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[2009] QCA 297
appellant. Application for leave to appeal granted; appeal allowed; the sentencing judge’s orders set aside. The applicant was ordered to serve the whole of the concurrent suspended sentences of two years, 18...
3 cited instruments linked from this judgment.
Summerlin had received suspended prison terms for drug offences and then committed further, comparatively minor offences during the suspension period. The sentencing judge activated almost all of the longest term but left other concurrent suspended terms in place. The Court of Appeal considered that combination difficult to understand and potentially capable of exposing Summerlin to cumulative imprisonment. It set the orders aside and substituted full activation of all concurrent terms, with parole from the same day. The Court did not decide whether s 147 permitted a sentencing judge to leave a suspended term untouched.
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In R v Summerlin [2009] QCA 297, the Queensland Court of Appeal considered the orders made after Lawrence Roderick Summerlin committed further offences while subject to wholly suspended sentences. The Court comprised Keane and Fraser JJA and Jones J. Keane JA and Jones J agreed with Fraser JA’s reasons and proposed orders ([1], [26]).
The original sentences were imposed on 23 March 2007 after Summerlin pleaded guilty to five drug offences. They included supply and possession offences involving MDMA and other drugs. The sentences were concurrent, wholly suspended terms of two years, 18 months and 12 months, with an operational period of four years, due to expire on 23 March 2011 ([2]). Fraser JA described the original offending as involving 115 MDMA tablets, as well as quantities of cocaine, methylamphetamine and cannabis ([5]).
The sentencing judge had identified substantial mitigating circumstances. Summerlin was 20 at the time of the original offending, had no previous convictions, had taken steps to address his drug problems, had family support, and had sought medical and psychiatric treatment. The judge accepted that imprisonment was required for deterrence but imposed suspended terms ([6]).
During the operational period, Summerlin committed one offence of receiving stolen property and two offences of wilful damage. He was convicted in the Magistrates Court on 24 September 2008 and fined $300. The sentencing judge later described the circumstances as involving a stolen fire extinguisher, which Summerlin used to damage a post box and public telephone while affected by alcohol ([3], [7]).
On 13 March 2009, the sentencing judge ordered Summerlin to serve 23 months of the two-year suspended sentences imposed for counts 1 and 2, with a parole release date on the day the sentence was imposed. The judge made no order altering the suspended 18-month and 12-month sentences for the remaining counts, saying they would be left “as they stand” ([3]). The Court of Appeal ultimately replaced that arrangement. It ordered service of the whole of the concurrent suspended terms, declared that the sentence commenced on 13 March 2009, and fixed that date as the parole release date ([25]).
The appeal raised two different questions. The first was whether s 147 of the Penalties and Sentences Act 1992 (Qld) allowed the sentencing judge to leave some suspended sentences unchanged. The second was whether the orders actually made were a proper exercise of the sentencing discretion.
Section 147(1), as reproduced in the judgment, provides several possible orders, including extending the operational period, ordering service of the whole suspended term, or ordering service of part. Section 147(2) states that the court must order service of the whole term unless it considers that would be unjust. Section 147(3) sets out matters relevant to the injustice assessment, including the nature and circumstances of the subsequent offence, its seriousness relative to the consequence of activation, the offender’s antecedents and rehabilitation efforts, the seriousness of the original offence, and any special circumstances arising since the original sentence ([8]).
Both parties argued that leaving the suspended terms for counts 3–5 unaltered was not authorised. Fraser JA considered competing readings of s 147: one in which the court must choose among the statutory options, and another in which “may” confers a discretion that might permit no alteration in an unusual case. Because there was no contradictor on that issue, he expressly left it for another case ([16]–[17]). The appeal was therefore not resolved by deciding that statutory question.
Instead, the decisive problem was the structure and possible effect of the orders. Activating 23 months of the two-year terms, while leaving the other suspended terms in force, was difficult to reconcile. More importantly, the arrangement could lead to cumulative imprisonment even though the original terms were concurrent. Fraser JA illustrated one possible scenario: if a further imprisonable offence occurred in the 40 days between the end of the 23-month parole period and the end of the original operational period, the apparent effect might be a requirement to serve the remaining suspended 18-month term after satisfactorily completing 23 months on parole ([18]).
The judgment also discussed possible interactions between parole and the remaining suspended sentences under ss 209 and 211 of the Corrective Services Act 2006 (Qld). It did not decide how those provisions would apply. Fraser JA noted that the sentencing judge had not sought submissions on those questions and said it was unnecessary to resolve them ([19]–[20]). The point was that the orders introduced complexity and uncertainty without a factual reason that justified it.
The Court then exercised the sentencing discretion afresh. It recognised that the subsequent offences were comparatively minor and different in kind from the original drug offending. It also accepted that the sentencing judge had properly considered rehabilitation and the applicant’s need for support. But it took account of the fact that the new offences occurred while Summerlin was affected by alcohol and despite the earlier warning that he faced suspended imprisonment if he reoffended ([21]).
On balance, Fraser JA considered that full activation, combined with immediate parole, would strengthen supervision and assistance while giving Summerlin a strong incentive not to breach parole or reoffend. The Court acknowledged that this approach exposed him to additional risks, because conduct that might result in imprisonment following parole breach might not have the same consequence under a suspended sentence. It considered those risks justified on the facts ([22]–[23]).
The judgment applies the statutory framework in s 147 as it stood for the case. It does not establish a definitive answer to the question whether that section permits a court to make no order altering an existing suspended sentence. The judgment expressly reserves that issue for a case in which it needs to be decided and where the issue is properly contested ([16]–[17]). It would therefore overstate Summerlin to treat it as resolving that statutory construction question.
The decision does establish how the Court approached the particular sentencing discretion before it. It treated the amount of suspended imprisonment activated and the timing of parole release as a “single exercise of discretionary judgment”, citing R v Norden [2009] QCA 42 at [12]–[16] ([21]). It also demonstrates that appellate concern may arise from the combined practical operation of orders, not only from the isolated length of an activated term. Here, the potential mismatch between concurrent original terms and the possible cumulative effect of the later arrangement contributed to the conclusion that the discretion had miscarried ([18]–[20]).
The judgment does not purport to amend s 147 or announce a general rule that full activation and immediate parole will be appropriate whenever an offender commits further offences during an operational period. Its decision is tied to the competing considerations and facts before it. The Court relied on the nature of the further offending, the circumstances in which it occurred, the prior warning, the original offending, and the prospect of rehabilitation and supervision ([21]–[23]).
Nor does the judgment determine how ss 209 and 211 of the Corrective Services Act 2006 (Qld) operate in every interaction between parole and a remaining suspended sentence. It identifies possible problems and expressly leaves their resolution open ([19]–[20]).
At [17], Fraser JA wrote: “if the orders were within power, the sentencing judge's exercise of discretion miscarried.” In plain English, even assuming the sentencing judge had legal power to make the orders, the way that power was used was still flawed. This is significant because it separates the unresolved question of statutory authority from the ground on which the appeal was allowed.
At [20], Fraser JA referred to the “complexity and uncertain effect” of the orders and their “apparent potential” to expose Summerlin to cumulative imprisonment despite the concurrent original terms. In plain English, the orders risked producing a result that was difficult to predict and could be harsher in operation than the structure of the original sentence suggested. The Court considered that consequence unjustified by the facts.
At [21], the Court described activation and parole timing as a “single exercise of discretionary judgment”. In plain English, the court should assess how much of a suspended term will be activated together with when parole will begin, rather than treating those matters as wholly separate decisions. Fraser JA cited R v Norden for that proposition.
At [22], Fraser JA said the case “calls out for the strengthening of the sentencing regime” through full activation, “tempered by an order for immediate release on parole”. This was the case-specific balance the Court reached: activate all concurrent terms, while releasing Summerlin on parole immediately. The reasons explain that the Court saw parole supervision as a source of assistance and as an incentive to comply.
At [24], the Court recorded that it had raised the possibility that its proposed result might be more severe than the sentencing judge’s orders. The applicant was given the opportunity to consider that possibility and nevertheless wished to pursue the appeal. The passage explains the procedural context for making orders that were not simply a reduction of the sentence.
The decision is most directly relevant to cases involving suspended prison terms, subsequent offending during the operational period, and a court’s choice about whether to activate all or part of the suspended term. It is particularly instructive where the sentencing orders address several originally concurrent terms in different ways, creating uncertainty about how they interact.
The judgment suggests that the practical effect of the complete order matters. In Summerlin, the concern was not only that 23 months of a 24-month term had been activated. It was that other suspended terms remained in place and might later operate cumulatively, despite the original terms being concurrent ([18]–[20]). Accordingly, this case may be relevant where the structure of an activation order creates a possible mismatch between the original sentence and the consequences of later offending.
The statutory assessment under s 147(3) is also relevant where a court must consider whether activation of the whole term would be unjust. The section, as quoted in the judgment, identifies a broad range of factors, including the seriousness and circumstances of the new offence, the original offence, the offender’s history, rehabilitation efforts, and special circumstances ([8]). In Summerlin, the Court acknowledged the relatively minor and different character of the later offences, but also considered the alcohol-related context and the warning given at the original sentencing ([21]).
The case should not be read as setting a universal outcome for minor reoffending, or as establishing that immediate parole must accompany activation. The result reflected this applicant’s circumstances and the Court’s assessment of the competing purposes of supervision, rehabilitation, deterrence and compliance ([21]–[23]).
The supplied judgment identifies earlier authorities, but it contains no information about how later courts treated R v Summerlin. On the material provided, it is not possible to say whether a later court followed, distinguished, limited or reconsidered its reasoning. No subsequent cases or legal sources have been supplied, so this section cannot give a source-grounded account of later treatment.
Within Summerlin itself, Fraser JA cites R v Norden [2009] QCA 42 for the proposition that deciding how much of a suspended sentence to activate and when parole begins is a single discretionary exercise ([21]). The judgment also cites R v Muller [2006] 2 Qd R 126 in framing the application as raising whether the s 147 power was exercised by making an unjust order ([4]). R v Clewes [2008] QCA 46 is mentioned in the discussion of whether s 147(1) could permit an order with minimal practical effect, but the Court does not resolve the construction issue ([16]). R v Marsanic [2008] QCA 219 and R v Sartori [2006] QCA 284 appear in the parties’ submissions concerning comparable sentencing decisions ([13]). The Court also cites Neal v The Queen [1982] HCA 55 in explaining why the possibility of a more severe substituted outcome was raised with the applicant ([24]).
These references show the authorities discussed in the reasons, not subsequent treatment of Summerlin. Any account of later judicial treatment would require later judgments not included in the supplied material.
The main open question is the construction of s 147(1) and (2). Does a court dealing with suspended imprisonment have to select one of the options listed in s 147(1), or can it leave the original sentence unchanged in a case where that is considered appropriate? Fraser JA outlined both possible readings and expressly declined to decide between them because there was no contradictor ([16]–[17]).
A second open question concerns the interaction between parole and remaining suspended terms. The judgment describes possible outcomes under ss 209 and 211 of the Corrective Services Act 2006 (Qld), including whether time spent on parole would count towards more than one activated term. It states that the sentencing judge had not sought submissions on these points and that the Court did not need to determine them ([19]–[20]). They remain questions raised by the judgment, not findings about how those provisions necessarily operate.
The judgment also leaves room for debate about how to balance the risk of further imprisonment following parole breach against the benefits of more extensive supervision. The Court recognised that some conduct capable of prompting a parole consequence might not result in imprisonment under a suspended sentence, but considered the additional risk justified on the circumstances before it ([23]). The reasons do not provide a general formula for weighing that risk in other cases.
Finally, the supplied source does not establish how subsequent courts have applied or interpreted Summerlin. Any conclusion about its later precedential treatment would need to be checked against later decisions and the applicable legislation.
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Director of Public Prosecutions (Queensland) for the respondent
[1] KEANE JA: I have had the advantage of reading the reasons for judgment prepared by Fraser JA. I agree with those reasons and with the orders proposed by his Honour.
[2] FRASER JA: On 23 March 2007 the applicant was convicted on his pleas of guilty of five offences: supply of a second schedule drug (count 1), possession of a second schedule drug in excess of the third schedule amount (count 2), possession of a first schedule drug (counts 3 & 4), and possession of a second schedule drug (count 5). He was sentenced to wholly suspended (concurrent) terms of imprisonment of two years (counts 1 and 2), 18 months (count 3), and 12 months (counts 4 and 5), with an operational period of four years. The expiry date of the operational period is 23 March 2011.
[3] The applicant committed further offences during that operational period. On 24 September 2008 he was convicted of one offence of receiving stolen property and two offences of wilful damage. He was dealt with in the Magistrates Court where he was fined $300. The applicant was then dealt with in the trial division of this Court in relation to the consequences of those further offences for the suspended sentences. On 13 March 2009 the sentencing judge ordered that the applicant serve 23 months of the suspended imprisonment of two years for counts 1 and 2, with a parole release date fixed on the day the sentence was imposed, 13 March 2009. In relation to the suspended imprisonment of 18 months for count 3 and 12 months for counts 4 and 5, the sentencing judge said: "I make no order. In other words, I will leave them as they stand."
[4] The applicant has applied for leave to appeal against sentence on the ground that it is "manifestly excessive". This should be taken as raising the question whether the sentencing judge erred in exercising the power conferred by s 147 of the Penalties and Sentences Act 1992 (Qld) by making an unjust order: R v Muller [2006] 2 Qd R 126 at [22].
Factual and statutory context and the sentence proceedings
[5] In relation to the original offences for which the applicant was sentenced on 23 March 2007, the applicant was in the course of handing over MDMA tablets to a person acting covertly as an intermediary for police officers when the police officers identified themselves. The applicant fled on foot. He was captured after a chase. He was found to have 20 MDMA tablets. A search of his unit produced a further 90 MDMA tablets and other tablet fragments. Other tablets were found in a safe in his unit. Altogether there were 115 MDMA tablets with a powder weight of 29.17 grams and a pure weight of MDMA of 7.166 grams. Cocaine powder weighing 4.979 grams with 1.593 grams of pure drug and methylamphetamine powder weighing 0.468 grams with 0.12 grams of pure drug were also found in the safe, and 135.7 grams of cannabis sativa were found in the kitchen.
[6] The applicant declined to participate in an interview. After a full hand up committal he was committed for sentence to the Supreme Court. The sentencing judge found that the applicant had been financing his drug habit by selling MDMA to other people. That was serious conduct even when done by an addict, but there was unusually persuasive evidence in favour of mitigation. At the time of offending the applicant was only 20. He had no previous convictions. He had made significant efforts to try to overcome his drug problems. He had stopped associating with people who might encourage his problems. He had sought medical help. He had the full support of his family, to whose home he had returned to live. He suffered medical and psychiatric symptoms for which he had undertaken appropriate treatment. The sentencing judge told the applicant that, "provided you continue to attend and to be counselled and to follow the medical advice, you will be able to restore your life." The sentencing judge was persuaded, on balance, to accept the submission made by the applicant's solicitor that the imprisonment necessarily imposed for its deterrent effect on others should be imposed by way of suspended sentences.
[7] In the same judge's subsequent sentencing remarks on 13 March 2009, the judge noted that the circumstances of the new offences appeared to have been that the applicant fell in with other young people; in the car in which they were travelling there was a stolen fire extinguisher; and the applicant took that extinguisher and sprayed it onto a post box and a public telephone, thereby damaging them. The applicant committed those offences when he was affected by alcohol.
[8] It is convenient now to set out the statutory provision which empowered the sentencing judge to make the orders which are challenged in this application. Section 147 of the Penalties and Sentences Act 1992 (Qld) provides:
"147 Power of court mentioned in s 146
(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 imprisonment that the court orders.
(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 regard to -
(i) the nature of the offence and the circumstances in which it was committed; and
(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 offender; and
(iv) the prevalence of the original and subsequent offences; and
(v) anything that satisfies the court that 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 criminal conduct of any kind; and
(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.
(4) If the court is of the opinion mentioned in subsection (2), it must state its reasons.
original offence means the offence for which a term of imprisonment has been suspended under section 144(1).
original sentence means the sentence imposed for the original offence.
subsequent offence means the offence committed during -
(a) the operational period of an order made under section 144 for the original offence; or
(b) an extension of the operational period ordered under section 147(1)(a)(i) for the original offence; or
(c) a further stated operational period ordered under section 147(1)(a)(ii)(B) for the original offence."
[9] The Crown submitted that a term of imprisonment ought to be imposed but that the applicant should be given the benefit of an immediate parole release date. At a later point in the argument the Crown contended for a short term of imprisonment. The Crown argued that imprisonment with immediate parole would provide the applicant with appropriate support and supervision. The applicant's solicitor submitted that the judge should instead extend the operational period of the suspended imprisonment by one year.
[10] The sentencing judge referred to the evidence that the applicant had made continuing efforts at rehabilitation, including his attendance at the Health Department's alcohol and drug service where he received counselling. A psychologist gave a generally favourable report about the applicant's developing maturity and skills in managing his mental health condition. A psychiatrist gave a generally favourable report, with some reservations about the risk of relapses, concerning the applicant's residual schizophrenia and other mental health issues.
[11] The sentencing judge concluded that it would be unjust in all of the circumstances to order that the applicant serve the whole of the suspended imprisonment. The applicant should instead serve part of the suspended imprisonment and be granted immediate parole. The judge thought that the applicant would not be disadvantaged by adoption of that alternative but that it would be to his advantage. He would have the benefit of supervision by a parole officer who could provide another resource for the support and help of the applicant. If the applicant offended again whilst on parole there would be adverse consequences, but such further re-offending would probably result in actual imprisonment if the applicant was instead subject to a suspended sentence. The sentencing judge also noted that if there were only a suspended sentence no action could be taken against the applicant unless he committed an offence punishable by imprisonment, whereas under the regime preferred by the sentencing judge the applicant was exposed to a penalty if he committed any offence at all. The sentencing judge considered that this strengthening of the regime applicable to the applicant was appropriate.
[12] The applicant's counsel argued that, even with the benefit of immediate parole, activation of as much as 23 months out of the suspended imprisonment of 24 months was unjust. He argued that the activation of all but one month was practically inconsistent with the sentencing judge's conclusion that it was unjust to activate the whole of the suspended imprisonment. The applicant's counsel stressed the minor nature of the offending. He argued that it did not deserve a 23 month gaol term, with the potential for 23 months actual imprisonment if the applicant breached any condition of his parole which was thought sufficient to justify its revocation. The applicant's counsel argued that the sentencing judge may have overlooked s 147(3)(a)(ii). Whilst that provision was not directly relevant because the whole of the imprisonment was not activated, it was suggested that the sentencing judge erred by failing to have regard to the lack of proportionality between the culpability of the applicant for the subsequent offending and the consequence of activating 23 out of 24 months of the suspended imprisonment. The applicant's counsel argued that appropriate reconciliation of the desirable aim of maximising the length of helpful supervision for the applicant on parole, with the proportionality mentioned in s 147(3)(a)(ii) suggested that the appropriate range of sentences was six to 12 months imprisonment with immediate parole.
[13] The respondent's counsel argued that the sentence was not unjust and would have been lenient if imposed at the original hearing, although it was justified by the mitigating factors. Counsel referred to R v Marsanic [2008] QCA 219, which discussed R v Sartori [2006] QCA 284 and other comparable decisions.
[14] The submissions for the applicant and the respondent coincided in urging the court to vary the orders in relation to counts 3 - 5 to ensure that the orders in relation to counts 1 and 2 were the operative sentencing orders. The applicant's counsel endorsed the submission made for the respondent that the sentencing judge's designed omission to alter the sentences for counts 3 - 5 imposed on 23 March 2007 was both inappropriate and not authorised by s 147 of the Penalties and Sentences Act 1992 (Qld).
[15] The applicant and respondent proposed different methods of curing that suggested deficiency in the sentence. The applicant's counsel argued that the orders should be varied so that in respect of all counts the applicant is ordered to serve six months of the suspended sentence with immediate parole. The respondent argued that the orders should be varied so that the applicant is required to serve the terms of 12 months and 18 months for counts 3 - 5 concurrently with 23 months of the year term for counts 1 - 2, with immediate parole commencing on the day of sentence (13 March 2009).
[16] The argument that the judge's order preserving the suspended sentence for counts 3 - 5 was not authorised is that in s 147(1) the word "may", when read in the context of the expressed alternatives in the following paragraphs and in light of the mandatory effect of s 147(2), should be construed as obliging the court to make a choice amongst those alternatives. A possible contrary view is that where a sentencing judge decides under s 147(2) that it would be unjust to order the applicant to serve the whole of a period of suspended imprisonment the mandatory effect of s 147(2) is displaced; that there is then insufficient reason to depart from the ordinary meaning of the word "may" in the introductory words of s 147(1) that it confers a discretionary power (Acts Interpretation Act 1954, s 32CA); and that the construction propounded for both parties here would produce the perhaps surprising result that, although the court is empowered to make orders having only a minimal effect on the original sentence (including an order under s 147(1)(c) that the offender serve part of the suspended imprisonment until "the rising of the Court": see R v Clewes [2008] QCA 46), the court could not decline to alter the original sentence where unusual facts of a particular case dictated that as the appropriate course.
[17] Because there was no contradictor in relation to this issue I prefer to leave its resolution for a case in which it is necessary to decide it. In my respectful opinion, if the orders were within power, the sentencing judge's exercise of discretion miscarried.
[18] It is not easy to reconcile the sentencing judge's decision to leave suspended only one month of the suspended two years imprisonment with the decision also to leave intact the whole of the suspended imprisonment of 18 months. Furthermore, and as both parties joined in submitting, under the combination of orders made by the sentencing judge the potential arises for the applicant inappropriately to be exposed to cumulative periods of imprisonment even though the original sentence involved only concurrent imprisonment. That arises most clearly in a hypothetical scenario in which the applicant committed an offence punishable by imprisonment in the 40 day period between the end of the 23 month parole period (13 February 2011) and the end of the suspended 18 months imprisonment (23 March 2011). In that scenario the apparent effect of the sentencing judge's orders would be that after the applicant had satisfactorily completed 23 months on parole he might also be required to serve the whole of the suspended 18 months imprisonment.
[19] A different question might arise if the applicant committed an offence punishable by imprisonment between 13 March 2009 and 13 February 2011, when the applicant would be subject both to parole and to the suspended 18 months imprisonment. In that scenario, the parole order might be cancelled under s 209 of the Corrective Services Act 2006 (Qld). Section 211 of that Act would then seem to require that the period of time served on parole up until that point count as time served under the activated two year period of imprisonment for counts 1 and 2, but it may not require that period to count as time served in relation to the suspended imprisonment for counts 3 - 5. The applicant might thus be exposed to imprisonment for the whole of the suspended 18 month term either (wholly or partly) concurrently with or cumulatively upon the imprisonment consequential upon the breach of parole.
[20] The sentencing judge did not seek submissions about or refer to those issues of statutory construction and it is not necessary now to attempt to decide how they should be resolved. In my respectful opinion, the complexity and uncertain effect of the orders, and especially the apparent potential for the applicant to be exposed to cumulative imprisonment even though the original terms were wholly concurrent, were not justified by any feature of the facts. It follows that the orders should be set aside and this Court must exercise the sentencing discretion afresh.
[21] The decision by a sentencing court of how much of a suspended sentence to activate and when within that activated term of imprisonment to set a parole release date is "a single exercise of discretionary judgment": R v Norden [2009] QCA 42 per Holmes JA at [12] - [16]. Reference to the sentencing remarks on 13 March 2009 demonstrates that, with the exception of the matters I have identified, the sentencing judge took into account the relevant considerations, including in particular the different nature of, and the relative lack of seriousness in, the applicant's subsequent offending. The judge in terms accepted the submission made on behalf of the applicant that the subsequent offences were, by comparison with his original offending, both of a different type and relatively minor, but the sentencing judge was, with respect, plainly correct in also taking into account the factors favouring activation of the suspended imprisonment, including that the subsequent offences seemed to have occurred at a time when the applicant was affected by alcohol and even though it had been very clearly explained to him at the original sentence proceeding that he was under the threat of suspended imprisonment.
[22] Taking all of the circumstances into account this is, in my respectful opinion, a case which calls out for the strengthening of the sentencing regime by activation of the whole of each of the concurrent terms of imprisonment, tempered by an order for immediate release on parole. I am persuaded that it is not unjust to activate the whole of the concurrent terms of imprisonment. In my opinion that is the just order, accompanied, as I have said, by immediate parole. There remain real grounds for hoping that the applicant can escape a downward spiral into further offending and imprisonment, and this approach effectively maximises the supervision and assistance available to the applicant on parole whilst at the same time providing a powerful incentive for the applicant not to breach the conditions of his parole or otherwise to re-offend.
[23] I accept the submission made for the applicant that this exposes the applicant to some additional risks, particularly because some conduct which might reasonably be viewed by the authorities as a breach of parole calling for imprisonment would not result in imprisonment under a suspended sentence; but that is justified by the same factors which motivated the sentencing judge to activate all but one month of the longest concurrent term whilst also preserving in force the suspended 18 months imprisonment.
[24] Because activation of the whole of the concurrent terms with immediate release on parole arguably involves a more severe punishment than was imposed by the orders made by the sentencing judge (although that perhaps may be doubted when the combined practical effect of those orders is borne in mind), the Court foreshadowed this possible result of the proposed appeal at the hearing of the application: see Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305. The applicant's counsel obtained instructions and informed the Court that the applicant nevertheless wished to pursue his appeal.
[25] I would grant the application for leave to appeal and allow the appeal against the orders made on 13 March 2009. I would set aside the orders made by the sentencing judge and instead make the following orders:
(a) The applicant is ordered to serve the whole of the concurrent suspended sentences of 2 years, 18 months and 12 months imposed on 23 March 2007.
(b) Declare that that sentence commenced on 13 March 2009.
(c) Fix 13 March 2009 as the parole release date under that sentence.
[26] JONES J: I respectfully agree with the reasons given by Fraser JA and with the orders he proposes.
R
Summerlin
(1982) 149 CLR 305
Application for leave to appeal granted; appeal allowed; the sentencing judge’s orders set aside. The applicant was ordered to serve the whole of the concurrent suspended sentences of two years, 18 months and 12 months, commencing 13 March 2009, with 13 March 2009 fixed as the parole release date.