R v Kelleher

[1994] QCA 53

IN THE COURT OF APPEAL [1994] QCA 053

SUPREME COURT OF QUEENSLAND

C.A. No. 417 of 1993.

Brisbane

[R v. Kelleher]

T H E Q U E E N

v.

MARK ANTHONY KELLEHER

(Applicant)

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Macrossan C.J.
Pincus J.A.
Davies J.A.

_______________________________________________________________

Judgment delivered 23 March 1994
Judgment of the Court
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1.Application granted and appeal allowed.

2.The order for restitution in the sum of $4,137.90 made below is varied by allowing 18 months from the date of sentencing (22 October 1993) to pay the said sum in lieu of the nine months allowed by the primary judge.
3.The suspended sentence of imprisonment for 18 months imposed

below is set aside.

4.Convictions are recorded against the applicant in respect of

the five offences the subject of these proceedings.

5.The Court makes a probation order for the applicant, releasing him under the supervision of an authorised Commission officer for a period of two years commencing today at Brisbane, containing the requirements set out in s. 93 of the Penalties and Sentences Act 1992.
_______________________________________________________________

CATCHWORDS:CRIMINAL LAW - Sentence - 3 offences of housebreaking and 2 offences of stealing - applicant did not play a leading role in the commission of the offences - no previous convictions - whether sentence of 18 months imprisonment wholly suspended manifestly excessive. S. 9(2)(a)(i) Penalties and Sentences Act 1992.

Counsel: Mr T Carmody for the applicant.

Mr B Butler for the Crown.

Solicitors: Legal Aid Office for the applicant.

Director of Prosecutions for the Crown.

Hearing Date:02/02/1994.

REASONS FOR JUDGMENT - THE COURT Judgment delivered 23 March 1994

This is an application for leave to appeal against sentence, made by a young man who has been convicted of three offences of breaking and entering and two of stealing. The sentence imposed on the applicant, who pleaded guilty, was one of imprisonment for 18 months in respect of each count, in addition to which orders were made that the applicant make restitution in the sum of $50.00, in respect of one count, within three months and in the sum of $4,137.90, in respect of another count, within nine months; there were periods of imprisonment stipulated, in default of payment. The sentence of imprisonment for 18 months was the subject of the following order:

"I order that the whole term of the imprisonment be suspended for a period of 18 months, and you must not commit another offence punishable by imprisonment within that period of 18 months if you are to avoid being dealt for the suspended term of imprisonment."

Mr Carmody, who appeared for the applicant, argued that the judge should not have imposed the 18 month term of imprisonment and also complained of the restitution orders. The sentence of 18 months imprisonment was suspended, the judge ordering, in effect, (to use the terms of s. 144(5) of the Penalties and Sentences Act 1992 and not those used by the judge) that the period during which the applicant must not commit another offence punishable by imprisonment, to avoid being dealt with under s. 146 for the suspended sentence, was 18 months. We note that under s. 147(2) a further conviction of an offence for which imprisonment may be imposed will, unless "it would be unjust to do so in view of all the circumstances that have arisen since the suspended imprisonment was imposed", produce an order that the offender serve the whole of the suspended imprisonment.

The offences in question were committed on 21, 22 and 23 June 1993. At the time when they were committed the applicant had not been convicted, so far as the material before the Court shows, of any offence. It is to be noted, however, that on 8 July 1993 (after the offences the subject of this application were committed), the applicant was convicted of two offences which were committed on 28 May 1993 (before the subject offences were committed). They were possession of a dangerous drug and possession of a pipe used in connection with smoking a dangerous drug; the applicant was fined a total of $500.00, in respect of the drug offences.

The prosecutor, as to the first break-in, told the judge that on 21 June 1993 the applicant and some co-offenders entered a house by forcing a door. The occupier of the house was not, it appears, at home when the offenders broke in, but returned home during the incident, went to a friend's house and called the police. A number of items were stolen and all, except one worth $50.00, were recovered.

The next break-in charged was effected, again, by forcing a door. On this occasion property worth $4,137.90 was taken and none recovered. The applicant told the police that he went to the house with two co-offenders, but stayed in a motor vehicle outside the house while the others broke in and stole the goods.

He asserted to the police that he had received only some

marijuana and alcohol for his part in that break-in.

The third and last break-in the subject of the application was one in which, according to the applicant, he and two co- offenders drove to a house; the applicant remained in the car and the other two went into the house but stole nothing because they were disturbed by a neighbour.

Before the primary judge, counsel for the applicant relied upon co-operation with the police; he said and it was apparently not disputed that, in respect of the break-in which produced property valued at $4,137.90 (the second mentioned above), the applicant had told the police of his involvement, a matter of which they had no previous knowledge. Counsel also told the judge that the applicant was a qualified butcher who had resigned from his job, with Woolworths, because his employers had found out about the offences and the applicant did not wish to work with people who knew what he had done.

The applicant was born on 11 November 1970 and so was 22 when he committed the offences in question.

The principal argument advanced by Mr Carmody for the applicant was that s. 9(2)(a)(i) of the Penalties and Sentences Act 1992 requires that imprisonment be imposed as a punishment only as a last resort; he contended that in view of the age of the applicant and the absence of any convictions prior to the commission of the offences in question it was inappropriate to impose any sentence of imprisonment, suspended or otherwise.

It appears that the intention of the legislature to be derived from s. 9(2)(a)(i) is that imprisonment is to be a "last resort", in the sense that it is to be imposed as a punishment only where nothing less will meet the case. Generally speaking, the provision merely reflects the practice which courts followed before the Penalties and Sentences Act 1992 was enacted, but the specific requirement of the statute must be observed, whether or not conforming with past practice.

It seems plain that a suspended sentence is a "sentence of imprisonment" within s.9(2)(a)(i); that may be thought to be, perhaps, an inconvenient result. From the remarks the judge made, one may infer that his Honour regarded the applicant as a person who would respond best if the threat of a significant period of imprisonment hung over his head. However, the proposition that the circumstances were such that no lesser punishment could be regarded as appropriate seems hard to support. As Mr Carmody pointed out, a substantial period of probation could well have the desired effect of encouraging the applicant to abandon the bad company into which he had apparently fallen.

We turn at this stage to the question of restitution. Mr Carmody suggested that it was unjust, on the part of the primary judge, to impose upon the applicant the obligation to make restitution in the full amount of which his victims had been deprived, considering that the applicant had benefited but little and had not taken the primary role in the commission of the offences. In our opinion the order for restitution made was, subject to a qualification we shall mention, a proper one.

It is true that the unidentified co-offenders, on the information placed before the Court, were the ones who substantially benefited from the offences; but, their identities being undisclosed, the applicant is the only person available to make restitution. Further, the judge was told that although the applicant had at the time of the sentencing no permanent job, he was confident of obtaining one. We do not regard the restitution order made as a harsh one, but have come to the conclusion that, in view of the applicant's employment position, the applicant should be allowed that time to pay the larger sum for which his counsel pleaded below - namely 18 months rather than 9 months.

To return now to the sentence of imprisonment, we have come to the view that the judge should not have imposed such a sentence, suspended or otherwise, because:

(a)the applicant was 22 years of age at the relevant time;
(b)he had no previous convictions;

(c)although all breaking and entering offences are serious,

these were not accompanied by any aggravating
circumstances of the kind sometimes encountered;

(d)the applicant's role in the offences was not a leading

one;

(e)the applicant has against him orders for substantial sums in restitution, to which are attached sanctions of imprisonment (totalling 6 months and 2 weeks) in default of payment.

The consequence is that as we have indicated above, we favour Mr Carmody's contention that the principle set out in s. 9(2)(a)(i) of the Penalties and Sentences Act 1992 was applicable and should have been applied by the learned primary judge; the suspended sentence should not have been ordered. Subject to the applicant's consent, there will be a probation order.

The orders will be as follows:

1.    Application granted and appeal allowed.

2.The order for restitution in the sum of $4,137.90 made below is varied by allowing 18 months from the date of sentencing (22 October 1993) to pay the said sum in lieu of the nine months allowed by the primary judge.
3.The suspended sentence of imprisonment for 18 months imposed

below is set aside.

4.Convictions are recorded against the applicant in respect of

the five offences the subject of these proceedings.

5.The Court makes a probation order for the applicant, releasing him under the supervision of an authorised Commission officer for a period of two years commencing today at Brisbane, containing the requirements set out in s. 93 of the Penalties and Sentences Act 1992.