The Queen v Edward[1997] QCA 425

DAVIES JA:  The applicant seeks leave to appeal against an order made under section 147 of the Penalties and Sentences Act that he serve the whole of suspended imprisonment ordered on 24 February 1997.  The order the subject of the application was made on 2 September 1997.  The sentence imposed on 24 February was one of three years imprisonment wholly suspended.  It had been imposed for 11 counts of supplying heroin, two of supplying cannabis and five of possession of heroin. 

Only a little over a week after the sentence was imposed, on 2 march 1997, the applicant was caught stealing a watch from a duty free store in Cairns.  On 26 March he pleaded guilty to that offence and was sentenced to six months imprisonment which was ordered to be served cumulatively upon another sentence of six months imprisonment which had been ordered to be served on the same day for one offence of attempted false pretences committed on 5 November 1996.  It was the conviction on a stealing offence during the operational period of the suspended sentence which required the Court to deal with the applicant under s. 147 for the suspended imprisonment. 

That section requires a Court to order the offender in such a case to serve the whole of the suspended imprisonment unless it is of the opinion that it would be unjust to do so.  In deciding whether it would be unjust to do so, the Court must have regard to whether the subsequent offence, in this case the stealing, is trivial having regard to a number of factors, to the seriousness of the original offence and to any special circumstances arising since the original sentence was imposed.

The suspended sentence was imposed, in the first place, because the applicant was subjected to improper pressure from an undercover police officer to supply her with heroin. She waited for him outside a methadone clinic where he was undergoing treatment for his addiction.  She asked him to supply her with heroin and he declined saying he had not dealt in it for ages. She continued to ask him and he recommended that she deal with someone else.  She followed him and persisted.  It was only after this occurred that he agreed to and did supply her with heroin.  He did not profit from the supply although she rewarded him with a small sum of money for his expenses.  The learned sentencing Judge rightly expressed her disquiet and distaste that he was pursued in this way and that as a consequence of this encounter his treatment was set back considerably.  There was no appeal against that sentence.

The applicant was, as I have said, caught red-handed for stealing the watch.  When interviewed by the police he said he stole it in order to obtain money to purchaser heroin. 

When the matter came before the learned Judge from whose order this application is brought, His Honour expressed sympathy for the applicant, no doubt because both the original group of offences and the offence which gave rise to the order were caused by the applicant's addiction to heroin.  However His Honour concluded that the offence of stealing the watch was not trivial, that the original offence was serious and that no special circumstances arose since the original sentence was imposed.

Before this Court the applicant submitted that the stealing offence was trivial; alternatively in his written submissions, although these were not pressed by Mr Hamlyn-Harris in his oral argument, that special circumstances arising since the original sentence was imposed made it unjust to impose the whole term of suspended imprisonment. In making the first of these submissions the applicant relied on the proportion between the culpability of the offender for the stealing offence and the consequence of activating the whole of the suspended sentence; in other words that the activation of the whole of the suspended sentence resulted in a period of imprisonment which was disproportionate to the stealing offence.

That, it appears, is a factor which may be taken into account in determining whether the offence is a trivial offence but that is not sufficient to justify an order other than one that the applicant serve the whole of the suspended sentence.  It is necessary that by reason of that, and other factors, the stealing offence could be described as trivial.  I do not think it could.  Although there is nothing which indicates the value of the watch which the applicant stole, it may be assumed that it was of substantial value. 

Stealing from a shop goods of the nature of a watch could not, in my view, be described as a trivial offence nor do I think that the word "trivial" should be given a meaning other than its ordinary meaning by reference to the matters referred to in subparagraphs (i) to (vii) of subsection 3(a).

The applicant then, in his written outline, sought to argue that the 12 months imprisonment ordered by the Magistrate on 26 March this year was a special circumstance within the meaning of subsection 3(c).  I find it difficult to see how a sentence imposed for the subsequent offence can possibly be a special circumstance especially where, as in this case, the suspended sentence is imposed concurrently with those sentences.

In my view the learned sentencing Judge was therefore correct in concluding that no basis was shown for an opinion that it would be unjust not to order the whole of the suspended imprisonment to be served and I would therefore refuse the application.

de JERSEY J:  I agree.

MUIR J:  I agree.

DAVIES JA:  The application is refused.