Court of Appeal (Qld)|2010-06-25|Before: Chief Justice and Fraser JA and Atkinson J, Separate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Chief Justice and Fraser JA and Atkinson J, Separate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY
EXCESSIVE OR
INADEQUATE – where the applicant breached his suspended sentence resulting
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLYEXCESSIVE ORINADEQUATE – where the applicant breached his suspended sentence resultingin the activation of the whole of hissuspended sentence – where theprimary judge fixed the applicant’s parole release date at the end of theterm of thesuspended sentence – where the applicant’s parolerelease date was then the same as his full term release date –where theapplicant required treatment for mental illness and alcoholism and had recentlyreceived compensation for abuse in a Stateinstitution – whether thesentence manifestly excessiveCRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– GROUNDS FOR INTERFERENCE – JUDGE ACTED ONWRONG PRINCIPLE –where the applicant breached his suspended sentence resulting in the activationof the whole of his suspended
sentence – where the primary judge fixed the
applicant’s parole release date at the end of the term of the suspended
sentence – where applicant’s parole release date was then the same
as his full term release date – where primary
judge was led to believe by
the Crown Prosecutor that the parole release date was required to be fixed at
the end of the term of
the applicant’s suspended sentence – whether
the applicant’s parole release date was required to be fixed at the
end of
the term of the applicant’s suspended sentence
Penalties and Sentences Act 1992 (Qld), s 146, s 147,
s 160B(3)
R v Norden [2009] 2 Qd R 455
[2009] QCA
42, cited
Judgment (76 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
[1] CHIEF JUSTICE: I am grateful to Atkinson J for her recitation of the relevant circumstances. I agree with the orders proposed by Her Honour.
[3]
[2] The learned sentencing Judge was alive to the need to fix the parole release date because of s 160B(3) of the Penalties and Sentences Act 1992. The error was to determine to activate fully the suspended term without concurrently considering the prospect of setting a parole release date prior to the expiration of that term of imprisonment. That is the process required in light of R v Norden [2009] QCA 42.
[4]
[3] That the error occurred emerges from two parts of the record.
[5]
[4] First, the Crown Prosecutor made this submission:
[6]
"So, if your Honour was with me on a full activation of the suspended sentence, serving the full seven months, that would take parole release date to the 29th of October 2010."
[7]
"And if I agreed with you, would I have to fix the parole date...in relation to these matters...for the 29th of October 2010?"
[8]
"Yes, your Honour, I have looked into this and it does seem somewhat superfluous, but - if your Honour's seeking he serve the whole thing, but, in fact, your Honour does need to actually declare the parole release date."
[9]
[5] Second, in his sentencing remarks, having canvassed the considerations set out in s 147(3), and having determined to activate the balance of the suspended term, His Honour said:
[10]
"In the circumstances I order that you serve the whole of the suspended period of imprisonment, and the order that is required - again, Ms Shaw, do I have to order a release date?"
[11]
"Ms Shaw: A parole release date under section 160B(3), so a parole release date.
[12]
His Honour: Even though there's nothing left to parole?
[13]
Ms Shaw: Yes, your Honour, it does seem...superfluous, but in fact it's not. A date is actually required.
[14]
His Honour: I order that the parole release date be fixed at the 29th of October 2010."
[15]
[6] Norden's interpretation of the legislation means that in determining whether it is unjust to activate a suspended term, the court must turn its mind to parole, and parole in the meaningful sense, that is release prior to the expiration of the designated term.
[16]
[7] Now on one view of what occurred, the Judge concluded that regardless of parole considerations, "justice" militated the respondent serve the balance of the suspended term.
[17]
[8] But the passages extracted above indicate that the Judge failed to adopt the integrated approach (Norden) to the determination of the "justice" of activating the suspended term, taking account of both the considerations in s 147(3) of the Penalties and Sentences Act and the prospect of parole which fell to be considered under s 160B(3).
[18]
[9] That is why it is necessary for this court to revisit the penalty imposed, and as I have said, I agree with the orders advanced by Atkinson J.
[19]
[10] To my mind, following Norden, there is now tension between the intention which apparently founded the suspended sentence regime as originally established (in 1992, with amendment in 2002), and the incursion arising from the subsequent amendments to Part 9 Division 3 of the Penalties and Sentences Act which commenced in 2006.
[20]
[11] The original intention was, plainly, that an offender would be obliged actually to serve the suspended term unless unjust. That was perceived as giving "teeth" to the suspension: keep out of trouble, or you will have to serve the term, and offenders were routinely warned of that.
[21]
[12] Now, because the court which is asked to activate the suspended term must set a parole release date where the activated term is less than three years in duration, there is the prospect that even though a term of that order is activated in full, the offender may (or should that read "must") be released on parole prior to its expiration.
[22]
[13] That may have been the legislative intent at the time of the amendments in Division 3 of Part 9. If so, it does however give rise to the odd situation where, if a court were to consider that an offender should actually serve in full the balance of a suspended term, the court, statutorily obliged to set a parole release date, would be driven to set a date right at the end of the term, and that would be a wholly artificial exercise. How could such a date be considered a "parole" release date? Yet under the current legislation, the court would be obliged to set such a date.
[23]
[14] If on the other hand these issues were not addressed when Division 3 of Part 9 was introduced in 2006, then consideration could usefully now be given to further amendment to give a court a discretion to fix a parole date where a term of less than three years is activated, rather than obliging the court to fix the parole release date in those circumstances. That would give the court some arguably desirable flexibility, without constraining it in particular situations to engage in an inappropriately artificial exercise in order simply to satisfy a legislative mandate without apparent utility.
[24]
[15] FRASER JA: I have had the advantage of reading the reasons for judgment of the Chief Justice and Atkinson J. I agree with their Honours' reasons for concluding that the learned sentencing judge erred in exercising the discretion under s 147(2) of the Penalties and Sentences Act 1992 (Qld). I also agree with the orders proposed by Atkinson J.
[25]
[16] ATKINSON J: The applicant, Vernon Richard Gray, was convicted of breaching a suspended sentence imposed on 24 April 2009 by the District Court in Rockhampton. He was sentenced on 30 March 2010 by the District Court in Cairns to serve the whole of the suspended sentence which resulted in a seven month term of imprisonment being activated. His court ordered parole release date was 29 October 2010, which was his full term release date once the suspended sentence was activated.
[26]
[17] The ground of appeal set out in the notice of application for leave to appeal was that the sentence imposed was manifestly excessive in all of the circumstances. The circumstances were said to be that the applicant is a middle aged schizophrenic alcoholic who, since the original sentence was imposed by the District Court in Rockhampton, had received a damages payment for abuse in a state institution as a child in the amount of $22,000. He had settled on plans for the future using the funds available to him to buy a caravan to live in, to avoid alcohol and to accept treatment from mental health services. Mr Gray appeared for himself by video link from the prison. His oral submissions were clearly affected both by his mental illness and his lack of understanding of the legal system and court process. He sought to impugn his convictions and the sentences imposed after his plea of guilty in the District Court in Rockhampton on 24 April 2009. That course was not available to him on this appeal.
[27]
[18] In order to determine whether or not the activation of the whole of the suspended sentence was "manifestly excessive", it is necessary first to consider the sentence imposed upon the applicant in the District Court in Rockhampton, the breaches of that sentence, the relevant statutory regime and the reasons given by the learned sentencing judge for activating the whole of the suspended sentence.
[28]
[19] The sentence of which the applicant was in breach was imposed in the District Court in Rockhampton on 24 April 2009. The applicant pleaded guilty to two counts of serious assault which occurred on 22 October 2008. At the time of the sentence, as the learned sentencing judge observed, he was 44 years of age and had a very extensive Queensland criminal history with convictions for a variety of offences including offences of violence and sexual offences as well as property offences and offences of dishonesty. There were also numerous convictions for public nuisance and other summary offences. The offences for which he came to be sentenced were committed on the day on which he was released on parole in relation to sentences imposed in the Magistrates Court on 1 October 2008. He had been imprisoned on 1 October 2008 on three counts of committing a public nuisance, one count of contravening a direction or requirement and two counts of breach of bail. He was sentenced to one month's imprisonment with a parole release date of 22 October 2008.
[29]
[20] On that day he went to the office of the Capricorn Citizens Advocacy and made some threats to a female employee who sought assistance by telephone. The treasurer of the organisation, a 62 year old man, came to her assistance and attempted to take control of the situation. He attempted to remove the defendant from the office and to calm him down as he appeared to be very aggressive. However, the applicant poked him in his chest area and then spat in his face. Those facts constituted the first count of serious assault under s 340(1)(g) of the Criminal Code.
[30]
[21] A police constable arrived shortly afterwards and saw the applicant standing at the front of the office swearing loudly and throwing his arms around. The applicant was arrested and placed in the rear of a police vehicle for transportation to the watch house. He was initially cooperative and calm but then became verbally abusive and moved around the vehicle. He placed his face against the cage immediately behind the police officer's head and spat on the back of the police officer's head. The police officer stopped the vehicle and approached the rear passenger side door. When he opened the door, the applicant spat in his face. When the police officer attempted to handcuff the applicant, he rolled out of the police officer's hold and elbowed the police officer in his left eye. A struggle ensued but he was restrained. The assault on the police officer constituted the facts of the second count of serious assault under s 340(1)(b) of the Criminal Code. Disease testing results on both complainants were negative.
[31]
[22] The learned sentencing judge in Rockhampton sentenced the applicant to 12 months imprisonment. He accepted a defence submission that setting a parole release date would set the applicant up for failure and the consequence of that would be that if he reoffended he would then have to serve the whole of the period of imprisonment which the learned sentencing judge imposed. The judge therefore suspended the sentence telling the applicant that if he committed any further offences punishable by imprisonment during the operational period of 12 months he would be brought back before the court and unless he could persuade the judge that it would be unjust he would then have to go to jail for the balance of the term of imprisonment. The learned sentencing judge said that in his particular circumstances that was the appropriate sentence rather than having him automatically return to prison to serve the balance of the sentence in the event that he reoffended or in some other way breached the conditions of parole.
[32]
[23] The sentence was suspended after five months with an operational period of 12 months and 127 days already spent in custody was declared to be imprisonment already served.
[33]
[24] The applicant was released from custody on 20 May 2009 and commenced committing offences on 28 May 2009. That was the offence of committing a public nuisance. The applicant was extremely drunk outside a pizza shop and was verbally aggressive. Two days later he was arrested for committing a public nuisance at a service station where he had drunkenly harassed a female customer and other customers. While the police were speaking to him about that matter they were approached by a staff member from a bakery who said that the applicant had entered the store and approached the front counter asking for money to buy liquor. He then asked a customer for money, harassed pedestrians on the footpath and again entered the bakery asking for money. He was obviously severely affected by alcohol.
[34]
[25] On 1 June 2009 he committed the offence of unlawful possession of suspected stolen property being a DVD player which he was trying to swap for cash. He was transported to the Lyons Street Diversionary Centre in Cairns and issued with a notice to appear.
[35]
[26] On 2 July 2009 the manager of a unit complex in Cairns unlocked the front door to his office in the early hours of the morning and left it unoccupied for a short time. When he returned he found that an ANZ cheque book was missing. This constituted the offence of receiving stolen property. On the same afternoon the applicant attempted to cash one of those cheques to the value of $800. That constituted the offence of attempted fraud- dishonestly obtaining property from another. The applicant was located shortly afterwards under the influence of alcohol. One of the conditions of bail which was granted on 24 June 2009 was that he not consume alcohol and submit to breath testing when required to do so by a police officer and return a negative result. A breath test showed that his blood alcohol concentration was 0.15 per cent. That constituted the offence of breach of bail.
[36]
[27] Late in the night of 9 September and the early in the hours of the morning of 10 September the applicant committed four offences of improper use of an emergency call service when he rang 000 from a pay phone speaking incoherently and eventually requesting police attendance because of various security guards being beaten up. When the police attended there were no security guards located but the applicant admitted that he had made the calls and said he had done so in order to get a ride to the Lyons Street shelter.
[37]
[28] On 16 September 2009 the police located the applicant in possession of a camera and a mobile phone. There had been a text message received on the mobile phone showing that the items had been stolen the previous night.
[38]
[29] Finally on 20 September 2009 the applicant committed the most serious of the offences which were committed in breach of his suspended sentence. At about 5.30pm on 20 September 2009 the complainant, who was a 59 year old man with cerebral palsy, contacted police and informed them that the applicant had broken into his house and threatened him with a knife. Police attended and apprehended the defendant in the backyard of the premises. He was wearing a T-shirt owned by the complainant.
[39]
[30] The circumstances of the offence were frightening for the complainant but the applicant desisted of his own accord. When the complainant called the police, the applicant threatened him with a kitchen knife and told him not to call the police but he desisted when the complainant continued with the call to the police, put the knife down and ran out of the front door. Those offences constituted the offence of burglary with intent to commit an indictable offence. The applicant also stole the complainant's brown leather glasses case which constituted the offence of stealing.
[40]
[31] The applicant was sentenced to nine months imprisonment on 24 November 2009 for the offences committed between 28 May and 20 September 2009. Sixty-five days of pre-sentence custody was declared to be part of the sentence served and his parole release date was set at 25 November 2009, the following day. At the time the applicant came to be dealt with for the breach of suspended sentence he was in custody on remand for two further public nuisance offences committed on 3 and 9 December 2009. His parole was revoked and he was returned to custody on remand on 11 December 2009.
[41]
[32] The applicant has a very extensive criminal history which commenced with his first conviction in the Rockhampton Magistrates Court on 26 August 1982 for wilful and unlawful destruction of property. Thereafter he was convicted in the Rockhampton Magistrates Court for various counts of obscene language, behaving in an indecent manner, stealing, breaking and entering, wilful and unlawful damage to property and unlawful use of a motor vehicle. He was convicted in the Mackay Magistrates Court of consuming liquor on a public reserve in January 1989.
[42]
[33] Between August 1989 and February 2001 he was convicted of a number of offences in the Townsville Magistrates Court and on three occasions in the District Court. The District Court offences were wilful and unlawful destruction of property in the night time committed in May 1992, deprivation of liberty, common assault and indecent acts in July 1998 to which he was sentenced to a period of two years six months imprisonment with a recommendation made to the Corrective Services Commission that he receive treatment and counselling in respect of his psychiatric condition and alcohol abuse. He was convicted on 12 February 2001 of sexual assault committed on 2 December 1999. He was sentenced to three and a half years imprisonment with the following matters noted by the learned sentencing judge:
[43]
"1. The authorities are strongly urged to ensure that he continue with the treatment he has been undergoing whilst he is in prison to keep his mental condition under control.
[44]
Recommended that once the sentences are concluded the authorities carefully consider the question of how to keep him out of trouble, including regulation under the Mental Health Act."
[45]
[34] It appears that the applicant relocated to Rockhampton after his release from custody and he commenced committing minor summary offences for which he was dealt with in the Rockhampton Magistrates Court from September 2004 with occasional offending in Cairns and Townsville. However, his first appearance in the District Court in Rockhampton was for the matters referred to earlier where he was sentenced to 12 months imprisonment after serving a period of five months with a 12 month operational period.
[46]
[35] When an offender is brought before the court because of a breach of a suspended sentence under s 146 of the Penalties and Sentences Act ("PSA") the court has the powers set out in s 147 of the PSA. The court that deals with the offender for the suspended imprisonment may:
[47]
(i) that the operational period be extended for not longer than 1 year; or
[48]
(b) order the offender to serve the whole of the suspended imprisonment; or
[49]
(c) order the offender to serve the part of the suspended imprisonment that the court orders."
[50]
[36] Section 147(2) provides that the court must make an order under subsection (1)(b) unless it is of the opinion that would be unjust to do so. Subsection (3) of s 147 then sets out the factors to which the court must have regard in deciding whether it would be unjust to order the offender to serve the whole of the suspended imprisonment. They are:
[51]
"(a) whether the subsequent offence is trivial having regard to -
[52]
(i) the nature of the offence and the circumstances in which it was committed; and
[53]
(ii) the proportion between the culpability of the offender for the subsequent offence and the consequence of activating the whole of the suspended imprisonment; and
[54]
(iii) the antecedents and any criminal history of the offender; and
[55]
(iv) the prevalence of the original and subsequent offences; and
[56]
(v) anything that satisfies the court that the prisoner has made a genuine effort at rehabilitation since the original sentence was imposed, including, for example -
[57]
(A) the relative length of any period of good behaviour during the operational period; and
[58]
(D) anything mentioned in a pre-sentence report; and
[59]
(vi) the degree to which the offender has reverted to criminal conduct of any kind; and
[60]
(vii) the motivation for the subsequent offence; and
[61]
(b) the seriousness of the original offence, including any physical or emotional harm done to a victim and any damage, injury or loss caused by the offender; and
[62]
(c) any special circumstance arising since the original sentence was imposed that makes it unjust to impose the whole of the term of suspended imprisonment."
[63]
Orders with regard to the breaches of suspended sentence
[64]
[37] The applicant admitted the breaches of the suspended sentence that had been imposed. The learned prosecutor submitted that the sentencing judge should order the applicant to serve the whole of the period of imprisonment that had been suspended and would be obliged to fix the parole release date at the full time release date under the sentence.
[65]
[38] The defence submissions were that the applicant is a schizophrenic and an alcoholic. If he drinks he goes off his medication and becomes drunk and confused and commits offences. He had a tragic personal history having been committed to a State home when he was about three or fours years of age. His mother was an alcoholic who died and he was brought up in a State institution. He had received $22,000 compensation for his ill treatment in that institution. This had given him the opportunity to have a different plan for his future: buy a caravan which would for the first time give him a home and be treated at the Cairns Community Mental Health Service. A community health plan was being considered for him.
[66]
[39] The applicant's full time release date on the sentence he was presently serving was on 19 June 2010. The defence submitted that the judge should extend the operational period of the sentence to 19 June 2010 to allow plans to be put in place for the applicant to be discharged from prison sometime between the date of sentence and 19 June 2010 on parole. The alternative submission was that the sentencing judge impose such period of the remaining suspended period of imprisonment until 19 June 2010 so there was a certain release date.
[67]
[40] In sentencing the applicant the learned sentencing judge carefully went through all the factors in subsection (3) of s 147 of the PSA but found that none of those factors would make it unjust to order the applicant to serve the whole of the suspended imprisonment. However his Honour appears to have been inadvertently misled by the prosecutor's submissions that the only option for a sentencing judge in such circumstances is to order a parole release date at the end of the period of imprisonment. As the Court of Appeal held in R v Norden [2009] QCA 42 at [12], since the introduction of Part 9 Div 3 of the PSA which took effect on 25 August 2006, the court exercising its power under s 147(1)(b) must consider s 160-s 160H of the PSA. In determining what order should be made under s 147(1) Holmes JA, with whom the other members of the court agreed, observed at [14] that "in deciding whether it is unjust to ... order [that the offender serve the whole of the suspended imprisonment], relevant considerations will be that a parole release date or parole eligibility date is to be set, and when it is to be set."
[68]
[41] Section 160 of the PSA provides that, for the purposes of Part 9 Div 3 dealing with parole, a court which orders an offender to serve the whole or part of a suspended imprisonment for an offence is imposing a term of imprisonment on the offender. For the purposes of that Division the learned sentencing judge was therefore imposing a term of imprisonment of seven months on the applicant.
[69]
[42] Section 160B of the PSA therefore applies. Subsection (3) provides that where the sentence "imposed" is three years or less, the court must fix a date for the offender to be released on parole. "Parole release date" is defined in s 160 as the date fixed under s 160B(3) as the date the offender is to be released on parole. There is no requirement that the parole release date be the same date as his full time release date.
[70]
[43] The Crown conceded on the hearing of the appeal that there was an error in the exercise of the discretion under s 147(2) in this case because the learned sentencing judge accepted a submission by the prosecutor that while he must specify a parole release date, this was essentially a circular, perfunctory or superfluous process, and that he had no option, once satisfied of the factors set out in s 147(2), other than to make the parole release date the same date as his full time release date.
[71]
[44] That submission was in error for two reasons: firstly the effect of Div 3 of Part 9 of the PSA must be considered by the sentencing judge when determining how to exercise the discretion under s 147. It is not a superfluous process to be carried out after the discretion has been exercised. Secondly, a parole release date is a date for release on parole. Fixing the parole release date at the date on which he is to be released after serving the whole of his sentence means that it would not in fact be a parole release date because he could not be released on parole after he has completed his sentence. Given the error in the exercise of discretion under s 147(2) of the PSA, it falls to this court to exercise the discretion afresh.
[72]
[45] In view of the applicant's assistance with the administration of justice which was referred to by the sentencing judge and the change in his circumstances together with the clear need for him to be released on supervision which might assist him deal with and receive treatment for his alcoholism and mental illness, it is appropriate that the applicant have a parole release date which reflects those matters. It is appropriate to order a parole release date after he has served a little of over one-third of the seven months sentence imposed by way of activation of the suspended sentence or after he has served three months imprisonment. That means it is appropriate to order his parole release date be 30 June 2010.
[73]
[46] While acknowledging the concerns expressed by the Chief Justice, in my view the ability to set a parole release date for an offender in these circumstances has added desirable flexibility to the sentencing options available to a judge when dealing with an offender who has been in breach of his or her suspended sentence.
[74]
[47] The application for leave to appeal sentence should be allowed, the order that the seven months suspended imprisonment be activated remain in place but added to that should be an order for a parole release date of 30 June 2010.
[75]
[48] Community corrections should ensure intensive supervision of the applicant to assist him in dealing with his mental illness and alcoholism and ensuring that, as he appears to lack the capacity to administer his compensation payment, appropriate orders are in place to enable an external administrator such as the Public Trustee or a relative, if a suitable person is available, to administer that money to the benefit of the applicant.
[76]
2. Appeal allowed only to the extent that a parole release date of 30 June 2010 be added.