R v Bowen

[1996] QCA 479

IN THE COURT OF APPEAL	[1996] QCA 479
SUPREME COURT OF QUEENSLAND

C.A. No. 267 of 1996

Brisbane

[R. v. Bowen]

THE QUEEN

v.

THERESA LEE BOWEN

(Applicant) Appellant

Davies JA
Lee J

Fryberg J

Judgment delivered 29 November 1996
Separate reasons for judgment by each member of the Court.

1.         APPLICATION GRANTED.

2.         APPEAL ALLOWED.

3.         ORDER OF THE DISTRICT COURT SET ASIDE.

4.         APPLICANT TO SERVE EIGHT MONTHS OF THE SUSPENDED SENTENCE.

CATCHWORDS:	CRIMINAL LAW - JUDGMENT AND PUNISHMENT - sentence - suspension of sentence - breach of suspended sentence - nature of proceedings - factors to be taken into account when re-sentencing.
Counsel:	Mr Hamlyn-Harris for the appellant Mr Henry for the respondent
Solicitors:	Legal Aid Office (Queensland) for the appellant Queensland Director of Public Prosecutions for the respondent
Hearing Date:	13 September 1996

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 29 November 1996

The relevant facts and the course of proceedings below and in this Court are accurately set out in the reasons for judgment of Fryberg J. I shall therefore refer to them only briefly.

Sentencing invariably involves the exercise of discretionary judgment. Moreover numerous specific discretions are conferred on courts by the Penalties and Sentences Act 1992. In some cases these are described in terms as discretions (e.g. in s.12(1)); in others they are conferred by the permissive "may" (e.g. in ss.13(1)(b), 19 and 24) or by phrases such as "if the court considers that it is appropriate" (e.g. in ss.14, 17 and 23).

In all of these cases the fact that the judgment has a discretionary element will limit the power of an appellate court to interfere with that judgment. The extent of that limitation will depend on the width of the discretion; the wider the discretion the more limited will be the power to interfere. Where, for example, the discretion is limited by the requirement to have regard to specific criteria, failure to have regard to one or more of those criteria would cause the exercise of the discretion to miscarry. Section 9(2), for example, states criteria, most of them specific, to which a court must have regard in sentencing.

The discretion conferred by s.147 must be exercised in one way unless certain criteria are satisfied. The width of a discretion of this kind, and consequently the extent to which an appellate court is limited in reviewing it, may depend on how objectively and specifically those criteria are stated. And although s.147(2) is cast in subjective terms of an "opinion that it would be unjust", that opinion must be formed on the basis of all of the circumstances that have arisen since the suspended sentence was imposed, all of which are objectively ascertainable. Consequently if the court dealing with an offender for the suspended sentence fails to have regard to a relevant circumstance which has arisen since the suspended sentence was imposed, an appellate court may interfere to set aside the order made.

It may be thought to be implicit in the judgment of Fryberg J. that there is a substantial fetter upon an appeal to this Court against a decision made under s.147 which is not present in most sentence appeals. On the contrary, for the reasons already given, that is not so; the objectively ascertainable criteria by which a court must consider whether it will form the opinion referred to in sub-s.(2) may make a decision under s.147 more amenable to review on appeal than many of the other decisions involving discretionary judgment which arise in the sentencing process.

The circumstances which it was submitted on the applicant's behalf were relevant to a decision under s.147 were:

1.         her separation from O'Neill shortly after the imposition of the suspended sentence in order to reduce the risk that she might re-offend;

2.         her pregnancy and the fact that she is a sole parent looking after four children;

3.         her short period of imprisonment which, it was submitted, had a deterrent effect on her;

4.         the unpremeditated and spontaneous nature of the offences giving rise to the breach;

5.         her conduct before the imposition of the suspended sentence to the extent that it assisted in appraising her conduct since that time; and

6.         that the suspended sentence was itself an excessive punishment.

The last of these is plainly not a relevant circumstance. Sub-section (2), in my view, on its proper construction limits those to circumstances that have arisen since the suspended sentence was imposed. However that would not prevent the Court from looking at circumstances before that date, including those of the offence which gave rise to the suspended sentence, in order to provide a context in which to assess the circumstances which have arisen since that date.

It is impossible to say from a perusal of the learned sentencing Judge's brief reasons that his Honour failed to have regard to any of the above circumstances. However it is my view that, if he had properly taken into account all of the first five of those circumstances he would have been of the opinion that it would be unjust to order that the applicant serve the whole of the suspended sentence of imprisonment. On the other hand the offences giving rise to the breach were so serious, so similar in character to that which gave rise to the suspended sentence and so soon after the imposition of the suspended sentence as to require the applicant to serve part of that sentence.

I agree with the orders proposed by Fryberg J.

REASONS FOR JUDGMENT - LEE J.

Judgment delivered 29 November 1996

I have read the reasons of Fryberg J.

On 10th October 1995, the applicant pleaded guilty and was sentenced to 18 months' imprisonment wholly suspended with an operational period of three years in respect of the offence of assault occasioning bodily harm on the basis that she was a party to such offence and did not directly assault the complainant. That offence was committed on 2nd March 1995. The operational period will not expire until 10th October 1998.

On 26th April 1996, the applicant was convicted on her pleas of guilty of one count of assaulting a police officer in the execution of his duty and one count of obstructing him in the performance of his duties. Such offences were committed on 23rd March 1996, approximately six months after the suspended sentence was imposed on 10th October 1995. She was sentenced to two months' imprisonment with a recommendation that she be eligible for parole after one month on the first count and imprisonment of seven days on the other count, both to be served concurrently. According to her counsel, she was due to be released from that term of imprisonment on 5th June 1996 (49).

On 31st May 1996, whilst she was still in custody for the breach offences, she was brought before the District Court to be dealt with for the breach of suspended sentence. It does not appear by which process she was brought before the Court, i.e. by way of s.146(1)(b) of the Penalties and Sentences Act 1992 ("the Act") which would have required the Court to act via s.146(2), or whether she was brought before the Court via s.146(3), (4) and (7). The certificates of conviction (R54,55) do not record any orders under s.146(4). No submissions were made in that regard either before the sentencing judge or this Court. The sentencing judge proceeded to deal with the applicant under s.147 and ordered that she serve the whole of the 18 months sentence suspended on 10th October 1995.

The grounds of appeal are that the sentencing judge erred in not forming the opinion under s.147(2) that it would be unjust to order that the applicant serve the whole of the imprisonment of 18 months in view of all the circumstances that have arisen since 10th October 1995.

Counsel for the applicant had submitted to the sentencing judge that he ought to form the opinion referred to in s.147(2) and that an appropriate order was an extension of the operational period pursuant to s.147(1)(a) for a period between six months and a year. The Crown Prosecutor simply asked that the Court activate the whole of the suspended sentence imposed on 10th October 1995.

Counsel for the applicant further submitted to His Honour that there were two changes in her personal circumstances. The first related to her former de facto, one O'Neill, who was the father of two of her children aged 3 years and 7 years. She has two other children aged 9 months and 7 years. Their father lived in the Cairns area and had little if any contact with them. O'Neill was a drug addict and she was also a regular user with some previous drug convictions. It was submitted that immediately after her sentence on 10th October 1995, she approached O'Neill and said:

"Right, enough is enough. I'm getting into too much trouble here. I've got to keep my nose clean. If I play up again, then I'm going to jail for 18 months."

Upon being told this, O'Neill replied:-

"Well, if I'm not going to be able to be with you and if I can't be with my kids, then life is

not worth living".

Two weeks later he died of an overdose which means that his death must have occurred within weeks of 10th October 1995. She felt responsible for his death. It was further submitted that whilst O'Neill had been "out of the picture for a period", about six months prior to his death he came back and resumed living with the applicant and the four children when it appears that they both started using hard drugs. He was at some stage charged with receiving and was in custody for a time (not specified) and was released on bail. Two weeks later he died from the overdose. The applicant, according to the submission which was not challenged, gave up use of drugs after she had spoken to O'Neill before he died.

It was said that whilst O'Neill was not paying maintenance, he was nevertheless a father figure to the four children and to that extent was also a support to the applicant in sharing the parenting responsibilities. While they were not living together, he had also exercised access rights to the children. His death, it was submitted, deprived her of this support and left her the sole parent.

The second circumstance submitted to the sentencing judge was that the applicant was 9½ weeks' pregnant as at 28th May 1996 and that even if she served only one half of the 18 months in custody she would give birth to a child whilst incarcerated. It was also said that following imprisonment on 26th April 1996, the children were "unloaded" onto her mother who, as well as the children, could not cope. It was also contended that the breach was, unlike the original offence, spontaneous and unpremeditated when she was adversely affected by alcohol and that in all of the circumstances, an extension of the operational period was warranted.

The sentencing judge in his brief reasons spoke of the serious consequences to persons on suspended sentences. He said:

"You were placed under a suspended sentence for assault occasioning bodily harm. You have been convicted since then of assaulting a police officer. It is a like offence - a use of violence, and I have limited options open to me."

His Honour then quoted s.147(1)(b) which he said deals with the situation where somebody commits an offence like the applicant did during the relevant period. He added, "that is actually a

very limited option open to the Court". His Honour then continued:

"It is put forward on your behalf that now you are a sole parent looking after children that that is a circumstance, and secondly, it is put forward as a circumstance that you are pregnant. There are many instances - no doubt create difficulties - where persons are sent to prison, and the family is broken up, it is unfortunate, the mother has to go to prison because she commits criminal offences. There are provisions in the prison system for persons to give birth. So I can not see that in the terms of the section that allows me to make some order other than that you must serve the period of imprisonment.

Hard as it may seem you should have realised at the time how important it was that you steer clear of the commission of any further offences. I order that you serve the whole of the suspended imprisonment."

Before this Court, Mr Hamlyn-Harris, Counsel for the applicant submitted that the operational period should be extended, if permissible, and alternatively that the applicant serve a short part of the suspended sentence because of what he submitted were significant changes in the applicant's circumstances in the above two areas, although he conceded that these factors had already been placed before the sentencing judge. It was also submitted that there was a delay of five weeks between the date of her convictions for the two breach offences on 26th April 1996 and 31st May 1996 when she was brought before the District Court judge to be dealt with for the breach of suspended sentence. It was submitted that if imprisonment is ordered with respect to a suspended sentence, prima facie, it should be served concurrently with any sentence imposed for the breach offence itself unless the Court otherwise orders so that a concurrent sentence was now not possible because of the time she was eventually brought before the District Court. It was said that this was a factor to be taken into account to demonstrate injustice within the meaning of s.147(2).

It was further submitted that it would be impossible to determine whether an order under s.147(1)(b) was unjust without taking into account the circumstances that have arisen since 10th October 1995 in the context of what was described as the whole factual matrix. According to the submission, if the Court was of the view that a just solution would be to make the offender serve part of the suspended sentence, it followed that it would for that reason be unjust to make an order that the offender serve the whole of the suspended sentence, so that s.147(2) would be satisfied. This, it was said, involved a consideration of the "overall circumstances" in determining what would be just in the case. Counsel conceded that this submission really depended upon a consideration of the merits of the original sentence imposed in the light of subsequent circumstances.

He also submitted that to interpret s.147(1)(a) literally as in R v Shuttleworth (27th September 1995, unreported), would lead to absurd results, but no examples were given. Mr Henry for the Crown submitted that whilst this subsection may be badly drafted, it should be interpreted literally. He submitted that if the Court formed the opinion pursuant to s.146(2), part of the suspended sentence should be ordered to be served.

It was not submitted that the sentencing judge was not entitled to take the breach offence into account. Mr Henry submitted that the type and seriousness of the offence should be taken into account as His Honour did, in this case to the applicant's detriment. The applicant's complaint was that His Honour should have considered this offence against all relevant background circumstances, and not in isolation as he appears to have done.

It is clear that the breach offence itself is a circumstance arising since the suspended sentence was imposed and must be taken into account for or against an offender. See R v Holley; ex parte Attorney-General (C.A. No. 332 of 1996); and R v Holcroft (C.A. No. 245 of 1996) both delivered today. It also follows from those decisions that s.147(1)(a) bears a literal meaning so that an operational period may be extended only where there remains a period of less than 12 months. The reasons for that conclusion are fully set out in the above decisions.

I am unable to accede to the submission of Mr Hamlyn-Harris that a permissible approach is to first decide whether a just order would be that the offender serve part only of the suspended sentence and that if the Court so concluded, this would mean that it would be unjust to order that the whole of the suspended term be served. As indicated, this submission involves a consideration of the merits of the original sentence along with all of the circumstances arising since.

In R v Holcroft I stated what I considered to be the philosophy and purpose of the provisions relating to suspended sentences and will not now repeat those remarks in full. It is quite clear that in no sense can the Court in dealing with an offender under s.147, revisit the original sentence. The Court is not sitting on appeal from that order and must accept that the conviction and order were validly made: cf R v Carrell (C.A. No. 372 of 1995, 1st February 1996, unreported) per Fitzgerald P; R v Holley per de Jersey J. One cannot say in a vacuum that a just order is that the offender serve a part, therefore it is unjust to order that the whole be served. This appears to reverse the process prescribed by the legislation.

Whilst it is true that in considering whether it would be unjust to make an order under s.147(1)(b), a recognition of the length of the suspended sentence is involved, the question of whether such an order is unjust depends upon a consideration of mitigating circumstances which have arisen since the suspended sentence was imposed, including the nature and circumstances of the breach offence itself and its comparison with the original offence, the period within the operational period that it occurred, as well as the relevant antecedents of the offender against which the circumstances of the breach offence and any other conduct in the meantime may be properly considered in context. An important consideration is whether the offender has attempted rehabilitation.

A difficulty facing the applicant is that the sentencing judge considered and took into account the two circumstances relied upon by the applicant here and below, i.e. the death of her de facto partner thus throwing the whole of the parenting responsibilities onto her and the fact that she was pregnant at the time. To hold that His Honour erred in effect involves a challenge to the exercise of His Honour's discretion. I agree generally with the remarks of Fryberg J as to the nature of an appeal from such a conclusion, although it is clear that the finding can be readily reviewed and set aside if it appears that the judge failed to take into account either totally or properly, relevant circumstances which are contemplated by s.147(2).

Nothing appears to have been made of the submission below that after the sentence imposed on 10th October 1995, the applicant apparently gave up the use of dangerous drugs. She had a prior history of drug offences and it was submitted that O'Neill was a bad influence on her in his use of such drugs which ultimately caused his death. As indicated, rehabilitation of an offender or genuine attempts thereat is always a relevant circumstance if it emerges after the imposition of the suspended sentence which is designed to ensure that an offender leads a law abiding life: R v Holcroft. On the other hand, the breach offence was committed in only a little over five months after the order was made on 10th October 1995, when it must be expected that the warning given by the judge was apparently uppermost in her mind. She told O'Neill that she was well aware of the risk of going to prison for 18 months if she offended again.

The alleged delay in being brought before the District Court to be dealt with for the breach, between the conviction of the breach offence itself on 26th April 1996 and 31st May 1996, involved about five weeks in all. Theoretically it might have been possible to have brought her before the District Court on 26th April 1996 or the next day. It was said that she could then have served any period of imprisonment ordered under s.147 concurrently with the sentence served for the breach offence. This is the effect of s.148.

In any event, if an order is not made under s.147(1)(b), but an order is made under s.147(1)(c), the alleged delay may be taken into account in a general way in considering the appropriate order. This is not to say that a delay in being brought before the Court to be dealt with pursuant to s.146-147 may not be a relevant factor in favour of an offender or indeed against an offender if he or she causes the delay by attempting to escape justice, as occurred in R v Holcroft.

Whilst the sentencing judge considered the nature of the breach offence only in the sense that he said it was an offence of a type similar to the original offence, His Honour did not take into account the fact that the applicant was not the actual offender but only a party to the original offence. She used no violence and indeed stopped her companion from further injuring the person assaulted. She cooperated with the police, pleaded guilty and offered to give evidence against her male companion, without which he could not have been charged. The breach offence was of the same type as that which resulted in the suspended sentence, but, unlike that offence, it was unpremeditated and committed on impulse whilst she was affected by alcohol and in an emotional state. She had no previous history of actual violent conduct.

Whilst her history and circumstances existing at the time the suspended sentence was imposed were before the sentencing judge on 10th October 1995 and do not constitute a "new" circumstance within the meaning of s.147(2), such that they cannot be taken into account as a circumstance bearing upon the question of whether it would be unjust to make an order under s.147(1)(b): R v Muller; ex parte Attorney-General (C.A. No. 133 of 1995, 11th August 1995, unreported), those background circumstances where relevant may be taken into account for the limited purpose of assessing the applicant's conduct in committing the breach offence: R v Holley; R v Holcroft. The learned judge appeared to have been constrained by the strict terms of the section and did not assess the applicant's subsequent conduct by reference to her relevant background, which tends to place that later conduct in context.

For the foregoing reasons, I agree with Fryberg J's conclusion that the sentencing judge erred in not taking into account relevant considerations which bore upon the circumstances which arose since the suspended sentence was imposed on 10th October 1995. Her attempts at self-rehabilitation were not considered because they were not raised by Counsel appearing before the sentencing judge. Nor were they raised on the appeal. Nevertheless, those circumstances appear from the record and should in my opinion be taken into account. I have also had regard to the submission that there was some unexplained delay in bringing the applicant before the District Court to be dealt with under s.147.

In these circumstances, this Court must consider the matter afresh. I agree that in all of the circumstances, it would be unjust to order that the whole of the suspended period of imprisonment be served. This leaves the only option open pursuant to s.147(1)(c).

I agree that the overall justice of the case will be met if the applicant is ordered to serve eight months' imprisonment from 31st May 1996. The 10 months remainder of the suspended sentence continues for the balance of the three years operational period, i.e. until 10th October 1998: R v Scott (C.A. No. 280 of 1993, 18th October 1993, unreported). There appears to be no reason why under the Queensland Legislation, the balance should not be subject to further proceedings if a further relevant breach offence occurs. There is no reason to read the reference to "another offence" in s.144(5) as meaning only one such offence and s.147(1)(c) does not indicate to the contrary. The situation may be different elsewhere. See Powers of Criminal Courts Act 1973 (UK), s.23(1)(b). See also the Criminal Justice Act (NZ) s.21A.

REASONS FOR JUDGMENT - FRYBERG J.

Judgment delivered 29 November 1996

This is an application for leave to appeal against an order made by the District Court pursuant to s.147(1)(b) of the Penalties and Sentences Act 1992 that the applicant serve the whole of a period of 18 months' suspended imprisonment. It is the last of three appeals, heard on successive days by differently constituted benches, raising questions of interpretation of that section[1].

[1]

The original offence

On 10th October 1995 in the District Court, the applicant was convicted on her plea of guilty of assault occasioning bodily harm. She was sentenced to imprisonment for 18 months, the whole of that term being suspended for an operational period of three years. The circumstances of that offence were summarised by counsel for the applicant in the present proceedings in this way:

"The applicant's younger brother told her that the complainant was molesting him; the applicant and one Michael O'Brien went around to see the complainant. When they got there O'Brien assaulted the complainant by punching and kicking him, causing serious injuries including a penetrating eye injury which resulted in permanent loss of vision in the left eye and facial fractures.

The complainant had no recollection of the assault. The applicant co- operated with the police, made full admissions, and informed the police of O'Brien's involvement and volunteered to give evidence against him. The Crown Prosecutor indicated that it were not for her co-operation, there would have been no evidence connecting O'Brien to the offence.

Bowen did not personally assault the complainant, but went to his caravan with O'Brien, aware that the complainant was going to be assaulted. The applicant pleaded guilty to assault occasioning bodily harm. O'Brien pleaded guilty to doing grievous bodily harm. (O'Brien was sentenced to 3 years imprisonment, with a recommendation for parole eligibility after 12 months)."

The acting judge sentenced on the basis that the assault took half an minute to a minute and that the present applicant intervened to assist the victim during this time, by stopping or attempting to stop O'Brien (who was profoundly deaf) doing further violence to the victim.

At the time that sentence was imposed, the applicant was aged 24. She was an unmarried mother of four children aged from nine months to seven years. She had left school at grade 9, being a poor student. Her parents had separated when she was seven years of age. She had what the acting judge described as "some minor previous convictions" not involving violence (three drug offences and one breach of probation).

The breach offences

On 26th April 1996 in the Magistrates Court, the applicant was convicted on her plea of guilty of one count of assaulting a police officer in the execution of his duty and another count of obstructing that police officer in the performance of his duties. On the first count she was sentenced to imprisonment for two months with a recommendation for eligibility for parole after one month and on the second count she was sentenced to imprisonment for seven days. The sentences were concurrent.

The offences occurred on her 25th birthday. The circumstances were summarised before us by her counsel as follows:

"The applicant's account of the two offences was described by her counsel. The circumstances were that she was drinking to excess on her birthday and during the evening her 3 year old son had an asthma attack. She asked a friend to drive her home and the friend agreed, but on the way he sideswiped the car and the police arrived at the applicant's residence. Her friend was being arrested, and was on the ground with two police officers attempting to handcuff him. It appears that the applicant then threw a glass at the police officer, causing a gash in his forehead, and also smacked him in the mouth."

The s.147 proceedings

The applicant appeared before the District Court on 31st May 1996. How she came to be there does not appear, nor does it appear whether the District Court proceeded to act under s.146(2) or (7). The prosecutor proved the commission of the breach offences during the operational period of the suspended sentence. The transcript of proceedings on the occasion of the imposition of the suspended sentence was tendered, as was the applicant's criminal history. Counsel for the applicant informed the Court that at some time prior to the imposition of the suspended sentence, the applicant had resumed a de facto relationship with one O'Neill, the father of two of her four children. O'Neill was a drug addict. After the imposition of the suspended sentence, the applicant terminated the relationship and ceased her own use of drugs in order to avoid the risk of committing an offence which might trigger the suspended sentence. Two weeks later O'Neill died from an overdose. Although he was not a supporting father he had (when not in prison himself) exercised rights of access in respect of his two children on occasions when he was not living with the applicant. Counsel also tendered a medical report showing that as at 28th May 1996 the applicant was about nine weeks pregnant. He submitted that the breaching offences were unpremeditated and that the time spent in jail for them had been "an eye-opener" to the applicant. He submitted the appropriate response by the Court was to extend the operational period of the suspended sentence.

The learned District Court judge did not expressly make a finding as to his opinion for the purposes of s.147(2) of the Penalties and Sentences Act 1992. However he referred to that section, and it is clear that he considered but did not form the opinion there described. In doing so, he took into account the circumstances of the breach offences and also the applicant's pregnancy. To what extent if at all he took into account the death of O'Neill and the alleged impact of the prison term served by the applicant for the breach offences does not appear, for he did not refer to those factors in his reasons. Nonetheless, there is no reason to suppose that he overlooked them.

The sentencing judge also made no reference to the applicant's criminal history and that omission is more significant. The history had been taken into account by the Court when the suspended sentence was imposed, in the sense that it was described as minor and without offences of violence. Apart from the breach offences, it does not seem to have been referred to in the proceedings below. The question whether any regard could be paid to matters arising prior to the imposition of the suspended sentence was not expressly discussed before the judge, but the proceedings appear to have been conducted on the basis that such matters had to be ignored.

The appeal

Before us, it was submitted on behalf of the applicant that the sentencing judge ought to have formed the opinion referred to in s.147(2). It was submitted that the appropriate order was either an extension of the operational period of the suspended sentence (if that was open) or an order that the applicant serve a short part of the suspended sentence. Counsel relied upon the same matters as were placed before the sentencing judge together with the fact that by reason of the five week delay in bringing the applicant before the District Court, she had been deprived of the opportunity to serve any imprisonment ordered in those proceedings concurrently with the imprisonment served for the breach offences.

It is convenient at this point to say something about the nature of an appeal to this Court where it is sought to challenge the failure of the court below to form the opinion described in s.147(2). The opinion in question is "that it would be unjust to [make an order under sub-s.(1)(b)] in view of all the circumstances that have arisen since the suspended imprisonment was imposed". Technically, the process of considering that issue does not involve the exercise of a judicial discretion. However it is a process which is closely akin to that involved in exercising a discretion. It involves the formation of a judgment about whether something would be unjust. The concept of justice is imprecise and value laden, and inevitably, reasonable minds will form different opinions on the question in the same set of circumstances. I would not wish to fetter an appeal of this nature with the same restrictions as apply to an appeal against the exercise of a discretion; but it is the fact that in many cases the same sorts of considerations as lead an appeal court to decline to reconsider an exercise of discretion will also lead it to decline to reconsider the formation of an opinion under s.147(2).

One matter which was not argued on behalf of the applicant, and in my opinion was rightly not argued, was whether the sentencing judge erred in law in taking into account the circumstances of the breach offences. It seems apparent that he did so and did so to the applicant's detriment. He said:

"You were placed under a suspended sentence for assault occasioning bodily harm. You have been convicted since then of assaulting a police officer. It is a like offence - a use of violence, and I have limited options open to me."

Before us, counsel for the Crown submitted that the type and seriousness of the breach offences were matters which could be taken into account. In my judgment that submission is correct. I have stated my reasons for this view in Attorney-General v Holley.

For the applicant Mr Hamlyn-Harris submitted that a Court dealing with a matter under s.147 ought to consider whether a just order to make would be an order that the offender serve part of the suspended imprisonment. He submitted that if the Court thought that course was just, it followed that it would be unjust to make the offender serve the whole term. By inference from this submission, the sentencing judge was in error in not considering expressly whether an order under s.147(1)(c) would be just. In my view a sentencing judge may validly approach the task of assessing the justice making of an order under s.147(1)(b) by adopting an approach similar to that described by Mr Hamlyn-Harris. If a just order under s.147(1)(c) is substantially different from an order which would be made under s.147(1)(b) or is in substantial disproportion to that order, an opinion that the latter order would be unjust in the circumstances would be easy to form[2]. But it does not seem to me that this process of reasoning is mandatory. I do not think that the decision below can be said to be wrong just because a process of this nature was not undertaken. The implicit finding of the sentencing judge that an order under s.147(1)(b) was not unjust carries the implication that in the judge's opinion no other order under sub-s.(1)(c) would have been just. In my opinion the order below cannot be attacked successfully on this basis.

[2]              Of course, all of the relevant circumstances would have to be considered; the matter could not be decided in

Mr Hamlyn-Harris also submitted that for the purposes of s.147(2), circumstances which have arisen since the suspended sentence was imposed must be assessed in relation to the whole factual matrix surrounding the offender if a view is to be formed as to whether in view of those circumstances it would be unjust to make an order under s.147(1)(b). That submission places the applicant on stronger ground. I have given my reasons for the view that an offender's antecedents may be taken into account in assessing his or her conduct (or any other event) occurring after the imposition of the suspended sentence in Attorney-General v Holley. I adhere to the reasons which I there expressed.

It was correct for the judge to have regard to the breach offences as part of the emergent circumstances. However in my opinion it was wrong not to weigh those circumstances against the whole of the applicant's criminal history. The judge took into account that the breach offences included a violent assault, an offence of the same type as that which was the subject of the suspended sentence. He did not take into account the fact that the applicant herself had done no violence at the time of the original offence nor, more importantly, that until then she had a criminal history completely free from violence. In my judgment those facts, particularly the latter, have an important bearing upon how one assesses the breach offence. The failure of the sentencing judge to take these factors into account has the result in my opinion that his reasoning is flawed. That

a vacuum.

is sufficient reason for us to reconsider the order which ought to be made and either to make such order as we see fit or to remit the matter for reconsideration if that be necessary.

Before turning to that question I should refer to one other submission made on behalf of the applicant. Mr Hamlyn-Harris contended that part of the total factual matrix in this case was the fact that the suspended sentence imposed was too long, and that this fact should be taken into account in assessing whether it would be unjust to make an order under s.147(1)(b). No doubt it is true that a judge who thinks the suspended sentence was too long will often think that it would be unjust to order the offender to serve the whole of that sentence. However that is not the test which s.147(2) propounds. Section 147(2) requires the opinion to be formed that it would be unjust to make the order in view of all the emergent circumstances. For the reasons which I gave in R v Holley, circumstances which have not arisen since the imposition of the suspended sentence can only be taken into account to the extent that they affect or relate to other circumstances which have so arisen[3]. Of course, in many cases, the circumstances of the original offence will be relevant in this way; and the actual length of the suspended sentence must always be considered, because the section requires consideration of whether it would be unjust to order the whole of the suspended sentence to be served in view of the emergent circumstances. But that is not the same as considering whether the original sentence was excessive. I do not see how that issue could properly arise.

[3]  

In R v Holcroft I described the approach to s.147 which ought to be adopted by a sentencing judge. That is the approach we should adopt here. Section 147 clearly embodies a legislative policy, and although it contains within itself potential exceptions to that policy, they are not to be made lightly. Otherwise, the effectiveness of the system of suspended sentences will be undermined[4].

[4]  

When the factors urged on behalf of the applicant and described above are weighed up, it seems to me that justice would be achieved by ordering that the applicant serve eight months of the suspended sentence. In my view it would be unjust to order that she serve the whole of that sentence. It is true as the judge below observed that there are facilities in prison for persons to give birth, but I do not think that this fact negates the relevance of the applicant's pregnancy in the formation of the opinion described in s.147(2). On the other hand, even making allowance for the mitigating factors which I have already described, the seriousness of both the offence for which the suspended sentence was imposed and the breach offence preclude any order more lenient than that envisaged by s.147(1)(c).

I would order that the application be granted and the appeal be allowed; that the order of the District Court made on 31st May 1996 be set aside; and that in lieu thereof it be ordered that the applicant serve eight months of the suspended imprisonment imposed by that Court on 10th October 1995. The remaining ten months continues to be suspended during the balance of the operational period.

The others were R v Holcroft, heard on 11th September 1996 and Attorney-General v Holley, heard on

12th September 1996.

At least if the decision of this Court in Attorney-General v Muller, unreported, C.A. No. 133 of 1995, 11th
August 1995 is not to be overruled - and there was no suggestion in the present case that it should be.

See generally R v Marston (1993) 65 A.Crim.R. 595 at p.596.