Cole v Doolan [1994] QCA 392

1 [1994] QCA 392 COURT OF APPEAL MACROSSAN CJ DAVIES JA AMBROSE J CA No 205 of 1994 ANTHONY WILLIAM COLE Respondent v. CHE GAVIN DOOLAN Applicant BRISBANE ..DATE 22/08/94 JUDGMENT -- 1 of 8 -- 220894 JUDGMENT 2 AMBROSE J: This is an application for leave to appeal against a sentence of 12 months' imprisonment imposed upon the applicant on 5 May 1994. He was then convicted of an offence of housebreaking. He was sentenced in the Magistrates Court and in that Court his criminal history was referred to, and it showed that from August 1989 as a child he had been convicted of a number of offences and orders had been made for care and control. In September 1989, there was a conviction for offences relating to property. Care and control for two years was ordered, strict custody for a month. There were other convictions which I think unhelpful to refer to in detail, subject to this observation that on 24 September 1992 he was again convicted and again an order was made that he be held in strict custody as a child. On 9 July 1993, he was convicted of stealing and of being in an enclosed yard without lawful excuse, and on that occasion a probation order for 12 months was made. However, he breached this probation order and was convicted and then sentenced for the original offences on which probation had been ordered. He was sentenced to terms of imprisonment for various periods. The longest sentence seems to have been a sentence of nine months' imprisonment. He has also been convicted of drug offences over the years. At the present time he is 18 years of age, and it is clear enough that for five years or so he has been in trouble as a child and has received sentences and care and control orders -- 2 of 8 -- 220894 JUDGMENT 3 which have not dissuaded him from committing the offence upon which he was convicted in this case. We were informed today by his counsel that he learned this morning that the applicant has received psychiatric counselling of some sort and treatment for a condition of schizophrenia by a psychiatrist practising his profession in the Woodridge area. We were informed that the applicant has attended for requisite treatment only on an irregular basis. We were also informed that in this case the applicant was granted bail on 9 July and he is presently on bail. For the applicant, it is contended that the sentence passed, which was 12 months' imprisonment on the housebreaking charges, was manifestly excessive. Having regard principally to the age of the applicant and perhaps also having regard to some schizophrenic tendencies which he exhibits, it is submitted that there ought be probation, having regard to his background and his age, and a number of authorities cited indicate that in somewhat similar cases probation has been ordered - or has been made available to persons of the applicant's age. The Magistrate, in imposing the sentence in this case, drew attention to the fact that only in September 1993 the applicant was sentenced to nine months' imprisonment. He was released and it was not long after his release from prison that he again committed this offence. The Magistrate conceded -- 3 of 8 -- 220894 JUDGMENT 4 that it was unfortunate that the applicant at his age should be imprisoned, but he summed up his approach in these words: -- 4 of 8 -- 220894 JUDGMENT 5 "I am sure it has been said to you before and it will probably have to be said again unfortunately that the only penalty that is going to happen to you from now on is imprisonment, and the only way you are going to get out of that is - of that happening again, is not to commit any criminal offences. It is the only way it is going to happen." One has some sympathy for the Magistrate passing these remarks, having reviewed the criminal history of the applicant. However, I am of the view that on balance, having regard to his age and in particular having regard to the assertion made on his behalf today that he suffers from schizophrenia for which from time to time he gets psychiatric treatment, that it is desirable, both in the interests of the applicant and the interests of the community, that an order be made which will motivate him and permit him to receive proper attention for both his schizophrenic condition and also for his addiction to drugs, and this can best be done I think by making a probation order operative after he has spent some time in prison. He has not spent that much time in prison at the moment in respect of this offence, but orders can be made that will accommodate the time so far spent in custody within the order for imprisonment that is appropriate to make now. In this case I would allow the appeal, set aside the sentence imposed in the Magistrates Court, and in lieu I would order that the applicant be imprisoned for a period of six months and that the time that he has so far spent in custody in -- 5 of 8 -- 220894 JUDGMENT 6 respect of this offence be taken into account in fixing the expiration of the term of six months imposed. -- 6 of 8 -- 220894 JUDGMENT 7 I would also, with the consent of the applicant, direct that he be released upon probation for a period of three years on the usual terms and also that special conditions be imposed: firstly, that he not be in possession of any dangerous drug without the written consent of the person or persons who may from time to time be treating him for his drug problems and secondly, that he receive such medical, psychological and psychiatric examination, treatment, counselling and advice as may reasonably be required by his community correction officer. It will of course be necessary for the applicant to consent to an order in those terms, but subject to his consent those are the orders that I would make. THE CHIEF JUSTICE: Yes, I agree that we should proceed as Mr Justice Ambrose has indicated. One fully understands the approach of the Magistrate in sentencing below. However, I am persuaded in this case that both for the applicant's own good and for the good of society it is better to proceed in the fashion that Mr Justice Ambrose has outlined. It will be necessary, if the Court does proceed in that fashion, to settle the terms of the order it will make. I think the best thing to do might be to ask counsel - and I do not see why there should be any delay in this - to prepare a formal draft order which they could submit to the Court, preferably signed by both sides and in that case there will, I should think, be no need for any further hearing or appearance by counsel on each side. Amongst other things, we will have -- 7 of 8 -- 220894 JUDGMENT 8 to update the period spent in custody for this offence, will we not? ... THE CHIEF JUSTICE: The Court is of the view that a conviction should be recorded. ... DAVIES JA: Before you do that, can I just say I agree. THE CHIEF JUSTICE: The Court will order that a warrant issue for the arrest of the applicant. That will be necessary, in terms of the order we propose to make. Anything else we need to include in the formal order? MR BULLOCK: No. THE CHIEF JUSTICE: If it requires further consideration, we hope it will not, the Court will have to convene again, list the matter, but otherwise we will make an order in terms as we have indicated and the formal draft which will be prepared and put before us. ----- -- 8 of 8 --