R v MacDonald

[2005] QCA 48

SUPREME COURT OF QUEENSLAND

CITATION:

R v MacDonald [2005] QCA 48

PARTIES:

R
v
MacDONALD, Norman Arthur
(applicant)

FILE NO/S:

CA No 301 of 2004
DC No 772 of 2000
DC No 1917 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 March 2005

DELIVERED AT:

Brisbane

HEARING DATE:

12 November 2004

JUDGES:

McPherson and Jerrard JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – OTHER MATTERS – breach of suspended sentence by applicant – judge ordered that applicant serve the whole of the suspended term of imprisonment – s 147 of the Penalties and Sentences Act 1992 (Qld) states that in the event of such a breach the court must order that the whole of the suspended sentence be served unless it would be unjust to do so – applicant led evidence of rehabilitation regarding drug use – applicant had lengthy criminal history – whether in the circumstances it was unjust for the judge to order that the whole of the suspended term of imprisonment be served

Penalties and Sentences Act 1992 (Qld), s 147

COUNSEL:

K M McGinness for the applicant
R G Martin SC for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Qld) for the respondent

1. McPHERSON JA: I agree with the reasons of Jerrard JA for dismissing this application for leave to appeal against sentence.

1. JERRARD JA:  In this application Norman MacDonald seeks leave to appeal against an order made in the Brisbane District Court on 6 August 2004 requiring that Mr MacDonald serve all of the remaining portion of a sentence of two and a half years imprisonment imposed on him on 20 March 2001, and ordered on that date to be suspended after he had served nine months of that sentence.  The judge ordered that three separate periods of pre-sentence custody totalling 264 days be declared imprisonment already served under sentences imposed that day.

1. As at 20 March 2001 Mr MacDonald already had a lengthy history of convictions, beginning with six in the Townsville, Mackay and Toowoomba Children's Court for offences of dishonesty, those being breaking and entering;  stealing;  and unlawfully using a motor vehicle.  He then repeatedly appeared in the Magistrates Courts in Townsville, Brisbane, Inala and Ipswich, and then in the Ipswich District Court on 9 June 1995.  Those appearances were on charges of breaking and entering premises, stealing, assault occasioning bodily harm, serious assault on a police officer, breaching the Bail Act, and breaching domestic violence restraining orders, and they culminated with one in the Brisbane Supreme Court on 12 June 1996, when he was convicted on three counts of supplying a dangerous drug and sentenced to 12 months imprisonment.  He had previously been sentenced to terms of imprisonment on seven separate occasions, including a sentence of 18 months imprisonment imposed in the District Court on 9 June 1995, for an offence of breaking, entering and stealing.

1. Mr MacDonald had committed those offences of supplying drugs for which he received one year imprisonment in January and March 1995, and his record of convictions shows that he did not re-offend in any serious way for another four and a half years, when he committed offences of entering a dwelling house in October 1999, and then again in December 1999.  It was those offences, together with an offence of unlawfully using a motor vehicle committed in January 2000, and a further offence of entering a dwelling house in June 2000, for which he was sentenced in the District Court on 20 March 2001 when he received the sentence of two and a half years imprisonment suspended after serving nine months.  (He had been dealt with in July 1999 for an offence of exceeding a speed limit of more than 45 kilometres per hour, and in October 1999 for disobeying a red light.)  Putting those matters aside, he did succeed in avoiding offending for dishonesty, and what for him was a lengthy period ending in October 1999.

1. The learned judge who imposed the substantially suspended sentence in March 2001 recorded on that date that Mr MacDonald was also being dealt with then for two charges of breaching the Bail Act, one of driving with a blood alcohol concentration exceeding the limit, one of unlicensed driving, and one of failing to take reasonable precautions in respect of a hypodermic syringe.  The judge also recorded that three of the indictable offences for which Mr MacDonald was then being sentenced were committed while he was on bail, and the last indictable offence had been committed after he had been released on bail for a second time.  The judge also recorded that Mr MacDonald was then 31 years old, and had a lengthy criminal history for offences of breaking and entering and other offences of dishonesty.

1. The judge then took into account in Mr MacDonald's favour that in respect of his criminal history he had last committed an offence of breaking and entering in 1994, and that there had been the already described break of some four years between his last conviction and of the first offence of dishonesty for which he was then being sentenced.  The judge accepted that when Mr MacDonald committed those more recent offences of dishonesty he was addicted to heroin;  but that as against that Mr MacDonald had taken steps to rehabilitate himself, and he had the support of a number of persons in his effort in that regard.  The learned judge then imposed sentences of differing duration, of which the most substantial was the two and a half years imprisonment, suspended as described.

1. Mr MacDonald was not able to maintain his efforts at rehabilitation, and was dealt with in the Beenleigh Magistrates Court on 18 September 2003 and 29 March 2004, for a number of offences committed between 16 January 2002 and early June 2003.  When he appeared on 18 September 2003 he was dealt with for offences of entering a dwelling house, fraud, stealing, possession of property suspected of being tainted, unlawful use of a motor vehicle, common assault and offences of obstructing a police officer.  For all those offences he was sentenced to two years imprisonment, to be suspended after he had served 104 days, and it was declared that 104 days he had already spent in pre-sentence custody was time already served under that sentence.  He was accordingly released immediately, and then next appeared on 29 March 2004 in respect of offences committed before his September 2003 appearance, but which had not then been dealt with, and which he wanted "cleared up".  These were offences of breaching a bail undertaking, entering a dwelling and committing an indictable offence (committed between 13 April and 3 May 2003), and offences of stealing and unlawful entry of a vehicle.  For those offences he was sentenced to two years imprisonment, wholly suspended for a period of 18 months.  Various fines were also imposed.

1. The explanation for the lenient sentences imposed in September 2003 and March 2004 in the Beenleigh Magistrates Court is that the magistrate responded to the arguments and reports submitted to him, which indicated that Mr MacDonald was again attempting to rehabilitate himself.  His mother had died in September 2003 and her death had affected him dramatically.  As described in a report from a social worker presented to the learned judge who activated the suspended sentence on 6 August 2004, Mr MacDonald had converted to Christianity after October 2003 and become an active member of the Tribe of Judah Church, of which his whole family were also now a part.  His relationship with his partner Lisa Chapman was described in that report as much stronger than before, and their children (they have four) were described as much more content.  Mr MacDonald had become actively involved in his children's school at Marsden and was a regular volunteer there, and had been invited by the school to be a storyteller for their Multicultural Day.  This had left him with a degree of pride.

1. That report provided a description of Mr MacDonald's earlier life.  His mother had struggled with addiction to alcohol and after his stepfather left the family when Mr MacDonald was nine, he had lacked structure and security in his childhood.  Sometimes the household lacked sufficient money for his mother to provide the basic necessities and Mr MacDonald began stealing.  He had difficulties with his education, in that his convictions for stealing resulted in his being placed in the Cleveland Youth Centre in Townsville after he had completed year 8, and he did years 9 and 10 in that Youth Centre.  When released he did year 11 at the Townsville State High School, but after being placed first on probation and then community service in that year, he was eventually expelled.  He had otherwise achieved well at that school, representing North Queensland in the school swimming tournaments.

1. The report describes his having attended the Preston TAFE College in Melbourne after his release from imprisonment when sentenced in 2001, where he studied for a diploma in sociology.  This was unsuccessful, perhaps because of his separation from his support systems and from Lisa, and he returned to the use of drugs and to criminal activity to obtain them.  That conduct resulted in his being before the District Court in August 2004 and dealt with for breaching the suspended sentence imposed three and a half years earlier.

1. The learned judge was informed in August 2004 of the matters indicating that Mr MacDonald was again attempting rehabilitation, but noted that Mr MacDonald had breached the suspended term within nine months of it being imposed, and that he had committed 22 offences in breach of it, committed over a period of 18 months. The learned judge remarked that the commission of those 22 offences indicated that the confidence that the judge had had in Mr MacDonald rehabilitating himself in 2001 was completely misplaced. The judge then remarked that s 147 of the Penalties and Sentences Act 1992 (Qld) relevantly provides that where a suspended sentence is breached a court must order the offender serve the whole of the suspended term of imprisonment, unless it would be unjust to make such an order. The judge concluded that in all of the circumstances the judge was unable to find anything that would make it unjust to order that Mr MacDonald serve the whole of the suspended term, and accordingly did so.

1. The contents of the report and other references placed before the judge were relied on by the applicant’s counsel as showing a strong effort at rehabilitation.  The report described how Mr MacDonald had been attending a Logan-Beaudesert Community Health Service once a month since January 2004 for regular urine testing for drugs and alcohol, and that all tests had come up "clean";  and that Mr MacDonald was strongly supported by the clinical nurse at that health service.  The author of the report also described how Mr MacDonald now had a more positive attitude about his own life and set realistic goals for himself, having stopped imbibing heroin six months "prior to his incarceration in March 2003", adding that Mr MacDonald "has been drug-free for approximately two years".

1. That last observation must be questioned, because Mr MacDonald committed an offence of burglary in May 2003;  and while he may have told the report writer that he had not imbibed heroin since September 2002 and had been drug free since August 2002, he clearly committed a considerable number of offences after that date.  These included driving while disqualified on 10 September 2002, entering a dwelling house on that same date, driving while disqualified on 14 October 2002, unlawfully possessing a silver spoon used in connection with the administration of a dangerous drug that same day, possessing tainted property also on that day, obstructing a police officer on 29 October 2002, entering a vehicle with intent to commit an indictable offence and damaging a quarter glass window between 22 November and 25 November 2002, stealing a backpack, clothing, shoes and sunglasses between those same dates, unlawfully using a motor vehicle between 17 November and 18 November 2002, stealing a baby seat between 17 November 2002 and 4 December 2002, unlawfully using a motor vehicle between 18 May 2003 and 5 June 2003, and the offence of entering a dwelling between 30 April 2003 and 3 May 2003.  In those circumstances it is obvious that Mr MacDonald has either considerably over-stated to the report writer the period in which he has been drug free, or else has continued to commit offences after stopping drug usage.

1. A written statement from Lisa Chapman supplied to the judge, describing in it how Mr MacDonald had changed his attitudes, includes the information that "he’s on a methadone programme", a matter not expressly mentioned in the social worker's report.  The learned sentencing judge was given no information about when Mr MacDonald began that programme or how it had progressed.  The judge did receive a very brief report confirming Mr MacDonald's attendance on 20 January 2004 at the Ewing Road Clinic of the Logan Central Community Health Centre, which advised that Mr MacDonald was "still currently on the program", but gave no other information, such as whether he regularly attended or other relevant matters.  In the circumstances it seems to me that the sentencing judge could not have been confident in August 2004 that Mr MacDonald had put sufficient information before the court to demonstrate a real and strong commitment to overcoming and abandoning his drug dependency.  It appears he is drug dependent on a prescribed drug, and has not been able to be honest about the extent of his use of non-prescribed drugs. 

1. The applicant's counsel contends that the learned judge erred in failing to give sufficient weight to the considerations set out in s 147(3)(a)(v) of the Penalties and Sentences Act 1992, urging that the court should have been satisfied that Mr MacDonald had made a genuine effort at rehabilitation, demonstrated by the length of his period of non-offending behaviour (about 15 months as at August 2004), the matters mentioned in the pre-sentence report, which the applicant's counsel submitted showed that Mr MacDonald had abstained from illicit drug use and further criminal behaviour, and the community service performed by Mr MacDonald. This included not only his community service with his children's school and considerable efforts he put in with his church, but services he was shown to have performed for an incapacitated and elderly neighbour.

1. It is clear he has been genuinely engaged in work benefiting a much larger community, which has included his neighbourhood, a school and his church;  he has been involved in the work with the church for less than a year.  As already observed, he has not in fact abstained from drug use.

1. Mr MacDonald obviously has considerable ability and he is struggling to overcome the many difficulties with which his life has confronted him.  He has not succeeded in remaining drug free since March 2001 and whether he does will shape the remainder of his life.  Imprisonment is a hard sentence, but Mr MacDonald seems to have as realistic a chance in prison of making good his apparent goal of freeing himself from drug addiction as he has while outside prison.  In the general community he uses at least methadone.  There was insufficient in the material placed before the sentencing judge for that judge to feel confident once again that Mr McDonald would be unlikely to avoid a return to his drug affected offending behaviour if the period of suspension was simply further extended.

1. Hard as the result is for him, his partner, their children and their neighbour, the large number of offences he committed over a year and a half while under the suspended sentence, and his relatively short period of non-offending since then coupled with the fact of his continuing addiction to at least methadone, does not give enough grounds for the degree of confidence in him necessary to make it unjust that he serve the remainder of the suspended sentence.  Accordingly I would dismiss his application.

1. FRYBERG J:  As demonstrated in the reasons for judgment of Jerrard JA, the applicant did not prove to the sentencing judge that it would be unjust to order him to serve the whole of the suspended imprisonment.  Consequently the judge's order was correct.

1. I agree with the order proposed by Jerrard JA.