R v Allen

[2006] QCA 303

SUPREME COURT OF QUEENSLAND

CITATION:

R v Allen [2006] QCA 303

PARTIES:

R
v
ALLEN, Phillip Michael
(applicant)

FILE NO/S:

CA No 113 of 2006
DC No 323 of 2003
DC No 608 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED EX TEMPORE ON:

23 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

23 August 2006

JUDGES:

McMurdo P, Wilson and Atkinson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence granted. Appeal allowed. Set aside the sentence imposed at first instance and, instead, order that six months of the suspended sentence be activated.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY – where the applicant was sentenced to two years imprisonment to be suspended after eight months – where the applicant committed eight offences during the operational period of the suspended sentence, namely possession of stolen property, cannabis-related offences, possession of graffiti instruments, entering premises and stealing, breach of a bail condition and breach of a bail undertaking – where the subsequent offences were minor – where the applicant is young and shows prospects of rehabilitation – whether the activation of the whole suspended sentence was unjust

Penalties and Sentences Act 1992 (Qld), s 147

COUNSEL:

The application appeared on his own behalf
R G Martin SC for the respondent

SOLICITORS:

The application appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

WILSON J:  This is an application for leave to appeal against the sentence – in fact, for leave to appeal against the activation of a suspended term of imprisonment.  The relevant order was made by a District Court Judge on 12 April 2006.

On 12 February 2003 the applicant committed the offence of robbery with violence.  He snatched the bag of a 47 year old Japanese tourist who was walking along a street on the Gold Coast.  In doing so he grabbed at the bag twice.  The first time the complainant resisted but the second time he nearly knocked her over.  He secured possession of the bag which contained cash and other property together worth approximately $3,500.

On 5 September 2003 he pleaded guilty to the offence.  He was sentenced to two years imprisonment to be suspended after eight months, with an operational period of two years.  He had served 177 days in presentence custody which was deemed time already served under the sentence. 

During the operational period of that suspended sentence the applicant committed eight offences punishable by a term of imprisonment. Briefly, they were:

·     possession of property suspected of being stolen (a mobile phone) on 23 February 2004;

·     two cannabis offences in mid-December 2004;

·     three offences on 4 January 2005, possession of graffiti instruments (namely two marker pens), entering premises and stealing, (that is, entering a Target store and stealing a belt), and possession of property suspected of being tainted (namely a shirt and a pair of shorts); and

·     breach of a bail undertaking and breach of a bail condition, those offences being in January 2005 and May 2005.

It is worth noting that at the time of the original offence on 12 February 2003 the applicant was subject to two suspended sentences.  The first, imposed on 18 March 2002, was for breach of a bail undertaking: he was sentenced to two months imprisonment, wholly suspended with an operational period of 18 months.  The second, imposed on 16 April 2002, was for stealing: he was sentenced to one month’s imprisonment, wholly suspended with an operational period of nine months.

In relation to the breaches which were before the primary judge the applicant was arrested on a bench warrant on 21 March 2006.  He was also taken into custody on three other charges which were drug related.  He appeared before the primary judge on 12 April 2006, that is after serving 22 days in custody.  But, of course, because that time related also to the other charges (which may have been further breaches of the suspended sentence), there could not have been any declaration of presentence custody.

The applicant was born on 30 March 1982, so that he was 20 years of age at the time of the original offence.  He was a heroin addict and the robbery was an opportunistic crime committed to provide funds to feed his heroin habit.  He had a criminal history of dishonesty, graffiti and drug offences from the age of 17.

When the breaches came before the primary judge he was bound by section 147 of the Penalties and Sentences Act to activate the whole of the suspended sentence unless he considered it unjust to do so, and the factors which he had to consider in determining whether it was unjust were those in subsection (3), namely: whether the subsequent offending was trivial, the seriousness of the original offence and any special circumstance arising since the original sentence was imposed.

The subsequent offences were eight in number.  They were committed over a period of approximately 15 months from February 2004 to May 2005.  Individually they were comparatively minor in nature and that was reflected in the penalties imposed, which were in all cases fines.  However, as the sentencing judge said, the number of those offences was, itself, a relevant factor.

The original offence involved bag snatching which is regrettably prevalent on the Gold Coast, although it is fair to say that the particular offence was towards the lower end of the spectrum of those offences.  The subsequent offences individually were less serious than the original offence, but viewed collectively, in the context of the suspended sentence, they take on a greater seriousness. Even so, to activate the whole of the suspended sentence may be a disproportionate response to the subsequent offending. 

The applicant is young. He has a disturbing criminal history which includes a pattern of non-compliance with community based orders.  It must be said that the criminal history does not reveal any offence of dishonesty between about January 2005 and April 2006.

There is some evidence of an attempt of rehabilitation in that he has completed part of an apprenticeship as a chef and, apparently, at the time the matter was before the primary judge, had the opportunity to take that up again on the North Coast where he would have lived with his father.  Weighing all of these factors I think the activation of the whole of the suspended sentence was unjust, but this is a case in which part of the suspended sentence should have been activated.

I would activate six months of it.

THE PRESIDENT:  I agree.  I make one additional observation.  The drug related offences which the applicant says he committed on or about the 21st of March 2006, would appear to have been committed outside the two year operational period of the sentence imposed on the 5th of September 2003 and therefore do not appear to have been breaches of that sentence.

I would grant the application for leave to appeal against sentence, allow the appeal, set aside the sentence imposed at first instance and, instead, order that six months of the suspended sentence be activated.

ATKINSON J:  I agree with the reasons and the orders proposed.  I would just add that this is the case which shows that in sentencing a relatively young person who obviously has a drug problem but some prospects of rehabilitation, imposing a period of imprisonment which is wholly or partially suspended does not provide appropriate assistance for that young person to commence or continue with their rehabilitation.

Fortunately, the legislation has been changed so that sentences to give effect to rehabilitation are more likely to be imposed in the future in such cases.

THE PRESIDENT:  The orders are as proposed.  Now, Mr Allen, you understand what happened?

APPLICANT:  Yes.

THE PRESIDENT:  Yes.  We have ordered that the sentence be suspended after serving a further six months instead of the whole period of the sentence.  Now, you are 24 now.  It is up to you when you get out but if you do not stay clean you will no doubt be back to serve the‑‑‑‑‑

APPLICANT:  I understand, your Honour.  Also of the sentence still - will that still back date from the 12th of April?

THE PRESIDENT:  Yes.

APPLICANT:  Thank you.

THE PRESIDENT:  That will happen automatically.

APPLICANT:  Yes.

THE PRESIDENT:  It is as though this sentence was imposed then.

APPLICANT:  Okay.

THE PRESIDENT:  Yes, all right, then.

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