R v Norden

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - SENTENCE: WHAT CONSTITUTES - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE - where applicant convicted on pleas of guilty of one count of possessing methylamphetamine, one count of supplying methylamphetamine and one count of receiving stolen property - where, on the supply and possession counts, applicant sentenced to two years probation - where, on the receiving count, applicant sentenced to 12 months imprisonment, wholly suspended for an operational period of two years - where applicant twice convicted of further offences during operational period and while on probation - where, in sentencing for the breach of probation and breach of suspended sentence, learned sentencing judge revoked the probation order and re-sentenced applicant on the supply and possession counts to 12 months imprisonment, to be followed by two years probation; and, on the receiving count, activated the whole of the suspended imprisonment pursuant to s 147(1)(b) of the Penalties and Sentences Act 1992 (Qld), with a parole release date set at the end of the term of imprisonment - where applicant appealed on the ground that the combined effect of activating the suspended sentence and re-sentencing on the supply and possession counts was to impose a manifestly excessive sentence - whether this was a proper basis of appeal - whether the activation of the suspended sentence and the re-sentencing should be dealt with separately - whether activation of a suspended sentence is a "sentence" passed on conviction as defined in s 668(1) of the Criminal Code - whether decision to set parole release date is part of the decision under s 147(2) of Penalties and Sentences Act 1992 (Qld), or a separate exercise of discretion - whether learned sentencing judge erred in forming the view that it was not unjust to impose the whole of the suspended imprisonment - whether sentence imposed on supply and possession counts manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 147(1)(b), s 147(2), s 147(3), ss 160-160H

R v Blow [1963] QWN 1, applied

R v Bowen [1997] 2 Qd R 379; [1996] QCA 479, applied

R v Holcroft [1997] 2 Qd R 392; [1996] QCA 478, applied

R v Holley, ex parte Attorney-General [1997] 2 Qd R 407; [1996] QCA 480, applied

R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, considered

R v Muller [2006] 2 Qd R 126; [2005] QCA 417, applied

R v Stevens [2006] QCA 361, cited

Director of Public Prosecutions (Queensland) for the respondent

[1] KEANE JA: I have had the advantage of reading the reasons of Holmes JA. I agree with her Honour's reasons and the orders proposed by her Honour.

[2] HOLMES JA: On 8 May 2006, the applicant was convicted, on pleas of guilty, of one count of possessing methylamphetamine, one count of supplying methylamphetamine and one count of receiving stolen property. On the counts of supply and possession of methylamphetamine, he was placed on a two year probation order, with an additional requirement that he submit to random drug testing. In respect of the receiving count, he was sentenced to 12 months imprisonment, with an order suspending that sentence forthwith for an operational period of two years.

[3] During the currency of that operational period, while he was also on probation, the applicant was twice convicted of further offences: possessing tainted property over a period between 29 May and 15 June 2006, and possessing implements, used or about to be used in relation to an offence, on 18 May 2007. The former charge involved the discovery in his motor vehicle of a stolen engine; as to the latter, police found in a vehicle in which he was sitting a lock-picking tool and a door-opening tool, for possession of which the applicant could give no excuse. In consequence of those breaches, he was committed to the sentencing court to be dealt with for both the breach of the probation order and the breach of the suspended sentence.

[4] On 17 September 2008, the learned judge who had originally sentenced the applicant revoked the probation order; sentenced him on each of the supply and possession charges to serve 12 months in custody, to be followed by two years probation; and ordered that he serve the whole of the 12 months suspended imprisonment. His Honour set a parole release date at 16 September 2009. The applicant now seeks to appeal against those orders. His counsel, Ms Sharp, did not seek to contend that the learned judge erred in not forming an opinion that it would be unjust to impose the whole of the suspended term. Rather, the proposed ground of appeal was that the combined effect of activating the suspended sentence and the re-sentencing consequent on the breach of probation was to impose on the applicant a sentence which was manifestly excessive.

[5] The advancing of that ground necessitates some consideration of the nature of the applicant's right to seek leave to appeal against the activation of the suspended sentence for receiving. (The re-sentencing for the supply and possession offences under s 121 of the Penalties and Sentences Act 1992 does not raise the same questions). Section 147 of the Penalties and Sentences Act sets out how an offender who breaches a suspended sentence is to be dealt with:

"(1) A court mentioned in section 146(2), (2A), (4) or (6) that deals with the offender for the suspended imprisonment may -

(i) that the operational period be extended for not longer than 1 year; or

(ii) if the operational period has expired when the court is dealing with the offender -

(A) that the offender's term of imprisonment be further suspended; and

(B) that the offender be subject to a further stated operational period of not longer than 1 year during which the offender must not commit another offence punishable by imprisonment if the offender is to avoid being dealt with under section 146 for the suspended imprisonment; or

(b) order the offender to serve the whole of the suspended imprisonment; or

(c) order the offender to serve the part of the suspended

(2) The court must make an order under subsection (1)(b) unless it is of the opinion that it would be unjust to do so.

(3) In deciding whether it would be unjust to order the offender to serve the whole of the suspended imprisonment the court must have regard to -

(a) whether the subsequent offence is trivial having

(i) the nature of the offence and the circumstances in

(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

(iii) the antecedents and any criminal history of the

prisoner has made a genuine effort at rehabilitation since the original sentence was imposed, including, for example -

(A) the relative length of any period of good behaviour during the operational period; and

(D) anything mentioned in a pre-sentence report; and

(vi) the degree to which the offender has reverted to

(vii) the motivation for the subsequent offence; and

(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

(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."

[6] Section 668D(1)(c) of the Criminal Code permits an appeal "with the leave of the Court, against the sentence passed on the person's conviction". "Sentence" is defined in s 668(1) as including:

"any order made by the court of trial on conviction of a person with reference to the person's person or property..."

At first glance there would seem to be some question as to whether those provisions can apply to a circumstance in which, well after conviction, an order is made activating a sentence originally suspended at the time of conviction. However, the words "on conviction" in s 668 have been given a wide construction; in R v Blow[1] the Court of Criminal Appeal said of them:

"those words do not mean 'at the time of conviction'; they mean 'in consequence of conviction'."

[7] Blow concerned the imposition of the balance of a suspended sentence upon breach of a recognizance, pursuant to s 19(7) of the Criminal Code as it then stood. That sub-section enabled the court to order that part or the whole of a sentence be suspended upon an offender entering into a recognizance; upon a subsequent breach of the recognizance, it could order that he be committed to prison to undergo the outstanding part of the suspended sentence. The Court of Criminal Appeal characterised that process as the imposition of sentence on conviction in two stages rather than one. The order committing the offender to prison was made in consequence of his conviction and thus amounted to a sentence within the meaning of s 668. An appeal by leave was open to the applicant against the order that he be imprisoned for the balance of his sentence, on the ground that it was manifestly excessive.

[8] In R v Marriner[2], the Blow construction of "on conviction" was expressly adopted in a different context, that of an attempt to re-open a sentence under s 188(1)(c) of the Penalties and Sentences Act. McPherson JA elaborated:

"It is plainly not every order following chronologically after conviction that amounts to a 'sentence' on conviction within the meaning of the definition in s 668(1). There must be a relationship of some discernible kind between the two in order to make it an order or 'sentence' in the defined sense."[3]

[9] I have not been able to find any similar reference to Blow in decisions of this Court dealing with s 147, but the same broad approach to what constitutes an "order made ... on conviction", and thus a sentence, seems to have been applied, at least implicitly: sentences activated under s 147 have consistently been regarded as giving rise to appeals by leave under s 668D(1)(c). However, the view taken by this Court of the nature of the resulting appeal has differed from that in Blow, presumably because the nature of the discretion to be exercised is different. Whereas under s 19(7) of the Criminal Code, the court had a general discretion as to whether it would forfeit the recognizance and imprison the offender for the balance of his sentence, s 147(2) requires the court to order that the offender serve the whole of the suspended imprisonment "unless it is of the opinion that it would be unjust to do so". If that opinion is not formed, no discretion arises (except, perhaps, in relation to the setting of a parole release or eligibility date, a topic to which I will return later).

[10] In a series of judgments delivered on the same occasion, R v Holcroft[4], R v Bowen[5] and R v Holley, ex parte Attorney-General[6], this Court considered the exercise of forming an opinion under s 147(2), and, in turn, the approach of an appeal court to the resulting decision. In R v Bowen, Fryberg J described the formation of the opinion in s 147(2) as "akin" to the exercise of a judicial discretion; Davies JA characterised it as the formation of a judgment with a discretionary element. Either way, the discretion was limited by the requirement to have regard to the criteria set out in s 147(3), failure to have regard to which would warrant appellate intervention. All of the members of the court were in agreement that the issue of whether the original sentence was excessive was irrelevant, both in the formation of the s 147(2) opinion and on appeal from a s 147(1)(b) order. On the other hand, the majority pointed out, the length of the suspended sentence was something to be considered in deciding whether it would be unjust to make the order under s 147(1)(b).

[11] R v Holley and R v Holcroft similarly make it clear that, in considering an appeal against a s 147(1)(b) order, the relevant question is whether there was error in the formation of the opinion that requiring the offender to serve the suspended sentence is not unjust. In light of those decisions, in R v Muller[7], Williams JA (dissenting, but not on this point) observed that there could be no basis, in an appeal from an order under s 147(1)(b) or (c), for contending that requiring the offender to serve the original sentence resulted in the sentence being "manifestly excessive".

[12] Having regard to those authorities, it is, I think, clear that an appeal from an order under s 147(1)(b) is not an occasion for revisiting the original sentence; nor, more particularly, for entertaining arguments about whether it is manifestly excessive. However, since those cases were decided, there has been this addition to the steps to be taken in considering what order ought to be made under s 147(1): ss 160-160H of the Penalties and Sentences Act operate[8] in certain circumstances so as to require the setting of a parole release date, or to enable or require the setting of a parole eligibility date, as the case may be. Thus, in this case, s 160B(3) required the setting of a parole release date; that date was set at the end of the sentence to be served.

[13] The question is whether the decision to set the parole release date should be regarded as an aspect of the decision to be made under s 147(2); that is, something to be taken into account in deciding whether it would be unjust to order the offender to serve the whole of the suspended imprisonment. (Section 147(3) specifies the factors which must be taken into account, but that list is not an exhaustive list: see R v Stevens[9]). Or, alternatively, should it be treated as a separate and independent exercise of discretion, arising once a decision is made that it is not unjust to require the offender to serve the suspended imprisonment?

[14] The first alternative provides, in my view, the better answer. What must be borne in mind is that a judge acting under s 147 is not re-sentencing an offender, but dealing with him for a breach of suspended sentence. The first step in that process is to consider whether it is unjust to make an order that the offender serve the whole of the suspended imprisonment. Necessarily, in deciding whether it is unjust to so order, relevant considerations will be that a parole release date or parole eligibility date is to be set, and when it is to be set. Decisions as to parole cannot sensibly be made as a separate exercise of discretion; one does not decide that it is not unjust to order the offender to serve the whole of the suspended imprisonment and only then turn to consideration of a parole date. Rather, the judgment required by s 147(2) must be made allowing for the prospective parole date, among other relevant factors. That process is appropriately regarded as entailing a single exercise of discretionary judgment; and the appeal from an order made under s 147(1)(b) should be regarded as correspondingly confined to an examination of that discretionary judgment.

[15] That situation does not alter simply because the order is made in combination with others. In this case, the court was urged to consider whether the effect of all the orders made was to create a sentence which was manifestly excessive. But it is important, in my view, to recognise that his Honour had two functions to perform: the first, to deal with the applicant for the suspended imprisonment under s 147, and the second, having revoked the probation order, to re-sentence on the supply and possession charges. While it may not be possible to divorce the effects of two such processes where one has practical relevance to how the other will operate, they are distinct functions, subject to different considerations in their exercise, and, consequently, in how they fall to be considered on appeal.

[16] It follows that it is not proper in this case simply to consider whether the net result is manifestly excessive. Rather, this Court should now consider whether there was any error in the formation of the discretionary judgment that it was not unjust to impose the whole of the period of suspended imprisonment, bearing in mind the contemplated setting of the parole release date; and whether the sentences imposed in respect of the offences of supply and possession were manifestly excessive. In neither case, of course, does one ignore the fact and effect, if any, of the other process.

[17] Turning to the merits of the application for leave to appeal, the receiving count on which the applicant was sentenced in May 2006 arose from the execution of a search warrant at the applicant's unit, where police found a large quantity of stolen property, including cameras, mobile phones, electrical equipment, jewellery, watches, a wallet, and personal papers. The police estimated the value of the property at $1,500. In addition, they found half a gram of extremely low purity methylamphetamine; it contained .036 g of the drug. It was accepted that it was for personal use. The applicant admitted providing methylamphetamine ("a couple of points") in exchange for stolen property; that admission gave rise to the supply charge.

[18] At the time he was originally sentenced, the applicant was 40 years of age. His fiancée was pregnant, and they had the care of his two children from a former relationship. His counsel submitted that it was about 16 months since the applicant had last used methylamphetamines. He had a long criminal history dating back to 1989, the entries on which, for the most part, are offences of possession of dangerous drugs, dealt with summarily, interspersed with minor dishonesty offences. The exception was a number of charges in 1996 involving stealing, unlawful use of a motor vehicle and receiving for which the applicant received a sentence of imprisonment of three years and six months. (In addition, it seems that a New South Wales criminal history and a Victorian criminal history were tendered at the original sentence, but those were not before the learned judge when he came to consider what action should be taken in respect of the breaches of the suspended sentence and of the probation order).

[19] On the breach hearing, the Crown tendered a report from a probation and parole officer in relation to the applicant's conduct on the probation order. He was described as demonstrating "an extremely poor response to supervision", having failed to report on numerous occasions or to make appointments with the Alcohol, Tobacco and Other Drug Service. On 19 occasions, urine analysis returned positive results for amphetamine and methylamphetamine. The probation officer expressed the view that the applicant was not a suitable candidate for further community-based supervision.

[20] The applicant's counsel on the breach proceedings submitted that his client still struggled with methylamphetamine addiction. His wife was soon to give birth to his third child. The motor vehicle engine which was the subject of the tainted property charge had, it was said, been in his possession for some time before he was actually sentenced in the Supreme Court on the drugs charges; the other offence was relatively minor and was committed well into the term of the operational period.

[21] The learned judge noted that at the original sentence hearing he had been told that the applicant had ceased to use drugs and was in a stable relationship; the former appeared to be untrue. While his Honour was making these remarks, the applicant spoke directly to him, saying that although his counsel had said at the original sentence he was "clean for about 16 months", the truth was that he had been "clean for about 12 to 14 months". His Honour noted that assertion, but went on to say that the applicant had not stayed clean but had reverted to drug use. In sentencing the applicant originally, he had relied on the assertion that the applicant would refrain from drug use because he feared the loss of his relationship with his fiancée if he did otherwise; but plainly that incentive had not worked.

[22] The learned judge said he regarded the conviction for possession of tainted property as relatively trivial, but the possession of implements which could be used in house break-ins fell into a different category. Reviewing the factors to be taken into account under s 147(3) of the Penalties and Sentences Act, his Honour described the applicant's criminal history as "lengthy and deplorable" and noted that he had reverted to, and indeed persisted in, criminal conduct, in using and possessing methylamphetamine. The applicant's response to supervision had been poor, and the original offences were serious. There was, his Honour said, nothing put before him which would lead him to a conclusion that it would be unjust to order the applicant to serve the whole of the 12 month period of imprisonment. He went on to re-sentence the applicant to imprisonment on the possession and supply charges, followed by a further two years of probation, in order, he said, to ensure the supervision of the applicant on his release from custody.

[23] Here, it was contended that the order made under s 147 was "manifestly excessive", but for the reasons already given, that cannot provide a proper basis of appeal. The only live question in that regard is whether error has been shown in the formation of the opinion, as a matter of discretionary judgment, that it was not unjust to require the suspended imprisonment to be served, in circumstances where what was contemplated by the learned judge was service of the whole 12 months without amelioration by early release (since he proposed to set the required parole release at the end of the term).

[24] In written submissions, counsel for the applicant here further contended that the sentencing judge had placed too much weight on the applicant's positive urine analysis results and had erred in assuming, or placed too much weight on the assumption, that the applicant had misled the court in asserting that he had overcome his drug addiction. Strictly speaking, the applicant had conceded himself that what had been put to the learned judge on sentencing as to the extent of his abstinence was not true; but in any event his Honour made it plain that his real concern was not with what had been said on the sentence but with the applicant's reversion to drug use, which removed the rationale for the non-custodial sentence originally imposed. His Honour was entitled to take into account urine analysis results in considering that factor (reversion to criminal conduct), which was specified as a relevant consideration under s 147(3)(a)(vi). In the circumstances of the case, it plainly was a most important aspect. The suggested specific errors in his Honour's approach were not, in my view, made out. His Honour's findings in respect of other factors under s 147(3) were not challenged.

[25] Nor, more generally, do I think that anything put to the learned judge at the breach hearing compelled a view that to impose the suspended imprisonment was unjust. Of the s 147(3) factors, the only ones relied on by counsel at that hearing were: that the subsequent offences were trivial having regard to their nature (s 147(3)(a)(i)); that the possession of implements offence had been committed well into the operational period (attempting, presumably, to suggest a period of good behaviour for the purposes of s 147(3)(a)(v)(A)); and, arguably, that there was a special circumstance arising since the original sentence was imposed (s 147(3)(c)), in that the applicant's wife was soon to give birth. It is impossible to say that his Honour's view, based on his findings as to the s 147(3) factors, that it was not unjust to order the applicant to serve the whole of the suspended imprisonment (with the contemplated parole release date at the end of the sentence) was not a sound exercise of discretionary judgment. I would not interfere with his Honour's order in that regard.

[26] Turning to the sentence imposed on the supply and possession counts, it seems from his Honour's reasons that he was strongly influenced by the desirability of a long period of probation after the applicant's release from custody. Under s 92(1)(b) of the Penalties and Sentences Act, that could be achieved by the applicant's release on probation at the end of his term of imprisonment; the difficulty was that the term of imprisonment for receiving was 12 months. If the terms imposed in respect of the supply and possession charges were any less, the applicant could not be released to probation at their end. Consequently, before a probation order could be made, it was necessary that the applicant be imprisoned for 12 months in respect of those charges also.

[27] I think that there is some real doubt that further probation had much prospect in this case of achieving the desired aim, particularly given the probation officer's report. More importantly, I do not think the offences of supply and possession warranted sentences of 12 months imprisonment (without alleviation by parole or suspension), followed by a further two years probation. The possession was of a minimal amount of methylamphetamine, about one thirtieth of a gram, for personal use, while the supply was based purely on the applicant's admission of having provided a "couple of points". The sentences imposed in respect of those counts were, in my respectful view, manifestly excessive.

[28] I would give leave to appeal, allow the appeal, and vary the sentences for the possession and supply counts, reducing them in each case to four months imprisonment and deleting the order for probation. Given that the applicant will remain in custody notwithstanding the expiration of those sentences, the probation order is not practicable; nor do I think its absence is likely to make a significant difference to the applicant's prospects of rehabilitation. As I have said, I would not interfere with the imposition of the suspended imprisonment of 12 months on the receiving count.

[29] FRASER JA: I agree with the orders proposed by Holmes JA and her Honour's reasons for those orders.

[1] [1963] QWN 1.

[2] [2006] QCA 32; [2007] 1 Qd R 179.

[4] [1996] QCA 478; [1997] 2 Qd R 392.

[5] [1996] QCA 479; [1997] 2 Qd R 379.

[6] [1996] QCA 480; [1997] 2 Qd R 407.

[7] [2006] 2 Qd R 126 at 133.

[8] From 28 August 2006, when amendments introduced by the Corrective Services Act 2006 took effect.

[9] [2006] QCA 361.