R v P A S [1998] VSCA 128

5. On 21 February 1996 he was sentenced by a County Court judge to two-and-a-half years' imprisonment on each of the counts of rape and 12 months' imprisonment on each of the other two counts. After orders for cumulation, the total effective sentence imposed by the court was one of three-and-a-half years and his Honour fixed a minimum period of two years pursuant to s.11(1) of the Sentencing Act.

8. Pursuant to s.28 of the Sentencing Act 1991, as it then stood, his Honour wholly suspended service of the sentence upon conditions. He did so because he was satisfied that the applicant was both drug and alcohol addicted and that these addictions contributed to the offences committed by him. He was also satisfied that the applicant was in need of treatment. The conditions which his Honour fixed were those made mandatory by the statute, namely: (a) that the applicant undergo drug and alcohol treatment at a suitable treatment centre for two years, and Moreland Hall was named as the appropriate centre; (b) that for the same period he abstain from alcohol and drugs; and (c) that during the same two-year period he submit to testing as directed. Section 28 of the Sentencing Act itself subjected the applicant to the requirement that he comply with the treatment orders and otherwise not commit any offence punishable by imprisonment during the period of suspension if he was to avoid being dealt with pursuant to s.31 of that Act. His Honour said he was prepared to take this unusual course because of the evidence before him which suggested that the behaviour of the applicant, being of a violent kind towards his estranged wife, was out of character, also because the wife gave evidence in his favour and, further, because in his Honour's view the behaviour was the product of alcohol and drug precipitance which induced the applicant to lose self-control for a short period, following which he was remorseful and fully co-operative with the authorities.

11. It would seem that the applicant chose not to repay the trust which the court had placed in him. In July 1996, that is, only five months after the sentence had been imposed, the applicant committed offences of a violent kind when a taxi driver refused to accept him as a passenger. The applicant lost control, damaged the taxi and assaulted its female passenger. It is clear that his loss of control on this occasion was again due to alcohol consumption. He was charged with offences of wilful damage and assault, charges for which he was convicted in November 1997 by the Melbourne Magistrates' Court, where he was sentenced to a total of seven months' imprisonment.

14. These latter events resulted in the applicant being again brought before the County Court on 29 April of this year pursuant to an application under s.31 of the Sentencing Act alleging breach of the s.28 order which had been made in February 1996. The breaches alleged were both the commission of the offences in July 1996 and a failure to comply with the conditions imposed by the court and contained in the s.28 order. By the time the matter came before the court in April of this year, s.28 had been repealed by the provisions of the Sentencing and Other Acts (Amendment) Act of September 1997. However, the provisions of s.31 relating to breach of previously imposed s.28 orders still continued in force (s.118(4) of Act No.48 of 1997). In so far as they are relevant, the provisions of s.31 are as follows:

"(2) If at any time while the order suspending a sentence of imprisonment under section 28 is in force or within the period of 24 months after the expiry of that order it appears to a prescribed person, or a member of a prescribed class of persons, that the offender -

(a) while the order was in force committed another offence punishable by imprisonment; or

(b) during the treatment period failed without reasonable excuse to comply with any condition attached to the order -

he ... may apply in the prescribed form to the court which sentenced the offender for the making of an order under this section."

"(5) If on the hearing of an application under this section the court is satisfied ... by the admission of the offender that the offender has during the relevant period referred to in sub-section (1) or (2) committed another offence punishable by imprisonment or failed without reasonable excuse to comply with any condition attached under section 28 (as the case requires) it may -

(a) restore the sentence ... held in suspense and order the offender to serve it; or

(b) restore part of the sentence ... held in suspense and order the offender to serve it; or

(c) in the case of a wholly suspended sentence, extend the operational period or the treatment period (as the case requires) to a date not later than 12 months after the date of the order; or

(d) make no order with respect to the suspended sentence -

"(6) If a court orders an offender to serve a term of imprisonment that had been held in suspense, the term must, unless the court otherwise orders, be served -

(b) concurrently with any other term of imprisonment previously imposed on the offender by that or any other court."

"(7) A court must make an order under sub-section (5)(a) unless it is of the opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was imposed, including the facts of any subsequent offence, and if it is of that opinion the court must state its reasons."

33. In support of the s.31 application the Crown put material before his Honour relating to the commission of the breaching offences in July 1996 and also the nature of the applicant's compliance or non-compliance with the treatment orders which had been imposed. On the hearing before his Honour, the applicant conceded that he had committed the breaching offences in July 1996.

36. It must, of course, be recalled that his Honour was being called upon to deal with the s.31 application more than two years after he had imposed the original orders and nearly two years after the breaching offences had occurred. Not only had the legislation changed, but so also, not surprisingly, had the circumstances of the applicant. He was by then back with his estranged wife, with whom he had had a child, and had settled into employment, all of which had had a beneficial effect upon his drug and drinking habits. This reclamation, of course, ceased in the form in which it was continuing when, in November 1997, he was sent to gaol for the breaching offence, but it was clear from the material before his Honour that his improvement continued whilst he was there.

39. Counsel who appeared for the applicant before his Honour, whilst recognising that some portion of the suspended sentence should be ordered to be served, submitted that it would be "unjust" within the meaning of s.31(7) to order that the whole of the suspended sentence be restored, in view of all the circumstances which had arisen since that sentence had been imposed. It was further put to his Honour that the offences committed in breach of the order had been the result of frustration born from the applicant's retrenchment from work and the fact that his wife had just lost their first child. His wife, who again gave evidence on the s.31 application, verified these facts. During the course of the plea hearing the learned judge was asked by counsel for the applicant to recognise what were described as "the valiant efforts" which the applicant had made to reclaim himself over the preceding two years and, when asked by the learned judge what choice he had other than to impose the sentence which had originally been imposed, responded:

"To impose part of it immediately and part to be suspended".

43. This, of course, was not an option open under s.31(5) of the Sentencing Act. The judge appears to have been drawn into the misconception because he said:

"I have no power to suspend a term which is above three years."

47. This appears to have been an allusion to the court's powers under the amended s.27 of the Sentencing Act rather than to its powers under s.31. Counsel then appears to have referred to s.31 because he said:

"Under sub-section (5)(b) of s.31 there is provision that a part of the sentence will be restored" -

"But s.28 suspensions no longer exist. They have gone. That might have been the case if s.28 was still open but it is not."

53. Counsel then referred the learned judge to the transitional provisions contained in s.118 of the Sentencing and Other Acts (Amendment) Act 1997 and submitted that it was still open to the court to deal with a breach of a s.28 order made before the commencement of that Act pursuant to the provisions of s.31 as it had existed before that commencement. His Honour persisted in his observation that s.27(2), as amended by the 1997 Act, did not permit suspension unless the total effective sentence was three years or less. Counsel again referred his Honour to s.31 of the Sentencing Act and said, inter alia, that the court had power "to restore part of the sentence" and that the applicant "ought to be dealt with as the sentencing provision stood at the time of the breach rather than now". In response to that submission his Honour said:

"Even if that was so, I'd have to take into account firstly that he is serving a term of imprisonment and, secondly, the machinery for s.28 orders, if not non-existent now, is certainly winding down. The only orders that remain in existence are those prior to their abolition, but the main point is that he is undergoing a term of imprisonment with a s.28 programme ... . How are they going to carry out the programme with someone in custody?"

57. On this application, Mr Tehan, Q.C., who appeared for the applicant (I note that he was not counsel for the applicant below), submitted that the exchanges between the applicant's counsel and the sentencing judge to which I have referred - exchanges which I note occurred immediately before sentence was passed - demonstrated that the learned judge was labouring under a fundamental misapprehension as to the court's powers on an application under s.31, which powers are encapsulated in sub-ss.(5), (6) and (7) of that section and enable the court, upon being satisfied that the breaching offence or conduct had been committed, to restore only a part of the sentence held in suspense under a s.28 order if it is of the opinion that it would be unjust in all of the circumstances to restore the whole of the sentence. Mr Tehan contended that these powers were in no way inhibited by the abolition of s.28 orders by Act 48 of 1997, nor by the fact that, at the time when the court was called upon to act under s.31, the applicant was undergoing a term of imprisonment. He further contended that the learned judge had imported the misapprehensions as to the extent of his powers into his sentencing remarks. In the course of those remarks his Honour noted that, although the applicant's compliance with the treatment orders had not been good, there were difficulties which made "perfect compliance" awkward to achieve, and he said that "if that had been the only breach" he "might well have been able to take a different view than the one that seems to me to be required of me now".

60. His Honour went on to note that the breaching offence, which he described as "a stupid and vicious incident" occurring only five months after the making of the s.28 order, was "by far the most significant way in which the bond was breached". His Honour reminded the applicant of the warning which he had given him at the time when he made the s.28 order to the effect that if he failed to comply with that order he would be brought back and that "the ordinary course is that you will be required to serve the sentence of imprisonment" that was suspended. Having noted that the applicant had breached the order "in spectacular fashion", his Honour went on:

"In my opinion I have really no option but to do what I said I was going to do on that previous occasion ... . What concerns these proceedings so far as you are concerned is the failure to comply with the condition of that bond and that is that you do not commit offences for the period that it was in force ... . It seems to me that I must do what I said I would do on that previous occasion. None of the options proposed by [counsel] are really feasible and in my opinion they are inappropriate in any event."

64. His Honour accordingly ordered that "the sentence then must be now served".

67. Mr Tehan submitted that, when these sentencing remarks are read in the context of the exchanges with counsel, they confirm that the learned judge had misconceived the powers which he had under s.31. In particular he referred to his Honour's final remarks that he had "no other option" than to wholly restore the sentence and that the options proposed by counsel were neither "feasible" nor "appropriate". These remarks, so Mr Tehan contended, suggested that his Honour had denied to himself the opportunity of fairly considering other options open to him under s.31(5) because of his continuing belief expressed to counsel that the machinery for operating s.28 orders was no longer available and that, in any event, it would be inappropriate to contemplate it whilst the applicant was still in prison. Mr Tehan submitted that the failure by the learned judge in his sentencing remarks to allude to the provisions of s.31(5) or (7) and his failure to refer to the facts upon which counsel relied to support his contention that it would be unjust to wholly restore the sentence served to reinforce his primary contention that his Honour had misconstrued the extent of his powers under the section.

70. Whilst Ms Carlin, in her able submissions to this Court, contended that his Honour's dismissal of counsel's submitted options as neither "feasible" nor "appropriate" did not demonstrate that he had misconstrued his powers under s.31, I am at the end of the day left with the uncomfortable feeling, engendered by the matters to which I have already referred, that the applicant's submissions in support of the "partial restoration order" were not properly considered because the judge had formed the view that the applicant's imprisonment upon conviction for the breaching offence, together with the intervening repeal of s.28, made it inappropriate to consider any option other than to order restoration of the whole of the sentence held in suspense. Apart from the fact that, at the time when the s.31 application was before his Honour, the treatment period which had been ordered in February 1996 had already expired, the fact that the applicant was in prison did not operate to remove from his Honour's consideration the whole panoply of options which were open to him under s.31(5). Nor, indeed, did the fact that the court's capacity to make s.28 orders had been removed by Act No.48 of 1997. The court's power to operate under s.31 remained untouched by virtue of the provisions of s.118 of the 1997 Act. It seems to me that, for the reasons given, his Honour was confusing the court's powers to make s.28 orders with the powers invested in it pursuant to s.31.

73. I am accordingly of the view that error has been demonstrated and that this Court should consider for itself whether, upon a review of all the circumstances which have arisen since the suspended sentence was imposed, including the fact of the breaching offence, it would be unjust to order that the whole of the sentence imposed in February 1996 should be restored. The nature of the circumstances which the Court is called upon to consider in performing its task were canvassed by this Court in Director of Public Prosecutions v. Newman [1998] 1 V.R. 715. As was pointed out in that case, the clear legislative policy expressed in s.31(7) is that the whole of the sentence suspended should be ordered to be served unless the circumstances would render such an order unjust. In this case I have formed the view that it would be unjust to restore the whole of the sentence, primarily because, for more than two years between the making of the orders in February 1996 and April 1998, the applicant's circumstances had demonstrated that he had, no doubt with the assistance of the programme which he had undergone, reclaimed himself to the point where, upon the evidence, he had brought his addictions under control, had resumed his marriage and had acquired family responsibilities. Although the Court, in exercising its powers under s.31, is not considering what is an appropriate punishment for the breaching offence (the applicant has already been punished for that), it is none the less an important factor to take into account any marked disproportion between the seriousness of that offence and the period of imprisonment that would be activated. It is true, as his Honour remarked, that the breaching offence was a "stupid and vicious act", for which the Magistrates' Court marked its displeasure by imposing a sentence of imprisonment. But the evidence indicated that it was attended by extenuating circumstances, particularly the circumstance that the applicant had been overborne by his wife's miscarriage and the loss of their first child. Without in any way seeking to deny its seriousness, it must none the less be kept in the perspective of the events which influenced it. In all the circumstances it is my view that it is unjust to wholly restore the period of imprisonment which had been imposed subject to suspension in February 1996. In my opinion it is appropriate to exercise the power given by s.31(5)(b) of the Act and restore only part of the sentence. For my own part, I would order that 18 months of that sentence should be served.

76. In cases of restoration of sentences suspended under s.28 orders it has been customary for the Court to fix a minimum term pursuant to s.11(2) of the Sentencing Act if it considers the fixing of such a term is appropriate (cf. Mineham, Court of Appeal, unreported, 19 February 1997). I have formed the conclusion that it is appropriate in all the circumstances of this case that a minimum of 12 months should be fixed.

79. If the other members of the Court agree, I would accordingly quash the sentence imposed below and order, pursuant to s.31(5)(b) of the Sentencing Act, that the applicant be ordered to serve a term of 18 months' imprisonment, being portion of the term suspended, and that a minimum term of 12 months be served before he becomes eligible for parole. Although such a sentence imposed by this Court is to be taken to have been imposed at the time of his Honour's sentence (s.118(6) of the Sentencing Act), it is desirable, for the sake of certainty, to declare the time already served pursuant to the sentence.

94. The formal order of the Court will be that the application for leave to appeal against sentence is allowed. The appeal is taken to have been instituted and heard instanter; it too is allowed.

97. The sentence imposed by the judge below is quashed. In lieu thereof this Court will order that the applicant serve a term of 18 months of the sentence suspended in February 1996 and that he serve a minimum term of 12 months before becoming eligible for parole.

100. We declare that the applicant has already served 209 days pursuant to the sentence that has been imposed and we direct that that declaration and its details be entered in the records of the Court.