- Unreported Judgment
COURT OF APPEAL
CA No 78 of 1998
EVERS, Daniel James Applicant
LEE J: This is an application for leave to appeal against a sentence imposed in the District Court at Brisbane on 13 March 1998 by re-activation, pursuant to s.147(1)(b) of the Penalties and Sentences Act, of the whole of the sentence suspended by that Court on 10 June 1994. As that sentence was for three years imprisonment less 178 days pre-sentence custody the effective term to serve amounted to about two and a half years imprisonment.
The grounds of the application are that the sentence is manifestly excessive with particular reference to the several factors mentioned in s.147(3) of that Act, the submission being that the Judge should have concluded within the meaning of s.147(2) that it was unjust to order that the applicant serve the whole of the suspended imprisonment.
The applicant was born on 12 May 1975. On 10 June 1994, when aged 19, he was sentenced by his Honour Judge Pratt on some 16 serious offences committed between August and December 1992 when he was 17 years of age. The most serious was one offence of armed robbery consisting of stealing with actual violence whilst armed with a dangerous weapon. In that case he was in fact the lookout. A knife was used by a co-offender. There were also 11 charges of breaking, entering and stealing; one breaking and entering with intent; and three stealing charges.
These offences involved break and entering into various stores, video stores, schools, a chemist shop, Woolworths, and places of that sort. Sums of money and goods were taken from small amounts ranging up to some 30-odd thousand dollars. There was considerable damage to property. One property damage involved $24,000. The total loss of stolen goods, money and property exceeded $50,000.
His Honour took into account the fact that the applicant had served 178 days pre-sentence custody, his age, his criminal history, his assertion that he was determined to make something of his life, his guilty plea, his assertion that he would return home with his parents who were in Court to support him.
The sentence of three years imprisonment was imposed on the armed robbery with various other sentences from 12 months to two years imposed in the other offences, all to be served concurrently. The sentence was wholly suspended with the operative period of four years to expire on 10 June 1998. His Honour Judge Pratt spoke in the strongest of terms to the applicant as to what would happen if he committed any further offences during the suspended period.
The applicant, only five weeks later, on 25 July 1994, committed two further offences of stealing a jacket and $1000, and on 24 March 1995 he came before his Honour Judge Forno, who considered the original offences. After warning the applicant of the seriousness of those offences and the need to refrain from criminal conduct, his Honour imposed one months imprisonment on each of those two breach offences to be actually served, but with respect to the breach, his Honour extended the operative period for a further 12 months to expire on 10 June 1999. It is common ground before this Court that that extension was not authorised by law.
Unfortunately, notwithstanding a period of three and a half years after 25 July 1994, during which no further offences were committed other than a breach of a fine option order and a breach of a bail in respect of which there was an absolute discharge, the applicant committed a further offence on 4 January 1998 which involved the possession of the dangerous drug, cannabis sativa, consisting of only point 1 of a gram, and possessing a pipe. This occurred outside AMP Place, Eagle Street, Brisbane, about midnight, when he was in company with two males and a female. The police had detected the smell of cannabis.
On 13 March 1998 the matter came again before Judge Forno, to consider the second breach offence, which resulted in the order the subject of this application.
Despite the fact that the Crown Prosecutor suggested that the quantity involved in the case might well have been regarded as trivial, his Honour took a contrary view and went through the various parts of s.147 in respect of which, he said, some matters gave assistance to the applicant and some did not.
In the result his Honour concluded that the offence could not be regarded as trivial - that is the breach offence - and held that it was not unjust that an order be made that the applicant serve the whole of the suspended imprisonment. Of particular significance in this case - and it is raised in the outline of the applicant's counsel before this Court - was the fact that there was a very lengthy period of good behaviour during the operative period from the commission of the stealing offences in July of 1994 right up to 4 January 1998. He had not reverted to criminal behaviour of the type involved which resulted in the suspended sentence. He had a good employment record which supported his rehabilitation in the meantime.
It appears to me that, having regard to the passage referred to by Mr Rutledge in the decision of R v. Holly (Court of Appeal 332 of 1996, delivered 29 November 1996) and concessions by Mr Rutledge, his Honour erred in not giving due weight to the various factors referred to in the submissions by counsel for the applicant and in not concluding that it was unjust in the circumstances to order that the appellant serve the whole of the suspended term.
This was a young man who had substantially rehabilitated himself, and his employment record showed this. No reference was made in his Honour's reasons to the very small quantity of drug involved.
In my view the application should be granted and the order imposed set aside, and that in lieu thereof the period served in custody from 13 March 1998 to today should be regarded as adequate penalty imposed for this particular breach. Accordingly, the application should be granted, the sentence below set aside, and a sentence imposed to expire today.
In addition I should add that, as adverted to earlier, the extension of one year imposed by Judge Forno on 24 March 1995 was invalid. Therefore the operative period will expire as originally ordered by Judge Pratt, on 10 June 1998.
DAVIES JA: I agree.
THOMAS J: I find it difficult to understand why the learned sentencing Judge thought that he had no option under section 147 other than to activate the whole sentence. The sentence imposed in this instance, in my view, would be calculated to destroy what was close to an effective rehabilitation. The improvement in the applicant's behaviour, notwithstanding his lapse by being in possession of a small quantity of cannabis, was, on the evidence, quite commendable.
Generalisations are dangerous but I am prepared to say that in my view long operational periods for suspended sentences, especially during turbulent years such as those of persons aged between 17 and 25, are not generally to be encouraged.
The present case shows acutely the disadvantage that can result when an offender is given a long operational period and then commits a minor offence towards the end of it. Recent decisions in this Court show that there is adequate discretion under s.147, at least in a case like the present one, to avoid the draconian imposition of the full suspended sentence. (See R v. Holly, ex parte Attorney-General, CA 332 of 1996, 29 November 1996, per de Jersey J as he then was; and R v. Holcroft, CA 245 of 1996, 29 November 1996, per Lee J.) I agree with the orders that have been proposed.
DAVIES JA: The orders are as indicated by Mr Justice Lee.
- Published Case Name:
R v Evers
- Shortened Case Name:
R v Evers
 QCA 212
Davies JA, Thomas J, Lee J
28 May 1998
No Litigation History