R v Skinner; ex parte Attorney-General
[1999] QCA 521
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- Unreported Judgment
- Appeal Determined (QCA)
- R v Skinner; ex parte Attorney-General[1999] QCA 521
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R v Skinner; ex parte Attorney-General[1999] QCA 521
Reported at [2001] 1 Qd R 322
R v Skinner; ex parte Attorney-General[1999] QCA 521
Reported at [2001] 1 Qd R 322
SUPREME COURT OF QUEENSLAND
CITATION: | R v Skinner; ex parte A-G [1999] QCA 521 |
PARTIES: | R v SKINNER, Noel Keith (Respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (Appellant) |
FILE NO/S: | CA No 307 of 1999 DC No 96 of 1999 |
DIVISION: | Court of Appeal |
PROCEEDING: | Appeal against sentence by Attorney-General |
ORIGINATING COURT: | District Court at Rockhampton |
DELIVERED ON: | 17 December 1999 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 December 1999 |
JUDGES: | de Jersey CJ, Davies and Pincus JJA |
ORDER: | Appeal against sentence dismissed |
CATCHWORDS: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE – POWER TO IMPOSE – POWER TO IMPOSE SECOND CUMULATIVE SENTENCE – sentence appeal by Attorney-General – respondent convicted of assault occasioning bodily harm – sentenced to intensive correction order – also sentenced to serve previously suspended sentence – whether intensive correction order could be imposed cumulatively upon an activated suspended sentence – whether sentenced to two or more terms of imprisonment "at the same time" – whether intensive correction order is a sentence to a term of imprisonnment. Corrective Services Act 1988, s 122, s 187(2)(d) Penalties and Sentences Act 1992, s 112, s 113, s 118, s 146, s 147 CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – TOTALITY – whether 12 month intensive correction order inadequate to meet the needs of general and specific deterrence – reference to respondent's criminal history – sentence imposed cumulatively upon earlier suspended sentence – whether totality of punishment manifestly inadequate for totality of criminal conduct |
COUNSEL: | Mrs L J Clare for appellant Mr J M McLennan for respondent |
SOLICITORS: | Director of Public Prosecutions (Queensland) for appellant Legal Aid Queensland for respondent |
- THE COURT: The respondent pleaded guilty in the District Court at Gladstone on 20 May last on two counts of assault occasioning bodily harm. On 13 August he was sentenced to a 12 month intensive correction order for those offences. However the learned sentencing judge also ordered him to serve the whole of a previously suspended sentence of two years imprisonment and imposed the intensive correction order cumulatively upon the suspended sentence. A term of three months, the suspended part of a six months sentence imposed in 1987 for possession of a dangerous drug, was ordered to be served concurrently with the two year period. His Honour also made several other orders. However this appeal, which is by the Attorney-General, is against the 12 months intensive correction order.
- The respondent is 31 years of age having been born on 26 December 1967. He has a prior criminal history dating from 1986 but that is mostly for offences relating to his dependence on drugs. He has served two periods of imprisonment, each of three months; both were for drug related offences, the one in 1987 already referred to, and one in 1997. His most serious prior conviction, and the one most relevant for present purposes, was for unlawful wounding, imposed in the District Court on 3 June 1998 for an offence committed on 23 November 1996, for which the wholly suspended sentence of two years imprisonment, ordered to be served on 13 August last, was imposed.
- That conviction and sentence is relevant in two ways. The first is that it is a prior conviction for violent conduct which must be taken into account in considering the adequacy of the sentence under appeal. The second is that the activation of the suspended sentence is relevant to the totality of the punishment imposed for the totality of the respondent's criminal conduct, involving that offence and the subject offences.
- The offence of unlawful wounding involved an assault with a broken Coca-Cola bottle with which he struck his victim, causing a gaping wound in his neck. The learned sentencing judge in the present appeal had before him the police brief in respect of this previous offence and the sentencing remarks of the learned sentencing judge who imposed the two year suspended sentence. It is unclear how much of the police brief was accepted as evidence by the judge who sentenced in respect of this offence and it appears that that judge accepted that the respondent, at the time he wounded his victim, was trying to escape and thought that three people, including the victim, were coming at him. That is no doubt one of the reasons why he was given a suspended sentence. The respondent's personal history provided other reasons.
- The first victim of the offences of assault occasioning bodily harm was a young woman with whom the respondent had been in a relationship which she had terminated a few days before the offences were committed. He continued to seek her out but she repeatedly told him that the relationship was over.
- On the day of the offences the respondent had followed the complainant for some time. Shortly prior to the commission of the offences he had consumed a substantial quantity of alcohol. He knocked at the door of her house and asked her for the return of his car keys. When he entered he punched her in the face knocking her down. When she was on the ground he kicked her in the face. She managed to flee and called out to a neighbour to call the police.
- The other complainant was another young woman, a friend of the first complainant. The respondent punched her in the face several times with both hands.
- Surprisingly, as there were other witnesses to these offences, the respondent denied his commission of them. Then, after pleading guilty, he again sought to deny the facts on which his plea was made. However he finally admitted them. There does not appear to have been, at any stage, any remorse shown by him.
- There is no question of any provocation of any kind mitigating the respondent's conduct in the commission of either of these offences. On the other hand, although the effect that this frightening episode must have had on each of the complainants must not be lost sight of, neither of the assaults was either premeditated or prolonged and neither of the victims appears to have suffered any long lasting injury. The offences are therefore towards the lower end of the range of seriousness of offences of this kind.
- The Attorney's submissions fall conveniently into two parts; those which relate to the legality of the orders made and those which relate to their adequacy to reflect the criminality involved. It is appropriate to consider them in that order.
- The Attorney contended that a sentence of an intensive correction order could not be imposed cumulatively upon an activated suspended sentence. Mrs Clare, who made this submission for the Attorney, relied principally on the construction of s 118 of the Penalties and Sentences Act 1992 which prohibits the making of an intensive correction order where a court sentences an offender to two or more terms of imprisonment "at the same time" and the total period to which the offender is sentenced is longer than one year. She submitted that here the respondent was sentenced to two or more terms of imprisonment at the same time because, at the same time, the two year sentence which had been imposed on 3 June 1998 was ordered to be served, pursuant to s 146, at the same time as the intensive correction order for one year was imposed. It may be accepted that the order requiring service of the suspended sentence and the intensive correction order were made at the same time. The question is whether, in ordering an offender to serve the whole or part of suspended imprisonment pursuant to s 147 a court is sentencing an offender within the meaning of s 118.
- This Court has previously held that, in ordering an offender to serve the whole or part of suspended imprisonment a court is not imposing a term of imprisonment within the meaning of s 157(2) of the Penalties and Sentences Act and consequently that, upon making such an order, the court cannot make a parole recommendation.[1] One reason for this was that "the notion of imposing a term of imprisonment, used in s 157(2), seems more naturally to refer to the original imposition of a term, under s 144, rather than to an order under s 147 that the offender serve the whole or part of the term initially ordered"; reference being made in this respect to s 10(1).[2] Similar reasoning, in our opinion, leads to the view that, in making such an order, a court is not sentencing an offender within the meaning of s 118. Indeed the terms of the provisions in Part 8 of the Act are, if anything, more strongly supportive of that conclusion than the provisions considered in Waters were of the conclusion reached in that case. Section 144(1) uses the term "sentences", the term used in s 118, to describe the act of imposing the suspended sentence. By contrast s 144(5) refers to the offender "being dealt with" under s 146, the provision pursuant to which the court may make the orders to which we have referred under s 147: see s 146(2) and s 146(7). The phrase "deals with" is also used in those subsections as it is in s 147(1). It seems plain from these provisions that it is the court which imposes the suspended sentence which is sentencing the offender and that the court which later orders the whole or part of that suspended sentence to be served is "dealing with" the offender under that sentence, that is making an order pursuant to a sentence already imposed, but not sentencing the offender.
- In the alternative Mrs Clare submitted that even if that were so the legislature did not intend an intensive correction order to be imposed cumulatively upon a suspended sentence ordered to be served because, if it were so imposed, it would be unclear when the intensive correction order commenced to operate. If an intensive correction order were a sentence of imprisonment for the purposes of the Corrective Services Act 1988 it would commence when, taking into account any remission granted in respect of the suspended sentence ordered to be served, the respondent had completed serving that sentence.[3] If that were so there would be no lack of clarity in determining when the intensive correction order commenced to operate. But Mrs Clare submits that it is not such a sentence or that there is at least doubt whether it is such a sentence.
- The terms of s 112 and s 113(1) of the Penalties and Sentences Act appear to imply that a sentence by way of an intensive correction order is a sentence to a term of imprisonment.[4] Section 113(2) provides that the provisions of an Act relating to remission of sentence (that is, of the Corrective Services Act[5]) do not apply to a sentence served by way of intensive correction. But it is significant that that provision does not say that, for the purpose of such an Act, a sentence served by way of intensive correction is not a sentence to a term of imprisonment. The provisions of Part 6 of the Penalties and Sentences Act, therefore, appear to require that, for the purposes of the Corrective Services Act, a sentence ordered to be served by way of intensive correction is a sentence to a term of imprisonment.[6] The order in the present case would therefore commence when, taking into account any remission granted in respect of the suspended sentence ordered to be served, the respondent has completed serving that sentence.
- There is, it is true, some awkwardness in the application of some of the provisions of the Corrective Services Act to intensive correction orders on the assumption that they are sentences to a term of imprisonment.[7] That is a consequence of the statutory fiction created by Part 6 of the Penalties and Sentences Act that an order which permits a person to remain in the community is a sentence to a term of imprisonment. But that awkwardness does not appear to be any the greater because an intensive correction order is sought to be imposed cumulatively upon an activated suspended sentence. The application of that statutory fiction to that situation is neither impossible nor absurd. We would therefore conclude that there is no legal impediment to the orders which the learned sentencing judge imposed.
- We turn then to the submissions with respect to the adequacy of the sentence imposed.
- Mrs Clare submitted that the sentence of a 12 months intensive correction order was inadequate to meet the needs of deterrence, both general and specific. She pointed to the respondent's criminal history, his substance abuse problem, the absence of remorse and a recommendation in a pre-sentence report against the imposition of a non-custodial order. That report noted that the respondent had little capacity for and poor motivation towards community based orders and it pointed out that there were available in prison appropriate programmes that could meet the requirements needed to assist his rehabilitation.
- However Mrs Clare conceded that in considering whether a sentence by way of an intensive correction order for a period of 12 months is manifestly inadequate, regard must be had to the fact that the respondent is also now required to serve the whole of the two years of his formerly suspended sentence because it is necessary to look at the totality of his punishment for the totality of his criminal conduct.[8] Before the learned sentencing judge counsel for the prosecution had conceded that, if the whole of the suspended sentence were ordered to be served, the sentence for these offences, to be imposed cumulatively upon that activated sentence, could be as low as 12 months imprisonment. He did not specifically concede that that could be served by way of an intensive correction order.
- However in our view the totality of the sentences imposed by the learned sentencing judge was not manifestly inadequate for the totality of the criminality involved in the offences for which the activated suspended sentence and the 12 months intensive correction order were ordered to be served. The respondent is still a relatively young man. He had previously undergone only two three month terms of imprisonment and his criminal record, although by no means a minor one, is nevertheless not extensive. There remain still reasonable prospects of his rehabilitation. Consequently although the total period of imprisonment imposed on him is a low one we do not think it is manifestly inadequate.
- We would therefore dismiss the appeal.
Footnotes
[1]R v Waters [1998] 2 QdR 442.
[2]R v Waters at 445, 446.
[3]Corrective Services Act 1988 s 122(2).
[4]Section 113(3) provides that, for the purposes of the provisions of an Act providing for disqualification for, or loss of, office or the forfeiture of benefits, the offender is taken not to have been sentenced to a term of imprisonment, but none of those Acts is relevant here.
[5]The provisions relating to remission of sentence are in Part III of the Corrective Services Regulations 1989; see Corrective Services Act s 130(e). But see also Criminal Code s 675, Constitution (Office of Governor) Act 1987.
[6]And s 187(2)(d) of the Corrective Services Act appears to make that assumption.
[7]Section 166(1)(3) is an example; and compare s 157(2) of the Penalties and Sentences Act.
[8]R v Rose CA No 191 of 1996, 23 August 1996; R v Musson CA No 302 of 1996, 20 December 1996.