R v C[2001] QCA 552

ATKINSON J:  The applicant C seeks leave to appeal sentences imposed on him in the Childrens Court on 24 October 2001.  He was sentenced on two ex officio indictments.

On the first indictment he was sentenced to two years' detention for arson, and on the second indictment he was sentenced to 12 months' detention on counts 1 and 2 of stealing and wilful damage, and two years' detention on the third count, which was also arson.  All sentences were ordered to be served concurrently.

The applicant was born on 28 April 1986, and so he is now 15 years old.  The offence on the first indictment occurred on 11 February 2001 when the applicant was 14 years old.  He had been a resident of Boys Town since 1996 after he was placed into voluntary care by his mother when she was unable to cope with his behaviour.  He was then 10 years old.

However on 11 February 2001, after being annoyed with another resident in one of the cottages at Boys Town, he lit a tea towel on a hot plate and having ascertained that no-one was in the building, he placed it underneath one of the lounge suites in the communal lounge room.

The fact that he knew that no-one was present in the building was not put before the sentencing Judge, but is common ground in this case.  The Crown has conceded that that is a material change in the circumstances presented to the learned sentencing Judge.

The applicant then left the building, but felt guilty and subsequently returned inside and tried to remove the tea towel.  The lounge suite, however, burst into flames and he then ran back to his own cottage until the fire was detected.  He then tried to assist in putting the flames out.  The damage resulting from the burning of the cottage was approximately $500,000.

The offences on the second indictment occurred on 30 April 2001 while the applicant was still only 14 years old.  He was on bail for the first offence when he and two others, including one adult and another juvenile stole fuel canisters from the trailer of a parked vehicle and used the petrol to set fire to a rubbish bin, a tree, and later a car.

The applicant was then remanded in custody for 38 days following the offences on the second indictment.  He pleaded guilty to all four charges on 8 June 2001 before a Judge of the Childrens Court.  The Judge ordered a pre-sentence report pursuant to Section 110 of the Juvenile Justice Act together with a psychological report.  His Honour also granted bail to the applicant, being satisfied that the conditional bail program prepared by the Department was an adequate program that would significantly reduce the chance of reoffending.  His Honour also took into account the applicant's youth and the principle that detention on remand should always be a last resort under the Juvenile Justice Act.

The applicant was then sentenced on 24 October 2001 by another Judge in the Childrens Court.  At that time, a community conference had taken place on 19 October and reports as ordered had been prepared.

In sentencing the applicant to the periods of detention I have mentioned, the learned sentencing Judge referred to the seriousness of the offences, particularly the arson offence on the first indictment and the fact that another arson offence had been committed subsequently.  He also took into account the need to protect the community.

Section 4 of the Act sets out a number of general principles underlying its operation.  The first of these is that the community must be protected from offences, but there are a number of other principles to which the Act gives effect; in particular s.4(c)(i) provides that a child should be detained in custody for an offence only as a last resort.

Under s.109 of the Act, the Court is required to take the principles set out in s.4 into account in sentencing a child for an offence.  In addition, the sentencing principles require the Court to take into account such matters as:

1. the nature and seriousness of the offence;
2. the child's previous offending history;
3. information about the child including a pre-sentence report;
4. any impact of the offence on a victim;
5. the fitting proportion between the sentence and the offence;
6. that a child's age is a mitigating factor in determining whether or not to impose a penalty and the nature of the penalty imposed;
7. a non-custodial order is better than detention in promoting a child's ability to reintegrate into the community and a detention order should be imposed only as a last resort and for the shortest appropriate period;
8. the rehabilitation of a child found guilty of an offence is greatly assisted by the child's family and opportunities for the child to engage in educational programs and employment.

The significance of these principles in sentencing a child have been referred to on many occasions in this Court:  R v. Fahey, Solomon and AD [2001] QCA 82 at [36]-[38]; The Queen v. M [2001] QCA 11; R v. K [2000] QCA 43 at p.10; R v. S [1999] QCA 499.

The sentences that may be imposed upon children are covered by ss. 120 and 121 of the Act.  They extend from a reprimand to ordering a child to serve a period of detention.  The period of detention depends on the seriousness of the crime.  For an offence such as arson for which an adult may be sentenced to life imprisonment, the Childrens Court may order a child to be detained for a period of not more than 10 years.  (Footnote:  Or for a period up to and including the maximum of life if the offence involves the commission of violence against a person and the court considers the offence to be a particularly heinous offence having regard to all the circumstances.]

Section 165 of the Act provides that: 

 "a court may make a detention order against a child only if the court, after -

 (a) considering all other available sentences; and

 (b)  taking into account the desirability of not holding a child in detention;

 is satisfied that no other sentence is appropriate in the circumstances of the case."

As Justice McPherson held in R v. Brooks [2001] QCA 112 at 6, with young offenders, a custodial sentence is designed to be exceptional.

A child sentenced to serve a period of detention must be released from detention after serving 70 per cent of the period unless the Court in special circumstances makes an order that the child be released after serving 50 per cent or more, but less than 70 per cent, of the sentence.  However, the Court is given another option under subdivision 2 of division 7 of Part 5 of the Act.  This is an immediate release order, the purpose of which is to provide for a final option instead of detention of a child by allowing a Court to immediately release the child into a structured program with strict conditions.  In such a case, the court makes a detention order which is immediately suspended.

However, the program period for an immediate release order may last for no longer than three months.

A court may make an immediate release order only if the pre-sentence report, considered before making the detention order in question, indicates that the child is suitable for release from detention under an immediate release order and an appropriate program in which the child may participate is available on the child's release under the order.

As previously mentioned, the Court in this case was in receipt of a pre-sentence report from the Department of Families, Youth and Community Care under the hand of Chris Boyle, a family services officer in Mount Gravatt area office.  That report was dated 27 August 2001 and has attached to it a "remand in custody report", the sentencing options available under the Juvenile Justice Act, the immediate release order program available to the applicant and a psychological report.

The pre-sentence report shows that the applicant has no prior criminal history at all.  Under the heading "Factors contributing to offending" Ms Boyle refers to the fact that the applicant has been diagnosed suffering from Klinefelter's syndrome.  This is a chromosomal disorder which occurs when boys have an extra X chromosome.

This syndrome normally results in delayed language development and some form of language impairment, delayed social and emotional development, difficulties with learning, poor self-esteem, as well as those with the syndrome tending to be more shy, anxious or immature than their peers.  Overly aggressive behaviour is noted in these children.  The pre-sentence report attributes much of the applicant's behaviour to symptoms that are common in Klinefelter's syndrome. 

The applicant also has difficulty getting along with his peers, displaying many behaviours similar to those found is Asperger's syndrome, difficulty with anger management and poor impulse control and lack of insight into his behaviour which was related to his delayed social and emotional development, along with his difficulties with learning and communication.  This has also impaired his ability to recognise the impact of his offences and communicate his attitude towards the offence and victims.

Under the heading "Sentencing Options", the report says the sentencing Judge might consider ordering a community conference which will allow the applicant an opportunity to talk to the victims of his offences about the impact of his offending behaviour which might provide a useful process given his lack of insight.

The report then looks at the sentencing option of a probation order, a community service order or a combination of the two.  In giving consideration to a detention order the report notes that the applicant has already spent 38 days in remand and its assessment was that continued incarceration would serve to further institutionalise him making reintegration into the community more difficult.

While it might serve as punishment for his offending behaviour it would expose him to the influence of other young offenders who, unlike the applicant, have extensive criminal histories. The report noted that he had abstained from offending behaviour since these offences and that he would not benefit from a detention order as his delayed emotional and social development and low level of maturity would make him vulnerable to the influence of negative peers.

In my view the two factors identified, in particular his institutionalisation and the likely negative effect of the peer group with whom he would mix on his detention are very telling reasons why detention of the applicant is an unsuitable order and may serve to hamper rehabilitation in this case.  Added to that is the youth of the applicant and the fact that he has no criminal history.

With regard to an immediate release order, the report says that it would allow him to participate in three separate components to reintegrate him into society, address his offending behaviour and provide some reparation for the community.  An immediate release order program was available to him and a proposed immediate release order was attached to the report.  It provided for three days a week of unpaid community reparation work, as well as interventions to address offending.

The appropriate officers of the department were of the view that the immediate release order proposal was the most suitable program to maximise the applicant's rehabilitation and reintegration into the community.  They were of the view that he appears motivated to no longer re-offend.  An updated immediate release order has been presented to this Court with a new paragraph on interventions to address offending.

As the psychological report shows, the rehabilitation and reintegration of the applicant will not be easy.  In particular there have been serious problems finding suitable accommodation given his behavioural difficulties.  His detention would however restrict access to supportive services and the psychologist expressed concern that detention, while a viable option, might cause the cycle to repeat itself.  There is no doubt in my mind that if his antisocial behaviour continues he will find himself facing increasing periods of actual detention. 

A combination of an immediate release order for some offences and a probation order on others would appear to be the most appropriate order to impose upon this applicant given his youth, his lack of previous criminal offences, his background and medical condition, his plea of guilty, his compliance with and positive response to the conditional bail program and the community conference ordered under section 119A of the Juvenile Justice Act, and the likely negative effects of detention on him, whilst also taking into account both the seriousness of the offences and the repetition of an offence of arson, as well as the commission of less serious offences, whilst on bail for the first offence of arson.

An immediate release order on its own would not provide for supervision over a sufficient period to be adequate in this case.  With a probation order in addition the applicant will have supervision for the longer period that is necessary.

In all of the circumstances I am satisfied that the sentence imposed was manifestly excessive.  He has now served 75 days in detention.  The Crown has conceded that that time in detention is sufficient particularly given the change in the factual circumstances relating to the offence of arson.

The application for leave to appeal his sentence shall be granted and the appeal allowed.  The sentence imposed below should be set aside.  I would order that the applicant be sentenced to a detention order of 18 months on the first indictment and on count 3 on the second indictment, but that he should be ordered to be immediately released from detention in accordance with the immediate release order which is Exhibit 1 before us.

He should be sentenced to two years' probation on counts 1 and 2 on the second indictment with the added condition that he undertake such medical, psychiatric or psychological treatment or counselling as directed by the Chief Executive.  All sentences should be served concurrently.

In view of the seriousness of the offences convictions should be recorded.

DAVIES JA:  I agree.

MULLINS J:  I agree.

DAVIES JA:  Those orders are satisfactory, are they?

MR WESTON:  They are indeed, your Honour, yes.

DAVIES JA:  The order will be as indicated by Justice Atkinson.