R v Dang

[1997] QCA 29

IN THE COURT OF APPEAL	[1997] QCA 029
SUPREME COURT OF QUEENSLAND

C.A. No.482 of 1996

Brisbane

[R. v. Dang]

THE QUEEN

v.

HOA DANG

(Applicant) Appellant

Fitzgerald P.
Davies J.A.

McPherson J.A.

Judgment delivered 7 March 1997

Joint reasons for judgment of Fitzgerald P. and Davies J.A.; separate reasons of McPherson J.A. concurring as to the orders made.

1.      APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.

2.      APPEAL ALLOWED.

3.      ORDER MADE BELOW SET ASIDE AND IN LIEU APPLICANT ORDERED TO SERVE PART OF THE SUSPENDED IMPRISONMENT, NAMELY A PERIOD OF 18 MONTHS.

4.      PREVIOUS PERIOD OF IMPRISONMENT (FROM 23 OCTOBER 1996 TO 1 NOVEMBER 1996) DECLARED TO BE IMPRISONMENT ALREADY SERVED UNDER THE SENTENCE NOW REQUIRED TO BE SERVED.

5.      THE BALANCE OF THE SUSPENDED SENTENCE (18 MONTHS) TO REMAIN SUSPENDED UNTIL EXPIRY OF THE OPERATIONAL PERIOD.

CATCHWORDS:	CRIMINAL LAW - SENTENCE - s.147 Penalties and Sentences Act 1992 - balance of suspended sentence.
Counsel:	Mr. A. Boe (Solicitor) for the (applicant) appellant Mr. M. J. Byrne Q.C. for the respondent
Solicitors:	Boe and Callaghan for the (applicant) appellant Queensland Director of Public Prosecutions for the respondent
Hearing Date:	5 February 1997

JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND DAVIES J.A.

Judgment delivered 7 March 1997

On 23 October last, a District Court Judge ordered the applicant to serve the whole of a
suspended sentence of three years imprisonment which had been imposed by him on 24 May

1995.  The applicant seeks leave to appeal against that order. The suspended sentence imposed in 1995 was for an offence of receiving sewing

equipment worth $10,000. It was found in the applicant’s home about ten days after it had been stolen from industrial premises. When sentenced in 1995 for this offence, the applicant had already been twice convicted for offences of dishonesty, once in 1983 for which he had been fined and once in 1991 for which, for several offences involving dishonesty, he was sentenced to two years imprisonment. He had also been convicted in 1986 for importing heroin, for which he had been fined.

Approximately nine months into the term of the suspended sentence a search of the applicant’s home revealed seven alfoil parcels containing white powder which, on analysis, were shown to contain a total of 492 grams of heroin in concentrations between 68.3% and 73.5% in the white powder. For this offence he was sentenced on 27 June 1996, in the Magistrates Court, by the imposition of a fine of $1,500. It was the commission of this offence which required the District Court to proceed under ss.146 and 147 of the Penalties and Sentences Act.

In proceeding under those sections the learned District Court Judge was obliged to consider all of the circumstances that had arisen since the suspended sentence was imposed. It was submitted that he had failed to do so, that accordingly the exercise of his discretion miscarried and that this Court should re-exercise that discretion in a way which requires the applicant to serve only part of the suspended sentence by way of an intensive correction order. It was pointed out that his Honour incorrectly stated that the applicant had been convicted of an offence connected with the injection of a drug in 1993 and that this error caused the exercise of his discretion to miscarry.

It is plain that his Honour was aware of the obligation which s.147(2) imposed on him.

He said:

"I must order you to serve the whole of the suspended sentence unless I am of the opinion that it would be unjust to do so in view of all the circumstances that have arisen since the suspended sentence was imposed. So I am restricted to looking at things that have happened since."

The applicant submits that before his Honour three circumstances, arising since the suspended sentence was imposed, were relied on. He concedes that the first of these, that the applicant became addicted to heroin about December 1995, having been introduced to it again by a friend, was referred to by his Honour. The second of these, the applicant’s efforts to rehabilitate, were not referred to by the learned District Court Judge. The information before the Court was that the applicant re-registered on a methadone programme on 17 May 1996, that he attended at Peel Street Clinic on a regular basis, that he was not intoxicated on presentation or had any observable fresh needle marks and that he was an exceptionally compliant client. His re- registration on the methadone programme was after he had been apprehended on the drug offence which activated this sentence, but before he had been convicted and sentenced in respect of that offence. He continued to attend the Clinic after that sentence had been imposed, but before the order the subject of this application had been imposed.

These circumstances were placed before his Honour and relied on in argument. It is likely that if his Honour had taken them into account, he would have referred to them. Although it is easy to be cynical about actions of the kind taken by the applicant after apprehension for a drug offence these circumstances were, in our view, circumstances which ought to have been taken into account by his Honour in exercising his discretion under s.147. Either his Honour failed to have regard to these circumstances or failed to appreciate their significance. This may have been because of the concentration in argument before him on the question whether the activating offence was merely or more than a trivial offence.

The triviality of the activating offence was the third circumstance relied on before his Honour. His Honour said that he could not regard the offence as trivial, having regard to a number of circumstances to which he referred. One of these was the 1986 conviction for importing heroin. Another was his mistaken reference to a drug offence in 1993. In fact, in 1993 a warrant had been issued for an offence of the kind to which his Honour referred, but he was never convicted of this offence. Despite his Honour’s error in this respect he was, in our view, correct in refusing to regard the activating offence as trivial. An offence of possession of heroin of the quantity referred to here cannot be regarded as trivial. On the other hand, it was plainly very much less serious than the offence which gave rise to the suspended sentence.

The learned sentencing Judge’s failure to have regard to or appreciate the significance of the applicant’s attempts to rehabilitate himself in respect of his drug addiction caused the exercise of his discretion under s.147 to miscarry. Accordingly, it is for this Court to re-exercise that discretion. In that event this Court should express the opinion that in view of those circumstances, it would be unjust to make an order under sub-s.1(b) of s.147 and that we should, instead, make an order under sub-s.1(c).

However, we would not accept, as the applicant contended, that that part of the sentence which should be ordered to be served should be less than 12 months and accordingly it is unnecessary to consider the further submission that it be served by way of an intensive correction order. That submission involves consideration of the nature of an order made under s.147 which, in the present circumstances, it is unnecessary to consider. The applicant should serve 18 months of his suspended sentence, as the prosecution effectively conceded.

We would accordingly grant the application, allow the appeal, set aside the order made below and in lieu order that the applicant serve part of the suspended imprisonment, namely a period of 18 months. We would also state that the applicant was held in custody in relation to proceedings for this offence and for no other reason from the 23rd day of October to the 1st day of November 1996, a period of eight days and declare that period to be imprisonment already served under the sentence he is now required to serve.

The balance of the suspended sentence, a period of 18 months, will remain suspended until the expiry of the operational period. That is because an order made under s.147 of the Penalties and Sentences Act 1992 alters a suspended sentence only to the extent specified in the order and consequently an order made under sub-s.(1)(c), in contrast to one made under sub- s.(1)(b), leaves part of the sentence suspended. See R. v. Holley, C.A. No.332 of 1996, 29 November 1996, per Lee J. at 22; R. v. Bowen, C.A. No.267 of 1996, 29 November 1996, per Lee J. at 11; R v. Holcroft, C.A. No.245 of 1996, 29 November 1996, per Fryberg J. at 11.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 7 March 1997

In May 1995 the applicant was sentenced to imprisonment for three years, suspended for a four years, for an offence of receiving that was committed in October 1993. The value of the property was substantial and the sentencing judge said he would have imposed a sentence of imprisonment for four years suspended after 12 months but for the fact that at the time of sentencing the applicant had already spent 12 months in prison on other charges that were not proceeded with.

On 7 February 1996 the appellant committed the further offence of possessing 0.492 of a gram of heroin for which he was fined $500 in the Magistrates Court on 27 June 1996. A consequence was to activate the sentence suspended in May 1995. The matter was brought before the original sentencing judge, who ordered that the applicant serve the whole of the suspended portion of the sentence.

Such a consequence is required by s.147(2) of the Penalties and Sentences Act unless the court is of opinion that it would be unjust to make such an order in view of all the circumstances that have arisen since the suspended sentence was imposed.

In the present case the learned judge considered that the activating conviction on
27 June 1996 was in respect of an offence that could not be characterised as “trivial”. It
is accepted that this was a relevant matter in exercising the discretion under s.147(2).
I am prepared to accept that, despite the small fine imposed upon the conviction
for that offence on 27 June 1996, the offence is not to be considered trivial. I am, with
respect, not inclined to regard the applicant’s efforts to rid himself of his drug addiction
as meriting much if any attention as a mitigating factor. The fact that those efforts were
not expressly mentioned by the judge in his sentencing remarks does not, to my mind,
demonstrate that he overlooked them. In any event, in my opinion, those efforts were
and are in the circumstances entitled to little weight. The applicant did not take steps to
register for treatment under the methadone programme until 17 May 1996, which was
some three months after commission of the activating offence but only a month or so
before he was due to appear in court on the charge that arose out of it.

On the other hand, I am inclined to think that ordering him to serve the full term of the suspended original three year term was a response that was disproportionate to the criminality of the activating offence even when considered in the context of the seriousness of the original offence itself. The activating offence was, it may be accepted, not “trivial” in itself; but, in the catalogue of such offences, it was not a serious instance of its kind. The heroin was, it was accepted by the prosecution in the Magistrates Court, intended by the applicant for his personal use. In the circumstances, it seems to me to have been excessive to require the applicant to serve the whole of the suspended period of the offence committed in October 1993.

The result is that the exercise of the discretion under s.147(2) is shown to have miscarried and it becomes the duty of this Court to re-exercise it. The application should be granted and the appeal allowed. In doing so, I agree that the appropriate order is that which is foreshadowed in the joint reasons of Fitzgerald P. and Davies J.A.