Director of Public Prosecutions v Fox

[2007] TASSC 49

[2007] TASSC 49

CITATION:            Director of Public Prosecutions v Fox [2007] TASSC 49

PARTIES:  DIRECTOR OF PUBLIC PROSECUTIONS
  v
  FOX, Mark Anthony

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  356/2003
DELIVERED ON:  21 June 2007
DELIVERED AT:  Hobart
HEARING DATE:  12 June 2007
JUDGMENT OF:  Slicer J

CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Community service order – Revocation – Relevant principles.

Sentencing Act 1997 (Tas), s35.
Rosevear v Bonde [2005] TASSC 95; Young v Colbeck B9/1993, referred to.
Aust Dig Criminal Law [820]

REPRESENTATION:

Counsel:
           Applicant:  J E Williams
           Respondent:  G D Meyer
Solicitors:
           Applicant:  Director of Public Prosecutions
           Respondent:  Milton & Meyer

Judgment Number:  [2007] TASSC 49
Number of paragraphs:  14

Serial No 49/1007
File No 356/2003

THE DIRECTOR OF PUBLIC PROSECUTIONS v MARK ANTHONY FOX

REASONS FOR JUDGMENT  SLICER J

21 June 2007

1. The Director of Public Prosecutions has applied for the review of a community service order made against the respondent on 25 February 2004.  The ground of review is that:

"Mark Anthony Fox is no longer willing or able to comply with the said order."

The Director further applies that the order be cancelled and a fresh order made pursuant to the Sentencing Act 1997 ("the Act"), s35(5).

1. On 25 February 2004, the respondent was convicted of the crime of stealing, contrary to the Criminal Code, s234. The then learned Chief Justice sentenced the offender to nine months' imprisonment wholly suspended on condition that he be of good behaviour for a period of two years. In addition, he ordered the respondent serve 80 hours of community service. At the commencement of the hearing of this application, I inquired of counsel for the Director whether the application in fact sought a review of the whole of the terms of the sentence. I did so because of the form in which his Honour had made the original order, namely, a determination of sentence with suspension, and the addition of 80 hours of community service. Counsel for the Director considered the position and advised the Court that the only order sought to be reviewed was that of the performance of 80 hours of community service.

1. I had raised the matter because of the provisions of the Act, s35(5), which provides:

"(5)     Subject to subsection (6), at the hearing of the application, the court may ¾  

(a)vary the community service order; or

(b)cancel the community service order and deal with the offender for the offence or offences in respect of which it was made in any manner in which the court could deal with the offender had it just found the offender guilty of that offence or those offences."

1. The reference to subs(6) is that which prevents a court from varying or cancelling the community service order unless it is satisfied:

"(a)   changes in the offender's circumstances since the making of the order have rendered the offender unable to comply with any one or more of the conditions of the order; or

(b)the offender is no longer willing or able to comply with the order."

1. Here the basis of the application was a wilful and continuing indifference to the obligation to perform any part of the order.  Despite repeated notifications, the respondent never attended an induction process, did not reply to requests from the probation service, failed to present himself to a probation officer and failed to undertake any of the terms of the order.  There can be no doubt that he was at the relevant times not willing to comply with the order.

1. In addition, this Court was required to pay regard to the Act, s35(7) which provides:

"(7)     In determining how to deal with an offender following the cancellation by it of a community service order, the court must take into account the extent to which the offender had complied with the order before its cancellation."

1. The respondent has committed offences subsequent to the order made by the then learned Chief Justice and been sentenced to a further term of a suspended sentence of imprisonment.  The Court was told that at the most recent appearance in May 2007 the Court of Petty Sessions did not regard the imposition of a community service order as being an available option, given the history of the offender. 

1. The second reason for my intervention arose from decisions of judges of this Court in Madden v Groves, Blow J, 7 April 2005 and referred to by Crawford J in Rosevear v Bonde [2005] TASSC 95. However, for the purpose of this determination, I accept that the learned Chief Justice was entitled to impose a suspended sentence of imprisonment, together with an order for community service, as part of the one order. However, that leaves for consideration the requirements of the Act, s35(5)(b), namely that in cancelling the order, the Court is required to "deal with the offender for the offence … in respect of which it was made in any manner in which the court could deal with the offender had it just found the offender guilty of that offence ...". On one basis this would involve a review of the sentence of nine months, its suspension and 80 hours of community service. However, in fairness, I regard myself as confined by the application in the terms stated by counsel.

1. An original conviction followed the plea to the crime of stealing of property worth some $60,000, of which $25,000 had been recovered.  Although the involvement of the respondent had been relatively minor, he had financially profited through his part in the commission of the crime.  The learned sentencing judge stated:

"In order to mark the seriousness of the offence, I am going to impose a prison sentence upon you, but having regard to all the circumstances, I will suspend the execution of that sentence, so that if you keep out of trouble, you won't have to serve it; but on the other hand, if you do get into trouble again, you can be brought back to the Court and you will be liable to serve the whole or some part of the sentence that I am going to pronounce."

1. Here the Court is not concerned with an attempt to activate the terms of the suspended sentence.  However, the learned sentencing judge stated:

"As you are already on probation, I won't extend that period of time that you are subjected to that.  On the other hand, however, I think you owe to society some reparation and I order that you perform eighty hours of community service."

The community service order was made subject to conditions which have obviously been broken by the offender.

1. The evidence clearly establishes that the offender failed to report.  At least 11 notifications were provided to him. 

1. Since the order was made on 25 February 2004, the offender has been convicted by the Court of Petty Sessions for breach of bail, stealing, failing to appear and contravening conditions of a notice.  I will follow in general terms the approach taken by Crawford J in Young v Colbeck B9/1993.

1. The application is for revocation, rather than breach of the terms of a community service order as provided for by the Act, s36. I will attempt to give effect to the original order of nine months suspended sentence and the equivalent of 12 days' detention, accepting, as a guide, the equation of seven hours per day. The original sentence remains and this Court orders:

1The community service order made on 25 February 2004 is revoked.

2That the respondent be sentenced to a term of imprisonment for a period of 12 days, such sentence to commence as and from 12 June 2007.

1. In the terms of the Act, s35(7), the outcome is to the advantage of the respondent.