Oakley v Commissioner of Police
[2014] QCHC 8
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- Unreported Judgment
- Oakley v Commissioner of Police[2014] QCHC 8
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Oakley v Commissioner of Police[2014] QCHC 8
Oakley v Commissioner of Police[2014] QCHC 8
CHILDRENS COURT OF QUEENSLAND
CITATION: | Oakley v Commissioner of Police [2014] QChC 8 |
PARTIES: | LAWRENCE KENNETH OAKLEY (Appellant) v COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | 2373/14 |
DIVISION: | Appeal Division |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act 1886 |
ORIGINATING COURT: | Woorabinda Childrens Court |
DELIVERED ON: | 15 July 2014 |
DELIVERED AT: | Southport District Court |
HEARING DATE: | 30 June 2014 |
JUDGE: | Martin SC, DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – PLEAS – ACCEPTANCE – where the appellant pleaded guilty to a charge in circumstances where the facts disclosed precluded guilt at law for that charge – whether s 222 (2) (c) Justices Act 1886 precluded this Court from hearing the appeal – where new charge preferred under s 42 (1A) Justices Act 1886 – sentences at large – resentenced |
COUNSEL: | Mr Law for the Appellant Mr Jackson for the Respondent |
SOLICITORS: | Legal Aid Queensland for the Appellant Office of the Director of Public Prosecutions for the Respondent |
- [1]Pursuant to s 222 of the Justices Act 1886, the defendant appeals against sentences imposed in the Woorabinda Childrens Court on 2 June 2014.
- [2]The appellant pleaded guilty to, and was sentenced in relation to, the following offences:
- One charge of animal cruelty;
- Three charges of endangering the safe use of a vehicle;
- Four charges of committing public nuisance;
- Two charges of entering premises and committing an indictable offence;
- One charge of entering a dwelling with intent to commit and indictable offence in the night;
- One charge of unlawful use of a motor vehicle;
- Two charges of trespass;
- Two charges of unlawful damage.
- [3]With the exception of the two trespass offences, in relation to each offence the appellant was sentenced to five months detention and ordered to serve 70% of that period. Convictions were not recorded. All of the sentences of detention are the subject of this appeal.
- [4]On the face of the record, the appellant was wrongly convicted and sentenced in respect of the offence of burglary. The facts of the offence disclose that the building entered was a café, not a dwelling. The facts read out on sentence referred to the building as the Woorabinda Café. Assuming that the building may have been a house, there was no indication that the structure satisfied the definition of “dwelling” in the Criminal Code. In particular, there was no indication that the building was being kept at the relevant time as a residence.
- [5]The appellant could not in law have been guilty of the offence of burglary. The respondent concedes that the appellant was wrongly convicted in respect of that offence.
- [6]Submissions were made as to whether s 222(2)(c) of the Act precluded the appellant from appealing to this court in respect of the burglary sentence. Section 222(2)(c) provides an exception to the general right of appeal under s 222(1), as follows:
“(2)However, the following exceptions apply –
…
- (c)if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture, or punishment was excessive or inadequate.”
- [7]In the event, both parties agreed that this court had power to deal with this matter. I respectfully agree. In the circumstances, it is sufficient to simply refer to the observations of Henry J in Commissioner of Police Service v Magistrate Spencer & Ors [2013] QSC 202, [83] and the observations of the Court of Appeal in Ajax v Bird [2010] QCA 2, [5].
- [8]The respondent also argued that this court had power to act under s 42(1A) of the Justices Act by amending the burglary charge or making a further (alternative) charge of entering premises. Reliance was placed on s 225(1) and (3) of the Act.
- [9]The appellant either ultimately agreed with the respondent’s argument, or, at least, did not oppose it. I respectfully agree with the respondent’s argument in this regard. However, I note that s 42(1A) states “where a defendant is present at a proceeding and does not object, a further charge or an amended charge may be made against the defendant…”. The appellant was not present at the appeal, but he was represented by Mr Law. At the hearing of the appeal, Mr Law undertook to obtain instructions from the appellant in relation to the proposed new charge and pleading guilty to that charge. Mr Law undertook to notify my associate of relevant instructions in relation to this. Notification of the relevant instructions was received by email on 11 July 2014. In my view, in the circumstances, s 42(1A) has been satisfied.
- [10]Consequently, the burglary conviction, and, of course, the sentence imposed in respect of it, are set aside. In lieu of the burglary charge, the appellant is charged that on 29 April 2014 at Woorabinda in the State of Queensland he entered the premises of the Woorabinda Aboriginal Shire Council and committed an indictable offence therein. I accept the appellant’s notification that a plea of guilty will be entered to this charge, as a plea of guilty duly entered.
- [11]Whilst the respondent made the concession and arguments favourable to the appellant, referred to above, the respondent argued that the appellant ought be resentenced in relation to the new charge only and that the sentences otherwise remain unaffected.
- [12]In my view, this cannot be so. The result of setting aside the burglary conviction is that all of the sentences are now at large. It is to be noted that, whilst there is jurisdictional limit in relation to the sentences which may be imposed by the learned magistrate, the maximum penalty for the original burglary charge is life imprisonment and the maximum penalty for the new charge is 14 years imprisonment. Plainly, the maximum penalty of each offence is relevant to the determination of penalty. In any event, for obvious reasons, burglary offences are generally regarded more seriously than offences of entering premises.
- [13]It is clear to me that the learned magistrate must have taken a global approach to sentencing the appellant in relation to the offences. The learned magistrate has clearly, in my view, imposed a sentence of five months imprisonment to serve 70% of that time, to reflect the overall criminality in the offending before him. This is particularly evident because the magistrate imposed the same sentence of detention whether the offence was committing a public nuisance (swearing at police) or burglary.
- [14]The appellant is to be sentenced afresh in relation to the sentences appealed against. Of course, the appellant falls to be sentenced now on the basis that he has suffered a significant period of detention which must be taken into account in arriving at penalty.
- [15]The appellant was only 13 years of age at the time of the offending and at the time of sentence. He is now 14 years of age. However, he has a bad criminal history, especially for one so young. Prior to being sentenced in relation to the matters before me, at various times the appellant had received the benefit of a probation order, a good behaviour bond and a community service order. The offending under consideration here was committed while subject to the community service order. However, it is noted that his work commitment under the order seems to have been satisfactory. At the time of sentence, the appellant had completed 92.75 hours of the 100 hours ordered.
- [16]I take into account the appellant’s pleas of guilty. I cannot see that genuine remorse plays any part in this matter. However, the pleas of guilty have saved the State time and money and that is in the appellant’s favour.
- [17]I have had regard to all of the submissions on sentence, both written and oral, made on behalf of the appellant and the respondent.
- [18]The previous offending and the offending before this court include numerous serious property-related offences. However, it is also troubling that the previous offending includes a charge of assault occasioning bodily harm with a circumstance of aggravation, charges of endangering the safe use of a vehicle and committing public nuisance. The offending before me includes a charge of animal cruelty, three charges of endangering the safe use of a vehicle and four charges of committing public nuisance.
- [19]I note that the offence in the charge of wilful damage committed on 29 April 2014 comprises the offence committed within the premises in the new charge of entering premises and committing an indictable offence. This will be reflected in the sentence imposed.
- [20]In relation to the charge of unlawful use of a motor vehicle, the appellant’s outline of argument did not set out the relevant details of the offence. However, I note that the circumstances of the offending were placed before the learned magistrate. (transcript page eight, line 40 to transcript page nine, line five)
- [21]A sentence designed to deter the appellant from further offending is plainly warranted. Of course, the appellant’s rehabilitation remains a highly relevant consideration.
- [22]I take into account that the appellant had suffered 13 days detention prior to sentence on 2 June 2014. In addition, he has suffered detention from 2 June 2014 to 15 July 2014, a period of 44 days. The total period of detention to be taken into account is 57 days, a period just short of two months.
- [23]The pre-sentence report placed before the learned magistrate and this Court, includes an excellent conditional release order program proposal (“Annexure D”). The proposal is designed to ensure that the appellant attends school as well as make reparation to the community. Vocational, work and re-integration activities are also included in the proposed program, as are interventions to address the appellant’s persistent offending. The pre-sentence report notes that the appellant expressed his understanding of the conditions of the order and the consequences of non- compliance, and also his willingness to comply with the conditional release order.
- [24]The appeal is allowed. Each of the sentence orders for detention is set aside.
- [25]In the circumstances, including that the appellant has suffered 57 days actual detention to date, the orders are as follows:
- a)In relation to each of the three charges of entering premises, I order that the appellant be detained for a period of four months.
- b)In relation to the charge of animal cruelty and the charge of wilful damage committed on 17 May 2014, in respect of each, I order that the appellant be detained for three months.
- c)In relation to each of the three charges of endangering the safe use of a vehicle, I order that the appellant be detained for two months.
- d)In relation to the charge of wilful damage committed on 29 April 2014, the charge of unlawful use of a motor vehicle and the four charges of public nuisance, in respect of each, I order that the appellant be detained for one month.
- e)All sentences of detention are to be served concurrently.
- f)I further order that these orders for detention be immediately suspended and I make a conditional release order that the appellant be immediately released from detention.
- g)The conditional release order shall contain the requirement that the appellant participate as directed by the Chief Executive in the program identified in “Annexure D” to the pre-sentence report dated 28 May 2014 for a period of three months and the conditional release order shall contain the usual requirements set out in s 221 (1) (b) of the Youth Justice Act 1992.
- h)Convictions are not recorded.
- [26]Application is made under s. 299A Youth Justice Act 1992 for a publication prohibition order. The respondent opposes the application. I have had regard to all relevant matters in s. 299A (4) Youth Justice Act 1992. The appellant is young. Further, in an effort to assist the appellant in getting employment in the future, convictions have not been recorded, and this is likely to assist rehabilitation. However, I do not accept that refusing a publication prohibition order would be inconsistent with the discretion not to record convictions. In any event, the community is entitled to be protected from the appellant and consequently to know to be alert to the appellant’s conduct. After all, the appellant has persistently committed property- related offences within the community, thereby causing significant damage. Further, as His Honour Judge Farr SC noted in Doyle v Commissioner of Police (judgment 2 June 2014) the shame of publication may well assist rehabilitation. On balance, I refuse the application.
- [27]The effective sentence imposed on the appellant is a heavy one. He has already suffered 57 days actual detention and he is now to be subject to an onerous three month program. Importantly, the appellant has hanging over his head that if he breaches the conditional release order it is likely that he will be ordered to serve the sentences of detention, namely, a period of four months less 57 days. (See s 246 Youth Justice Act 1992)
- [28]The period of 57 days is declared as time served under the sentence imposed.