R v H[2001] QCA 477

COURT OF APPEAL

McMURDO P

McPHERSON JA

AMBROSE J

CA No 236 of 2001

THE QUEEN

v.

H

BRISBANE

DATE 02/11/2001

JUDGMENT

AMBROSE J: This is an application by a 15 year old girl for leave to appeal against a sentence imposed on 10 August 2001 in the Childrens Court at Mackay. She pleaded guilty to an offence committed when she was 14 years of age, perhaps fourteen and a-half years of age, and that offence was a serious offence, as defined in the Juvenile Justice legislation. The offence was one of robbery in company, which involved a wounding.

She, with a number of young people I assume of approximately her age, on the night in question, that is, about 10 p.m. on 3 November 2000, set upon a man the worse for alcohol who was sleeping on the ground. She stole from him a necklace. She kicked him in the face. One of her companions presumably about her age then threatened him with serious injury should he not give the number of a card which he had on him to enable them to draw money out of his account.

The threat that was made by this man or child called Majid was that, if he did not give the number, he would break his legs and, in fact, he did start to jump on the man's legs until eventually he was given the number, which apparently was the correct number because later $700 was found to have been withdrawn from that man's account.

The applicant was present at that time and was one of the group and it seems that she was at least encouraging, by her presence, this violent activity directed towards this man because she admitted at a later stage that she in fact had unsuccessfully attempted to draw money from that man's account using the card that had been taken from him when he was on the ground, but she had been unsuccessful. However, one or more of her companions did succeed.

The maximum sentence for an adult for an offence of that kind is life imprisonment. Under the relevant Juvenile Justice legislation, in those circumstances the maximum sentence for detention is one of 10 years. The learned sentencing judge took into account in imposing the sentence of two years' detention the very significant criminal history of the child, which was placed before him. Her criminal activities commenced when she was about twelve and a-half years of age in Mackay.

I do not propose to recount all the matters in respect of which she was convicted. It is necessary, however, to look at the attempts that were made from then until the date of the commission of this offence to deal with her in such a way as to facilitate her rehabilitation from street crime.

On 9 September 1998, when she was 12 and a half, she was put on probation for four months. A couple of weeks later in respect of another offence of dishonesty she was put on a good behaviour bond for three months. A couple of months later when she was nearly 13 in respect of other offences she was put on probation for six months. A month or so later she was put on probation again for six months. 

On these occasions no conviction was recorded.  She was reprimanded for another offence. By April 1999 when she was a little over 13 years of age she was put on probation for 12 months. Again with no conviction recorded. Later on when she was nearly 14 she was put on probation again for 12 months. These were offences mainly of dishonesty and what might be regarded as break and enter offences, unlawful use and so on, but it was in October 1999 that she seems first to have been convicted of assault occasioning bodily harm.

The next matters of significance in respect of which she was dealt with were offences of breaking and entering, and a couple of assault charges. These occurred when she was 14 and a-half years old and she was dealt with for them on 12 July. On this occasion the first detention order was made and it was ordered that she be detained for four months with an immediate release order to operate after two months. No conviction was recorded. 

Again in April of 2001 she was convicted of various other offences of dishonesty. Again a probation order for 12 months; a community service order was made; again no conviction was recorded. These orders were breached and she next came before the Court in May 2001 for a shoplifting offence, no conviction was recorded. She was put on a recognisance to be of good behaviour for six months.

Finally in June 2001 she was again dealt with in the Childrens Court on a series of offences where detention for three months was imposed of which she was to serve 70 per cent. That is a brief outline. There are other offences that I have not referred to.

The learned sentencing Judge obtained a report from a person in the Department of Families. That lady, having dealt with the various efforts that had been made to assist her with probation and with immediate release orders and so on, said that the factors contributing to the offending behaviour of the applicant were substance abuse, her attitude towards law, her values system and her association with people of similar disposition with antisocial attitudes.

Reference was also made to the limited family supervision and discipline to which the child might resort or might take advantage of. She had started using inhalants at the time the report was made and the officer making the report said she was using them to escape from reality and from responsibilities in attempting to derive some benefit from the various non-custodial sentence that had been passed upon her over the previous couple of years.

It was said that her attitude towards offending and in general was very poor. She had no respect or no appropriate respect for members of society, in particular non-indigenous people. She admits that she does not care about offending or its consequences and the person making the report said that in her view detention was really no threat to the applicant because while detained there were fewer expectations of her than there were when she had to cooperate with the non-custodial orders made.

It was said that she had no respect for the judicial system or the part that the administration of criminal justice plays in keeping the community safe. It was observed that the Department has worked very intensively under the various orders for probation and detention orders with immediate release that have been made but it has not really been successful.

It was said that she relates to a very "negative" peer group which influenced her offending behaviour and this offence for which she was sent to Court was one committed as a member of a group who set out to rob, assault and threaten somebody they came across asleep at 10 o'clock at night in Mackay.

She admitted that she liked to impress her friends with the nature of her offending behaviour and that she has developed a pattern of offending behaviour over the last three years. The children that she associates with engage in the same sort of offending behaviour and it was interesting to note that one of the offenders in the offence to which she had pleaded guilty was in fact one of her co-offenders on another charge prior to her sentence for this offence. That was a Mr Martin Majit.

I do not propose to analyse in any detail the various orders for detention made with immediate release. It suffices to say that when she was about 14 and a half years of age she was dealt with on a number of offences committed with other people presumably of her age and she was then sentenced to detention for four months with an immediate release order. In fact there were four or five such orders made, but they were all made at the one time on 12 July 2000.

So the learned sentencing Judge, when he turned to consider the appropriate penalty in this case, had before him this offending behaviour and the fact that the various probation orders and detention orders with immediate release orders and so on, the various recognisance orders that have been made, had all proved ineffective. 

And he had also the report from the Family Services Department Officer which concluded by saying that the applicant had indicated that she would be willing to comply once more with the conditions of an immediate release order, however the reporting officer observed that she seemed to have a very low level of motivation to comply with the requirements of such an order.

It was pointed out that should such an order be made then the serious nature of her criminal history would give a clear message to her if a detention order was made. But she seemed to have reservations as to whether an immediate detention order would work - would be useful because they had not been useful previously. And on her behalf it was not really contested or contended that it would be appropriate to impose or to make an immediate release order.

It was pointed out that if the applicant should spend some time in detention it might assist her to cease using inhalants because of the programs of substance abuse, and counselling available to her and obviously, unless this behavioural problem is corrected one would assume that she will end up damaging herself significantly should she continue to inhale substances of whatever kind to excite her or to interfere with her ordinary rational behaviour patterns.

Faced with this problem the learned sentencing Judge took into account that she had cooperated with the police and imposed a sentence for detention for a period of two years. Under section 188(1) of the Juvenile Justice Act, she will become entitled to release after serving 70 per cent of that sentence. That is after she has served 16.8 months, I think it is.  She was in custody prior to the sentence for about one month.

As a consequence of that order against which application is made for leave to appeal, she will from the date of that sentence be kept off the streets and away from the temptation to commit offences of the sort that she had committed regularly, almost habitually for a couple of years for a further period of nearly 16 months.

It was suggested that instead of two years' detention perhaps detention for only 12 to 15 months would have been appropriate. In my view, it will really be for the benefit of the child if the sentence is not interfered with so that she will have a significant period of time off the streets under supervision and control, where she will stand a chance with counselling and steps being taken to motivate her to achieve rehabilitation so that she may be given a further opportunity to live an ordinary life not engaging in the antisocial activities that she and her associates have engaged in over the last few years.

I am unpersuaded that the sentence imposed was manifestly excessive and I would decline leave to appeal.

THE PRESIDENT: I agree. Sadly, the pre-sentence report indicates that this 15 year old applicant's only current prospects of rehabilitation involve a substantial period of custody to enable her to cease using inhalants and undertake the intensive programs outlined in the pre-sentence report.

Detention also has the advantage of protecting the community from the applicant's very frequent offending. These factors, combined with the applicant's appalling prior history and the serious aspects of this offence, have the result that the sentence of two years' detention was not manifestly excessive. The application, in my view, should be refused.

McPHERSON JA: I agree.

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

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