R v Coyne[2005] QCA 233

SUPREME COURT OF QUEENSLAND

KEANE JA:  On 5 September 2003, the applicant was convicted on his plea of guilty of one count of stealing and was sentenced to perform 240 hours of community service within 12 months.  Within that period he committed two further offences, thus breaching a community service order and also contravening s 123(1) of the Penalties and Sentences Act 1992 (Qld). As a result, on 15 May 2005 he was resentenced on a stealing count and a sentence of one month imprisonment was imposed. The applicant was given bail, pending the hearing of this application for leave to appeal against sentence, on 18 May 2005.

The applicant contends that the learned sentencing judge erred in proceeding to sentence him on the footing that the breach of the community service order which resulted from the applicant's re-offending required that he be re-sentenced in respect of the original offence of stealing.

As to the circumstances of the offence, in relation to the count of stealing in respect of which the applicant was sentenced on 5 September 2003, the circumstances were that the applicant had stolen a four metre length of copper pipe valued at $110 from a construction site at Bowen Hills.

On 17 February 2004, the applicant drove a motor vehicle while disqualified.  On 30 March 2004, he pleaded guilty and was dealt with by the Magistrates Court for that offence.  He was sentenced to 18 months probation.  He was dealt with leniently because it was accepted by the prosecution that he had driven only a short distance after clutch starting the vehicle for his girlfriend who had picked him up after he had performed his community service and who had had difficulty starting the vehicle because the battery was dead.

On 13 October 2004, the applicant pleaded guilty to one count of possessing tainted property on 7 March 2004.  On that occasion he was found in possession of a name badge and a medical instrument which he had acquired while scavenging some time prior to his conviction on 5 September 2003.  He was sentenced to a six month good behaviour bond of $500.

The applicant had completed the 240 hours of community service when he appeared before the learned sentencing judge on 15 May 2005.

The applicant was born on 11 July 1960.  He has a lengthy criminal history.  He has previously been incarcerated.  The longest term of imprisonment was six years for armed robbery in 1984.  He has served regular terms of imprisonment since then. 

The applicant apparently describes himself as a "scrounger" in that he makes his living by scavenging property thrown away or abandoned by other people.

The report of the Community Corrections Co-ordinator which was tendered before the learned sentencing judge reported, as a contravention of the community service order, only the offence of possessing tainted property on 7 March 2004 although the report also mentioned in passing the offence of disqualified driving on 17 February 2004. That report recommended, "given that [the applicant] has successfully completed his Community Service Order", that the applicant be fined for the contravention pursuant to s 123(1) of the Penalties and Sentences Act.

The learned sentencing judge, in proceeding to resentence the applicant, clearly regarded the offence of driving while disqualified as being of more concern than the contravention reported by the Community Corrections Coordinator. 

The learned sentencing judge referred to the decision of the Court of Criminal Appeal in R v Jaworski, unreported, Court of Criminal Appeal, Qld, CA No 252 of 1991 at 7, where Thomas J, as his Honour then was, said in relation to an offender who had breached a community service order by further offending:

"What needed to be done was simply a resentencing for the original offence, taking into account the events that occurred, including the fact that he had performed part of what was required of him.  It was also to be a re-sentencing, with the hindsight given by subsequent events." 

The applicant contends that the learned sentencing judge erred in proceeding on the footing that the law required that there be a resentencing for the original offence.  The applicant points out that the remarks of Thomas J in R v Jaworski were made in relation to the now repealed provisions of s 223 of the Corrective Services Act 1988 (Qld), whereas in this case the learned sentencing judge was given a discretion by s 126(2) and s 126(4) of the Penalties and Sentences Act, inter alia, to impose a fine under s 123(1) of the Act in respect of the two further offences.

It is submitted on behalf of the Crown that the learned sentencing judge's reference to "what needed to be done" in this case by reference to the statement of principle in R v Jaworski should not be taken as an indication that his Honour thought that he was bound in law to re-sentence and to impose a custodial term in respect of the original offence.

The Crown points to the circumstance that the report of the Community Corrections Coordinator refers expressly in its recommendation to s 123(1) of the Penalties and Sentences Act and that the applicant's counsel at the hearing referred to the option of imposing a fine as opposed to the option of re-sentencing the applicant for the original stealing offence.

As to the first of the Crown's points, it is, of course, the case that s 123(1) (which makes a contravention of a community service order an offence) does not provide a judge with the option of not re-sentencing the offender in respect of the original offence.  This work is done by s 126(2) and s 126(4) of the Penalties and Sentences Act.  As to the second of the Crown's points, it is, in my respectful opinion, difficult, if not impossible, to regard the learned sentencing judge's consideration of "what needed to be done" in this case as not governed by the passage his Honour cited from R v Jaworski, that is to say, the learned sentencing judge treated the passage from R v Jaworski as a statement of legal principle binding upon him in relation to the determination of the present case.

In my respectful opinion, the learned sentencing judge erred proceeding on the footing that he was bound to re-sentence the applicant in respect of the original stealing charge.  There were other sentencing options available to his Honour.  As McPherson JA explained in R v Solway [2003] QCA 35; CA No 297 of 2002, 14 February 2003 at [6], there is a range of sentencing options available under s 126 of the Penalties and Sentences Act.  In my respectful opinion, in this case the learned sentencing judge "misapprehended the nature of his function … and consequently fettered his discretion by assuming that the applicant must be sentenced for the original offence".  It follows that it falls to this Court to exercise the sentencing discretion afresh.

In this regard, as the learned sentencing judge acknowledged, the applicant had, by the time he came to be sentenced on 15 May 2005, completed the community service which had been imposed upon him.

The applicant also makes a further submission that the original stealing offence was at the lowest end of the scale of seriousness and that the subsequent offending was trivial when the circumstances in which the offences were committed were taken into account.

It was open to the learned sentencing judge, as it is open to this Court, to deal with the applicant by imposing a fine pursuant to s 123(1) of the Penalties and Sentences Act.  The applicant submits that the sentence which should have been imposed by the learned sentencing judge, and which should now be imposed by this Court, is a fine of $300 to $500. 

In my respectful opinion, the circumstances of the offences which contravene the community service order were not such as to warrant an order for actual imprisonment.  Neither of these offences involved conduct which could be regarded as a defiance of the community service order.  Some punishment must flow from the breach of the court's order to deter the applicant and others from this sort of conduct, but it must be remembered that other courts have already punished the applicant for the substance of these breaches, and that the applicant had already served the entirety of the 240 hours of community service to which he had previously been sentenced for the original offence, which was the maximum that might have been imposed.  Further, it must be borne in mind the applicant served a period of three days actual imprisonment between his sentencing on 15 May 2005 and when he was given bail pending the hearing of this appeal.  This is a matter which this Court is entitled to take into account in determining the appropriate punishment.

Bearing all these circumstances in mind, the considerations of deterrence which arise in relation to an offender in the circumstances of this appellant could, in my view, be met by the imposition of a fine as contemplated by s 123(1) of the Penalties and Sentences Act.  In my opinion, that is what should be done.  The applicant should be ordered to pay a fine of $300 and be given three months in which to pay it. 

In my opinion, the application for leave to appeal against sentence should be granted.  The appeal should be allowed, the sentence set aside and, in lieu thereof, the applicant should be ordered to pay a fine of $300 with three months to pay.

WILLIAMS JA:  I agree.

JERRARD JA:  I agree with Keane JA that irrespective of whether the learned sentencing judge misdirected himself and fettered his discretion, the facts in this matter justified only a sentence that was very moderate and not a sentence of imprisonment.  The disqualified driving happened when there was only one week more to run in the then existing period of suspension and the tainted property that Mr Coyne possessed had been in his possession for a long time and well before the sentence imposed in September 2003.

In those circumstances, Mr Coyne's conduct was only very marginally in breach of his obligations under the community service order and a little more than a nominal punishment was appropriate.  That would have been achieved by an order from the District Court judge admonishing and discharging Mr Coyne or by the imposition of a small fine as proposed by his Honour, Keane JA.  I agree with the orders he proposes.

WILLIAMS JA:  Well, the orders will be as indicated by Justice Keane.