Matthews v Paul
[1987] TASSC 34
•4 May 1987
Serial No 24/1987
List “A”
CITATION: Matthews v Paul [1987] TASSC 34; A24/1987
PARTIES: MATTHEWS, Karen Maree
v
PAUL, Cheryl Diane
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 7/1987
DELIVERED ON: 4 May 1987
DELIVERED AT:
HEARING DATE:
JUDGMENT OF: Underwood J
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:
Respondent:
Solicitors:
Appellant:
Respondent:
Judgment Number: A24/1987
Number of paragraphs: 21
Serial No A24/1987
File No LCA 7/1987
KAREN MAREE MATTHEWS v CHERYL DIANE PAUL
REASONS FOR JUDGMENT UNDERWOOD J
4 May 1987
The appellant was charged with a breach of the Probation of Offenders Act 1973, s14(1)(a). It provides that:
"If an employee ...
(a)fails to attend as required by a probation officer ... he commits an offence for which a probation officer may proceed against him under the Justices Act 1959".
The Probation of Offenders Act, s3, defines an employee to mean a person subject to a community service order. The appellant became an employee within the meaning of the Act on the 28 October 1986, when it was adjudged that she attend for a total of seventy hours of community service in respect of ten convictions for breaches of the Licensing Act 1976.
The learned Magistrate was satisfied from the evidence of a probation officer that the appellant had committed a breach of the Probation of Offenders Act, s14(1)(a). The learned Magistrate revoked the community service order and sentenced the appellant to seven days imprisonment. From that sentence this appeal is brought upon the grounds that it was manifestly excessive and, alternatively, that the learned Magistrate did not have jurisdiction to impose a sentence of imprisonment.
The Probation of Offenders Act, s14(1)9 contains seven paragraphs each of which refers to an act or acts, the commission of which by an employee, will constitute an offence. The nature of the offences prescribed by the subsection encompasses a wide range of conduct varying in severity from trivial to extremely serious
Section 14(2) provides:
"The court before which a complaint under this section is heard may –
(a) impose a penalty of one hundred dollars,
(b)subject to section 11(1B) increase the number of hours specified in the order by not more than 240;
(c) impose a term of imprisonment not exceeding three months;
or
(d) revoke that order and adjudge the employee be fined or imprisoned for the offence for which it was made."
Paragraph (d) was inserted by Act No 121/85, s16. Paragraphs (a) to (c) inclusive merely make provision for the imposition of a punishment for a breach of s14(1). Prior to 1985, there was no power upon conviction for an offence contrary to s14(1), to revoke or decrease a community service order, or work order as it was then known. This power was then only exercisable upon an application to review a work order pursuant to s13. By the 1985 amendment, upon conviction for a breach of s14(1), the court was given the additional power of revoking a community service order. The power to revoke is only exercisable in conjunction with a judgment that the employee "be fined or imprisoned for the offence for which (the community service order) was made".
The use of the word "or" at the conclusion of the immediately preceding paragraph makes Parliament's intention clear that a sentencer may exercise only one of the four sentencing options set out in subsection (2).
The effect of s14(2) then, is that upon proof of the commission of an offence contrary to s14(1) of the Act, the court may fine or imprison or increase the hours of the community service order or revoke the community service order and in effect re–impose a penalty upon the conviction in respect of which the community service order was originally imposed.
The transcript of proceedings does not clearly disclose which provision the learned Magistrate relied upon to make the order. The probation officer drew his attention to s14(2)(d) and submitted that the order should be revoked under that subsection. In passing sentence the learned Magistrate said, "you are sentenced to seven days imprisonment for breach of the community service order". Counsel for the respondent argued that this indicated that the Magistrate was exercising the power set forth in s14(2)(c). However, he went on to say, "I will revoke the work order I think. The community service order revoked''. Such an order could only have been made in the exercise of the power given by s14(3)(d), and then only if the Magistrate proceeded to re–impose penalty upon the original conviction since there was no application before the court for a review pursuant to s13.
I am inclined to the view that, on a fair reading of the transcript, the learned Magistrate purported to exercise the power to which he was referred, namely, s14(2)(d). If this is correct he fell into error. None of the breaches of the Licensing Act in respect of which the community service orders were imposed rendered the appellant liable to a sentence of imprisonment. In each case the imposition of a fine was the maximum penalty prescribed by the Licensing Act. The expression, "adjudge that the employee be fined or imprisoned for the offence for which (the community service order) was made", confines the sentencing parameters to those applicable upon conviction of the original offence. Accordingly, a purported imposition of a sentence of imprisonment pursuant to s14(3)(d) in respect of offences which did not create liability for imprisonment, is an error which calls for the quashing of the order.
If, contrary to my belief, the learned Magistrate sentenced the appellant pursuant to s14(3)(c), such a sentence was manifestly excessive in the circumstances and should, in any event, be set aside on that basis I observe that if this paragraph was the basis for the order, then the purported revocation of the community service order was clearly a nullity.
The breach established by the evidence was that on 22 November 1986, the appellant failed to attend a project as instructed by a supervisor. No work under the order had been carried out at the time the offence was committed. The breach could be categorized as wilful or substantial in that it was committed after repeated warnings following earlier failures to attend as instructed. However, the appellant had not previously been sentenced to a term of imprisonment, and was only 17 years and 2 days old at the time of the breach. The offence, although deliberate and wilful, was not serious and, in the circumstances of the appellant, the imposition of a sentence of imprisonment was manifestly excessive. Further, the offences which led to the making of the orders were not ones in respect of which a sentence of imprisonment could have been imposed. Although s14(3)(c) gives the court a power to impose a term of imprisonment for a failure to comply with a community service order imposed upon conviction for such offences, it is difficult to imagine a case where it would be appropriate to do so.
Accordingly, the appeal is allowed and the order quashed. As requested by counsel, I shall proceed to impose sentence myself.
On seven occasions in July and August 1986 the appellant, then aged 16, was apprehended in hotels in Launceston. On one occasion she bought and consumed liquor and on another, she falsely told the police she was 18 years old. When the appellant was 14 she ran away from home and ever since, has lived in unsatisfactory accommodation. She has never been employed and her behaviour pattern has been described by a probation officer as "largely anti–social". Prior to being convicted of the ten breaches of the Licensing Act, she was convicted of burglary and stealing, injury to property and in November 1985, of being on licensed premises under the prescribed age.
In the period since the appellant's birth in 1969, the Licensing laws of this State have undergone radical changes These changes reflected a marked shift in community attitudes to the use of liquor and the role of licensed establishments Until very shortly before the appellant's birth, licensed restaurants were unknown in this State. The majority of hotels provided neither entertainment nor food except for resident guests Mostly, they closed at 10 pm. By law, persons under 21 were forbidden to be on licensed premises and by convention, women were only admitted to specially assigned, and usually gloomy and unwelcoming, rooms The hotel was generally regarded as a place for adult males to visit and there to consume only liquor.
In those days, before the growth of electronic entertainment, recreation for young people was available in places other than licensed premises During the last two decades all of that radically changed.
Licensed restaurants are to be found throughout the State. Hotels have become social gathering places The age restriction has been lowered to 18 years Most hotels provide cheap meals and, in family bar rooms, welcome parents with their children regardless of their age. Entertainment in the form of either live or recorded music is provided by many hotels expressly as an attraction to young people. All of this has resulted in the virtual disappearance of entertainment and social gathering places for teenagers other than at hotels The appellant grew up during this period of change. During the last few years society has become concerned about the consumption of liquor by young persons Recently, as an expression of this concern, there has been increased enforcement of the law prohibiting persons such as the appellant from being in licensed premises except in a family bar room and only then, in the company of a parent or other adult specified by the Act.
In proceedings before the learned Magistrate, counsel for the appellant, speaking in mitigation, said that the appellant, "attends the hotels because her friends do that and for social interaction''. I have little doubt that that was correct. Such conduct is in conformity with a state of affairs that through the seventies community attitudes have permitted to develop.
Until recently, although a breach of the law, the presence of young people in hotels attracted little community disapprobation. In my view, the infliction of severe penalties will achieve little to resolve the problems associated with the use and abuse of alcohol in hotels by young persons It will take time for what I perceive to be a shift in society's values to take effect. As it does, no doubt, again as a reflection of current social values, alternative social attractions for the teenager will develop.
I would not wish the foregoing to be construed as an indication that the court does not have a duty to enforce the law. But in the exercise of my sentencing discretion, the matters I have referred to are proper matters to take into account when considering an appropriate penalty for a failure to comply with community service orders imposed upon conviction for breaches of the Licensing Act.
I will hear counsel further before concluding this matter.
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