Hall v The Queen
[1999] WASCA 225
•28 OCTOBER 1999
HALL -v- R [1999] WASCA 225
| (1999) 21 WAR 364 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 225 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:58/1999 | 5 OCTOBER 1999 | |
| Coram: | KENNEDY J PIDGEON J MURRAY J | 28/10/99 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused | ||
| PDF Version |
| Parties: | NEVILLE CHARLES HALL THE QUEEN |
Catchwords: | Criminal law and procedure Applicant sentenced to an aggregate of 4 years imprisonment for two offences of administering a stupifying drug with intent to kill Sentence suspended for 2 years Applicant offending during suspension period Order made for immediate service of sentences of imprisonment Whether unjust to make that order Relevant considerations discussed Nature of appeal considered |
Legislation: | Sentencing Act 1995 (WA) s 80 |
Case References: | Gavin v R (1992) 6 WAR 195 R v Bowen [1997] 2 Qd R 379 R v Buckman (1988) 47 SASR 303 R v Holcroft [1997] 2 Qd R 392 R v Holley Ex p. Attorney-General [1997] 2 Qd R 407 R v Marston (1993) 60 SASR 320 Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 House v The King (1936) 55 CLR 499 R v Chan (1989) 38 A Crim R 337 R v Moylan [1970] 1 QB 143 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : HALL -v- R [1999] WASCA 225 CORAM : KENNEDY J
- PIDGEON J
MURRAY J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Applicant sentenced to an aggregate of 4 years imprisonment for two offences of administering a stupifying drug with intent to kill - Sentence suspended for 2 years - Applicant offending during suspension period - Order made for immediate service of sentences of imprisonment - Whether unjust to make that order - Relevant considerations discussed - Nature of appeal considered
Legislation:
Sentencing Act 1995 (WA) s 80
(Page 2)
Result:
Application for leave to appeal refused
Representation:
Counsel:
Applicant : Mr P R Eaton
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Fiocco Hopkins Nash
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Gavin v R (1992) 6 WAR 195
R v Bowen [1997] 2 Qd R 379
R v Buckman (1988) 47 SASR 303
R v Holcroft [1997] 2 Qd R 392
R v Holley Ex p. Attorney-General [1997] 2 Qd R 407
R v Marston (1993) 60 SASR 320
Case(s) also cited:
Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
House v The King (1936) 55 CLR 499
R v Chan (1989) 38 A Crim R 337
R v Moylan [1970] 1 QB 143
(Page 3)
1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Murray J. I am in agreement with those reasons and with the order proposed.
2 PIDGEON J: I agree with the reasons to be published by Murray J.
3 MURRAY J: On 9 June 1997 the applicant pleaded guilty to two offences committed on 22 January 1996 of administering a stupefying drug to his two daughters, then aged 4 and 8 years respectively, with intent to kill them. In other words, the offence intended to be committed was that of wilful murder. The indictment contained two alternative counts of attempted murder, but of course the convictions consequent upon the pleas of guilty disposed also of these alternative charges. On the same day Parker J imposed concurrent terms of 4 years imprisonment suspended for a period of 2 years under the Sentencing Act 1995 (WA), s 76. Each offence carried a maximum term of imprisonment of 20 years.
4 In his sentencing remarks Parker J described the offences in question. They arose out of what proved to be the irrevocable breakup of the applicant's marriage. By the beginning of 1996 that was said to have caused the applicant to be in such a state of depression and emotional turmoil that he resolved to kill his two daughters, to whom he feared he might not in future have full access, and also to kill himself. The applicant was said to have had an overwhelming sense of the injustice of what had occurred with his marriage. The offences were planned so that on an occasion when he had access to his daughters the applicant drove them to a remote location, fed the two girls and himself sleeping tablets intended to render them unconscious, and attached a length of hose to the exhaust pipe of his motor vehicle which he fed into the cabin with the intention of killing all three of them by carbon monoxide poisoning.
5 Happily, while he was still able to act, the applicant came to his senses, stopped the process he had started and drove to hospital. Fortunately, the children suffered no lasting ill-effects. Later, it appears, it was possible to re-establish the relationship between father and daughters so that by the time the matter came before Parker J, by order of the Family Court, unsupervised access to the children had been restored to the applicant. He was said not to be mentally ill or psychologically disturbed, but it was put that the offences were an abnormal reaction to stress; totally out of character. The applicant was otherwise a law abiding member of the community, an employer of whom others spoke well; he had no relevant previous convictions.
(Page 4)
6 Parker J determined that there was no alternative but to mark the court's view of the seriousness of the offences by the imposition of a significant term of imprisonment. However, in what his Honour described as the very unusual circumstances of the case, he concluded that he was justified in suspending service of the sentence of imprisonment for the period of 2 years which I have previously mentioned. In my respectful opinion, not only were the sentences of imprisonment rightly considered to be necessarily imposed, but they were of an appropriate length having regard to the nature of the offences and the antecedents of the applicant. Further, in the circumstances it was proper in my view that they be imposed to be served concurrently. Finally, it seems to me that it was certainly open to impose suspended imprisonment.
7 All seems to have gone well for about 18 months. The children would regularly go to the applicant on alternate weekends, for half their school holidays and on special occasions. About three months before Christmas 1998 the older child refused to go for visits to her father. She was then aged just 11 years. The applicant tended to blame his estranged wife, but she took the view that she could not force the child to visit her father. After the younger child's Christmas visit, on 28 December 1998, the applicant endeavoured to kill himself by shooting himself in the head with a sawn-off rifle.
8 The weapon had been stolen in 1996 from an address in the street in which the applicant then lived, but he said that he had recently purchased it from a stranger he met in a hotel bar. In any event, it was a planned act to acquire the weapon. Attempted suicide is not an offence, but the applicant was charged with and subsequently convicted on his plea of guilty of the offence of possession of the firearm, which was not licensed, contrary to the Firearms Act 1973 (WA) s 19, an offence punishable, because the rifle had been sawn-off, by imprisonment for 18 months or a fine of $6,000. No charge was laid concerning the manner by which the applicant obtained possession of the weapon.
9 Although the applicant failed in his attempt to take his own life, he was seriously injured. He was hospitalised, urgent surgery was performed, and ultimately he recovered sufficiently to be discharged to Bentley Hospital on 10 January 1999 for further investigation of his mental health. On 13 January 1999, the applicant's estranged wife obtained at the Armadale Court of Petty Sessions a restraining order which included the term that the applicant not communicate or attempt to
(Page 5)
- communicate by whatever means with either his wife or his daughters. On 14 January the applicant was personally served with that order at the Bentley Hospital.
10 The final event in the saga occurred after the applicant was finally discharged from that hospital on 27 January 1999. On 29 January at the Armadale Tavern, the applicant sought the assistance of a friend, an off-duty barmaid, to speak on his behalf on the telephone to his children who were living at home with his wife. No-one was home. The applicant asked his friend to leave the agreed message on the answering machine. It was that the applicant loved his daughters and was thinking of them. On the following morning the applicant's wife retrieved the message from the answering machine, became distressed and reported the matter to the police. It was, of course, an apparent breach of the restraining order and on 4 February 1999 the applicant was interviewed, admitted the facts and was charged with breaching the restraining order, contrary to the Restraining Orders Act 1997 (WA) s 61, an offence punishable again by a fine of $6,000 or imprisonment for 18 months.
11 A disturbing aspect of the matter is that the applicant was referred on 10 January 1999 to the Bentley Hospital from Sir Charles Gairdner Hospital as an involuntary patient following his treatment there. He was not discharged until 27 January 1999, two days only before the breach of the restraining order was committed. The discharge report says that on admission the applicant was extremely uncooperative, unwilling to stay in hospital, angry over perceived violations of his rights and wished to go home to his daughters. He was admitted to the closed ward under close observation. On the very day of his admission he was apparently visited by his sister and told that his right of access to his daughters had been rescinded by the Family Court. He made attempts to escape from the ward, but he settled down and was granted trial leave from 16 January to 27 January, the date on which he was discharged outright into the care of his general practitioner.
12 By reason of the circumstances of the case, when he appeared before the Armadale Court of Petty Sessions and pleaded guilty to the offences with which he had been charged, he was remanded on a hospital order pursuant to the Criminal Law (Mentally Impaired Defendants) Act 1996 (WA) s 5. He was admitted to the Frankland Centre at Graylands Hospital and there his mental state was assessed. The report provided to the court says that it was a matter of concern at that time that the applicant had again threatened suicide. It is reported by Dr Kraya, a consultant forensic psychiatrist, that the applicant does not suffer from any mental disorder,
(Page 6)
- but from an adjustment disorder with depression of mood as a result of his significant domestic difficulties and a substantial drinking problem.
13 It appears from a report in the possession of defence counsel that before that admission, and following his discharge from the previous hospitalisation, the applicant had been attending the Armadale Clinic of the Mental Health Services. It appears that that may have occurred on the recommendation of the hospital or his general practitioner, but in any event, Dr Kraya's report suggested to the Armadale Court of Petty Sessions that the Court make a community based order conditioned upon receiving psychiatric treatment at the Armadale Clinic and with a condition to accept counselling for alcohol abuse. Dr Kraya considered also that if the issue of access to his daughters was not resolved, the applicant "may continue to be a serious risk to himself."
14 There was no suggestion that the applicant may be a danger to anyone else, although Dr Kraya's report suggested that the applicant's second attempt at suicide, when he shot himself in the head with the rifle, followed an altercation with his wife about the failure of his older daughter to maintain contact. During that exchange the applicant reported that his wife had threatened that he would never see his children again. It was for that reason that he became so distressed as to attempt suicide.
15 Sentences for the Firearms Act and Restraining Orders Act offences were not then imposed, but it would appear that as the offences had been committed during the suspension period and the penalty in each case included imprisonment, the Court of Petty Sessions, acting under the Sentencing Act s 78(1)(a), committed the applicant to this Court for him to be dealt with under the Sentencing Act s 80, which is in the following terms:
"(1) If satisfied that a person has been convicted (in this State or elsewhere) of an offence the statutory penalty for which is or includes imprisonment and that the offence was committed during the suspension period of suspended imprisonment, a court that must deal with the person under this section must deal with the person by one of these methods:
(a) unless an order under this paragraph or paragraph (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;
(Page 7)
- (b) unless an order under this paragraph or paragraph (a) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended;
(c) unless the suspension period has ended, it may substitute another suspension period of not more than 24 months for the suspension period originally set, the new suspension period to begin on the day it is substituted;
(d) it may fine the person not more than $6,000 and make no order in respect of the suspended imprisonment.
- (2) The powers in subsection (1) may be exercised as often as is necessary.
(3) A court must make an order under subsection (1)(a) unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed.
(4) If a court does not make an order under subsection (1)(a) it must state its reasons for not doing so.
(5) When making an order under subsection (1)(a) or (b), a court may make a parole eligibility order under Part 13 in respect of the term to be served.
(6) If a court makes an order under subsection (1)(a) or (b) the offender must serve the imprisonment -
(a) immediately; and
(b) concurrently with any other term of imprisonment he or she is serving or is yet to serve.
(7) If an order is made under subsection (1)(d), then, unless the suspension period has ended, the sentence of suspended imprisonment remains in effect and the suspension period continues to elapse.
(8) An order by a superior court under subsection (1) in a case where the sentence of suspended imprisonment was
(Page 8)
- imposed for an offence for which the person had not been convicted on indictment is to be taken, for the purposes of an appeal against sentence, as being made following a conviction on indictment."
16 It was that matter which came before Parker J on 17 March 1999. It will be observed that by s 80(3) his Honour was obliged to order the immediate service of the suspended terms of imprisonment unless he decided "that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed." In the end that was the order made by the Court and his Honour made an order of eligibility for parole.
17 In addition to the material to which I have referred above, his Honour received an oral pre-sentence report from a community corrections officer, Ms Moore. She told the Court that following the imposition of the suspended sentence, the applicant took no steps to seek psychiatric help or any other form of counselling. He thought he was managing well on his own, but Ms Moore expressed the view that his coping skills were poor, a view for which there appears to be considerable support. She recognised that unless some help from a qualified third party could be obtained for the applicant "there is a very high risk of what has happened in the past happening again".
18 She reported that the applicant was attending the Armadale Clinic and under the supervision of a psychiatrist was receiving counselling from a social worker to help him cope with his problems. She thought it would be helpful if the community based corrections office was involved in the rehabilitative process. If that could be done under a coercive order she thought it might be of considerable assistance to break down the applicant's view that he did not need help, particularly from a psychiatrist, psychologist or social worker. She added of course that if the prison sentence was ordered to be served with eligibility for parole, then her office would become involved, but she expressed the view that "it is easier to rehabilitate people before they go to prison, not afterwards".
19 As to that suggestion, it was of course not an option open to his Honour. As this Court has previously noted, when a sentence of suspended imprisonment is imposed the court has no power to condition the suspension in any way which would require treatment or to make any other order designed to assist in a coercive way the process of rehabilitation of the offender. That may be because the philosophy of the Act is to recognise that an important ground for the suspension of a
(Page 9)
- sentence of imprisonment is to provide an opportunity for the offender to pursue a process of rehabilitation which is, or is proposed to be, pursued by the offender voluntarily. However, there is a respectable argument that the lack of a capacity to impose conditions upon the suspension is a weakness in the statutory scheme.
20 However that may be, it is not surprising therefore that there is no such power in the four options provided to the court by s 80(1) to deal with the case of an offender who by again offending, breaches the suspended imprisonment order. In the circumstances, the suspension period of 2 years imposed on 9 June 1997 not having expired, defence counsel simply asked that the Court substitute another suspension period. It was suggested that community based orders might be made by the Court of Petty Sessions in connection with the breaches of the Firearms Act and the Restraining Orders Act, but of course his Honour could not proceed upon that basis. No action had been taken under the Sentencing Act s 32 to bring the petty sessional matters before this Court, although I think that, having regard to the terms of s 31 - s 33, it was not too late to do so provided the summary court had not imposed sentences for those matters. However, it is to be noted that counsel considered that in that way the applicant "might have the benefit of the compulsion that goes with being obliged to follow directions while still under a suspended sentence".
21 When making the orders Parker J commented that his original decision to suspend service of the sentences was founded on the view that the applicant had been faced with a family-based emotional crisis that he found to be beyond him. However, the fact that he aborted his plan to kill himself and the children and took sensible remedial steps encouraged the Judge to think that he had come to his senses and would be able to behave appropriately in the future. However, now, as his Honour put it, he saw that the applicant had again responded to an emotional crisis by taking life-threatening action (albeit against himself) which was not done on the spur of the moment, but was planned. Again, this was a response to a perceived crisis in connection with access to his children, demonstrating an inability to cope rationally with personal difficulties and the pressures surrounding the applicant's problems in maintaining contact with his children.
22 His Honour accepted Ms Moore's evidence that without external expert help that situation was unlikely to change. He referred to s 80 and noted that his options were limited. If he thought it to be unjust to order service of the suspended imprisonment, he considered that the only other
(Page 10)
- reasonable option was to substitute another suspension period. His Honour expressed his conclusion as follows:
"I am afraid I must tell you that I have not been persuaded that it would be unjust to do that. I have a great deal of sympathy for your situation because I can see the family problem that led you then to try to take your daughters' lives and your own and which led you to try to take your own life on this occasion, but you have shown now twice that you, under emotional pressure, will resort to life-threatening conduct."
In making an order of eligibility for parole his Honour expressed the hope that during the parole period the applicant would accept help which would be available to him and to his family from the community corrections service to achieve his rehabilitation and readjustment to rational ways of dealing with his problems.
23 As can be seen from s 80(8), the intention behind the provision where a superior court, the Supreme Court or the District Court (s 4(1)), makes an order under the section is to treat that order as having been made following a conviction on indictment. Where a superior court makes such an order in a case where it was the court which originally ordered the suspended imprisonment, the capacity to test the order made under s 80 on appeal is governed by the Criminal Code (WA) s 688(1a)(b) which gives a right of appeal with the leave of the CCA against any "sentence" passed upon the convicted person. By s 703:
"The expression 'sentence' means a sentence under the Sentencing Act 1995 and includes -
(a) any other order under that Act; and
(b) an order for the forfeiture or disposal of any property or thing."
24 In the Sentencing Act s 39(2) the various sentences available under that Act are referred to, including in par (f) the imposition of suspended imprisonment with an order for the release of the offender. An order made under s 80 is not a sentence under the Sentencing Act, but it is an order under that Act, which makes it a sentence within the meaning of the Criminal Code against which, by leave, the applicant may appeal to this Court. But it is important to note that upon that appeal, no question will arose as to the propriety of the original orders and in my view, the question in a case such as this will simply be whether the applicant can
(Page 11)
- demonstrate that the learned sentencing Judge erred in making the order under s 80(1)(a) for the service of the suspended imprisonment because the Judge should have decided in terms of s 80(3) "that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed."
25 It seems to me that that is a view accepted by learned counsel for the applicant because the amended grounds of appeal upon which the application proceeded are:
"1. The Honourable Justice Parker erred in failing to decide that it would be unjust to make an order under section 80(1)(a) of the Sentencing Act 1995 in view of all the circumstances that had arisen or had become known since the suspended imprisonment was imposed and failing to deal with the matter under section 80(1)(c) or (d) of that Act.
2. The Honourable Justice Parker erred in that he placed excessive emphasis on the act of attempted suicide by the applicant and too little emphasis on the surrounding circumstances. In addition he placed a significant degree of emphasis on the act of attempted suicide and the threat that act potentially posed to the applicant's children and, to a lesser extent, to the applicant's former wife.
3. In addition the Honourable Justice Parker failed to take adequate account of the fact that the offences giving rise to the operation of Section 80 of the Sentencing Act were offences which were not the most serious of their type and for which it was unlikely, having regard to the applicant's antecedents that the applicant would be sentenced to a period of imprisonment. That was unlikely because:
(a) in relation to the charge of breaching a restraining order:
(i) the applicant did not contact his children directly, but through a third party;
(ii) the message the applicant left for his children was one of love and support, and not a threatening or abusive message;
(Page 12)
- (iii) it was unlikely that any significant trauma would be caused to either the children or to the applicant's former wife upon presentation of a message;
- (b) as to the possession of the unlicensed firearm:
(i) there was no suggestion that the applicant used the firearm for any violent purpose, other than to attempt to commit suicide;
(ii) the applicant possessed the firearm for a period of some months;
(iii) there was no suggestion that the applicant intended to cause harm to any person by virtue of his possession of the firearm."
- With respect, it seems to me that in those grounds learned counsel for the applicant correctly identifies the issues upon which this application turns.
26 The application for leave to appeal against sentence was made on 15 April 1999 and so it was just over a week out of time. For the applicant, it is explained that he was somewhat slow to act because of his depressed state, because of difficulties arising out of the 23 hour per day "lockdown" which applied in the prison and curtailed his ability to have contact with his legal advisers, and by the processes concerned with obtaining legal aid. The delay is relatively short. It has occasioned no prejudice to the respondent and I think it is sufficiently explained: see the criteria for the grant of an extension of time as set out in Gavin v R (1992) 6 WAR 195, 198, 201 - 3. I would grant the extension of time.
27 As to the application for leave to appeal itself, the proper approach of the CCA was considered by the Qld Court of Appeal in R v Bowen [1997] 2 Qd R 379. The relevant provision there was s 147 of the Penalties and Sentences Act 1992 (Qld) which is worded in similar terms to our s 80 and in particular, s 147(2) provides in effect that a court dealing with the breach of an order of suspended imprisonment must order the service of the term of imprisonment suspended "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." It will be noticed that there are two differences from s 80(3).
28 The Qld section requires the court to be "of the opinion" that it would be unjust to order service of the suspended imprisonment and our
(Page 13)
- section requires the court to "decide" that that would be the situation. I think there is no material difference between those two formulations. However, under our section the matters to be regarded in making that decision are not only the circumstances that have arisen since the suspended imprisonment was imposed, as is the case in Qld, but the circumstances that "have become known" since the imposition of suspended imprisonment. I think that is certainly a material difference. The terms of s 80(3) are wider. They would include circumstances that are new in that they have become known since the imposition of suspended imprisonment, although they may be circumstances which existed at or prior to that time.
29 In Bowen at 388 Fryberg J said of the nature of an appeal from the opinion or decision made by the Judge at first instance that:
"The opinion in question is 'that it would be unjust to [make an order to serve the suspended imprisonment] in view of all the circumstances that have arisen since the suspended imprisonment was imposed'. Technically, the process of considering that issue does not involve the exercise of a judicial discretion. However it is a process which is closely akin to that involved in exercising a discretion. It involves the formation of a judgment about whether something would be unjust. The concept of justice is imprecise and value-laden, and inevitably, reasonable minds will form different opinions on the question in the same set of circumstances. I would not wish to fetter an appeal of this nature with the same restrictions as apply to an appeal against the exercise of a discretion, but it is the fact that in many cases the same sorts of considerations as lead an appeal court to decline to reconsider an exercise of discretion will also lead it to decline to reconsider the formation of an opinion under s 147(2)."
30 Davies JA in the same case at 380 said:
"It may be thought to be implicit in the judgment of Fryberg J that there is a substantial fetter upon an appeal to this Court against a decision made under s 147 which is not present in most sentence appeals. On the contrary, for the reasons already given, that is not so; the objectively ascertainable criteria by which a court must consider whether it will form the opinion referred to in subs(2) may make a decision under s 147 more amenable to review on appeal than many of the other decisions
(Page 14)
- involving discretionary judgment which arise in the sentencing process."
31 For my part, like both Davies JA and Fryberg J I would not wish to fetter the approach the CCA should take to an appeal from a decision made under s 80. However, it remains the fact, as Davies JA said in Bowen at 380, that the section requires the Judge to order service of the suspended imprisonment unless it would be unjust to do so. On appeal the applicant carries the forensic onus to persuade the court that a Judge who took that course erred in his or her failure to decide that it would be unjust to order service of the suspended imprisonment. It remains the case that it is the judgment of the court at first instance which conditions what is to be done under s 80, not that of the appellate court, and it seems to me that if, having regard to all the circumstances of the kind described in s 80(3), the appellate court considers that it was open to the Judge at first instance not to decide that the order for service of the suspended imprisonment would be unjust, then whatever the members of the appellate court might have done as individuals in the position of the Judge at first instance, the applicant before the appellate court will have failed to discharge the onus resting upon him or her and leave should be refused.
32 As to whether it would or would not be unjust to make the order to which by s 80 the Judge is primarily directed, in R v Holcroft [1997] 2 Qd R 392 at 394 Fitzgerald P said:
"All material circumstances which have arisen (or in the case of s 80 have become known, I would add) since the suspended sentence was imposed must be considered to decide whether it would be unjust to require the whole of the suspended sentence to be served. Those circumstances cannot be considered in a vacuum, divorced from other matters which bear upon the justice or injustice of an order that the whole of the suspended sentence be served. The period of suspended imprisonment involved is directly relevant to what is just, and other considerations, including the circumstances of the offence for which the sentence of suspended imprisonment was imposed and factors personal to the offender, might provide an essential context for a consideration of the circumstances which have arisen since the suspended sentence was imposed and a decision whether, in those circumstances, an order that the whole of the suspended imprisonment previously imposed be served would be unjust."
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33 All members of the court, the others being Lee and Fryberg JJ, agreed specifically that a relevant consideration, and indeed often a significant determinative factor, was the nature of the offences which gave rise to the need to consider activating the suspended imprisonment, particularly where they were trivial, were committed late in the suspension period, or did not themselves warrant punishment by imprisonment. But even so it might still be held that it was not unjust to order service of the suspended imprisonment: see per Fitzgerald P at 394, Lee J at 394 - 5 and Fryberg J at 404 - 5. On the same general consideration reference may be made to R v HolleyEx p. Attorney-General [1997] 2 Qd R 407 per de Jersey J at 410, Lee J at 416 and 419 and Fryberg J at 425.
34 However, in my opinion a most important consideration when considering where the justice of the case lies in the context of s 80 is the legislative policy which emerges clearly from the section that prima facie the court ought to order service of the suspended imprisonment. Although the relevant legislation is somewhat different, I think it is apt to repeat in this connection what was said by the CCA of SA in R v Marston (1993) 60 SASR 320 at 322. There King CJ, with whom Perry and Duggan JJ agreed, repeated what he had said in R v Buckman (1988) 47 SASR 303 at 304 that:
"There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non-law-abiding ways. The court will not lightly interfere with the ordinary consequence of a breach of the recognisance."
35 I would add for myself that neither will this Court readily interfere with such a decision by a Judge at first instance under s 80. In Marston the Chief Justice added the observation which, with respect I think to be equally apt in respect of s 80, that:
"It is of great importance that the courts adhere to that principle. Departure from it by the non-revocation of suspended sentences tends to undermine the integrity of the system of suspended
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- sentences and their effectiveness as a means of deterring future offenders. Nevertheless, … as, indeed, the section recognises, there are circumstances in which it is proper to refrain from revoking the suspension of the sentence."
36 In this case, as the grounds of the application and the argument offered in their support reveal, the submission in essence is that the Firearms Act offence was concerned with an act of attempted suicide which, contrary to the circumstances surrounding the offences for which the sentences of suspended imprisonment were imposed, was entirely directed against the applicant. Although he had been in possession of the firearm for a period of some months, it is said that there was no suggestion that he intended to use it to cause harm to any other person. Further, in relation to the breach of the restraining order, it was submitted that the contact was to be through the agency of a third party and the message was one of love and support.
37 All of that is true, but to my mind the breaching offences had a deeper significance than might at first glance be revealed by the circumstances of their commission, and it is a significance to which Parker J adverted. Whilst the Firearms Act offence was not directly of the same kind as those very serious offences for which suspended imprisonment was imposed, it revealed a very similar response to a situation of perceived personal crisis. It revealed an incapacity to cope appropriately and it was a response which was planned and violent. It showed that the applicant had really learned nothing and had made no appreciable gains in the process of rehabilitation which the suspension of the imprisonment was directed to foster.
38 The breach of the restraining order was a response of a not dissimilar kind. Of itself it may have been relatively trivial and may not have warranted punishment by imprisonment, but nonetheless, the order had been made and served upon the applicant and there is no suggestion that he did not understand its terms. Despite that, in circumstances which he must have appreciated breached the order, he ignored it and organised the making of the telephone call in question. Not only was the applicant not able to behave appropriately of his own volition, but he was not deterred by the making of the court order.
39 In those circumstances it seems to me that it cannot be said that the learned Judge at first instance erred in failing to decide that it would be unjust to order the service of the suspended imprisonment with eligibility for parole, in the hope that by the time when the applicant became eligible
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- for release on parole, he might finally have learned that none of these ways of dealing with personal problems was appropriate.
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