SUPREME COURT OF QUEENSLAND

[1]  McMURDO P and ATKINSON J:  The applicant seeks leave to appeal a sentence of imprisonment imposed by the District Court which was effectively three years imprisonment with a parole release date after he had served 14 months of imprisonment.

[2] He was sentenced when he pleaded guilty in court on 4 April 2007 on one count of dangerous operation of a motor vehicle with a circumstance of aggravation.  That offence occurred almost nine years earlier on 2 July 1998.  Because of the circumstance of aggravation, the maximum penalty for that offence was five years imprisonment although the learned sentencing judge worked on the erroneous submission by the prosecutor that the maximum penalty was three years.

[3] The applicant’s conviction for that offence meant that he was in breach of a sentence of two years imprisonment which had been imposed by another judge in the District Court on 17 September 1997 and wholly suspended with an operational period of four years.

[4] In addition the applicant had defaulted on an order made on 17 September 1997 that he pay compensation in the sum of $29,137 by way of specified instalments.  As part of his original sentence he had been ordered to be imprisoned for one year if he defaulted in paying the compensation ordered. 

[5] The way in which the matter proceeded on 4 April 2007 was that the learned sentencing judge activated the suspended sentence, sentenced the applicant in respect of the count of dangerous operation of a motor vehicle with a circumstance of aggravation and ordered a parole release date of 4 June 2008.  His Honour agreed to a request by the applicant that the question of imprisonment in default of payment of compensation be deferred for a short period to allow the applicant to make arrangements for that compensation to be paid.  However, when the matter came on before his Honour on the adjourned date on 3 May 2007 he was told that none of the compensation had been paid and no arrangements were in place for it to be paid.  In fact, as it appeared on the hearing of the appeal, payments amounting in total to $1600 were made on 19 and 24 April 2007.

[6] On 4 April 2007, the learned sentencing judge activated the two years imprisonment which had been wholly suspended and imposed a sentence of 12 months imprisonment on the count of dangerous operation of a motor vehicle with a circumstance of aggravation.  That was consistent with the submissions made by the counsel who appeared for the applicant on the first day of the sentence.  Those sentences were imposed cumulatively.  On 3 May 2007, the sentencing judge ordered that the 12 months imprisonment previously ordered to be served in default of payment of the compensation, be served concurrently with the period of imprisonment imposed on 4 April 2007.

[7] The applicant does not complain about the sentence of 12 months imprisonment imposed for the offence of dangerous operation of a motor vehicle with a circumstance of aggravation nor the 12 months imprisonment to be served concurrently in default of payment of the compensation.  He does however submit that the learned sentencing judge should not have ordered that the applicant serve the whole of the suspended period of imprisonment, primarily due to his rehabilitation and personal circumstances.  He also submitted that an earlier parole release date should have been ordered.  The applicant submitted that he should have been ordered to serve 12 months of the suspended sentence of imprisonment and that his parole release date should have been 4 October 2007.

[8] Section 147(2) of the Penalties and Sentences Act 1992 (Qld) ("PSA") provides that a court that is dealing with an offender for the suspended imprisonment must order the offender to serve the whole of the suspended imprisonment under s 147(1)(b) unless it is of the opinion that it would be unjust to do so.  The factors to which the court must have regard in determining whether or not such an order would be unjust are set out in s 147(3).  The activated period of imprisonment must be served immediately pursuant to s 148(a) of the PSA.

[9] The applicant argued that it must be considered unjust to order him to serve the whole of the suspended imprisonment and that he should, instead, have been ordered to serve part of it pursuant to s 147(1)(c).

[10]  In determining whether or not it would be considered unjust to require a defendant to serve the whole of the suspended imprisonment it is necessary to consider each of the non-exhaustive criteria set out in s 147(3) of the PSA.  A number of those address whether the subsequent offence was “trivial” given the nature of the subsequent offence, its relation to his previous offending and his personal circumstances.  The court is also directed to consider the seriousness of the original offence and any “special circumstance” that has arisen since the original sentence was imposed.

(1)  The nature of the subsequent offence and the circumstance in which it was committed: PSA s 147(3)(a)(i)

[11]  The subsequent offence, dangerous operation of a motor vehicle with a circumstance of aggravation, was described by the learned sentencing judge as a very serious example of the offence.  His description of the facts of that offence show why his Honour took that view.  At about 3.00 pm on 2 July 1998 the applicant was driving a vehicle which had a large trailer on a suburban road when a police officer in an unmarked vehicle saw him and thought that the registration plates on the vehicle were for a vehicle that was not currently registered.  The police officer followed the applicant, and signalled him to pull over.  The applicant initially pulled over but after the police officer had got out of his vehicle the applicant accelerated away quickly.  There was then an extended pursuit which ultimately involved two police vehicles.  When the applicant first moved off he went through a red traffic light around stationary traffic causing other vehicles to take action to avoid a collision.  He then turned right at speed into the path of oncoming vehicles again forcing them to brake heavily.  He drove quite fast and in an erratic fashion at times on the wrong side of the road.  He was driving for a time around some relatively quiet suburban roads and residential roads.  At one stage he drove across the footpath into a cleared allotment but then drove back onto the road.

[12]  On another occasion when a vehicle was waiting to enter a main road, the applicant drove around that vehicle and turned left causing other vehicles to brake.  He drove at times on the incorrect side of the road at a substantial speed.  On one occasion, when the police were catching up with the applicant, he braked so severely that the police vehicle ran into the back of the trailer and on that occasion two passengers in the applicant’s vehicle took the opportunity to escape.  The applicant then sped off again.  He went through another red light and on one occasion in attempting to evade the pursuit drove the wrong way around a roundabout on a fairly busy road.

[13]  There were other occasions when vehicles had to take evasive action including some which were forced off roads.  Eventually the applicant abandoned the vehicle while it was still moving but was apprehended by the police.  When he was apprehended he was found to have a blood alcohol content of .054 which is just over the legal limit for driving.  When apprehended he gave the police a false name.  The offences occurred mid afternoon and were correctly described by the judge as “persistent, very dangerous driving, at a time when there were quite a number of other vehicles”.  Fortunately nobody was injured during this driving offence.

(2)Proportion between the culpability of the offender for the subsequent offence and the consequence of activating the whole of the suspended imprisonment: PSA s 147(3)(a)(ii)

[14]  The subsequent offence was not a calculated act of criminality showing he had returned to the offending for which he had been convicted in 1997.  It was an unplanned, excessive reaction caused by his fear of being apprehended whilst on a suspended sentence.

(3)  The antecedents and any criminal history of the offender: PSA s 147(3)(a)(iii)

[15]  His Honour took account of the applicant’s criminal history but observed that its age meant that it was of no real significance apart from the offence for which he had received the two year sentence in 1997.  The sentencing judge took account of the applicant’s personal circumstances including his good employment history and that he had been in a de facto relationship and had a number of children, two of whom were in need of particular care which he had been providing.  He explicitly said that he took into account the effect of imprisonment on the applicant’s family.  His Honour did not however deal in any detail with the great responsibility the applicant had taken for his two most needy children: an adult son with schizophrenia and a two year old daughter with cystic fibrosis.  He was effectively the sole carer for both of them and they were dependent on his care for their health and well-being.

(4) The prevalence of the original and subsequent offences: PSA s 147(3)(a)(iv)

[16]  Although the learned sentencing judge did not specifically advert to this, it is notorious that both offences are prevalent.

(5) 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

(C)fines, compensation or restitution paid;  and

(D)anything mentioned in a pre-sentence report.

PSA s 147(3)(a)(v)

[17]  On the negative side, the second offence occurred only some nine or 10 months into the four year operational period of the suspended sentence.  No compensation had been paid for the original offence despite an order being made to that effect in 1997.  An adjournment of the sentence before the court in 2007 to allow payment to be arranged or effected resulted in only $1,600 being paid, although the judge was not informed of that payment.  His Honour quite properly concluded that it was the offer of compensation being made which led to the original sentence being suspended despite the conviction following a trial rather than the plea of guilty.

[18]  However on the positive side, the judge took account of evidence strongly suggestive of rehabilitation including the fact that the applicant had been in steady employment for a number of years.  The judge also referred to the number of references tendered before him as to the extent of rehabilitation but he also noted that the delay in dealing with the offence before him was because of the number of times the applicant had failed to appear which had led to the issue of at least two bench warrants.  His Honour accepted that personal deterrence was not a matter of great significance given the indications of rehabilitation. 

[19]  What his Honour gave insufficient weight to, in our view, was the fact that over the nine years since the dangerous driving occurred, the applicant had palpably demonstrated that he had become a steady, law abiding member of society contributing to the welfare of the community through steady, responsible work and the welfare of his dependants particularly the two children earlier mentioned.[1]

(6) The degree to which the offender has reverted to criminal conduct of any kind: PSA s 147(3)(a)(vi)

[20]  Because of the rehabilitation mentioned, apart from the offence in breach of the suspended sentence, the applicant has not otherwise reverted to criminal conduct.

(7) The motivation for the subsequent offence: PSA s 147(3)(a)(vii)

[21]  The subsequent offence appears to have been motivated by fear of the consequences of being apprehended by police whilst on a suspended sentence.

(8) 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: PSA s 147(3)(b)

[22]  The original offence was serious.  The applicant was sentenced following a trial for breaking, entering and stealing.  The premises where the offences occurred was a warehouse and caused the complainant personal financial loss but there was no injury to any person.

(9) Any special circumstance arising since the original sentence was imposed that makes it unjust to impose the whole of the term of suspended imprisonment: s 147(3)(c)

[23]  The applicant’s family responsibilities and his significant rehabilitation over a period of nine years referred to earlier in these reasons were special circumstances which made it, on balance, unjust to impose the whole of the term.  The child with cystic fibrosis was born many years after the original sentence was imposed.  Activating the whole of the term would be the appropriate outcome if he had not undergone such significant rehabilitation or taken on such important family responsibilities.  Activating less of it might have been appropriate to reflect his changed family responsibilities if his rehabilitation had not taken place whilst he failed to attend court as required.

[24]  In these circumstances the discretion available under s 147(3) miscarried, activation of the whole of the suspended imprisonment was unjust and the resulting sentence was manifestly excessive.

Conclusion

[25]  We would activate 12 months of the suspended sentence and order a parole release date after eight months i.e. on 4 December 2007 pursuant to s 160B(3) of the PSA.

ORDERS:

1.Application for leave to appeal granted.

2.Appeal allowed to the extent of:

a)setting aside the order activating the whole of the two year suspended sentence;

b)ordering that 12 months of the suspended sentence imposed on 17 September 1997 be activated;

c)setting aside the parole release date of 4 June 2008;

d)ordering that his parole release date be 4 December 2007.

[26]  MACKENZIE J:  The applicant seeks leave to appeal against sentence.  He was sentenced by McGill DCJ to serve the whole of a two year suspended sentence in respect of an offence of breaking, entering and stealing imposed on 17 September 1997 and a cumulative term of 12 months imprisonment for dangerous operation of a motor vehicle with a circumstance of aggravation.  He was also sentenced to 12 months concurrent imprisonment for failure to pay compensation of $29,137 in respect of the offence of breaking, entering and stealing.  A parole release date of 4 June 2008, fourteen months after the date of sentence, was fixed. 

[27]  The facts of the matter are unusual.  The applicant pleaded not guilty to the offence of breaking and entering a warehouse and stealing property valued at $29,137, and unlawfully using a motor vehicle.  The jury convicted of the former but acquitted of the latter.  When he was sentenced to two years imprisonment, fully suspended for four years on 17 September 1997, Wylie DCJ made it perfectly plain that his decision to fully suspend the sentence was the result of what he accepted as a bona fide offer by the applicant to pay full compensation to the complainant for the property taken.  Wylie DCJ ordered the compensation to be paid by instalments, the first of which was to be paid by 1 January 1998 and the balance quarterly until paid in full.  In default he was to serve one year’s imprisonment. 

[28]  The decision to fully suspend the sentence was a pragmatic decision by Wylie DCJ, having regard to the fact that the complainant was apparently uninsured and that the applicant had, at that time, a business from which he supported his family and in which he employed several other people.  Wylie DCJ said that the sentence imposed would assist the offender’s rehabilitation to a law abiding life as well as allow the complainant to be compensated. 

[29]  For reasons that were never explained on the applicant’s behalf subsequently, as far as the record shows, the applicant failed to pay any compensation under the order prior to being sentenced on 4 April 2007 by McGill DCJ for breach of the suspended sentence and for the breaching offence of aggravated dangerous operation of a motor vehicle.  A prospect of paying the compensation was raised again by counsel before McGill DCJ who adjourned the sentence with regard to the default imprisonment to allow that to be further investigated.  However, when the matter came on again before him on 3 May 2007 he was told that that would not occur.  Accordingly, he sentenced him to the 12 months imprisonment in default of payment of the compensation to be served concurrently with the sentences he was then serving.  During the course of the hearing of the application for leave to appeal against sentence, it appeared that despite what McGill DCJ was told, the sum of $1,600 had in fact been paid during the course of the adjournment between sentence and further consideration of default imprisonment.

[30]  It is necessary to recount the history of the matter in that regard to understand the issues in the appeal.  There is nothing in the record that indicates why the matter came to be re-listed earlier this year.  The long intervening period was not due to any default on the part of the prosecution, as far as the record shows, but due to the applicant failing to appear on several occasions when they had been listed to be further dealt with. 

[31]  It can be inferred that the applicant was called on to appear following his failure to make the first payment of compensation when it fell due.  When the matter was listed on 26 March 1998 he did not appear and a bench warrant was issued.  Then on 2 July 1998, he committed the offence of aggravated dangerous driving and was admitted to bail the following day.  The matters next came on on 7 August 1998 when they were further adjourned.  On 13 January 1999, another bench warrant was issued.  The next listing was on 1 June 2001 when the applicant was again given bail and the matter adjourned to 19 July 2001.  Bail was enlarged on that date.  The matters were listed for sentence on 26 October 2001.  On 8 October 2001 the applicant was convicted of two offences under the Weapons Act 1990 (Qld).  These were apparently minor offences as he was fined $100 as a single penalty.

[32]  The next mention seems to have been on 11 January 2002, when the applicant failed to appear again and yet another bench warrant was issued.  By this time, over four years had elapsed from the time of the conviction for which the suspended sentence had been imposed, and three and a half years since the breaching offence.  There is nothing to suggest that this was due to anything but the applicant’s own actions.  Nor was any other explanation, which would be peculiarly within the applicant’s knowledge, given before McGill DCJ as to why he did not attempt to resolve the matters in the subsequent five years.  In sentencing the applicant, McGill DCJ described his conduct as a fairly consistent failure to appear after 1998 in relation to the matter. 

[33]  He also described the offence of dangerous driving as a very serious example of the offence.  There is no reason to disagree with that assessment.  The statement of facts shows that a police officer driving an unmarked vehicle saw the applicant’s vehicle towing a dual axle trailer on a major road in the northern suburbs.  He ascertained that the registration plates did not belong to the vehicle the applicant was driving.  He signalled the applicant to pull over, which he did.  When the police officer got out of his vehicle, the accused accelerated away.  In the ensuing pursuit, the applicant drove through red lights, turned from inappropriate lanes across other traffic, and went through a roundabout counter-clockwise against the direction of ordinary travel.  At various stages, a number of vehicles were required to take evasive action.  On two occasions, the applicant locked up his brakes, causing the unmarked police car to collide with the applicant’s vehicle on the first occasion.  During the course of the incident, the applicant drove off the road onto a footpath and through an allotment, still with the trailer attached, and then returned to the roadway, and also drove up a grass embankment on to a sporting oval where there were children in the vicinity, and, after doing a u-turn, drove back down the embankment on to the roadway.  At the time he had a blood alcohol concentration of .054 per cent.  He gave police a false name.  McGill DCJ took the justifiable view that the further circumstance that the dangerous driving was done in order to evade capture by the police was one that added to the seriousness of the offence.  It is a reasonable interference, confirmed by his counsel’s submissions at sentence, that consciousness of his default under the compensation order was one factor in his determination to evade apprehension.

[34]  Before imposing sentence, McGill DCJ noted that the applicant had been in steady employment for a number of years.   He took that as an indication of rehabilitation, which he was required to consider under s 147(3) of the Penalties and Sentences Act 1992 (Qld) in deciding whether it would be unjust to activate the whole of the suspended sentence. He also noted that the applicant had been in a de facto relationship.  There were five children in the family group, two of whom were in need of particular care.  The record indicated that a 22 year old son had a drug problem and developed schizophrenia, and the youngest child, who was two, had cystic fibrosis.  Both were living with him. According to counsel’s submissions at sentencing, his son was not incapable of looking after himself, but needed “supervision in a general sense in life”.

[35]  McGill DCJ noted that the offer for compensation was a significant favour in Wylie DCJ’s wholly suspending the sentence of two years imprisonment.  (It may be observed that had no offer of compensation been made before Wylie DCJ, in all probability the applicant would have been sentenced to 12 months actual imprisonment or thereabout since he has been convicted after trial. The likelihood of a different outcome if no such offer had been made was mentioned by McGill DCJ during submissions).  McGill DCJ pointed out that within 12 months of conviction, the further offence had been committed.  He said that, although the offence was of an entirely different nature, in view of the seriousness of the offence and in view of the fact that it was committed so soon after earlier sentencing, he was not persuaded that it would be unjust that he serve the whole of that term of imprisonment.  Accordingly, the two years suspended imprisonment was activated.

[36]  That was consistent with his counsel’s submission that the two years suspended sentence might be activated. Counsel also accepted that an additional sentence for the dangerous driving might be imposed. He eschewed the notion that the applicant “should be rewarded for disappearing for most of the last decade”. He submitted that all the competing factors might be balanced by an immediate release on parole, or an appropriate shorter period than half the sentence.

[37]  Having wholly activated the suspended sentence, McGill DCJ said that the favourable references provided to him by the applicant’s present employer and by friends and business associates suggested he had been “rehabilitated to some extent” since offending had been committed.  He said he would take that into account, but it was not a factor that could have a huge amount of significance in circumstances where the failure to deal with the offending earlier was a result of the applicant’s failing to appear.  He also took into account the applicant’s plea of guilty. 

[38]  He said that the sentence for dangerous driving was imposed to punish him to an extent and in a way that was just, to provide conditions which he considered would help the applicant to be rehabilitated and to deter him and other persons from committing offences when attempting to flee from the police.  He considered general deterrence to be a matter of considerable significance but personal deterrence in the circumstances was not of much significance because of the indications of rehabilitation.  He also said that a further period of imprisonment attributable to the dangerous driving, over and above activation of the suspended sentence, was necessary.  Because the breaching offence was unrelated to the offence for which he was originally sentenced, it should be cumulative.   However, he said that he would moderate the head sentence to reflect the plea of guilty, his cooperation with the police and the effect of imprisonment upon his family.  The result would be that little more time would actually be served for the breaching offence.

[39]  It was accepted by the applicant’s counsel before us that he could not submit that the sentences of 12 months imprisonment for the dangerous driving nor the 12 months default term were manifestly excessive.  The focus of the application was the order that the whole of the suspended sentence be served, notwithstanding counsel’s stance below. 

[40]  The thrust of the applicant’s case was that more allowance should have been made for his rehabilitation in the period of almost nine and a half years before the matter came before McGill DCJ.  There are, no doubt, some cases where there is clear evidence that rehabilitation has occurred.  R v Law; Ex-parte Attorney-General [1996] 2 Qd R 63 is one example.  The circumstances in that case are more compelling than in the present case.  In that case, there was a high degree of cooperation after a long delay in bringing the charges after the complaint was made by the victim, who told the offender that he had complained to the police.  It also makes the point that mere lapse of time is not, of itself, a mitigating factor; unfairness caused to the offender by the delay is the significant factor.  The burden of proving that delay should be taken into account lies on the offender.

[41]  In a case where there is evidence of rehabilitation, personal deterrence has minimal significance.  McGill DCJ recognised this in his sentencing remarks.  But this case is one where, while the applicant had otherwise been law-abiding and had led a productive life, there is no explanation of any cogency why he avoided his responsibility to cooperate with the justice system.  When he was sentenced by Wylie DCJ, he was advised of what to do if he had difficulty in meeting the promised repayments.  He neither met the obligation that was instrumental in leading to the fully suspended sentence nor explained to the court when he had the opportunity to do so why he could not meet it.  In the absence of any other explanation, it is a clear inference to be drawn from his repeated failure to appear that he set out to avoid having his matter dealt with. 

[42]  If there were any extenuating circumstances in those regards they were not placed cogently before the sentencing judge.  The most that can be said is that, in the intervening period, the applicant was not further convicted and is well thought of by those who know him.  The only additional factor is the ill-health of two of the children in the family group.  That was adverted to by McGill DCJ in his sentencing reasons. 

[43]  When the sentences imposed by McGill DCJ are analysed, their practical effect is that he has to serve a term equivalent to the actual imprisonment to which he would, in all probability, have been sentenced had the abortive and unfulfilled offer to pay compensation not been made in the original proceedings and a further two months for the offence of dangerous driving.  In my view, McGill DCJ’s reasons show no discernable error in principle.  The sentencing reasons carefully analysed the relevant principles.  I am unpersuaded that, in the circumstances of the case, it was unjust to activate the whole of the suspended sentence. Nor can it be demonstrated that the sentences or their operation are so severe that there must be an unidentified error in his reasoning process.

[44]  I am satisfied that the sentences are not manifestly excessive and that the application should be refused.