R v Fleming [2009] QCA 112

Judgment (13 paragraphs)

[1]

The applicant had been dealt with in the past with considerable leniency despite his demonstrated characteristic of physical aggression. To show leniency again would run the considerable risk that the applicant would not be sufficiently deterred from engaging in such behaviour. The particular circumstances of the offence might not have justified the sentences imposed, without the applicant's criminal history. That history showed the need for a sentence which will unequivocally demonstrate that the community, and the courts, will not put up with such conduct as the applicant's.

[2]

[42] Counsel for the respondent referred us to R v Frazer [1997] QCA 306 and

[3]

R v Cockfield [2006] QCA 276 but neither is of particular relevance.

[4]

[43] As I mentioned the applicant was on probation when the offences were committed. It will be recalled he was ordered to undergo 12 months' probation and perform 100 hours of community service on 14 June 2007 when the earlier order made on 20 April 2006 was revoked. The commission of the offences by the applicant on 11 February 2008 was a contravention of the requirement of the probation order, imposed by s 93(1)(a) of the Penalties and Sentences Act 1992 (Qld) ("PSA") that he not commit another offence during the period of probation. The contravention was itself an offence, being made so by s 123 of the PSA. The penalty is limited to the imposition of a fine. By s 126(2) and (4) of the PSA the Court, when dealing with someone like the applicant, may punish for breach of the probation order, or resentence for the original offence with respect to which probation was ordered, as if he had just been convicted.

[5]

[44] The sentencing judge does not appear to appreciate the legal position. There seems to have been considerable confusion about whether he should resentence the applicant for breach of probation or whether he should resentence for the original charges of torture and deprivation of liberty committed in 2005. The court order sheet suggests that he did both.

[6]

[45] The prosecutor submitted that "whatever order is made ... should be made to run cumulatively upon the sentence ... impose[d] in respect of the breach of probation which would ... give a longer global head sentence ...". Defence counsel submitted that it would be in order to impose up to 12 months' imprisonment on a resentence for the torture but that that sentence should be concurrent with the sentences imposed for the present offences because the commission of those offences, for which he was going to be punished by a term of imprisonment, were themselves the facts which constituted the breach of the probation order.

[7]

[46] The sentencing judge preferred the prosecutor's submissions but instead of sentencing the applicant for the earlier offence and making that sentence cumulative upon the sentences imposed for the February 2008 offences, his Honour imposed a longer head sentence for those offences and made the resentence concurrent. He said that he did not:

[8]

"... want to give ... a cumulative sentence for breaching [the applicant's] probation ... because that would have caused difficulties in terms of an earlier release at the third mark."

[9]

[47] His Honour's approach to the breach of probation was quite wrong. For a start, as I mentioned, there was confusion about which option, punishment for breach or resentencing, should be followed. His Honour referred to "giv[ing] ... a ... sentence for breaching [the applicant] probation" and indicated that he had imposed a sentence of 12 months' imprisonment "in relation to the breach of probation". The choice of words does not suggest an appreciation that the applicant was being resentenced for the original offence. A sentence of imprisonment could not have been imposed as punishment for a breach of probation because s 123 of the PSA limits the sanction to a fine.

[10]

[48] If 12 months' incarceration were being imposed by way of resentence it was wholly disproportionate to the circumstances. When dealt with initially for the torture and deprivation of liberty the applicant was sentenced to four months' detention to serve two, which he served, and 12 months' probation. He breached that in a way that did not involve any additional criminality. For that relatively minor breach he was required to undergo a further 12 months' probation and perform 100 hours of community service. He performed all of the service and had undergone eight months of probation, in addition to the time spent on probation following the first order, when the present offences were committed.

[11]

[49] Section 126(6)(b) of the PSA requires the Court to have regard to the extent to which an offender had complied with a probation order when being resentenced for breach of it. Given the history I have described, the imposition of any substantial term of imprisonment was excessive.

[12]

[50] The sentencing judge increased the sentence that would otherwise have been imposed for the aggravated assault and aggravated burglary to obviate the need to impose a cumulative sentence for breach of the probation order. The breach of that order should not have resulted in the applicant having to serve a longer term in custody than those offences required. It was not such as to call for any additional punishment.

[13]

[51] It follows that the applicant was sentenced on an erroneous legal basis. I would give leave to appeal against sentence, allow the appeal, set aside the sentences of three years and six months imposed on each of Counts 4 and 6 and instead sentence the applicant to three years' imprisonment. The parole release date should be fixed at 17 November 2009, one year after the applicant was taken into custody. The declaration as to pre-sentence custody should not be disturbed.

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Judgment (13 paragraphs)

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