SUPREME COURT OF QUEENSLAND

1. McMURDO P:  On 17 March 2006 this Court granted the applicant's application for leave to appeal against sentence, allowed the appeal, set aside the sentence of two months imprisonment and instead imposed a sentence of 13 days imprisonment.  The Court stated that it would subsequently provide its reasons for those orders.

2. On 20 April 2005 the applicant was sentenced to six months imprisonment suspended forthwith with an operational period of one year for one count of indecent treatment of a child under 12 years. He was next convicted on 22 August 2005 during the operational period of driving a motor vehicle under the influence of liquor on 3 July 2005. On 3 March 2006 he appeared before another District Court judge to be dealt with for committing an offence during the operational period of a suspended sentence. The second judge activated in part the sentence imposed on 20 April 2005 by ordering that the applicant serve two months of the six month suspended term of imprisonment.  The applicant contends that this sentence was manifestly excessive in all the circumstances.

3. The applicant has no other criminal history. He is now 31 years old. He has some traffic history (nine speeding offences) but he has no previous drink driving offences.  The original offence occurred when the applicant, who was friendly with the complainant's mother, touched the 10 year old complainant momentarily on the outside of her clothing in the pubic area after he had been drinking alcohol.  He immediately desisted and before the complainant could ask him to stop.  The prosecutor submitted that the incident fell at the lower, if not towards the lowest, end of seriousness.  The applicant had a good work history.  He pleaded guilty at an early stage.  Through his counsel he gave an undertaking to participate in counselling.  Both counsel contended that the sentence imposed was appropriate.  The sentencing judge acceded to their submissions.  His Honour added "... if you do put a foot wrong, in terms of committing any other offence, particularly an offence even vaguely like the current one given that you've undertaken to take appropriate steps to make sure that you're not a person who is tempted in this direction, if you were to put a foot wrong then you would be brought back before the court and the court rightly would ask you what you'd done about that undertaking to get some counselling".

4. The subsequent offence was detected when the applicant was involved in a single vehicle accident at 1.45 am on 3 July 2005. His vehicle left the road and crashed through a house fence. Fortunately no-one was injured although the applicant was treated at hospital for chest pain. He tried to leave the scene but was restrained by others. His blood alcohol content was a staggering .235 per cent. He was convicted and fined $1,850 and disqualified from holding a driver licence for 18 months.

5. In the proceedings on 3 March 2006 dealing with the applicant for committing an offence during the operational period of the suspended imprisonment, the applicant's counsel explained that he had been celebrating his new job as a warehouse manager. He fell asleep on a lounge and remembered nothing more until speaking to police officers after the accident. The applicant's 68 year old father underwent triple by-pass surgery in July 2005 and the applicant had cared for him since. The father wrote a letter to the court confirming this and stating that the applicant had been affected by the strain and stress of being both a carer and holding a demanding job. The applicant's counsel urged the judge to extend the operational period of the suspended sentence under s 147(1)(a)(i) Penalties and Sentences Act 1992 (Qld) ("the Act").

6. The second judge in sentencing the applicant referred to the circumstances of the original offence and that the original sentencing judge made it very clear what would happen if the applicant did not take advantage of the chance given to him by the court. About seven weeks later the applicant committed a serious breach of the law involving a motor vehicle, a powerful machine requiring proper care and control. His Honour determined that the circumstances did not warrant activating the whole suspended sentence, only two months of it.

7. Under s 147(1) of the Act the second judge could have ordered that the operational period be extended for up to one year (s 147(1)(a)(i)) or that the applicant serve the whole of the suspended imprisonment (s 147(1)(b)) or that he serve part of the suspended imprisonment (s 147(1)(c)). Under s 147(2) the court must order the applicant to serve the whole of the suspended imprisonment unless it is of the opinion that it would be unjust to do so. Under s 147(3) in deciding that question the court must have regard to whether the subsequent offence is trivial having regard to:

"(i)the nature of the offence and the circumstances in which it was committed; and

(ii)the proportion between the culpability of the offender for the subsequent offence and the consequence of activating the whole of the suspended imprisonment; and

(iii)the antecedents and any criminal history of the offender; and

(iv)the prevalence of the original and subsequent offences; and

(v)anything that satisfies the court that the prisoner has made a genuine effort at rehabilitation since the original sentence was imposed, including, for example -

(A)the relative length of any period of good behaviour during the operational period;  and

(B)community service performed; and

...

(vi)the degree to which the offender has reverted to criminal conduct of any kind; and

(vii)the motivation for the subsequent offence; and

(b)the seriousness of the original offence, including any physical or emotional harm done to a victim and any damage, injury or loss caused by the offender; and

(c)any special circumstance arising since the original sentence was imposed that makes it unjust to impose the whole of the term of suspended imprisonment".

8. Under s 147(4) if the court considers under s 147(2) that it is unjust to order the offender serve the whole of the suspended imprisonment it must state its reasons.

9. It may be inferred that the second judge determined it would be unjust to order the applicant to serve the whole of the suspended imprisonment, although his Honour did not specifically state this. There is no application for leave to appeal from that conclusion.

10. In determining whether an offender should serve any part of the suspended imprisonment or that the offender's term of imprisonment be further suspended a useful commencing point is the matters listed in s 147(3). The circumstances of the applicant's drink-driving offence were not trivial in the ordinary sense of that word for the reasons identified by his Honour: to drive a vehicle with such a high blood alcohol level is to create a potentially lethal situation. The maximum penalty however was only nine months imprisonment and the offence was a summary one under the Transport Operations (Road Use Management) Act 1995 (Qld).  The offender had no previous like convictions and pleaded guilty.  He committed but one offence during the operational period.  The consequence to him of activating the whole of the suspended imprisonment would be that he would be sent to prison for six months for having committed an offence which would not ordinarily warrant a prison sentence in the light of his antecedents and criminal and traffic history.  His otherwise good conduct (his obtaining employment for some of the period, his assistance to his ageing father who was recovering from major surgery and his absence of contact with the complainant and her mother) suggests that he has made some effort at rehabilitation since the original sentence was imposed, although there was nothing to show he had undertaken the promised counselling.  He has certainly not reverted to criminal conduct of the sort involved in the original offence.  Recidivism was the major concern of the original sentencing judge in imposing the fully suspended sentence.

11. The second judge on 3 March 2006 appears to have given insufficient weight to these factors and has not explained in his sentencing reasons what factors led him to conclude that the applicant should serve two months of the suspended sentence rather than some longer or shorter period or that instead the operational period should be extended for not longer than one year. It follows that the sentencing discretion under s 147 of the Act has miscarried. This Court should now re-exercise that discretion. I note that, in addition, the judge did not adequately state his reasons as required by s 147(4) for not making the order under s 147(1)(b) but, as I have observed, the applicant does not contend that it would have been anything other than unjust to order him to serve the whole of the suspended imprisonment.

12. The respondent perspicaciously points out that alcohol was a common trigger in both offences and that the applicant had not dealt with his obvious alcohol problem since the original sentence. I am satisfied, however, that the subsequent offence was trivial within the meaning of that term in s 147(3) having particular regard to the matters set out in s 147(3)(a)(i) to (vii). The original offence was plainly at the minimal end of seriousness for offences of that type (s 147(3)(b)). These factors lead me to conclude that at the time of the s 147 hearing the most appropriate order would have been to extend the operational period for a short time under s 147(1)(a)(i).  But the applicant has now served over two weeks in custody.  No doubt this has been a significant punishment to him so that I would not now impose any further punishment.  It is to be hoped, however, that he honours his undertaking to the court on 20 April 2005 to obtain counselling in respect of the original offence.  He would also be wise to obtain assistance for his alcohol problem which, as the respondent submits, appears to be the common link between the two offences.

13. FRYBERG J:  The circumstances giving rise to this application are sufficiently described in the reasons for judgment of the President.

14. The sentencing judge did not order the applicant to serve the whole of the suspended imprisonment. He must therefore have held the opinion that to make such an order would have been unjust.^[1]  The respondent did not challenge that finding.  His Honour's reasons for holding that opinion may be able to be inferred from his sentencing remarks, but I agree with the President that they were not adequate to constitute compliance with s 147(4) of the Penalties and Sentences Act 1992 (Qld).

15. In those circumstances it fell to his Honour to deal with the applicant either by extending the operational period of the suspended imprisonment or by ordering that he serve some part of that imprisonment.^[2]  That involved exercising a discretion akin to the general sentencing discretion.  The Act does not require reference to s 147(3) at this point, though doubtless many or all of the factors there listed would usually be relevant.  Whether it requires reference to s 9 is more difficult.  That section sets out factors to which a court must have regard “in sentencing an offender”.  “Sentence” is defined to mean “any penalty or imprisonment ordered to be paid or served, or any other order made, by a court after an offender is convicted, whether or not a conviction is recorded.”^[3]  That suggests that in making an order under s 147(1)(a) or (c) a court is sentencing an offender.  On the other hand it might be thought that this conclusion is inconsistent with the decision of this court in R v Skinner, ex parte Attorney-General;^[4] although the definition of “sentence” was not referred to in that decision.

16. These matters were not the subject of submissions before us and it is inappropriate to determine them in this application. Even if s 9 has no application to proceedings under s 147(1)(a) or (c), many or all of the considerations there listed would, like those listed in s 147(3), usually be relevant.

17. The sentencing judge referred to the circumstances of the earlier and subsequent offences and to the applicant's criminal history. He then said:

“In deciding whether the unserved balance of a suspended sentence should be activated in full, in part or not at all one takes into account inter alia the seriousness of the offence itself.  At the end of the day I do not propose activating the sentence in full.

I activate in part the sentence wholly suspended in the Brisbane District Court on the 20th of April 2005 and for the original offence you are sentenced to two months’ imprisonment.”

In that passage his Honour seems to have combined the questions which arise first under s 147(2) and (only after that question is answered) under s 147(1).

18. With great respect, that is not in my judgment the correct approach under s 147. That section requires the issue under s 147(2) to be resolved before a decision is made in relation to activation “in part or not at all” of the suspended imprisonment. As I have observed elsewhere, there may be cases where the issues cannot be completely separated and where it is a “legitimate approach to the formation of the opinion referred to in s.147(2) … to consider whether in the circumstances it would be just to make an order under s.147(1)(c) or for that matter, to take any other action open under s.147(1).”^[5]  That does not justify conflation of issues which the Act requires to be considered separately.

19. At the close of argument on the application I was uncertain as to the proper outcome. Having given further consideration to the matter I have come to the conclusion that the order made by the majority was correct, for the reasons given by the President. I now join in that order.

20. DOUGLAS J:  I have had the advantage of reading the reasons to be published by the President for the orders made by the Court on 17 March 2006.  I agree with those reasons particularly because of the disproportion between the applicant’s culpability for the drink-driving offence and the consequence of activating the whole of the suspended term of imprisonment.

21. The comparison between the circumstances of the drink-driving offence and the offence of indecent treatment of a child was not such as to justify the activation of the earlier suspension; the opportunity offered by the suspended sentence not having been spurned deliberately by the applicant committing another offence comparable to the offence of indecent treatment. Where the drink-driving offence would not have warranted imprisonment itself, and the alternative option of extending the operational period of the suspended sentence was available, that option should have been adopted by the learned sentencing judge.

22. It is only in that sense that the drink-driving offence can be regarded as “trivial”, to use the otherwise inapt statutory language, namely that it does not justify an order that the applicant serve the whole of the suspended term of imprisonment.