R v Hodcroft [1997] QCA 379

Beginning in February 1996 the applicant, who had previously committed offences, repeatedly offended for about a year. There were 17 separate offences separated by grants of bail and by convictions for other matters. The chronology of the offences which were dealt with below, in brief, is as follows:

February to May 1996 - 4 breaking, entering and stealing, 1 attempted house-breaking, 1 possession of house-breaking instruments, 1 housebreaking and stealing.

November 1996 - 1 attempted housebreaking, 1 burglary.

The learned primary judge sentenced the applicant to a detention order for a period of 12 months in respect of the offences committed while he was a child, and to a period of 12 months imprisonment for the offences committed as an adult. We are of opinion that, considered from a common sense point of view, the penalties imposed were within the range one would expect. However, Mr Carmody has raised what might be called a technical point which requires some consideration. This is that the period of imprisonment for the adult offences cannot be justified, if one has regard to the special provisions of the law relating to taking into account offences committed as a child.

Those provisions are contained in s. 114 of the Juvenile Justice Act 1992 which was amended by s. 40 of Act No. 22 of 1996, having operation from 2 April 1997; since the sentences complained of were imposed on 21 July 1997, a question arises as to whether the current version or the former version of s. 114 is to be applied. Section 236(2)(a) of the Juvenile Justice Act 1992 prevents a person from being "sentenced more severely" on the basis of the amendment, for an offence committed before 2 April 1997. Since, if the amendment applies, it can only make the sentence more severe, not less so, one should use the former version of s. 114, in the present case. So far as relevant, the effect of s. 114, in its previous form, is stated in subs. (1):

"In a proceeding against an adult for an offence, there must not be admitted against the adult evidence that the adult was found guilty as a child of an offence if a conviction was not recorded".

Offences the details of which are mentioned below, committed while the applicant was a child, were put in evidence before the primary judge, in contravention of this section.

Section 113 of the Juvenile Justice Act 1992 has also undergone amendment, by Act No. 22 of 1996, but since the change made cannot produce a more severe sentence than would have been available under the former law, it is the current s. 113 which is relevant; subs. (1) reads:

"A finding of guilt against a child by a court for an offence, whether or not a conviction has been recorded, is part of the criminal history of the child to which regard may be had by a court that subsequently sentences the child for any offence as a child."

In the present case, the offences committed by the applicant as a child were dealt with at the same hearing as those committed while he was an adult; these two provisions, ss. 113 and 114, conflicted as to the admissibility of the relevant evidence. The statute could have been complied with if the judge had first heard the proceedings for the child offences and then those for the adult offences - or vice versa. There is nothing in the learned sentencing judge's reasons to indicate that his Honour, in imposing the sentence of twelve months imprisonment, took into account the provisions of s. 114 of the Juvenile Justice Act 1992. The remarks his Honour made, before imposing the custodial sentences we have mentioned, included:

"I am satisfied that having regard to your previous history of criminal offences, and the number and type of offences that you have pleaded guilty to before this Court, that a custodial sentence is the only realistic option available to me.

I see little point in going over in any detail your past history, suffice it to say that it is a very lengthy one and it consists of very serious offences."

It is necessarily implicit in s. 114 that if, contrary to the requirements of that section, evidence of offences committed as a child is mistakenly let in, in a proceeding against an adult for an offence, that evidence must not be taken into account. Before committing the offence of being found drunk in a public place in September 1996, the applicant had been before the Childrens' Court on four occasions; on the first of those occasions, 31 January 1995, the record does not state that no conviction was recorded, but that was the effect of s. 124 of the Juvenile Justice Act 1992. The same result follows for the offence appearing in the criminal history as having been committed in September 1996; the applicant was fined on 24 September 1996 for having been found drunk in a public place.

In Bainbridge [1993] QCA 428; (1993) 74 A.Crim.R. 265, there is to be found a schedule, prepared by the Crown, of sentences in the District Court for armed robbery or armed robbery in company committed by 17 year olds in the period from 1988 to 1993. This shows that even for such offences a non-custodial sentence was commonly imposed where there were no previous convictions. In the present case, apart from the single offence of drunkenness, there were no previous convictions which the judge was entitled to take into account. His Honour was, however, entitled to take into account that shortly before the adult offences which were before him, the applicant had committed an offence of wilful and unlawful destruction of property (on 10 January 1997) for which he was convicted and fined in March 1997. His Honour was also entitled to take into account that, after the offences with which his Honour was concerned, the applicant committed a breach of a bail undertaking and was convicted and fined for that. However, the subsequent convictions were of limited use to the Crown in seeking (as the prosecution did below) a sentence of imprisonment for the adult offences: R v. McInerney (1986) 42 S.A.S.R. 111, R v. Aston (No. 2) [1991] 1 Qd.R. 375 at 382.

According to the information placed before the primary judge the adult offences were in substance as follows. The applicant "and possibly three others" were disturbed inside a house, on the return of a person resident in the house. The offenders "left in a hurry", but the applicant, presumably because he was intoxicated, fell into a swimming pool and was captured nearby. He was in possession of cash and jewellery, and other property missing from the premises was located in the area.

When the matter was before the primary judge his Honour's attention was drawn, in a general way, to the necessity of ignoring the prior offences where no conviction was recorded; submissions were made, on behalf of the Crown that the judge had to "officially" disregard the prior entries when sentencing the applicant for his adult offences. It is not clear to us in which sense the obligation of a judge to apply the law can be said to be only "official". The prosecution urged the judge, as we understand the record, to impose a custodial sentence for the adult offences and counsel's submission concluded:

"What that will do is to take out of calculation that 143 of `97 [the adult offences] occurred whilst on bail, but that will compensate for the fact that some of this (sic) prior appearances cannot be considered by Your Honour for those offences, so it perhaps balances itself out in that respect."

It is unclear whether his Honour undertook this balancing process, but in our opinion he simply should have ignored the prior offences committed as a child. It would, as it seems to us, be a quite unusual course to sentence a 17 year old to 12 months or indeed any imprisonment for the adult offences we have mentioned, absent any previous conviction. It was of course most reprehensible to break into a house and steal property there and the seriousness of the offences is in no way mitigated by the circumstance that the applicant, apparently due to his being quite drunk, fell into a swimming pool and was apprehended. Nevertheless, even taking into account the subsequent convictions, it does not appear to us that a custodial term was warranted, for the adult offences; at least that is so if one has regard to the law which Parliament laid down. If Parliament finds that a law is inconvenient or anomalous it may of course alter it; we have already noted that Parliament has, since the offences in question were committed, amended the relevant section so as to make it have a less drastic effect.

Our conclusion, then, is that the learned primary judge was in error in sentencing the applicant to imprisonment for the adult offences.

As regards the other offences, it is our opinion that his Honour's imposition of a term of 12 months detention was justified. To support this assertion, it is unnecessary to deal with the offences in any detail. All the offences committed as a child had the characteristics that they were committed while on probation, and as to most of them the applicant was on bail also, at the time of their commission. Further, in relation to the offences committed as a child, the judge was entitled to take into account that there were prior offences in respect of which no convictions had been recorded, as follows:

2 offences of wilful damage to property and 2 of stealing in December 1994 and January 1995, an offence of breaking and entering a dwelling house with intent in May 1995 and an offence of stealing in March 1996.

Further, the presentence report noted an absence of insight or remorse in the offender and it appeared that an order for community service made in November 1995 had been only partially complied with.

It remains to be considered what penalty if any should be substituted for the, in our view, mistaken period of imprisonment imposed in respect of the adult offences. Since the applicant has been sentenced to 12 months detention and has to serve 70% of that term, there does not appear to be any necessity to impose a further punishment in relation to the adult offences, nor is there any penalty which can sensibly be imposed.

We would therefore grant the application and allow the appeal to the extent of setting aside the period of 12 months imprisonment imposed in respect of the offences committed on 20 January 1997.

In this matter, I agree with the orders proposed by Pincus J.A. and de Jersey J. for the reasons they have given.