R v H[2001] QCA 356

COURT OF APPEAL

DAVIES JA

WILLIAMS JA

WHITE J

CA No 112 of 2001

THE QUEEN

v.

H

BRISBANE

DATE 29/08/2001

JUDGMENT

DAVIES JA:  The applicant in this matter pleaded guilty in the District Court on 13 March this year to a total of 20 offences.  One of them, one of 10 counts of burglary, was committed in January 1998.  All the others were committed between March and June 2000.  They were nine other counts of burglary, two of attempted burglary, five of unlawful use of a motor vehicle, two of breaking, entering and stealing and one of stealing.  At the time he committed the offence in 1998 the applicant was only 14 years of age.  He was 16 when all of the other offences were committed and 17 when sentenced, having been born on 6 September 1983. 

On 19 April this year the applicant was sentenced to two years detention with a declaration that a period of 163 pre-sentence custody was time already served under that detention order.

The applicant, at the time of commission of these offences and sentence, had a substantial prior criminal history.  It is sufficient to state the substance of that history.  In 1997 he was sentenced to nine months detention, to be served by way of immediate release order for three months for unlawful use of a motor vehicle, dangerous driving, house-breaking and stealing and on the same day he was sentenced to two years probation on 10 counts of stealing, eight of wilful damage, one of unlawful use of a motor vehicle with a circumstance of aggravation and one of assault occasioning bodily harm. 

Then in May 1998 he was sentenced to eight months detention for breach of his immediate release order and for two offences of house-breaking, one of entering a dwelling house and committing an indictable offence, one of unlawful use of a motor vehicle, two of stealing and one of wilful damage.

He was sentenced to 10 months detention concurrent with the detention order of eight months with an order that he be released after serving 50 per cent of that term.  He was separately sentenced on three good behaviour bonds for summary offences in 1998 and in December 1998 he was sentenced to three months detention for the possession of tainted property, 12 months detention for six offences of unlawful use of a motor vehicle, one of receiving, 12 of entering a dwelling house with intent, two of stealing and 2 of wilful damage and three months detention for breach of the Bail Act and the possession of a knife.  All of these to be served concurrently.

Finally in 1999 he was sentenced to 18 months detention with an order that he be released after serving 50 per cent of that term for one offence of housebreaking, six of unlawful use of a motor vehicle, five of entering a dwelling house and committing an indictable offence, two of entering premises and committing an indictable offence, two of entering a dwelling house with intent, one of attempted entering a dwelling house with intent, one of stealing and one of wilful damage.

I do not think the learned primary Judge exaggerated when he said to the applicant, whilst imposing this sentence, that he had a disgraceful criminal history.  It is with that criminal history in mind that one must consider the appropriateness of the sentence imposed here.

By far the most serious of the current offences were the burglaries which resulted in economic loss to the complainants of a total of $46,000.  Most of the unlawful use offences were associated with these, the applicant making off with the complainants' motor vehicles.  It may be noted that the offences for which he was sentenced in 1999 involved economic loss of almost $80,000.

Like many young offenders the applicant has had an unfortunate family life, his parents having separated when he was very young, a result being that he has lacked parental supervision and guidance.  He became addicted to amphetamines and at least some of his criminal offences can be explained by his need to obtain money to buy amphetamines.

He was granted bail on condition that he complete a conditional supervised bail program which he did, but not in a wholly satisfactory way.  He was found to have ingested marijuana towards the end of that program.  Nevertheless it may be said that he made some progress which indicates that under supervision and control he has some prospect of rehabilitation.  He should be commended for persevering with that program.

That is one of the matters which Mr Perkins, who said everything that could be said for him today, relied on as showing a special circumstance in this case.  The other matter which Mr Perkins relied on was the support of his family.  It is true that he has the advantage of the support of both his parents, however, it may be doubted, in view of the very careful report which we received from the welfare officer, whether either of these is able to provide the supervision which he needs in order to rehabilitate himself.

I have no doubt that in those circumstances it was appropriate to make a detention order as the learned primary Judge did.  The only arguable question, in my opinion, is whether the term of that order was excessive.

When one has regard to his previous offences and the sentences previously imposed upon him and the seriousness of the offences involved in this case, I do not think it can be said that the sentence imposed here was manifestly excessive.  The cases referred to by Mr Weston for the respondent of Doctor, CA No 375 of 1998 and Hardy, CA No 244 of 1994, in my opinion, support that assessment although, as Mr Perkins said, neither case had in it special circumstances.

He commenced re-offending shortly after release from detention ordered under his previous sentence and a report of the Family Services Officer Mr Long, to which I have already referred, is not optimistic of his chances of rehabilitation unless he is placed in some structured system in which he can be brought to see the need to change and in addition can overcome his drug dependence.

In my opinion the application should be refused.

WILLIAMS JA:  I agree.

WHITE J:  I agree also.

DAVIES JA:  The application is refused.