R v Haddad[2009] QCA 143

SUPREME COURT OF QUEENSLAND

APPLEGARTH J:  The applicant was sentenced in the Supreme Court at Brisbane on 7 January 2008 after he pleaded guilty to three counts of supplying dangerous drugs.  He was sentenced on each count to a term of imprisonment of six years.  He was also ordered to serve the whole of a suspended period of imprisonment that had been imposed on 26 October 2000.  A parole eligibility date of 6 January 2010 was fixed.

The applicant applied to this Court on 26 March 2009 for an extension of time within which to appeal and for leave to appeal against his sentence.  In those applications he states, "This is not an appeal against the original sentence as such, but is an application for variation of the original sentence."

The grounds for each application are of a compassionate nature.  The matters outlined in his applications are not verified by affidavit.  They are that on 13 July 2008 his partner gave birth to a child and the applicant was unaware at the time of the hearing that his partner was pregnant.  The applicant says that his partner, who is aged 20, has shown that she is not capable of rearing their son without assistance. 

The child apparently is being cared for by the applicant's elderly parents with the assistance of his sister, who does not reside with his parents.  The applicant's mother has significant health problems and his father, who is aged 75, has limited ability to assist in caring for the child.  The parents of the applicant's partner also are said to have health problems.  The grandparents are also said to be unable to assist financially in the rearing of the child.  The matters in relation to the health of the grandparents were the subject of medical reports that were made an exhibit.

The applicant seeks a variation of his sentence to allow him to work as a forklift driver during the day from Monday to Friday and to submit to weekend detention or community service or a combination of both.  The applicant submits that the money which he will earn as a forklift driver will enable him to care for his son.

The desire of the applicant to provide financially for his young son is understandable and admirable.  However, it does not provide grounds to set aside the sentence.  In R v MP[1] this Court stated,

"Imprisonment imposed upon parents, usually fathers, almost invariably involves hardship on children, but this consideration is almost never relevant and never in the case of serious offences for which substantial periods of imprisonment must be imposed."

The Court quoted the following passage from Wirth,[2]

"Hardship to spouse, family and friends is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in the criminal Court...  It seems... that courts would often do less than their clear duty... if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners."

In R v D'Arrigo; ex parte Attorney-General of Queensland[3] this Court restated the principle that authority supports the view that "while hardship to third parties because of the imprisonment of a family member may, if rarely, be a relevant consideration, it must not overwhelm others such as the need for deterrence, denunciation and punishment."  The Court stated that "the preponderance of authority is to the effect that this consideration may be brought to account only in exceptional or extreme circumstances."  In that case, the Court observed that it was not as if the child would be left without care and that care would be provided in the usual way through the Department of Family Services.

The fact that the applicant was unaware that his partner was pregnant to him and, presumably, only became aware of difficulties regarding the care of the child in late 2008 does not detract from the principles established by the authorities concerning the hardship on children that arises when imprisonment is imposed upon a parent.  It is doubtful whether the learned sentencing Judge would have treated the pregnancy of the applicant's partner and any expected problems with the future care of her child as involving an exceptional or extreme circumstance that warranted the imposition of a more lenient sentence.  The applicant’s counsel did not submit that it would have.

The learned Judge took account of the applicant's steps towards rehabilitation and on, the basis of the evidence before him in January 2008, stated that the applicant's prospects of rehabilitation could be considered "quite high".  On the basis of those matters the learned Judge considered that it was appropriate to extend some leniency.  The applicant's prospects of rehabilitation, an offer of a long-term contract to drive a forklift and his desire to provide both physical and financial support for his young son are likely to be taken into account in his application for parole.  In the meantime, the welfare of his son is entrusted to others and, if additional care is required, it should be provided through the Department of Family Services.

The applicant's understandable desire to personally care for his son does not provide a basis to allow the applications.  It should be added that the Court does not have the power to order weekend detention.  The applications should be dismissed.

HOLMES JA:  I agree.

McMURDO J:  I agree.

HOLMES JA:  The application is dismissed.  Thank you.  Thank you, Mr Kriss.