R v Hughes[2000] QCA 16

SUPREME COURT OF QUEENSLAND

1. PINCUS JA:  There has been filed a notice of appeal against conviction and sentence.  The appellant pleaded guilty in the District Court to three offences:  that during a certain period he unlawfully stalked the complainant woman, that he entered her dwelling with intent to commit an indictable offence and that he unlawfully and indecently assaulted her.  After hearing submissions on sentence the judge imposed a sentence of 3 years imprisonment on each of the counts of stalking and assault, suspending each term after 278 days, the operative period being 5 years;  as to the entry offence, the judge ordered probation for 3 years.  The result was that the appellant was entitled to be released immediately, because he had served 278 days awaiting trial.

2. The notice of appeal sets out two grounds, that the sentence was manifestly excessive and that the appellant was coerced by counsel to accept what is described as a plea bargain, without having his options explained.

3. The facts of the case were not it appears disputed at the hearing before the District Court judge. The complainant is a 28 year old divorced woman with three young children and she had been a friend of the appellant for some years before the offences in question. Their friendship involved sexual activity of a casual kind. They did not live together; relationships between the two deteriorated and on 8 July 1998 after an argument the complainant told the appellant not to return to her residence;  then there began the events constituting the stalking count.  She later saw him looking through a window of her residence and heard the sound of a key being put in the front door.  Looking through the peephole in the door she saw that the appellant was there and he called out to her.  He left, but a week later he was seen at a window of the house and then three days after that was seen by one of the complainant's young daughters outside her bathroom window.  On that same day the complainant saw him outside her bedroom window and yelled at him to get away;  he then left.  The next morning she saw that lugs which held her bedroom flyscreen in place had been moved or altered.  A few days later when hanging out the washing she saw him looking over the fence.  She went inside and locked the door and later phoned him, but he denied having been present.  On the following day one of the daughters saw the appellant hiding behind a tree near the house and two days later he was again seen through a bedroom window.  On some of these occasions the police were contacted. 

4. The last of the incidents I have mentioned as constituting the stalking count was on 27 July 1998. Three days earlier, on 24 July 1998, the entry with intent and indecent assault occurred. The prosecutor said below that the complainant opened the door of her residence slightly to speak to the appellant, who was knocking and calling out; he asked to come in and she said no. He then pushed the door open and assaulted her. She resisted; he partly removed her clothing despite her resistance and, to put it simply, acted in a way which seemed to be preparatory to a rape. The complainant called out "Get the police" twice, and a neighbour came, apparently in response to that call, and then the appellant left.

5. In submissions made below the appellant's criminal history was discussed, counsel for the appellant emphasising that his behaviour had improved. It is true that apart from the subject offence there have been only a few offences since 1987, but nevertheless, the criminal record is, prior to 1987, quite extensive. It goes in favour of the appellant that there do not appear to be any sexual offences or offences of violence in his record.

6. I have noticed that the head sentence of 3 years which was imposed was in accordance with the submissions of both counsel below; it does not appear to me possible to argue that it should be reduced. As the appellant did not appear and was not represented in this Court there would be no reason to consider the matter further, but for the doubt, which was discussed at the hearing, as to one aspect of the sentencing. That was that the judge made a probation order and an order of imprisonment to run concurrently, a course which, as it appears to me, cannot be reconciled with Lihou [1975] QdR 44, or with Hughes [1999] 1 QdR 389. These cases, together with M [1999] QCA 442;  CA No 251 of 1999, 2 November 1999, were discussed in the reasons of this Court in A and S [1999] QCA 503;  CA Nos 292 and 293 of 1999, 3 December 1999, where it was said in the principal judgment:

"[23]   It is therefore clear that the scheme for the making of probation orders in respect of adult offenders set out in Part 5 Division 1 of the Penalties & Sentences Act 1992 does not currently permit a probation order to operate concurrently with a sentence of imprisonment, other than as provided in s 92(1)(b) of the Act".

The question in the case therefore becomes:  what alteration should be made to the sentences in order that they may be in conformity with the law as just stated?  I note that the learned primary judge expressed a lack of enthusiasm for the making of a probation order, in view of the age of the appellant, and it appears that the order was made to achieve the object of subjecting the appellant to a condition that he not have any contact with the complainant.  Eliminating the probation order would deprive the complainant of this advantage;  but the suspended sentences of 3 years, with over 2 years left to serve, which the judge imposed, must provide a substantial incentive to the appellant not to offend further against the complainant;  the cost to him of doing so is likely to be a substantial period of incarceration.  As to the problem posed by the decision in Neal (1982) 149 CLR 305, I agree with the reasoning of Thomas JA.

7. There is as I have mentioned an appeal against conviction, the appellant having pleaded guilty; it is unnecessary to discuss that topic, since nothing was put before us to support the (now very commonly made) complaint against counsel's conduct.

8. I would dismiss the appeal against conviction, grant the application for leave to appeal against all sentences and allow the appeal by setting the sentences aside and imposing in lieu the same sentence on all counts being that imposed below: 3 years imprisonment suspended after 278 days, the operational period being 5 years, a declaration that the applicant has already served pre-sentence custody from 31 October 1998 to 5 August 1999, a period of 278 days.

9. THOMAS JA:  The applicant was convicted of stalking, entering a dwelling house with intent and indecent assault.  On the first and third counts he was sentenced to three years imprisonment to be suspended after 278 days, accompanied by a declaration that the applicant had already served a period of 278 days in pre-sentence custody.  The effect was one of immediate suspension of the sentence.  The operative period during which the sentences were suspended was five years.

10. On the second charge a probation order for three years was made with a special condition that the applicant have no contact with the complainant during the currency of the order. Convictions were recorded on all counts.

11. The applicant did not appear or present any submissions in support of the appeal. However the Court raised with counsel for the Crown the question whether the above combination of orders could properly be made having regard to decisions of this Court in R v Hughes^[1]  and R v M, ex parte Attorney-General.^[2]

12. It was held in Hughes that except to the extent specifically permitted under s 92(1)(b) of the Penalties and Sentences Act 1992 it is not permissible for a sentencing court to make a probation order to operate concurrently with a sentence of imprisonment.  Section 92(1)(b), and its predecessor, section 17(1) of the Offenders Probation and Parole Act 1980 authorised the imposition of a sentence which imposes up to six months imprisonment along with a probation order which operates from the release of the offender for the remainder of the probation period.  The principle in Hughes was subsequently held to preclude the making of concurrent orders of probation and of intensive correction, upon the legal fiction that intensive correction is a sentence of imprisonment^[3].  The principle however has not been found to require application so as to prevent concurrent orders of detention and probation in sentences under the Juvenile Justice Act 1992.^[4]  That decision however proceeds upon distinguishable statutory provisions in the latter Act.

13. The principle expressed in Hughes and R v M, ex parte Attorney-General is sometimes inconveniently restrictive.  In the present case the combination of sentences in my view represents a satisfactory result that is quite workable.  A custodial component exceeding six months was appropriate and indeed the applicant had already served approximately nine months.  The effect of the order was an immediate release.  It was desirable that a probation order be made, as among other things it contained the benefit of a restraint from contract with the complainant.  It would have been undesirable to impose an artificially light custodial term (for example six months or less) simply to create a situation in which a probation order could lawfully be imposed.  I do not see any practical inconvenience or unworkability in a concurrent probation order in the event that future misconduct results in the applicant being returned to prison to serve all or part of the suspended sentence.  In such an event there would simply be no need for the carrying into effect of the probation order during the period of imprisonment.

14. Unfortunately the position now seems settled so far as this Court is concerned by the decisions referred to above. The only solution, if it is thought desirable that courts have the opportunity of making such a combination of orders, would seem to be in the hands of the legislature.

15. It follows that the combination of the concurrent orders made by the learned sentencing judge was not authorised by the Penalties and Sentences Act.  The sentences should be set aside and this court should proceed to sentence afresh.

16. The most appropriate order in those circumstances is to impose the same suspended term of imprisonment in respect of each of the three counts.

17. I note the problem raised by Helman J arising from the decision in Neal v The Queen^[5] but do not consider that that decision stands in the way of the order that I propose.  In the first place it would not be possible to offer the appellant the opportunity to abandon the application, as it has been shown that the sentencing procedure below was invalid in that an order was made that the learned judge had no power to make.  It must therefore be set aside and there must be a re-sentence either by this court or by the District Court.  It is obviously undesirable that the matter be further protracted by sending it back to the District Court.  In the second place the proposed order does not disadvantage the applicant in any way or place him under any additional burden.  To the contrary, he is now freed from the obligations of a probation order.  His liability to be called upon to serve a suspended sentence is the same as it was before.  Thus neither in procedure nor in substance is it necessary or even possible to go through the process that was considered necessary in Neal.

18. The appeal against conviction should be dismissed for the reasons given by Pincus JA.

19. I propose the following orders:

1. Appeal against conviction dismissed;

2. application for leave to appeal against sentence granted;

3. the sentences below are set aside and in their place there will be concurrent sentences on all three counts of imprisonment for three years with an operational period of five years to be suspended after 278 days with a  declaration that the applicant has already served pre-sentence custody from 31 October 1998 to 5 August 1999, a period of 278 days.

20. HELMAN J.:  I have had the advantage of reading the reasons prepared by Pincus and Thomas JJ.A. 

21. I agree that the appeals against conviction should be dismissed for the reasons given by Pincus J.A. 

22. It follows from their Honours’ reasons – with which I agree - on the subject of the sentences that the application for leave to appeal against the sentences should be granted and the sentences imposed by the learned judge set aside because there was an impermissible combination of sentences.

23. I agree with Pincus and Thomas JJ.A. that this Court should then impose sentences for the unlawful stalking and the sexual assault which are the same as those imposed for those offences below.  As to the entry of the dwelling with intent to commit an indictable offence in it, however, I am in respectful disagreement with the other members of this Court, because the sentence they propose is more severe than that imposed by the learned sentencing judge.  While that outcome would clearly be open on what is at present before us, I think the correct course is to give the applicant and the Crown a further opportunity to be heard before proceeding to impose for that offence.  In the circumstances, it will not be possible for the applicant to abandon his application, but the procedure I suggest is, I believe, in accord with the decision of the High Court in Neal v The Queen (1982) 149 C.L.R. 305.