R v Holley, ex parte Attorney-General

IN THE COURT OF APPEAL	[1996] QCA 480
SUPREME COURT OF QUEENSLAND

C.A. No. 332 of 1996

Brisbane

[A-G v Holley]

THE QUEEN

CHRISTOPHER ADAM HOLLEY

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

de Jersey J
Lee J
Fryberg J

Judgment delivered 29 November 1996

Separate reasons for judgment of each member of the Court. de Jersey and Lee JJ concurring as to the orders made, Fryberg J dissenting

APPEAL ALLOWED. SENTENCE IMPOSED BELOW SET ASIDE. IN LIEU, ORDER THAT THE RESPONDENT SERVE FOUR MONTHS OF THE SUSPENDED SENTENCE, LESS THE PERIOD IN CUSTODY FROM 8TH JULY 1996 TO 15TH AUGUST 1996

CATCHWORDS:	CRIMINAL LAW - SENTENCE - SUSPENDED IMPRISONMENT - further offence - whether unjust to order service of suspended imprisonment - circumstances to be taken into account - whether minor offences not punishable by imprisonment to be taken into account - when operational period may be extended - ambit of discretion - Penalties and Sentences Act 1992, ss.146, 147.
R. v. Shuttleworth (Lee J. 27 September 1995, unreported) approved. STATUTES - INTERPRETATION - when "may" means "must" - *Acts Interpretation Act* 1954, s.32CA - Penalties and *Sentences Act* 1992, ss.146, 147.
Counsel:	Mr P Rutledge and Mr R Swanwick for the appellant Mr W. Sofronoff QC and Mrs D. Richards for the respondent
Solicitors:	Queensland Director of Public Prosecutions for the appellant Legal Aid Office for the respondent
Hearing Date:	12, 19 September 1996

REASONS FOR JUDGMENT - de JERSEY J

Judgment delivered 29 November 1996

This appeal by the Attorney-General raises two questions in relation to the construction of s.147 of the Penalties and Sentences Act.

On 23 June 1995 the respondent was sentenced in the District Court, for offences of house-breaking and unlawful use of a motor vehicle, and three of stealing. The sentence

imposed was 18 months' imprisonment, suspended for 3 years. When aged 21 years, he

broke into a house at Toowoomba. Its owners were away, on their Christmas holidays. He

stole property worth $43,240, of which only $29,510 worth was recovered, and as well, took

the family car which he then "wrote off" while joy-riding around Brisbane. The owner, and

the insurer, ended up out-of-pocket. When he was sentenced, the learned judge said this:

"In view of the number of offences and the value of the property involved a

sentence of imprisonment is justified, in my opinion.

On each count I sentence you to imprisonment for a period of 18 months. I order that the sentences be served concurrently. I suspend the operation of the sentences for a period of three years. I state the operational period during which you must not commit another offence punishable by imprisonment if you are to avoid being dealt with under section 146 of the Penalties and Sentences Act for the suspended sentence is three years.

You keep your nose clean for three years you walk clear. You do something stupid in the next three years you can come and serve your 18 months. You please yourself. It is up to you."

The respondent was subsequently charged with having committed burglary and stealing offences over the period 31 December 1995 to 6 January 1996, and granted bail. Those charges have not yet been dealt with. He did, however, breach the conditions of his bail, and was on 1 May 1996 consequently sentenced in the Magistrates Court to 21 days' imprisonment, which he served. He remains on remand in respect of the other charges, as yet undetermined. Proceedings were then taken in the District Court with a view to the activating of the 18 months period of imprisonment imposed on 23 June 1995, because of the commission during the 3 year operational period of the further offence (for which imprisonment could be imposed - s.146(1)(a)(i)) constituted by the breach of the Bail Act.

The learned judge said that he did not think that the breach was "sufficiently serious to warrant any other order" than the one he imposed, which was to extend the operational period of the suspended sentence by 6 months. The Attorney-General appeals, essentially on the ground that, in terms of s.147(2), the learned judge could not have concluded that to activate the suspended term of imprisonment under subsection 1(b) would be "unjust ... in view of all the circumstances that have arisen since the suspended imprisonment was imposed". The only "new" circumstance put before the judge, which could arguably be relevant, was the conviction of the respondent for the breach of his bail, which attracted the 21 days' imprisonment. It was submitted for the Attorney that that circumstance alone could not be relevant for purposes of the section. (In fact, there were other relevant "new" circumstances - a conviction on 16 February 1996 for taking shop goods away (on 27 December 1995), for which he was fined $150; and his conviction on 6 March 1996 for breach of a fine option order made on 31 October 1995. Those matters do not alleviate the respondent's position, so it is appropriate to focus now on the particular matter relied on before the judge.)

I set out s.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 operational 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."

Read literally, subsection (2) could comprehend the subsequent offence, because it was a circumstance which arose after the imposition of the suspended imprisonment. The contrary argument was that the only relevance of the subsequent offence was to activate breach proceedings (s.146). It is however difficult to see why that should lead to the exclusion of the circumstance of the subsequent offence from the range of potentially relevant fresh circumstances. The further offence might be of a comparatively minor nature (eg. a traffic offence), committed towards the end of the operational period, rendering it plainly unjust - in ordinary circumstances - that the whole of the suspended term then have to be served. That sort of possibility emphasises the desirability of not departing from a literal construction of the subsection. I therefore conclude that the learned judge was entitled to have regard to the circumstance of the commission of the subsequent offence.

The judge's response was that that offence was not sufficiently serious to warrant anything but an extension of the operational period by 6 months. His power to make that sort of order rests in s.147(1)(a). One notes, however, that such an extension is to operate "from the making of the order under this subsection". Those are clear words, and the practical result is to confine the utility of subsection (1)(a) to situations where, at the time of the 'breach' proceedings, the originally set operational period has less than a year still to run. (Compare the view expressed by Lee J in R. v. Shuttleworth, unreported, 27 September 1995.) When the learned judge made his order on 8 July 1996, the operational period of 3 years prescribed on 23 June 1995 still had almost 2 years to run. The order made by the judge was therefore of no effect. The judge plainly intended to add 6 months to the 3 year period prescribed on 23 June 1995: the order he made cannot achieve that result. Because of that apparent misapplication of the provision, one should conclude that the sentencing discretion miscarried. This court must therefore itself consider what penalty should now be imposed.

The question is whether the breach of bail, being the principally relevant new circumstance for purposes of s.147(2), would render it unjust that the respondent be required to serve the 18 month term of imprisonment imposed on 23 June 1995. The learned judge's apparent view was that that was not sufficiently serious to lead to that result. We are not however bound to that view, in the exercise of our own discretion to determine the appropriate penalty, although his view should be accorded appropriate weight.

The court is obliged to ("must") lift the suspension unless that would, in the court's opinion, be unjust in view of subsequent circumstances. Where the significant subsequent circumstance is the further offence, the court should consider its seriousness, and its position in time within the operational period. A trivial offence committed late in the period plainly should not ordinarily activate the imprisonment: perhaps a trivial offence ordinarily should not, whenever committed. But if the offence is not trivial, and is committed while the operational period still has a substantial term to run, and while the jeopardy involved in the suspended penalty should be uppermost in the offender's mind, it is difficult to see why a court should see it as 'unjust' that the offender be required to serve the suspended term.

Mr Sofronoff QC, who appeared for the respondent, stressed that the "breach" offence here, the breach of bail, was different in kind from the offences which attracted the suspended term. But the particular species of subsequent offence is not necessarily of great materiality: the principally relevant circumstance is that, having been given the warning and placed in the jeopardy associated with the suspension, the offender re-offends at all. He also emphasized, as relevant background, the respondent's young age and behavioural problems. They are, of course, not 'new' circumstances for purposes of s.147 and were taken into account by the sentencing judge on 23 June 1995, although they could nevertheless be relevant to an assessment of the significance of the subsequent circumstance. Finally, he pointed to the respondent's having been penalized for the breach of bail, through the 21 days' imprisonment. That is so, but the issue now is whether he should be effectively penalized for the offences for which he was sentenced to imprisonment on 23 June 1995, having breached the condition which relieved him of the need to serve the term. Mr Sofronoff's associated point was that it was not a case where the respondent "ran away", as he put it, to avoid court proceedings: he simply did not "turn up" to answer his bail. I do not find that distinction significant.

At the conclusion of the hearing, we raised with Mr Sofronoff whether any further matter of mitigation could be advanced to explain the breach of bail. In response, we were provided with an affidavit by a law clerk who conferred with the respondent prior to his being dealt with on 8 July 1996 (when he was dealt with for the breach). In that affidavit, the deponent recounts what the respondent then told him, essentially that he had been "unaware" of the need to answer his bail by attending court on 19 January 1995, so did not appear, and on 1 May 1996 pleaded guilty to having breached his bail "on the advice of the duty lawyer". This further information adds little to what we were told by Mr Sofronoff. It may be that it was a perception of its lack of significance which led to its not being put before the sentencing judge on 23 June 1995.

The Crown's attitude has varied, from accepting the learned judge's rather token 6 month extension (if considered within power), to urging that the court proceed under s.147(1)(b) - should the 6 month extension be considered ineffectual. I turn now to the way in which I consider the discretion should now be exercised.

In my respectful view, it is difficult to regard the breach of the Bail Act as trivial, or as less than serious. It must also be appreciated that the breach of bail is a separate offence, and that any subsequent acquittal on the charges leading to the bail, should that occur, would not detract from that feature. The breach of bail was committed following a clear warning by the judge who suspended the sentence on 23 June 1995 as to the possible consequence of further unlawful activity. It was a breach which itself attracted 21 days' imprisonment, and that could on no reasonable view be dismissed as merely nominal. Insofar as the respondent claimed to have been unaware of the date for his appearance, one makes the obvious response that in his position, he should have been anxious to ensure that he had the relevant information. A genuine lack of awareness of the date does not sit well, in any event, with the penalty imposed by the Magistrate.

There are nevertheless two other relevant circumstances which especially warrant our now concluding that it would be unjust to require the respondent to serve the full suspended 18 months. The first is the attitude taken by the primary judge, who, having seen the respondent and heard from his counsel, reached a view on that factual matter. Appropriate weight should be accorded that view. Second, there is the variable attitude taken by the Crown. Adding those matters to the other features discussed by Lee J, I am in the end persuaded that the orders he proposes are the appropriate orders. I agree with the orders proposed by Lee J.

REASONS FOR JUDGMENT - W.C. LEE J.

Delivered 29 November 1996

This is an appeal by the Attorney-General on the ground that the learned District Court judge, in dealing with the respondent on 8th July 1996 under s.147 of the Penalties and Sentences Act 1992 ("the Act") for breach of a suspended sentence, could not have formed the opinion, required by s.147(2), that it would be unjust to order pursuant to s.147(1)(b) that the respondent serve the whole of the suspended sentence. The judge extended the operational period under s.147(1)(a). The appeal necessarily involves the true meaning of s.147(1)(a). Other issues were also raised.

I have read the reasons of de Jersey J and Fryberg J.

On 23rd June 1995 the respondent, who was born on 9th July 1976 and was then 18 years of age, pleaded guilty in the District Court to several very serious charges involving one of breaking and entering a dwelling house with intent, three of stealing, and one of unlawful use of a motor vehicle with a circumstance of aggravation. There was a co-offender on the last count. Those offences were committed between late November 1994 and 3rd January 1995. The consequences were very serious to the owners as the reasons of de Jersey J and Fryberg J demonstrate. These were the respondent's first offences in point of time. He had a behavioural problem, a history of drug abuse and depression, (see the report of the Royal Brisbane Hospital, Psychiatry, Record (VI) - Exhibit 3 before the original sentencing judge). He was then sentenced to 18 months' imprisonment wholly suspended with an operational period of three years. That period does not expire until 23rd June 1998.

On 2nd January 1995 he committed a drug offence in respect of which he was fined $150.00 on 9th June 1995. On 27th January 1995 he committed three further drug offences and was fined $150.00 on 28th January 1995. On 19th May 1995 he was convicted of unlawfully taking shop goods away on 9th May 1995 and was fined $200.00 plus $49.25 costs. Those matters were before the District Court judge on 23rd June 1995 when the suspended sentence was imposed.

Thereafter, on 27th December 1995, the respondent committed another offence of taking shop goods away. He was convicted on 16th February 1996 in respect of it and fined $150.00 plus costs of Court $49.25 and restitution of $11.80 (R28). It was not an offence for which imprisonment might have been imposed. On 6th March 1996 he was convicted of a breach of a fine option order imposed on 31st October 1995 regarding a conviction on 9th June 1995 in respect of which he had been fined $150.00. The fine option order was revoked. Both of these offences occurred after 23rd June 1995.

However, according to an affidavit sworn by a law clerk in the Legal Aid Office on 25th September 1996, (paras. (3)(i), (ii), (iii) and (iv)) he was charged in the Magistrates Court on 6th January 1996 with being in possession on 5th January 1996 of property reasonably suspected of being tainted property, which charges at some later date were apparently discontinued (para. (4)). Of greater significance was the fact that, as the result of a police search on 8th January 1996 of the respondent's residence when further items of property were discovered, he was charged with two further offences of breaking, entering and stealing. According to his Counsel before the sentencing judge, those offences were committed between 31st December 1995 and 6th January 1996 (R15). He appeared before the Magistrates Court in respect of those charges on 9th January 1996 (para. (3)(vi)). According to the certificate of conviction Exhibit 1 (R27) he had been granted bail on his own undertaking on 8th January 1996 so he must have been charged with those offences on that date. He duly appeared in the Magistrates Court the next day to answer his bail.

It appears that those matters, together with the charges relating to possession of property were both adjourned for mention on 17th January 1996 (para. (3)(vii) of the above affidavit). He duly appeared on that date (para. (3)(viii)) when the case was apparently adjourned to 19th January 1996 for further mention. He did not then appear and surrender himself into custody which resulted in his arrest on 7th March 1996 and imprisonment awaiting the matter to be dealt with. This did not occur until 1st May 1996 when he pleaded guilty to the breach of bail which is a relevant breach offence within the meaning of s.144(5) of the Act. He was sentenced to 21 days' imprisonment. There is no explanation as to why he was not dealt with more promptly for the breach of bail or why he was not brought before the District Court until 21st June 1996, nearly four months after his arrest on 7th March 1996. There is no suggestion that these delays were due to his fault.

The respondent's Counsel informed the District Court judge dealing with the breach proceedings on 21st June 1996 and 8th July 1996 (R14, 17) that the respondent had also been held in custody since 7th March 1996 because of the two outstanding charges pending his committal which was due to commence on 9th July 1996 (R25). He stated that the respondent had been refused bail at least to that time. Whether he was granted bail after committal does not appear, which is an unsatisfactory situation so far as this appeal is concerned. This account of his incarceration is somewhat difficult to reconcile with the statement in the above affidavit that the law clerk interviewed the respondent on 19th May 1996 at the Legal Aid Office at Brisbane in connection with the pending breach proceedings "ultimately dealt with before the District Court on 21st June 1996", unless there is some procedure whereby persons in custody are allowed to attend that office for interview or unless, contrary to Counsel's statement that the respondent remained in custody since 7th March 1996, he duly served the 21 days' imprisonment imposed on 1st May 1996 and was released perhaps a day or two early on 19th May 1996.

According to the Crown's outline, the respondent was brought before the District Court judge pursuant to s.146(1)(b) of the Act and was dealt with on 21st June 1996 and 8th July 1996. On the latter date the judge concluded that the breach was not "sufficiently serious to warrant any other order" than the extension of the operative period of six months from its expiry on 23rd June 1998.

As Fryberg J points out, it appears that the Crown often speaks with many different voices. See the cases to which he refers and also R v Shuttleworth (Lee J, 27th September 1995, unreported), and R v Selwood (Lee J, 18th October 1996, unreported). This has been partly due to conflicting decisions, and partly due to the difficulties in interpreting this legislation to which attention was directed by me in Shuttleworth with a recommendation that the drafting of certain provisions be considered.

Before the sentencing judge on 21st June 1996 and 8th July 1996, the approach of both parties oscillated to some extent. At the first hearing the Crown Prosecutor submitted that the whole period should be ordered to be served and cumulative upon the sentence he was serving for breach of bail. He further submitted that the Court could take into account the breach offence and, after some debate, agreed that the Court could also consider the antecedents of the respondent in deciding whether it would be unjust to make such an order.

Defence Counsel on the other hand submitted that the antecedents should not be taken into account. Nor, according to his submission, should the offence in respect of which he was convicted on 16th February 1996. It involved the offence of carrying shop goods away and a breach of the Regulatory Offences Act in respect of which a term of imprisonment could not be imposed. His submission was that this had no bearing whatsoever on the sentencing judge's decision about whether the suspended sentence should be activated. It was submitted that the breach of bail for which he was convicted on 1st May 1996 could not be said to be indicating a return to the kind of crime that caused him to be placed on the suspended sentence and that, because of the presumption of innocence with respect to the outstanding offences, it would be appropriate that he be dealt with for the breach when those offences were dealt with. He submitted that the time spent in custody since 7th March 1996 should be taken into account in the respondent's favour and that it would be unjust to order that he serve the whole of the suspended sentence in custody. The judge adjourned the matter to allow research.

On 8th July 1996 the Crown Prosecutor submitted that the Court could not take the antecedents into account and cited several cases including R v Muller (C.A. No. 133 of 1995, 11th August 1995, unreported). It was submitted (20) that it did not matter when the breach offence occurred providing it was punishable by imprisonment. Nor did it matter if the offence was trivial or at what stage it occurred during the operational period. This submission implied that the circumstances of the breach offence itself should not be considered, the only relevant factor being whether it was punishable by imprisonment, even if imprisonment was not in fact imposed. He submitted that the word "may" in s.147(1) applied to give a discretion as to which of the three options should be exercised by the Court, but that the word "must" in s.147(2) appeared to take away that discretion unless the relevant opinion was formed under s.147(2).

Defence Counsel submitted that antecedents could be taken into account and relied upon his initial submissions that the breach offence should be examined to see if it involved a return to the type of criminal conduct which resulted in the suspended sentence. He urged that no further punishment be imposed.

His Honour adopted the defence submission that because the offence did not manifest a return to the type of crime originally committed, a benign approach should be taken to sentencing. He invited further submissions. The Crown Prosecutor submitted that the matter be deferred pending the respondent's committal. Defence Counsel submitted that the judge should make no order. His Honour did not adopt either approach. The Crown Prosecutor then agreed that His Honour could extend the operational period under s.147(1)(a) if His Honour formed the opinion under s.147(2) that it was unjust to make an order under s.147(1)(b). The judge so ordered.

Before this Court on 12th September 1996, Mr Rutledge for the appellant conceded that it would be very desirable if the Court on breach proceedings could take into account the nature and circumstances surrounding the breach offence, but submitted that the true construction of s.147(2) was very strict and simply did not permit consideration of it. He maintained the ultimate approach of the Crown Prosecutor below that the nature of the breach offence as well as the antecedents of the respondent could not be taken into account, the only relevant consideration being whether an offence punishable by imprisonment was committed, whether or not imprisonment was imposed. Various authorities were referred to, none of which were directly in point.

Nevertheless, he submitted that if the Court ruled that the breach offence could be taken into account and if as a consequence the Court formed the opinion in s.147(2), the Crown did not cavil with the extension of the six months ordered below. When his attention was directed by the bench to s.147(1)(a) which permitted an extension of the operational period of up to one year "from the making of the order under this subsection", and the suggestion that the order made by the sentencing judge was therefore ineffectual because the operational period did not expire until 23rd June 1998, he submitted that the section authorised the order made by the sentencing judge. This is contrary to the Crown's submission in R v Shuttleworth.

Mr Sofronoff QC for the respondent submitted that the Court should not act in a vacuum and close its eyes to the breach offence including when it occurred, the punishment imposed and circumstances surrounding its commission, as well as the respondent's antecedents. He submitted that the breach offence was trivial when compared with the original offence, and that the breach offence falls clearly within the plain words of the section. It was also contended that a consideration of the antecedents of the respondent placed his later conduct concerning the breach offence in proper context. He also submitted that the order made by the sentencing judge was permitted by s.147(1)(a). It was said that this was the intention of the legislature and that it would be absurd to interpret the section as it literally reads as ruled in R v Shuttleworth.

A further hearing occurred on 19th September 1996 when submissions were invited as to what order was appropriate should the Court rule that the order under s.147(1)(a) was ineffective. Mr Rutledge submitted that the Court could order that a part or all of the sentence be imposed but that it was attractive to do nothing because of the pending charges. He referred to the word "may" in s.147(1) as one option which he submitted conferred a discretion whether to make an order or not. It was nevertheless submitted that the breach offence itself in which imprisonment was imposed was a very serious offence, his final position being that the whole of the suspended sentence should now be imposed under s.147(1)(b).

Mr Sofronoff submitted three alternatives:

(1)That no order be made under the section; or

(2)That the proceedings be adjourned to the judge hearing the indictment which

was due to be presented; or

(3)That an order be made that he serve so much of the sentence as would expire until the rising of the Court (although Mr Sofronoff submitted that this option was unnecessary).

He relied upon the attitude of the primary judge that nothing more than a token response was called for and that the Crown in the earlier proceedings seemed to be of that view. No one had suggested that the respondent attempted to escape punishment (as occurred in R v Holcroft (C.A. No. 245 of 1996, delivered today)). The respondent simply failed to turn up to answer his bail. He suffered behavioural problems. The breach offence was of a different nature and did not relate to dishonesty. He duly served 21 days in prison in respect of the breach.

Mr Sofronoff also referred to s.32CA of the Acts Interpretation Act 1954 and submitted that the word "may" in s.147(1) meant that the Court had the discretion whether to act under that section at all or alternatively that the matter should simply be adjourned before the judge hearing the ultimate indictment. He submitted that it would be unjust to order that the total suspended sentence be served because if it later emerged that the charges in respect of which he broke bail resulted in acquittal, he ought never to have been charged with the offence of breach of bail at all.

As no material was placed before the Court as to the circumstances surrounding the breach of bail and which might have explained why he did not appear, Mr Sofronoff asked for an opportunity to obtain material which was subsequently supplied in the form of the above affidavit from the Legal Aid Office sworn 25th September 1996. It was based on information and belief.

The deponent states in paragraph (2) that the matter was ultimately dealt with in the District Court on 21st June 1996. That is incorrect. It was not disposed of until 8th July 1996. In paragraph (3) he said he interviewed the respondent at the Legal Aid Office at Brisbane on 19th May 1996 when, according to Counsel appearing for the respondent before the sentencing judge, he had been constantly in custody since 7th March 1996, at least up to the time of his committal which was due to commence on 9th July 1996.

The affidavit, based on information supplied by the respondent, then referred to two groups of offences with which he was charged. The first involved the respondent's appearance on 6th January 1996 in the Magistrates Court on a charge of possession of property reasonably suspected of being tainted. The affidavit does not state specifically what occurred on that date. Paragraph (3)(vi) states that the respondent appeared before the Magistrates Court at Brisbane on 9th January 1996 with regard to the charges of breaking and entering with intent and stealing in respect of which he had been granted bail on 8th January 1996 (Exhibit 1 R27). Paragraph (3) of the affidavit then proceeds:

"(vii)Both matters were adjourned for further mention and he was under the impression that the same return date of 17th January 1996 had been obtained for all charges.

(viii)On 17th January he appeared in the Magistrates Court at Brisbane at which

time the case was adjourned for further mention.

(ix)He was unaware that he was also due to appear in court on 19th January 1996

in relation to the second group of charges.

(x)He failed to appear on 19th January 1996 and was subsequently detained by the police on 7th March 1996 under the warrant for failing to appear.

(xi)He pleaded guilty to Breach of Bail on 1 May 1996 on the advice of the Duty

Lawyer present in court on this day."

The affidavit does not make it clear what is meant by "the case" referred to in paragraph (viii) or what was the adjourned date. Nor is the word "also" in paragraph (ix) clear. He duly appeared in Court on 17th January 1996 which was the date which he understood was the same return date for both sets of charges. He did not appear on 19th January 1996, which constituted the breach of bail.

This affidavit is vague and unsatisfactory when an attempt should have been made to explain the position in clear terms. On one view it provides no reasonable explanation as to why he did not appear on 19th January 1996. It may be that he has no excuse at all which would fit well with the sentence of 21 days' imprisonment imposed by the magistrate on 1st May 1996, assuming that no such excuse or explanation was submitted to the magistrate by the duty lawyer then appearing for the respondent no doubt on a busy Court day. Nothing is mentioned as to the time spent with the duty lawyer or whether the respondent explained the full history of his bail since it was granted on 8th January 1996 (Exhibit 1, R27).

On the other hand, a generous interpretation may be that on 17th January 1996 he believed that the case was adjourned for further mention to some unspecified date other than 19th January 1996, or that he did not hear the date, the case being the outstanding charges of breaking and entering and stealing. He had psychiatric and behavioural problems including depression. He had duly appeared on 9th January 1996 and again on 17th January 1996 to answer his bail which had been granted to him when he was charged with the outstanding charges on 8th January 1996. It is odd that he deliberately failed to appear on the third occasion which is consistent with a mere lapse.

As to whether the breach offence may be taken into account, Mr Sofronoff's submissions are clearly correct. I agree with the conclusion of de Jersey J and maintain the approach I adopted in R v Shuttleworth. Also relevant antecedents of an offender may be taken into account for or against him when considering the nature of the breach offence as well as any other unlawful conduct which occurs since the suspended sentence was imposed. I have stated my reasons for the foregoing view in some detail in R v Holcroft and do not need to repeat them.

I also agree with the conclusion of de Jersey J in relation to the operation of s.147(1)(a) and rely upon the approach adopted in R v Shuttleworth. No good reason has been shown why that paragraph should not bear its literal meaning. That paragraph might be thought to be the most lenient of the three options in s.147(1). Given that the Court first forms the opinion under s.147(2), the Parliament may well have intended to limit an extension only to a case where the offender has behaved himself for perhaps a substantial part of the operational period originally imposed so that less than 12 months of that period remains when he commits the breach offence under circumstances which warrant a limited extension to the operational period, rather than an order requiring an offender to serve part of the original sentence in custody. If on the other hand he commits the breach offence early during the period when the warning given pursuant to s.144(5) would be uppermost in his mind, the Court may be more inclined to consider another option under s.147(1).

An operational period can range for any period up to five years but must be no longer than five years: s.144(6). Likewise a suspended sentence can be imposed only if the offender is sentenced to imprisonment for five years or less: s.144(1). This suggests an upper limit to an operational period. If s.147(1)(a) bears the meaning contended for by both Mr Rutledge and Mr Sofronoff that the period can be extended up to 12 months at any time, an operational period of five years could theoretically (though not likely in practice) be extended any number of times by up to 12 months on each occasion where offences punishable by imprisonment occur after the suspended sentence was imposed, but where, because of other mitigating circumstances, the Court on each occasion forms the view that it would be unjust to order that the offender serve the whole of the sentence under s.147(1)(b). This suggests that where there is more than 12 months left to run, and an order under s.147(1)(b) would be unjust, the only remaining alternative is that provided for in s.147(1)(c).

This view also fits well in a case where a short operational period is initially ordered say 12 months, which indicates that the original offence was probably not of the most serious kind or the circumstances were unusual. In such a case the Court might form the view that a limited extension of the initial period is sufficient sanction for a relatively minor breach committed during the operational period. As indicated, these provisions require consideration to make their scope perfectly plain.

The remaining substantive submission was that one option would be to make no order at all pursuant to s.147 or alternatively that the matter be adjourned to the judge ultimately hearing the outstanding charges at trial or sentence as the case may be. This submission was based upon the effect of s.32CA(1)(iii) of the Acts Interpretation Act 1954. It was said that the word "may" in s.147(1) recognised that there was a residual discretion in the Court whether or not to make an order under that section at all.

As indicated, the respondent was apparently brought before the District Court pursuant to s.146(1)(b) and s.146(2), and not by way of s.146(3), (4) and (7). The certificate of conviction Exhibit 1 (R27) confirms that the magistrate did not proceed by way of s.146(3) and (4), the reason possibly being that the respondent was already in custody.

Section 145 provides that an offender who is subject to an order for suspended imprisonment is made to serve that suspended imprisonment only if he is ordered to do so under s.147. Section 146(1) provides that a Court must proceed under that section in the circumstances then prevailing. In this case s.146(1)(a) is not applicable because the respondent was brought to the Court on breach proceedings by way of s.146(1)(b). Section 146(2) then provides as follows:

"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." (emphasis added)

The Court which made the order (i.e. the order of suspended imprisonment) was the District Court and the Court mentioned in s.146(1)(b) was a Court of like jurisdiction, so that the route by which the District Court judge was required to proceed in this case was that provided in s. 146(2) and not via s.146(3) and (4). On one view, the word "may" in s.146(2) confers a discretion on the relevant Court whether or not to proceed under s.147 at all.

This would appear to be a strange result because of the word "must" appearing in the opening words of s.146 and when compared with the route by which an offender comes before a Court pursuant to s.146(3), (4) and (7). Unlike s.146(2), s.146(7) states that the Court must deal with the offender under s.147. In such a case, as pointed out in R v Holcroft, the reference to "may" in the opening words of s.147(1) would in that event merely confer a discretion on the Court as to which of the three alternatives should be adopted, subject to the mandatory requirements of s.147(2) which states that the Court must make an order under s.147(1)(b) unless it forms the requisite opinion.

No argument was specifically directed to the effect of s.146(2) and in any event, the District Court judge proceeded to deal with the matter under s.147(1). If s.146(2) truly conferred a discretion on the judge whether or not to proceed under s.147 at all, it has not been shown that the exercise of his discretion to act under s.147 was wrong. Having proceeded by way of s.147, the reference to the word "must" in s.147(2) makes it mandatory for the Court to make the order under s.147(1)(b), where the relevant opinion is not formed so that the reference to "may" in s.147(1) again confers a discretion as to the choice between the various alternatives in s.147(1).

The foregoing would appear to conform with the overall philosophy and purpose of the legislation on which I stated my views in some detail in R v Holcroft which I will not now repeat. Nevertheless, it is difficult to see why these changes in terminology exist. It may be that the word "may" in s.146(2) was a drafting error. The foregoing further demonstrates why these provisions should be carefully examined by the appropriate authorities. It may be noted that a discretion to make no order at all appears to have been expressly conferred in England: Powers of Courts Act 1973, s.23, which also includes other options. See also the Criminal Justice Act (NZ) s.21A.

As to the submission that the matter should have been adjourned to the District Court judge trying the outstanding offences in respect of which the breach of bail occurred, such an order may have been within power but the sentencing judge declined to take that course. As de Jersey J points out, that Court was dealing with a quite distinct offence of breach of bail, regardless of whether or not the respondent is ultimately convicted on the outstanding charges. That possible outcome is quite irrelevant to the breach which was punishable by imprisonment. Given that that breach put in train the breach proceedings, the sentencing Court is then concerned only with the question of whether the suspended sentence should be reactivated or another order made in accordance with the alternatives in s.147(1).

On one view, the respondent simply failed to turn up on the required day and answer his bail due to a lapse. His behavioural and drug problems and depression, whilst none of these is a relevant new circumstance, may have contributed to this failure to appear. Whilst the above affidavit was vague and contained errors, a liberal interpretation open is that the respondent was confused about his obligation to appear on 19th January 1996 and may have been of the belief that on 17th January 1996 the outstanding charges of breaking and entering and stealing were adjourned to some other date.

As to his antecedents, it should be noted that notwithstanding that his Counsel surprisingly submitted to the sentencing judge that he could not submit that his client was "a saint prior to the making of the order" on 25th June 1995, the respondent had committed no criminal offences whatsoever until the offences the subject of the order of suspended imprisonment. Those were his first offences after which he committed four drug offences and one offence of unlawfully taking shop goods away which the sentencing judge considered on 23rd June 1995 and which cannot be regarded as "new" circumstances.

However, since that sentence was imposed, the respondent on 27th December 1995 committed another offence of taking shop goods away. He was convicted and fined on 16th February 1996 in respect of it. Also on 6th March 1996 he was convicted of a breach of a fine option order imposed on 31st October 1995 that he perform 25 hours of community service, so his conduct since 23rd June 1995 has not otherwise been entirely law abiding.

Defence Counsel before the sentencing judge submitted that the last offence of taking shop goods away was totally irrelevant to the current proceedings. This is clearly incorrect. Whilst neither of the above two breaches since 23rd June 1995 were referred to below or on the appeal, they are nevertheless circumstances arising since the suspended sentence was imposed. An important factor which the Court takes into account after the imposition of the suspended sentence is whether or not the offender who is given a chance, mended his ways and lived a law abiding life. See my remarks in R v Holcroft. Rehabilitation is a significant factor. Any breach of the law after the imposition of the suspended sentence and not only the breach offence itself, must be taken into account in the balancing process, even if the offence is not one in respect of which a term of imprisonment might be imposed. The offence of unlawfully taking shop goods away on 27th December 1995 may be viewed somewhat more seriously because he had already committed such an offence on 19th May 1995 in respect of which he was fined $200.00 plus $49.25 costs. In other words, he did not learn from the earlier conviction.

Another circumstance occurring since 23rd June 1995 which is not entirely irrelevant is the fact that after his arrest on 7th March 1996 for not answering his bail, he was not dealt with for that offence in the Magistrates Court until 1st May 1996 when he pleaded guilty and was sentenced to imprisonment. Also he was not brought before the District Court under breach proceedings until 21st June 1996, nearly four months after his arrest. Had he been dealt with earlier for the breach, he might well have had the opportunity of serving part of any imprisonment concurrently with his long period already in custody, had imprisonment been ordered, as s.148 contemplates.

There is no explanation given for the delay but it is not suggested that this was in any way the fault of the respondent who was in custody. His time in custody was spent because of his breach of bail and because of the outstanding charges and cannot be regarded as service of any part of his suspended imprisonment. This cannot occur until an order is made under s.147 (see s.145). However, delay in being dealt with may be a relevant circumstance in his favour within the meaning of s.147(2). His time spent in custody on outstanding charges may be taken into account in a general way if the Court forms the view that it would be unjust to make an order under s.147(1)(b), but that an order under s.147(1)(c) is appropriate.

I attach weight to the submissions by Mr Sofronoff that the respondent merely failed to appear on 19th January 1996 to answer his bail and made no attempt to escape justice. The respondent has no history of similar offences and has had only one breach of a fine option order on 6th March 1996.

I have some concern over the attitude of the Crown both before the sentencing judge and on appeal, that if the Court concluded that it was unjust to make an order under s.147(1)(b), a minimal punishment could be inflicted by extending the operational period. The attitude of the Crown as representing the community is usually of some significance in sentencing generally, subject to any constraints by the legislation. Whilst this attitude emerged after the suspended sentence was imposed, it cannot be said to be a relevant new circumstance for the purpose of s.147(2). There is no suggestion that the respondent was aware of or understood any such attitude at any time prior to 21st June 1996 or 8th July 1996, or that he acted in any way in consequence of it.

Therefore the relevant circumstances existing since the suspended sentence was imposed on 25th June 1996 include the breach offence itself and the circumstances surrounding its commission, its comparison with the original offence, and the time within the operational period it occurred. Also relevant is the respondent's absence of any criminal history prior to the commission of the offences in respect of which the suspended sentence was imposed. He made no attempt to escape justice. He simply did not answer his bail on this one occasion which was at worst a mere lapse and was probably due to a misunderstanding. He has no prior convictions for breach of bail but had previously duly appeared to answer bail. Also relevant are the two offences committed since 23rd June 1995 for taking shop goods away and breach of a fine option order, as well as the unexplained delay in being initially dealt with. These are all matters to be weighed up for the purpose of s.147(2).

The learned sentencing judge formed the view that it would be unjust to make an order under s.147(1)(b), but only on the basis that the breach offence did not demonstrate a return to the type of crime for which the respondent was convicted on 25th June 1995. His Honour did not consider the respondent's antecedents, nor apparently the two subsequent offences referred to since 25th June 1995. Nor did he have before him any explanation from the respondent as to why he broke the bail or as to his appearance on 9th January 1996 or 17th January 1996 in obedience to his bail granted on 8th January 1996. As indicated, the order extending the operational period was in the circumstances ineffectual so this Court should consider the matter afresh.

There is doubtless a power to remit the matter to the District Court judge to deal with it. However, in view of two hearings below and two in this Court, it is preferable that this Court should if possible avoid a further hearing and conclude the matter by making an order which is just in the circumstances.

Having weighed all of the various circumstances, I have concluded that it would be unjust to order that the respondent serve the whole of the period of 18 months in custody because of what appeared to be a lapse by not answering his bail on 19th January 1996. The only order then open is an order that he serve part of that period in custody pursuant to s.147(1)(c).

Unfortunately, the full position with regard to his time in custody was not placed before this Court as should have been done during the hearing. He was arrested on 7th March 1996 and, subject to the above affidavit which deposed to the fact that he was interviewed at the Legal Aid Office on 19th May 1996, he has been in custody at least until the date of his committal which according to his Counsel at the hearing before the sentencing judge was to occur on 9th July 1996 (25). It does not appear whether after his committal he was granted bail on the outstanding charges or has remained in custody ever since pending trial to which he has been committed. All that the affidavit states is that the outstanding charges of breaking and entering with intent and stealing were listed for a Callover on 10th October 1996 at which time it was intended to ask the Court to list the matter for trial. The affidavit also states that the proceedings for possession of tainted property were discontinued.

The court has subsequently been informed that the respondent was released on bail, upon sureties, on 15th August 1996 and this bail was enlarged by the District Court on 10th October 1996.

It seems to me that the justice of the case will be served if the respondent is ordered
to serve four months of the suspended sentence from 8th July 1996. This makes
allowance for the time spent in custody before he was dealt with for the breach offence.

This imprisonment now ordered is to be served concurrently with his period in custody from 8th July 1996 to 15th August 1996 (s.148 of the Act) which means that he has already served part of the sentence of 4 months.

I would order that the respondent serve 4 months of the suspended sentence, less the period he served in custody from 8th July 1996 to 15th August 1996. A warrant should issue for his arrest. The 14 months balance of the suspended sentence remains until the operational period expires on 23rd June 1998: cf R v Scott (C.A. No. 280 of 1993, 18th October 1993). See my comments in R v Bowen (C.A. 267 of 1996 delivered today).

REASONS FOR JUDGMENT - FRYBERG J.

Delivered 29 November 1996

This was the second of three appeals[1], heard on successive days by differently constituted benches, raising questions of interpretation of s.147 of the Penalties and Sentences Act 1992 ("the Act"). On 21st June and 8th July 1996, the respondent was before a District Court at Brisbane "on a breach of suspended sentence"[2]. On those days, that court dealt with him under s.147 of the Act. It appears from the outline of submissions presented to us on behalf of the appellant (the Attorney-General) that the proceedings in the District Court were taken under s.146(1)(b), but it does not appear how he came before that court. In particular it does not appear whether any order had been made under s.146(4). No oral evidence was given and the learned District Court judge dealt with the matter on the basis of the uncontradicted assertions of counsel together with four documentary exhibits tendered by the Crown. The judge ordered that the operational period for the suspended sentence be extended by six months. The Attorney-General appeals against that order on the ground that the sentence thereby imposed was manifestly inadequate; that the judge erred in taking irrelevant considerations into account; and that there were no circumstances which made it unjust to lift the suspension and order that the respondent serve the total period of imprisonment previously ordered.

[1]

[2]

The original offences

The material before the judge disclosed that on 23rd June 1995 the respondent pleaded guilty to one count of breaking and entering a dwelling house with intent, three counts of stealing and one count of unlawful use of a motor vehicle to facilitate an indictable offence. On each count he was sentenced to 18 months' imprisonment, to be served concurrently. All those terms of imprisonment were suspended for an operational period of three years. Two of the stealing charges and the motor vehicle charge related to the theft of a street sign, some plastic road barriers and two yellow flashing lights the property of the Brisbane City Council. They were apparently not very serious. The other stealing count, and the break and enter count, related to an incident in Toowoomba on 30th December 1994 when over $40,000.00 worth of goods were taken from a private home. All of the offences were committed in a period from late November 1994 until early January 1995, the two serious ones having been committed on 30th December 1994. The five offences were the first committed by the respondent.

Between the time of those offences and the date when the respondent was convicted of them, he committed and was convicted of four drugs offences (no conviction being recorded) and also of unlawfully taking shop goods away. Those offences were before the sentencing judge on 23rd June 1995. At that time the respondent was just under 19 years of age.

Subsequent offences

The respondent did not thereafter stay out of trouble. On 27th December 1995 he committed another offence of unlawfully taking shop goods away. According to exhibit 2 he took aquarium equipment valued at $18.08. That exhibit certifies his conviction of that offence on 16th February 1996. He was fined $150.00. That offence was not one for which imprisonment might have been imposed.

In the meantime, in January 1996, two further charges of breaking and entering with intent and stealing were brought against him. He was granted bail on his own undertaking, but failed to honour that undertaking when he did not surrender into the custody of the Magistrates Court on 19th January 1996. He was subsequently arrested and on 1st May 1996 he pleaded guilty to an offence under the Bail Act 1980. He was sentenced to 21 days' imprisonment. Thereafter he remained in custody awaiting committal proceedings in respect of the pending charges. Those proceedings have apparently taken place and an indictment is to be presented to the next sittings of the District Court. Whether the committing magistrate granted bail does not appear.

The law

It is necessary to refer to the relevant legislation. So far as relevant, the Act

provides:-

"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."

For the Attorney it was argued that the sentencing judge erred in law by taking into account (a) the nature and seriousness of the breach offence (the Bail Act 1980 offence) and (b) the respondent's antecedents, in determining whether the exception set out in s.147(2) applied. It is plain that he took the former into account and his sentencing remarks make it reasonable to proceed on the basis that he took the latter into account. Before the sentencing judge the Crown Prosecutor submitted that the antecedents should be disregarded but made no submission relating to the circumstances of the breach offence.

Breach offence

I turn first to the question whether the nature and seriousness of the breach offence can ever, as a matter of law, be taken into account by a judge dealing with an offender under s.147. The Attorney-General submitted that upon its proper construction, the Act required the judge to ignore the nature of the breach. Counsel could not (or did not) point to any part of the wording of the Act which could be suggested to have this effect. Section 147(2) requires a court to have regard to "all the circumstances that have arisen since the suspended imprisonment was imposed". The breach offence plainly falls within the literal meaning of those words. Why should it be construed otherwise?

The Attorney-General advanced no reason of policy to support a different construction. Indeed, his counsel carefully disclaimed any intention of expressing a view on whether the result for which he was contending was desirable or not. I am quite unable to see any reason of principle or policy why the circumstances of the breach offence, if relevant, ought as a matter of law to be ignored. One would have thought that on many occasions, those circumstances will be a strong indicator of whether it would be unjust to make an order under sub-s.(1)(b). With the very greatest respect, the policy implications of the submission simply did not seem to have been thought through. That was demonstrated by the fact that in each of the three cases referred to above, the Crown adopted a different position on the point. In R v Holcroft the Crown conceded that the nature of the breach offence would be a factor which would have to be taken into consideration. In R v Bowen the Crown positively argued that the nature of the breach offence should be considered: it argued that the breach offence was of the same type as the original offence and ought to be taken into account to negate a certain matter which would otherwise be a mitigating factor.

Can the Attorney's submission be supported on the authorities? The first case to which we were referred was R v Carrell[3]. The major difficulty in relying upon that case for present purposes is that the point now under consideration was not there addressed. Also, there does not seem to have been anything in the circumstances of the breach offence which could have given rise to a relevant injustice. The principal judgment was delivered by the President, who concluded simply, "There was nothing before the judge which would have permitted him to form that opinion and there is nothing before us which would permit us to do so". Pincus J.A. said:

[3]

"I would add that it is not always appreciated how vulnerable is the position of a person who is subjected to a suspended sentence. Under section 146 of the Penalties and Sentences Act the Court is required to proceed as that section prescribes. If there is an offence committed, for which imprisonment may be imposed, during the operational period - and the offence may, of course, be a relatively minor one - it can bring catastrophic consequences for the offender. Then the Court's jurisdiction, as the President has pointed out, is governed by section 147 which imposes a rather rigid regime, not giving any great discretion.

The consequences then, if it be harsh for the present applicant, is one which seems to me to flow from the Act rather than from anything the Judge has done."

With the greatest respect to counsel's argument, I am unable to see how that passage assists the Attorney's submission. Counsel relied particularly on the sentence, "If there is an offence committed...catastrophic consequences for the offender", but did not relate that sentence to the matter in issue before us. I respectfully agree with what was said by Pincus J.A.; but in my opinion it provides no support whatsoever for the submission now under consideration.

The second case to which we were referred was Attorney-General of Queensland v Muller[4]. Unfortunately, counsel for the Attorney did not tell us why he was referring us to this case. I presume it was raised in relation to the question whether the offender's antecedents can be taken into account rather than the present question. It seems to have no relevance to the matter now under discussion.

[4]

Finally, counsel for the Attorney referred us to R v Scott[5]. He did so only in his written outline of submissions, where the case was listed, but no proposition for which it stood as authority was identified. It was therefore a singularly unhelpful citation. There is nothing in the judgments in that case which has the slightest relevance to either of the questions raised by the Attorney in this appeal.

[5]

We were not referred to any other authority on this question.

In my judgment this is a plain case where we should give full effect to the words of the enactment. Nothing in the cases suggests the contrary and no reason of policy or principle has been advanced to the contrary. We should reject the submission that the nature and seriousness of the breach offence cannot, as a matter of law, be taken into account when considering the question of injustice under s.147(2). The Act requires those matters to be taken into account if they are relevant.

Antecedents

The second question is whether the respondent's antecedents could be taken into account by the sentencing judge. The submission made by counsel for the Attorney-General was that s.147(2) does not permit the sentencing judge to take the prisoner's antecedents into account. It was argued that this result flowed from the words "in view of all the circumstances that have arisen since the suspended imprisonment was imposed". Reference was made to R v Muller.

If one has regard first to the words of s.147(2), two points become apparent. First, while the section requires the sentencing judge to have regard to all the circumstances that have arisen since the suspended sentence was imposed ("in view of..."), it does not provide that he is to have regard only to those circumstances. Second, the exception in the subsection envisages the formation of the relevant opinion "in view of" the circumstances, not "because of" those circumstances. The sentencing judge is not enjoined to embark upon an abstruse examination of relative causality. Rather, the subsection is directed to ensuring that the sentencing judge takes into account all relevant circumstances which have arisen since the suspended sentence was imposed. The wording of the subsection would therefore, taken by itself, not be sufficient to exclude consideration of a prisoner's antecedents as a matter of law where those antecedents were relevant.

That however was not the view adopted by this Court in R v Muller[6]. There, the sentencing judge took into account a presentence report prepared before the suspended sentence was imposed. He also took into account several vaguely expressed matters arising after that sentence was imposed. The Court held that those matters were insufficient to make it unjust to proceed under sub-s.(1)(b), and that the report could not be relied upon. In my view the ratio of that decision is that matters which arose before the suspended imprisonment was imposed cannot by themselves provide the proof required by the exception in sub-s.(2). It was not contended before us that this decision should be overruled. In my view it requires a conclusion that the respondent's antecedents by themselves could not satisfy the requirements of the exception.

[6]

However that is not how Mr Sofronoff QC for the respondent put his case. He argued that the respondent's antecedents were to be taken into account not as going directly to the issue of injustice but rather as being relevant to the assessment of circumstances which clearly had arisen since the suspended sentence was imposed, namely, the circumstances of the breach offence. He argued that the sentencing judge took the respondent's previous history into account in order to place his current conduct into an appropriate context. He gave as a hypothetical example the case of a person who, during the operational period of a suspended sentence, in the course of conversation with a female acquaintance late at night while waiting for a train, put his hand on the lady's arm and thereby assaulted her. That might be regarded as a very trivial breach offence, rendering it unjust to order the offender to serve the whole of the suspended imprisonment. However if the offender's criminal history disclosed a number of sexual assaults on women, the picture might be very different. The antecedents, Mr Sofronoff argued, lent a particular character to the emergent circumstances. To disregard them would be artificial.

That argument was not addressed by the Court in R v Muller. It is therefore open to us to uphold it if it seems appropriate to do so. As I have already pointed out, nothing in the wording of the section mitigates against this construction - quite the contrary. Moreover it seems to me very much in conformity with principle. The quality which s.147(2) identifies as the relevant criterion is injustice. To have regard only to emergent circumstances when other earlier circumstances would completely change the colour and effect of those emergent circumstances in a way which plainly would affect the justice or injustice of the case would in my view by absurd. I see no reason why such an absurdity should be attributed to the Parliament.

The matter may also be tested by asking why the proposed exclusion should be limited to antecedents. If they are to be excluded because the exception in s.147(2) limits the circumstances which may be considered to only those arising since the suspended imprisonment was imposed, then everything arising before that sentence should be excluded. That would include not only antecedents but also the circumstances of the original offence. Where the circumstances or conduct of third parties since the original sentence was relevant to the injustice issue, those matters could not be considered in the light of other circumstances or conduct ante-dating the original offence.

In my opinion it would be impossible to assess the existence of injustice if nothing which arose prior to the imposition of the suspended sentence could be considered. The emergent events often could not be weighed in a context. In particular, to disregard the offender's earlier criminal history where it is relevant would make the enquiry mandated by s.147(2) completely artificial.

In the present case the learned sentencing judge apparently took the respondent's antecedents into account in assessing the seriousness of the breaching offence. In my judgment the law did not prohibit his doing so. Of course, the antecedents still had to be relevant but (as will often be the case) that they plainly were. The appellant did not argue otherwise. In my judgment, the appeal must fail on this ground also.

Section 147(1)(a)

That disposes of the Attorney-General's grounds of appeal. Unfortunately, it does not dispose the appeal. Having formed the opinion described in the exception to s.147(2), the learned sentencing judge proceeded to consider what order he should impose under s.147(1). He invited submissions from counsel on this point. Counsel for the respondent submitted that he should exercise his discretion to make no order. The Crown Prosecutor submitted that this was not an option and that only an order of the type described in s.147(1) could be made. He submitted that an order should be made that the respondent serve part of the suspended imprisonment. However when the judge asked whether he could proceed under sub-s.(1) and extend the operational period, the Crown Prosecutor told him that he could. Thereupon, his Honour proceeded to make an order extending the operational period by six months.

During the argument on the appeal, a member of the Court raised the question whether that order was ineffective. The point arose because at the time the learned District Court judge was dealing with the matter, barely one year of the original three year operational period had expired. Consequently any extension ordered by the judge would necessarily conclude (and for that matter, begin) more than one year from the date of the making of the order. The question was whether this was within the power conferred by paragraph (a).

The question thus raised was not novel. It was considered by Lee J. in R v Shuttleworth. In that case, like the present one, more than a year remained for the operational period to run at the time the matter was before the Court. For that reason, his Honour declined to act under paragraph (a). It is unfortunate that the Crown Prosecutor was unable to refer the sentencing judge to this decision.

Before us, counsel for the Attorney was equally (though perhaps more understandably, in view of the limited grounds of appeal) unprepared to argue the question. He submitted simply that the intention of paragraph (a) was to empower the sentencing judge to add a period of up to a year to the operational period originally ordered. He was not able to advance any supporting arguments. For the respondent, Mr Sofronoff contended for the same result. He submitted that the effect of the decision in R v Shuttleworth was absurd because there was no reason why the legislature would have wanted to achieve the result established by the interpretation adopted in that case.

A week after the initial hearing, the Court reconvened to hear submissions on how we should exercise our discretion afresh if we decided that the order made by the sentencing judge was not effectual. We heard submissions from both sides on that question. However those submissions were not directed to the issue whether the point in R v Shuttleworth was correctly decided; they assumed that it was. Consequently, we are still in the position that both parties before us supported the same interpretation of the section. The absence of a contradictor is a powerful reason for refusing to deal with a point. In the present case it is reinforced by a number of other considerations. First, consistently with his submission that s.147(1)(a) should operate in the way envisaged by the sentencing judge, counsel for the Attorney-General made no application to amend the notice of appeal. As it stands, it does not cover the point now under discussion. Further considerations are the existence of evidentiary difficulties which would arise if it should become necessary for us to consider the question of sentence afresh; by the fact that the Crown Prosecutor told the sentencing judge he could extend the operational period; and by the fact that before us counsel for the Attorney disclaimed any argument that the order below was not justified by the facts. We should not decide the point in this appeal.

That would be sufficient to order that the appeal be dismissed. However, since writing the foregoing portion of this judgment, I have become aware that a majority of the court is of the view that we should determine the validity of the order made below; and further is of the view that R v Shuttleworth was correctly decided. As presently advised, I agree with the latter conclusion, for the reasons expressed by the other members of the court. However, I would add this reservation: while I find those reasons convincing, in my view the present decision should not be regarded as a binding decision on the point.

Reconsideration of the opinion under s.147(2)

On this basis, the court has before it a case in which a District Court judge has made an order not authorised by statute. Neither party suggested that such an order would be anything other than a nullity. Of course, that status would not preclude the exercise of any right of appeal vested in the Attorney-General in respect of the relevant class of order. And I am prepared to assume, in the absence of argument to the contrary, that the Attorney-General does have a right of appeal conferred upon him by s.669A(1) of the Criminal Code against orders made under s.147 of the Act. This court may therefore "vary the sentence and impose such sentence as to the court seems proper".

An offender for whom an order for a suspended sentence is made has to serve the suspended imprisonment only if ordered to do so under s.147 of the Act. When a prosecuting authority invites a court to proceed under that section against an offender, the first question which arises is whether the court is one mentioned in s.146(2), (4) or (6) of the Act - that follows from the opening words of s.147. In the present case, as Lee J. has demonstrated, the relevant provision was s.146(2). It will be necessary to return to that provision later. Once a court is satisfied that it answers the description in the opening words of the sentence, the next matter which logically it must consider is whether it holds the opinion described in s.147(2). Unless it forms that opinion, there is no question of exercising a discretion under s.147(1): an order under s.147(1)(b) must be made. Conversely, if it forms that opinion, its discretion under s.147(1) cannot, for all practical purposes, extend to making an order under s.147(1)(b).

In the present case, the learned District Court judge found that he did hold the relevant opinion. All members of the court are agreed that the Attorney-General's attack on that decision must fail. In these circumstances, we should not in my judgment reconsider the question raised by s.147(2). Indeed, it may not be open to us to do so, as it may be possible to regard the opinion formed by the judge as a finding of fact (albeit one made as a result of the exercise of judgment by a process akin to the exercise of a discretion). Since this point was not argued before us, it is both unnecessary and undesirable to decide it. Whatever the power of this court to reconsider an unflawed finding under s.147(2) merely because of a subsequent error by the sentencing judge in the application of s.147(1), I do not think such a reconsideration ought to be undertaken in the circumstances of the present case. In this regard I take into account the fluctuations in the attitude of the Crown (including the Attorney-General rather loosely in this term for present purposes) which I have described briefly above and which are referred to at greater length by Lee J.

Section 147(1): "may"

Accepting that finding, we cannot make an order under s.147(1)(b). For reasons already stated, no order can be made under s.147(1)(a). Must an order be made under s.147(1)(c)?

Section 147(1) provides that the court "may" do three things in the alternative. In common parlance, "may" imports a discretion to act or not act, and historically that is the meaning towards which courts have leant. On the other hand, there have certainly been many cases in which it has been held despite the use of "may" that there existed an obligation to act. To put it colloquially, it has been held that "may" means "must". Whether that meaning is adopted depends upon the context and circumstances of the power. It would be futile for present purposes to cite cases from different contexts. The point is that the rule of interpretation has always been prima facie that a discretion whether or not to act is imported by the word "may". It does not seem to me that this rule is affected one way or the other by whether the list of options which follows the words of conferral contains one choice or many. Neither grammar nor logic suggests that the prima facie approach should vary depending upon whether one course of action is specified or numerous courses are specified.

One factor which has been said to favour the construction of "may" as mandatory is whether the power in question is granted to a court. That proposition is in my view too widely stated. It is true that provisions conferring jurisdiction upon a court would ordinarily be construed as not allowing the court an absolute discretion whether or not to exercise that jurisdiction. There is however a clear distinction between general jurisdictional provisions and others. In particular, a power to grant a remedy is often construed as empowering the court to grant the remedy or not grant it in its discretion. In the present case the power in question is one to make orders of certain sorts. I therefore do not find the fact that it is a power conferred on a court of significant assistance in resolving the construction of the provision.

Is there anything in the context of "may" in s.147 to warrant construing it as "must"? Sections 146 and 147 are the core provisions regulating the procedures and powers of courts applicable in the event that the offender commits an offence punishable by imprisonment during the operational period of the suspended sentence. They are closely connected and must be read together. Paragraphs (a) and (b) of s.146(1) set out the two occasions when a court must proceed under that section. Paragraph (a) deals with the case where the court in question convicts the offender of a breach offence. Paragraph (b) applies if the offender is before a court otherwise than on the occasion of his conviction for a breach offence (although its wording is admittedly somewhat elliptical). Paragraph (a) requires the court to be satisfied that the breach offence was committed during the operational period of a suspended sentence. Paragraph (b) requires the court to be satisfied that the offender has been convicted in or outside Queensland of an offence punishable by imprisonment during the operational period of a suspended sentence. The practical necessity for paragraph (b) is obvious: it must frequently occur, particularly in relation to summary offences, that the prosecution is not in a position to prove (or even to know about) the existence or terms of a suspended sentence.

A feature of s.146 is the policy clearly spelled out in it that an offender who commits a breach offence must be dealt with in respect of the suspended sentence by a court of either like jurisdiction to or higher jurisdiction than the court which imposed the suspended sentence. The various provisions of s.146 operate to implement this policy. Unfortunately, the language used in this process contains some inconsistencies.

It was argued on behalf of the Attorney-General that a strong indication that "may" in s.147(1) means "must" is to be found in s.146(7). That provides that if an offender comes before a court under s.146(4) or (6), the court "must deal with the offender under s.147". It was argued that the mandatory nature of this provision would be neutralised if "may" in s.147(1) were construed to confer a discretion to make no order.

At first sight that argument has some attraction. However it takes no account of s.146(2). That provision covers the simple (and one would think, common) case where the court dealing with the offender has at least the same jurisdiction as the court which imposed the suspended sentence. In that case, the court "may deal with the offender under s.147". It seems to me that if it is correct to use s.146(7) as an aid to interpreting "may" in s.147(1), it must be equally correct to use s.146(2) for this purpose. The effect of s.146(2) is to confer a discretion as to whether or not to act under s.147. I can see no rational basis for Parliament to have conferred such a discretion in respect of cases arising under s.146(2), yet not in respect of cases referred to in s.146(7). I cannot imagine that Parliament intended that the procedural steps by which a matter comes before a court exercising powers under s.147 should affect the ambit of those powers. I am driven to the conclusion that the inconsistency between ss.146(2) and (7) is the result simply of a drafting error. It is impossible as a matter of grammar or logic to identify where the error lies. That being so, I do not think that s.146(7) can found an argument that "may" in s.147(1) should bear other than its prima facie meaning.

That is as far as I need to take the analysis of s.146(7) for present purposes. I would point out however that in the light of s.146(2), it may well be that if the question came before the court, it would be held that "must" in the former sub-section means "may". It is fairly arguable that the court should adopt the construction which favours the subject rather than the Crown, particularly when the liberty of the subject is in issue. If that were the correct interpretation of s.146(7), the argument advanced on behalf of the Attorney-General would be turned against him. But we have not had this point argued; so I shall say no more.

If one turns from context to circumstances, one gains no assistance. It is true that as a general rule one seldom encounters statutory provisions for mandatory imprisonment as a minimum available penalty. That might be thought to favour the respondent. However the present context represents a special case. While views might differ on the desirability of such a regime in connection with suspended sentences, it could not be said to be surprising that Parliament might choose to adopt it. On the other hand it is equally open to conclude that in this context, Parliament might not choose to deprive the courts of a discretion to make no order. There is moreover a real risk in applying this approach that one's own subjective preferences may be substituted for proper legal analysis. In the present case, I do not find the circumstances of any assistance.

In the end it must be remembered that it would have been very easy to have said "must" instead of "may" in s.147(1) if that were what Parliament had intended. It seems to me that the argument on behalf of the Attorney-General does not demonstrate a sufficient reason for departing from the prima facie rule that "may" confers a discretion whether or not to make an order of the type described.

Acts Interpretation Act

The common law rule of interpretation is reinforced by specific provision in the Acts Interpretation Act 1954. When that Act was first passed the provision in question was s.26. It was not a novel provision; it had +predecessors dating back to at least 1858. It applied to all acts passed after 31st December 1867. Its application was subject to any contrary intention appearing in later legislation. Its New South Wales equivalent has been described as putting the ordinary rule of construction into statutory form. In the early 1990s, an attempt was made by Parliament to strengthen the provision. Section 26 was repealed and replaced by a new s.32CA. The latter, as it presently stands (and stood at all times material to the present case), provides as follows:

"32CA.(1) In an Act, the word "may", or a similar word or expression, used in relation to a power indicates that the power may be exercised or not exercised, at discretion.
(2) In an Act, the word "must", or a similar word or expression, used in relation to a power indicates that the power is required to be exercised. (3) To remove any doubt, it is declared that this section applies to an Act passed after 1 January 1992 despite any presumption or rule of interpretation."

Section 4 of the principal act (as renumbered by that amending act) continued to provide:

"4. The application of this Act may be displaced, wholly or partly, by a
contrary intention appearing in any Act."

Two changes effected by the new provision may be noted. First, the previous restriction on the application of the provision to Acts passed after 31st December 1867 was removed. Second, and far more importantly, in respect of Acts passed after 1st January 1992, the section was to apply despite any presumption or rule of interpretation which might have led to a different conclusion.

I have considerable difficulty in understanding s.32CA(3). The rule of interpretation to which it most obviously would apply is the common law rule already referred to. Sub-sections 32CA(1) and (2) repeat that common law rule, but without the qualification that is a prima facie rule. On that view, the intent of the section would be to make the rule absolute, not prima facie. That appears to be the interpretation adopted by the Supreme Court of Victoria in relation to a similar provision in that state.

In this state, s.32CA must be read with s.4. I do not think it is possible to read s.32CA(3) as impliedly containing an exception to the general proposition stated in s.4. The latter reflects in part what has been regarded as a fundamental constitutional proposition, viz that Parliament cannot bind its successors. But if one applies s.4, how does the process differ from that embodied in the traditional common law rule of interpretation? The reason for the "prima facie" qualification in that rule was to cover cases where analysis of the relevant act disclosed an intention that "may" or "shall" not bear their usual meanings.

The view that the intention of s.32CA(3) was to convert the operation of the common law rule from a prima facie rule to an absolute one is confirmed by the Explanatory Note relating to the section, reference to which is authorised by s.14B(1)(c) of the Acts Interpretation Act 1954. That note explicitly refers to the common law rule as stated in Pearce and Geddes: Statutory Interpretation in Australia, (1988) at p.198-9 and asserts that the section "does away with any such approach for Acts passed after 1st January 1992".

It may be that the matter can be resolved by viewing the intention referred to in s.4 of the Acts Interpretation Act as a narrower concept than that which was reflected in the common law rule. Fortunately, I do not need to decide the question in the present case, for, as I have already said, even applying the common law rule, I cannot find any intention in the Penalties and Sentences Act 1992 to displace the ordinary meaning of "may".

It is also unnecessary for me to express any view as to the utility of provisions such as s.32CA(3). I would however draw attention to what was said by Fullagar J. (with whom Murray J. agreed) of the corresponding provision in the Victorian act:

"Nevertheless s.85(2) of the Credit Act is just the very kind of legislative provision which demonstrates in my opinion the dangers of enacting such an interpretative provision as is last above referred to. . . . Over the centuries legislators have proved to be, like judges, fallible and the whole raison d'etre of the judicial canons of construction whereby "may" should in some circumstances be construed as "shall" (and vice versa) is that thereby the courts can have some leeway in which to extricate the legislature, and the subject, from the prison of the words used and thereby avoid absurdity and give effect to the clear object and purpose of the legislation. It is statutory provisions like s.45 of the Interpretation Act that positively prevent the courts from giving effect to the object and purpose of the legislation and make them slaves to the words used. This tends to bring the law into a disrepute for which the judiciary is in no way whatever to blame, by compelling the judiciary to give a particular effect to the words used although that is contrary to the intention and object of the particular statute. It is not too much to say that the application of s.45 of the Interpretation Act to a number of statutory provisions will have the effect of making it impossible for the court to obey both s.45 and s.35(a) of the same Act."

Section 35(a) of the Victorian Interpretation of Legislation Act 1984 is equivalent to s.14A(1) in the Queensland Acts Interpretation Act 1954. Although there may not be any scope for applying s.14A in the present case, the general point made by his Honour is valid.

Reconsideration

Because this case came before the learned District Court judge under s.146(2), deciding that his order was a nullity produces another consequence: it throws into doubt his exercise of discretion under that sub-section. The judge decided to proceed under s.147 in the mistaken belief, encouraged by the crown prosecutor, that he could validly make an order under s.147(1)(a). As presently advised, it seems to me that that error fatally compromised the exercise of discretion under s.146(2). It cannot be assumed that had the judge been aware that if he proceeded under s.147, his only options were orders under either s.147(1)(b) or (c), he would necessarily had decided to proceed under that section. I say "as presently advised" because unfortunately (though not surprisingly) this aspect of the matter was not argued before us. Nonetheless, because of the close association between s.146 and 147, I do not think it can be entirely ignored. Any reconsideration of the merits must in my view extend to the issues raised under s.146(2) as well as under s.147(1), whatever be the correct interpretation of "may" in the latter sub-section.

What order should be made in the present case? I have given this question much anxious consideration, for it has troubled me. One the one hand, despite being given an opportunity by this court to put forward a satisfactory explanation of the circumstances of the breach offence, the respondent has left us in great uncertainty on that issue. The affidavit put before us has been described in some detail by Lee J. I find it ambiguous and confusing. I am troubled that it speaks of instructions obtained by the deponent clerk long before the evidence was called for and for a different purpose. It leaves me with the uncomfortable feeling that there may be an explanation which could be advanced on behalf of the respondent which would aid his cause, if only a bit more effort were devoted to the matter. Ordinarily, I would ignore this as a problem of the respondent's own making. Even in criminal cases, a litigant is generally bound by the presentation of his case. However in the present case, there are countervailing considerations. I have referred to them already in the context of my view that we should refrain from dealing with the question of the validity of the order made below. Like Lee J., I think the attitude of the prosecuting authority (and the Attorney-General) is of some significance. That attitude has fluctuated like a straw in a variable wind. In the end, it seems to me that this court simply has not had put before it sufficient material to enable it to decide whether it should make an order under s.147(1)(c) and if so, the duration of the period of imprisonment which should be served.

In these circumstances the best course is to remit the matter to the District Court (preferably but not necessarily the same judge) to receive relevant submissions (and if the parties so desire, further evidence) and to determine the matter in accordance with our reasons for judgment. I appreciate the undesirability of a further hearing in this case, and I am conscious that it has already required two hearings before the District Court and two hearings before this court. Nonetheless, I can see no alternative. I do not think we are in a position to make an order; and as things stand, the existing order is a nullity. It is undesirable to leave the record in that state. A further hearing before the District Court seems to me to be the only solution.

I would set aside the order of the District Court and remit the matter to that court to be heard and determined in accordance with law. Otherwise I would dismiss the appeal. If contrary to my view, a majority is of the view that the matter should not be remitted to the District Court, I would simply set aside the order made below and dismiss the appeal.

The others were R v Holcroft, heard on 11th September 1996 and R v Bowen, heard on 13th September
1996.

In the words of the learned Crown Prosecutor in the District Court.

Unreported, C.A. No. 372 of 1995, 1st February 1996.

Unreported, C.A. No. 133 of 1995, 11th August 1995.

Unreported, C.A. No. 280 of 1993, 18th October 1993.

Unreported, C.A. No. 133 of 1995, 11th August 1995.

Unreported, 27th September 1995.
The matter is not obvious. The Attorney has a right of appeal against "any sentence pronounced by ...
the court of trial". The definition of "court of trial" is circular, while the definition of "sentence" (which is
inclusive, not exclusive) refers to an order made by the court of trial "on conviction of a person". This is
a less than apt description of an order made under s.147 of the Act. See however s.149 of the Act.
Criminal Code, s.669A(1).
I have described this process in R v Bowen.
Finance Facilities Pty Ltd v Commissioner of Taxation (1971) 127 CLR 106 at p.134 per Windeyer J.
Ibid.
Metropolitan Coal Co of Sydney Ltd v Australian Coal and Shale Employees Federation (1917) 24 CLR
85 at pp.96-7 per Isaacs and Rich JJ.; South Australian Cold Stores Ltd v Electricity Trust of South
Australia (1965) 115 CLR 247 at pp.264-5 per Owen J.
Ex Parte McGavin; re Berne (1945) 46 SR(NSW) 58.
See for example ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 110 ALR 47 at
p.57; Re Permanent Trustee Nominees (Canberra) Ltd [1989] 1 Qd.R 314; Derisi v Vaughan [1983] 3
NSWLR 17.
See for example the Powers of Criminal Courts Act 1973 (UK), s.23(1)(d); Crimes Act 1914 (Cth),
s.20A(5)(c)(ii); Sentencing Act 1991 (Vic), s.31(5)(d);Criminal Law (Sentencing) Act 1988 (S.A.),
s.58(1)(c)(ii); Criminal Justice Act 1954 (N.Z.), s.21A(5)(c).
See Acts of Council (Shortening) Act 1858 (NSW 22 Vict. 12), s.8.
Acts Interpretation Act 1954, s.3 (as originally enacted).
Derisi v Vaughan [1983] 3 NSWLR 17 at p.19.
Statute Law (Miscellaneous Provisions) Act 1991 (No 97 of 1991), s.3 and schedule 1.
Sub-section (3) was reworded in a way not material to the present discussion by the Statute Law
(Miscellaneous Provisions) Act (No 2) 1994 (No 87 of 1994) s.3 and schedule 1.
By 1991, that restriction could seldom have been of any practical application.
Accident Compensation Commission v Murphy [1988] VR 444; Encyclopaedia Britannica (Australia) Inc
v Director of Consumer Affairs [1988] VR 904.
Government Printer: Queensland Acts 1991, vol.3, p.2866.
See s.14A(2)

[1996] QCA 480

29/11/1996