R v Shepherd[2007] QSC 184

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

FRYBERG J

Indictment No 462 of 2007

THE QUEEN

v.

JENNIFER KATHLEEN SHEPHERD

BRISBANE

DATE 23/07/2007

ORDER

HIS HONOUR:  The prisoner is before me pursuant to an order allegedly made in the Magistrates Court on the 15th of March this year committing her to this Court pursuant to section 146(4) of the Penalties and Sentences Act.  One preliminary matter may be dealt with at once.  The order of committal on its face commits the prisoner to the District Court and the attached transmission sheet also refers to committal to the District Court.  In the circumstances with which the Magistrate was dealing, that is, breach of a suspended sentence imposed by this Court, the order is in error.  Whether it truly reflects what was said by the Magistrate or not, it should be quashed.

That does not affect the jurisdiction of this Court to deal with the matter.  That jurisdiction being conferred by a combination of sections 146(2) and (7).  However a different problem appears.  The prisoner was originally sentenced by me in this Court in August 2002 to   18 months imprisonment which was wholly suspended for an operational period of three years. During that operational period she committed a further offence or offences punishable by imprisonment.  She was dealt with for those offences in the Magistrates Court on the 8th of August 2005 and was then committed to this Court pursuant to section 146.

The matter came before me on the 14th of September 2005.  Then, impressed by the fact that the Magistrate had imposed probation orders, I felt that the justice of the case required that those orders be given the opportunity to operate. Having decided that it would be unjust to make an order that she serve the whole of the suspended imprisonment I proceeded to make orders under section 147(1)(a)(ii) of the Act.  Because she had in the meantime served 15 months pursuant to an earlier breach, I ordered that the three months then outstanding be further suspended and that she be subject to a further operational period of one year.  The offences that have brought her here today were committed during that further operational period, that is, on the 21st of June 2006.  That date, be it noted, is outside the original three year operational period which I imposed but is within five years of the original sentencing date.

When the matter came on before me today counsel drew my attention to the decision of the Court of Appeal in The Queen v Muller [2006] 2 QdR 126, decided a couple of months after my 2005 order.  The determination of the ratio decidendi of that decision is not an easy matter.  It seems clear that on the reasoning of Justice Jerrard the order which I made could not have the effect that any offence committed during the extended operational period rendered the prisoner liable to be dealt with under section 147 of the Act. 

It seems equally clear that Justice Atkinson made no determination of that question. 

There has been some discussion before me as to the proper interpretation of the judgment of Justice Williams.  It seems, looking at paragraphs 14 through to 16, that whatever view his Honour took of the section he was of the view that an offence committed during the extended period would not itself constitute a breach of the suspended sentence.  To that extent at least his Honour's view equated with that of Justice Jerrard.

On behalf of the Crown, Mr Fuller has submitted that his Honour's judgment should be construed to mean that in the events which have happened I am able to revisit the sentence proceedings or the breach proceedings of the 14th of September 2005 and act in a different way from that on which I then acted and to do so in respect of the breach that was then before the Court.

With respect, it seems to me that in respect of that breach I am now functus officio. That matter has been dealt with.  It is not suggested that the order which I made was invalid or not within the power conferred by section 147.  I do not think that the interpretation of Justice Williams' reasons propounded on behalf of the Crown would authorise me to revisit what occurred on that day.

In the alternative, Mr Fuller submitted that the present case was to be distinguished from The Queen v Muller on the ground that when a Court proceeds under section 147(1)(a)(ii) it is  imposing a fresh sentence of the same sort as it imposes under section 144 (particularly section 144(5)).  That argument seeks to avoid the theory underlying the decision in Muller by avoiding the operation of the earlier decisions in Waters and Skinner which underlie Muller.

I found some attraction in that argument at first but I have come to the conclusion that it is inconsistent with the whole structure of section 147.  I suspect that to adopt it would cause a number of unforeseen consequences elsewhere in sentencing law as well as unduly complicating the nature of the proceeding under section 147. 

It follows therefore that in my judgment the submission advanced by Mr Johnson on behalf of the prisoner is correct.  That was that a breach during the extended period of an operational period of a suspended sentence is not a breach of an order under section 144 - or more accurately is not a breach occurring during the operational period imposed under section 144 and that as a consequence of the decision in Muller I have no power to make any order in respect of it under section 147(1). 

Having come to that conclusion the only further order which I make is that the prisoner be discharged. 

MR FULLER:  Thank you, your Honour.  If I could add just by way of observation, your Honour, that if Muller's correct then she couldn't have been committed up to this Court under 146 in any event. 

HIS HONOUR:  I did look quickly at that but it seemed that the Act was very mandatory‑‑‑‑‑

MR FULLER:  That it required it to be during the operational period of the order made under section 144.

HIS HONOUR:  I see.

MR FULLER:  Not 147.  So therefore‑‑‑‑‑

HIS HONOUR:  Yes.

MR FULLER:  All right. Thank you, your Honour.