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The Queen v Naidu[2019] QDC 94

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Naidu [2019] QDC 94

PARTIES:

THE QUEEN
(respondent)

v

FLORENCE BANDINI NAIDU
(appellant)

FILE NO/S:

ID201/17

DIVISION:

Criminal

PROCEEDING:

Application under s 122 of the Penalties and Sentences Act 1992

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

23 May 2019

DELIVERED AT:

Ipswich

HEARING DATE:

16 May 2019

JUDGE:

Horneman-Wren SC, DCJ

ORDER:

  1. The probation order imposed by the Ipswich District Court on 17 July 2018 is revoked.
  2. The applicant is resentenced pursuant to s 32(1) of the Penalties and Sentences Act 1992 as follows:
  1. (i)
    The applicant is released upon entering into a recognisance of $1,000 on conditions that;
  1. (a)
    She must appear before the court to be sentenced if called upon within 12 months and;
  2. (b)
    That in the meantime she keeps the peace and be of good behaviour;
  3. (c)
    No conviction is recorded.

CATCHWORDS:

REVOCATION OF PROBATION ORDER – MATERIAL CHANGE OF CIRCUMSTANCE – RE-SENTENCE – where applicant submits a material change in circumstance and/or that the applicant's circumstances were not accurately placed before the court at the time of the original sentence – whether section 120 (1) (a) and/or (b) of the Penalties and Sentences Act 1992 has been satisfied – where applicant is to be re-sentenced pursuant to s 121 Penalties and Sentences Act 1992 – whether court has capacity within its re-sentencing discretion to order that no conviction be recorded.

COUNSEL:

The applicant appeared in person
Ms C Bernardin (senior legal officer) (for the respondent)

SOLICITORS:

Officer of the Director of Public Prosecutions (for the respondent)

The application

  1. [1]
    On 17 July 2018 the applicant pleaded guilty to one count of stalking in contravention of s 359B of the Criminal Code with the circumstance of aggravation that it was a domestic violence offence. She was sentenced to 18 months’ probation and a conviction was recorded.
  1. [2]
    She applies, pursuant to ss 122 and 120 of the Penalties and Sentences Act 1992 (PSA), for revocation of the probation order. She seeks to be resentenced for the original offence under s 121.
  1. [3]
    The reasons set out in her application for revocation identify that her partner and son have moved back to New Zealand to study. As a consequence she feels misplaced as her family are apart. She says that this has also taken a toll on her children as they are a close family. She is trying to work through her relationship with her partner which has been made very difficult through their being apart. She says that he is her support, having helped her a great deal in the past, and that she is struggling as she has very little support in Australia.
  1. [4]
    The applicant, who represented herself on the application, expands upon those reasons in her written submissions. She says that her son, who is 22 years old, has moved to New Zealand to further his studies after completing a business and finance degree in Australia. She worries about him because he has a thyroid condition, high blood pressure and sleep apnoea. He does not have her there to ensure that he takes care of himself. He also struggles socially.
  1. [5]
    Her partner’s return to New Zealand was in the context of struggling to find work in Australia following injuries sustained in his employment. He too is undertaking further studies in counselling so that he can work in suicide prevention in adolescents, and in prisoner rehabilitation. They have been in a relationship for 24 years.
  1. [6]
    The splitting of the family has also had an effect on her two younger children, both daughters, aged 18 and 13. The applicant and her daughters travelled to New Zealand in January 2019, she having obtained permission from Corrective Services to do so. However, they were detained for a time in immigration when it was thought that she may have entered the country on an earlier occasion without having declared her conviction. This, in fact, had been at a time prior to her conviction by the court. The matter was resolved but she says it was humiliating for her daughters. The avoidance of such humiliation in the future is another reason she identifies for seeking the revocation of the probation order.
  1. [7]
    She identifies as a further reason her fear that she will not be able to foster children in the future as she will fail the police check. She and her partner have a long history of fostering children.
  1. [8]
    The applicant also raises that at her sentencing hearing her barrister stated that she desired to visit her father who lives in Canada, but failed to inform the court that this desire was because he was unwell and was to undergo a kidney transplant. Her desire to travel to Canada was not merely about visiting him, but to care for him as he had no one other than her stepmother to care for him. Her stepmother has limited capabilities to care for her father.
  1. [9]
    Although not raised in the application, the respondent addressed each of the further reasons for revocation identified by the applicant in its submissions in response.

The applicant’s performance on probation

  1. [10]
    In a report dated 15 March 2019,[1] the applicant’s probation case manager provides a very positive report of the applicant’s performance under the probation order. It states that upon her induction into her probation order the applicant was identified as presenting with high needs in the areas of finances, mental health, accommodation, relationships and domestic violence. It was recommended that she continue to engage with her psychologist, as required, throughout her period of probation.[2] Collateral checks indicated that the applicant had successfully engaged with psychological services throughout her order.
  1. [11]
    It reported that she had travelled to New Zealand between 18 and 29 January 2019 with approval and without issue. She had reported as directed on all occasions and had not contravened her order in any way since its commencement.
  1. [12]
    Understanding that the applicant is seeking the revocation of her probation order because of her desire to relocate to New Zealand to live with her family, the report writer respectfully recommended the revocation of the probation order and the resentencing of the applicant for the original offence. The report writer’s supervisor concurred with that recommendation.

Applicable legislation

  1. [13]
    Section 120(1) of the PSA provides:

“120 Amendment and revocation of community based orders generally

  1. (1)
    The court that made a community based order other than an order to which section 120A applies may, on application under this division, amend or revoke the order if the court is satisfied—
  1. (a)
    that the offender is not able to comply with the order because the offender’s circumstances have materially altered since the order was made; or
  1. (b)
    that the circumstances of the offender were wrongly stated or were not accurately presented to the court; or
  1. (c)
    that the offender is no longer willing to comply with the order."
  1. [14]
    Section 121, relevantly, provides:

“121  Offender may be re-sentenced on revocation of order

  1. (1)
    Subject to subsection (2), if a community based order is revoked, the court that made the order may re-sentence the offender for the offence for which the order was made in any way in which the court could deal with the offender if the offender had just been convicted by or before it of the offence.
  1. (2)
    In determining how to re-sentence the offender, the court must take into account the extent to which the offender had complied with the order before its revocation."

Respondent’s submissions

  1. [15]
    The respondent submits that the applicant has not demonstrated that her circumstances have materially altered since the probation order was made. It submits that the circumstances raised concerning the applicant’s father is the decline in his health. It submits that “the Canada issue” was raised in the sentencing hearing and considered by the sentencing judge. It submits that there is, therefore, neither a material change in the applicant’s circumstances in that regard nor were those circumstances wrongly stated or inadequately[3] presented to the court.
  1. [16]
    Further, it submits that the prohibition on the applicant travelling to Canada cannot be attributed to the imposition of the probation order itself. Rather, it is the conviction which prevents her from visiting her father and the conviction is a separate component to the probation order. The respondent submits, its imposition is not reviewable by the court on this application.
  1. [17]
    It submits that the applicant’s partner’s return to New Zealand is not a material change in circumstances because he was already in New Zealand at the time of sentence. At the sentencing hearing her counsel referred to her husband having moved back to New Zealand and the house having been sold.
  1. [18]
    As to the return of the applicant’s son to New Zealand, the respondent submits that it is not a sufficient material change in her circumstances to have her probation revoked in light of her having been able to travel to New Zealand during the period of probation with the support of Probation and Parole. This submission, though, implicitly concedes that her son’s move to New Zealand is, at least, a material change in her circumstances.
  1. [19]
    The respondent submits that the other matters identified by the complainant are not material changes in circumstances but rather the consequences naturally flowing from her offending.
  1. [20]
    Finally, it submits that the applicant’s statement in her submissions that she wishes to reside with her father in Canada is inconsistent with her stated desire to live with her family in New Zealand.
  1. [21]
    The respondent submits that if the court considered there to have been a material alteration in the applicant’s circumstances, given that the prosecutor at the sentencing hearing submitted that the sentencing discretion could extend as high as an immediately suspended term of imprisonment, and given the appellant’s performance on parole, a short period of suspended imprisonment could be imposed if the applicant were to be resentenced. It submits that she has demonstrated a lack of remorse and insight.
  1. [22]
    Further, it submits that the issue of whether a conviction ought to be recorded would not be alive if a term of imprisonment were to be imposed as it would be mandatory. Moreover, it submits that a conviction already having been recorded on the original sentence, that issue would not be alive in any event. It submits that the recording of a conviction is an exercise of a separate discretion to that of imposition of the probation order and, as such, is not amenable to revision on this application. The recording of the conviction, on the respondent’s submission, must remain.

Consideration

  1. [23]
    All of the submissions made by the applicant, except for that in relation to the purpose of her travelling to Canada where her father resides, are directed towards a material alteration of circumstances being a ground for revocation of a community based order under s 120(1)(a) of the PSA.
  1. [24]
    In my view, it is unnecessary to consider whether any of those matters could be considered material alterations to her circumstances. It is unnecessary because the evidence demonstrates that even if they are, they do not render the applicant unable to comply with the probation order.
  1. [25]
    The probation order contains all of the mandatory general requirements prescribed by s 93(1) of the PSA together with the further requirement concerning psychiatric or psychological assessment and treatment. The most significant of those general requirements for present purposes is the prohibition on leaving or staying out of Queensland without the permission of an authorised Corrective Services officer. The evidence demonstrates that the applicant has been able to obtain the permission of an authorised Corrective Services officer to leave Queensland and remain out of the State for a period. There is nothing in the evidence to suggest that further permission would not be forthcoming. That permission may even extend to the applicant remaining outside of Queensland for the balance of the duration of the probation order. This is, perhaps, particularly so given the report of the probation officer and supervisor.
  1. [26]
    Therefore, nothing in any of those identified circumstances render the applicant unable to comply with her order. A jurisdictional fact required for the revocation of an order under s 120(1)(a) has not been established. In those circumstances, the court is powerless to act under that provision.
  1. [27]
    In my view, the applicant has demonstrated that a jurisdictional fact required for the court to revoke the order under s 120(1)(b) is satisfied. She has demonstrated that her circumstances were wrongly or inaccurately presented to the court at the sentencing hearing. That is the issue to which her submissions concerning her travelling to Canada were relevant.
  1. [28]
    The only submission made by her counsel concerning this issue in the course of the sentencing proceeding was as follows:

“In this case, Your Honour, I should also indicate my client has visited her father who lives in Canada with his new wife. She is hoping to go there at some point, with her children. And she of course won’t be able to enter Canada if a conviction is recorded.”[4]

  1. [29]
    In his sentencing remarks, the sentencing judge[5] said only the following concerning that issue:

“Mr Munsie, in his submissions, referred to the fact that the defendant’s father lives in Canada and she is desirous of travelling there again. That is, there is some impact on her social wellbeing that I take into consideration. As I raised with Mr Munsie, however, the nature of the defendant’s employment and, as he since informed me in the course of submissions, is one requiring a blue card.

I am informed that they are discretionary matters for the government department which administers that regulation of persons having contact with children. I am told that the fact of these proceedings and the outcome is a matter that must be disclosed, in any event, but the recording of a conviction itself is something which they would take into account. In my view, this is one of those cases where there is an interest in others in knowing of the conviction, including those who might engage Ms Naidu’s services and those who regulate the provision of such services.

In my view, it is a matter in which it is appropriate to record a conviction. Those matters can then be considered by those authorities in the usual way. For that reason, there will be a conviction recorded for– or for those reasons, there will be a conviction recorded for this quite serious offence.”[6]

  1. [30]
    Those comments were made only in the context of considering whether or not to record the conviction. It is apparent that the recording of a conviction in circumstances in which the applicant wished to travel to Canada would have some impact on her social wellbeing which was a relevant circumstance prescribed by s 12(2)(c)(ii) to which the court was required to have regard. It is apparent that the court considered that this impact upon her social wellbeing had to be balanced against the interests of others, including those who might engage the applicant’s services given her work in childcare and regulatory authorities, in knowing of the conviction.
  1. [31]
    It is understandable that the issue of travel to Canada was only referred to in considering whether or not to record the conviction; the way in which the issue had been presented did not make it particularly relevant to the consideration of whether a probation order should be imposed. Had it been presented not as a mere desire to travel to another country to visit a parent but, as it should have been, a desire to travel to another country to care for a parent who was ill and undergoing an organ transplant in circumstances where the parent had limited other support, it would have been relevant to both the appropriateness of the imposition of a probation order and the recording of a conviction in determining a sentence which, in its overall effect, would be just in all circumstances.
  1. [32]
    The applicant has demonstrated that her circumstances were wrongly or inaccurately presented to the sentencing court. That is sufficient to give rise to the jurisdiction of the court to revoke the probation order on this application. In my view, that is so even though on the evidence the immediate care which the applicant’s father needed, and which she wished to travel to Canada to provide, has passed. Unlike the need to demonstrate an inability to comply with the order required by s 120(1)(a), or the unwillingness to comply required by s 120(1)(c), s 120(1)(b) does not require the wrong or inaccurate presentation of the applicant’s circumstances to the sentencing court to have any particular outcome or effect. Whether it has such an outcome or effect may be relevant as to whether the discretion to revoke the order ought to be exercised in a particular case; but not as to whether it is enlivened in a jurisdictional sense.
  1. [33]
    In my view, the immediate need to provide care to her father having passed would not of itself lead to the conclusion that the discretion to revoke ought not to be exercised. On the facts now presented to the court, it is reasonable to infer that a further need for the provision of care may arise. Even if this were to occur after the probation order had expired, or even if permission were to be granted during the remaining period of its operation, the recorded conviction would still act as an impediment. Furthermore, it might be inferred that it is unlikely that the applicant’s father will be able to travel to Australia (or New Zealand) to spend time with the applicant. That too is a matter which would have been relevant to the balancing of competing considerations of the applicant’s social wellbeing and the public’s interest in knowing of the conviction which the sentencing judge undertook.
  1. [34]
    That brings me to a consideration of the respondent’s submission that the recording of the conviction was ordered in the exercise of a separate discretion and is immune from review in these proceedings. In my view, that submission should be rejected.
  1. [35]
    Section 121 of the PSA provides:

121  Offender may be re-sentenced on revocation of order

  1. (1)
    Subject to subsection (2), if a community based order is revoked, the court that made the order may re-sentence the offender for the offence for which the order was made in any way in which the court could deal with the offender if the offender had just been convicted by or before it of the offence.
  1. (2)
    In determining how to re-sentence the offender, the court must take into account the extent to which the offender had complied with the order before its revocation.
  1. (3)
    If the community based order mentioned in subsection (1) is a graffiti removal order, the court need not, but may, when re-sentencing the offender for the graffiti offence for which the order was made, make another graffiti removal order. 
  1. (4)
    If the community based order mentioned in subsection (1) is a community service order made under section 108B, the court need not, but may, when re-sentencing the offender for the offence for which the order was made, make another community service order."
  1. [36]
    If the respondent’s submission were to be accepted, the court’s jurisdiction to resentence the offender “in any way in which the court could deal with the offender if the offender had just been convicted by or before it of the offence” would be fettered. The court would not, for example, be able to impose any form of sentencing order which, if imposed, proscribed the recording of a conviction.[7]
  1. [37]
    Furthermore, to view the recording or non-recording of a conviction to be the exercise of a discretion separate from the balance of the “penalty phase” of the sentencing process was rejected by the majority of the Court of Appeal in R v Briese, ex parte Attorney-General of Queensland.[8]
  1. [38]
    Thomas and White JJ said:

“The exercise of the discretion is partially controlled by the criteria mentioned in s. 12(2), and is also to some extent regulated by later sections in the Act. Thus ss 16 and 22 (orders for release and recognisances for property-related offences) provide that if a court makes orders of those kinds, it must not record a conviction. Sections 29, 34, 44, 90 and 100 (other recognisances, restitution and compensation, fines, probation, and community service) permit the court to make orders of those kinds whether or not it records a conviction. Sections 111, 143 and 152 (intensive correction order, suspended imprisonment and imprisonment) permit the court to make orders of those kinds only if the court records a conviction.

In the sentencing process a court must consider all available sentencing options and impose that option or combination of options that is most appropriate in the particular case. In the end it is the total order that matters to the offender and community alike. It is impossible in our view to consider the discretion that is involved in s. 12 in isolation from the particular sentencing option that is being considered under ss 16, 22, 29, 34, 44, 90, 100, 111, 143, 152 or any other section. And it is likewise inappropriate to consider those sentencing options in isolation from the circumstance whether the conviction will be recorded or not. The combined effect of the orders needs to be looked at before a court decides that a sentence is appropriate. If it is not appropriate the court should not make it and should look for some other option or combination of options. In these respects we respectfully differ from the views expressed by Dowsett J.”[9]

  1. [39]
    Understood in this way, I am of the opinion that having revoked a community based order under s 120(1), the jurisdiction of the court to resentence the offender in any way in which it could deal with the offender if just convicted extends to the whole of the sentencing process and considerations, including the discretion to record of not record a conviction.
  1. [40]
    Having established that a ground for exercising the discretion to revoke the probation order exists, I am of the view that the order should be revoked and the applicant resentenced for the offence of unlawful stalking as if she had just been convicted but taking into account the extent to which she complied with the probation order as required by s 121(2).

Resentencing

  1. [41]
    As noted on the original sentencing, the offence was a serious one. All the observations made in the original sentencing remarks in that regard may be adopted.
  1. [42]
    The two central, further considerations on the resentencing are the extent of the applicant’s compliance under the probation order and the greater impact of a recorded conviction on her social wellbeing revealed by the circumstances now presented to the court. Those considerations are interrelated.
  1. [43]
    As the probation report reveals, the applicant’s performance under the probation order has been excellent. She had performed in such a way over what is now 10 months of the order. The report supports its revocation and her resentencing. In my view, that performance speaks highly of the complainant’s rehabilitation, the prospects of which remain a relevant consideration on the resentencing. In my view, the applicant has demonstrated through that compliance and through her submissions, both written and oral, remorse and insight.
  1. [44]
    The matters to which the respondent points as demonstrating a lack of remorse and insight should not be viewed in that way. They are based on statements in the applicant’s submissions about the abuse which she alleges she sustained at the hands of her brother-in-law which motivated her conduct which constituted the unlawful stalking. Those statements should not be viewed in that way because the original sentencing proceeded on the basis that the court was not to determine the accuracy of those matters, and that they were for another place and another time.[10]
  1. [45]
    The applicant has thus already discharged a considerable burden, in an exemplary manner, under the probation order.
  1. [46]
    Whilst the public interest in knowing of the conviction remains a relevant consideration for the reasons expressed in the original sentencing remarks, the balance to be struck between that issue and the applicant’s social wellbeing is different on the facts now known to the court. The applicant’s demonstrated rehabilitation is also a matter to be weighed in the balancing of consideration of the public’s interest in knowing of the conviction. Where rehabilitation has been demonstrated, as it has here, the need for public protection through such knowledge will not loom as large as a consideration.
  1. [47]
    Taking all of those matters into consideration, I am of the view that an appropriate means of dealing with the applicant on resentencing her is to order that she be released upon her entering into a recognisance of $1,000 to keep the peace and be of good behaviour for a period of 1 year and that it be ordered that no conviction be recorded.

Footnotes

[1]Exhibit AW-5 to the affidavit of Ashleigh Wakefield: Exhibit 3.

[2]It was a condition of the applicant’s probation order that she submit to such medical, psychiatric or psychological assessment and treatment as directed by an authorised corrective services officer.

[3] The test under s 120(1)(b) is one of accuracy not adequacy.

[4]Transcript 17 July 2018 at 1-13, ll 36-40.

[5]The court was constituted by me on that occasion also. 

[6]Decision 17 July 2019, p 5, ll 14-19.

[7]See Part 3, Division 2 of the PSA. In particular, s 22.

[8][1998] 1 Qd R 487.

[9]At 489-490. Compare Dowsett J in dissent at 496-497.

[10]Decision p 1, ll 10-15.

Close

Editorial Notes

  • Published Case Name:

    The Queen v Florence Bandini Naidu

  • Shortened Case Name:

    The Queen v Naidu

  • MNC:

    [2019] QDC 94

  • Court:

    QDC

  • Judge(s):

    Horneman-Wren DCJ

  • Date:

    23 May 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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