Clarke-Davis v Commissioner of Police [2012] QDC 187

QDC [2012] 187 DISTRICT COURT APPELLATE JURISDICTION JUDGE REID No 3581 of 2011 LEVI JASON CLARKE-DAVIS Appellant and COMMISSIONER OF POLICE Respondent BRISBANE ..DATE 17/02/2012 ORDER -- 1 of 9 -- 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: In this matter, the appellant, who was born on the 19th of January 1994, appeals against orders made by the Magistrates Court at Warwick on the 30th of August 2011. On that day he was convicted and sentenced to three months imprisonment and 12 months probation on one charge of assault occasioning bodily harm, and he was convicted and sentenced to one months concurrent imprisonment, with a parole release date of the 30th of September 2011 on a charge of breach of a bail condition. The circumstances of his offending are that while on bail, in respect of an offence of public nuisance committed the previous day, a condition of that bail being that he have no contact with a particular person, he invited that person, one Beau Fogarty, to a party at his house. During the course of the party, he, Fogarty and two others cowardly attacked a young man who knew them from school and was also at the party. The complainant's shirt was pulled over his head and he was struck a number of times by the appellant and the three others. As a result, he required three stitches to his right cheek, and suffered cuts to the inside of his mouth and swelling to both eyes. He found it difficult to chew and move his jaw for a time and had constant headaches for a period as a result of the assault. It is seen that the attack was moderately prolonged and was cowardly in the extreme, in the circumstances where four youths attacked another who was incapacitated by having had his shirt pulled over his head. -- 2 of 9 -- 3 ORDER 1 10 20 30 40 50 60 Nevertheless, the appellant was of, as I've said, only 17 years of age. He had a limited criminal history. On the 14th of June 2011, he was convicted of an offence of public nuisance; on the 27th of May 2011 of possession of dangerous drugs; on the 30th of May 2011 of possession of tainted property. On all charges, he was fined but no conviction was recorded. I've indicated already that he was engaged in a public nuisance on the 2nd of June and was on bail for that matter at the time of this offence. The public nuisance matter was subsequently dealt with on the 12th of July 2011 when he was sentenced to 80 hours community service. I'm told that he's now completed 48 and a-half hours of that order. It should be noted that that 48 and a-half hours has been completed in a period of over seven months. In my view, it does not show that the appellant has done all he could to have completed the orders as expeditiously as possible. Nevertheless, it does seem that he's likely to perform the 80 hours within the period of 12 months that was allowed to him by the Magistrate. It's conceded that that was inappropriate, having regards to the provisions of section 16A of the Penalties and Sentences Act, for the Magistrate to have imposed an order for prison and probation and a further order for prison with a parole release date. In the circumstances where that was clearly an error, it seems to me that the proper approach is for me to approach the matter afresh. -- 3 of 9 -- 4 ORDER 1 10 20 30 40 50 60 I might also indicate, as I did to counsel who appeared on the matter, that in my view it is inappropriate to have fixed a parole release date at the full term of a three month sentence; see R v. Kitson [2008] QCA 86. Whether or not this was the Magistrate's intention seems uncertain as her remarks during the sentencing process concerning the setting of the parole release date are somewhat confusing. Be that as it may, in circumstances where the appellant has now served 21 days of his three month sentence and is apparently complying with the community service order, it seems to me appropriate that I should not return him to prison. In my view, the prospects of the appellant's successful rehabilitation are probably enhanced by allowing the appeal and substituting a sentence of 21 days imprisonment with an order for probation for a period 12 months to commence effectively from today. I shall therefore order that the appellant attend upon the probation office at Brisbane by 4 p.m. today. Mr Clarke- Davis, you have previously been told what the requirements of a probation order are and I don't propose to go through them again because you consented to it then. One of the requirements is that you attend upon probation and parole forthwith. Under the original order it would have been the day after you were released from prison, but because you're not going back to prison because on the order I've made, I'm going to make it a requirement that you attend the Probation -- 4 of 9 -- 5 ORDER 1 10 20 30 40 50 60 and Parole Office at Warwick by 4 p.m. tomorrow. I make that order because it may take you some time to get back there. If you don't attend by 4 p.m. tomorrow, you're in breach. If I set it today at 4 p.m. in Warwick and something happened on the road on the way up, you'd be immediately in breach. MS CLAREY: Your Honour, it'll have to be Monday, given today's Friday and I don't think they're open. HIS HONOUR: I'm sorry, yes, you're quite right. You're quite right. MS CLAREY: Thank you. HIS HONOUR: So 4 p.m. on Monday. It doesn't mean if you get back to Warwick by 4 p.m you cann’t go today because you never know what might happen on Monday. You might get a job and you won't then be able to attend, so don't put it off till Monday thinking you'll do it then. If you get back in time, go and do it today. Okay? DEFENDANT: Yes. HIS HONOUR: Now, you've heard my comments about the orders that have been made. It may well be that if I'd been looking at this matter afresh in that you hadn't already gone to prison, I would have required you to serve more than 21 days in prison, but less than the three months. But I see little benefit in returning you to prison for what would inevitably be a short period after you've had the salutary experience of 21 days in prison already. I hope you've learnt from that and that you won't re-offend and that you'll take the orders of the Court in respect of probation and the community service -- 5 of 9 -- 6 ORDER 1 10 20 30 40 50 60 that you're required to do seriously. You've heard my comments about getting on with your community service. I think you can do much more than you're doing if you really put your mind to it. One of the difficulties you'll encounter is, if you do manage to get a job, that it's only going to be harder to do community service. So get it done. Get on with it. You might think that having now been released you've got away with it to some extent. Let me explain something about the sentencing process to you. When young men come before the Courts, they get consideration because of their youth and because of the belief that many will benefit from probation and community service and won't re-offend again. Those that don't and come back before the Court for subsequent offences, their sentence in those cases will be considered in light of the fact that they've already had the benefit of community service or they've already had the benefit of probation, and their further re-offending is an indication that they do not wish to reform; they do not wish to rehabilitate and they want to continue with their life of criminality. In that circumstance, someone who's had the benefit of such orders is less likely to get the benefit of further orders that keep him out of prison and give them opportunities than someone who hadn't had those earlier probation orders. So, in other words, you're getting your opportunities at an early age. Some other people mightn't offend until they're 20 -- 6 of 9 -- 7 ORDER 1 10 20 30 40 50 60 or 21. So even if you came before a Court with other boys and they hadn't previously had offences, they might get probation but you might get sent to gaol. So don't think you're being let off it. It's a question of going through hoops effectively. Sometimes people go to gaol first up because of the seriousness of their offence. But you've already had the benefit now of two community-based orders, a probation order which you're about to commence, and the community service orders. So don't come back before the Court again. That's one thing I wanted to say to you. The second thing is, I notice that in your criminal history there was a charge of possession of drugs. We all have experience of drugs in one way or another in our lives. People we know who've used drugs. People, in my case, who come before me who've used drugs. I'm the father of children and I know a lot of young people, many of whom I have no doubt and to my knowledge use drugs. Let me tell you this. No matter what your friends may say to you, there is overwhelming medical evidence that the use of drugs is deleterious to your health. You might say, "Well, what about alcohol? What about tobacco?" Of course there is evidence that they're deleterious to your health but that doesn't mean that a sensible and rational decision about whether you use drugs in the future is, "Yes, I will because other people are using other drugs which are deleterious to them." Another thing about drugs in my experience of them from talking to people and talking to medical practitioners and -- 7 of 9 -- 8 ORDER 1 10 20 30 40 50 60 psychiatrists about it is that very often people can use drugs regularly and have no long-term ill-effects beyond getting a high on the day, and that might have been your experience of it. But continued use exposes them to the risk that one day, using no more drugs than they've previously used, they'll suddenly develop a psychotic episode as a result of their exposure. Having developed a psychotic episode, which can just come on out of the blue on a particular occasion, it is extremely difficult to ever overcome that. I know of people - a significant number of people because of my professional involvment in this - to whom that's happened and 30 years later, their life is completely disrupted, not because they're bad people but because of their use of drugs. They have a psychotic episode and they have these induced psychotic episodes and it ruins their life. They can never form relationships with people. They may never marry. They're not going to have kids. They're not going to obtain employment. Their life is a misery to them and to their parents who often have to take over their care themselves. So, in that circumstance, you make a decision about whether you're going to use drugs. Bear in mind that it's criminal and if you come back before the Court, you've already had the benefit of those community-based orders, and that it can have significant adverse effects upon you. Now I say that, not because you're before me on drugs, but just because you are going into probation and I do notice from your record that you have a drug offence. So be very careful about your use of -- 8 of 9 -- 9 ORDER 1 10 20 30 40 50 60 them. I suggest that you give it up entirely. So the orders I make are that the appeal is allowed. In respect of sentence, the penalty imposed is one of 21 days in prison and I declare that you've already served that 21 days so you are released forthwith, and you're to enter into probation for a period of 12 months from today. I think they're the only orders that need to be made. MS CLAREY: Yes, thank you, your Honour. HIS HONOUR: Thanks very much. Thanks, both of you for your assistance with your submissions and so on. ----- -- 9 of 9 --