R v Birrell

[1993] QCA 378

IN THE COURT OF APPEAL [1993] QCA 378

SUPREME COURT OF QUEENSLAND

C.A. No. 197 of 1993.

Brisbane

[R v. Birrell]

T H E Q U E E N
v.
JAMES STANLEY BIRRELL

(Appellant)

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Pincus J.A. Davies J.A. Moynihan J.

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Judgment delivered 08/10/1993.
Judgment of the Court
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APPLICATION FOR AN EXTENSION OF TIME GRANTED, AND LEAVE TO

APPEAL AGAINST SENTENCE GRANTED.

APPEAL ALLOWED IN PART.

THE ORDERS MADE BY THE MAGISTRATE ON 6 FEBRUARY 1992, FOR PROBATION, COMMUNITY SERVICE AND RESTITUTION ARE SET ASIDE.

THE APPLICANT IS ORDERED TO MAKE RESTITUTION TO QUEENSLAND CEMENT & LIME COMPANY LIMITED IN THE SUM OF $2,800 BY PAYMENT TO THE CLERK OF THE COURT INALA ON OR BEFORE 31 AUGUST 1994.

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CATCHWORDS:	CRIMINAL LAW - STEALING - Plea of guilty - charges of receiving dismissed - orders referred to conviction of "receiving" - whether Appeal Court should correct the mistake.
CRIMINAL LAW - SENTENCE - Orders of imprisonment, probation and community service - community service not made a condition of the probation order as is possible under s.199(1)(b) Corrective Services Act 1988 - restitution a requirement of community service order - whether orders should be set aside - whether restitution still payable.
Counsel:	Ms K Wenck for the applicant. Mr M Byrne for the respondent.
Solicitors:	Legal Aid Office for the applicant. Director of Prosecutions for the respondent.

Hearing Date: 10 August 1993.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No 197 of 1993.

Brisbane

Before Pincus J.A. Davies J.A. Moynihan J.

T H E Q U E E N
v.
JAMES STANLEY BIRRELL

(Appellant)

Judgment delivered 08/10/93.

This is an application for an extension of time within which to apply for leave to appeal against sentence. The applicant was convicted in the Magistrates Court on 6 February 1992 on a charge of stealing; while that charge was being dealt with, three other charges, of receiving, were stood aside. The applicant pleaded guilty to the stealing charge and,according to the uncontradicted evidence, the Magistrate convicted the applicant and sentenced him to three months imprisonment with two years probation "during which 240 hours of community service was to be performed and the amount of $2,800 in restitution was to be paid". The prosecution then offered no evidence on the three remaining charges, of receiving, and they were dismissed.

It appears that an error was then made, for the documents before the Court show that the Magistrate signed a probation order and a community service order (incorporating a restitution order) under the Corrective Services Regulations 1989; each order purported to relate to a conviction of receiving, not stealing. There was no receiving conviction. Although a considerable time elapsed before this error was discovered, Mr Byrne, for the Crown, did not oppose its being corrected.

The necessity for reducing the probation order to writing was implicit in ss. 198 and 199 of the Corrective Services Act 1988, whose present counterparts are in Part 5 Division 1 of the Penalties and Sentences Act 1992. The necessity for reducing the community service order to writing was explicit in s. 215(3) of the Corrective Services Act 1988, which does not appear to have any specific counterpart in the Penalties and Sentences Act 1992. The sections of the Corrective Services Act to which we have referred were repealed by the Penalties and Sentences Act 1992: see s. 207 and item 17 of the Schedule. It appears to us that the written orders, required by statute, are the source of the applicant's obligations.

The formal orders for probation and community service did not accurately reflect those made orally by the Magistrate. There is room for argument as to the appropriate method of correcting these errors; but it appears to be common ground that what should be done is to set aside those orders. In view of the acquiescence of the parties in this course, which appears on the face of it to be a proper one, we are of opinion that we should follow it. But counsel were not agreed with respect to the correct re-sentencing orders. Ms Wenck contended for the applicant that the Court should impose three months imprisonment, with the two years probation ordered below, but that because the applicant had performed his community service, there should be no order for restitution.

We can see no reason why the sentence of imprisonment, already served by the applicant, should be set aside. Nor do we see any reason why the applicant should not be ordered to pay resititution. The applicant made an affidavit in which he said that he had not commenced to pay the restitution due to lack of funds and that he planned to apply for an extension of time; but apart from that there is no basis for suggesting that restitution should not be paid. However, because restitution was made a requirement of the community service order, which must be set aside, it will be necessary to make a new order under s. 35 of the Penalties and Sentences Act 1992. Ms Wenck also submitted that community service should not be ordered again, since that has been completed; that appears to us to be correct.

Ms Wenck made it clear that reimposition of the probation order made by the Magistrate was not opposed; however, that would not appear to be legally possible, unless a longer period of probation than the Magistrate ordered were set: see s. 92(2) of the Penalties and Sentences Act 1992.

It appears to us, then, that all that should be done by way of re-sentencing is to order restitution.

The orders will therefore be :

1.   Application for an extension of time granted, and leave to appeal against sentence granted.

2. Appeal allowed in part.

3.   The orders made by the Magistrate on 6 February 1992, for probation, community service and restitution are set aside.

4.    The applicant is ordered to make restitution to Queensland Cement & Lime Company Limited in the sum of $2,800 by payment to the Clerk of the Court Inala on or before 31 August 1994.