R v Stevens [1999] VSCA 173

8. As a result the applicant was, on 1 September 1999, brought before the judge who had passed the suspended sentence, to be dealt with pursuant to s.31 of the Sentencing Act 1991. The breaching offences were admitted and the applicant was convicted of breaching the order suspending the sentence and fined $300. He was represented by counsel, who put in five reports and made a lengthy submission in an attempt to persuade the judge that he should not restore the suspended sentence as required by s.31(5A) since he should form "the opinion that it would be unjust to do so in view of any exceptional circumstances which have arisen since the order suspending the sentence was made". But the judge was unpersuaded and accordingly he ordered that the sentence of three months' imprisonment be restored and served immediately.

11. Now the applicant wishes to appeal against that order. He has served something approaching one half of the sentence.

14. The material put before the judge on his behalf comprised a progress report from the community corrections officer dealing with the way in which he had complied with the intensive correction order, a report from a psychiatrist and reports from a general practitioner, a drug and alcohol service and the Salvation Army chaplain at the Dandenong Magistrates' Court. The community corrections officer said that the applicant's compliance and motivation in relation to the intensive correction order had been "above satisfactory". The psychiatrist, Dr Maloney, dealt with the history of drug abuse and expressed the opinion that the applicant was suffering from double depression, that is, a chronic dysthymia as a result of childhood sexual abuse with a major depressive illness that had been present for many years.

17. There are now five grounds of appeal. One of them, ground 4 - manifest excess - appears as the result of a reflex action, has not been argued and may be disregarded as inappropriate. Two of the grounds, numbered 2 and 3, are really different ways of saying that the judge should have formed the opinion mentioned in s.31(5A). One of them - ground 1 - alleges error of law as regards the meaning of "exceptional circumstances". The last of the grounds, ground 5, says that by his admonition given when passing the suspended sentence the judge disabled himself from dealing properly with the proceedings for breach which give rise to the present application.

20. I mention this ground, although it has been, I think, implicitly abandoned, in order to discourage the taking of points of this kind in the future. This is the passage complained of in the last ground:

"In effect what I am doing here is I am - through your counsel in effect you have made a promise to me that you will not breach the law in the next two years, and I am making a promise to you, and my promise to you is that if you break your promise I will keep my promise and I will send you to gaol for three months, because that is what you have got hanging over your head. The cell door is open, and if you want to go in it will be up to you; do you understand? PRISONER: Yes, I do. HIS HONOUR: And it will close behind you and you will be there for three months."

This is not the first time a warning given by a judge about the consequences of re-offending has been put forward by the offender as disqualifying the judge from dealing with the offender again, and I suppose it will not be the last. Courts have to be realistic. All experienced sentencing judges, when passing a lenient sentence which will be subject to reconsideration if the prisoner fails to do what is required, have had occasion to give a strong warning that leniency cannot be expected if advantage is not taken of the opportunity given. Even in the days of common law bonds, before statutory provisions began to take over the field, judges were telling offenders that they would be severely dealt with if they breached their bond. A carefully drawn admonition mirroring the words of some statute is likely to be less effective. We hope that harsh words will bring home to a prisoner the need to behave, but no reasonable person would say we have abjured the realm of discretion.

25. Moreover, the provision governing the matter here - s.31(5A) - was in force at the time of the original sentences and it imposes a regime under which the room for discretion is much reduced.

28. So much for ground 5, which is really an allegation of ostensible bias with regard to a judge who was not invited to disqualify himself.

31. As to ground 1, which alleges error concerning the meaning of "exceptional circumstances", Mr Tehan argued that a remark made by the judge - indeed, remarks made by the judge - during the plea about what Chernov, J.A. said in R. v. McLachlan [1999] VSCA 122 at [27] showed that the judge acted on the basis that compliance with an intensive correction order made in respect of the breaching offences could not, either alone or in combination with other facts, constitute "exceptional circumstances". Having regard to what appears in the discussion on the plea as a whole, and in the reasons given by the judge at the conclusion of that discussion, I am not persuaded that his Honour took the view that is now attributed to him. This ground must, I think, fail. I should add that my failure to discuss the soundness of the view unsuccessfully attributed to the judge by the applicant's counsel is not to be taken as expressing any view by implication on the soundness of such a view. I am reluctant to see a jurisprudence of "exceptional circumstances" develop for the purposes of sub-s.(5A). I will, however, offer the obvious observation that we must be careful to ensure that the sub-section is not treated as if it did not contain the adjective "exceptional" but simply spoke of "circumstances", and couple with it the obvious observation that the "exceptional circumstances" must have arisen since the suspended sentence was passed. The second point is not without importance in the present case having regard to some of the matters relied on before the judge.

34. Grounds 2 and 3 attack the judge's failure to form the opinion mentioned in sub-s.(5A). Mr Tehan cited quite a number of authorities to us, none of which I need mention. I shall not refer to all his contentions by any means, although I have, of course, had regard to them all. He relied on the applicant's psychiatric condition. He also relied on the circumstances of the breaching offences and the applicant's apparent condition at the time of them, the applicant's conduct since the intensive correction order, the treatment which he has received since then for his condition, the time that elapsed between the breaching offences and the hearing on 1 September 1999 (a matter not relied on below) and the 18 days spent in custody between the commission of those offences and the intensive correction order. (The magistrate presumably had regard to those 18 days in passing sentence.) Some of the matters relied on by Mr Tehan were not circumstances that had arisen since the imposition of the suspended sentence, quite apart from the requirement that the circumstances be exceptional. I am not persuaded that the judge fell into any error in failing to form the opinion mentioned in sub-s.(5A). Indeed, I would myself have also failed to form that opinion.