R v B[2001] QCA 151

COURT OF APPEAL

McPHERSON JA

THOMAS JA

HOLMES J

No 22 of 2001

THE QUEEN 

v.

BApplicant

BRISBANE

DATE 19/04/2001

JUDGMENT

McPHERSON JA:  I will ask Mr Justice Thomas to give the first judgment.

THOMAS JA: The applicant seeks leave to appeal against sentences imposed upon him in the District Court, Maryborough. He is 16 years old, having been born on 22 August 1984.

He pleaded guilty to 10 counts, four of which were of stealing, two of receiving, two of assault, one of unlawful use of a motor vehicle and one of unlawful entry of a motor vehicle.  Most of these were committed between June and October 2000.  However, the unlawful use of the motor vehicle was committed a year earlier, in July 1999.  He was sentenced to detention for 12 months on the unlawful use of a motor vehicle count and to detention for three months on all other counts.  He had been in pre-sentence detention for 59 days before sentence and it was accepted that he would be credited with having served that period as part of the sentence. 

The applicant was frankly described by his counsel as a recidivist offender in relation to property.  At the time of the present sentences, he was subject to four two year probation orders and a 200 hour community service order.  He had in all been subject to seven probation orders, six community service orders and two detention orders served as immediate release orders.

This was not the first time he had experienced detention.  It would seem that he had been in detention probably for a period of several months on a previous occasion around the time of his Court appearance of 22 February 1999 when he was sentenced to actual detention but was prematurely released after a review.

The present offences include four shop stealing offences and various assaults upon his father and causing damage to his father's property.  The assaults included the repeated punching of an arthritic knee and throwing objects at his father.  The presentence report with, perhaps, some understatement says:

"James demonstrates little respect for his parents.  This disrespect has been present for the majority of James' childhood."

The unlawful use of the motor vehicle was committed in company with other youths.  The vehicle in question was taken from Urangan boat harbour and was later recovered in a damaged state.  The unlawful entry of a vehicle related to the pushing open of a window vent with the intention of stealing money in the car.

The presentence report indicates a pattern of persistent offending since age 11.  It profiles the applicant as an habitual offender who lacks victim empathy.  In passing judgment, Botting District Court Judge noted that the applicant had appeared before him in May and that in ordering his release on probation on that occasion he had had doubts as to whether he was taking the appropriate course.  His Honour also referred to the fact that every other option, apart from detention, had been tried and had failed to stop the applicant's reoffending. 

Counsel for the applicant referred to the fact that the unlawful use of the motor vehicle occurred a year earlier and submitted that had he been dealt with for this offence in May 2000 it is unlikely to have resulted in a period of actual detention at that time.  I am by no means satisfied that this is so, especially having regard to the doubts recalled by the learned sentencing Judge in relation to the May 2000 sentence.  The inclusion of that charge may well have tipped the scales in favour of detention on that earlier occasion. 

In the proceedings below, defence counsel conceded detention to be the only option, but sought an immediate release order having regard to the two months already served.  On appeal I do not understand the applicant's counsel to seek such an order, and note the submission is that the sentence should be replaced with one of six months detention.  Such a reduction would virtually secure his immediate release as he has now served approximately 70 per cent of six months. 

It is true that most of the 10 offences are not in themselves particularly serious, but the difficulty is that they are part of a pattern of persistent offending which the applicant shows no signs of abating.  He would seem to be out of control at present.  The only question seems to be whether 12 months detention was excessive, having regard to the requirement of section 109(2)(e) of the Juvenile Justice Act that detention should be for the shortest appropriate period.

The learned sentencing Judge, in opting for a period of 12 months, observed that it should be a significant period "so that those who will be responsible for your care and supervision whilst you are detained may have some chance at least to address some of the issues which are causing these problems".  All other options having been tried, it seems to me that the only real option for the learned sentencing Judge was the imposition of a significant period of detention.  The applicant was observed to have what was called "a high level of comfort" in the criminal justice process hitherto applied to him and held a "no fear" attitude to being caught.

In all the circumstances, I am unable to say that the sentence which was imposed for the totality of these offences was manifestly excessive.  I would refuse the application.

McPHERSON JA:  I agree.

HOLMES J:  I agree.

McPHERSON JA:  The application is refused.