Lewiac Pty Ltd v Gold Coast City Council

[1993] QCA 462

IN THE COURT OF APPEAL [1993] QCA 462

SUPREME COURT OF QUEENSLAND

C.A. No. 327 of 1993

Brisbane
[R. v. Anderson]

BETWEEN

T H E Q U E E N
v.

GLEN OWEN JAMES ANDERSON

The President
Mr Justice McPherson

Mr Justice Mackenzie

Judgment delivered 19/11/93

Separate reasons for judgment. All agree as to the order to be made.

APPLICATION GRANTED. APPEAL ALLOWED. SET ASIDE THE SENTENCES AND THE ORDERS IMPOSING IMPRISONMENT IN DEFAULT OF PAYMENT OF RESTITUTION. SUBSTITUTE IN LIEU THEREOF A SENTENCE OF 7 MONTHS IMPRISONMENT TO START FROM THE END OF THE PERIOD OF 11 MONTHS IMPRISONMENT WHICH THE OFFENDER IS CURRENTLY SERVING AS A RESULT OF THE ORDER OF THE DISTRICT COURT, ROCKHAMPTON, MADE ON 25 AUGUST 1993.

CATCHWORDS CRIMINAL LAW - SENTENCE - Breaking and Entering - breaking, entering and stealing - Extensive previous convictions - Concurrent prison terms with restitution ordered and further imprisonment on default - No time given to pay - Effective sentence of imprisonment thereby increased - Whether sentence of imprisonment can be made cumulative upon sentence not yet imposed - Whether suspended sentence a sentence within the terms of s.156(1)(a) - Penalties & Sentence Act 1992 - Sections 144, 147(1), 156(1) Penalties & Sentences Act 1992.

Counsel:	P. Alcorn for the applicant J. Hunter for the respondent
Solicitors:	Legal Aid Office for the applicant
Director of Prosecutions for the Crown

Hearing Date: 4	November	1993
IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND

The circumstances giving rise to this appeal are set out in

I am in substantial agreement with his Honour's reasons.
However, I would leave for future consideration whether a
sentence of imprisonment which has been suspended under section
144 of the Penalties and Sentences Act means that the "offender
... has been sentenced to serve .. imprisonment" for the purpose
of subsection 156(1)(a) of the Act: see also subsection 155(a).
There are practical and conceptual difficulties associated
with such a conclusion. For example, so far as section 155 is
concerned, the result would be that a subsequent sentence of
imprisonment "is to be served concurrently" with the earlier,
suspended sentence of imprisonment. And, so far as section 156
is concerned, a subsequent sentence of imprisonment would be
required "to start from the end of" the suspended sentence of
imprisonment.

C.A. No.327 of 1993

Before The President
Mr Justice McPherson
Mr Justice Mackenzie

[R. v. Anderson]

BETWEEN:

T H E Q U E E N
v.
GLEN OWEN JAMES ANDERSON

(Applicant)

REASONS FOR JUDGMENT - THE PRESIDENT

Judgment delivered 19/11/93

the judgment of McPherson JA.. agree with the other members of the Court that, apart from the cumulative sentences associated with the default orders with respect to the payment of restitution, the total sentences imposed upon the applicant were appropriate.

In the circumstances, the orders which should be made are those proposed by Mackenzie J.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 327 of 1993

Brisbane

Before The President
Mr Justice McPherson
Mr Justice Mackenzie

[R. v. Anderson]

BETWEEN

T H E Q U E E N
v.

GLEN OWEN JAMES ANDERSON

REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered the Nineteenth day of November 1993

The applicant for leave to appeal pleaded guilty in the magistrates court to five counts of breaking and entering and two of breaking, entering and stealing. The offences were all committed on the night of 19/20 August 1993. Having gone to a hotel to meet a relative who failed to turn up, he remained there drinking. He then decided to go to a local night club, and in order to obtain money for that purpose he committed the subject offences.

Equipping himself with a screwdriver, the applicant forced his way into various shops in a nearby street and arcade. At two of the shops he gained entry by breaking a glass panel in the door; in the case of another he forced the roller grill from its tracks; at others he forced the sliding door of the premises. Although affected by alcohol at the time, he was evidently able to do these things, as well as searching for and finding money in the shops. When located by police, he refused to participate in a record of interview, and gave a false name which was that of his cousin. It was only by chance that he was correctly identified at the police station by an officer who recognised him from a previous encounter.

The applicant has a list of past offences that is short but crowded. In the childrens court at Townsville on 6 March 1990 he was dealt with for a total of 19 break and enter offences committed in November 1989. At Beenleigh magistrates court on 10 February 1992 he was ordered to perform 80 hours of community service and placed on probation for 2 years for committing another such offence. He was back before the same court again on 4 March 1992 in respect of two charges of being found in an enclosed yard without excuse and one of receiving. In consequence of those convictions, he was brought before that court for breach of the probation and community service orders imposed on 10 February, and was fined for the offences that had resulted in those orders being made. Not content with this, the applicant then returned to Rockhampton, where he lives, and committed a further offence of breaking and entering, as well as unlawfully using a motor car. For these two offences he was on 21 April 1993 sentenced on each charge to imprisonment for 12 months to be suspended after one month, it being stated that he must not for two years commit an offence punishable by imprisonment.

It was in these circumstances that on 19/20 August the applicant committed the seven offences that are the subject of this application. The magistrate imposed a sentence of 7 months imprisonment in respect of each offence, and ordered that those sentences be served concurrently. This produced an effective sentence of 7 months for all of the offences; but as to each offence the applicant was also ordered to pay an amount by way of restitution to the shop proprietor, with a period of imprisonment in default of payment. The default periods varied according to the amount involved, the longest being 3 months. The magistrate made them cumulative on each of the 7 x seven-month concurrent sentences of imprisonment, which meant that if he did not pay, the applicant received an effective sentence of 10 months imprisonment for all seven offences.

It is scarcely possible in the particular circumstances to contend that such a sentence is excessive. Although even now he is not quite 19 years of age, the applicant has built up an extensive record of offences within a comparatively short period. By persistently re-offending, he has frustrated efforts at rehabilitation by means of probation, community service orders, and the suspension of sentences. In the light of his past conduct, imprisonment for 10 months would not be an inappropriate sentence for these further offences.

What is open to objection, however, is the means adopted to produce this result. Each period of imprisonment in default of payment of the relevant restitution amount was, as I have said, made cumulative on the primary 7-month sentence. No time to pay was allowed. Admittedly no request was made for time to pay; but the amounts involved total little less than $5,000 in all. It seems most improbable that the applicant was in a position to pay all those amounts; there was even less possibility of his being able to do so while serving the sentences imposed. In a practical sense, therefore, the result was to extend the effective sentence of imprisonment by a period of 3 months to 10 months. That is not a proper function or purpose of ordering restitution.

On this aspect of the matter I consider that, while it may have been appropriate to impose a sentence of 10 months for each offence, it is not possible on appeal to achieve that result simply by removing the default penalty. To do so would involve increasing the basic sentence in each instance from imprisonment for 7 months to imprisonment for 10 months. This it is probably not open to us to do without first giving the applicant an opportunity of withdrawing his application : cf. R. v. Neal (1982) 149 C.L.R. 305. Instead, I think it is preferable simply to eliminate each of the orders for imprisonment in default of payment of the restitution amounts. The orders for restitution themselves can be allowed to stand; under s.685A(1) they have an independent existence, and may under the general law possibly result in a debt that (for what it is worth)is enforceable in ordinary civil proceedings.

There remains, however, another aspect of the sentences that is said to be objectionable. This is that in imposing the concurrent 7-month sentences the magistrate ordered them to be served cumulatively upon "any period of imprisonment the defendant is presently serving or is sentenced to serve". It seems clear that the latter part of this order ("or is sentenced to serve") was intended to cater for the fact that, as the magistrate knew, the applicant was due to return before the District Court on the following day to be dealt with under s.147(1) of the Penalties and Sentences Act 1992 in consequence of his having re-offended during the period of two years stated in the order suspending the sentence imposed on 21 April 1993. The magistrate seems to have formed the impression that s.147(1) might be rendered nugatory, or perhaps that the sentences he was about to impose would be deprived of practical effect, if they came into operation concurrently with the sentences that had been suspended. He accordingly added the direction that they be served cumulatively.

On behalf of the applicant it was submitted that it was beyond the powers conferred by the Act to order that a sentence be served cumulatively upon a sentence which has not yet been imposed. Such an order, if it may be made at all, would certainly be unusual; circumstances in which it might be called for would be rare. But the order in the present case is not of that description, and it does not infringe the literal terms of s.156(1)(a), which authorises cumulative sentencing if an offender "is serving, or has been sentenced to serve, imprisonment for an offence". Although not serving a sentence of imprisonment, a person whose sentence has been suspended pursuant to s.144 of the Act falls directly within the terms of the words in s.156(1) that are italicised above. He is a person who has been sentenced to serve imprisonment for an offence.

It is nevertheless not good practice for a sentencing court to do what was done in this case. Mr Hunter on behalf of the Crown pointed out some of the daunting consequences capable of resulting from making a sentence cumulative upon another sentence which is awaiting an order to be made under s.147. Since one can never be sure precisely at what date in the future an order will be made that the offender serve a suspended period of imprisonment, a sentence ordered to be served cumulatively upon it would in the meantime presumably remain in abeyance and the offender at liberty. On a more general plane there are, in addition, inevitably other difficulties in allowing one court to anticipate orders yet to be made by another. It may result in the second court reducing the sentence it later imposes in order to offset the effect of what it sees as an unduly severe punishment imposed by the first court. That tends to create problems on appeal that it may be possible to avoid if, as could conveniently have been done in the present case, the sentencing process in the first court is postponed until after the relevant sentencing order has been made by the other court.

When all this has been said, however, the present case is one in which, as I was informed, an order under s.147 was in due course made in the District Court. The period of the suspended sentence the applicant was ordered to serve was 11 months, which represents the whole of the sentence of 12 months that remained to be served. As regards that sentence, the applicant cannot look forward to the prospect of parole; but as regards the sentences of imprisonment for 7 months imposed in respect of the subject offences, the possibility of his being paroled in the course of it survives. If he succeeds in obtaining parole, the applicant may be released after serving a period of as little as 14.5 months of the sentence; if he does not, it will be 18 months. I would not consider a sentence of that duration to be excessive having regard to factors such as the offences involve; the applicant's criminal record, and the opportunities for reform which have previously been extended to him.

In the circumstances the application will be granted and the appeal allowed only to the extent of setting aside the periods of imprisonment ordered to be served in default of payment of the amount of restitution that was ordered in respect of each offence.

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C A No. 327 of 1993

Brisbane
Before The President

McPherson JA

Mackenzie J

[Re: Anderson]

T H E Q U E E N
v.
GLEN OWEN JAMES ANDERSON

(Applicant)

JUDGMENT - MACKENZIE J

Judgment delivered 19 November 1993
The facts of the offences which have led to this
application for leave to appeal against sentence are set out in
the reasons for judgment of McPherson JA. I need not repeat
them.
The ground of appeal in the application is that the
Magistrate did not have power to make an order under which a
term of imprisonment was to be cumulative on a sentence which
was yet to be imposed. Sections 155 and 156 of the Penalties
and Sentences Act 1992 are concerned with cases where -

(a) an offender:-

(i) is serving;

(ii) has been sentenced to serve imprisonment for an offence; and

(b) the offender is sentenced to serve imprisonment for another offence.

The imprisonment for the offence referred to in (b) will be served concurrently unless that imprisonment is directed to start from the end of a period of imprisonment the offender is serving. "A period of imprisonment" means the unbroken duration of imprisonment that an offender is to serve for two or more terms of imprisonment whether -

(a) ordered to be served concurrently or cumulatively; or
(b) imposed at the same time or different times.

The applicant was not serving a sentence of imprisonment for an offence at the time when he was dealt with by the Magistrate. The question is whether he had been "sentenced to serve" imprisonment by reason of the imposition on the 21st April, 1993 of 12 months imprisonment, 11 months of which were suspended.

Since the coming into operation of the Penalties and Sentences Legislation Amendment Act 1993 a court dealing with an offender for suspended imprisonment has a range of options including the non-custodial option of extending the operative period of the order for suspension by up to one year. It is no longer inevitable that the offender must serve the whole of the balance of the suspended sentence. Therefore an order which operates on the assumption that a term of imprisonment will be imposed by the superior court which deals with the offender for suspended imprisonment may have nothing upon which to operate if expressed, as the sentence under appeal is, in terms of being cumulative on any period of imprisonment the offender "is presently serving or is sentenced to serve".

Apart from that, as a matter of construction a person who has been sentenced to a term of imprisonment which has been ordered to be suspended in part or whole is not a person sentenced to serve imprisonment for that offence, at least once the suspension has taken effect. This follows from s.145 which provides that the offender has to serve the suspended imprisonment only if ordered to do so under s.147. Section 146 sets out the procedural steps leading to an order under s.147. Where a court convicts an offender for an offence for which imprisonment can be imposed and is satisfied the offence was committed during the operational period of an order of suspension it must, if it is Court of like jurisdiction, deal with the offender under s.147 or if lower in the hierarchy of courts commit the offender to a court of like jurisdiction to that which imposed the suspended sentence.

Under s.147 the court dealing with the offender for a suspended sentence can:-

(a)	extend the operational period of the order for not longer than one year from the making of the order;
(b)	order the offender to serve the whole of the suspended imprisonment; or
(c)	order the offender to serve the part of the suspended imprisonment that the court orders.

If the court recording the subsequent conviction sentences the offender immediately, it cannot, in my view, order that sentence to be cumulative on a sentence yet to be ordered to be served. If the court recording the subsequent conviction is minded to consider a cumulative sentence, it would be the proper course, although perhaps inconvenient, to convict, adjourn the sentence and commit the offender to the superior court in which the suspended sentence was imposed.

Section 156 can have a sensible field of operation by construing the phrase "is serving or has been sentenced to serve", for example, as permitting cumulative sentences to be imposed on cumulative sentences which have not yet come into operation. This is consistent with the 1993 amendment which speaks of directing the imprisonment to start from the end of the period of imprisonment the offender is serving (i.e. the unbroken duration of imprisonment that the offender is to serve for two or more terms of imprisonment).

In my opinion the application for leave to appeal against the imposition of the sentence should be allowed for the reason that the Magistrate did not have power to impose the sentence in the form in which he did. However I agree with McPherson JA both as to the default orders and as to the level of sentence otherwise imposed. The sentence imposed by the Magistrate if properly imposed would not be manifestly excessive. The level of sentencing about which complaint has been made has been found to be justified although when originally imposed the sentence was passed in excess of jurisdiction. The merits of the application have been fully canvassed and in my view the appropriate course is to grant the application for leave to appeal, set aside the sentences and the orders imposing periods of imprisonment in default of payment of restitution and to substitute in lieu thereof a sentence of seven months imprisonment, such imprisonment to start from the end of the period of 11 months imprisonment which the offender is currently serving as a result of the order of the District Court, Rockhampton made on 25th August, 1993.