R v Rasmussen; ex parte A-G [2000] QCA 91

Court of Appeal (Qld)|2000-03-24|Before: McPherson, JA, Moynihan SJA, Atkinson J, Judgment of the Court

[1] THE COURT: The Attorney-General appeals against sentences of three years probation on the usual conditions together with a condition that the respondent only reside at an address approved by a Community Corrections Officer. He was also ordered to make restitution in an amount of $4,356 within 12 months. The sentences were imposed in respect of a number of offences. The appellant contended for a sentence of imprisonment in the 12 to 18 months range.

[2] The offences were committed as a consequence of the respondent's drug dependency, specifically to generate funds to repay a debt of $16,000 to a person who had regularly supplied him with drugs. By the time the respondent came to be sentenced $820 remained unpaid.

[3] The respondent is a qualified electrician born on 4 May 1976. He elected for summary trial and pleaded guilty to six offences of committing an indictable offence whilst in a dwelling (s 419(4) and s 421(2) of the Criminal Code), to one offence of stealing (s 398 of the Criminal Code) and to twenty five offences of fraud (s 408C(1)(a)(i) and s 408C(1)(b) of the Criminal Code). The latter offences largely relate to the respondent's use of cheque forms.

[4] On the occasion of three of the offences, the respondent took advantage of access he had gained to premises to do work there as an electrician. On another occasion he stole from his flatmate. He also stole a number of cheque forms in relation to an account maintained by his own family and withdrew a total of $2,890 from it.

[5] The offences to which this appeal relates were committed from 12 February 1999 to 17 July 1999. On 26 June the respondent was questioned in respect of some of the early offences in the series. During the period, one on 27 May and another on 7 July, he was sentenced for a number of offences committed in 1998, again to support his drug habit. He nevertheless continued in the series of offences which led to the sentence, the subject of this appeal. Nine of the offences were committed in July 1999.

[6] The sentencing court had before it a pre-sentence report which, perhaps somewhat equivocally, supported probation and community service. It said, however, such things as:-

"there is arguably more benefit to the community by having the offender employed and paying restitution than having him imprisoned".

The report adverted to the risk of the applicant not severing his old drug use associations. It said concerns about further offending could be relieved by allocating him to outdoor projects where temptation presented no opportunity. It acknowledged that because of the respondent's drug problem and large number of offences he would:-

"initially be classified as a high risk offender, supervision may be his only chance of successfully re-integrating himself into society. It does seem as though there is still a degree of decency remaining in this offender, which prison may very well extinguish."

The respondent had the support of his family, particularly his father who apparently offered not only employment but to provide funds for restitution. It was submitted for the respondent that the prosecutor below did not raise imprisonment as an option and did not oppose a community based order. That does not preclude this court from considering imprisonment.

[7] The sentencing magistrate, apparently recognising that the respondent's effective release into the community would be jeopardised if he did not sever his connections with his drug associates, extracted an undertaking from the respondent to ask his father for funds to repay the balance of the debt to the dealer. The undertaking, together with a statement of the respondent's expectations that his father would provide the funds, was given.

[8] No consideration was given by the sentencing court as to whether an arrangement such as this might involve the respondent or his father in the commission of a criminal offence. It is unnecessary to determine that. In any event the arrangement reflected an improper exercise of the sentencing discretion. It is no part of a court's sentencing discretion to facilitate payment to a drug supplier in the expectation that that would have the consequence, however desirable, of severing the association between the respondent and his dealer.

[9] The sentencing discretion having miscarried, it is for this Court to consider the matter in the light of the proceedings below. Sentencing in cases such as this involves the often difficult striking of a balance between incompatible considerations such as the deterring of the defendant and others against the prospect of rehabilitation of the defendant.

[10] Mention has already been made of a pre-sentence report. The Court had before it a report from the Toowoomba Methadone Clinic stating that the respondent had registered on a methadone program on 22 September 1997 and had attended regular reviews but that "his behaviour remained intermittently chaotic". It went on that he presented "in crisis in June 1999 requesting review of his management plan because he realised he must moderate his behaviour and give the methadone therapy a chance to work". It is recorded that since then he had drastically reduced his use of drugs other than methadone (it seems he continued to use heroin when he could get it and methadone when he couldn't) and commenced on a gradual methadone dose reduction program and was planning to try naltrexone therapy when he went off methadone. His progress over the next two months (the report is dated 12 August 1999) was said to be satisfactory.

[11] The sentencing court saw the respondent. The sentence imposed reflected a view that the respondent may at last have been coming to terms and attempting to deal effectively with his drug habit and its consequences. A strongly supervised community based sentence was his last opportunity of rehabilitation. These views were open to the court.

[12] The number of offences, the protracted nature of the offences and the characteristics adverted to earlier have the consequence that the respondent should be sentenced to a term of imprisonment. The only issue is whether the order should be in the form of an intensive correction order. The case is a borderline one given the considerations just mentioned, the sentences below should be set aside. Instead of those sentences, the respondent should be sentenced to a term of imprisonment of one year to be served by way of an intensive correction order in the community and not in a prison. The order will contain the conditions set out in s 114 of the Penalties and Sentences Act 1992 (Qld). It will also contain a condition that the respondent make restitution in the amount of $4,356 within 12 months and a condition that the respondent only reside at an address approved in advance by a Community Corrections Officer.

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