R v GB & LB [1999] QCA 46

Court of Appeal (Qld)|2008-02-26|Before: Act J, Murdo P, Thomas JA, Wilson J

The applicant, GB, was 19 at the time of the sentence and 18 at the time of the offence. The applicant, LB, was 18 at the time of sentence but 16 at the time of the offence. He therefore, unlike GB, was subject to the provisions of the Juvenile Justice Act.

GB was sentenced as an adult to two years imprisonment suspended after four months for two years. LB was sentenced as a juvenile to eight months detention to be released after serving 50 per cent of that sentence and a conviction was recorded. Neither applicant had previous convictions and remarkably positive references were tendered on behalf of each of them. The Crown conceded below that the references showed the boys were of very good character.

"That the offender be given the opportunity of probation supervision and that any compensation ordered by the Court be included as a special condition of the probation order. The Court may also wish to consider imposing a Community Service Order under the provisions of section 109(1) of the Penalties and Sentences Act 1992."

The pre-sentence report in respect of LB prepared by the Department of Families, Youth and Community Care made no specific sentence recommendation but noted that all non-custodial options were appropriate. And in respect of a detention order specifically noted:

"(1) LB does not have a criminal history. (2) The fact that LB is now classified as an adult, he is to be sentenced as a juvenile because he was 16 years of age at the time of the commission of the offence. The appropriateness of someone of his age serving a detention order in a juvenile detention centre would therefore need to be questioned. (3) LB's lack of opportunity to participate in other community-based orders. (4) A period of detention could limit LB's opportunities for rehabilitation and provide him with further exposure to other more advanced offenders which could impact negatively upon his offending behaviour and eventual re-integration into the community."

Generally the pre-sentence reports confirmed the material in the references showing that the applicants were of good character.

The respondent concedes that if the Judge below has erred, the sentences imposed were not appropriate and that the Judge may have been led into error by the Crown Prosecutor's submission that:

"Because of the seriousness of the offence of which each of the boys has been convicted that an actual custodial order is inevitable."

His Honour, in discussions with counsel and in his sentencing remarks indicated that perhaps there were special circumstances in this case that took this matter outside those where a custodial sentence would ordinarily be imposed, and said that, "I have been very concerned about it (the sentence)." He was finally persuaded by the Prosecutor that deterrence in this case required some actual period of imprisonment.

A review of comparable sentences demonstrates that a custodial sentence was not inevitable in respect of juvenile offenders: see R v. M [1995] QCA 531; [1996] 1 Qd R 650, R v. Canfield,

CA 287 of 1994 delivered 19 September 1994, and R v. Abu-Dabat, CA 25 of 1997 delivered 6 February 1997.

Nor was a custodial sentence inevitable in respect of adult offenders: see, for example, R v. Laban, CA 200 of 1985 and R v. Foley, CA 236 of 1987, and R v. Bulmer, CA 158 of 1986.

It seems therefore His Honour did err in concluding, on the submission of the Crown Prosecutor below, that a custodial sentence was inevitable in this case.

A further error appears to have been made by His Honour in that the approach he took to sentencing was first to determine the appropriate sentence for GB, the adult, and then to sentence LB, the juvenile, to maintain parity with GB. Nowhere in his sentencing reasons does he allude to the sentencing principles set out in the Juvenile Justice Act 1992 in sections 4, 109 and 165, and in particular the sentencing principle that the Court should only make a detention order against a child as a last resort.

Section 166 Juvenile Justice Act 1992 requires the Court, although it will not affect the sentence order made, to state the reasons for making a detention order and to cause those reasons to be reduced to writing and kept by the proper officer of the Court.

Had that approach been taken, as it should have, His Honour in my view, would have inevitably concluded that although a salutary sentence should have been imposed upon LB, an actual period of detention was not warranted.

Had that point been reached by His Honour, it would have become clear that in the circumstances of this case it would have been unfair to then sentence GB, LB's brother who was only a year or so older and who was equally involved in the offence, to a period of imprisonment as an adult.

As there has been error by the learned Judge below, this Court must exercise its sentencing discretion afresh. Both applicants spent 10 days in custody before their release on bail pending appeal. LB has suffered a permanent injury to his thumb for which he has been receiving treatment from orthopaedic surgeon, Dr Millroy. He has hopes to join the Army.

The respondent concedes there are exceptional circumstances in this case which would justify the applicants not serving an actual period of detention, despite the serious aspects of this offence. The applicants come from a very good family and have excellent prospects of rehabilitation and are unlikely to re-offend. There is nothing to suggest that they represent a danger to the community and the references tendered on their behalf support this inference. The respondent does not submit the community would benefit from the detention of the appellants. Importantly they have no prior convictions and are very young. The incident was not premeditated and was an isolated incident out of character which turned very much on the facts as they arose that evening. The victim has fully recovered. This is a factor relevant to sentence: see R v. Amituanai CA No 524 of 1994 - reasons for judgment of Pincus JA at page 2.

Although this offence constituted grievous bodily harm because of the possibility of permanent injury or death without treatment, and it is fortunate that no such harm actually resulted, in my view the facts of the case place it towards the lower end of the scale of seriousness for this offence.

In some ways, as the respondent conceded, the offence is more comparable to offences of assault occasioning bodily harm with circumstances of aggravation. We have been referred to cases where the resulting harm in cases of assault occasioning bodily harm was much greater than here and the circumstances generally more serious and yet where non-custodial sentences were imposed. (See, for example, R v. Rowe and Talbott,

CA Nos 149 and 152 of 1996 and R v. Walsh, Sayer and Thompson CA Nos 158, 159 and 160 of 1998 - judgment delivered 28 July 1998). Nevertheless, as I have said, the offence had serious aspects to it and a salutary penalty was required.

I would grant the applications for leave to appeal against sentence in each case. In respect of the applicant GB, I would set aside the sentence imposed below and in lieu thereof sentence him to 18 months' imprisonment to be suspended forthwith with an operational period of two years.

In respect of LB, because of the sentencing principles set out in the Juvenile Justice Act, the fact that this was his first ever offence, his prior good character and his career prospects in the army, I would not record a conviction.

I would order that the sentence imposed below should be set aside and in lieu thereof I would order that he be detained for eight months but that he be immediately released by way of an immediate release order on condition that he participate as directed by the chief executive in a program for a period not longer than three months as recommended in the presentence report and that during the program he abstain from violations of the law. No conviction is recorded.

THOMAS JA: The occasions when non-custodial sentences for assault occasioning grievous bodily harm are appropriate are fairly rare. I will therefore add my own comments to those of the President with which I agree.

The learned sentencing Judge found these cases finely balanced and fluctuated in the course of reaching his conclusion that a custodial sentence had to be imposed on these young offenders.

The factors relied on by counsel for the respective applicants are the age of the applicants and their character, the fact that the circumstances of the offence were unusually mitigating and that no lasting effects exist in relation to the victim. These, in combination, are said to make the case exceptional.

As to the absence of lasting effects, I note that there was no victim impact statement or evidence of any enduring consequence upon the complainant. In R v. Amituanai CA No 524 of 1994, delivered 28 March 1995, Mr Justice Pincus observed that punishment in that case, and indeed in many cases of this kind, depends on the extent of the damage that the victim happens to sustain. His Honour noted that this is often fortuitous. It was submitted that conversely the fact that a victim does not sustain any lasting effects, even though that is equally fortuitous, is relevant to the sentence which should be imposed. That seems to me to be a good point.

Of course the absence of lasting effects on the victim will not always have the relevance that it does in these cases. Sometimes the brutality or sustained nature of an attack will speak compellingly of the level of criminality notwithstanding that the victim makes a good recovery. But here, the assault was a relatively short though violent fracas outside the applicants' home in which the applicants overreacted to what they perceived as provocation. The incident has been described as a "pretty good full-on fight" and the applicants' conduct was affected to some extent by their fear of the complainant's fighting prowess and possible access to a firearm.

The bleeding from the complainant's cut above his ear was the source of the grievous bodily harm but once this was treated there was no threat to life or of any permanent disability. The case is therefore not typical of the usual case of grievous bodily harm. Indeed, it is not as serious as the circumstances in R v. Walsh, Sayer and Thompson CA Nos 158, 159 and 160 of 1998, judgment delivered 28 July 1998, where considerably greater harm was caused to the victim, although a lower level of offence was there charged. I agree however with the President that the level of seriousness in the present case makes it more comparable with circumstances that we more often or more commonly find in charges of assault occasioning bodily harm.

There have been outstanding character references in the present case. That, in my view, is relevant chiefly to the prospect of a useful life that might unnecessarily be threatened by a gaol term. In these cases I think it must be an important sentencing consideration that it is undesirable to introduce a young person who has committed a single offence which, on all available indications, is completely out of character to the negative influences and dangers of a period in prison.

In the present case in the interests of all concerned including the community I consider that fully suspended sentences represent the appropriate response of the Court. I agree with the orders proposed by the President.

WILSON J: I concur in the reasons of the President and Justice Thomas and agree with the orders proposed by the President.

THE PRESIDENT: The orders will be as I proposed.

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