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R v Norden[2009] QCA 42
R v Norden[2009] QCA 42
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Sentence Application |
ORIGINATING COURT: | |
DELIVERED ON: | 6 March 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 February 2009 |
JUDGES: | Keane, Holmes and Fraser JJA |
ORDERS: | 1.Application for leave to appeal allowed 2.Appeal against sentence on the possession and supply counts allowed 3.Sentences for the possession and supply counts varied by reducing the term of imprisonment in each case to four months and deleting the probation order 4.Activation of the whole of the suspended imprisonment on the receiving count is not disturbed |
CATCHWORDS: | Criminal law – Appeal and new trial – appeal against sentence – sentence: what constitutes – Sentence manifestly excessive or inadequate – where applicant convicted on pleas of guilty of one count of possessing methylamphetamine, one count of supplying methylamphetamine and one count of receiving stolen property – where, on the supply and possession counts, applicant sentenced to two years probation – where, on the receiving count, applicant sentenced to 12 months imprisonment, wholly suspended for an operational period of two years – where applicant twice convicted of further offences during operational period and while on probation – where, in sentencing for the breach of probation and breach of suspended sentence, learned sentencing judge revoked the probation order and re-sentenced applicant on the supply and possession counts to 12 months imprisonment, to be followed by two years probation; and, on the receiving count, activated the whole of the suspended imprisonment pursuant to s 147(1)(b) of the Penalties and Sentences Act 1992 (Qld), with a parole release date set at the end of the term of imprisonment – where applicant appealed on the ground that the combined effect of activating the suspended sentence and re-sentencing on the supply and possession counts was to impose a manifestly excessive sentence – whether this was a proper basis of appeal – whether the activation of the suspended sentence and the re-sentencing should be dealt with separately – whether activation of a suspended sentence is a “sentence” passed on conviction as defined in s 668(1) of the Criminal Code – whether decision to set parole release date is part of the decision under s 147(2) of Penalties and Sentences Act 1992 (Qld), or a separate exercise of discretion – whether learned sentencing judge erred in forming the view that it was not unjust to impose the whole of the suspended imprisonment – whether sentence imposed on supply and possession counts manifestly excessive Penalties and Sentences Act 1992 (Qld), s 147(1)(b), s 147(2), s 147(3), ss 160-160H R v Blow [1963] QWN 1, applied |
COUNSEL: | J Sharp for the applicant/appellant |
SOLICITORS: | Legal Aid Queensland for the applicant/appellant |
[1] KEANE JA: I have had the advantage of reading the reasons of Holmes JA. I agree with her Honour’s reasons and the orders proposed by her Honour.
[2] HOLMES JA: On 8 May 2006, the applicant was convicted, on pleas of guilty, of one count of possessing methylamphetamine, one count of supplying methylamphetamine and one count of receiving stolen property. On the counts of supply and possession of methylamphetamine, he was placed on a two year probation order, with an additional requirement that he submit to random drug testing. In respect of the receiving count, he was sentenced to 12 months imprisonment, with an order suspending that sentence forthwith for an operational period of two years.
[3] During the currency of that operational period, while he was also on probation, the applicant was twice convicted of further offences: possessing tainted property over a period between 29 May and 15 June 2006, and possessing implements, used or about to be used in relation to an offence, on 18 May 2007. The former charge involved the discovery in his motor vehicle of a stolen engine; as to the latter, police found in a vehicle in which he was sitting a lock-picking tool and a door-opening tool, for possession of which the applicant could give no excuse. In consequence of those breaches, he was committed to the sentencing court to be dealt with for both the breach of the probation order and the breach of the suspended sentence.
[4] On 17 September 2008, the learned judge who had originally sentenced the applicant revoked the probation order; sentenced him on each of the supply and possession charges to serve 12 months in custody, to be followed by two years probation; and ordered that he serve the whole of the 12 months suspended imprisonment. His Honour set a parole release date at 16 September 2009. The applicant now seeks to appeal against those orders. His counsel, Ms Sharp, did not seek to contend that the learned judge erred in not forming an opinion that it would be unjust to impose the whole of the suspended term. Rather, the proposed ground of appeal was that the combined effect of activating the suspended sentence and the re-sentencing consequent on the breach of probation was to impose on the applicant a sentence which was manifestly excessive.
[5] The advancing of that ground necessitates some consideration of the nature of the applicant’s right to seek leave to appeal against the activation of the suspended sentence for receiving. (The re-sentencing for the supply and possession offences under s 121 of the Penalties and Sentences Act 1992 does not raise the same questions). Section 147 of the Penalties and Sentences Act sets out how an offender who breaches a suspended sentence is to be dealt with:
“(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.”
[6] Section 668D(1)(c) of the Criminal Code permits an appeal “with the leave of the Court, against the sentence passed on the person’s conviction”. “Sentence” is defined in s 668(1) as including:
“any order made by the court of trial on conviction of a person with reference to the person’s person or property...”
At first glance there would seem to be some question as to whether those provisions can apply to a circumstance in which, well after conviction, an order is made activating a sentence originally suspended at the time of conviction. However, the words “on conviction” in s 668 have been given a wide construction; in R v Blow[1] the Court of Criminal Appeal said of them:
“those words do not mean ‘at the time of conviction’; they mean ‘in consequence of conviction’.”
[7] Blow concerned the imposition of the balance of a suspended sentence upon breach of a recognizance, pursuant to s 19(7) of the Criminal Code as it then stood. That sub-section enabled the court to order that part or the whole of a sentence be suspended upon an offender entering into a recognizance; upon a subsequent breach of the recognizance, it could order that he be committed to prison to undergo the outstanding part of the suspended sentence. The Court of Criminal Appeal characterised that process as the imposition of sentence on conviction in two stages rather than one. The order committing the offender to prison was made in consequence of his conviction and thus amounted to a sentence within the meaning of s 668. An appeal by leave was open to the applicant against the order that he be imprisoned for the balance of his sentence, on the ground that it was manifestly excessive.
[8] In R v Marriner,[2] the Blow construction of “on conviction” was expressly adopted in a different context, that of an attempt to re-open a sentence under s 188(1)(c) of the Penalties and Sentences Act. McPherson JA elaborated:
“It is plainly not every order following chronologically after conviction that amounts to a ‘sentence’ on conviction within the meaning of the definition in s 668(1). There must be a relationship of some discernible kind between the two in order to make it an order or ‘sentence’ in the defined sense.”[3]