SUPREME COURT OF QUEENSLAND

[1]  KEANE JA: I have had the advantage of reading the reasons for judgment prepared by Fraser JA.  I agree with those reasons and with the orders proposed by his Honour.

[2]  FRASER JA: On 23 March 2007 the applicant was convicted on his pleas of guilty of five offences: supply of a second schedule drug (count 1), possession of a second schedule drug in excess of the third schedule amount (count 2), possession of a first schedule drug (counts 3 & 4), and possession of a second schedule drug (count 5).  He was sentenced to wholly suspended (concurrent) terms of imprisonment of two years (counts 1 and 2), 18 months (count 3), and 12 months (counts 4 and 5), with an operational period of four years.  The expiry date of the operational period is 23 March 2011.

[3] The applicant committed further offences during that operational period.  On 24 September 2008 he was convicted of one offence of receiving stolen property and two offences of wilful damage.  He was dealt with in the Magistrates Court where he was fined $300.  The applicant was then dealt with in the trial division of this Court in relation to the consequences of those further offences for the suspended sentences.  On 13 March 2009 the sentencing judge ordered that the applicant serve 23 months of the suspended imprisonment of two years for counts 1 and 2, with a parole release date fixed on the day the sentence was imposed, 13 March 2009.  In relation to the suspended imprisonment of 18 months for count 3 and 12 months for counts 4 and 5, the sentencing judge said: "I make no order.  In other words, I will leave them as they stand." 

[4] The applicant has applied for leave to appeal against sentence on the ground that it is "manifestly excessive".  This should be taken as raising the question whether the sentencing judge erred in exercising the power conferred by s 147 of the Penalties and Sentences Act 1992 (Qld) by making an unjust order: R v Muller [2006] 2 Qd R 126 at [22]. 

Factual and statutory context and the sentence proceedings

[5] In relation to the original offences for which the applicant was sentenced on 23 March 2007, the applicant was in the course of handing over MDMA tablets to a person acting covertly as an intermediary for police officers when the police officers identified themselves.  The applicant fled on foot.  He was captured after a chase.  He was found to have 20 MDMA tablets.  A search of his unit produced a further 90 MDMA tablets and other tablet fragments.  Other tablets were found in a safe in his unit.  Altogether there were 115 MDMA tablets with a powder weight of 29.17 grams and a pure weight of MDMA of 7.166 grams.  Cocaine powder weighing 4.979 grams with 1.593 grams of pure drug and methylamphetamine powder weighing 0.468 grams with 0.12 grams of pure drug were also found in the safe, and  135.7 grams of cannabis sativa were found in the kitchen.

[6] The applicant declined to participate in an interview.  After a full hand up committal he was committed for sentence to the Supreme Court.  The sentencing judge found that the applicant had been financing his drug habit by selling MDMA to other people.  That was serious conduct even when done by an addict, but there was unusually persuasive evidence in favour of mitigation.  At the time of offending the applicant was only 20.  He had no previous convictions.  He had made significant efforts to try to overcome his drug problems.  He had stopped associating with people who might encourage his problems.  He had sought medical help.  He had the full support of his family, to whose home he had returned to live.  He suffered medical and psychiatric symptoms for which he had undertaken appropriate treatment.  The sentencing judge told the applicant that, "provided you continue to attend and to be counselled and to follow the medical advice, you will be able to restore your life."  The sentencing judge was persuaded, on balance, to accept the submission made by the applicant's solicitor that the imprisonment necessarily imposed for its deterrent effect on others should be imposed by way of suspended sentences. 

[7] In the same judge’s subsequent sentencing remarks on 13 March 2009, the judge noted that the circumstances of the new offences appeared to have been that the applicant fell in with other young people; in the car in which they were travelling there was a stolen fire extinguisher; and the applicant took that extinguisher and sprayed it onto a post box and a public telephone, thereby damaging them.  The applicant committed those offences when he was affected by alcohol. 

[8] It is convenient now to set out the statutory provision which empowered the sentencing judge to make the orders which are challenged in this application. Section 147 of the Penalties and Sentences Act 1992 (Qld) provides:

"147 Power of court mentioned in s 146

(1)A court mentioned in section 146(2), (2A), (4) or (6) that deals with the offender for the suspended imprisonment may—

(a) order—

(i)that the operational period be extended for not longer than 1 year; or

(ii)if the operational period has expired when the court is dealing with the offender—

(A)that the offender’s term of imprisonment be further suspended; and

(B) that the offender be subject to a further stated operational period of not longer than 1 year during which the offender must not commit another offence punishable by imprisonment if the offender is to avoid being dealt with under section 146 for the  suspended imprisonment; or

(b)order the offender to serve the whole of the suspended imprisonment; or

(c)order the offender to serve the part of the suspended imprisonment that the court orders.

(2)The court must make an order under subsection (1)(b) unless it is of the opinion that it would be unjust to do so.

(3)In deciding whether it would be unjust to order the offender to serve the whole of the suspended  imprisonment the court must have regard to—

(a)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

(C) fines, compensation or restitution paid; and

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

(4)If the court is of the opinion mentioned in subsection (2), it must state its reasons.

(5)In this section—

original offence means the offence for which a term of imprisonment has been suspended under section 144(1).

original sentence means the sentence imposed for the original offence.

subsequent offence means the offence committed during—

(a)the operational period of an order made under section 144 for the original offence; or

(b)an extension of the operational period ordered under section 147(1)(a)(i) for the original offence; or

(c)a further stated operational period ordered under section 147(1)(a)(ii)(B) for the original offence."

[9] The Crown submitted that a term of imprisonment ought to be imposed but that the applicant should be given the benefit of an immediate parole release date.  At a later point in the argument the Crown contended for a short term of imprisonment.  The Crown argued that imprisonment with immediate parole would provide the applicant with appropriate support and supervision.  The applicant's solicitor submitted that the judge should instead extend the operational period of the suspended imprisonment by one year.

[10] The sentencing judge referred to the evidence that the applicant had made continuing efforts at rehabilitation, including his attendance at the Health Department's alcohol and drug service where he received counselling.  A psychologist gave a generally favourable report about the applicant's developing maturity and skills in managing his mental health condition.  A psychiatrist gave a generally favourable report, with some reservations about the risk of relapses, concerning the applicant's residual schizophrenia and other mental health issues. 

[11] The sentencing judge concluded that it would be unjust in all of the circumstances to order that the applicant serve the whole of the suspended imprisonment.  The applicant should instead serve part of the suspended imprisonment and be granted immediate parole.  The judge thought that the applicant would not be disadvantaged by adoption of that alternative but that it would be to his advantage.  He would have the benefit of supervision by a parole officer who could provide another resource for the support and help of the applicant.  If the applicant offended again whilst on parole there would be adverse consequences, but such further re-offending would probably result in actual imprisonment if the applicant was instead subject to a suspended sentence.  The sentencing judge also noted that if there were only a suspended sentence no action could be taken against the applicant unless he committed an offence punishable by imprisonment, whereas under the regime preferred by the sentencing judge the applicant was exposed to a penalty if he committed any offence at all.  The sentencing judge considered that this strengthening of the regime applicable to the applicant was appropriate. 

The arguments in this Court

[12] The applicant’s counsel argued that, even with the benefit of immediate parole, activation of as much as 23 months out of the suspended imprisonment of 24 months was unjust.  He argued that the activation of all but one month was practically inconsistent with the sentencing judge's conclusion that it was unjust to activate the whole of the suspended imprisonment.  The applicant's counsel stressed the minor nature of the offending.  He argued that it did not deserve a 23 month gaol term, with the potential for 23 months actual imprisonment if the applicant breached any condition of his parole which was thought sufficient to justify its revocation.  The applicant’s counsel argued that the sentencing judge may have overlooked s 147(3)(a)(ii).  Whilst that provision was not directly relevant because the whole of the imprisonment was not activated, it was suggested that the sentencing judge erred by failing to have regard to the lack of proportionality between the culpability of the applicant for the subsequent offending and the consequence of activating 23 out of 24 months of the suspended imprisonment.  The applicant’s counsel argued that appropriate reconciliation of the desirable aim of maximising the length of helpful supervision for the applicant on parole, with the proportionality mentioned in s 147(3)(a)(ii) suggested that the appropriate range of sentences was six to 12 months imprisonment with immediate parole.

[13] The respondent’s counsel argued that the sentence was not unjust and would have been lenient if imposed at the original hearing, although it was justified by the mitigating factors.  Counsel referred to R v Marsanic [2008] QCA 219, which discussed R v Sartori [2006] QCA 284 and other comparable decisions.

[14] The submissions for the applicant and the respondent coincided in urging the court to vary the orders in relation to counts 3 – 5 to ensure that the orders in relation to counts 1 and 2 were the operative sentencing orders.  The applicant’s counsel endorsed the submission made for the respondent that the sentencing judge’s designed omission to alter the sentences for counts 3 – 5 imposed on 23 March 2007 was both inappropriate and not authorised by s 147 of the Penalties and Sentences Act 1992 (Qld).

[15] The applicant and respondent proposed different methods of curing that suggested deficiency in the sentence.  The applicant’s counsel argued that the orders should be varied so that in respect of all counts the applicant is ordered to serve six months of the suspended sentence with immediate parole.  The respondent argued that the orders should be varied so that the applicant is required to serve the terms of 12 months and 18 months for counts 3 – 5 concurrently with 23 months of the year term for counts 1 – 2, with immediate parole commencing on the day of sentence (13 March 2009).

Discussion

[16] The argument that the judge’s order preserving the suspended sentence for counts 3–5 was not authorised is that in s 147(1) the word "may", when read in the context of the expressed alternatives in the following paragraphs and in light of the mandatory effect of s 147(2), should be construed as obliging the court to make a choice amongst those alternatives.  A possible contrary view is that where a sentencing judge decides under s 147(2) that it would be unjust to order the applicant to serve the whole of a period of suspended imprisonment the mandatory effect of s 147(2) is displaced; that there is then insufficient reason to depart from the ordinary meaning of the word "may" in the introductory words of s 147(1) that it confers a discretionary power (Acts Interpretation Act 1954, s 32CA); and that the construction propounded for both parties here would produce the perhaps surprising result that, although the court is empowered to make orders having only a minimal effect on the original sentence (including an order under s 147(1)(c) that the offender serve part of the suspended imprisonment until "the rising of the Court": see R v Clewes [2008] QCA 46), the court could not decline to alter the original sentence where unusual facts of a particular case dictated that as the appropriate course. 

[17] Because there was no contradictor in relation to this issue I prefer to leave its resolution for a case in which it is necessary to decide it.  In my respectful opinion, if the orders were within power, the sentencing judge's exercise of discretion miscarried.

[18] It is not easy to reconcile the sentencing judge's decision to leave suspended only one month of the suspended two years imprisonment with the decision also to leave intact the whole of the suspended imprisonment of 18 months.  Furthermore, and as both parties joined in submitting, under the combination of orders made by the sentencing judge the potential arises for the applicant inappropriately to be exposed to cumulative periods of imprisonment even though the original sentence involved only concurrent imprisonment.  That arises most clearly in a hypothetical scenario in which the applicant committed an offence punishable by imprisonment in the 40 day period between the end of the 23 month parole period (13 February 2011) and the end of the suspended 18 months imprisonment (23 March 2011).  In that scenario the apparent effect of the sentencing judge’s orders would be that after the applicant had satisfactorily completed 23 months on parole he might also be required to serve the whole of the suspended 18 months imprisonment.

[19] A different question might arise if the applicant committed an offence punishable by imprisonment between 13 March 2009 and 13 February 2011, when the applicant would be subject both to parole and to the suspended 18 months imprisonment.  In that scenario, the parole order might be cancelled under s 209 of the Corrective Services Act 2006 (Qld).  Section 211 of that Act would then seem to require that the period of time served on parole up until that point count as time served under the activated two year period of imprisonment for counts 1 and 2, but it may not require that period to count as time served in relation to the suspended imprisonment for counts 3 – 5.  The applicant might thus be exposed to imprisonment for the whole of the suspended 18 month term either (wholly or partly) concurrently with or cumulatively upon the imprisonment consequential upon the breach of parole.

[20] The sentencing judge did not seek submissions about or refer to those issues of statutory construction and it is not necessary now to attempt to decide how they should be resolved.  In my respectful opinion, the complexity and uncertain effect of the orders, and especially the apparent potential for the applicant to be exposed to cumulative imprisonment even though the original terms were wholly concurrent, were not justified by any feature of the facts.  It follows that the orders should be set aside and this Court must exercise the sentencing discretion afresh.

[21] The decision by a sentencing court of how much of a suspended sentence to activate and when within that activated term of imprisonment to set a parole release date is “a single exercise of discretionary judgment”: R v Norden [2009] QCA 42 per Holmes JA at [12] – [16].  Reference to the sentencing remarks on 13 March 2009 demonstrates that, with the exception of the matters I have identified, the sentencing judge took into account the relevant considerations, including in particular the different nature of, and the relative lack of seriousness in, the applicant’s subsequent offending.  The judge in terms accepted the submission made on behalf of the applicant that the subsequent offences were, by comparison with his original offending, both of a different type and relatively minor, but the sentencing judge was, with respect, plainly correct in also taking into account the factors favouring activation of the suspended imprisonment, including that the subsequent offences seemed to have occurred at a time when the applicant was affected by alcohol and even though it had been very clearly explained to him at the original sentence proceeding that he was under the threat of suspended imprisonment.

[22] Taking all of the circumstances into account this is, in my respectful opinion, a case which calls out for the strengthening of the sentencing regime by activation of the whole of each of the concurrent terms of imprisonment, tempered by an order for immediate release on parole.  I am persuaded that it is not unjust to activate the whole of the concurrent terms of imprisonment.  In my opinion that is the just order, accompanied, as I have said, by immediate parole.  There remain real grounds for hoping that the applicant can escape a downward spiral into further offending and imprisonment, and this approach effectively maximises the supervision and assistance available to the applicant on parole whilst at the same time providing a powerful incentive for the applicant not to breach the conditions of his parole or otherwise to re-offend.

[23] I accept the submission made for the applicant that this exposes the applicant to some additional risks, particularly because some conduct which might reasonably be viewed by the authorities as a breach of parole calling for imprisonment would not result in imprisonment under a suspended sentence; but that is justified by the same factors which motivated the sentencing judge to activate all but one month of the longest concurrent term whilst also preserving in force the suspended 18 months imprisonment. 

[24] Because activation of the whole of the concurrent terms with immediate release on parole arguably involves a more severe punishment than was imposed by the orders made by the sentencing judge (although that perhaps may be doubted when the combined practical effect of those orders is borne in mind), the Court foreshadowed this possible result of the proposed appeal at the hearing of the application: see Neal v The Queen (1982) 149 CLR 305.  The applicant’s counsel obtained instructions and informed the Court that the applicant nevertheless wished to pursue his appeal. 

Proposed orders

[25] I would grant the application for leave to appeal and allow the appeal against the orders made on 13 March 2009.  I would set aside the orders made by the sentencing judge and instead make the following orders:

(a) The applicant is ordered to serve the whole of the concurrent suspended sentences of 2 years, 18 months and 12 months imposed on 23 March 2007.

(b) Declare that that sentence commenced on 13 March 2009.

(c) Fix 13 March 2009 as the parole release date under that sentence.

[26] JONES J: I respectfully agree with the reasons given by Fraser JA and with the orders he proposes.