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[2000] QCA 127
General information, not legal advice.
Court of Appeal (Qld)
2000-04-11
Davies J, Murdo P, Helman J
Original judgment source is linked above.
The applicant was, and presumably still is, addicted to heroin and his offending behaviour was in substance to enable him to finance his drug addiction. That is, as this Court has noted previously, a two-edged factor. It may be said in his favour that his real weakness of character is that of drug addict rather than robber. On the other hand it seems reasonably clear that unless he can overcome his addiction his prospects of rehabilitation from a life of crime are poor.
There is nothing which has so far emerged which would indicate that his prospects of overcoming his addiction are good. It was said on the sentencing hearing that the applicant intended to make an appointment with a person at the Inala Civic Centre in an attempt to deal with his problem but that is apparently all that he had by then done in that regard. We were told by Mr Moynihan today that since then he has been attending the Inala Civic Centre and has at least so far been drug free. Nevertheless, it is impossible to say what his prospects of overcoming his addiction are.
Against the applicant in the present case it has been said in this Court more than once that the sentencing regime for youthful offenders has changed somewhat against them by the introduction in 1997 of the amendments to the Penalties and Sentences Act. Section 9(4) of that Act in the form in which it existed prior to that date though it applied only directly to offenders who had no previous convictions was seen generally as showing at least an indication that those with only minor previous convictions such as the applicant should be somewhat similarly treated. That is, wherever possible, a non-custodial sentence should be imposed where as here, the offender had not previously had the opportunity of remaining at large under supervision as would be the case if either a probation order or an intensive correction order were imposed. This view is strengthened by the view which applies generally to offenders by section 9(2)(a) of the Act.
It was nevertheless submitted on the applicant's behalf, despite that change, that either probation together with community service or an intensive correction order should have been imposed but the sentence should not have included a term of actual imprisonment. It is surprising but the possibility of an intensive correction order does not appear to have been discussed below. The question of probation was discussed. That, in my view, should not have precluded the consideration by the learned sentencing Judge of an intensive correction order.
I am inclined to think that he did not err in failing to impose simply a probation order. The offences in number and seriousness required a punishment more severe than that.
The difficulty facing the applicant nevertheless is the compulsive nature of his criminal activity and the unlikelihood that it will cease unless he overcomes his addiction. On the other hand, if, as I think, an intensive correction order requiring as a condition that he take part in such programmes as may be considered appropriate by his authorised Commission officer in order to assist in overcoming his drug addiction, is more likely to overcome that result than a term of imprisonment. That being so I think that the sentence imposed below was manifestly excessive in that the learned sentencing Judge, in my view, ought to have imposed such an order. Nevertheless, as was mentioned during the course of argument, an intensive correction order for a period of imprisonment of less than 12 months would, in my view, not have been appropriate having regard to the seriousness of the offences and their number.
Mr Moynihan, for the applicant, has indicted that the applicant would consent to an order including such a condition. I would therefore allow the application, grant the appeal, set aside the sentence imposed below and impose in lieu a term of imprisonment of 12 months to be imposed by way of an intensive correction order containing the requirements set out in section 114 of the Penalties and Sentences Act and one that he take part in such drug rehabilitation programme as may be advised by his authorised Commission officer. It follows from the making of the order which I would propose that a conviction must be recorded.
HELMAN J: I find myself in respectful disagreement with the other members of the Court on this matter. The applicant was sentenced for eighteen serious offences, and in addition there were three separate occasions when the applicant was released, either on bail or with a notice to appear and yet continued to re-offend. In all the circumstances having regard to the number and gravity of the offences, I am not persuaded that the learned sentencing judge's discretion miscarried and I would refuse the application.
THE PRESIDENT: The orders are as proposed by Justice Davies.
THE QUEEN
SCOTT ANDREW SMITH [2000] QCA 127