R v Butterworth

[1994] QCA 319

IN THE COURT OF APPEAL [1994] QCA 319

SUPREME COURT OF QUEENSLAND

C.A. No. 238 of 1994.

Brisbane

[R v. Butterworth]

T H E Q U E E N

v.

MARK WILLIAM BUTTERWORTH

Applicant

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Davies J.A.
Pincus J.A.
Ambrose J.
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Judgment delivered 02/09/1994
Judgment of the Court
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THE ORDERS OF THE COURT	ARE:
1.APPLICATION GRAN	TED.
2.APPEAL ALLOWED.
3.SENTENCE OF IMPRISONMENT	IMPOSED BELOW SET ASIDE;

PROBATION ORDER CONFIRMED.
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CATCHWORDS:CRIMINAL LAW - sentence - 8 counts receiving; 2 counts UUMV - applicant aged between 18 and 20 at time of offences - some prior offences but no previous imprisonment - value of community correctional officer's report considered - whether properly considered below - whether sentence of imprisonment should be set aside.

Counsel:Mr M Byrne Q.C. for the respondent.

Mr D Kent for the applicant.

Solicitors:Director of Prosecutions for the respondent.
Astills for the applicant.
Date of hearing:23 August 1994.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 02/09/1994

This is an application for leave to appeal against sentence. The applicant was convicted on pleas of guilty of 10 offences; two were offences of unlawful possession of a motor vehicle and the other eight were offences of receiving stolen property. The learned District Court judge imposed a penalty of 6 months imprisonment on each count and ordered that the applicant be placed on probation for a period of 3 years.

The applicant is a young man; he is now 22 years of age and committed the offences in question between September 1990 and September 1992. He has never been sentenced to imprisonment before and the decision the primary judge had to make was therefore one of considerable importance, as well as difficulty.

To assist his Honour a report was obtained from an officer of the Queensland Corrective Services Commission, but the reasons for sentencing express scepticism about the accuracy of that report, and it is necessary to make some comment upon that aspect of the case. It must be said at the outset, however, that we are of opinion that such reports, particularly when the Court is concerned with the question whether a young person should be sent to prison for the first time, must be considered carefully.

The prosecutor informed the primary judge that on 16 September 1992 two police constables stopped a vehicle containing the applicant, who was at the wheel of the vehicle, and a second person. Subsequently the prosecutor corrected that statement; he conceded that the two people were on foot when intercepted by the police. As a result of this encounter the police ascertained that the applicant had some drugs in his possession, namely two tabs of LSD and four sticks and 10 bags of green leafy material - apparently marijuana. The police took the two people to the applicant's residence at Sunnybank; when they pulled up, the prosecutor said, four male persons ran from the house. The two vehicles the subject of the unlawful possession charges were found in the yard of the house and the applicant said, untruthfully, that he owned them. In fact each vehicle had been taken from outside a residence - one at Petrie and one at Strathpine - the previous evening. Some damage, valued at $777, had been done to one vehicle; there was also damage to the other, but the amount of it was not stated.

Property was found in the house which was admitted to have been, to the applicant's knowledge, stolen. That consisted of a portable television, a fan, a pair of shoes, two cameras, a baby capsule, a video and remote control and a stereo and remote control.

The applicant had one previous offence of dishonesty, namely stealing, when he was 17 years of age; the punishment was a fine of $75.00. He committed a number of other relatively minor offences such as using obscene language and hindering police, between the date of the stealing offence and those mentioned above. With respect to the drugs in his possession, mentioned above, the applicant was, on 20 January 1993, convicted of possession in the Magistrates Court, fined $1,000 and put on probation for two years.

The applicant's counsel informed the primary judge that the applicant lives with his de-facto wife, with whom he has been in a relationship for 3½ years, and 3 young children. He told the Magistrate that the $1,000 fine which we have mentioned had been converted to a fine option order and that the applicant was "cutting the fine out", presumably by performing community service. References as to the applicant's character were produced.

The court report which we have mentioned was made in June 1994 and dealt with the applicant's performance under the probation order made in the Magistrates Court in January 1993. The officer who made the report should have had a substantial opportunity to form useful opinions with respect to the character of the applicant. The report said that the applicant had been reporting consistently since January 1993, except for a period between August and October 1993 when he was participating in a landscaping course. The officer thought the applicant's attitude and motivation to improve himself and support his family were good. He described him, however, as being "a person of dull intelligence and trusting disposition". Examples of that were given. He also described him as being naive and as tending to defer to others "who he deems to have greater knowledge or authority...". The officer said that the applicant had recently been again visited by the police, who had found evidence of drugs on his premises; according to counsel below, the evidence consisted in cones being attachments to a bong used for smoking of marijuana. The applicant's counsel said that the applicant was fined $200 in respect of that offence, whereas the officer's report says that fine was $1,000. The officer recommended in part:

"Despite this new drug offence the writer believes that a community based order including Probation and/or Community Service would be appropriate if Mr Butterworth is convicted of the matters now before the court. This is due to his having a relatively short criminal history, his lack of violent offences and his positive attitude to Community Supervision".

With respect to the report, the judge said among other

things:
"I wonder how much frankness the courts are getting from

these officers. I say that not intending to necessarily criticise them, but they're stuck with these things being public knowledge these days and they're in a difficult situation".

His Honour made other observations suggesting that he was disinclined to accept the officer's opinion, with respect to the applicant's nature. The system of sentencing in our courts is such that ordinarily the judge does not converse with the prisoner, nor indeed hear him say anything of significance, unless a trial has been conducted. In our opinion, reports of the kind which were before the primary judge are potentially a valuable source of information about the prisoner, of an independent kind. What the judge has done here, with all respect, is to attach little or no importance to the reporting officer's substantial experience of the applicant's behaviour while on probation; his Honour appeared to take the view, necessarily a speculative one, that the officer had entirely misapprehended the nature of the person with whom he was dealing.

We can see no sound reason for rejecting the officer's opinion that the applicant had generally performed well with respect to the probation order made at the beginning of 1993, nor any reason why we should not attach weight to the important observations that the applicant is a person of dull intelligence, naive and (in effect) easily led. If the applicant is in truth a person of that sort, his rather dim prospects may not be improved by exposure to a concentration of bad example, in jail. Counsel for the applicant told the primary judge that the applicant had taken the blame for others with respect to the two cars. He said these were people known to the applicant who had brought the vehicles to his house and that the applicant could not himself drive a vehicle. As to the other property, the subject of the receiving charges, counsel said people the applicant "quite readily acknowledges were criminal associates, turned up with stolen property". The judge was told the applicant had asked that the stolen property be taken away, but it was not. Counsel said: "Eventually he gave in to temptation and used some of it...". The prosecutor produced no evidence to counter these assertions, some of which had been foreshadowed in the applicant's discussions with the police.

These eight offences of dishonesty, none involving any violence, were committed between the ages of 18 and 20. The applicant now aged 22 is, under the order which is challenged, sentenced to imprisonment for 6 months, having never been to prison before. At the time of commission of the offences he had never had any penalty other than a relatively small fine imposed upon him; when sentenced in the District Court he had completed most of a probation period, imposed after the offences with which the District Court was concerned were committed. We are told that the applicant has served 10 days imprisonment only, at the end of which period he was admitted to bail. It is preferable, in our opinion, that he, having had the experience of incarceration, not be returned to prison now. In the particular circumstances of the case it seems difficult to impose an appropriate penalty, since the applicant is already performing community service to work off the fines which have been imposed upon him, totalling $1,200. He has to support, or contribute to the support, of his de-facto wife and three little children. It may be that, as apparently the primary judge believed, the applicant will turn out to be a person who should not be given a further chance; but if he commits other offences he can be further dealt with in respect of these eight offences, under s. 126 of the Penalties and Sentences Act 1992. The practical effect of letting the probation order stand and setting the sentence of imprisonment aside is to defer consideration of the proper penalty for these eight offences until the applicant commits a further offence during the three year period of probation; and if he commits no such offence, to impose no sentence for the eight offences other than the probation order itself. We think that is the practical and just course.

The orders will therefore be:

1.Application granted.
2.Appeal allowed.

3.Sentence of imprisonment imposed below set aside; probation

order confirmed.