immediate release order combined with probation and community service would be the appropriate sentence.

The applicant's involvement in these serious offences and his prior history did, in my view, allow the learned Judge to conclude that detention was the only available sentence option, but the sentence imposed was not for the shortest appropriate period (s.109(2)(e)) and was manifestly excessive. See for example R v. Livitt CA No. 327 of 1998 delivered 4 December 1998.

This Court must resentence the applicant. The applicant has now spent two and a half months in custody. The applicant's age, early pleas of guilty and rehabilitative prospects are mitigating factors. The principles and objectives of the Juvenile Justice Act 1992 can now best be served by releasing the applicant on an immediate release order and requiring him to serve a substantial period of probation and perform community service.

I would grant the application for leave to appeal and allow the appeal against sentence, set aside the sentence imposed below and instead, in respect of count 1 on the three count indictment, order that the applicant be sentenced to 12 months' detention to be served by way of an immediate release order on the terms and conditions set out in s.177 Juvenile Justice Act 1992 and on all remaining counts order that the applicant be placed on probation for two years on the terms and conditions set out in s.132 Juvenile Justice Act 1992 and perform 200 hours community service on the terms and conditions set out in s.146 Juvenile Justice Act 1992.

I would not record any convictions. I note that the applicant has consented to these proposed orders.

WILLIAMS JA: Yes, I agree.

MACKENZIE J: I agree.

THE PRESIDENT: The order is as I have proposed.