SUPREME COURT OF QUEENSLAND

[1]  JERRARD JA:  In this application I have read the reasons for judgment of Douglas J and respectfully agree with those, and the order proposed by His Honour. The number of Mr Bravo’s offences and appearances in different courts makes it difficult at first to grasp the effect of the sentence imposed on 4 November 2005, but when understood it can be seen that it is not manifestly excessive.

[2] Mr Bravo had pleaded guilty in the Brisbane District Court on 16 May 2003 to a number of charges, which had included robbery with personal violence.  He had spent 176 days in pre-sentence custody from 30 November 2002 until 16 May 2003, which could not be declared under s 161 of the Penalties and Sentences Act 1992 (Qld), because it related to a breach of probation which was yet to be dealt with in the Magistrates Court.  As explained by Douglas J, the learned District Court judge imposing sentence on 16 May 2003 ultimately took that pre-sentence custody into consideration by imposing sentences of two years imprisonment, to be suspended after eight months. 

[3] Mr Bravo re-offended very soon after his release from custody, committing offences between 23 March 2004 and 9 August 2004.  Those included, on my count, seven offences of unlawfully using a motor vehicle, five offences of stealing, five offences of fraud, one offence of possessing a dangerous drug, two offences of possessing tainted property, and two offences of burglary.  At first Mr Bravo was placed in an intensive drug rehabilitation order in respect of those offences, but after failing on that was sentenced to two years imprisonment on 29 June 2005.  He had been in custody from a date in August 2004 until 31 January 2005, when placed on that intensive drug rehabilitation order; he was then in custody again from 4 April 2005 until 29 June 2005, when sentenced to two years imprisonment.

[4] The effect of the two year sentence imposed on 29 June 2005 was that Mr Bravo had a conditional release date of 7 February 2006.  When he was sentenced in November 2005 to serve the 16 months remaining of the activated two year sentence imposed in May 2003, to be served cumulatively, the effect of that order – and this was common ground on his application – was that his eligible date for post-prison community-based release became 10 June 2006, only four months later.  Once it is grasped that Mr Bravo has a serious problem with drug addiction and needs supervision and assistance in the community, and needs to demonstrate that releasing him into the community is an acceptable risk for other members of it, it is clear that the sentence imposed was not manifestly excessive.  It is one which could help Mr Bravo, and it is up to him whether he succeeds in obtaining release from prison when he is eligible for that.

Accordingly, I would dismiss the application.

[5]  FRYBERG J:  For the reasons stated by my colleagues, this application should be dismissed.

[6]  DOUGLAS J:  This is an application for leave to appeal against a sentence activated by the District Court on the applicant on 4 November 2005.  The applicant had breached an earlier suspended sentence imposed on 16 May 2003 for four offences including one of robbery with personal violence.  For that offence he was sentenced to imprisonment for a period of two years with an order that the term be suspended after he served eight months.  The operative period of the sentence was expressed to be for three and one half years.  That sentence was imposed in circumstances where he had been in pre-sentence custody for about six months which could not be declared as pre-sentence custody but which was taken into account in the sentence framed by the learned sentencing judge.  He proceeded on the basis that, apart from that pre-sentence custody, a head sentence of two and one half years would have been appropriate.  That is what led him to impose the sentence of two years.  The plea of guilty led to the suspension of the sentence after eight months. 

[7] At the time of his sentence for the charge of robbery with personal violence he was on probation for earlier property offences.  A magistrate imposed a concurrent term for breach of that probation order on 21 May 2003 and in February 2004 the applicant was released into the community in respect of the partially suspended sentence.  Almost immediately, between March and August 2004, he committed a further 25 drug and property offences including unlawful use of a motor vehicle, fraud and burglary involving property where there was an estimated loss of $34,929. 

[8] For those offences, he was, on 31 January 2005, sentenced to 30 months imprisonment suspended upon the making of an intensive drug rehabilitation order.  He did not adhere to the program envisaged by the rehabilitation order, resuming drug use immediately.  The submissions made originally on his behalf were that he had, in fact, developed an addiction to heroin while he was in the correctional centre serving the portion of the suspended sentenced imposed in respect of the offence of robbery with personal violence.  His criminal record indicates that he had problems with drug abuse in the past, however, and we were told on the appeal that what was meant to be conveyed to the learned sentencing judge was that the applicant had a long-standing heroin problem earlier and access to the drug while he was in the correctional centre.

[9] The intensive drug rehabilitation order was terminated on 29 June 2005 and the applicant was then resentenced to two years’ imprisonment with 263 days declared as time already served under that sentence. 

[10]  When he was brought back before the District Court to be dealt with under s. 147 of the Penalties and Sentences Act 1992 in respect of his breach of the suspended sentence of 16 May 2003, the main issue before the learned sentencing judge was whether the balance of the suspended sentence should be made cumulative on the two years’ sentence of imprisonment imposed for the 25 drug and property offences he committed between March and August 2004 after he was released into the community on his partially suspended sentence or whether it should be made concurrent with that sentence. 

[11]  The submission made on the applicant’s behalf was that his “hopeful rehabilitation” had to be attended to.  When considering that issue his Honour said:

“Bearing in mind the seriousness of the original offence which was a robbery with actual violence, bearing in mind the large number of breaching offences, 25, bearing in mind your age, you are 32 years of age now and your long criminal history, it seems to me the only really responsible exercise of the discretion, from the point of view of the community, is to make you serve it cumulatively.”

[12]  One submission made by the applicant in this hearing was that, in using the phrase “from the point of view of the community”, His Honour had improperly fettered his discretion by reference to the views of the community.  It seems much more likely to me, however, that his Honour was concerned about issues made relevant by the applicant’s failure to respond previously to sentences whose aim was to help him with his rehabilitation.  In other words, because of the applicant’s failure to respond positively to those attempts to assist his rehabilitation, his Honour had also to consider questions of punishment to denounce his conduct and protect the community from him; see ss 9(1)(d) and 9(1)(e) of the Penalties and Sentences Act 1992.   Those considerations seem to me to be relevant for a court exercising the discretion under s. 148 to decide whether the remaining period of imprisonment should be served immediately or, as in this case, cumulatively. That was the main issue before the learned sentencing judge as there was little real issue that the whole of the remaining period of the suspended sentence should be served.

[13]  It was submitted that the starting point for any consideration of the sentence was that it should be concurrent, particularly because of the terms of s. 155 of the Act and see also Gordon v Whybrow [1998] QCA 52.  Nonetheless, s. 156 allows the imposition of cumulative orders of imprisonment which are often imposed for separate offences committed at significantly different times; Gordon v Whybrow at p. 8.

[14]  The argument also advanced, that the activation of the whole of the suspended sentence cumulatively led to a lack of proportionality in respect of the overall punishment imposed on the applicant, also runs into problems when one compares the conditional release date of 7 February 2006 for the two year sentence imposed on 29 June 2005 with his eligibility for post prison community based release from 10 June 2006 under the sentence imposed by the learned sentencing judge here.  I have had the advantage of Jerrard JA’s reasons for judgment in this context and agree with them.

[15]  Nor are the considerations of denunciation of criminal conduct and protection of the community referred to in ss 9(1)(d) and 9(1)(e)  inconsistent with s. 147(3), which sets out matters relevant to the question whether the whole of the suspended period should be served.  The task for the learned sentencing judge faced with the issue whether or not it would be unjust to order the applicant to serve the whole of the suspended imprisonment was dictated by s. 147(3) of the Act.  The considerations that the court must have regard to under that subsection include whether the subsequent offence is trivial having regard to the matters set out in that subsection, the seriousness of the original offence, which in this case included some physical and emotional harm done to the victim of the robbery, and any special circumstances arising since the original sentence was imposed.  On none of those issues does the applicant qualify.  The type and number of the breaching offences could not be described as trivial.  There is no disproportion between his culpability for those offences and the consequences of activating the whole of the suspended imprisonment.  His antecedents and criminal history are depressingly familiar in reflecting a long term history of drug abuse and associated property offences.  The original and subsequent offences are prevalent and serious and the evidence suggests that rather than making a genuine effort at rehabilitation, the prisoner relapsed immediately into a life of crime. 

[16]The applicant, through his counsel, submitted that the activation of the whole of the suspended sentence made the overall effect of the sentences imposed excessive to the extent that it was unjust to order him to serve the whole of the suspended term; see ss 147(2) and 147(3) of the Act.  In developing that submission counsel for the applicant pointed out that the sentence to which the applicant was originally sentenced was an offence of violence but that none of the breaching offences involved any degree of violence.  He placed particular emphasis also on the fact that, because of the six months’ pre-sentence custody which could not be declared in respect of the robbery with personal violence charge, the applicant had already served 14 months’ imprisonment with respect to that original offence which, he submitted, was, in effect, one third of a sentence in the order of three and one half years for that offence.  He also submitted that, as the applicant had remained out of trouble from August 2004 until November 2005, a period of over 12 months, the overall effect of sentencing him to the whole of the suspended sentence was too crushing.  That submission ignores the fact that the breaching offences were numerous and had already been committed between March and August 2004, almost immediately after his release into the community on the partially suspended sentence.  He was also in custody during several periods totalling 263 days between 20 August 2004 and 29 June 2005. 

[17]  In my view the learned sentencing judge was correct in taking the view that the community needed to be protected from the applicant’s behaviour and that, to do so, required that he serve the whole of the suspended period of 16 months’ imprisonment on 16 May 2003 cumulatively on the expiry of his existing term of imprisonment.  I would dismiss the application.