R v Aksu[2000] QCA 337

COURT OF APPEAL

DAVIES JA

AMBROSE J

CHESTERMAN J

CA No 142 of 2000

THE QUEEN

v.

TURGAY AKSUApplicant

BRISBANE

..DATE 17/08/2000

JUDGMENT

DAVIES JA:  On 5 March 1998 the applicant pleaded guilty to one count of robbery with actual violence, one of stealing, two of fraud, one of receiving and one of entering a dwelling with intent. 

The offences of robbery with violence and entering a dwelling house with intent were committed on 5 September 1996 and were quite serious in nature.  The applicant entered the dwelling house of another man.  After engaging in a sexual act with him he demanded money from that man.  When his demand was refused he tied the man to the toilet and stole various items of his property. 

The other offences were committed at various times in 1996 and 1997.  They consisted of failing to return four rented videos, failing to pay for fuel that he had put in his motor vehicle at a service station and receiving a stolen Bartercard which he unlawfully used to purchase goods.

For all of these offences the applicant was sentenced to an effective term of imprisonment of two years wholly suspended for an operational period of three years.  He was ordered to pay compensation totalling $2,481 in default six months imprisonment.

At the time this sentence was imposed the applicant was 34 years of age having been born on 4 January 1964.  He had a number of prior convictions dating from 1982.  Two of these were for breaking, entering and stealing, one was for stealing and two were for possession of prohibited drugs and supply of a prohibited drug.

On each of the convictions for drug offences which occurred in 1990 and 1992 the applicant was sentenced to short terms of imprisonment.  In the circumstances he was perhaps fortunate not to be obliged to serve a term of actual imprisonment upon his conviction for the offences to which I have just referred.

On 6 March this year the applicant was found by police asleep in his car.  His car was searched and in consequence he was convicted the same day in the Magistrates Court of two counts of possession of cannabis and amphetamines, one of unlicensed driving, one of possession of two knives in a public place without reasonable excuse and one of failing to properly dispose of a syringe.  For these offences he was sentenced to an effective term of three months imprisonment.

More importantly for present purposes because these offences were committed during the operational period of the suspended sentence imposed in respect of the earlier offences the District Court was obliged to make an order that the applicant serve the whole of the suspended term of imprisonment unless it was of opinion that it would be unjust to do so.  The learned District Court Judge made such an order and it is against that order that the applicant seeks leave to appeal.

In deciding whether it would be unjust to order the applicant to serve the whole of the suspended imprisonment the learned sentencing Judge was obliged to have regard to three factors.  The first was whether the subsequent offences were trivial, the second was the seriousness of the original offence and the third was any special circumstances arising since the original sentence was imposed which made it unjust to impose the whole of the term of the suspended sentence.  (Penalties and Sentences Act section 147(3)).

The factors to which section 147(3)(a) require the Court to have regard in determining whether the subsequent offence is trivial arguably give a rather unusual meaning to the word "trivial" making it in effect a relative term.  (See Gordon & Camp v. Whybrow CA 10 of 1998 per Fryberg J.) 

They include the proportion between the culpability of the offender for the activating offences and the consequence of activation; the antecedents and criminal history of the offender; the prevalence of the original and subsequent offences; anything that satisfies the Court that the offender has made a genuine effort at rehabilitation since the original sentence was imposed including the length of any period of good behaviour during the operational period; the degree to which the offender has reverted to criminal conduct of any kind; and the motivation for the subsequent offence.

On the other hand, the view has been expressed in this Court that the word "trivial" should not be given a meaning other than its ordinary meaning because of the above factors.  (See R v. Edward CA 350 of 1997.) 

For reasons which appear in the remarks I am about to make it is in my view unnecessary to resolve this difference of view.  I agree with the learned sentencing Judge that it would be difficult in the ordinary sense of that word to describe the offence of possession of amphetamines even for the offender's own personal use as trivial.  On the other hand the length of time since the commission of the original offences during which the applicant appears to have been of good behaviour and the disproportion between the culpability of the applicant for the activating offences and the consequence of activating the whole of the suspended imprisonment together appear to make it harsh upon the applicant to require him to serve the whole of the suspended term.

Whilst it may be accepted for the purpose of this application that these factors do not render the activating offences trivial they are matters which it is relevant to take into account in determining whether it would be unjust to order that the whole of the suspended sentence be activated.  (See section 147(3)(c).)

The applicant plainly has a drug problem and unless he can overcome this he will continue to offend and be obliged to serve terms of imprisonment of increasing duration.  However, I think that in the circumstances of this case, the factors which I have mentioned, the length of time during which the applicant managed to avoid committing any criminal offences since his conviction on 5 March 1998 and the substantial disproportion between his culpability for the activating offences and the consequence of activating the whole of the suspended imprisonment should have justified an opinion that it would be unjust to order that the whole of the suspended sentence be served.

These matters, in my opinion, justified an order that one half only of the suspended imprisonment be served.  Accordingly, I would grant the application, allow the appeal, set aside the activated term of two years imprisonment and in lieu thereof order that the applicant serve part of the suspended imprisonment namely a term of 12 months and that that term be served concurrently with the term of six months imprisonment which the learned sentencing Judge imposed for the failure to pay compensation originally ordered and the term of three months imprisonment imposed for the breach offences. 

AMBROSE J:  I agree and have nothing useful to add.

CHESTERMAN J:  I also agree.

DAVIES JA:  The orders are as I have indicated.