Poulton v Welling

[1995] QSC 162

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 473 of 1994

Brisbane

Before Macrossan CJ

Davies JA

White J

[Poulton v. Welling]

BETWEEN:
  G.L. POULTON

AND:

GRAHAM JOHN WELLING
  Applicant

Judgment delivered on 05/05/1995

Joint judgment of Davies JA and White J.  Separate concurring judgment of the Chief Justice.  All concurring as to orders made.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED

CATCHWORDS: SENTENCE - unlawful use of motor vehicle - whether custodial sentence should have been given - 3 months imprisonment, already served - s. 19(1)(a) Penalties and Sentences Act 1992, S. 668E(3) Code.

Counsel:Mr D Rangiah for the applicant

Mrs L Clare for the respondent

Solicitors:Youth Advocacy Centre for the applicant

Director of Public Prosecutions for the Crown

Hearing Date:              21 February 1995

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 05/05/1995

This application for leave to appeal against sentence should be refused.  The relevant circumstances are set out in the joint reasons which have been prepared by Davies JA and White J, and it is not necessary to add to those details.
           The fact which assumes the greatest significance for the purposes of the application is that the applicant was sentenced by the Magistrate below to a custodial term of three months and that term has been fully served.  It does not appear that the applicant sought bail pending the determination of his application to this Court or that he sought to have the hearing expedited.  Before the application came on for hearing, he had fully served his sentence and was released from custody.
           In view of the applicant's history I would not be prepared to conclude that a custodial term should not have been imposed.  Notwithstanding the applicant's youth, his determined disregard for the law presented the Magistrate with a situation of some difficulty when it became necessary for him to decide upon an appropriate sentence.  However, it is not necessary to decide whether the sentence of three months actually imposed was manifestly excessive because the application confronts a difficulty of another kind.
Since the sentence has been fully served it cannot be appropriate to make an order which would have the result that some further penalty should at this stage be imposed. It is certainly not the case that at the time of original sentencing a penalty of some practical significance should not have been imposed. The construction of s. 668E(3) adopted by this Court in R v. Cornale [1993] 2 Qd.R. 294 means that if we were persuaded to allow the appeal on the basis that some other sentence even though one less severe should have been imposed below, we would be obliged now to impose that sentence. To make such an order at this stage would be unjust to the applicant who has already fully served his term and would bring about a result which is certainly not sought on his behalf.
           The Court should not interfere and the application should be refused.

JOINT REASONS FOR JUDGMENT - DAVIES JA AND WHITE J

The applicant was convicted on his own plea of guilty at the Kingaroy Magistrates Court of one count of unlawful use of a motor vehicle on 27 October 1994.  He pleaded to other charges but they are not the subject of the appeal.  He was sentenced by the Magistrate to a period of imprisonment of three months which he has served. 
           The circumstances which gave rise to that offence were that the applicant, aged 17 years, had been drinking with friends.  At about 2.00 a.m. on the morning of Friday 14 October 1994 they entered the driveway where the complainant lived and were seen by a neighbour, who had had them under observation for some little time, to go to the complainant's car.  He saw the applicant get into the driver's seat (it appears that the car had been left unlocked).  The applicant released the handbrake and steered the car out of the drive.  He got out of the car and joined his companions in pushing the car into the road.  The neighbour called out and the applicant and his friends ran off.  The applicant was located by the neighbour in a nearby petrol station.  He accompanied the neighbour back to the complainant's residence and awaited the police and returned with them to the Nanango Police Station.  He refused to be interviewed but indicated that he had intended to take the car for a joy ride.  The applicant and his friends were under the influence of alcohol when these events took place.
          Earlier on 6 October 1994 he had been arrested and charged with being a vagrant in that he was in possession of housebreaking implements and was also charged with the unlawful possession of a dangerous drug.  The applicant was granted bail to appear on 20 October 1994 in respect of those charges. In addition to being charged with the unlawful use of a motor vehicle on 14 October he was also charged with being a vagrant in that without lawful excuse he was in the yard of the complainant.  He was granted bail on those charges on the condition that he reside with his foster parents and remain there between the hours of 6.00 p.m. and 8.00 a.m. daily.  On 19 October 1994 the applicant was charged with breaching the curfew requirements of his bail. 
           When the applicant appeared before the Magistrate at Kingaroy on 27 October 1994 he indicated that he wished all of the outstanding charges to be dealt with that day and that he wished to plead guilty.  He was represented by the duty solicitor who indicated to the Magistrate that his client was willing to undertake drug and alcohol counselling since all his offences had been committed whilst he was under the influence of alcohol.  It appears that the applicant had had a particularly unsettled previous five years not having lived with his mother on a permanent basis since he was 12.  It was submitted to the Magistrate that in view of his youth, his early pleas of guilty, and his lack of criminal history for motor vehicle offences that a community based order would be appropriate, particularly probation, as he had not been offered probation in the past, and clearly needed counselling with respect to his alcoholism.  The Magistrate was informed that the applicant had completed community service orders imposed upon him in the past as a juvenile and that he had spent 8 days in custody in respect of these offences.  The applicant himself addressed the Magistrate and indicated that he was willing to undertake further community service and spoke of the success that he had had with respect to that kind of order in the past.
           The Magistrate noted that the applicant had committed the 6 October offences within five or six days of release from a short term of imprisonment (in default of paying a fine) and had committed the offences of 14 October whilst on bail.  He noted that he had breached the curfew condition of his bail and had appeared before the Court on that matter on 19 October 1994.  The Magistrate noted that the applicant had apologised to the Court but observed that by his recent unlawful conduct he had displayed a complete disregard for the law and its consequences and he was not persuaded as to the applicant's resolution to attempt to rectify his offending behaviour.  He concluded that the only penalty that he could impose in the circumstances was a custodial sentence with respect to the unlawful use of the motor vehicle.
           On appeal Mrs Clare for the Crown conceded that the sentence of three months in the circumstances was manifestly excessive, and that the applicant would appear to have been in need of supervision and guidance and that he had not been given the opportunity of a probation order in the past.  We are of the view that in the circumstances of the applicant's unfortunate background, his age, his problems with alcohol, the fact that he entered an early plea of guilty and had successfully completed community based orders in the past, that the Magistrate ought to have imposed a period of probation upon him with appropriate counselling conditions and that in imposing a three month term of imprisonment his sentencing discretion miscarried.  Understandably however the applicant, having served a term of imprisonment, is not now prepared to undergo also a period of probation.
Mr Rangiah, for the applicant, submits that, in lieu of the sentence imposed, his client should be released absolutely pursuant to s. 19(1)(a) of the Penalties and Sentences Act 1992. The respondent does not suggest that that would now be inappropriate. As we understand its submissions however that concession involves taking into account the fact that the applicant has already served a term of imprisonment. It is not a concession that that would have been an appropriate order to have been made at the time the sentence under appeal was imposed. There are at least two difficulties in the way of now making that order. The first of these arises from the terms of s. 668E(3) of the Criminal Code. That subsection provides:

"On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."

An order for absolute release is not a sentence which "should have been passed" by the Magistrate.  The seriousness of the offence, the applicant's other offences and the fact that he committed the relevant offences whilst on bail required the imposition of a probation order or possibly an order for community service.  Indeed had the applicant not been prepared to consent to a probation or a community service order a short sentence of imprisonment or a fine would have had to be imposed.
The first difficulty, arising as it does from the literal construction of s. 668E(3), would prevent this Court from making an appropriate order, on an appeal against sentence by an offender, in many cases in which, by the time the appeal is heard, the offender has served all or even part of his sentence. This is because the phrase "such other sentence" appears literally to relate back to and consequently to be limited to "some other sentence" which "should have been made". That is the construction of s. 668E(3) adopted by this Court in R. v. Cornale [1993] 2 Qd.R. 294.
It is arguable that such a construction is inconsistent with the underlying purpose of s. 668E(3) which is to enable this Court, where some other sentence should have been passed, to substitute a sentence which rectifies the injustice. A construction of the subsection which more accords with that underlying purpose may be reached by reading the phrase "such other sentence" as "another sentence"; in other words by construing the phrase "such other sentence" as meaning such other sentence as may be appropriate. There is adequate authority for preferring a construction which gives effect to the underlying purpose of a legislative provision where its grammatical or literal meaning fails to do that. See Saraswati v. The Queen (1991) 172 C.L.R. 1 at 22. Were it not for the decision of this Court in Cornale we may have been prepared to accept that construction.  However because of it we conclude that this Court cannot impose a sentence other than one which should have been imposed in the first instance.  Indeed, in Cornale the Court must have reached the conclusion that the sentences imposed at first instance for unlawful use of motor vehicles should not have been imposed in the light of subsequent sentences for like offences imposed on co‑offenders.
           The construction adopted in Cornale would also prevent this Court, upon quashing the sentence, from not imposing any sentence in substitution for the sentence imposed at first instance.  It follows, in our view, that there is no order which this Court can make to remedy the injustice suffered by the applicant in having, on his criminal record, a term of imprisonment for the subject offence.
The second difficulty in making the order sought by Mr Rangiah is that s. 19(1)(a), by referring to an order releasing the offender, appears to assume that, when the order is made, the offender is in custody. Otherwise there is nothing to release him from. The applicant is no longer in custody. However in view of the conclusion which we have reached with respect to the first difficulty it is unnecessary to consider this further.
           We would therefore refuse the application.