R v A & S; ex parte Attorney General of Queensland [1999] QCA 503

Director of Public Prosecutions (Queensland) for the appellant

[1] McMURDO P AND THOMAS JA: The respondents pleaded guilty in the District Court at Southport on 28 May 1999 to attempted entering of a premises with intent (count 1); breaking and entering premises and stealing (count 2); stealing firearms for use in another indictable offence (count 3); unlawful use of a motor vehicle to facilitate an offence (count 4); housebreaking in company whilst armed (count 5); and robbery in company with personal violence whilst armed (count 6). In addition, the respondent A pleaded guilty to summary offences involving firearms by way of s 651 of the Criminal Code.

[2] As both offenders were juveniles, pre-sentence reports were required and ordered under the Juvenile Justice Act 1992.[1]

[3] On 27 July 1999 the respondents were each sentenced to three years probation with counselling and treatment as directed and victim offender conferencing in respect of the housebreaking (count 5); two years detention with an immediate release order in respect of the armed robbery in company (count 6); the respondent A, who also pleaded guilty to summary offences, was sentenced to 200 hours community service, and the respondent S was sentenced to 150 hours community service in respect of each remaining offence.

[4] The appellant, the Attorney-General of Queensland, submits the combination of sentences imposed was unlawful and, in any case, manifestly inadequate.

[5] In December 1998 the respondents went to the Gold Coast War Museum at Mudgeeraba with a hacksaw and jemmy bar intending to break in and steal some paint guns for use as weapons in a future armed robbery. They were disturbed by a security guard and fled.

[6] On about 7 December 1998 the respondents went to the Currumbin Wildlife Sanctuary; they jumped the exterior fence and attempted to steal a wallaby. Not surprisingly, this proved too difficult and, instead, they stole a crested tern which was recovering from an injury; they released it the next day.

[7] In March 1999 the respondents decided to run away to Melbourne and planned to support themselves by playing in a band. They stole a 12 gauge double barrel shotgun, a Winchester pump action shotgun, a .38 calibre pistol and a Sterling .22 calibre bolt action rifle, together with a large quantity of ammunition from A's father. They also took a car belonging to A's father, but hoped to steal a better car from the parents of a fellow school student.

[8] On 8 March 1999 at about 3.30 p.m. the respondents broke into the home of their schoolmate by forcing a security grill. Their schoolmate's thirteen year old sister came home from school to be grabbed by the respondent S who was wearing a balaclava, surgical gloves and was armed with a pistol. She recognised him from school. He told her to go downstairs where she saw another male in a balaclava, the respondent A, who was holding a rifle in front of his chest. She also recognised him from school. They forced her to kneel on the floor and taped her hands and mouth and then taped her to a chair. She became hysterical, and was in fear of her life. S said, "Don't worry, we're not going to kill you. You won't get hurt." They said they wanted her father's car, a Subaru WRX. S fetched a glass of water which he allowed her to drink by lifting the tape from her mouth. They left her for 5 to 10 minutes and she heard a gunshot. S returned and said, "Don't worry, I just dropped my gun." He enquired how she was and she said her hands and stomach were hurting from the tape. S undid her hands and removed the tape from her mouth and body, leaving only her ankles taped to the chair. She was later untaped and permitted to go to the toilet but both respondents stood outside the door with their guns. She was allowed to fetch and eat yoghurt. She asked not to be tied up but S tied her to the chair with thin black masking tape.

[9] This frightening episode lasted some hours until the respondents fled when the complainant's brother came home, saw the intruders and sought assistance. The respondents left with a mini disc player, discs and a bag and contents, but without the vehicle. The distraught victim was left taped to the chair.

[10] The respondents met up with a female school friend and drove south, cutting their hair and placing stolen New South Wales number plates on the car to avoid detection. Further offences committed in New South Wales remain outstanding.

[11] They were located on 10 March 1999. On 12 March S went to Burleigh Heads Police Station and made admissions. The respondent A made a confessional statement on 18 March.

[12] As expected, the most serious offences (counts 5 and 6) had a grossly detrimental impact on the complainant girl who has received psychological counselling and now needs to be escorted from school to home by her parents each afternoon; the house must be searched before she feels safe to enter it. The offences have also had an adverse impact upon the other members of the family, especially the complainant's mother.

[13] Neither respondent had prior convictions and both came from respectable homes, attended good schools, achieved sound results and were benefited by favourable character references which supported the submissions made at sentence that the offences were out of character. A was 16 at the time of sentence, 15 at the time of offending; S was 16 at the time of sentence and at the time of offending. Each must be treated as a juvenile and sentenced under the Juvenile Justice Act 1992.

[14] The pre-sentence report in respect of S noted that his father, a medical practitioner, and his mother, also involved in a helping profession, on occasions allowed their professional lives to intrude into their personal and family lives with patients residing in the home for sometimes lengthy periods. S may have been influenced by this and may have become involved with A to attempt to rescue A from his problems. S saw this escapade as an adventure. S expressed apparent genuine remorse for his actions and seemed to have insight into the effect on the victims to whom he wrote a letter of apology.

[15] The pre-sentence report in respect of A identified his offending behaviour as a response to his propensity to engage in risk taking behaviour for a thrill. The results of testing showed that he had a personality profile which demonstrated a tendency to engage in socially unacceptable behaviour; his considerable psychological issues require therapeutic intervention. He has an interest in guns and weapons which needs to be addressed. He was, however, an adolescent in the process of change and development. Imprisonment was likely to further exacerbate the insensitive and dramatic aspects in his personality and he needs long term therapeutic contact with high levels of adult supervision and regular monitoring over the next few years, best met in his home environment.

[16] The sentences imposed were consistent with the recommendations in the pre-sentence report.

[17] The appellant first submits that the making of concurrent orders for detention with immediate release and probation are contrary to the Juvenile Justice Act 1992 because of a line of authority in respect of s 92(1)(b) of the Penalties & Sentences Act 1992 and its earlier equivalents. It is helpful to set out that line of authority.

[18] In R v Evans,[2] Evans was sentenced to three months detention in a detention centre on one count and to two years probation on another count to run concurrently. The English Court of Criminal Appeal held that a probation order should not be made concurrently with a sentence the serving of which will postpone the effective commencement of the probation. The Court said that the making of a probation order in such circumstances was contrary to the spirit and intention of the Criminal Justice Act 1948 (UK). The effect of the sentence imposed was to provide aftercare in respect of the detention order, provision for which was made in other ways under the Criminal Justice Act 1948. In addition, the order of detention necessarily postponed the coming into operation of the probation order; a court cannot say whether at the end of a three month period in a detention centre the prisoner will need probation. As a result, the probation order was quashed and a concurrent three month detention order was given in respect of the second count.

[19] In R v Lihou, ex parte Attorney-General,[3] Lihou was sentenced to probation for two years in respect of one count and to nine months imprisonment in respect of other counts. The Queensland Court of Criminal Appeal, relying on Evans, held that the Offenders Probation and Parole Act 1959-1971 did not contemplate making an order for probation in respect of one offence and imposing a sentence of imprisonment in respect of another offence when the accused was being dealt with for both offences at the same time.[4]

[20] Subsequently, the legislature enacted provisions allowing for the imposition of a sentence of a period of imprisonment of up to six months followed by a probation order.[5]

[21] More recently, in Hughes,[6] McPherson and Pincus JJA, after discussing Lihou, found that it was not open to a sentencing judge, except where permitted under the Penalties & Sentences Act 1992, s 92(1)(b), to make a probation order to operate concurrently with a sentence of imprisonment. Hughes had been sentenced to two and a half years imprisonment with a recommendation for parole after six months and on another offence sentenced to three years probation. The Court noted that although there had been a recommendation for parole after six months it did not follow that the recommendation would be given effect and Hughes may be required to serve out the whole or part of the balance of the prison term of two and a half years. In those circumstances it would not be possible for him to comply with the requirements of the probation order.

[22] Hughes was followed in R v M; ex parte Attorney-General[7] where it was held that an intensive correction order could not be imposed concurrently with a probation order on separate offences under the Penalties & Sentences Act 1992. Jones J, with whom on this matter Davies JA agreed, noted that the submission, that there was no inconsistency as an intensive correction order in reality was an intensive form of probation, ignored the express terms of s 113 of the Penalties & Sentences Act 1992 "... that the offender is to serve the sentence of imprisonment ... in the community and not in a prison". This indicates that the intensive correction order is a term of imprisonment. In addition the intensive correction order gives power to an authorised officer to detain an offender by requiring residence at residential facilities for periods not longer than seven days at a time under s 114(1)(f) of the Penalties & Sentences Act 1992 and enables the court to revoke the order and commit the offender to prison immediately for the balance of the term of the order.[8] Jones J noted:[9]

"Whatever may be the practical effects of the way in which an intensive correction order and a probation order are implemented and administered, there remains always the potential for a conflict to arise in the operation of two such orders. The legislation specifically permits a probation order to follow imprisonment for a period not exceeding six months but precludes its being ordered in conjunction with any longer period of imprisonment."

[23] It is therefore clear that the scheme for the making of probation orders in respect of adult offenders set out in Part 5 Division 1 of the Penalties & Sentences Act 1992 does not currently permit a probation order to operate concurrently with a sentence of imprisonment, other than as provided in s 92(1)(b) of the Act.

[24] The Juvenile Justice Act 1992 ("the Act"), however, provides a quite separate scheme for sentencing juvenile offenders and is a code: see s 3(b) of the Act and s 108. Sections 3, 4 and 109 of the Act, which we will not set out, state respectively the objectives of the Act, the principles of juvenile justice and the sentencing principles and differ in many important respects from the purposes and sentencing principles set out in ss 3 and 9 of the Penalties & Sentences Act 1992. One significant example is that the Act has no equivalent to s 9(3) and s 9(4) of the Penalties & Sentences Act 1992 which make inapplicable the principles that "(i) a sentence of imprisonment should only be imposed as a last resort; and (ii) a sentence that allows the offender to stay in the community is preferable"[10] to offences involving violence.[11]

[25] Section 120 of the Act sets out the sentence orders that may be made when a child is found guilty of an offence; these include probation[12] or detention[13] with or without an immediate release order.[14] In its original format, s 120(2) allowed for only one order to be made in respect of each offence but ss 120 and 121 were amended in 1996, when the new provisions ss 121A to 121C were introduced.[15]

[26] The wording of s 120, s 121 and related provisions has understandably been referred to by this Court as "puzzling".[16] It is therefore useful in order to assist in the construction of the Act to refer to the Juvenile Justice Bill 1992 Explanatory Notes[17] which state:

"The current range of sentences is inadequate, particularly with respect to supervised non-custodial orders ...

This Bill addresses problems associated with the current legislation. It also establishes the basis for the administration of juvenile justice in Queensland and includes -

• provision for the sentencing of children to fair and fitting penalties, including an emphasis on the use of an enhanced range of community orders ..."[18]

[27] Section 121 sets out the sentence orders that may be imposed for serious offences, that is, most offences which, if committed by an adult, would be punishable by up to 14 years or more imprisonment.[19] In this case, all but counts 1 and 4 were serious offences under the Act.

[28] Section 121A provides for a court to "make more than one type of sentence order for a single offence", subject to s 121B[20] and, relevantly, s 121C, which states:

"Combination of detention order and probation order

121C (1) This section applies if a court makes both a detention order and a probation order against a child for a single offence.

(2) The court may make the detention order only for a maximum period of 6 months and may not make an immediate release order.

(3) The probation order may only be for a maximum period ending 1 year after release from detention under the detention order.

(4) The requirements of the probation order only start when the child is released from detention." (our emphasis)

[29] The Minister said in the Second Reading Speech of the 1996 amending Act:[21]

"In addition, further combinations of orders will be allowed. Detention and probation can be combined for a single offence, as can probation and community service. The Bill adds to the options which can be used by the courts." (our emphasis)

[30] The 1996 Explanatory Notes record:[22]

"A new section 121A (More than 1 type of order may be made for a single offence) allows a court passing sentence on a child to impose more than one type of sentence order in respect of a single offence. This is a change from the current position. It is expressly intended that combinations of orders will be allowed for a single offence. The intention is to provide the court with flexibility to deal with a child."

[31] It seems clear that s 121C only applies where the court makes both a detention order and a probation order against a child for a single offence. This conclusion is supported by the 1996 amendment to s 120(2) which previously prohibited the imposition of more than one order in respect of one offence, and the wording of s 121A and s121C, especially when read with the Second Reading Speech and the Explanatory Notes. The sentences imposed in this case did not comply with s 121C but nor were they imposed "for a single offence"; probation was imposed on count 5 and detention with an immediate release order was imposed on count 6. The combined orders imposed in this case are not prohibited by s 121C or by any other provision of the Act.

[32] Nor are we persuaded that the combined sentence infringed the spirit of the Act. The 1992 Explanatory Notes and the sentencing principles set out in s 109(2):

(b) a non-custodial order is better than detention in promoting a child's ability to reintegrate into the community; and

(c) the rehabilitation of a child found guilty of an offence is greatly assisted by -

(ii) opportunities to engage in educational programs and employment; ..."

suggest that the intention of the Act is to provide a wide range of sentencing options which may be combined to achieve the principles of juvenile justice set out in s 4 of the Act including:

(i) should be detained in custody for an offence (whether on arrest or sentence) only as a last resort".

[33] Immediate release orders may be imposed under the Act and s 175 provides:

"The purpose of this subdivision is to provide for a final option instead of the detention of a child by allowing a court to immediately release the child into a structured program with strict conditions."

"... the purpose of an immediate release order is to provide an intensive, highly structured 'alternative to custody' program for children who would otherwise be detained."[23]

[34] The intention of the Act is to encourage the imposition of actual detention orders only as a last resort. Section 14A of the Acts Interpretation Act 1954 requires that the interpretation which best achieves the purpose of the Act be preferred.

[35] The Act establishes a separate sentencing scheme based on different principles to that in the Penalties & Sentences Act 1992.[24] The concern raised in Evans, Lihou and Hughes whereby the offenders were not able to immediately take up the benefit of probation because of their detention did not arise in this case because of the immediate release order. M, too, should be distinguished. There is no equivalent under the Act to s 113 and s 114(1)(f) of the Penalties & Sentences Act 1992 which were decisive in the court's conclusion in M; the standard conditions of an immediate release order under the Act do not permit the chief executive to require the offender to reside at a community residential facility for periods not longer than 7 days at a time[25] and although an immediate release order under the Act is for some purposes a detention order[26] it remains "a final option instead of detention"[27] and is essentially a community based order. The intention of the Act is to ensure actual detention of juveniles is a last resort. The combination of orders used in this case is an effective means of achieving that intention.

[36] In summary, the fundamental distinction between this Act and the Penalties & Sentences Act 1992 is that whilst s 121C of the Act limits the imposition of detention and probation it does so only in respect of orders imposed for "a single offence"; the sentences of probation and an immediate release order were imposed on separate offences. There is nothing in the Act prohibiting the orders made. The difficulties raised in Evans, Lihou and Hughes, where the combined sentence made the probationer unable or potentially unable to take up the probation order, do not arise in this case; the difficulty in M of a conflict between a probation order and a term of imprisonment served by way of an intensive correction order cannot be merely transported into this Act which must be independently construed. The construction which will best achieve the purpose of the Act should be adopted; one objective of the Act is to sentence according to the principles of juvenile justice, a fundamental feature of which is that a child should be detained in custody on sentence only as a last resort.[28] This objective can best be achieved by construing the Act as generally allowing the combined orders of probation and an immediate release order for separate offences.

[37] Such an order provides a useful combination when sentencing juvenile offenders for multiple offences, combining the long term supervision and control of probation with the instant intense supervision of an immediate release order. We were informed by counsel that such combined orders are regularly used by judges and magistrates, and indeed at the sentence the prosecutor, defence counsel and the representative from the Department of Family Youth and Community Care accepted that such a combination of sentences was open. We are satisfied that concession was rightly made and that the combination of sentences imposed was lawful under the Act.

[38] The appellant next contends the sentence is manifestly inadequate. Although the facts as set out demonstrate the very serious behaviour of the offenders, fortunately there was no physical injury to the female complainant. Neither respondent had prior convictions and both have promising prospects of rehabilitation. The combination of sentences imposed required the respondents to serve a period of detention by way of an immediate release order; to perform significant periods of community service and subjects them to supervision on probation for three years. In addition, convictions were recorded on all counts.[29] It is worth noting that tendered reports from the respondents' community correctional officers indicate that both respondents are progressing well on probation and in their immediate release orders.

[39] The Act requires that emphasis be placed upon rehabilitation when sentencing juvenile offenders[30] and detention can be imposed only if no other sentence is appropriate.[31] The purpose of an immediate release order is to provide a final option instead of detention.[32] The maximum period of an immediate release order is three months,[33] the sentence imposed here. Once the immediate release order period has been successfully completed, there will be no further consequences for an offender under the detention order, even if the offender re-offends. For these reasons, the three year probation order was useful in providing a sanction, including re-sentencing, if the respondents re-offend,[34] whilst also ensuring supervised assistance in their rehabilitation. The probation orders will continue to have effect once the offenders become adults.[35]

[40] Whilst the appellant was able to point to one instance, R v H, [36] where a juvenile offender who committed a serious home invasion was sentenced to a period of actual detention, that case lacked the absence of prior criminal history and the good prospects of rehabilitation present in the cases of these offenders. The appellant also relied on R v Breeze,[37] which was a serious armed robbery in company where the applicant was sentenced to two years imprisonment with a recommendation for parole after eight months; although the applicant was 16 years of age at the time of sentence, he was sentenced under the Penalties & Sentences Act 1992, not the Juvenile Justice Act 1992, and therefore the sentence lacks comparability.

[41] On the other hand, R v F and P and R v B[38] suggest that the sentences imposed were within the appropriate range because of the special sentencing principles, already set out, which relate to juvenile offenders under the Act.

[42] The learned sentencing judge accepted that the respondents were genuinely remorseful and noted that:

"An appropriate sentence frequently involves a balance between the protection of the community on the one hand including the deterrent effect of any sentence imposed, deterrent particularly on others who may be tempted to commit similar offences, and on the other hand the best interest of the offenders who are to be punished for their offences.

There is no doubt in my mind, that if I were to consider only your own interests a custodial sentence may well be counter-productive. I fail to see how a custodial sentence could be of any assistance to persons of your age in your circumstances. However, the seriousness of the offences you have committed and the deterrent effects on others, of a custodial sentence of some sort, afford strong reasons for imposing such a sentence.

However, having regard to all the matters placed before me I have decided not to impose an actual custodial sentence on either of you, on this occasion."

[43] His Honour considered the competing interests carefully. The sentence he finally determined, which included the recording of convictions in respect of all offences, was within the proper range and appropriately reflected the objectives and sentencing principles of the Act.

[45] WILLIAMS J: The criminal conduct involved in the commission of the offences to which the respondents pleaded guilty would have, in my view, called for the imposition of a significant custodial sentence if the offenders were adults, and even where the offenders had no criminal history. An outline of what occurred appears in the joint reasons for judgment of the President and Thomas JA. The problem which faced the sentencing judge, and which now confronts this court, is that because of the ages of the respondents at the time the offences were committed each must be dealt with pursuant to the provisions of the Juvenile Justice Act 1992.

[46] In my view the conduct in question showed such a degree of planning over a lengthy period of time that it was clearly seriously criminal. These were not offences committed by juveniles on the spur of the moment. There was careful planning with respect to the obtaining of guns and a motor vehicle. There was extreme callousness, indeed brutality, shown to the young girl who was held hostage for a lengthy period of time. Such criminal conduct, even when committed by juveniles, must be punished; it cannot be condoned. Whilst there is always a natural tendency to emphasise the future rehabilitation of young offenders, and whilst judges are also mindful of the often negative consequences of detention, nevertheless when the conduct is seriously criminal the sentence must constitute a punishment which fits the crime even where the offenders are juveniles.

[47] In my view the sentences imposed do not constitute an adequate punishment for the criminal conduct in question. Some period of detention was called for in order to punish these two young men and deter them from similar criminal conduct in the future. As I differ in that regard from the other members of the Court no real point would be served by my elaborating further as to the sentence I believe should have been imposed.

[48] Having said that, it should be noted that there appears to have been a favourable response to date by the respondents to the community based orders which have been imposed. One can only hope that there will not in the future be further criminal escapades involving conduct of the type in issue here.

[49] I agree with what has been said by the President and Thomas JA as to the legality of the sentences imposed. The Juvenile Justice Act 1992, for the reasons given by the President and Thomas JA, permits of the making of concurrent orders for detention with immediate release and probation.

[50] I would hold that the sentences were manifestly inadequate, allow the appeal, and in lieu of the sentences imposed structure the sentences so that each respondent was obliged to spend a period of time in detention.

[2] [1958] 3 AllER 673.

[3] [1975] QdR 44.

[5] Section 17(1)(b) Offenders Probation and Parole Act 1980; s 197(1)(b) Corrective Services Act 1988; s 92(1)(b), Penalties and Sentences Act 1992.

[6] [1998] QCA 61; [1999] 1 QdR 389.

[7] [1999] QCA 442; [2000] 2 QdR 543.

[8] Section 127, Penalties & Sentences Act 1992.

[10] Section 9(2)(a) of the Penalties & Sentences Act 1992.

[11] cf ss 4(c)(i) and 109(2)(b) and (c) of the Juvenile Justice Act 1992.

[15] Juvenile Justice Legislation Amendment Act 1996.

[16] R v Beutel [1995] QCA 231; CA No 551 of 1994, 9 June 1995 per Pincus JA.

[17] See Acts Interpretation Act 1954, s 14B.

[20] S 121 B allows for both a probation and a community service order to be made in respect of one offence.

[21] See Acts Interpretation Act 1954, s 14B and Queensland Parliamentary Debates, vol 337, 11 July 1996, 1558.

[24] See R v F and P CA Nos 114 and 112 of 1997, delivered 2 May 1997; per White J.

[25] cf s 114(1)(f) of the Penalties & Sentences Act 1992.

[26] For example, it may be imposed only after the preparation of a pre-sentence report under s 164.

[28] s 4(c) Juvenile Justice Act 1992

[29] Convictions are not lightly recorded under the Act; see s 124 and s 125.

[30] See s 4(c)(i) and note there is no equivalent to s 9(3) and (4) of the Penalties & Sentences Act 1992.

[36] CA No 209 of 1995, delivered 31 July 1995.

[37] CA No 105 of 1999, delivered 6 August 1999.

[38] [1997] QCA 188; CA No 203 of 1997, delivered 27 June 1997.