R v Bradley

[2007] QSC 375

SUPREME COURT OF QUEENSLAND

CITATION:	R v Bradley [2007] QSC 375
PARTIES:	THE QUEEN v CHRISTOPHER JOHN BRADLEY (defendant)
FILE NO:	Indictment No SC 479 of 2007
DIVISION:	Criminal
PROCEEDING:	Sentence
COURT:	Supreme Court
DELIVERED ON:	3 December 2007
DELIVERED AT:	Brisbane
HEARING DATE:	3 December 2007
JUDGE:	Fryberg J
ORDER:	1. On count 1 revoke the intensive correction order imposed on the prisoner on 12 December 2005 and commit prisoner to prison for 22 days;
2. On count 2 sentence the prisoner to imprisonment for three months;
3. On each count of 3 and 4 sentence the prisoner to imprisonment for two months;
4. All imprisonment to be served concurrently;
5. Fix a parole release date in relation to counts 2, 3 and 4 of 3 January 2008
CATCHWORDS:	Criminal law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Breach of intensive
correction order, probation order and community service
order – Re-sentence and committal to prison
Penalties and Sentences Act 1992 (Qld) s112, s113, s119,
s127
R v Lam [2007] QSC 137 applied distinguished

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COUNSEL:	Crown: A Freeman Respondent: M Robbins
SOLICITORS:	Applicant: Director of Public Prosecutions (Queensland) Respondent: Legal Aid Queensland

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SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

[2007] QSC 375

FRYBERG J

Indictment No 479 of 2007	10
THE QUEEN
v.
CHRISTOPHER JOHN BRADLEY
BRISBANE	20
..DATE 03/12/2007
SENTENCE
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HIS HONOUR: Christopher John Bradley, on the 12th of December

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2005 you pleaded guilty to one count of supplying ecstasy
tablets, another of supplying methylamphetamine and two counts
of possession of one each of those materials. The amounts
that you possessed were small. You were interviewed by police

and you made admissions to having supplied both of those drugs	10
to other people. Again the amounts supplied were small.
I sentenced you on that occasion on the basis that your
offending was toward the lower end of the scale. At that time
your criminal history was trivial. You had one offence of	20
consuming liquor in a public place whilst under the age of 18 years, committed some 10 years earlier. There were a number of circumstances indicating your willingness to co-operate in the administration of justice.
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Your counsel submitted that your conduct demonstrated both
remorse and that you had been rehabilitated, but the material
before me did not support either inference. In the
circumstances I thought it appropriate to impose community
based orders. I asked you if you were agreeable to that. The	40
orders which I proposed were an intensive correction order for a period of six months, a probation order for a period of two years and 120 hours of community service to be performed between July 2006 and December 2007.
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You told me on that occasion that you were agreeable to my making those orders and that you agreed to comply with them. You have not done so. The evidence before me shows that on the 20th of May 2006, less than six months later, you 4 SENTENCE 60

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committed the offence of driving under the influence of
liquor. That breach was committed 22 days before the expiry of the intensive corrections order. The evidence also shows that on the 18th of December 2006 you drove a motor vehicle

while disqualified and that again on the 22nd of March 2007	10
you committed the same offence. Not only did you breach all of the orders by reason of the commission of those offences, your performance under the orders showed what I think can
fairly be described as a very substantial contempt for them.
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As regards the intensive correction order your response was
described by the Corrective Services officers who reported as
being, "at best mediocre". They certainly did not exaggerate.
An important part of that intensive corrections order was the
performance of community service. You were directed by the	30
authorities to perform eight hours of community service per
week. That would have meant a total of 208 hours performed in
the six month period. You, in fact, performed 42 hours. You
did that notwithstanding that you were issued with four
separate work instructions between January and April 2006,	40
during which time, in fact, you completed only two hours of community service.
Your excuses for your failure to attend were unacceptable, a
conclusion in the report not challenged before me today. You	50

were issued with a formal censure letter in relation to your
unsatisfactory performance, but notwithstanding that warning,
unacceptable performance continued in that you failed to
attend on three occasions, while you did attend on five 5 SENTENCE 60

the Probation and Parole Office had no contact with you until	20
the 25th of July 2007 and then again no contact until the 2nd of August 2007.
In relation to the community service order, not only were
there the two breaches constituted by the offences but also	30
there were 10 occasions when you failed to report. Until a
week or so ago you had completed only thirty-seven and a half
hours of the 120 hours community service. In the last week,
no doubt with knowledge of the imminence of these proceedings,
you have performed a further 34 hours. There are still some	40
forty-eight and a half hours left unperformed.
I note that you continued to fail to comply with the orders,
particularly the probation and community service orders, even
after you were charged with offences in relation to them. You	50

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occasions. There was therefore some improvement but it was
not sustained. You turned up to appointments when it suited
you rather than when directed, you rarely reported twice per

week as directed and you failed to provide reasonable excuses.

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The probation order required that you not commit further
offences and the two driving offences constituted breaches of
it. You breached the order not only by the two offences but
also by failing to report on five separate occasions. Indeed

were charged with those offences and appeared in the Holland were convicted and fined but it seems to have made no 6 SENTENCE 60

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difference to your performance.

Your counsel sought to explain, although I do not think she
tried to excuse, your non performance by pointing out that the

reason for it was, in many cases at least, that you had paid	10
employment and that you chose to do that instead of performing
your community service. You have, in my view, displayed a
history of contempt for orders made by not only this Court but
also by any Court. The offences of disqualified driving both
took place in breach of Court ordered disqualifications. You	20
are now 30 years of age, you are no callow youth; you know
perfectly well what the law requires. I do not think that your recent efforts to perform under the community service order demonstrate any change of heart but rather simply an attempt to limit the damage that may be inflicted upon you by	30
today's proceedings.
In deciding what penalty to impose in respect of these
offences I must take into account the seriousness of the
original offences but I am nonetheless constrained by the fact	40
that the attempt to give you a chance to demonstrate your
willingness to be rehabilitated has failed. I have no
confidence that any similar order would have the slightest
impact. It seems to me that the only appropriate course which
will make it clear to you that this sort of behaviour is not	50

to be tolerated is to impose a period of actual imprisonment.
In relation to the intensive correction order I have had the 7 SENTENCE 60

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benefit of substantial submissions made on your behalf by your
counsel on the proper interpretation of the legislation. I
have said something previously of my views on that
interpretation: see The Queen v. Lam [2007] QSC 137. I there

observed that under section 112 of the Act the Court is	10
empowered to make an intensive correction order. An intensive
correction order has the effect that an offender is to serve
the sentence of imprisonment by way of intensive correction in
the community and not in a prison. The reference to "the
sentence of imprisonment" in section 113 relates back to the	20
condition precedent set out in section 112 for the making of
the intensive correction order. That condition is that the
Court sentences an offender to a term of imprisonment of one year or less. In Lam I expressed the view that the sentence of imprisonment was not part of the intensive correction	30
order. When that order is terminated it does not terminate the sentence of imprisonment. I remain of that view.
Ms Robbins has referred me to section 119 of the Act. That
section provides in subsection (2) that:	40

"An intensive correction order is terminated if the
offender is sentenced or further sentenced for the

offence for which the order was made."

There is a problem in what is meant by the word "sentenced" in 50

that provision but it is not a problem material to today's
proceedings. The section provides for the termination of the
intensive correction order but in my judgment it does not
provide for the termination of the sentence of imprisonment. 8 SENTENCE 60

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That was something separate which was imposed by way of the condition precedent to which I have already referred.

That view is in my judgment reinforced by the reference in

section 119(2)(c) to termination if the offender is committed	10
to prison under section 127(1). That section in its turn provides that:

"A Court that deals with an offender for an offence for
which an intensive correction order was made may, whether

or not the order is still in force, do so by revoking the	20
order and committing the offender to prison for the portion of the term of imprisonment to which the offender was sentenced that was unexpired on the day the relevant offence against section 123 was committed."

In your case that is 22 days. The use of the word

"committing" in that section reinforces in my judgment the	30
fact that in so acting a Court is not imposing a fresh
sentence but rather committing the offender to prison to serve the sentence which already exists. It is not mandatory to act under that section. However, as I observed in Lam there is a
tension between section 126(4) and the notion that an	40
intensive correction order is something separate from the sentence of imprisonment which precedes it.
I do not think that the tension can be resolved in the way for
which Ms Robbins contends. The provisions of section 130 upon	50

which she relied do not advance the discussion because in my
judgment they deal only with the discharge of the community
based orders. There is no doubt that the intensive correction
order can be discharged. The question that is of concern is 9 SENTENCE 60

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whether the sentence of imprisonment can be in any way

affected.

That that is the correct view is, I think, reinforced by

reference to section 126(2) of the Act which provides that in	10
the case to which it applies orders of admonishment and discharge may be made and subsection (3), that the making of such orders does not affect the continuation of the community based order.
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Reliance was also placed by Ms Robbins on the decision in The
Queen v. Tran Ex Parte Attorney-General [2002] QCA 21. In
that case The President and Justice Douglas, in a joint judgment, were considering whether the imposition of an intensive correction order for a serious offence was too	30
lenient a penalty. In the course of holding that in the
circumstances of the particular case that it was not, they
made some observations by way of obiter dicta about the nature
of an intensive corrections order and suggested that when an
order was made the Court had power under section 126(4) to	40
impose a further order of imprisonment.
That dictum was not written after argument dealing with the problem in the way in which I dealt with it in Lam and I do not believe that their Honours were intending to make a	50

considered statement which addressed such arguments. I
therefore do not think that the dictum is of assistance in the
present case.
It seems to me that this is an appropriate case to exercise 10 SENTENCE 60

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the power conferred by section 127. In my judgment I cannot,
in respect of that period, fix a parole release date because I
am not imposing a sentence within the meaning of section 160A
of the Penalties and Sentences Act. It is otherwise in

relation to the probation and community service orders.	10
For these reasons I make the following orders:
I revoke the intensive corrections order imposed on you on the
12th of December 2005 and commit you to prison for 22 days;	20
I re-sentence you on counts 2 to 4. By reason of that re-
sentencing the community service order will automatically be
terminated under section 108 of the Act and the probation
order under section 99 of the Act.	30
On count 2 I sentence you to imprisonment for three months.
On counts 3 and 4 I sentence you to imprisonment on each count
for two months.	40
All imprisonment, including that in relation to count 1, is to be concurrent.
I fix a parole release date in relation to counts 2, 3 and 4	50

of the 3rd of January 2008.
Is there anything further? 11 SENTENCE 60

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MS FREEMAN: Nothing, your Honour.

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