Gordon v Whybrow[1998] QCA 52

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 10 of 1998

Brisbane

[Gordon & Camp v. Whybrow]

J. GORDON and G. CAMP

v.

NICOLE LEE WHYBROW

(Applicant) Appellant

Fitzgerald P

Davies JA

Fryberg J

Judgment delivered 24 March 1998

Joint reasons for judgment of Fitzgerald P. and Davies J.A.; separate reasons of Fryberg J. dissenting as to the terms of the order.

LEAVE TO APPEAL AGAINST SENTENCE GRANTED;

APPEAL ALLOWED IN PART;

THE ORDERS (1) THAT THE APPELLANT SERVE THE FULL PERIOD OF THE SENTENCE OF IMPRISONMENT IMPOSED ON 15 AUGUST 1996 AND (2) THAT THE SENTENCES IMPOSED THAT DAY AND ON 8 AUGUST 1997 BE SERVED CUMULATIVELY ARE SET ASIDE; AND

ORDERED IN LIEU THAT THE APPELLANT SERVE ONE WEEK OF THE SUSPENDED SENTENCE OF IMPRISONMENT IMPOSED ON 15 AUGUST 1996, TO BE SERVED CONCURRENTLY WITH THE SENTENCE OF IMPRISONMENT FOR THREE MONTHS IMPOSED ON 8 AUGUST 1997.

CATCHWORDS: CRIMINAL LAW – drugs – suspended sentence of imprisonment – whether unjust to order that the whole of a suspended sentence be served – whether suspended sentence should be served cumulatively or concurrently with subsequent sentence

Penalties and Sentences Act 1992, ss. 147(1), 147(3), 148(b), 155, 156.

R. v. Holcroft [1997] 2 Qd.R. 392

R. v. Holley, ex parte Attorney-General [1997] 2 Qd.R. 407

Counsel:  Mr T. Martin S.C. for the applicant/appellant

Mr M.J. Byrne Q.C. for the respondent

Solicitors:  Boe & Callaghan for the applicant/appellant

Director of Public Prosecutions (Queensland) for the respondent

Hearing Date:  26 February 1998

JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND DAVIES J.A.

Judgment delivered 24 March 1998

This is an application for leave to appeal against a decision of the District Court at Cairns on 19 December 1997.  The District Court dismissed appeals brought in reliance upon s. 222 of the Justices Act 1886 against orders made in the Magistrates Court at Mareeba on 8 August 1997.  The present application is brought pursuant to sub-s. 118(2) of the District Courts Act 1967.

The applicant, who was born on 17 August 1948, has a significant criminal history in respect of drug offences.  Between 1982 and 1994, she was fined on a number of occasions, ordered to perform community service, placed on probation, and sentenced to two periods of imprisonment for such offences.  On 15 August 1996, she was convicted on her pleas of guilty on one count of possessing cannabis on 18 July 1996, one count of supplying cannabis between 21 June and 19 July 1996, and one count of possessing $1,700 which had been obtained directly from the commission of an offence as defined in s. 6 of the Drugs Misuse Act 1986, also between 21 June 1996 and 19 July 1996.  On that occasion, she was fined $2,000 and sentenced to imprisonment for nine months, which was wholly suspended pursuant to s. 144 of the Penalties and Sentences Act 1992 for an operational period of three years.

At about 7 a.m. on 29 July 1997, police officers attended the applicant’s residence and executed a search warrant pursuant to the Drugs Misuse Act.  She was observed to run from the main part of her house onto the verandah, where she commenced to empty the contents of some plastic bags over the verandah rail.  The bags were seized by the police officers and were found to contain approximately ten grams of cannabis sativa.  The applicant admitted ownership of the drug in a recorded interview, in which she stated that it was for her personal use and that she intended to smoke it.

The applicant was charged with possession of a dangerous drug and pleaded guilty in the Magistrates Court at Mareeba on 8 August 1997.  The magistrate who convicted the applicant sentenced her to imprisonment for three months.  He also ordered that she serve the whole of the suspended sentence of imprisonment imposed on 15 August 1996, and that the sentences be cumulative.  The appeals^[1] which the District Court dismissed were from those orders.

Before the magistrate, submissions were made that the applicant’s statements during her interview by police were inaccurate, and that the cannabis was the property of the applicant’s husband who was heavily addicted and she was merely attempting to dispose of the drug to protect him.  In his sentencing remarks, the magistrate erroneously failed to indicate which version was the basis on which he sentenced.

The potential difficulty which this raised was recognised in the District Court.  His Honour said:

“In broad terms it was submitted to me that the sentence of three months imprisonment for the subsequent offence was manifestly excessive because of the very fleeting possession of the material by the appellant.  I do not accept the argument that the appellant’s possession of the marijuana should be looked upon as simply fleeting.  His Worship did not specifically canvass in his sentencing remarks the basis upon which he sentenced the appellant.  However, even if he were to sentence on the basis that he accepted that the admissions made in the record of interview were untrue and that the marijuana was in fact her husband’s it was acknowledged by her own solicitor that she would be liable for a deemed possession of the material, it being on her premises.  The fact is that the appellant did know that the marijuana was on her premises, she must have known exactly where it was, and her actual physical possession of the marijuana during the police visit was calculated to avoid detection of it.  I should also add that in my view it cannot be looked upon as being of an insignificant quantity.”

His Honour went on to consider other factors favourable to the applicant, including her personal circumstances, and made reference to her criminal history, stating that the applicant had been “undeterred by punishment” and “unmoved by occasions of leniency”, and that her conduct disclosed “her resolute persistence in the commission of the type of offences for which she has been punished”.  His Honour concluded by saying that he was not satisfied that the magistrate “fell into any error or imposed a sentence that was in any way outside of the range open to him”.

In this Court, the paragraph quoted above was criticised on the basis that it had been accepted in argument in the District Court that the applicant’s possession of the cannabis on 29 July 1997 “was of a transitory nature”.  It was submitted that the applicant had only pleaded guilty to having “momentary actual possession” of the drug and that the District Court Judge had proceeded on the basis that she also had deemed possession earlier, and for a longer period, by virtue of sub-s. 57(c) of the Drugs Misuse Act.  The complaint was made that, in adopting this approach, the District Court Judge “wrongly introduced ... an additional element of seriousness”, namely an “element of criminality” involving a change in the basis upon which the applicant had pleaded guilty.

We do not agree.  In our opinion, the transcript of the argument and the District Court Judge’s reasons for his decision do not indicate that his Honour attributed possession of the cannabis to the applicant for some period of unspecified duration by reference to sub-s. 57(c) of the Drugs Misuse Act or on any other basis.  While it might have been preferable to omit any reference to the concession by the applicant’s solicitor in the Magistrates Court and to place less emphasis on the significance of the applicant’s further offence in the context of her earlier offences, her criminal history was relevant to penalty.  It was also relevant to penalty, as counsel for the applicant conceded in this Court, that, as the District Court Judge stated, “... the [applicant] did know that the marihuana was on her premises, she must have known exactly where it was, and her actual physical possession of the marihuana during the police visit was calculated to avoid detection of it”.

The sentence imposed for the offence committed on 29 July 1997 was appropriate, and the argument strenuously pressed for the applicant by Mr Martin S.C. on this point failed to persuade us that there was any error which justifies a grant of leave to appeal.

In dealing with the magistrate’s other order that the applicant serve the whole of the earlier sentence of imprisonment which had previously been suspended, his Honour said:

“So far as the activation of the suspended sentence is concerned, his Worship’s reasoning shows that he gave due consideration to the various factors in s. 147 of the Penalties and Sentences Act.  He did not canvass those factors outlined minutely but he obviously had regard to them.  There is no point in my going through those factors in detail.  I am satisfied that, in the circumstances, it was appropriate for His Worship to order that the whole of the suspended sentences be served and that they be cumulative with the sentence for the subsequent offence.  By way of conclusion I should say that I am acutely aware that the imposition of terms of imprisonment on this appellant may cause considerable distress and hardship to the appellant’s mother.  However, I reject any notion that this Court or the Court below should be held responsible for that hardship and distress.  It is the appellant who is responsible for any distress and hardship caused to her mother by her resolute persistence in the commission of the type of offences for which she has been punished.  I propose to order that the appeals be dismissed.”

The applicant accepted that the whole period of the suspended sentence of imprisonment imposed on 15 August 1996 was required to be served under s. 147 of the Penalties and Sentences Act unless the Magistrates Court was of opinion that it would be unjust to do so.  Reference was made to sub-s. 147(3), which sets out the matters to which the Court must have regard in determining whether it would be unjust to order that the whole of a suspended sentence of imprisonment be served, and numerous factors were asserted in support of a submission that the order made by the magistrate was unjust.  It was argued that the District Court Judge was likewise in error.  The various circumstances relied on included reference to the earlier submission - which we have indicated that we do not accept - that the District Court Judge had attributed possession of the cannabis to the applicant for some period of unspecified duration, contrary to the actual circumstances upon which the applicant was entitled to be sentenced.

Nonetheless, when attention is paid to the applicant’s personal circumstances and her further offence is considered on the basis which we were told was accepted in the District Court (i.e., that her possession of cannabis on 29 October 1997 “was of a transitory nature”) the order that she serve the whole of the suspended sentence of imprisonment was, in our opinion, unjust.  An order that she serve a brief period of the suspended imprisonment, say one week, would have been appropriate.  It is unnecessary to decide whether, in the absence of other factors, such an error would attract a grant of leave under sub-s. 118(2) of the District Courts Act.

As earlier noted, the applicant’s periods of imprisonment were made cumulative.  An order to that effect was permissible under s. 156 of the Penalties and Sentences Act, and cumulative sentences are often imposed for separate offences committed at significantly different times.^[2]  However, the general starting point, which is to be found in s. 155 of the Penalties and Sentences Act, is that sentences are to be concurrent.

For s. 155 to operate, an offender sentenced for a further offence must already be serving, or have been sentenced to serve, imprisonment for another offence.  Section 148 of the Penalties and Sentences Act takes the statutory scheme a step further.  Sub-section 148(b) provides that, subject to a presently irrelevant consideration, a suspended sentence of imprisonment which is ordered to be served, must unless the court otherwise orders, be served “concurrently with any other imprisonment previously imposed on the offender by that or another court”.

After convicting the applicant of the offence committed on 29 July 1997, the magistrate ordered her to serve the whole period of the suspended sentence of imprisonment imposed on 15 August 1996, next sentenced the applicant to imprisonment for a further three months for the offence of which she had just been convicted, i.e., that committed on 29 July 1997, then ordered that the sentences be served cumulatively.  The sequence took the sentences outside the literal terms of sub-s. 148(b), but brought them within s. 155.  Whichever section applied, the sentences were required to be served concurrently, unless otherwise ordered.

In ordering that the sentences be cumulative, neither the Magistrates Court nor the District Court made any reference to the material statutory provisions or explained why, despite ss. 148 and 155, cumulative sentences were appropriate.  In our opinion, this omission constituted an error of principle.

Further, in our opinion, no sufficient reason existed for cumulative periods of imprisonment.  The order for cumulative sentences was therefore wrong.

As we have already said, a sentence of imprisonment for three months for the offence committed on 29 July 1997 was appropriate, but the applicant should have been ordered to serve only one week of the suspended sentence imposed on 15 August 1996.  And that period of imprisonment should have been ordered to be served concurrently with the sentence of imprisonment imposed on 8 August 1997.

In summary, we would grant leave to appeal, allow the appeal, set aside the orders that the appellant serve the full period of the sentence of imprisonment imposed on 15 August 1996 and that the sentences imposed that day and on 8 August 1997 be served cumulatively, and order that  the appellant serve one week of the suspended sentence of imprisonment imposed on 15 August 1996 and that that sentence be served concurrently with the sentence of imprisonment for three months imposed on 8 August 1997.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No.  10 of 1998

Brisbane

Before  Fitzgerald P.

Davies J.A.

Fryberg J.

[Gordon & Camp v. Whybrow]

J.  GORDON and G. CAMP

v.

NICOLE LEE WHYBROW

(Applicant) Appellant

REASONS FOR JUDGMENT - FRYBERG J.

Judgment delivered 24 March 1998

I need not repeat the history of this matter, which appears in the judgment of my colleagues.

Before the magistrate, the applicant retracted admissions made in a record of interview and asserted that the cannabis found in her possession belonged to her husband and her possession of it had been of a transitory nature.  The magistrate would have been entitled to regard this allegation as inherently improbable.  It is unclear from his reasons for judgment whether he did so.  If he did, he ought to have informed the applicant of that fact and afforded her the opportunity to call the evidence which her solicitor had told him was available.  It is too late now to speculate whether such evidence would necessarily have amounted to an admission of attempting to pervert the course of justice or obstructing the police in the execution of their duty.  The magistrate made no findings in relation to the ownership of the drug and the duration of the applicant's possession of it.  By his failure to do so, I think he erred in law.

In the rehearing before the District Court, the prosecutor conceded that the judge should proceed on the basis that the drug belonged to the applicant’s husband, but did not concede that her possession was transitory.  The record does not support the applicant's submission that the latter concession was made. The judge said he would proceed on the basis of the prosecutor's concession, and  his reasons for judgment show that is what he did.  Neither party sought leave to call additional evidence under s. 223(2) of the Justices Act 1886.

Both the duration of the possession and the ownership of the cannabis were important facts to be taken into account in relation to both matters which were before the District Court.  It cannot be said that either of the orders made by the court would inevitably have been the same had the court accepted that the duration of the possession was of transitory nature.  However in this court, the prosecutor argued that the orders which were made were in fact correct and appropriate.  If this argument is accepted, leave to appeal should be refused. 

In relation to the charge of possession of cannabis on 29 July 1997, I think the prosecutor's argument should be accepted.  Having regard to the applicant's criminal history and to the circumstances of the offence, the sentence which was imposed was appropriate even on the basis that the cannabis belonged to the applicant’s husband and her possession of it was transitory.

In relation to the activation of the suspended sentence, the judge said:

"His Worship's reasoning shows that he gave due consideration to the various factors outlined  in s. 147 of the Penalties and Sentences Act.  He did not canvass those factors minutely but he obviously had regard to them.  There is no point in my going through those factors in detail."

Here, I think his Honour erred.  In considering whether it would be unjust to order the applicant to serve the whole of the suspended sentence, the magistrate was obliged to have regard to the matters set out in s. 147 (3) of the Penalties and Sentences Act 1992.  Even before the commencement of that subsection barely a month earlier, most of the factors set out in it were relevant to the question which the magistrate had to determine under s. 147 (2).  There is no indication in the magistrate's reasons that he took into account the proportion between the culpability of the applicant for the subsequent offence and the consequence of activating the whole of the suspended imprisonment.  Had he done so, he could hardly have avoided referring to the issues of the ownership of the cannabis and the duration of the applicant's possession of it.                The judge appears not to have reconsidered the matters arising under s. 147(3) for himself.  Having regard to the magistrate's failure fully to consider those matters, the judge ought to have dealt with them afresh.

Neither the magistrate nor the judge gave reasons for ordering that the terms of imprisonment imposed should be served cumulatively.  While it was in my judgment open to the magistrate (if all else were in order) to take that course, it was a mistake of law not to give reasons for it.  The case was not one where the reason for cumulative sentences was self evident.  Moreover, if cumulative sentences were to be imposed, that was a factor which ought to have been taken into account in considering the issue of proportionality.  That did not happen in either Court.

The errors which have occurred in relation to the proceedings under s. 147 are in my view sufficient to warrant the grant of leave to appeal.  Leave should be limited to so much of the order of the District Court as dealt with appeal no. 45 of 1997 to that court (the s. 147 proceedings appeal).  The order of the District Court in relation to that appeal should be set aside.

The appeal to this court should plainly be disposed of immediately, but how?  Strictly speaking, the matter should be remitted to a magistrate to make findings of fact in relation to the ownership of the cannabis and the duration of the applicant's possession of it.  However, having regard to the history of the matter, I do not think that would be a just outcome.  If that was what the prosecution wanted, it should have said so before the District Court.  There has been enough time and money spent on this matter already.  In my judgment, this court should deal with the matter itself, on the basis that the applicant's allegations are accepted.

The  court must make an order under s. 147(1)(b) unless it is of the opinion that it would be unjust to do so.  That provision in its context discloses a clear legislative policy that in general, a conviction for an offence punishable by imprisonment during the operational period of a suspended sentence should result in the offender serving the suspended sentence.^[3]  In deciding whether it would be unjust so to order, regard must now be had to the matters listed in s. 147(3).  The first of these is whether the subsequent offence is trivial having regard to various factors.  At first sight, one might think that a subsequent offence meriting imprisonment for three months could hardly be described as trivial.  However an examination of s. 147(3) shows that triviality in that section is a relative concept.  Regard must be had to proportionality, among other things.  On the view of the facts now being assumed, the nature and circumstances of the subsequent offence and the applicant's culpability for it do suggest triviality when one takes the consequence of activating the whole of the suspended imprisonment into account.  It is true that the applicant has an unattractive criminal history, that both the original and the subsequent offences are prevalent and that the applicant's conduct in committing the subsequent offence was calculated to obstruct police officers.  However her motivation for it was to protect her husband, she has not otherwise reverted to criminal conduct of any kind since the original offence, she was 12 months into a three year operational period without lapsing from good behaviour and the fine ordered on  the original sentence was duly paid.  The subsequent offence is fully punished by the sentence of imprisonment for three months, a factor which emphasises the element of disproportion if the whole of the suspended imprisonment is activated; a fortiori if it is made cumulative.  With some hesitation, I have been persuaded that the subsequent offence is trivial within the meaning of the section. 

Section 147(3)(b) requires regard also to be had to 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.  The original offence was of some seriousness; it involved supply of a drug and possession of money obtained from drugs.  The drug supplied, cannabis, had the potential to cause serious physical and emotional harm to a user, but the prosecutor made no effort to show that such harm occurred in this case. 

An attempt was made on behalf of the applicant to argue that special circumstances within the meaning of s. 147(3)(c) had arisen, those circumstances being that the applicant had the care of her very ill mother as well as additional business responsibilities.   As far as I can tell from the record, those circumstances did not change significantly from the position at the time the suspended sentence was imposed.  I do not think this factor helps the applicant. 

Overall, I am satisfied, by a narrow margin, that it would be unjust to order the applicant to serve the whole of the suspended imprisonment. 

In R v Holley ex parte Attorney-General,^[4] the Court discussed a problem caused by the wording of s. 147(1)(a), viz.  that it appeared to apply only to cases where at the time of the order being made under s. 147, the original operational period had less than a year still to run.  Since that decision, the legislature has enacted amendments to s. 147, but this provision has not been changed.  I think it must be assumed that the legislature was conscious of the interpretation given to the section by the majority in that case.  In my view, the opinion expressed in the majority judgments on this point now represents the law.  In the present case, the operational period had two years left to run.  Consequently, it is not open to the Court to extend it under s. 147(1)(a). 

Should the Court make an order that the offender serve part of the suspended imprisonment under s. 147(1)(c)?   I do not think it would be appropriate to make any such order concurrent with the sentence of three months imposed for the subsequent offence.  To do that would be effectively to reduce the balance of the suspended sentence without imposing any additional punishment on the applicant.  That is certainly not the result to which the section is directed.  A short period of imprisonment imposed cumulatively would be possible.^[5]  In order to reflect the total criminality of the situation, however, it would have to be quite short.  On balance, I think that it would be better from the community's point of view to maintain the whole of the suspended sentence intact, in order to provide  a continuing incentive to the applicant not to err again.  This course would involve setting aside the order made by the Magistrate, but making no other order. 

The question whether ss. 146(2) and 147 permit a court dealing with an offender under them to make no order was discussed, but not decided, in R.  v.  Holley.  There, I expressed the view that a court could make no order and Lee J expressed the contrary view.  My view has not changed.  If anything, the circumstances of the present case reinforce it.  If the interpretation of a statute is such as to drive a court to the artificial expedient of imposing a purely nominal sentence, such as a week to be served concurrently, in order to comply with the statute, when otherwise it would not do so, there is something wrong with either the law or its interpretation.   I do not think the Parliament intended to place the Court in such a dilemma; there is nothing wrong with the law in this respect.  In my view, on the proper interpretation of the Act, it is open to the Court to make no order in an appropriate case.  This is such a case.

I would grant leave to appeal against so much of the order of the District Court as  dealt with Appeal No.  45 of 1997 to that Court.  I would allow the appeal (a Notice of Appeal has been filed) and order that the dismissal of Appeal No.  45 of 1997 by the District Court be set aside.  In lieu thereof I would order that that appeal to the District Court be allowed and the order made by the Magistrate be set aside.