R v Holcroft

[1996] QCA 478

IN THE COURT OF APPEAL	[1996] QCA 478
SUPREME COURT OF QUEENSLAND

C.A. No. 245 of 1996

Brisbane

[R. v. Holcroft]

THE QUEEN

v.

STEPHEN MICHAEL HOLCROFT

(Applicant) Appellant

Fitzgerald P

Lee J

Fryberg J

Judgment delivered 29 November 1996

Separate reasons for judgment by each member of the Court. Fitzgerald P and Fryberg
J agreeing as to orders made; Lee J dissenting.

1.         APPLICATION FOR LEAVE GRANTED.

2.         APPEAL ALLOWED.

3.         ORDER OF THE DISTRICT COURT SET ASIDE.

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

CATCHWORDS:	CRIMINAL LAW - JUDGMENT AND PUNISHMENT - sentence - suspension of sentence - breach of suspended sentence - seriousness of breach offence - circumstances to be taken into account when re-sentencing - Penalties and Sentences Act 1992, s.147.
Counsel:	The Appellant appeared on his own behalf Mr B Reilly for the respondent
Solicitors:	The Appellant appeared on his own behalf. Queensland Director of Public Prosecutions for the respondent
Hearing Date:	11 September 1996

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 29 November 1996

The circumstances giving rise to this application for leave to appeal are set out in the reasons for judgment of Fryberg J. The material statutory provisions are the poorly drafted ss. 146 and 147 of the Penalties and Sentences Act 1992, which, despite the importance attached to the use of the words “may” and “must” in a statute by s. 32CA of the Acts Interpretation Act 1954, use those words at different points without discernible rational purpose: compare, for example, sub-ss. 146(2) and (7) of the Penalties and Sentences Act.

In the present case, it is not in dispute that an order under s. 147 was and is appropriate, and the essential question is whether the sentencing judge was correct in his conclusion that the applicant had not shown that “it would be unjust” to order him to serve the whole of the sentence of suspended imprisonment to which he was subject “in view of all the circumstances that [had] arisen since the suspended imprisonment was imposed”: sub-s. 147(2).

When a court is acting under s. 147, the starting point required by sub-s. 147(2) is that the full period of imprisonment which was earlier suspended should be ordered to be served unless the relevant circumstances make such a sentence unjust: cp. R. v. Marston (1993) 65 A.Crim.R. 595, 596. Formulating the question involved in sub-s. 147(2) by reference to sub-s. 147(1)(a) or (c) serves no useful purpose and can only serve as a distraction; a proposition that, since an order under sub-s. 147(1)(a) or (c) would be just, an order under sub-s. 147(1)(b) would be unjust misses the point unless the justice or injustice of the order under consideration is tested in the manner prescribed by sub-s. 147(2).

The circumstances to which the applicant pointed to establish that the order made by the sentencing judge under sub-s. 147(1)(b) was unjust were that, since sentenced to suspended imprisonment, he had performed a considerable number of hours of community service, had abandoned the use of drugs and become a husband and father, suggesting greater maturity, an increased sense of responsibility and a substantial degree of rehabilitation, and that the further offence which he had committed during the operational period of his suspended sentence of imprisonment was “relatively minor”, as was recognised by the sentencing judge.

However, his Honour seems to have thought that he could not take the nature or lack of seriousness of that offence into account as a material circumstance for the purpose of sub-s. 147(2). I do not agree. Literally, the further offence satisfies the terms of the sub-section, and both commonsense and policy considerations support the conclusion that the nature and circumstances of the offence which leads to an order under s. 147 will ordinarily be relevant to the nature of the order which is appropriate. For example, a serious offence, perhaps especially one of the same nature as the offence for which the sentence of suspended imprisonment was imposed, would operate to the disadvantage of the convicted person, while a trivial offence of a different character might have the opposite effect. Likewise, the extent to which the operational period of the suspended sentence has expired is potentially material.

It follows that, in my opinion, the sentencing judge erred in principle and this Court must determine for itself what order should be made.

The English decisions referred to by Fryberg J., which are based on statutory provisions which require “the facts of the subsequent offence” to be considered, indicate that it is a significant factor if the subsequent offence does not warrant a custodial sentence. A similar approach is warranted on my view of s. 147 of the Penalties and Sentences Act. However, plainly the nature and circumstances of the subsequent offence are not the only matters to be considered. All material circumstances which have arisen since the suspended sentence was imposed must be considered to decide whether it would be unjust to require the whole of the suspended sentence to be served. Those circumstances cannot be considered in a vacuum, divorced from other matters which bear upon the justice or injustice of an order that the whole of the suspended sentence be served. The period of suspended imprisonment involved is directly relevant to what is just, and other considerations, including the circumstances of the offence for which the sentence of suspended imprisonment was imposed and factors personal to the offender, might provide an essential context for a consideration of the circumstances which have arisen since the suspended sentence was imposed and a decision whether, in those circumstances, an order that the whole of the suspended imprisonment previously imposed be served would be unjust.

I agree with Fryberg J. that, in the present case, the order under sub-s. 147(1)(b) was unjust for the reasons which he has given. I am further of opinion that, whatever the ambit of the Court’s power in such circumstances, the order under sub-s. 147(1)(c) proposed by Fryberg J. is appropriate in this case for the reasons he has stated.

REASONS FOR JUDGMENT - W.C. LEE J.

Judgment delivered 29 November 1996

Fryberg J has set out relevant circumstances. It is necessary for me to include some additional matters.

Whilst it is true that the breach offence activates consideration of the suspended sentence, its relevance should not be so limited. I adhere to the approach adopted in R v Shuttleworth (27th September 1995, unreported) that the breach offence of which the applicant was convicted in the Magistrates Court on 4th May 1995 is capable of satisfying a requirement of s.147(2) of the Penalties and Sentences Act 1992 ("the Act"). See also R v Holley (C.A. No. 332 of 1996, delivered today). It literally falls within the words of that subsection as a circumstance which arose after the imposition of the suspended sentence and may be taken into account in considering whether or not the sentence referred to in s.147(1)(b) would be unjust.

That offence itself, when compared with the original offence which resulted in the suspended sentence, the circumstances surrounding its commission, the date it occurs during the operational period and the sentence imposed, are all factors to be considered, along with other relevant circumstances (if any) arising since the suspended sentence was imposed. This view is highlighted by an example of a case where a minor offence for which imprisonment may be imposed is committed close to the end of an operational period and which attracts no more than a minimal punishment or even an absolute discharge pursuant to s.19 of the Act. In the absence of other circumstances it would be plainly unjust to order that the whole of the suspended sentence, ordered perhaps nearly five years previously, be fully served.

However, this does not necessarily mean that a relatively minor offence will on its own always result in the conclusion that it would be unjust for an order to be made under s.147(1)(b): cf. Shuttleworth; see also R v Carrell (C.A. No. 372 of 1995, 1st February 1996, unreported). Also, whilst it may be a significant factor if the subsequent offence does not warrant a custodial sentence, it would be wrong to say that a suspended sentence can never be brought into operation because the subsequent offence attracted a non-custodial penalty: R v McElhorne (1983) 5 Cr.App.R.(S.) 53; R v Carrell.

The subsequent offence and the circumstances surrounding its commission are factors to be taken into account either in favour of or against an offender as the case may be. It may take on a more serious appearance when considered in the light of the offender's previous relevant criminal history, particularly of offences of the same kind, or his previous history might indicate nothing which would cause the Court to view the offence other than as a minor one. This does not conflict with the fact that an offender's previous history has already been taken into account by the sentencing judge when the suspended sentence was imposed: R v Muller; ex parte Attorney-General (C.A. No. 133 of 1995, 11th August 1995, unreported). It merely places the subsequent offence in proper context.

The learned sentencing judge said that the breach offence was "not a particularly serious offence". It consisted of unlawful damage to property at night and was committed on 17th May 1995, i.e. only some 5½ months after the suspended sentence of two years was imposed on 28th November 1994 and at a time when it might be expected that the stern warning given by the judge should have been uppermost in his mind. The applicant was then 20 years of age (D.O.B. 11th June 1974).

On 18th May 1995 he was convicted in the Magistrates Court at Toowoomba and was fined $600.00 and ordered to pay $225.00 restitution with four months to pay, in default one month imprisonment. The Magistrate in accordance with ss.146(3) and (4), duly committed the applicant to the District Court at Dalby on 10th July 1995 to be dealt with regarding the suspended sentence. Bail was granted but he failed to appear in the District Court when required and a bench warrant was issued at those sittings for his arrest.

The applicant was finally apprehended about a week before being brought before the District Court at Dalby on 9th May 1996, nearly a year after he was committed. He did not pay the fine or the restitution ordered by the Magistrate on 18th May 1995 and thereafter he remained in custody. Apparently he served the one month default imprisonment concurrently in part with the service of the whole of the two year suspended sentence imposed on 9th May 1996.

In his sentencing remarks, the learned judge said that the applicant had been treated fairly leniently in the past in relation to probation and community service orders in respect of serious offences of dishonesty. His Honour also referred to the strong remarks of the judge who imposed the suspended sentence, namely that "the suspended sentence is...hanging over your head and if there is any further trouble you will have to serve it...I would think, cumulative...additional to any sentence that you will receive for any further offence".

His Honour then referred to the substantial degree of rehabilitation and other factors in his favour, including abandonment of the use of drugs, his stable relationship and birth of a child with another one expected, and performance of the balance of 90 hours community service apparently imposed on 22nd June 1993. The learned sentencing judge then continued:

"The most unfortunate event that has occurred, however, is the fact that you failed to appear in relation to breach proceedings necessitating the issue of a bench warrant against you in July last year leading to your apprehension - I am told it was some time late in April - and you have been in custody for a few weeks since then because of that. That circumstance diminishes substantially, in my view, the submission that a substantial degree of rehabilitation has occurred, and I think that is so notwithstanding the submissions made to me concerning the affair or business between your de facto wife and her brother."

Even though the judge formed the view that he could not take the breach offence into account in considering the question of whether it would be unjust to make an order pursuant to s.147(1)(b), His Honour said that had it not been for the necessity to issue the warrant for his arrest, he would have come to a contrary view in all of the other circumstances which arose since the suspended sentence was imposed. The whole of the suspended sentence was then ordered to be served.

At the hearing before the sentencing judge, it was submitted on the applicant's behalf that the Court could either extend the operative period pursuant to s.147(1)(a) or order that part only of the sentence be served pursuant to s.147(1)(c). (Record p.31 L48- 60, R36 L32-37). Before this Court the applicant was unrepresented and submitted to similar effect, viz that it was within the sentencing judge's power to extend the operational period or to order that only 12 to 18 months of the two years' suspended sentence be served. (Transcript p.4 L45-55).

In reply (transcript 12) the applicant also referred the court to R v McElhorne, a full transcript of which appears in the bound record and which he had obviously read. That case had also been specifically directed to the sentencing judge (R32). In that case, the full suspended sentence had been reactivated for a very minor offence. On appeal, that order was set aside and no order was made that the offender serve any part of the suspended sentence, nor was any order made at all in respect of it. Implicitly, it must be taken that the applicant, as a layman, has raised such an option for consideration.

Had the sentencing judge formed the opinion contemplated by s.147(2), s.147(1)(a) and s.147(1)(c) would then have arisen for consideration. Section 147(1)(a) authorises the extension of the operational period for up to one year from the making of the order. As at 9th May 1996 the two year operational period imposed on 28th November 1994 had less than 12 months to run. It was due to expire on 28th November 1996, so such an order was within power: cf. Shuttleworth and R v Holley, although if made, it would have extended the operational period only until 9th May 1997, a little over five months which would not have been sufficient punishment. The alternative under s.147(1)(c) did not arise because His Honour did not first form the opinion under s.147(2). The question is whether or not His Honour erred in not forming that opinion.

In this respect, I agree with the reasons of Fryberg J that His Honour erred in concluding that he could not take into account the breach offence itself. This being so, I agree that this Court is entitled to reconsider the matter afresh, although in the result, I am of the view that the ultimate conclusion of the sentencing judge has not been shown to be wrong.

His Honour said that it was not a matter for him to consider whether the term of imprisonment initially imposed was appropriate. In considering the requirements of s.147(2), he ignored the duration of the suspended sentence initially imposed. His Honour was not sitting on appeal from that initial conviction or sentence and accepted it as properly made: cf. R v Carrell per Fitzgerald P; R v Holley per de Jersey J. This is quite correct although the length of the suspended sentence may arise for consideration in the light of circumstances arising since it was imposed, if the opinion is arrived at that it would be unjust to order that he serve the whole of that term.

The overall philosophy of the Act dealing with suspended sentences is clear enough despite some difficulties in interpretation. These provisions in Part 8 of the Act comprise an extension of the longstanding provisions of s.656 of the Criminal Code dealing with conditional suspension of punishment on first conviction. That provision was repealed when the Act came into operation in 1992. In R v Rosser; ex parte Attorney-General [1980] Qd.R. 462, it was said that the section was intended to apply only in cases where imprisonment was thought to be appropriate. So also with Part 8 of the Act which is not limited to first offenders.

A prison term is therefore imposed because it is perfectly justified, but its suspension, in whole or in part, because of all circumstances then prevailing, is conditional upon the offender mending his ways and leading a law abiding life by not committing offences punishable by imprisonment. Section 144(5) provides that the Court must state an operational period during which the offender must not commit another offence punishable by imprisonment "if the offender is to avoid being dealt with under s.146 for the suspended sentence". If he complies with this condition for the specified period, he is relieved from any punishment for the original offence.

However, if an offender, subject to a suspended sentence of imprisonment, commits any offence punishable by imprisonment and thereby breaches the condition which relieved him from the necessity of serving the original sentence imposed, but suspended, this is the trigger which activates breach proceedings, leaving little discretion in the sentencing Court: R v Carrell per Pincus JA. Prima facie the offender will be ordered to serve the whole of the sentence suspended, subject to the exception provided in s.147(2) where applicable. The crux of the exception is not the period of the sentence originally suspended. It could be any period up to five years: s.144(1). What is important are the circumstances in mitigation which have since arisen and which would render it unjust for the offender to serve the whole of the suspended term in prison which he would have served had it not been for mitigating circumstances prevailing when it was imposed. It is only in this context that the length of the original suspended sentences arises for consideration under s.147(2). If the opinion is formed that it would be unjust, then s.147(1) provides two other alternatives in s.147(1)(a) or s.147(1)(c).

This view of the scheme, which is not identical to the schemes prevailing in South Australia and in England, appears to be supported by authorities in each of those jurisdictions. These are set out in the reasons of Fryberg J: R v Marston (1993) 65 A.Crim.R. 595 at p.596, approving the statement of King C.J in R v Buckman (1987) 47 S.A.S.R. 303 at p.304, and again at 596-7. It was there made clear that non-revocation of suspended sentences tends to undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offenders. In R v Moylan [1970] 1 Q.B. 143 at 146-7, the Court of Appeal said that the activation of a suspended sentence shall be the normal consequence of committing a further offence punishable by imprisonment. Parliament intended that that course should follow unless it was unjust that those consequences should ensue. There is no reason to conclude that the Queensland legislation has any different purpose.

However, it is not infrequently submitted before sentencing judges and indeed before the Court of Appeal (and implicitly in this case by the applicant's specific reference to the transcript in R v McElhorne - he appeared in person) that there remains a broad residual discretion whether or not to act under s.147 at all by virtue of the word "may" in the opening lines of s.147(1): R v Selwood, (Lee J, 18th October 1996, unreported); R v Holley. Those submissions are based on s.32CA(1), (3) of the Acts Interpretation Act 1954, s.145 of the Act, and the change in the use of the words "must" and "may" in various provisions: s.146(1) - must, s.146(2) - may, s.146(7) - must, s.147(1) - may, and s.147(2) - must.

However, this matter came before the sentencing Court via s.146(3), (4), and s.146(7), which, because of the words "must" appears to make it mandatory for the Court to deal with the offender under s.147, so that in so dealing with him, the Court's discretion envisaged by the word "may" in s.147(1), is apparently limited to an exercise of a choice between subparagraphs (a), (b), (c), subject of course to the requirements of s.147(2) which provides that an order under s.147(1)(b) "must" be made if the relevant opinion is not formed. Use of the word "may" in s.146(2), where that route is applicable, is difficult to understand: see the discussion in R v Holley.

It may be noted that there is no provision in s.147 similar to that in s.23(1)(d) of the Powers of Criminal Courts Act 1973 (UK) which expressly confers an additional option of making no order at all as well as other options. See also Criminal Justice Act (NZ) s.21A. These provisions have no counter-part in Queensland. If it is the intention of the legislature that there should be such a discretion, this should be specifically provided for. I proceed on the basis that the only provisions requiring consideration are s.147(2), and, depending upon whether or not the necessary opinion was formed under s.147(2), s.147(1)(b), or s.147(1)(c).

In addition to the fact that the breach offence was "relatively minor" for the reasons stated by the sentencing judge, there are several other factors to which His Honour referred and are outlined above. On the other hand, just as the breach offence is itself a circumstance which may legitimately be taken into account as having occurred since the suspended sentence was imposed, so also was the delay of one year in his being dealt with which was due to his fault. He attempted to avoid being dealt with by breaching bail granted by the Magistrate with respect to his committal to the next District Court sittings pursuant to ss.144(3), (4), for the specific purpose of being dealt with for the breach offence. He did not voluntarily surrender, but was arrested pursuant to the warrant. He simply attempted to escape justice.

As the learned sentencing judge found, this was not a factor which operated in his favour but quite to the contrary when considering the test under s.147(2) in all of the prevailing circumstances. His Honour concluded that the explanation for the subsequent failure to appear was that the applicant knew that he would go to jail if he did appear and that his wife would be left unprotected in respect of some dispute concerning earlier treatment of her by her brother. As Fryberg J points out, the applicant's explanation before the sentencing judge and before this Court as to why he failed to appear was unconvincing.

Of some note was the fact that the applicant had previously breached his bail and on 25th November 1992 he was convicted and fined $250.00 converted to a fine option order resulting in an order that he perform 40 hours community service. Also he had on two previous occasions been granted probation and ordered to perform community service in respect of serious offences. On 22nd June 1993, the District Court at Emerald granted probation of 2 years and ordered him to perform 140 hours of community service. On 30th July 1993 the Magistrates Court, Emerald, granted probation for 3 years and ordered him to perform 100 hours of community service. On 9th August 1993 he was brought before the Magistrates Court for having broken the fine option order imposed on 25th November 1992 in respect of his breach of bail. No action was taken. Then on 4th November 1994 he was dealt with by the Magistrates Court, Dalby, for a breach of a community service order imposed by the Magistrates Court on 30th July 1993 involving 100 hours of community service and was convicted and fined $800.00 with restitution of $259.00. All Magistrates Courts' probation and community service orders were revoked and he was dealt with for the original offences on 4th November 1994. On 28th November 1994 he was again charged with breaching probation and community service orders imposed by the District Court on 22nd June 1993. The probation order was revoked by the District Court, but not the 100 hours community service order which remained. The result was the suspended sentence of 2 years imprisonment.

When probation orders are granted, one condition is that the offender must not commit any breach of the law during their existence, and offenders are warned accordingly, just as they are when a suspended sentence is ordered. Such warnings have had little effect in this case.

His other criminal history need not be referred to, but the above history demonstrates a wanton disregard of orders by the Court and particularly those under which bail was granted, which means that his breach of bail granted 18th May 1995 by his failure to appear in the District Court to which he was committed on 10th July 1995 for the express purpose of being dealt with for the suspended sentence, takes on a more serious appearance. He has breached trust on numerous occasions. His criminal history, which was before the sentencing judge on 28th November 1994, is not a "new" circumstance. It may nevertheless be used to place his later conduct in proper context. His Honour correctly weighed the various matters in the balance and declined to form the opinion under s.147(2).

Having considered all of the relevant circumstances, it cannot be said that the sentencing judge was incorrect in failing to form the opinion that it would be unjust if the applicant was ordered to serve the whole of the period of imprisonment suspended on 28th November 1994. In my opinion the order of the sentencing judge should be affirmed and the application dismissed.

REASONS FOR JUDGMENT - FRYBERG J.

Judgment delivered 29 November 1996

The applicant in person seeks leave to appeal against an order made in the District Court on 9th May 1996 that he serve the whole of the suspended sentence imposed upon him in that court on 28th November 1994. His application was the first of three matters involving the interpretation of ss.146 and 147 of the Penalties and Sentences Act 1992 ("the Act") which were heard on successive days by differently constituted benches of this Court[1]. The grounds of this proposed appeal are that the sentence imposed was manifestly excessive in all the circumstances and that in view of all the circumstances it was unjust to order the applicant to serve the whole of the suspended sentence.

The applicant's sentencing history can be divided into five stages:

Stage 1: November 1992. The applicant was convicted in the Magistrates Court of a breach of the Bail Act 1980. A fine option order for 40 hours community service was made.

Stage 2: June - July 1993. The applicant was convicted in the District Court on four charges of stealing, two charges of unlawful use of a motor vehicle, one charge of break enter and steal and one charge of breaking and entering with intent. A few weeks later he was convicted in the Magistrates Court on one charge of breaking and entering with intent, one of stealing and one of possession of property suspected of being stolen. The District Court awarded probation for two years and 140 hours community service; the Magistrates Court ordered probation for three years and 100 hours community service. All but the last of these offences were committed during a five day period in August 1992. The possession of stolen property offence was committed in November 1992. Stage 3: November 1994. The applicant was convicted of entering a dwelling house with intent, stealing and false pretences. All offences were committed in early July 1993. The applicant was fined $600.00 on all charges. At the same time he was convicted of breaching the community service order imposed by the Magistrates Court at stage 2 and was fined $800.00 on the original offences. The Magistrates Court probation and community service orders were revoked. Later that month he was charged before the District Court with breaching the probation and community service orders imposed by the District Court at stage 2 by failing to report as directed. The probation order was set aside but the community service order was allowed to stand. The applicant was resentenced to imprisonment for two years, wholly suspended, with an operational period of two years.

Stage 4: May 1995. The applicant was convicted in the Magistrates Court of unlawful damage to property and fined $600.00. He was committed to the District Court in July that year in relation to the breach of suspended sentence.

Stage 5: May 1996. The applicant was ordered by the District Court pursuant to s.147 of the Act to serve the whole of the suspended sentence imposed at stage 3. This order is the subject of the present application.

[1]              The others were Attorney-General v Holley heard on 12th September 1996 and R v Bowen heard on 13th September 1996.

Sections 146 and 147 of the Act provide as follows:

"Consequences of committing offence during operational period

146. (1) A court must proceed under this section if -

(a)

the court -

(i)	convicts an offender of an offence for which imprisonment may be imposed; and
(ii)	is satisfied that the offence was committed during the operational period of an order made under section 144; or

(b)

an offender is otherwise before the court and the court is satisfied that -

(i)	the offender was convicted, in or outside Queensland, of an offence for which imprisonment may be imposed; and
(ii)	the offence was committed during the operational period of an order made under section 144.

(2) If the court mentioned in subsection (1) has like jurisdiction to, or is of higher jurisdiction than, the court that made the order, the first court may deal with the offender under section 147 for the suspended imprisonment.

(3) If -

(a)	the order was made by a court other than a Magistrates Court; and
(b)	the court mentioned in subsection (1) is a Magistrates Court;

the Magistrates Court must proceed under subsection (4).

(4) The Magistrates Court mentioned in subsection (3) must -

(a)	commit the offender to custody to be brought; or
(b)	grant bail to the offender conditioned to appear;

before a court of like jurisdiction to the court that made the order.
...
(7) If the offender comes before a court under subsection (4) or (6), the
court must deal with the offender under section 147 for the suspended

imprisonment.

Power of court mentioned in s 146
147. (1) A Court mentioned in section 146(2), (4) or (6) that deals with the

offender for the suspended imprisonment may -

(a)	extend the operation period for not longer than 1 year from the making of the order under this subsection; or
(b)	order the offender to serve the whole of the suspended imprisonment; or
(c)	order the offender to serve the part of the suspended imprisonment that the court orders.

(2) The court must make an order under subsection (1)(b) unless it is of the opinion that it would be unjust to do so in view of all the circumstances that have arisen since the suspended imprisonment was imposed.

(3) If the court is of the opinion mentioned in subsection (2), it must state
its reasons."

When the Magistrates Court convicted the applicant at stage 4, it was a court which satisfied the requirements of s.146(1)(a) of the Act. That subsection thereupon obliged it to proceed under s.146. Since the requirements of s.146(3) were satisfied, the Magistrates Court was obliged to proceed under s.146(4). It did so. When as a result of its order the applicant came before the District Court, that court was obliged by s.146(7) to deal with him under s.147. It did so. The sentencing judge was unable to form the opinion referred to in s.147(2) and therefore made an order under s.147(1)(b). The second ground of appeal challenges his Honour's failure to form that opinion.

I have expressed my view of the nature of an appeal regarding the formation of an opinion under s.147(2) in R v Bowen:

"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)."

Before the sentencing judge, a question which achieved some prominence was whether his Honour could take into account the fact that the breach offence was a relatively minor offence (as he found it to be). On that point, his Honour said:

"...it is not really a primary concern of the Court that the offence which you committed punishable by imprisonment was not an offence of dishonesty and not a particularly serious offence.

I think the Court is entitled, however, to regard the circumstances of that offence as falling into the general circumstances that have arisen since the suspended imprisonment was imposed and therefore the circumstances of that offence can indirectly be taken into account in considering whether or not it would be unjust to order you to serve the whole of the suspended imprisonment."

It is not clear precisely what his Honour meant by "primary concern" and "indirectly be taken into account" in that passage. However some indication of his Honour's approach may be gained from a remark which he made to counsel for the applicant shortly before he commenced sentencing:

"Unfortunately, I don't really think this legislation would enable me to take into account as one of the circumstances that the offence for which imprisonment may be imposed was itself a relatively minor offence because it is simply the fact that it is an offence for which imprisonment may be imposed which brings into existence the duty to proceed under ss.146 and 147."

In my judgment that is not a correct statement of the law in Queensland. I have explained my reasons for this view in R v Holley, and I adhere to what I have said there. Under s.147, the nature of the breach offence and its seriousness can if relevant be taken into account in forming the opinion described in s.147(2).

From the passage of his sentencing remarks quoted above, it seems to me that his Honour did not apply this view of the Act. For that reason, I think his judgment should be reconsidered.

When a court is dealing with a matter under s.147(1), the first issue to which it must turn its attention (once it is satisfied that the opening words of the section apply to the case) is whether s.147(2) compels the court to proceed under s.147(1)(b). That requires an examination of whether the court holds the opinion that to apply that paragraph would be unjust in the nominated circumstances.

In 1993 the South Australian Court of Criminal Appeal approved this dictum about a comparable provision in South Australian law:

"'There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non-law-abiding ways. The court will not lightly interfere with the ordinary consequence of a breach of the recognisance.'"[2]

[2]              R v Marston (1993) 65 A.Crim.R. 595 at p.596, approving the statement of King C.J. in R v Buckman (1987) 47 S.A.S.R 303 at p.304.

Although the South Australian legislation was not identical to the present Queensland legislation, that passage is applicable to s.147. The court continued:

"It is of great importance that the courts adhere to that principle. Departure from it by the non-revocation of suspended sentences tends to undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offenders.

Nevertheless, as Buckman's case clearly recognises, and as, indeed, the section recognises, there are circumstances in which it is proper to refrain from revoking the suspension of the sentence."[3]

[3]              Ibid at pp.596-7.

In my judgment, that passage identifies the correct approach to s.147(2).

Before us, counsel for the Crown conceded that the nature and seriousness of the breach offence were circumstances properly to be taken into consideration in this case. Those circumstances, according to the statement of the applicant's counsel below, were:

"Now, the circumstances which gave rise to the charge of wilful damage was that he was in a hotel with his wife. They were due to expect their first child and his sister-in-law told him that his de facto wife had been sleeping around. In effect there was casting doubt on the paternity of the child, quite apart from the breach of trust in faith. An argument ensued between himself and his de facto wife about this and, indeed, her sister. As a result of the commotion he was forcibly ejected from the hotel and immediately after being placed outside in frustration and distress of the situation he kicked a panel in the door, and that was the wilful damage with which we are concerned here today."

His Honour observed that the offence was not one of dishonesty (that is, was of a different nature from the original offence) and was "not a particularly serious offence". As I have already observed, the applicant's punishment for it was a fine of $600.00.

The weight which should be given to the circumstance that the breach offence is comparatively trivial or does not attract imprisonment has been considered in a number of cases in England. There, in 1969, the relevant part of the Criminal Justice Act 1967 provided:

"...a Court shall make an order under paragraph (a) of this subsection unless the Court is of opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed, including the facts of the subsequent offence, and where it is of that opinion the Court shall state its reasons."[4]

[4] Paragraph (a) had a similar effect to s.147(1)(b) of the Penalties and Sentences Act 1992.

In R v Moylan, the Court of Appeal said:

"We think it quite clear that the court may properly consider as unjust the activation of a suspended sentence where the new offence is a comparatively trivial offence and, particularly, where it is in a different category from that for which the suspended sentence was imposed. It is trite to say that every case depends on its own circumstances, and so it does.

But there must be many instances in practice where a relatively minor offence committed in drink can under the terms of section 40 of the Act of 1967 give rise to the activation of a heavy suspended sentence, and we recognise that it is proper for the court considering the matter to regard this as unjust in an appropriate case. Equally we think that section 40 in its terms indicates that the activation of a suspended sentence shall be the normal consequence of committing a further offence punishable with imprisonment. The words I have read make it clear that Parliament intended that that course shall follow unless it is unjust that those consequences should ensue. We think it right, therefore, to say that in this court we should be hesitant to interfere with the order of the court which has followed the line laid down by the statute and has decided to make an order under section 40(1)(a), namely, to put the suspended sentence into effect unaltered."[5]

[5] [1970] 1 Q.B. 143 at pp.146-7.

The applicant also referred us to R v McElhorne[6] and R v Brooks[7], cases referred to the sentencing judge by his counsel below. At the time the latter was decided the provision quoted above had been reenacted as part of s.23 of the Powers of Criminal Courts Act 1973[8]. The Court of Appeal said:

[6]              (1983) 5 Cr.App.R.(S.) 53.

[7]              (1991) 12 Cr.App.R.(S.) 756.

[8]              By an amendment in 1982, the words "which have arisen since the suspended sentence was passed" had been omitted from the statute. However that would make no difference to the approach to be taken when the breach offence is comparatively trivial.

"This Court has now held on several occasions, to at least one of which Mr. Joyce referred us, that the fact that a subsequent offence does not warrant a custodial sentence is a strong argument for not activating the suspended sentence. That is apparent from, among other, the following authorities: Cline (1979) 1 Cr.App.R.(S.) 40, McElhorne (1983) 5 Cr.App.R.(S.) 53, and Jagodzinski (1986) 8 Cr.App.R.(S.) 151.

As those authorities indicate, this is not a matter of principle but a matter of strong argument for counsel when mitigating in such a case, either at first instance or by way of appeal.

Whilst the argument is particularly strong when a later offence is of a different character from the earlier one as well as being comparatively trivial, as in the case of Dobson (1989) 11 Cr.App.R.(S.) 332, it is not confined to such a case."[9]

[9]              R v Brooks (1991) 12 Cr.App.R.(S.) 756 at p.759.

The applicant urged a number of other considerations in support of the contention that it would be unjust in the circumstances which have arisen since the suspended sentence was imposed to make an order under s.147(1)(b). As the learned sentencing judge observed, they were collectively matters designed to demonstrate that there had been a substantial degree of rehabilitation since the imposition of the suspended sentence. He has performed a considerable number of hours of community service and he claims that he has become a responsible husband and father, abandoning the use of drugs. I agree with the sentencing judge that the force of these factors is diminished by his initial failure to appear in the District Court for the s.147 proceedings. A warrant for his arrest had to be issued and in the result the proceedings were delayed by 12 months. Presumably he committed an offence under the Bail Act 1980. His explanation of these events to this Court was unconvincing. All of these matters must be placed in the balance.

Another factor which in my view it is legitimate to take into consideration is that the suspended sentence is of two years duration. That fact must be considered because the words "unjust to do so" in s.147(2) require consideration of whether it would be unjust to order the offender to serve the whole of the suspended imprisonment. The emphasis on the word "whole" is warranted, since one of the alternatives in s.147(1) is an order that he serve part of that imprisonment. One legitimate approach to the formation of the opinion referred to in s.147(2) is therefore to consider whether in the circumstances it would be just to make an order under s.147(1)(c) or for that matter, to take any other action open under s.147(1). As I have said in R v Bowen, "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 draw".

In this case, in the light of the circumstances which have arisen since the suspended sentence was imposed, it seems to me that it would be unjust to make an order under s.147(1)(b). In my view, the proper course is to order is that the applicant serve nine months of the suspended sentence. That course gives due weight to the policy of the Act, as well as to the circumstances of the case.

I would order that the application for leave be granted and the appeal be allowed. I would set aside the order of the District Court made on 9th May 1996 and in lieu thereof order that the applicant serve nine months of the suspended imprisonment imposed upon him by the District Court on 28th November 1994. The remaining 15 months should continue to be suspended for the balance of the operational period, which expires on 28th November 1996. I would, if there were power, also extend that operational period; but s.147(1) permits only one of the orders described to be made. It would be desirable, when the Act is reviewed, for consideration to be given to empowering the courts to make orders under s.147(1)(a) in addition to orders under (b) or (c).