R v Fursey[2008] QCA 324

SUPREME COURT OF QUEENSLAND

1. KEANE JA: I have had the advantage of reading a draft of the reasons for judgment prepared by Fraser JA.  I agree with his Honour’s reasons and with the orders proposed by his Honour.

2. HOLMES JA: I agree with the reasons of Fraser JA and the orders he proposes.

3. FRASER JA: On 4 July 2008 the applicant was found to have breached a partly suspended sentence and probation and community service orders that had been imposed in the District Court on 22 November 2006.  The applicant now applies for leave to appeal against the sentences imposed on 4 July 2008. 

4. On 22 November 2006 the applicant pleaded guilty to offences in three indictments and some summary offences. There were three counts of common assault; one count of wilful damage; two of unlawfully using a carriage service to menace, harass or cause offence; two of stealing; one of attempted fraud; one of fraud; and a number of summary offences. The applicant was sentenced to six months imprisonment for two of the common assault offences, suspended after the 33 days he had served in pre-sentence custody for a period of 18 months. He was placed on probation for two years for the wilful damage, stealing, fraud and attempted fraud offences and for the other common assault offence. He was also ordered to perform 150 hours community service for the latter four offences and for the two offences of using a carriage service to menace, harass or cause offence. Compensation orders were also made. A restraining order was made by consent that, amongst other things, precluded the applicant from contacting his former girlfriend’s father.

5. The applicant was between 20 and 22 years of age when he committed these offences.

6. The partially suspended sentence was imposed for two counts of assault. The applicant committed the first assault on 13 October 2004. He was arguing with his former girlfriend and when her father intervened in the argument the applicant struck or punched him once to the stomach. The applicant committed his second assault when he approached his former girlfriend on 10 October 2005, grabbed her arm, hugged her and kissed her on the lips.

7. The Commonwealth offences occurred when the applicant made harassing phone calls to his former girlfriend on 19 November 2004 and 9 July 2005. The applicant committed the four offences of dishonesty during one day, 27 June 2006. He stole $900 in cash from his employer and he stole a credit card that had inadvertently been left on a counter where he was working. He then left his employment and he used that credit card to withdraw $250 in cash and he unsuccessfully attempted to use it to buy clothing. He was arrested very shortly afterwards. All of the money was recovered save for $80 of the money he had stolen from his employer.

8. On 29 November 2006 the applicant was dealt with in the Magistrates Court for one count of stealing and two counts of breach of bail conditions.  On each charge he was convicted and sentenced to one months imprisonment "cumulative".  According to the sentence history it was ordered that "all sentences suspended 18 months" but the history also recites "court ordered date eligible for parole is 30.11.06".  The applicant was convicted and not further punished on 29 November 2006 for another offence, of obstructing a police officer.

9. On 26 March 2008 the applicant was dealt with in the Magistrates Court for two counts of breach of bail conditions and also in respect of what was then found to be a breach of the suspended sentence apparently imposed on 29 November 2006.  The suspended sentences were activated, the applicant was convicted and sentenced to one months imprisonment in respect of the breach of bail conditions, and a parole release date was fixed for 25 April 2008.

10. On 23 April 2008 the applicant pleaded guilty in the Magistrates Court to 26 property or dishonesty offences, 23 of which had occurred before he had been sentenced in the District Court on 22 November 2006.  The applicant committed those 23 offences between February and October 2006.  Most of them involved him stealing lawn mowers and gardening equipment which he then pawned.  Assuming (probably incorrectly) that the money the applicant received for that property reflected its worth, the total value of the property the applicant stole was $1,278, of which $978 was subsequently recovered.  I identify the other offences in the next paragraph of these reasons.  The Magistrate sentenced the applicant to twelve months imprisonment and fixed a parole release date of 21 October 2008 (after just under six months of the term).

11. As I earlier mentioned, the sentences the subject of the application in this Court were imposed in the District Court on 4 July 2008. The offences that were then found to have breached the orders made in the District Court on 22 November 2006, and the circumstances of those offences, were as follows:

1. On 8 January 2007 the applicant breached the Bail Act by failing to appear in accordance with an undertaking. 

2. In February 2007 the applicant stole by finding a mobile phone in a public toilet in the Queen Street mall. 

3. On 27 February 2007 the applicant breached the restraining order made on 22 November 2006 by using that mobile phone to telephone his former girlfriend's father on three occasions within half an hour.  The applicant, knowing he was prohibited from contacting his former girlfriend's father, attempted to do so to try to make arrangements to enable the applicant to see his son, who was some three years old and whom the applicant had never met.  It appears that the first telephone call was answered but whoever answered it appreciated it was the applicant and therefore hung up.  The other two calls were not answered.

4. On 2 March 2008 the applicant went into his brother's bedroom and stole $200 in cash. 

12. The sentencing judge ordered that the applicant serve the balance of four months and 27 days of the partly suspended sentence that had been imposed on 22 November 2006.  He was re-sentenced to six months imprisonment for the offences for which the community based orders had been imposed on 22 November 2006.  Those terms were ordered to be served concurrently with each other and concurrently with the 12 month term of imprisonment that had been imposed in the Magistrates Court on 23 April 2008.  The sentencing judge fixed 21 December 2008 as the parole release date, thus requiring the applicant to serve a further two months in custody beyond that which had been imposed in the Magistrates Court on 23 April 2008.

13. It is necessary to refer to one further proceeding. On 29 September 2008 a judge of the District Court allowed an appeal against the sentence of 12 months imprisonment (with a parole release date of 21 October 2008) imposed in the Magistrates Court on 23 April 2008.  The judge considered that the sentence was excessive, as had been conceded by the respondent.  The sentence was varied by the substitution of a head sentence of four months imprisonment and a parole release date of 23 August 2008. 

14. As to the applicant’s personal circumstances, the material available to us suggests that his criminal history commenced when he was 20 years old. In 2005 and 2006 he was fined for some Bail Act offences and for breach of a domestic violence order.  On 1 November 2006 he was sentenced to 14 days imprisonment for further Bail Act offences.  I have referred to his other offending.

15. The applicant’s counsel conceded below and again in this Court that that it was not unjust to require the applicant to serve the balance of the suspended sentence of four months and 27 days. The applicant does challenge the sentence of six months imposed on the re-sentencing and the parole release date of 21 December 2008. He contends for a sentence of five months imprisonment and a parole release date of 13 October 2008.

16. The applicant contends that because the subject sentence was fixed with reference to the then existing 12 month sentence of imprisonment with a parole release date of 21 October 2008, the subsequent variation of that sentence on appeal requires this Court to re-exercise the original sentencing discretion.

17. The sentencing judge made a remark to the effect that appropriate leniency would be extended to the applicant if the sentences were served concurrently with the then 12 month term and if the then existing parole release date of 21 October 2008 were put back by two months. Because the term and custodial period of that prior sentence were later substantially reduced the sentence now has a severer effect than the sentencing judge intended.

18. In an appeal against sentence under s 668E(3) of the Criminal Code this Court must consider whether some other sentence “is warranted in law… and should have been passed”.  The respondent’s counsel argued that this Court’s jurisdiction was not enlivened merely because an earlier sentence was taken into account by the sentencing judge in deciding the subject sentence and that earlier sentence was later materially varied on appeal.  That may be so, but in my opinion if an earlier sentence was taken into account by the sentencing judge and that earlier sentence was later varied this Court may admit and take into account evidence of that variation for the purpose of deciding whether the sentence under appeal is manifestly excessive.  That view is supported by R v Barlow [1999] 1 Qd R 628 at 630; [1998] QCA 2.  It also accords with authority to the effect that evidence of subsequent events may be admitted if it is necessary to avoid a miscarriage of justice: R v Maniadis [1997] 1 Qd R 593 at 597; [1996] QCA 242; R v Hughes [2004] 1 Qd R 541 at [14] – [15]; [2003] QCA 460. 

19. With the hindsight provided by the District Court decision of 29 September 2008 the sentence under appeal does appear to be manifestly excessive, particularly in so far as it requires the applicant to serve some four months in actual custody rather than the two months intended by the sentencing judge. The respondent accepts that in those circumstances it is open to the Court to vary the parole release date to give effect to the sentencing judge’s intention in that respect.

20. The applicant also contends that the original sentence was itself manifestly excessive in requiring the applicant to serve two months in actual custody. Reference is made to the relative youth of the applicant, to his timely pleas of guilty, to his limited previous criminal history (prior to the offences dealt with on 22 November 2006), and to his cooperation with police and in the administration of justice.  It must also be borne in mind, however, that the breaching offences included offences of the same nature of those for which community service and probation had been imposed on 22 November 2006, particularly those concerning the applicant’s harassing phone calls.  That the original orders were ineffective to deter the applicant from engaging in this and his other offending is a disturbing feature of the applicant’s conduct. 

21. All of those matters were taken into account by the sentencing judge. In my opinion it was within the judge’s discretion to structure a sentence that required the applicant to serve two months in actual custody. It was conceded before the sentencing judge that a head sentence of six months was within range and the head sentence of five months contended for here by the applicant tends to confirm that.

22. I would give effect to his Honour’s intention by varying the parole release date to 23 October 2008. That would provide for the applicant to serve an additional two months in custody.

23. As was submitted by the applicant’s counsel it is appropriate also to correct the error that the sentencing judge did not impose a separate sentence under the Crimes Act 1914 (Cth) for the two Commonwealth offences (using a carriage service to menace, harass or cause offence) in indictment 3252 of 2006.  Subsection 16A(1) of the Act required a sentence of a severity appropriate in all the circumstances of the offence.  After having considered all other available sentences and having regard to the inclusive criteria expressed in s 16A(2), and particularly also to considerations of deterrence,  for the reasons I have given I am satisfied that no sentence other than a sentence of imprisonment is the appropriate sentence (see s 17A).  In my opinion there was no error in the six month concurrent term imposed by the sentencing judge for the Commonwealth offences.

24. Subsection 20(1)(b) of the Act empowered the sentencing judge to order that the applicant be released on recognizance after having served a specified period of imprisonment. The sentencing judge omitted to make such an order and it was not mandatory in this case: see s 19AC(3) (and see also s 19AC(4) and (5)). But for the reasons I have given it would accord with his Honour’s intention and I consider it would be appropriate now to make a recognizance release order that has the effect of requiring the release of the applicant on 23 October 2008.

25. Subsection 16F(2) of the Act obliges the Court to explain or cause to be explained to the applicant, in language likely to be readily understood by him, the purpose and consequences of making the recognizance release order, including the particular explanations set out in paragraphs (a)-(d) of that subsection. At the hearing of the application the applicant’s counsel undertook to give the applicant the necessary explanation if the Court made such an order.

26. Disposition

27. I would make the following orders:

1. I would grant the application for leave to appeal against sentence.

2. I would allow the appeal.

3. I would vary the sentence imposed in the District Court to the extent that it relates to the Commonwealth offences in indictment 3252 of 2006 by ordering that the applicant be sentenced to six months imprisonment, but I would by order direct that the applicant be released on 23 October 2008 after having served the period of imprisonment between 4 July and 23 October 2008 upon the applicant giving security by recognizance in the sum of $200 conditioned that the applicant be of good behaviour for a period of five years.

4. I would record that the Court accepts the undertaking of the applicant’s counsel that he will give to the applicant the explanation required by s 16F(2) of the Crimes Act 1914 (Cth).

5. I would further vary the sentence to the extent that it relates to the State offences in indictments 1043 of 2006 and 3254 of 2006 by setting aside the parole release date of 21 December 2008 fixed in the District Court and instead fixing a parole release date of 23 October 2008.

6. I would further vary the sentence by ordering that each of the federal sentences and the state sentences are to be served concurrently with each other and with the sentence imposed in the Brisbane Magistrates Court on 23 April 2008 as varied in the District Court on 29 September 2008.

7. Otherwise I would confirm the sentences imposed in the District Court.