R v Butt

[1994] QCA 262

IN THE COURT OF APPEAL [1994] QCA 262

SUPREME COURT OF QUEENSLAND

C.A. No. 117 of 1994

Brisbane

[R. v. Butt]

THE QUEEN
v.
MARK CLIFFORD BUTT

(Applicant)

The President
Mr Justice Davies

Mr Justice Demack

Judgment delivered 15/07/1994
Reasons for judgment of the President, Davies JA and Demack J.

All concurring as to the orders made.

O	RDER:
O	RDER THAT:
1.Application for	leave to appeal against sentence granted.

2.Appeal allowed.

3.Sentence imposed below on 9 March 1994 set aside and in lieu

thereof a sentence of 18 months is imposed.

4.The applicant be eligible for parole on 18 May 1995.

5.The time the applicant spent in custody from 19 February 1993

to 23 June 1993 is not to be taken as time already served
under the sentence.

CATCHWORDS:CRIMINAL LAW - sentence - unlawful use of a motor vehicle - applicant on parole at time of second series of offences - whether proper to impose a maximum sentence under s. 125(4)(a) Penalties and Sentences Act 1992 when sentence already served for that offence

Counsel:	T Rafter for the Applicant W Church for the Respondent
Solicitors:	Legal Aid Office for the Applicant Crown Solicitor for the Respondent

Hearing date: 15 June 1994

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 15/07/94

The circumstances giving rise to this application are set out in the judgment of Demack J. and need not be repeated in detail.

After the applicant had been released from prison for the offences for which he had been sentenced on 19 February 1993 and while he was on probation for those offences (series "A"), he committed and was sentenced on 19 October 1993 to prison for further offences (series "B"). On that occasion, he received an effective sentence of imprisonment for 15 months with a somewhat unusual order that he not be eligible for parole until he had served 10 months; i.e., until 18 August 1994.
Then, on 9 March 1994, he was dealt with pursuant to subsection 125(4)(a) of the Penalties and Sentences Act 1992 for the series "A" offences. By that provision, the Magistrates Court could "deal with" the applicant for the series "A" offences "in any way that it could deal with the [applicant] if the [applicant] had just been convicted by it" of the series "A" offences. Separate penalties were imposed in respect of each of the series "A" offences, to be served concurrently. The effective sentence was imprisonment for two years, cumulative on the sentence being served in respect of the series "B" offences.
The date upon which the applicant is to become eligible for consideration for release on parole was extended to 18 August 1995.

When originally sentenced for the series "A" offences on 19 February 1993, the applicant had been sentenced to imprisonment for 6 months and placed on probation for 3 years on each charge, 10 of stealing, 13 of attempted stealing and 2 of unlawful use of a motor vehicle. When he was dealt with for those offences under subsection 125(4)(a) of the Penalties and Sentences Act on 9 March 1994, the stealing and attempted stealing charges each attracted terms of imprisonment for 1 year, while each unlawful use of a motor vehicle offence received the maximum period of imprisonment available, namely 2 years.

Read literally, subsection 125(4)(a) of the Penalties and Sentences Act permitted that course, notwithstanding that the applicant had already served a term of imprisonment in respect of those offences.

It was not argued for the applicant that subsection 125(6) of the Penalties and Sentences Act required the Magistrates Court, when proceeding under subsection 125(4)(a) on 9 March 1994, to have regard to the sentences of imprisonment imposed on the applicant in respect of the series "A" offences on 19 February 1993 or the period of imprisonment served under those sentences, and I do not presently favour that view, depending as it does on what Demack J. correctly describes as an awkward interpretation of section 91 and 92 of the Penalties and Sentences Act: see also the definitions of "community based order" and "probation order" in section 4 of that Act. However, it is unnecessary to express a concluded opinion on the point.
The difficulties associated with sections 158 and 161 of the Penalties and Sentences Act have been noticed in this Court on a number of occasions. It is unnecessary to repeat what has been said; there is no suggestion that either section prevented the Magistrates Court from imposing the maximum sentence when it did, but those provisions are at least consistent with the notion that the earlier imprisonment was a material consideration, which is confirmed by subsection 9(j) of the Act.

Indeed, apart from the statute, sound sentencing practice would

require that regard be had to the imprisonment already served.
There is no indication that the Magistrates Court took account of the earlier imprisonment and the inference is that it did not do so. The sentencing discretion accordingly miscarried and must be exercised afresh by this Court.

While I am not persuaded that the Magistrates Court necessarily had to deduct the full period of imprisonment earlier ordered in respect of the series "A" offences from the imprisonment otherwise appropriate when the applicant was dealt with on 9 March 1994, I agree with the orders proposed by Demack J., substantially for the reasons which he has given.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	C.A. No. 117 of 1994
Brisbane
BeforeFitzgerald P. Davies J.A. Demack J.
[R. v. Butt]

T H E Q U E E N

v.

MARK CLIFFORD BUTT (Applicant)

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 15/07/1994

The history of this matter to the time of the sentence the subject of this application is adequately set out in the judgments of the President and Demack J. I agree with the orders proposed by Demack J. His Honour would impose those orders because, in his view, s. 125(6) of the Penalties and Sentences Act 1992 required the learned magistrate, in imposing sentence, to have regard to the term of six months' imprisonment already served under the sentence imposed on 19 February 1993. The President would also make those orders by holding that the proper exercise of a sound sentencing practice requires that result; not deciding, but not favouring, the construction of s. 125(6) reached by Demack J. Although that question of construction was not argued before us, it is in my view necessary to decide whether the orders which the Court proposes to make follow from the operation of s. 125(6) or from more general considerations.

The question is whether the community based order referred to in s. 125(6)(a) includes, where an order is made under s. 92(1)(b), the sentence of imprisonment imposed. An affirmative answer to that question might seem at first sight strange. However a probation order is a community based order (s. 4) and s. 92(1) provides that "the effect of" a probation order is either:

"(a)that the offender is released under the supervision of an authorised Commission officer for the period stated in the order; or
(b)that the offender -

(i)is sentenced to a term of imprisonment for not longer

than 6 months;

and
(ii)at the end of the term of imprisonment the offender is

released under the supervision of an authorised Commission officer for the remainder of the period stated in the order."

Given that the definition of "probation order" in s. 4 and Division 1 of Part 5 appear to contemplate that the only way a probation order may be made is pursuant to s. 92, it is difficult to see that clause (b) can mean other than that a court may only order imprisonment followed by probation pursuant to that clause and that, where a court orders a term of imprisonment followed by probation, both orders together constitute the probation order. Sub-clause (ii) of clause (b), by referring to the period of probation after release from imprisonment as "the remainder of the period stated in the order", contemplates that the period of imprisonment is also a period stated in the probation order.

I do not see any inconsistency between that construction and s. 92(4). The requirements referred to in that sub-section are those referred to as requirements in s. 93.

Accordingly, I would conclude that s. 125(6) required the learned magistrate in imposing sentence to have regard to the sentence of six months' imprisonment already imposed, and in fact served, in respect of the offences for which he was sentencing. Had he done so, he could not have properly imposed a sentence of more than 18 months' imprisonment. However, for the reasons advanced by Demack J. I think that that was the term which should have been imposed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 117 of 1994

Before the Court of Appeal

The President
Mr Justice Davies

Justice Demack

[R. v. Butt]

THE QUEEN

v.
MARK CLIFFORD BUTT

(Applicant)

JUDGMENT - DEMACK J

Judgment delivered 15/07/1994

This is an application for leave to appeal against a sentence imposed upon the applicant by a Stipendiary Magistrate following the applicant's plea of guilty to the breach of a community based order.

The community based order was made by a Stipendiary Magistrate on 19 February 1993, when the applicant pleaded guilty to two charges of unlawful use of a motor vehicle, 10 charges of stealing and 13 charges of attempted stealing. In addition to probation orders, the Stipendiary Magistrate imposed a sentence of six months' imprisonment in respect of each charge. The applicant was released from custody on 23 June 1993.

There were special conditions attached to the probation orders which required him to make restitution in the sum of $210 within 12 months and to submit to medical, psychiatric or psychological treatment as required. After his release from custody he did not attend as required, and no treatment was arranged.

On 19 October 1993, he pleaded guilty to 10 charges of unlawful use of a motor vehicle and to two charges of unlicensed driving. A Stipendiary Magistrate sentenced him to imprisonment for 15 months with an order that he be not eligible for parole until he had served 10 months. It was in respect of one of these charges of unlawful use that proceedings for breach of his community based order were commenced.
The Stipendiary Magistrate who heard the proceedings for this breach dealt with him pursuant to s. 125(4)(a) of the Penalties and Sentences Act 1992. He sentenced him to two years' imprisonment on each of the charges of unlawful use, and one year for each of the charges of stealing and attempted stealing. Two years' imprisonment was the maximum that could be imposed summarily in respect of the charges of unlawful use of a motor vehicle, (Criminal Code, s. 408B(1)). The Stipendiary Magistrate ordered that the sentences be cumulative on the sentences the applicant was then serving and fixed 18 August 1995 as the date upon which the applicant is to be eligible for release on parole.

The question which this application raises is whether it is proper to impose a maximum sentence under s. 125(4)(a) when a sentence of six months' imprisonment in respect of the offence, which attracted the community based order, has also been imposed and served.

Section 125(6) requires the Court, which takes action under s. 125(4)(a), to have regard to the making of the community based order and to anything done to comply with the requirements of the order. It does not specifically refer to any sentence of imprisonment which has also been ordered. The explanation for this may be found in ss. 91 and 92 which provide:

"91. If a court convicts an offender of an offence punishable by imprisonment or a regulatory offence, the court may -
(a)whether or not it records a conviction - make for the offender a probation order mentioned in section 92(1)(a); or
(b)if it records a conviction - make for the offender a probation order mentioned in section 92(1)(b)."
and
"92.(1) The effect of a probation order is -
(a)that the offender is released under the supervision of an authorised Commission officer for the period stated in the order; or
(b)that the offender -
(i)is sentenced to a term of imprisonment for not

longer than 6 months; and

(ii)at the end of imprisonment the offender is released under the supervision of an authorised Commission officer for the remainder of the period stated in the order.
(2) The period of the probation order starts on the day the

order is made and must be -

...
(b)if the order is made under subsection (1)(b) - not less

than 9 months or more than 3 years.

...
(4) The requirements of a probation order made under

subsection (1)(b) start -

(a)immediately the offender is released from prison; or
(b)if the offender is released to a re-integration program

- at the end of the program.

(5) A term of imprisonment imposed under subsection

(1)(b)(i) must not be suspended under Part 8."

While these are awkwardly drafted sections, they seem to mean that where a term of imprisonment is imposed as well as a period of supervision, the two orders together constitute the probation order. This construction does not fit comfortably with s. 92(4) which seems to equate probation order with the order for supervision, but it seems to be what ss. 91(b) and 92(1)(b) mean. If this is correct, then, by virtue of the definition of community based order in s. 4, the sentence of imprisonment is, for the purposes of s. 92(1)(b), part of a community based order. If that is so, in the words of s. 125(6), serving the sentence imposed would have been done in compliance with the community based order. It cannot be said that this is a compelling construction of the relevant provisions, but it is one which is in accordance with sound sentencing principles. It is consistent with the requirement in s. 9(2)(j) that in sentencing an offender, a Court must have regard to time spent in custody by the offender for the offence before being sentenced. Sections 158 and 161 apply the same concept.

A similar result may be reached by applying the requirement in s. 9(2)(j) to the sentencing powers given by s. 125(4)(a) which reads:

"125.(4) The court may also -

(a)if the community based order was made by a Magistrates Court - deal with the offender for the offence for which the community based order was made in any way that it could deal with the offender if the offender had just been convicted by it of the offence."

In other words, having regard to time spent in custody by the applicant, the Stipendiary Magistrate would not have imposed a maximum sentence.

In my opinion, where a sentence is imposed in respect of a breach of orders made under s. 92(1)(b) and the sentence previously imposed has been served, that fact should be taken into account in imposing a further term of imprisonment, either under s. 125(4)(a) or under s. 126(4), which gives the same powers to the Supreme Court and the District Court. Here the sentence of six months was served, apparently after allowing for remissions. It follows then that the maximum that should have been imposed was 18 months.
Here there was ample evidence to justify a maximum sentence. A psychological report had been prepared in 1990 which asserted that committing offences with motor vehicles met a variety of social and emotional needs the applicant had. The opinion was expressed that the rewarding aspects of the offences outweighed the punitive consequences of apprehension.

The charges, in respect of which the applicant was sentenced on 19 February 1993, all concerned motor vehicles. In each instance the theft or attempted theft was from a motor vehicle. The offences, in respect of which the applicant was sentenced on 19 October 1993, were all concerned with motor vehicles.

Previously, on 28 September 1990, he was sentenced in the District Court to two years' imprisonment for various charges including 10 of unlawful use of a motor vehicle between 19 December 1989 and 11 May 1990. These offences were committed while he was on probation for house breaking offences.

On 6 July 1992, he was sentenced in the Magistrates Court to 3 months' imprisonment on 5 charges of unlawful use of a motor vehicle and to 6 months' imprisonment on a further 4 charges on 10 August 1992. Those 9 charges concerned offences committed between 16 December 1991 and 23 May 1992. On 15 January 1993, he was ordered to perform 150 hours of unpaid community service in respect of one charge of unlawful use of a motor vehicle.
In those circumstances, the Stipendiary Magistrate could properly impose the maximum sentence. If that seemed inadequate, the applicant could be committed to the District Court.
It follows from what has been said that, taking into account the sentence of six months' imprisonment which had been served, the Stipendiary Magistrate could properly have imposed a sentence of 18 months' imprisonment in respect of the charges of unlawful use of a motor vehicle.

The Stipendiary Magistrate could also make that sentence cumulative upon the sentences imposed on 19 October 1993; R. v. Gills [1986] 1 Qd.R. 459 and Logan, Ex parte Attorney-General (1986) 25 A.Crim.R. 216. The applicant is now aged 24 years. He has a full scale I.Q. of 73 and could have difficulty obtaining employment in the open market. There is no reason to be optimistic that he will change his pattern of offending. The time has been reached when the importance of protecting the Queensland community from the offender (s. 9(1)(e) of the Penalties and Sentences Act) has become a very significant factor. In respect of a non-parole period, the Stipendiary Magistrate fixed 18 August 1995 as the date upon which the applicant would become eligible for parole. This represents a non-parole period of one year in addition to the non-parole period previously set on 19 October 1993. There is no reason to adopt any other approach than to fix a non-parole period of one half of the length of the sentence.

Leave to appeal in respect of the sentences is granted. The sentence imposed in respect of the charges of unlawful use of motor vehicles is set aside and in lieu thereof a sentence of 18 months is imposed. 18 May 1995 is fixed as the date upon which the applicant becomes eligible for release on parole. Because of the approach taken, it is ordered that the time that the applicant was held in custody from 19 February 1993 to 23 June 1993 be not taken to be imprisonment already served under the sentence imposed by this Court.