R v Briers [1995] QCA 635 (24 October 1995)

Last Updated: 27 October 2015

[1995] QCA 635

COURT OF APPEAL

DAVIES JA

DOWSETT J

LEE J

CA No 246 of 1995

THE QUEEN

v.

RORY JOHN BRIERS Applicant

BRISBANE

..DATE 24/10/95

JUDGMENT

DOWSETT J: The applicant was born on 27 July 1973 and was convicted on 29 April 1994 of one count of break, enter and steal and one of armed robbery. The circumstances of the offences were that in respect of the first, break, enter and steal, he and two co-accused broke into the Inala State School by cutting through a security grille and smashing a window.

They stole a video recorder, a stereo system, an audio system and a camera and damaged other property. The second count of armed robbery, which was committed whilst he was on bail for the first offence, occurred when he entered a video store, carrying a large knife and asked for money. He was given $685. The special circumstances of this case are demonstrated by the fact that he returned to the video store some six days later, when he was recognised by the complainant, as a result of which he was apprehended.

The applicant was initially sentenced to perform 240 hours of community service in respect of these offences and ordered to pay restitution. He has performed something less than half of the community service, but has not paid restitution and as a result of that, breach proceedings were commenced against him.

The outcome of those proceedings was that he was sentenced to imprisonment for a period of 18 months in respect of the first count and three years in respect of the second, the sentences to be served concurrently. It is now necessary to say something about the special circumstances of the applicant. A psychological assessment, which was made available at the sentence, indicates that he is by no means a person who can be expected to be able to deal with the normal pressures of life. He was assessed as having a verbal IQ score of 67 and a performance IQ of 60. At the age of 14 years and three months, he was assessed as having a reading age of just over five years. He was described at that stage as a

non-functional reader.

These tests were in fact carried out some years ago, but at the time of sentence, the reporting psychologist indicated that he would not expect them to have changed. He said that 99 per cent of the non-institutionalised population would be likely to exceed Mr Briers' test results. In conclusion, the psychologist said, "Mr Briers is intellectually disadvantaged and has a long-standing history of disturbed conduct."

From his mother's account, there has been a progressive improvement in his behaviour as he has matured, with the alleged armed robbery being a distinct exception. Having been introduced to gambling, Mr Briers formed an attraction to what can be a highly reinforcing activity. He also showed the characteristics typical of individuals with serious gambling problems, the desire to experience the psychological effects of gambling, faulty beliefs about the possibility of winning, a preoccupation with gambling, et cetera.

"It was my impression", said the psychologist, "that Mr Briers did not have a proper understanding of the seriousness of the alleged armed robbery, although he certainly knew he was acting wrongly. In particular, he seemed to have little understanding of the ongoing implications of such an experience for the victim and appeared not to have considered that such actions might lead to a person being harmed, regardless of what his intentions were. I took some time during my interview to explain to Mr Briers why such a crime can be very much more serious than a property offence."

Whilst in some respects there is little in this account which is unusual in the sentencing process, there is in my view clear evidence, both referred to in the report and in the circumstances of these offences, which would lead one to give some considerable weight to the opinions expressed by Mr Grantham, the psychologist.

I consider that the error which has occurred in this case probably occurred in the initial sentencing process. It was quite clear, in my view, that this man was somebody who needed a continuing regime of supervision if he were to avoid further incidents of misconduct. He is obviously not the sort of person who is able, at the present time, to devise such a regime for himself and that is probably why the community service order failed.

The appropriate sentence was one of probation, and I think that it was the failure to make a probation order at that time which has led to his being in the position in which he now finds himself. I do not see that imprisonment of a person with his handicaps is either likely to assist him or provide an appropriate example to others who are minded to engage in the same sort of misconduct. I think that the present order is one which is likely to bring the whole system of criminal justice into disrepute.

I can understand that His Honour was perhaps put in a difficult position when he re-sentenced him, but that this Court is not constrained by the previous order in the same way as His Honour was. I think it appropriate that the applicant now be offered the opportunity which should have been offered to him originally, namely of being subject to the supervision of a probation officer, for a period of three years.

That should be in addition to the community service order which has presently been imposed and the restitution order, all of which may now remain in force. It would, however, be appropriate to extend the time to comply with the restitution order. It would therefore be my intention that subject to his consent, a probation order be made for a period of three years, subject to the usual conditions specified in section 93 of the Act and to the extent that it is possible under the Act, the period in which he is to perform the community service be extended for another period of 12 months. Is that appropriate?

MS CLARE: Yes, Your Honour. I have no objections to that.

DOWSETT J: And that the time for making restitution also be extended for a further period of 12 months.

MR COLLINS: I don't strongly object to that, Your Honour. It's just another way of doing it, which may assist a person with his intellect - is that restitution to be made during the period of probation at such times and such amounts as the corrective service officer directs. That way they can keep a tab on how his work, his earnings and so forth are going and say, "You pay so much by such and such a date."

DOWSETT J: Yes, I'm happy to propose that anyway.

MR COLLINS: Thank you, Your Honour.

DAVIES JA: I assume that you have his consent to a probation order in those terms?

MR COLLINS: Yes, Your Honour.

DAVIES JA: There's one other matter, Mr Collins. You seem mistakenly - not you personally - your client seems mistakenly to have appealed also against his conviction.

MR COLLINS: Well, I'm sorry, Your Honour-----

DAVIES JA: I assume we should dismiss his appeal against conviction; is that right?

MR COLLINS: It's only appeal against sentence, Your Honour. Yes, I apologise, Your Honour.

DAVIES JA: Well, the appeal against conviction is dismissed. The appeal against sentence is allowed and the orders are as indicated by Mr Justice Dowsett.

LEE J: I agree.

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