Smith v Dutton
[1998] QDC 171
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Smith v Dutton[1998] QDC 171
Smith v Dutton[1998] QDC 171
DISTRICT COURT | Appeal No 4870 of 1997 |
APPELLATE JURISDICTION
JUDGE McGUIRE
JEANNINE SANDRA SMITH | Appellant |
and
PETER CRAIG DUTTON | Respondent |
BRISBANE
DATE 03/03/98
JUDGMENT
HIS HONOUR: It seems to me if she has served 17 days, if the sentence were mitigated to that extent, I think that would be a just outcome.
...
HIS HONOUR: I think, however it is important here too to consider the law because this is going to come up again. This whole question of suspended sentence has now become a vexed one. I for one wholeheartedly approve of that sentencing option. However, I think we must as sentencing Judges, give more consideration to the possible consequences of some of the suspended sentences we impose.
I have come to the conclusion now, after several years of vacillation on this aspect, that the operational period, generally speaking, but depending basically on the nature of the offence for which the suspended sentence is imposed, should be kept down. However, the general tendency has been to make the operational period long - long in comparison to the term imposed, which is suspended.
In this case, the term imposed was six months and it was suspended for two years. Now, this woman went 14 months without being caught, she obviously was a regular marijuana smoker - she admits to that - but she went 14 months without being caught and I think that is a factor. She made no, I think, attempt to conceal the fact that she was a regular marijuana smoker and she does have some previous convictions for marijuana offences and no doubt the Magistrate would have been influenced by this as he was very much entitled to be.
She was convicted in the Wynnum Magistrate's Court on 19 December 1994 for possessing a dangerous drug - I presume it was marijuana. She was fined $350 and then in the next year, some five months later, on 24 May 1995, she was convicted in the Cleveland Magistrate's Court, possessing a dangerous drug and possessing a thing used in connection with the smoking of the drug and for that she was fined $600, converted into a fine option order.
The effect was she was to do 100 hours community service. Then in the Wynnum Magistrate's Court, on 14 May 1996, exactly one year later, she was convicted of, amongst other things, supplying a dangerous drug to another and for that she was sentenced to six months imprisonment, to be suspended for two years. At the same time she was convicted of possession of a dangerous drug and possession of a pipe and so forth.
For the other drug offences she was fined. Again, I think those fines were converted into a fine option order and she was ordered to perform significant community service and I understand she has complied with those community service orders.
MR FRASER: That is so.
HIS HONOUR: That of course is a relevant consideration. Now it transpires that it was put to the Magistrate that the facts in connection with the supplying offence were that she had given to a friend a marijuana cigarette. That evidence was obtained by means of a confession from her. But for the confession it is unlikely she would have been prosecuted for that offence.
So in the light of that fact, it seems to me that the offence of supplying could not be regarded as very serious. The law regards any supply offence as serious, but there are relative degrees of seriousness obviously and this must fall into the lower or perhaps lowest category.
Furthermore, the facts indicate that the marijuana which was found on her premises - I mean that she pleaded to the other offences on the basis that she was the occupant of the house in which the marijuana was discovered by police pursuant to a search warrant.
So that is the background to the imposition of the suspended sentence. As I say, the operational period was two years. She was prosecuted subsequently for possession of a dangerous drug and possession of a utensil. The offences were committed in July 1997 and she was prosecuted to conviction on her own pleas of guilty, on 3 November 1997.
The Magistrate imposed for those offences fines, which were converted into fine option orders; the total fine for the two offences was $1,000. She was given 12 months to pay. At that point, the Magistrate was invited to activate or enforce the suspended sentence, because the convictions last recorded, the ones on 3 November 1997, put her in breach of the suspended sentence, by virtue of the length of the operational period and I think I have said before that she had gone some 14 months through the operational period, without being caught for using marijuana.
Placed before the Magistrate when he sentenced the appellant on 3 November 1997, was a report by the Aboriginal & Torres Strait Islands Corporation for Legal Services. The report is dated 28 October 1997. It traces the history of the woman, give some indication of her difficult childhood and also makes mention of the fact that she has educated herself to a level which is praiseworthy. She is regarded as being intelligent.
She is the mother of three children and the report also refers to attempts at rehabilitation. She enrolled in a course at the Princess Alexandra Hospital. I think the Magistrate was obliged to take at face value the fact that she was genuine in her attempted rehabilitation. I am told that because of her conviction for these most recent offences, the program has been terminated for the time being.
The appellant is the mother of three children. The Magistrate, in my opinion, did refer to all or certainly most of the relevant considerations before determining that it would not be unjust to enforce the six months suspended sentence. The question here is, however, whether he has placed too much emphasis on some considerations and too little on others.
I think on balance for the reasons which have been discussed during argument, he probably has put the emphasis in the wrong places. In his endorsement on the Bench charge sheet he stated that:
“The defendant having been convicted of an offence punishable by imprisonment is dealt with for a period of suspended imprisonment, which was imposed in the Magistrate's Court at Wynnum on 14 May 1996, with an operational period of two years from that date. The Court is not of the opinion that it would be unjust so to do in view of all the circumstances that have arisen since the suspended imprisonment was imposed. In accordance with the mandatory provision of subsection 2 of section 147 of the Penalties and Sentences Act 1992, I order that the offender serve the whole of the suspended sentence of six months imprisonment from this date.”
Section 147 of the Penalties and Sentences Act in its original form provided:
“A Court mentioned in section 162(2)(4) or (6) that deals with the offender for the suspended imprisonment may:
- (a)extend the operational period for not longer than one year from the making of the order under the subsection or;
- (b)order the offender to serve the whole of the suspended sentence or;
- (c)order the offender to serve the part of the suspended imprisonment that the Court orders.”
Subsection 2 provides:
“The Court must make an order under subsection 1(b) unless it is of the opinion that it would be unjust to do so in view of all the circumstances that have arisen since the suspended imprisonment was imposed.”
Now, the Court considered that section in conjunction with section 146, that is the Queensland Court of Appeal considered those sections in a number of recent cases and before the 1997 amendment to section 147. I would refer particularly to Holcroft - it is now reported - it is reported in Queensland - 1997 Queensland Reports, volume 2, page 392.
I read the following from the various judgments, which statements I think were the pre-cursors to the amendment to the section. I am simply reading desultory statements from the various judgments:
“It was made clear that non revocation of suspended sentences tends to undermine the integrity of the system of suspended sentences and their effectiveness is a means of deterring future offenders.
In the Queen and Moylan 1971, QB, 143 at 1467 the Court of Appeal said that the activation of a suspended sentence shall be the normal consequence of committing a further offence, punishable by imprisonment.
Parliament intended that the course should follow, unless it was unjust that those consequences should ensue.”
A further statement:
“However, this matter came before the sentencing Court, via section 146(3) and (4) and section 146(7) which because of the words “must” appears to make it mandatory for the Court to deal with the offender under section 147, so that in so dealing with him the Court's discretion envisaged by the word “may” in section 147(1) is apparently limited to an exercise of choice between subparagraphs (a), (b) and (c), subject of course to the requirements of section 147(2), which provides that an order under section 147(1)(b) must be made if the relevant opinion is not formed.
Use of the word “may” in section 146(2), where that route is applicable, is difficult to understand - see the discussion in R v. Folly.”
And then later again:
“Under section 147 the nature of the breach and its seriousness can if relevant be taken into account in forming the opinion described in section 147(2).”
A further statement:
“We think it quite clear that the Court may properly consider as unjust, the activation of a suspended sentence, where the new offence is a comparatively trivial offence and particularly where it is in a different category from that for which the suspended sentence was imposed. It is trite to say that every case depends on its own circumstances.”
A further statement:
“The Court is now held on several occasions that the fact that a subsequent offence does not warrant a custodial sentence is a strong argument for not activating the suspended sentence.”
Further:
“The applicant urged a number of other considerations in support of the contention that it would be unjust in the circumstances which have arisen since the suspended sentence was imposed, to make an order under section 147(1)(b). As the learned sentencing Judge observed, they were collectively matters designed to demonstrate that there had been a substantial degree of rehabilitation since the imposition of the suspended sentence and he has performed a considerable number of hours community service and he claims that he has become a responsible husband and father, abandoning the use of drugs.”
A further statement:
“Another factor which in my view it is legitimate to take into consideration, is that the suspended sentence is of two years duration. That fact must be considered because the words, “unjust to do so” in section 147(2) require consideration of whether it would be unjust to order the offender to serve the whole of the suspended sentence.”
I myself considered the matter in the fairly recent case of Struthers, number 1188 of 1997. A sentence was imposed on 1 May 1997. I had to consider there whether I should activate a suspended sentence for an offence of dishonesty, namely receiving, in the case of a man convicted of serious rape. The suspended sentence was for two years. The sentence I imposed for the rape was 10 years and I will simply read what I said there, although it only bears general relevance to the facts of this case:
“The effect of sections 146 and 147 of the Penalties and Sentences Act has been comprehensively and authoritatively discussed in the Queen v. Holcroft. Internal references there made to other decisions of the Court of Appeal on the subject of the enforcement of suspended sentences.
It is clear from those authorities that the Court revoking a suspended sentence, is entitled to look at the circumstances of the breach offence or offences in deciding whether to enforce the whole period of suspension or a part thereof.
In particular, the Court should look at all the circumstances that have arisen since the suspended sentence was passed.”
I refer now to the recent amendment of section 147, which reflects, I think substantially, the concerns and expressions of opinion expressed by our Appeal Court in a number of judgments in 1996:
“Subsection 3 now reads: ‘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
- (1)the nature of the offence and the circumstances in which it was committed and;
- (2)the proportion between the culpability of the offender for the subsequent offence and the consequence of activating the whole of the suspended imprisonment and;
- (3)the antecedents and any criminal history of the offender and;
- (4)the prevalence of the original and subsequence offences and;
- (5)anything that satisfies the Court that the prisoner has made a genuine effort at rehabilitation since the original offence 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;
- (6)the degree to which the offender has reverted to criminal conduct of any kind and;
- (7)the motivation for the subsequence offence and;
- (b)the seriousness of the original offence, including any physical or emotional harm done to the 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 the suspended sentence.’”
I think I have said enough to indicate that I am of the opinion that all things considered, that the enforcement of the full six months period was unjust. I repeat, the Magistrate in his remarks on sentence referred, it seems to me, to all relevant considerations and purported to give them due weight in coming to the conclusion which he did, but I have, after hearing argument, formed the view that he has placed the emphasis too much on the one side, to the detriment of the other.
I think now that balance should be restored and I propose to allow the appeal. I set aside the sentence imposed by the learned Magistrate on 3 November 1997 so far as the enforcement of the six months suspended sentence is concerned and I order instead that the appellant be imprisoned for six months, which term is to be suspended after serving 17 days and I fix the operational period at one year, during which time she must not commit any offence, punishable by imprisonment. Please listen to this, because we are going through the same exercise; it is one year this time, otherwise the Court will be empowered to enforce the balance of the suspended sentence, in this case six months, less 17 days, or any part thereof it considers just in the circumstances. Do you understand that?
APPELLANT: Yes, sir.
HIS HONOUR: This will be your last chance now. If you continue to commit offences of this sort, I think the Court will have to take strong action next time.
MR FRASER: I take it from what Your Honour says, that the 17 days already served is to be taken into account as time-----
HIS HONOUR: Well, I had better make that direction. I am informed that the appellant has spent 17 days in custody in connection with the offence and I direct that that time be deemed time served under the sentence imposed. I make no order as to costs in the circumstances. Yes, they want specific dates. What are the dates that make up the 17 days, please?
MR FRASER: Your Honour, there's 3 November, inclusive to 19 November inclusive.
HIS HONOUR: She's served that part of the sentence.
MR FRASER: That's so.
HIS HONOUR: Yes. Before bail was granted. Thank you.