R v Sandow[2000] QDC 199

DISTRICT COURT OF QUEENSLAND

1. [1]
   The prisoner was sentenced by me on 30 March 1999 to imprisonment for 18 months wholly suspended for an operational period of 3 years. He had pleaded guilty to one count of entering a dwelling house and stealing money and other property. The complainant was an 81 year old widow who disturbed the prisoner in her house. The offence was committed on 1 March 1997. At the time he committed the offence, the prisoner was subject to parole as a result of a sentence imposed in this court on 4 February 1994. On that occasion, he was sentenced to a number of terms of imprisonment to be served concurrently, resulting in an effective head sentence of 4 years, and the Court recommended that he be considered eligible for release on parole after serving 9 months of that sentence. I am informed that he was released on parole on 4 November 1994 and that the parole order expired on 3 March 1998.

2. [2]
   Mr Sandow has breached the terms of the suspended sentence. On 30 March 2000, he was convicted at the Redcliffe Magistrates Court of contravening a domestic violence order and sentenced to 10 months imprisonment. The circumstances of the offence are not disputed by the prisoner; and they are serious. The domestic violence order contained a number of conditions relating to his partner Kelly Lane. On 29 March 2000, he breached the order by attacking Ms Lane in her home and breaking her arm.

3. [3]
   At the time of the sentence hearing on 30 March 1999, I was persuaded by Mr Kent that the imposition of an actual term of imprisonment at that time would, by virtue of s. 187 of the Corrective Services Act 1998, cause the prisoner’s parole to ipso facto be cancelled, requiring him to serve the balance then outstanding of the sentence imposed on 4 February 1994.  That was a factor, but not the only factor, which persuaded me to wholly suspend the term of imprisonment of 18 months.  I also took into account what I was told was a stable relationship with Ms Lane and his responsibility for 4 children.  My decision did not, in any way, bind the relevant Community Corrections Board which could have acted independently, pursuant to s. 185, to cancel, suspend, amend or vary the parole.  I am informed that no action was taken pursuant to s. 185 subsequent to 30 March 1999.

4. [4]
   Section 187 is in these terms:

“187. (1) Where a prisoner who has been released on parole is sentenced to another term of imprisonment upon conviction for an offence committed in Queensland or elsewhere during the parole period, the prisoner’s parole shall ipso facto be cancelled whether or not the parole period has expired.

2. (2)
   For the purpose of subsection (1), a prisoner shall not be taken to have been sentenced to another term of imprisonment where the prisoner’s liability to undergo a term of imprisonment arises only –

1. (a)
   in default of payment of a fine; or

2. (b)
   in consequence of the nonpayment of a sum of money required to be paid pursuant to an order of a court; or

3. (c)
   in consequence of the failure to make restitution required to be made pursuant to an order of a court; or

(d) in consequence of the term of imprisonment being served by way of an intensive correction order in force under the Penalties and Sentences Act 1992, part 6; or

5. (e)
   in consequence of the term of imprisonment being wholly suspended under the Penalties and Sentences Act 1992, part 8.”

5. [5]
   Mr Farr argues that an activation now of any part of the suspended sentence by virtue of the breach, would, on the proper construction of s. 187, lead to an automatic cancellation of the prisoner’s parole, notwithstanding that the parole order had expired prior to the imposition of the original sentence. More importantly, he tells me that the sentence management authorities within the prison have informed his client that he will be treated accordingly, if any period of imprisonment is ordered to be served.

6. [6]
   The real question is, therefore, whether on the facts here, the activation of the sentence imposed on 30 March 1999, either in whole or in part, for an offence committed during parole for the sentence imposed on 4 February 1994, constitutes:

“another term of imprisonment........

for an offence committed in Queensland.........

during the parole period.”

7. [7]
   There is doubt as to whether a wholly suspended term of imprisonment imposed pursuant to s.144 of the Penalties and Sentences Act 1992 is a “term of imprisonment”, at least for the purposes of s.156(1): see R v Anderson [1995] 1 Qd.R 49. 

8. [8]
   “Term of imprisonment” is defined in s.10 of the Corrective Services Act 1988  as

1. (a)
   the term of a single sentence; or

2. (b)
   the unbroken period of imprisonment a person is liable to serve by virtue of a number of sentences, whether ordered to be served concurrently or cumulatively and whether imposed at the same time or different times and for the purposes of this definition a person is deemed to be serving a term of imprisonment by virtue of a sentence where the person is undergoing imprisonment...................for failure to comply with any order of a court” (my emphasis added).

9. [9]
   Clearly, a wholly suspended term avoids the automatic cancellation of the parole by virtue of s. 187(2)(e). However, when one has regard to the above definition, it can be argued that if at any time a prisoner so sentenced fails to comply with the order not to commit an offence punishable by imprisonment within the operational period, that prisoner is deemed to be sentenced to a term of imprisonment and suffers the legal consequences, if the original offence was committed during the parole period.  If a person breaches a suspended sentence and the court is dealing with that person for that breach pursuant to ss. 146 and 147, the court has no power to revisit the original sentence: R v Bowen [1997] 2 Qd.R 379 and R v Waters [1998] 1 Qd.R 442, so it could not be said that the activation of a suspended sentence could be regarded as a sentence of another term of imprisonment for the purposes of s. 187(1).   

10. [10]
    Therefore, I conclude that the activation of the suspended sentence in this case would lead to an automatic cancellation of the original parole order pursuant to s. 187 (1).

11. [11]
    In a practical sense, such a consequence is perhaps understandable, given that a person in this prisoner’s position has been given many chances which he has not taken. The seemingly serious consequences for this prisoner must be seen in the light of the power vested in the Queensland Community Corrections Board, by virtue of s. 190, to direct by order that he serve only part of the unexpired portion of the original sentence. When seen in a logical way, the apparent injustice of the activation of a suspended sentence in such circumstances, is mitigated by the statutory scheme provided in s. 190.

12. [12]
    In my opinion, it is appropriate to take into account the consequences of activating the suspended sentence when seen in the light of the other sentence he is presently serving. It is an aspect of the totality principle, discussed on many occasions by the Court of Appeal in relation to cumulative sentences or sentences of imprisonment imposed for offences committed whilst on parole: R v Cutajar [1995] 85 A.Crim.R.280;  R v Clements [1998] QCA58.

13. [13]
    The breaching offence in this case was a serious one for which the prisoner received a heavy sentence. However, having regard to all relevant matters set out in s. 147, I am not persuaded by the prisoner that it would be unjust to order that he serve the whole of the suspended imprisonment. I have particularly had regard to the circumstances of the subsequent offence, which are not disputed, the serious nature of the original offence, the prisoner’s criminal history for one so young, and the fact that the breaching offence was committed just inside the first year of the 3 year operational period. I have also taken into account the effect of the order to which I have earlier referred. I do not regard that as a special circumstance pursuant to s. 147 (3) (c), as it is not a circumstance that has arisen since the original sentence, in the sense contemplated in the sub-section.

14. [14]
    I order that you serve the whole of the term suspended, that is, 18 months concurrently with the present sentence.