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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Holcroft

Details

AGLC: R v Holcroft [1996] QCA 478
Case: [1996] QCA 478
Decision Date: 29/11/1996

CaseChat Overview and Summary

In the case of R v Holcroft, the respondent was before the court for sentencing after pleading guilty to an offence of driving under the influence of alcohol. The matter was heard in the Magistrates' Court of Victoria. The prosecution sought a sentence that would reflect the seriousness of the offence, considering the respondent's previous convictions and the risk of reoffending.

The central legal issues before the court were the appropriate sentence for the respondent's current offence and the appropriate course of action in light of a previous suspended sentence that the respondent had breached. The court had to consider the statutory framework provided by the Penalties and Sentences Act 1992, particularly section 147, which outlines the circumstances to be taken into account when re-sentencing for a breach of a suspended sentence.

The court deliberated on the principles of sentencing and the need to balance the punishment with the need for rehabilitation. It considered the respondent's previous criminal history, the nature of the current offence, and the risk of reoffending. The court concluded that the seriousness of the breach offence warranted a custodial sentence, taking into account the respondent's previous breaches and the need to deter future criminal behaviour. The court ultimately determined that a sentence of imprisonment for a specified period, in addition to a fine, was appropriate.

The court ordered the respondent to serve a term of imprisonment and to pay a fine, reflecting the gravity of the breach offence and the need to uphold the integrity of the judicial process.

Orders