Jones v Clarke [2012] TASSC 21

Criminal Law - Sentence - Sentencing orders - Non-custodial orders - Suspended sentence of imprisonment - Breach of conditions of suspension and sentence following breach - Whether "unjust" to activate suspended sentence.

Sentencing Act 1997 (Tas), s27(4C).

Tanner v Brown [2011] TASSC 59, followed.

Judgment Number: [2012] TASSC 21

SENIOR CONSTABLE STEVEN JONES v DANIEL REGINALD CLARKE

1 The applicant moved the Court to review two sentences orders of a magistrate, Mrs Bartlett, made on 11 November 2011.

2 The first order was a re-sentence for offences consequent upon breaches of conditions of a suspended sentence imposed by the same magistrate on 5 August 2010. After he had pleaded guilty to them all, the magistrate had sentenced him to imprisonment for six months, wholly suspended on condition he be of good behaviour and commit no offence of dishonesty and no offence under the Misuse of Drugs Act 2001 or the Bail Act 1994 for a period of two years. On an oral application under the Sentencing Act 1997, s27(1), the magistrate re-suspended the term of imprisonment for a further two years.

3 The second order followed the respondent's pleas of guilty to nine offences committed between March 2009 and July 2011. Eight of them were after 5 August 2010 and committed in breach of a condition of the suspended sentence. For the nine offences the magistrate sentenced him to imprisonment for four months, all of which was suspended on condition that for two years he did not commit an offence punishable by imprisonment.

4 The first ground of the motion is that both orders were manifestly inadequate. The remaining grounds raise four specific errors, three of which relate to both orders and the last to the re-sentence only. The grounds are:

1 The sentences (orders) were manifestly inadequate in the circumstances of the case.

2 The magistrate erred in fact and/or law by placing insufficient weight upon the offending of the respondent.

3 The magistrate erred in fact and/or law in accepting material put in mitigation that had no mitigatory weight.

4 The magistrate erred in fact and/or law by placing undue weight upon factors relating to rehabilitation.

5 The magistrate erred in law in that she failed to give reasons why it was unjust, under the Sentencing Act 1997, s27(4B), to activate the suspended sentence of imprisonment.

5 I will describe the offences for which the suspended sentence of imprisonment was imposed on 5 August 2010. In addition to the suspended sentence, the magistrate made a probation order for 12 months.

6 There were 25 offences on 18 complaints and they were committed between November 2008 and July 2010. In summary they consisted of unlawful possession of a dangerous article in a public place, destroying property, contravening the conditions of a notice, interfering with a driver's control of a vehicle, possession of a controlled plant or its products, breach of a police family violence order, escape, resisting a police officer, threatening a police officer, injuring property, two counts of common assault, two counts of failure to appear, two counts of stealing and nine counts of breaching bail requirements. Not all of the facts for sentence have been made available to me, nor all of the plea in mitigation. For the facts of some I have had recourse to the complaints.

7 The first offence was a common assault on 19 November 2008. The complaint alleged that he pushed his then girlfriend so that she fell over and he pulled out some of her hair. The second common assault was allegedly committed on the same day when he pinned her left arm behind her as she was driving, grabbed a pair of scissors and placed them against her neck, breaking the skin, and threatened to stab her in the face. At the time he did that he was sitting in the front passenger's seat of a car. That was in breach of a bail condition that he not be found in the front seat of a motor vehicle and it resulted in his conviction for contravening the conditions of a notice. The offence of destroying property was committed when, it was alleged, on the same day he destroyed the CD face plate, left rear vision mirror and a window of her car.

8 The offence of interfering with a driver's control of a vehicle was also committed that day. It is not clear from the papers whether it was committed at the same time as he assaulted his girlfriend in the car. The particulars of the complaint merely state that he was a passenger in a vehicle on William Street, Devonport, and interfered with the driver's control of the vehicle.

9 The offence of possessing a controlled plant or its products was committed five months later on 17 April 2009. He was found with a cannabis bud and cannabis seeds in his pocket. He claimed that he purchased the bud for his own use.

10 Twelve days later on 29 April 2009, he breached a police family violence order. The order included conditions that he keep the peace towards his then girlfriend and not directly or indirectly threaten, harass, abuse or assault her. She was the same woman he assaulted on 19 March 2008 and whose vehicle he damaged. He breached the order by threatening her with violence, verbally and by text message. On the same day, he also committed the offence of injuring property when he damaged her vehicle.

11 Two months later, on 24 June 2009, he committed the offence of escape. It is not clear from the papers exactly what occurred, but it appears that his version of the facts, according to his counsel, was that he was in a vehicle that was pulled over by police and was arrested, the police mistaking him for his brother. He lied as to who he was and ran away.

12 On 2 August 2009, he committed the offence of unlawful possession of a dangerous article when in possession of a folded pocket knife with a nine centimetre blade in Salamanca Place, Hobart. In his plea in mitigation, his counsel said he used the pocket knife earlier in the evening to fix a car and placed it in his pocket. When out with friends the police became interested in his behaviour and he tried to slip the knife into his shoe.

13 The first stealing offence was committed on 27 January 2010 when he stole an outdoor setting worth $550 in Port Sorell. He committed the second stealing on 23 March 2010 when he stole 220 litres of diesel, tools and other items from an excavator at Wesley Vale.

14 The offence of resisting a police officer was committed on 8 July 2010 when, according to the complaint, he evaded police officers and refused to accompany them when detained. At the same time, he committed the offence of threatening a police officer by verbally threatening the officer with violence. According to his counsel, he was aware that police had arrived at his home and to avoid them, he went out the back and next door, with the intention of feeding his dogs there. The police came next door and arrested him. He claimed that because he was unsure why he was arrested and was annoyed by it, he threatened the police and became agitated.

15 The two failures to appear and nine breaches of bail conditions occurred between February 2008 and July 2010. Seven were committed when he failed to appear as required on seven separate occasions in the Devonport Magistrates Court. One was committed when he was not present at an address as required by a condition of bail. Two of them concerned a failure to report to the Devonport police station as required by a condition of bail. The last was committed when he failed to appear as directed at the Department of Community Corrections so that a pre-sentence report could be prepared. His explanation for his failures to appear at court was that he failed to keep track of his court dates and did not realise that he was supposed to attend on the days in question. For the failure to report, he said he was at work and unable to get to the police station. He gave no explanation for the other offences.

16 When sentencing the respondent for those offences, the magistrate also imposed sentences for a variety of other offences. The other sentences included fines and periods of disqualification from driving. The offences were described by the magistrate when sentencing as exceeding .05 when driving on a provisional licence, three counts of driving an unregistered motor vehicle, three counts of driving an uninsured motor vehicle, driving with drugs in his system (cannabis, amphetamine and methylamphetamine), driving without a licence, driving while suspended and driving while disqualified. For driving with alcohol in his body he was disqualified from driving for three months from 5 August 2010 and for driving with drugs in his system he was disqualified from driving for a cumulative period of three months.

17 He was 21 years old when sentenced on 5 August 2010. He had already accumulated a record for a variety of other offences. They included common assault, failing to comply with the direction of a police officer, aggravated burglary, two counts of destroying property, possession of stolen property, two counts of possession of an opened or unsealed container of liquor in a public street, four counts of using an unregistered motor vehicle, three counts of using an uninsured motor vehicle, refusing to state his name and address, three counts of using abusive language to a police officer, disturbing the public peace by fighting, two counts of unlawful possession of a dangerous article in a public place, supplying a controlled plant or its products, using a controlled plant or its products, possessing a thing used for the administration of a controlled drug and Criminal Code assault.

18 For that last mentioned crime he was sentenced in a criminal court on 19 June 2009 to six months' imprisonment, all of which was suspended on a condition of good behaviour for two years, along with a community service order requiring 80 hours of service. (I note the obvious fact that he breached the condition of suspension of the imprisonment many times, but no step appears to have been taken to activate the sentence of imprisonment for that reason. However, he did not perform all of the community service and purportedly under the Sentencing Act, s36(6), but in fact without power, a judge ordered on 3 November 2010 that the suspended sentence was cancelled and he was re-sentenced to nine months imprisonment, wholly suspended for three years on a condition of good behaviour. On a complaint for failing to perform the community service, he was sentenced at the same time to six weeks' imprisonment, also suspended for three years on a condition of good behaviour.)

19 The comments of the magistrate when sentencing on 5 August 2010 included the following. Regard was had to a pre-sentence report. The magistrate had written "crime spree" to describe the offences since December 2007, although most of them were committed in 2008 and 2009. She described his life as being "fairly out of control". He had a "pretty stable family life" until, at the age of about 14, he started using drugs and demonstrated lack of respect for his family and authority. The "real catalyst" for much of his offending was the break-up of a romantic relationship, so that he became resentful and angry, doing whatever he wanted to do without regard for others. However, his relationship with his mother was improving and "perhaps" he was easier to live with. He had had anger management issues, but a good work ethic, and had worked as a builder's labourer and apple picker, and for five years as a slaughter man. His employer had described him as responsible and a good worker. He was spending too much on alcohol and drugs. He had an issue with alcohol and, on a reasonably regular basis, marijuana, but was "not using ecstasy and acid in the same way".

20 The magistrate found there was an indication he had accepted responsibility by pleading guilty to the offences and that he had wanted to put them behind him and move on with his life. She thought there was an indication of remorse. She accepted he was still a young person but considered she should impose a sentence that would act as a deterrent against offending again, although there was a need to balance punishment with rehabilitation. She told the respondent that he was "at a bit of a crossroads in your life ... you either get back on track and you get some help with alcohol and drug issues and you get help with anger management or you keep offending and you go to prison, because that's really the only option if you come back to the court with more of these sorts of matters it is almost the inevitable sentence that would have to be imposed". She said it was his choice. She said to him: "I can assure you that if you come back to court within that time with matters of that nature, the court not only is going to be looking at - depending on the circumstances - a term of imprisonment for these ... new matters, but also the imposition of the whole or part of this suspended sentence, depending when it is and what's happened".

21 I mentioned earlier that the second lot of offences, for which he pleaded guilty, consisted of nine offences committed between March 2009 and July 2011, and eight of them were committed after the imposition of the suspended imprisonment on 5 August 2010 and in breach of its conditions. The nine offences were trespass, stealing, killing an animal with intent to steal, driving while disqualified, unlawful possession of property, possessing a firearm when not the holder of a firearm licence, possessing an unregistered firearm, possessing ammunition when not the holder of an appropriate firearm licence and possessing a thing used for the administration of a controlled drug.

22 The first of the offences was trespass on 28 March 2009, prior to the imposition of the suspended sentence and therefore, not in breach of it. On 19 January 2009, he had been banned from entering any hotel of the Goodstone Group. On the night of 28 March 2009, only seven weeks later, he was seen by security staff drinking beer at the main bar of the Alexander Hotel, one of the hotels in the group. Police were called to remove him. He ran into a nearby car park and when the police spoke to him he, obviously falsely, claimed that he had just gone into the hotel to use the toilet. In a plea in mitigation, his counsel said he was mistaken concerning whether he was banned from one particular nightclub only, or from all venues of the Goodstone Group. It was claimed that he did not deliberately breach the ban.

23 The offences of stealing and killing an animal with intent to steal, were committed on a day unknown between 13 and 17 August 2010, no more than 12 days after the magistrate had imposed the suspended sentence for the earlier offences. He stole a cow in calf worth $1000 at Sassafras. With another he used a vehicle to break open the gate of a farm paddock. They herded a number of cattle into a corner, selected the cow, slaughtered it and dragged it to their car. Initially he denied committing the offence and blamed his brother. In a plea in mitigation, his counsel said he was a trained slaughter man and killed the cow humanely.

24 The offence of driving while disqualified was committed a little over three months later on 28 November 2010, when he drove a car on a street in Latrobe when disqualified from doing so. When police approached him he falsely denied he was the driver. The order of disqualification was one of the orders made on 5 August 2010. It disqualified him from driving for a period of three months from 5 November 2010 for an offence against the Road Safety (Alcohol and Drugs) Act 1970.

25 The charges of unlawful possession of property, possessing a firearm when not the holder of a firearm licence, possessing an unregistered firearm and possessing ammunition when not the holder of the appropriate firearm licence were committed seven months later on 22 July 2011. He was in possession of a shotgun and cartridges. During a search of his house, police found the gun under his bed and the ammunition in a wardrobe. He had never held a firearm licence. The gun had been stolen in early 2010. He stated to police he had purchased it from an associate for $400, knowing it was worth in excess of $2000. Also found in the house was a smoking device, for which he was charged with possessing a thing used for the administration of a controlled drug.

26 In mitigation of sentence, his counsel made the following submissions. In March 2011, he had moved away from his mother's home and commenced living with a partner which had resulted in "improving stability in his life ... without that daily supervision from his parents". Strangely, counsel submitted that meant "a significant improvement in his maturity and his morality".

27 It was claimed he had made significant efforts to obtain employment. He worked from March until December 2010 as a slaughter man and in June 2011 commenced work as a deckhand on a fishing vessel, and was currently working on another fishing vessel.

28 Concerning the offence of driving while disqualified, it was asserted that his partner was driving the vehicle when a wheel bearing fell out and as she was not confident in steering the vehicle, he took over the driving. Concerning the firearm offences and in particular his possession of the firearm, it was explained that he purchased the shotgun in early 2010, a time which coincided with the offences for which the suspended imprisonment was imposed on 5 August 2010. Concerning the stealing of the cow and killing it, his counsel said she was instructed that he killed the cow humanely.

29 His counsel concluded: "They're having a child together. He's working. He struggled for six months this year to find employment ... and now found employment; the pre-sentence report indicates that his boss is happy with him. All these factors, if he was to spend time in prison ... it would start to undo some of this good work, and indeed, if he lost his employment because he went ... in, then he's going to have to struggle, come out, try and get more employment, depending on how long he spends in prison ... he'll have a child already there. His partner will have to take some maternity leave. They will be without an income."

30 The magistrate received a pre-sentence report from a probation officer and had two earlier reports. Most of the contents of the recent one were based on uncorroborated claims of the respondent and therefore, had limited value. He had claimed that his relationship with his parents was better than it had been; that he had reduced his alcohol and illicit substance use; that he had been in a relationship for 12 months which was very positive and supportive; and that his partner was five months' pregnant and did not tolerate criminal behaviour. (The probation officer had not spoken to his partner.)

31 He reported having held his current employment for four to five months and earned between $500 and $3000 per fortnight, depending on the success of fishing trips. The probation officer had spoken to his employer, who considered him an excellent and valued worker.

32 Although the officer had also spoken to his mother, no mention of her views about the respondent was made.

33 The respondent had also reported he was spending $150 per fortnight on alcohol. He owed fines totalling $7513.79 and was making no payments towards them. He claimed he was only drinking on weekends and only using cannabis approximately once a month.

34 Concerning the killing and stealing of the cow, it was reported by the probation officer that the respondent said he had been having financial difficulties and on seeing the cattle made a spur of the moment decision. He also claimed that he and his family were planning on having a week away and needed meat.

35 The probation officer said the respondent had been subject to two community service orders and two probation orders in the past and in 2010, a community service order was cancelled due to his non-compliance with it. He was regarded as unsuitable for further community service due to his sporadic work commitments.

36 In her comments on passing sentence, the magistrate accepted the respondent's claim that he had substantially reduced his alcohol intake. She commented, without explaining why, that there was clearly a link between the alcohol and the offending. She thought that "perhaps" there had been "a wake-up call" for him. The magistrate accepted that he had stable accommodation, something she said he had not had before. She described his relationship with his partner as "stable and clearly supportive" with "a baby on the way". She referred to him as having "stable employment" with a "supportive" employer.

37 The magistrate summarised her findings by saying that there had been "quite substantial changes in the last few months" which she later referred to as "quite considerable rehabilitation changes". She said they persuaded her that the suspended sentence of imprisonment should be re-suspended and the sentence for the nine new offences should also be one of suspended imprisonment. With regard to the offence of driving while disqualified, it was also ordered that he was disqualified for two months. A probation order was made for 12 months.

38 Earlier in the comments, the magistrate briefly referred to the circumstances of some of the new offences. As to driving while disqualified, she accepted his claim that he only drove after his partner felt unable to do so once wheel bearings had fallen out. Her Honour regarded the trespass as being "at the lower end of the scale", accepting his claim that he had not been aware that the ban on him extended to the hotel in question. The magistrate described possession of the stolen shotgun as clearly "inappropriate" but the killing of the animal as "a serious matter". However, she added "I do note that you are a qualified slaughter man, so that was done in a humane way - it wasn't someone who had no experience who was just dealing with the animal in that way".

39 The second ground of review asserts specific error by the magistrate by placing insufficient weight on the offending of the respondent. It can only be concluded in the applicant's favour if I am also satisfied that the orders, or either of them, were manifestly inadequate. If they were not manifestly inadequate, it cannot be said that the magistrate placed insufficient weight on the offending.

40 I do not ignore her Honour's understatement when she referred to the respondent's unlawful possession of the stolen shotgun as clearly inappropriate, but do not regard it as establishing the ground.

41 The third ground asserts error by accepting material put in mitigation that had no mitigatory weight. That alone would not justify granting the motion to review. The ground would have been better expressed if it had asserted that the magistrate erred by giving mitigatory weight to material which had none.

42 In support of the ground, counsel for the applicant referred to the statement by the magistrate, in relation to the killing of the cow with intent to steal it, that "I do note that you are a qualified slaughter man, so that was done in a humane way, it wasn't someone who had no experience who was just dealing with the animal in that way". While I agree with the applicant's counsel that there was no mitigation in the fact that the killing was carried out in a humane way, the magistrate did not say that there was, and I am unable to conclude from the statement that the severity of the orders was reduced because of that aspect. If I could conclude that, the ground would be sustained.

43 Also in support of the ground, counsel for the applicant referred to submissions made by the respondent's counsel to the magistrate concerning his unlawful possession of the shotgun, the reason why the police found it at his home and the fact that he had not used it for an illegal purpose, and argued that they did not amount to mitigation. Even if that is so, they were statements made by counsel and not by the magistrate in her sentencing comments. For that reason they do not support the ground.

44 The fourth ground of review is that the magistrate placed undue weight on factors relating to rehabilitation. It was submitted by the applicant's counsel that the magistrate placed too much value on the pre-sentence report that was based mainly on the respondent's own statements to the probation officer and on little objective information. However, as with ground 2, the ground cannot be upheld unless, at the very least, I conclude that the orders were manifestly inadequate. If they were not manifestly inadequate, I am unable to conclude that the magistrate placed undue weight on rehabilitation as a factor.

45 The fifth ground of review is that the magistrate erred in law in that she failed to give reasons why it was unjust, within the meaning of the Sentencing Act, s27(4B), to activate the sentence of the imprisonment that had been suspended on 5 August 2010. Instead of subs(4B), it should have referred to subs(4C). It will be ordered that it is amended accordingly.

46 As a result of amendments to s27 that came into effect on 1 January 2011, and as the respondent had been found guilty of an offence punishable by imprisonment committed in breach of a condition of the suspension of the imprisonment during the period of its operation, the magistrate was obliged by subs(4B) to activate the suspended sentence and to order the respondent to serve it, unless subs(4C) operated. It was in the following terms:

"(4C) If the court is of the opinion that an order under subsection (4B) would be unjust, the court may instead -

(a) activate part of the sentence that is held in suspense and order the offender to serve it; or

(b) order that a sentence (in this section called the 'substituted sentence') take effect in place of the suspended sentence; or

(c) by order, vary the conditions on which the execution of the sentence was suspended, including extending the period of suspension in the order to a day no later than 12 months after the day the offender was found guilty of the new offence; or

(d) make no order in respect of the suspended sentence."

47 The magistrate asked the respondent's counsel whether it was her submission that because of the respondent's circumstances it would be unjust to activate the suspended sentence. Counsel did not answer the question directly. What she submitted was that if the respondent was made to serve the imprisonment, it would undo some of the increasing stability he had achieved in his life in recent times, he would lose his employment and his family would be without any income.

48 In reply, the prosecutor pointed out that the offences of stealing and killing an animal with intent to steal were committed only some 12 days after the suspended sentence was imposed and the offence of driving while disqualified was committed only three months after.

49 When commenting immediately prior to making the orders, which was ten days after those submissions were made, the magistrate did not refer to the requirement of s27(4C) that the activation of the suspended sentence had to be unjust before she could take one of the courses permitted by the subsection, nor did she expressly state that it would be unjust if she activated the suspended sentence.

50 Her Honour remarked that the respondent had a "very poor record, particularly in relation to dishonesty matters". She said that it was "serious" that he was back before the court in relation to similar matters, a reference to the charges of dishonesty and driving while disqualified. She said it was of concern that only a week to a week after the suspended sentence was imposed he offended dishonestly again, and added "so clearly that didn't seem to have had much of a deterrent effect at the time".

51 What persuaded the magistrate not to activate the suspended sentence, nor to order actual imprisonment for the second lot of offences, were the following matters. Her Honour accepted the respondent's claims that he had substantially reduced his alcohol consumption; that he had stable accommodation which was not the situation before; that he had a baby on the way; that, therefore, he had an incentive "to continue doing what you're doing"; that he also had stable employment, which had been an issue previously; and that his employer was willing to be "supportive too in relation to any community based orders, such as probation". Her Honour summarised by saying "clearly, there have been quite substantial changes in the last few months". She referred to the respondent's acceptance of responsibility by pleading guilty to the charges.

52 After making a few comments about some of the offences, the magistrate concluded in the following way. She said that "taking all those matters into account" and the fact that the pre-sentence report recommended against a community service order because of the respondent's work commitments, she was "of the view that in relation to the suspended sentence, given the quite considerable rehabilitation changes that have happened in the last few months for you, that that suspended sentence should be re-suspended for two years from today, because that will give you an opportunity to demonstrate that you have rehabilitated and will continue to do so."

53 Counsel for the applicant submitted that what was said by her Honour did not amount to the giving of reasons why activation of the suspended sentence would be unjust, a requirement of s27(4C).

54 I am not persuaded that the magistrate erred in that way. Her question to the respondent's counsel as to whether it was submitted it would be unjust, revealed that her Honour was alert to the question. Although no mention was made by her Honour, when making the orders, of the provisions of s27(4C) or of the question whether it would be "unjust" to activate the suspended sentence, I conclude that her Honour was aware of that issue. Regard was had by her Honour to the circumstances of the offences and the impact actual imprisonment would have on the respondent's rehabilitation. They were relevant to a determination whether activation would be unjust. Tanner v Brown [2011] TASSC 59 at pars[110] - [119]. I conclude that although the reasons could have been expressed more clearly, the magistrate did not err by failing to give reasons why it would be unjust to activate the suspended sentence.

55 In the course of writing these reasons, I have come to the realisation that the magistrate did not have power to order that the suspended sentence be re-suspended for two years from the date of the order. The making of the order amounted to a variation of the conditions on which the execution of the sentence was suspended. Tanner v Brown (supra) at par[82]. Section 27(4C)(c) limited an extension of the period of suspension to no later than 12 months after the day the respondent was found guilty of the new offences. That occurred on 27 September 2011, when he pleaded guilty to them. It follows that the magistrate only had power to extend the period of suspension until 27 September 2012. Its extension until two years after 11 November 2011, that is to 11 November 2013, was beyond power. For that reason, there will be an order amending the notice to review by adding a ground that the order re-suspending the term of imprisonment for a further two years was beyond power.

56 Under the Justices Act 1959, s110(2)(b), I have power to vary, amend, rescind, set aside or quash the order, and under s110(2)(g) and (i), I have power to make such other order as I think necessary. It is clear that the order must not be allowed to stand. The question remains, what should be ordered in its place.

57 I will deal first whether the order consequent upon breaches of the conditions of the suspended sentence was manifestly inadequate. I am satisfied that it was.

58 As I have made clear, the Sentencing Act, s27(4B) and (4C), required the activation of the sentence unless it would be unjust to activate it. With respect to the magistrate, I regard it as beyond doubt that it was not unjust that the sentence be activated.

59 The suspended sentence was imposed on 5 August 2010. It followed another suspended sentence of six months' imprisonment that was imposed in the criminal court on 19 June 2009 with a condition of good behaviour for two years. The respondent was subject to both suspended sentences when, no more than 12 days after the imposition of the subject sentence, he breached it by killing and stealing the cow. That was a serious and substantial breach of the conditions of suspension. He demonstrated contempt for the orders of both courts and particularly the order made only a few days before. When it was made the magistrate stated clearly to him that it was almost inevitable that the only option, if he came back to the court for "these sorts of matters", would be imprisonment.

60 The respondent again demonstrated his contempt for the court's order when three months later he drove in breach of the order disqualifying him from driving. That order was made at the same time as the subject sentence, and by driving he also breached the condition of good behaviour attached to it.

61 Notwithstanding the respondent's claim of rehabilitation, the circumstances demanded that he serve the suspended imprisonment. It was not unjust that he be required to do so.

62 For these reasons, there will be an order setting aside the order made on 11 November 2011 re-suspending the suspended sentence of six months' imprisonment for a period of two years, and in its place there will be orders that the suspended sentence is activated and that the respondent serve it.

63 Finally, I deal with the question whether the suspended sentence of four months' imprisonment for the second lot of offences was manifestly inadequate. If I was considering it on its own, I would hold that view. However, having regard to the activation of the suspended sentence, it may well operate as a positive incentive to the respondent to rehabilitate following his release from prison. It will be hanging over him until 11 November 2013. Of course, allowing it to remain amounts to giving him another chance to take advantage of imprisonment being suspended, but he is still a relatively young person, aged 23, and it is reasonable to hope that the observations of the magistrate that there were signs of rehabilitation may prove to be correct, particularly if it is clear that imprisonment awaits him if he commits an offence punishable by imprisonment between now and 11 November 2013. For these reasons, there will be no order affecting that sentence.