The Queen v Hughes[1998] QCA 61

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 437 of 1997

Brisbane

[R. v. Hughes]

T H E Q U E E N

v.

RICHARD ALLAN HUGHES

(Applicant)  Appellant

Pincus J.A.

McPherson J.A.

Fryberg J

Judgment delivered 17 April 1998

Joint reasons for judgment of McPherson and Pincus JJ.A.; separate reasons of Fryberg J. dissenting in part.

1. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.
2. APPEAL AGAINST SENTENCE ON ALL COUNTS ALLOWED.
3. ON EACH OF COUNTS 1, 2 AND 3 SENTENCE OF IMPRISONMENT FOR SIX MONTHS COMMENCING ON 7 NOVEMBER 1997 IS IMPOSED.
4. FURTHER ORDER THAT AFTER SERVING THAT TERM OF IMPRISONMENT THE APPLICANT BE RELEASED PURSUANT TO SECTION 92(1)(b) OF THE PENALTIES AND SENTENCES ACT 1992 UNDER SUPERVISION OF AN AUTHORISED COMMISSION OFFICER FOR A PERIOD OF 3 YEARS COMMENCING FROM THE DATE OF THIS ORDER, SUBJECT TO THE CONDITIONS IMPOSED AT SENTENCE HEARING ON 7 NOVEMBER 1997 EXCLUDING THE CONDITION  REQUIRING APPLICANT TO PAY THE SUM OF $6,000 BY WAY OF COMPENSATION.
5. FURTHER ORDER THAT WITHIN 3 YEARS OF THE DATE OF THIS ORDER THE APPLICANT PAY THE SUM OF $6,000 BY WAY OF COMPENSATION TO THE REGISTRAR OF THE DISTRICT COURT AT BRISBANE ON ACCOUNT OF RONALD WILLIAM HUGHES.
6. FURTHER ORDER THAT CONVICTIONS BE RECORDED IN RESPECT OF EACH COUNT.

JOINT  REASONS FOR JUDGMENT - McPHERSON & PINCUS JJ.A.

Judgment delivered 17 April 1998

The applicant pleaded guilty in the District Court in Brisbane to an indictment charging, as count 1, breaking and entering a dwelling house with intent; count 2, stealing at that place a number and variety of articles of property specified in that count; and count 3, breaking into a shed at the same place and stealing two saws and a whipper snipper.  The sentence imposed on the applicant in respect of count 1, was imprisonment for 2½ years, with a recommendation for parole after 6 months; on count 2, he was admitted to probation for three years with the special condition that he pay compensation in the sum of $6,000.  For the offence in count 3, he was sentenced to imprisonment for 6 months, to be served concurrently with the other sentences.

The basis of this application for leave to appeal against sentence is that the overall sentence was manifestly excessive; but it emerged in the course of hearing it that the sentencing orders now under review raise some questions of law that require attention before the merits are considered.

The first  is whether it was open to the learned judge to order that the applicant serve a term of 2½ years’ imprisonment (count 1), and at the same time undergo probation for three years (count 2).  A comparable question was considered in R. v. Lihou, ex p. Attorney‑General [1975] Qd.R. 44, where, after the offender had pleaded guilty to 16 charges of offences of dishonesty, he was, in respect of the first of them, placed on probation for a period of two years and, as to the others, sentenced to imprisonment for nine months.  In giving judgment in the Court of Criminal Appeal allowing the appeal, D.M. Campbell J. said ([1975] Qd.R. 44, 45) that the Act did “not contemplate making an order for probation in respect of one offence and imposing a sentence of imprisonment in respect of another when the accused is being dealt with for both offences at the same time”.

The sentence imposed here led to a similar result.  The applicant was ordered to undergo three years probation on count 2 at the same time as he was ordered to serve 2½ years imprisonment on count 1.  In respect of that term of imprisonment, the sentencing judge also recommended that the applicant be considered for parole after serving only 6 months; but it does not follow that that recommendation will be given effect as a matter of course.  There may be reasons, including the applicant’s behaviour in prison, capable of leading to parole being deferred, leaving him to serve out the whole or part of the balance of the prison term of 2½ years. If he remained in prison during that period, it would scarcely be possible for him to comply with the requirements of the probation order, or indeed for a community corrections officer to supervise his doing so.

The difficulty of complying concurrently with two forms of sentencing order which are essentially inconsistent in their purpose and effect was the principal reason for the decision in R. v. Lihou.  An offender who is sentenced to remain in prison cannot at the same time be released on probation.  By way of illustration, D.M. Campbell J. referred in his reasons in that case to a statutory provision expressly requiring a probationer to report in person where so directed within 24 hours after his release on probation.  At that time a provision to that effect appeared in s. 8(3) of the Offenders’ Probation and Parole Act 1959-1971.  It now appears in similar, although not quite identical, language as s. 93(1)(b) of the Penalties and Sentences Act 1992.  It might be possible to frame the reporting condition in such a way as to meet that particular difficulty; but in R. v. Lihou the Court of Criminal Appeal also referred with approval to the decision in R. v. Evans [1958] 3 All E.R. 673, where a Court of Criminal Appeal consisting of five judges had said that, although the relevant English Act did not expressly prevent a probation order on one count from being made concurrently with a detention order on another count, it was nevertheless “contrary to the spirit and intention” of the Act to adopt such a course.  The decision in R. v. Evans was later followed in Cheryl Emmett (1968) 53 Cr. App.R. 203, where the Court of Appeal (Criminal Division) in England held it to be impermissible, in sentencing an offender to a term of imprisonment for nine months, to extend by 12 months the period of a subsisting probation previously imposed in respect of an earlier offence.  In reaching that conclusion Winn L.J. quoted with approval that part of the reasoning in R. v. Evans in which it had been said that the making of a probation order which could not immediately be of effect in such circumstances was contrary to the spirit and intention of the Act, and was improper.

It was no doubt because of those decisions that, when in Queensland the Act of 1959 was repealed and replaced by the Offenders Probation and Parole Act 1980, it introduced a new provision in s. 17(1)(b).  Section 17(1) was expressed as follows :

“17.  Probation order on conviction.  (1) Where a person is convicted by a court of an offence punishable by a term of imprisonment otherwise than in default of payment of a fine and the court is of the opinion that having regard to the circumstances including the nature of the offence and the character and antecedents of the offender it is expedient to do so, the court may -

1. instead of sentencing him, make a probation order releasing him and requiring him to be under the supervision of a probation officer for such period, being not less than 6 months nor more than 3 years, as is specified in the order; or
2. sentence him to such term of imprisonment as is provided for but in no case exceeding 6 months and in addition, make a probation order requiring him to be under the supervision of a probation officer for such period being not less than 9 months nor more than 3 years, as is specified in the order.

The period of a probation order made under paragraph (b) shall commence on the date on which the order was made but the requirements of such an order shall become operative only after that person’s release from prison”

The effect of s. 17(1) was to permit the concurrent imposition of periods of probation and imprisonment, but only to the limited extent specifically authorised by s. 17(1)(b); that is, where the sentence of imprisonment did not exceed 6 months.  The final paragraph of s. 17(1) was careful to provide precisely how such a concurrent order for probation under s. 17(1)(b) was to take effect.  It was to commence on the date on which the order was made, but its requirements were to operate only after the offender’s release from prison.  Outside that relatively narrow limit, the philosophy underlying the three decisions mentioned was not disturbed by the new legislation, and, as late as 1988, the notes in §9335 of Carter’s Criminal Code continued to incorporate references to those three decisions.

The relevant notes in Carter were omitted when the Act of 1980 was replaced by the Penalties and Sentences Act 1992.  The current provision corresponding to s. 17(1) of the earlier Act is now s. 92 of the 1992 Act, which is as follows:

“92 Effect of order.(1) The effect of a probation order is -

1. that the offender is released under the supervision of an authorised commission officer for the period stated in the order; or
2. that the offender -

1. is sentenced to a term of imprisonment for not longer than 6 months; and
2. at the end of the term of imprisonment the offender is released under the supervision of an authorised commission officer for the remainder of the period stated in the order.

2. The period of the probation order starts on the day the order is made and must be -

1. if the order is made under subsection (1)(a) - not less than 6 months or more than 3 years; or
2. if the order is made under subsection (1)(b) - not less than 9 months or more than 3 years.

3. The requirements of a probation order made under subsection (1)(a) start on the day the order is made.
4. The requirements of a probation order made under subsection (1)(b) start -

1. immediately the offender is released from prison; or
2. if the offender is released to a re‑integration program - at the end of the program.
3. A term of imprisonment imposed under subsection (1)(b)(i) must not be suspended under Part 8.”

Section 92 is preceded by a provision in s. 91 authorising a court to make either one of the two alternative forms of order contemplated in paras. (a) and (b) of s. 92(1).  It is not being unduly critical to say that the drafting method adopted in ss. 91 and 92 is not an improvement on the clarity of the provisions of s. 17(1) of the 1980 Act; but, in the light of their history and the function they perform, their meaning is sufficiently clear. What is more important, the underlying philosophy of the legislation, as it was explained to be in R. v. Evans, R. v. Lihou and Cheryl Emmett, remains essentially unchanged.  Except to the extent specifically permitted under s. 92(1)(b), it is neither permissible nor proper to make a probation order to operate concurrently with a sentence of imprisonment.

It follows that the sentencing orders made against the applicant in respect of counts 1 and 2 of the indictment are not authorised by s. 91 or s. 92 of the Act of 1992 and cannot stand together.  It may be that a result resembling that which the learned sentencing judge evidently had in mind could have been achieved under s. 92(1)(b) by sentencing the applicant to imprisonment for six months together with a period of probation in accordance with that provision.  But before deciding whether orders to that effect should be substituted, it is necessary to consider a further difficulty related to the probation order made below.  It concerns the “special condition”, as his Honour described it, that “at such times and in such amounts you pay the full amount of $6,000 to the Registrar of this Court to the total of $6,000”.  To understand this requirement, it is necessary to read it in conjunction with an earlier passage in his Honour’s sentencing remarks, where he said he proposed making it a special condition of the probation that the applicant pay the total sum of $6,000 “at such times and in such amounts ordered by your probation officer”.

The appropriateness or otherwise of incorporating as a condition of a probation order a requirement that the offender pay a sum of money by way of compensation is referred to later in these reasons.  The particular defect of the requirement in the form in which it was framed here is that it involves a delegation to another person of the court’s power to fix the dates or times at, and the amounts in, which the compensation sum is to be paid.  That is open to the fundamental objection that it involves an abdication by the court of part of its essential sentencing function, and its surrender or transfer to an officer of the executive government, which is something that, unless explicitly authorised by statute, the court ought not to sanction or permit.  See R. v. Selling (1913) 13 S.R. (N.S.W.) 628, 632; Re Mitchell; Re Healey [1938] N.Z.L.R. 671, 674; Lahey v. Sanderson [1959] Tas. S.R. 17, 23; Bowser v. Bourke [1993] 1 Qd.R. 43, 47. Subject to any special statutory provisions, the substance and terms of a sentence should always be certain and complete when it is imposed and not, at least in any essential respect, left by the court to be decided by some other person or entity.  See R. v. Ford; R. v. Pitau (CA Nos. 114 & 112 of 1997), where, although there was, in the end, some judicial difference as to the application of the rule in that case, there appears not to have been any doubt about the principle involved.

What is or is not essential to the certainty or finality of a particular sentence may in some instances give rise to legitimate differences of opinion.  Under the order in the present case, however, the determination of both the amounts in which the sum of $6,000 was to be paid and the times of their payment was left to the correctional officer.  There are sound reasons for regarding this as involving an impermissible delegation of the sentencing discretion, especially where, as here, the requirement to pay is incorporated as a term of the probation order.  If the applicant fails to pay in accordance with the determination made by that officer, he will contravene a requirement of the order, with the consequence that under s. 120 of the Act the probation order may be revoked and under s. 121 he may be re-sentenced for the original offence for which the order was made.  An offender who, through no immediate fault of his own (for example, because he is serving a 2½ year prison term) is unable to pay an amount of compensation ordered at the time fixed for it, may thus be exposed to re-sentencing for the original offence, even though he has in other respects satisfactorily complied with the requirements of the probation order.

Fixing the amounts and times for payment of a compensation order is, therefore, a function which the sentencing judge is required to perform himself or herself.  It is not a matter which is ordinarily, if ever, capable of being lawfully delegated to a commission officer or anyone else.  Section 93(1)(g) of the Act, requiring the offender to “comply with every reasonable direction” of an authorised commission officer is not a sufficient authority for such a delegation of judicial power; nor was it sought to sustain the present order on that footing.

Incorporating in a probation order a requirement that the offender pay compensation for loss of property in relation to which an offence has been committed is something that is specifically authorised by s. 94(1)(d).  The appropriateness in particular circumstances of incorporating such a requirement in the probation order is, however, another matter.  It would serve only to defeat the purpose of a probation order if it includes a requirement that will not be complied with and so results in one or more of the consequences provided in ss. 120 or 121 of the Act: cf. R. v Anderson [1995] 1 Qd.R. 49, 52, considering the comparable case of imprisonment in default of payment.  It may be going too far to say that in the present case it was necessarily a wrong exercise of discretion to make the order for payment of compensation a requirement of the probation order; but there were some obvious considerations weighing against the adoption of that course here.  At $6,000, the amount of compensation payable was not small; there was no evidence of the applicant’s income or means beyond that he was receiving unemployment benefits and, in the event that he was obliged to serve out the full 2½ year prison sentence, there would be little realistic prospect of his complying with the requirement that he pay the sum within three years.  The provisions of ss. 35 to 42 of the Act contain ample and detailed provisions for ordering and for enforcing compensation payments without making its payment a requirement of a probation order.

It follows that, for one or all of these reasons, the sentence imposed in the present case cannot stand. The appeal should be allowed and the sentences be set aside.  This Court must now itself proceed to exercise the sentencing discretion which miscarried in the court below.

According to the material in the record, the applicant is a man aged 27 years.  He has a prior criminal record which includes two previous convictions for stealing of a minor kind; another for assault occasioning bodily harm in 1995, together with some minor drug offences in 1995 and 1996.  After the date of the offences now under review he was involved in stealing some registration plates.  In 1995 he was also convicted of a breach of the Bail Act.

The property stolen on the occasion with which we are concerned was valued by the owner at $15,000.  The sentencing judge was inclined to think that that estimate might possibly have involved an element of overstatement.  A peculiar feature of the case is that the complainant - that is, the owner of the property - is the father of the applicant.  The applicant was identified as the thief because his father, suspecting that it might have been he, went to the applicant’s place and saw some of the stolen property there.  The suggestion is made that relations between the applicant and his father are bad because of what the applicant regards as his father’s mistreatment of him in the past.  There is said to have been an element of retribution or revenge in the commission of these offences.  It is not clear why this should be seen as going in mitigation; but the applicant has been undergoing psychiatric treatment for depression and anxiety since early 1996.  At the time of these offences in January 1997, he was addicted to drugs, but has since freed himself of that habit.  In respect of previous terms of community service carried out in consequence of earlier convictions, he has a favourable report from his community corrections officer.

The applicant has never previously had the benefit of probation.  It is apparent that the learned sentencing judge was intending he should now be placed under such a regime.  Counsel for both parties before us supported the adoption of such a course, or raised no objection to its being taken.  The applicant has already spent some 3 months and more in custody under the terms of the existing order.  In all the circumstances the appropriate orders are to allow the appeal and set aside the sentencing orders on counts 1 and 2.  In lieu the applicant is sentenced to imprisonment for six months, to be served concurrently, in respect of each of those counts.  In respect of that term of imprisonment in the case of counts 1 and 2 it is ordered pursuant to s. 92(1)(b) of the Penalties and Sentences Act that he be released under the supervision of an authorised Commission officer for a period of three years commencing under s. 92(2) from the date of this order.  The requirements of that probation order will be those specified in the probation order (which are simply those in Form 33, to which the applicant consented) imposed at the sentence hearing in this matter on 7 November 1997 but excluding the requirement that the applicant pay compensation in an amount of $6,000.  As to that, and in relation to the property identified in count 2, the applicant is under s. 35(1)(b) of the Act ordered to pay to the Registrar of the District Court at Brisbane on account of Ronald William Hughes compensation in the sum of $6,000 within 3 years from the date of this order.  It is further ordered that convictions be recorded with respect to all 3 counts.

REASONS FOR JUDGMENT - FRYBERG J.

Judgment delivered 17 April 1998

For the reasons given by McPherson and Pincus JJ.A., the orders made below in respect of counts 1 and 2 of the indictment cannot stand together.  They were, however, clearly intended by the sentencing judge to be complementary in their operation.  To set aside one of them without setting aside the other would produce unfairness to the applicant.  Both should be set aside.

Apart from this, the sentences imposed were not in my judgment manifestly excessive.  However, since the orders must be set aside, that is no longer the question.  We must exercise the sentencing discretion for ourselves. 

Breaking and entering with intent is, regrettably, a prevalent offence in the community.  Too often it is accompanied by the implementation of the intent.  Although the sentence of two and one-half years was not manifestly excessive, it was in the circumstances of this case in the higher half of the range of possible sentences.  In my judgment, the need to deter others from committing such offences and to mark the community’s disapproval of the applicant’s conduct is satisfied by imposing a sentence of imprisonment for two years in respect of count 1.  The individual factors peculiar to the applicant, which were recognized by the trial judge in his recommendation regarding parole, are best satisfied by ordering that 18 months of that term be suspended for an operational period of four years, during which the applicant must not commit another offence punishable by imprisonment if he is to avoid being dealt with under s. 146 of the Penalties and Sentences Act 1992.  The operational period must commence on the date of this order.[1]  Apparently, the applicant spent no relevant time in custody prior to being sentenced, so the term should begin on the date he was taken into custody pursuant to the orders below. 

As regards count 2, I agree with the order proposed by McPherson and Pincus JJ.A.  I also agree that it is desirable to make a separate order for compensation under s. 35 of the Act, rather than to make the compensation a condition of the applicant’s probation.

It is not clear to me that we have power to add probation to the sentence imposed below  in respect of count 3.  In any event, having regard to the sentences which I propose on the other two counts, I see no need to do so.  I would allow that order, together with the order recording convictions on all counts, to stand.