R v Rasmussen; ex parte A-G

[1]

Director of Public Prosecutions (Queensland) for the appellant

[2]

[1] McMURDO P: This matter first came before the Court of Appeal on 14 March 2000 as an Attorney-General's appeal against a sentence imposed upon Rasmussen in the Toowoomba Magistrates Court. On 24 March 2000, the Court allowed the appeal against sentence, set aside the sentence imposed in the Magistrates Court and instead sentenced Rasmussen to a term of imprisonment of one year to be served by way of an intensive correction order on the usual conditions set out in s 114 Penalties and Sentences Act 1992 ("the Act") and with additional conditions involving restitution and residential requirements.

[3]

[2] Rasmussen was brought before the Magistrates Court at Toowoomba on 2 June 2000 for breach of that intensive correction order and for other matters. As the intensive correction order was imposed by the Court of Appeal, the magistrate queried whether he had power to deal with the breach. The police prosecutor and Rasmussen's solicitor submitted that the magistrate had no power to deal with the breach. The magistrate concluded:

[4]

"I am satisfied the breach is proven pursuant to the provisions of the Penalties and Sentences Act. You will be re-committed to the next criminal sittings of the Court of Appeal to be held at Brisbane. And you will be remanded in custody in relation to that matter."

[5]

[3] An intensive correction order is a community based order[1] to which the provisions of Part 7 of the Act apply. The alleged breach was particularised in a bench charge sheet which claimed Rasmussen committed a further offence, notably on the very day the order was made by the Court of Appeal. Although no section of the Act is referred to in the bench charge sheet, the charge seems to have been brought under s 123(1).

[6]

[4] If a Magistrates Court convicts the offender of an offence against s 123(1),[2] that court may deal with the offender under s 123 and s 125(2). If the community based order was imposed by a Magistrates Court, that court may also deal with the offender for the original offence: s 125(4)(a). But if the community based order was made by a District Court or Supreme Court, a magistrate who convicts the offender may remit the matter to the original sentencing court: s 125(4)(b).[3]

[7]

[5] Regardless of whether the community based order was the sentence of the Court of Appeal or the sentence of the primary court, the magistrate plainly had jurisdiction to deal with Rasmussen under s 123 or s 125(2) of the Act. But Rasmussen was sentenced by the magistrate on 2 June 2000 to an aggregate term of imprisonment of 16 months for fresh offences and for breaches of other community based orders imposed by Magistrates Courts. In those circumstances, it may have been inappropriate to allow the intensive correction order to continue[4] and preferable to re-sentence Rasmussen for the original offence. The magistrate could only do this if the intensive correction order made by the Court of Appeal was an order "made by a Magistrates Court".[5]

[8]

[6] Although there must have been previous cases where community based orders imposed by the Court of Appeal were breached, this instance appears to be the first where a magistrate has remitted the matter to the Court of Appeal. Until now, the criminal justice system seems to have operated on the understanding that in such circumstances the substituted or varied sentence imposed by the Court of Appeal becomes the sentence of the primary court[6] for the purposes of Division 2 of Part 7 of the Act.

[9]

[7] Neither Mr Chowdhury for the respondent nor Mr Meredith for the Crown, who have made helpful oral and written submissions, suggest that there is any reason to depart from this accepted practice which they urge should be maintained.

[10]

[8] Section 8 of the Act offers some support for this approach. That section sets out an inclusive definition of the reference in the Act to "the court that made a community based order". It includes:

[11]

"(a) if the order was made by the Supreme Court - any sittings of the Supreme Court in its criminal jurisdiction at any place in Queensland; ... ."

[12]

[9] As this section refers only to "the Supreme Court" and "the Supreme Court in its criminal jurisdiction at any place in Queensland" it seems probable that "the court that made a community based order" under the Act was not intended to include the Court of Appeal.[7]

[13]

[10] It is unlikely that the legislature intended to require that breached community based orders imposed by the Court of Appeal after successful appeals against sentence from the Magistrates Courts or District Court must routinely be dealt with by a Supreme Court judge, let alone the Court of Appeal.

[14]

[11] The definition of "sentence" in the Act [8] also seems generally consistent with the Court of Appeal's substituted or varied sentence becoming the sentence imposed after conviction by the primary court.

[15]

[12] Significantly, such an approach is also consistent with the ordinary meaning of s 668E(3) Criminal Code:

[16]

"On an appeal against sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, ... ." (my emphasis)

[17]

[13] A similar form of words is used in s 668F(1), (2), and (3). Both s 668E and s 668F were incorporated into the Criminal Code in 1913.[9]

[18]

[14] But this was an Attorney-General's appeal against sentence brought under s 669A Criminal Code. That section, introduced in 1975,[10] relevantly provides:

[19]

"(1) The Attorney-General may appeal to the Court against any sentence pronounced by -

[20]

(b) a court of summary jurisdiction in a case where an indictable offence is dealt with summarily by that court,

[21]

and the Court may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper." (my emphasis)

[22]

[15] The different words used in s 669A Criminal Code not only reflect changes in drafting practices from 1913 to 1975[11] but also emphasise the court's unfettered discretion under this section: cf s 668E(3) Criminal Code, R v Cornale[12] and Poulton v Welling.[13] In any case, as Mackenzie J points out in his reasons, the use of the word "vary" tends to support the conclusion that any varied or substituted sentence imposed under s 669A Criminal Code becomes the sentence of the primary court. Furthermore, it is highly improbable that, for the purposes of Division 2 of Part 7 of the Act, the legislature intended sentences varied or substituted after a successful Attorney-General's appeal be those of the Court of Appeal whilst sentences imposed after other successful sentence appeals be those of the primary sentencing court. I would not interpret s 669A Criminal Code as requiring such a peculiar result.

[23]

[16] I have not found any reason to justify a departure from the apparently accepted practice of treating sentences imposed by the Court of Appeal as the sentence of the primary court for the purposes of Division 2 of Part 7 of the Act, a practice generally supported by the relevant legislation.

[24]

[17] The magistrate had the power to deal with Rasmussen under ss 123, 125(2) and 125(4)(a) of the Act. This matter should be remitted to the Magistrates Court to be dealt with according to law.

[25]

[18] PINCUS JA: I have had the advantage of reading the President's reasons. The question is whether the intensive correction order which was made by the Court of Appeal must for the purposes of Part 7 of the Penalties and Sentences Act 1992 be deemed to have been made by the Magistrates Court. If that is so, then the Magistrates Court may amend or revoke the Court of Appeal's order under s 120(1) of the Act and may, if it revokes the order, re-sentence the offender for the original offence, under s 121(1), and may, if it convicts the offender of an offence under s 123(1), deal with the offender for the original offence, under s 125(4).

[26]

[19] The Act does not say that a community based order made on appeal is for the purposes of Part 7 of the Act deemed to have been made by the sentencing court from which the appeal has been brought. Section 8 of the Act, as the President points out, is of assistance on this question, for its terms suggest that a reference to the court that made a community based order is to a court sitting in original, not appellate, jurisdiction. That is, the assumption on which s 8 is drawn appears to be that a reference to the court that made a community based order is not to be taken to refer to the Court of Appeal, which would not ordinarily be said to hold "sittings ... in its criminal jurisdiction ...".

[27]

[20] But the content of s 8 provides a less than conclusive consideration in favour of the view that the Court of Appeal cannot be a "court that made a community based order". Its wording is consistent with the tenet which the past practice of the Court of Appeal and that of the Court of Criminal Appeal support, that at least for some purposes sentencing orders made by the Court of Appeal are treated as if made by the court which imposed the original sentence; that is not necessarily a strong enough consideration to give the Magistrates Court the powers mentioned above. I have noted that paras (a) to (d) of s 8(1) of the Act are introduced by the word "includes". The language of the section is consistent with the idea that its intention was merely to make it clear that if, for example, the original order is made by a Cairns magistrate that does not mean that the proceeding for breach has to go to a Cairns magistrate.

[28]

[21] The critical question is whether where a community based order is in fact made by the Court of Appeal, not by a magistrate, an application to deal with a person who breaches the order may be heard by a magistrate. Jurisdiction is expressly vested in such a magistrate if the Magistrates Court made the original order. Although the inconvenience of holding otherwise is manifest, it does not appear to me that there is any strong enough ground to hold that the expression "the court that made" the order means the Magistrates Court. I should add that, in my view, the answer given to the question just discussed depends essentially on the extent to which this Court is at liberty to strain language chosen by the legislature, in order to achieve a result whose main claim to acceptance is convenience, rather than the legislative text.

[29]

[22] A second question which should be dealt with is whether the court that made the order is in the present case simply the Supreme Court, or the Court of Appeal. The terms of the Supreme Court of Queensland Act 1991, in its original form, gave better grounds for treating the Court of Appeal as an institution separate from the Supreme Court than do the present terms of the Act. Section 16 of the 1991 Act divides the Court into the office of Chief Justice and "2 divisions, namely, the Court of Appeal and the Trial Division". The Court of Appeal has separate jurisdiction (s 29), but all the judges of appeal may with the Chief Justice's consent sit as judges in the Trial Division (s 34). For some purposes the statute speaks of the Court of Appeal as a separate institution and that encourages the thought that the reference to the court that made the order in the present case is intended to be to the Court of Appeal.

[30]

[23] On the other hand, since the Court of Appeal is one of the divisions of the Supreme Court, there is reason for thinking that for the purposes of Part 7 of the Penalties and Sentences Act 1992 the court that made the order presently in question should be taken to be the Supreme Court. The decisive consideration in favour of the view just mentioned is that neither s 125 nor s 126 of the Penalties and Sentences Act 1992 contemplates community based orders made by the Court of Appeal; s 125 refers only to the possibility that such orders have been made by the Supreme Court or a District Court or Magistrates Court and s 126 contemplates orders being made by the Supreme Court or a District Court. My conclusion, then, is that the court that made the community based order presently in question was the Supreme Court of Queensland.

[31]

[24] It follows that the learned magistrate was, with respect, in error in purporting to commit Rasmussen "to the next criminal sittings of the Court of Appeal to be held at Brisbane" - quite apart from the difficulty that there is in reality no such thing as the next criminal sittings of the Court of Appeal. Another defect, to which the President has drawn attention, is that so far as the record shows the magistrate did not formally convict Rasmussen of an offence against s 123(1). He could exercise the power given by s 125(4)(b) to "commit the offender into custody to be brought before the sentencing court" only if he first convicted the offender of such an offence.

[32]

[25] In my opinion, the matter must be remitted to the Magistrates Court to be further dealt with, having regard to the reasons of this Court. The first point the Magistrates Court might have to consider is whether or not to convict the offender of an offence under s 123(1).

[33]

[26] I would set aside the order made by the learned magistrate and remit the matter to be further dealt with by the Magistrates Court.

[34]

[27] MACKENZIE J: On 24 March 2000 an Attorney-General's appeal was allowed against a sentence of 3 years probation and 100 hours community service for a series of offences of dishonesty committed by the respondent. The Court of Appeal ordered him to serve a sentence of 12 months imprisonment by intensive correction order.

[35]

[28] The respondent was brought before the Magistrates Court in Toowoomba by Bench Charge Sheet because he had committed a further offence, allegedly in breach of the intensive correction order. The Magistrate decided that the Magistrates Court did not have jurisdiction to deal with the respondent because the intensive correction order had been imposed by the Court of Appeal and committed him to the "next criminal sittings of the Court of Appeal to be held at Brisbane".

[36]

[29] Although it is not expressly stated on the Bench Charge Sheet, it appears that the proceedings were commenced under s 123 of the Penalties and Sentences Act 1992. The question is whether the Magistrate was correct in holding, as he was urged to do, that the Magistrates Court has no jurisdiction to deal with the alleged breach of the intensive correction order.

[37]

[30] Where a person is convicted of an offence under s 123 the Magistrates Court may deal with the offender in accordance with s 125(2), or for the original offence if the community based order was made in the Magistrates Court (s 125(4)). Where the order in respect of which the breach was committed was made by the Supreme Court or the District Court the Magistrate who convicts the person may remit the matter to the original sentencing court. Section 8(1) of the Penalties and Sentences Act provides that a reference in the Penalties and Sentences Act to the court that made a community based order "includes", if the order was made by a Supreme Court, any sittings of the Supreme Court in its criminal jurisdiction at any place in Queensland. It makes complementary provisions with respect to District Courts and Magistrates Courts.

[38]

[31] Section 8 is identical in principle to s10 of the Offenders Probation & Parole Act 1959 which made provision for probation and parole prior to the Penalties and Sentences Act and the Corrective Services Act 1988 coming into force.

[39]

[32] In my view the structure of s 8 does not support a conclusion that it is concerned with orders made by the Court of Appeal exercising its powers under ss668E(3) or s 669A(1) of the Code. Accordingly the question for decision is not governed by s 8. Nor does s 204 of the Penalties and Sentences Act have any bearing. It is a transitional provision, concerned with defining the kind of sentences that the Court of Appeal can impose. Where the original sentencing preceded the Penalties and Sentences Act coming into force but the appeal was heard after that date the consequences for the offender would be the same as if both events had occurred before that date. It is therefore necessary to examine and construe the provisions of the Criminal Code relating to appeals against sentence and of the Penalties and Sentences Act and the Corrective Services Act, insofar as they impinge on the question.

[40]

[33] Section 668E(3) of the Code provides that on an appeal against sentence by a convicted person the court shall "quash the sentence and pass such other sentence in substitution therefor" if it is of opinion that some other sentence is warranted in law and should have been passed. In Hancock v Prison Commissioners (1960) 1 QB 117, 125 Winn J addressed an argument that where the Court of Criminal Appeal had set aside a ten year sentence and passed sentence of 5 years in substitution, the ten year sentence was thereby rendered null and void, and set aside as if it had never been. He said:

[41]

"There would be persuasive force in that argument, and I would feel very well disposed to accept it, had I not found in the very wording of section 4(3) of the Act the provision that, wherever the Court of Criminal Appeal does find itself of the opinion that a sentence passed has been too severe, it 'shall ... 'quash' that sentence and 'pass such other sentence ... as 'they' (the court) 'think ought to have been passed in substitution therefor.' When one finds those words in the section and considers the context in which they are used, and the subject matter to which those words must be applied, one is inevitably driven to the conclusion that the word 'quash' is not there used in the sense in which the Shorter Oxford English Dictionary tells me that it often is used, namely, 'to annul,' 'make null or void,' but is used in the less drastic meaning that the former sentence is by the order of the court rendered null and void at the moment when the Court of Criminal Appeal decides to substitute for it a different sentence, so as to make that earlier sentence null and void and of no effect for the future from that point of time onwards, but not so as to render it null and void ab initio, namely, as from the date when it was passed."

[42]

[34] It is implicit in this that, subject to any provision affecting the time at which the order of the appellate court begins to operate, it operates from the time it is made, and the order for which it is substituted ceases only for the future. Subdivision 6 of Division 5 of Part 2 of the Corrective Services Act regulates questions relating to time spent in custody pending determination of an appeal. Both the prisoner and the court that determines the appeal have the capacity to influence the outcome on such issues. Section 671G of the Code is displaced to the extent provided for in s 75(3) of the Corrective Services Act.

[43]

[35] An Attorney-General's appeal is governed by s 669A of the Code which stripped to its essentials provides that:

[44]

"The Attorney-General may appeal ... against any sentence of ... the court of trial ... and the Court (of Appeal) may ... vary the sentence and impose such sentence as to the Court (of Appeal) seems proper".

[45]

[36] On an Attorney-General's appeal the power is to vary the sentence of the court of trial. The word "vary" ordinarily implies that the essential character of something remains the same, even though it may be changed in some respect or respects. One of the definitions in the Shorter Oxford English Dictionary is "to introduce changes or alterations into something".

[46]

[37] An appeal against sentence is an appeal only against that part of the proceedings in the court of trial in which the consequences of the finding of guilt made by the court at trial are determined. That court's decision to act on such finding (convict) is not challenged in an appeal against sentence. It is only the act of the court of trial in attaching penal consequences to the finding of guilt which may be appealed against. The Queen v Tonks and Goss [1963] VicRp 19; (1963) VR 121 and The Queen v Jerome and McMahon (1964) QdR 603 are authority for the proposition that so far as the Code is concerned a plea of guilty does not of itself constitute a conviction. Gibbs J observed in The Queen v Jerome and McMahon, 604:

[47]

"In the present case the court has done nothing upon the plea of guilty to indicate a determination of the question of guilt. The court might do that by imposing a punishment; by discharging a prisoner on his own recognisances; by releasing him upon parole; or even perhaps by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained."

[48]

[38] In the context of discussing autrefois convict Lord Upjohn said in S v Recorder of Manchester [1971] AC 481, 506:

[49]

"The primary meaning of the word 'conviction' denotes the judicial determination of a case; it is a judgment which involves two matters, a finding of guilt or the acceptance of a plea of guilty followed by sentence. Until there is such a judicial determination the case is not concluded, the court is not functus officio and a plea of autrefois convict cannot be entertained.

[50]

But the word 'conviction' is used also in a secondary sense, that is, to express a verdict of guilty or acceptance of a plea of guilty before the adjudication which is only completed by sentence. Not only is the word used frequently in this sense in many judgments, but also in many places in statutes dealing with these matters."

[51]

[39] A "sentence" for the purposes of the Penalties and Sentences Act means any penalty or imprisonment ordered to be paid or served or any other order made by the court after an offender is convicted, whether or not a conviction is recorded (s 4). By virtue of s 7, for the purposes of ch 67 of the Criminal Code (which governs appeals), a sentence imposed under the Penalties and Sentences Act is taken to be a sentence imposed on conviction whether or not a conviction is recorded. Conviction and recording of the conviction are not the same. It is only that part of the proceedings in the court of trial that consists of the process of adjudication after acceptance of the finding of guilt resulting in the sentence being imposed which may be appealed against. The use of the concept that the Court of Appeal can "vary" the sentence and impose such sentence as to the court seems proper reflects that, but for the variation in sentence, the formal findings in the court of trial remain on foot.

[52]

[40] The record remains that of the court of trial even though in one respect it may have been varied by the Court of Appeal. In my view for the purposes of the Penalties and Sentences Act the court of trial remains the court which made the order, and that court may enforce the order as varied by the Court of Appeal (cf s 231 Justices Act 1886).

[53]

[41] In my opinion the Magistrates Court at Toowoomba had jurisdiction to deal with the matter. There was also no basis to remit the matter to the Court of Appeal. I would order that the matter be remitted to the Magistrate at Toowoomba to be dealt with according to law.

[54]

[1] Penalties and Sentences Act 1992, s 4.

[55]

[2] Here the magistrate found the breach proven but does not appear to have convicted Rasmussen: see s 125(1).

[56]

[3] See also s 125(5) and s 126.

[57]

[4] s 125(3).

[58]

[5] s 125(4)(a).

[59]

[6] This differs from the usual rule in civil matters: see Borthwick v The Elderslie Steamship Company [1905] KB 516, 521-522.

[60]

[7] The jurisdiction of the Court of Appeal is primarily appellate although it may exercise every jurisdiction or power of the Supreme Court: see s 29 and definition of "court", Schedule 2 Supreme Court of Queensland Act 1991.

[61]

[8] s 4, "any penalty or imprisonment ordered to be paid or served, or any other order made, by a court after an offender is convicted ...".

[62]

[11] See also s 14C, Acts Interpretation Act 1954.

[63]

[12] [1993] QCA 145; [1993] 2 QdR 294, 296.

[64]

[13] Appeal No 473 of 1994, 5 May 1995.

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