R v HY[2005] QCA 163

SUPREME COURT OF QUEENSLAND

WILSON J:  When he was aged 16 years, the applicant committed the offence of receiving, to which he subsequently pleaded guilty.  The offence was committed on a date unknown between 19 May and 25 June 2004. 

On 17 February 2005, he was sentenced under the Juvenile Justice Act 1992 (Qld), to 18 months' probation.  No conviction was recorded.

At the time of sentence, he was already subject to a 12 months probation order which had three months still to run.  Thus the effect of the new sentence was that he would have to spend a total of 27 months on probation. 

The applicant seeks leave to appeal against the sentence of 18 months probation on the grounds that it was beyond the appropriate range for the offence, and that the entire sentence offends the totality principle.

Upon the filing of the application for leave to appeal, the sentence imposed on 17 February 2005 was automatically stayed pursuant to section 115(1) of the Juvenile Justice Act.

On 22 June 2004, police executed a search warrant on the residence occupied by the applicant at Hervey Bay.  They found a glass smoking pipe and a tongue stud in his bedroom.  He readily admitted that some friends had come to his house with a bag of pipes they had stolen from a shop, and that he had received one of the pipes from them.

The shop also sells jewellery, and after the friends had left, the applicant had found the tongue stud and decided to keep it.  It had also been stolen from the shop.

As the sentencing Judge observed, receiving is a serious offence, but there was no suggestion of receiving for the purpose of personal financial gain.  The offence was more opportunistic than anything else. 

Viewed in isolation, this offence is, as counsel for the applicant submitted, at the lower end of the scale of seriousness, and would ordinarily attract a caution, reprimand, good behaviour bond or short community based order, when committed by a juvenile with a limited criminal history. However, it was conceded before the sentencing Judge, and before this Court, that in the circumstances of this applicant, an extension of the period of probation was an appropriate exercise of the sentencing discretion.

Complaint is made only as to the length of the extension.  Under section 175 of the Juvenile Justice Act, the maximum period of probation which might have been imposed had the matter been dealt with by a Magistrate (as it could have been if differently charged) was one year, or if dealt with by a Judge, two years.  Of course, there is no restriction upon the making of periods of probation cumulative.  

As I have said, the applicant was aged 16 at the time of the offence.  He had suffered from depression for about three years, and more recently had been badly affected by the death of his father in tragic circumstances. 

He had a criminal history from the age of 13, which included matters for which he was cautioned; possession of a knife in a public place at age 15 for which he was reprimanded without the recording of a conviction; and taking a vehicle without consent, wilful damage to property and false representation as to age at age 15 and a-half for which he received 40 hours of community service without the recording of a conviction. 

Of more immediate relevance were the following offences.  Consuming liquor in public, for which 40 hours' community service were imposed on 16 April 2004 without the recording of a conviction; and unlawful entry of a motor vehicle, stealing, entering premises and committing an indictable offence, and possession of drug utensils for which he received 12 months' probation, ultimately with effect from 19 May 2004.  Again no conviction was recorded.

So at the time the receiving offence was committed, he was subject to a community service order, and he was subject to a probation order.  The probation order had only just started to run and so he had had the benefit of little supervision.

By the time of the sentence, he had performed the community service, and he was performing satisfactorily under the probation order.

The sentencing Judge was bound to have regard to the principles in section 150 of the Juvenile Justice Act, including the fact that the community service order had been completed, section 150(1)(i).

Under the totality principle, he was obliged to consider whether the imposition of a further eighteen months probation would make the total sentence for the receiving and the earlier offences for which he had received twelve months probation too harsh.

At the time of sentence there was still three months to run of the earlier probation order.  Since the sentences were concurrent, there would be an overlap of three months, and so, the total period of probation would actually be twenty-seven months.

The applicant's counsel submitted that that was disproportionate to the total criminality and that the sentencing Judge should have imposed nine months probation to be served concurrently.  The practical effect of doing so would have been to extend the probation by six months to a total of eighteen months.

Counsel for the respondent submitted that in all the circumstances the sentence imposed was not excessive and that the focus should be on rehabilitation.  He stressed that probation was intended to provide the application with supervision and so assist that rehabilitation.

The applicant does have a disturbing criminal history for one so young.  The Charter of Juvenile Justice to which the Court must have regard includes the following principles:

"1.The community should be protected from offences.

8.A child who commits an offence should be:

(a)held accountable and encouraged to accept responsibility for the offending behaviour; and

(b)dealt with in a way that will give the child the opportunity to develop in responsible, beneficial and socially acceptable ways; and

(c)dealt with in a way that strengthens the child's family."

Probation is designed to assist an offender to become a law-abiding member of the community by providing him with some supervision and guidance.  By its very nature, it imposes some restrictions on the freedom with which an offender may go about his daily life.  The applicant demonstrated his need for such supervision and guidance by his conduct in committing these offences.  But the total period of the probation ordered was, in my view, beyond the bounds of the sentencing discretion.  I accept the submission of his counsel that a total period of eighteen months would have been appropriate.

The initial probationary period of twelve months will expire next week.  Because of the automatic stay resulting from this application, the further period imposed by the sentencing Judge is not running.  Therefore, to achieve an effective period of eighteen months, in my view, this Court should:

(a)allow the application for leave to appeal;

(b)set aside the sentence imposed below; and

(c)substitute a sentence of six months probation.

JERRARD JA:  I agree with the reasons for judgment and order proposed by Wilson J.

MUIR J:  I agree also.

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