R v Muller - [2005] QCA 417

SUPREME COURT OF QUEENSLAND

CITATION: R v Muller [2005] QCA 417

PARTIES:

R v MULLER, Shane Richard
(applicant/appellant)
FILE NO/S: CA No 267 of 2005
DC No 2887 of 2005
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING
COURT: District Court at Brisbane
DELIVERED ON: 11 November 2005
DELIVERED AT: Brisbane
HEARING DATE: 27 October 2005
JUDGES: Williams and Jerrard JJA and Atkinson J
Separate reasons for judgment of each member of the Court,
Jerrard JA and Atkinson J concurring as to the orders made,
Williams JA dissenting
ORDERS:

1. Grant the application for leave to appeal against
sentence and allow the appeal
2. Set aside the order made 12 October 2005 activating
eight months of the suspended sentences and order
instead that the applicant be sentenced to
imprisonment which expires on 11 November 2005

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – PROPERTY OFFENCES – applicant sentenced in August 2002 to four years imprisonment suspended after 18 months operational for four years in relation to 32 property-related offences – applicant breached suspended sentence in early 2004 – drug rehabilitation order imposed in June 2004 as part of sentence for those offences breaching suspended sentence – District Court judge dealing with breach adjourned November 2004 hearing to allow applicant to show further evidence of drug rehabilitation – different District Court judge in October 2005 activated eight months of the two and a half years suspended imprisonment – applicant had appalling and lengthy criminal history explained by drug addiction – applicant has not re-offended since May 2004 – applicant has gained employment and purchased a house with his partner whilst continuing rehabilitation – whether judge gave insufficient weight to rehabilitation efforts when activating part of suspended sentence – whether applicant is at less risk of re-offending whilst on probation rather than in prison

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS – PROBATION ORDERS AND SUSPENSION OF SENTENCE – GENERALLY – s 144(6)(b) of the Penalties and Sentences Act 1992 (Qld) limits the length of an operational period for a suspended sentence to five years – a court dealing with an offender for breaching a suspended sentence exercises powers under s 147 of that Act which include the power to extend the operational period by one year – whether the operational period can be extended by s 147(1)(a) for a period exceeding five years in total – whether the judge erred in holding that he was unable to extend the operational period by one year to six years in total – whether a court dealing with an offender for breaching a suspended sentence can impose an intensive correction order
Criminal Code 1899 (Qld), s 16
Drug Rehabilitation (Court Diversion) Act 2000 (Qld), s 19, s
20, s 36
Penalties…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Muller

Details

AGLC: R v Muller [2005] QCA 417
Case: [2005] QCA 417
Decision Date: 11/11/2005

CaseChat Overview and Summary

In the case of R v Muller, the appellant, Mr Muller, challenged the decision of the Beenleigh Magistrates Court to partially activate a suspended sentence imposed in 2002 for 32 property-related offences. Mr Muller had a history of drug addiction and had breached the terms of his suspended sentence in 2004. As part of his sentence, he was required to undergo drug rehabilitation, which he successfully completed. He had not reoffended since May 2004 and had gained employment and purchased a house with his partner. The legal issues before the court were whether the District Court judge had given insufficient weight to Mr Muller’s rehabilitation efforts when partially activating his suspended sentence and whether Mr Muller was at less risk of reoffending while on probation rather than in prison.

The court considered the submissions made by Mr Muller's counsel that the District Court judge should have given more weight to his rehabilitation efforts and the positive changes in his life. The court examined the statutory provisions regarding the suspension of sentences and the conditions under which such sentences could be activated. The court noted that Mr Muller had made significant progress in his rehabilitation and had not reoffended for over a year, which was the longest period he had been drug-free since his first court appearances in 1993. The court also considered the nature of the original offences and Mr Muller's extensive criminal history, which was heavily influenced by his drug addiction. Ultimately, the court determined that the District Court judge had erred in not fully considering the extent of Mr Muller's rehabilitation and the low risk of reoffending while on probation.

The court allowed the appeal, setting aside the partial activation of the suspended sentence by the Beenleigh Magistrates Court. It ordered that the suspended sentence should remain operational and not be partially activated. The court's decision was based on the significant progress Mr Muller had made in his rehabilitation and the low likelihood of reoffending while on probation. This decision underscored the importance of considering an offender's rehabilitation efforts and positive changes in their life when determining the appropriateness of partially activating a suspended sentence.

Orders

Orders of the court

Grant the application for leave to appeal against

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The adjournment was granted and Mr Muller next appeared in a court on 5 August 2005, in the Beenleigh Magistrates Court, which court then (pursuant to s 36 of the Rehabilitation Act) reconsidered the initial sentences imposed on Mr Muller on 22 June 2004, vacated the intensive drug rehabilitation order, and imposed sentences of 18 months probation, coupled with orders for restitution of $3,961, on all charges for which Mr Muller had been dealt with on his pleas of guilty on 22 June 2004. Those orders made on 5 August 2005 were made because Mr Muller had successfully completed the ordered rehabilitation program, demonstrating considerable success in stopping illicit drug usage. As required by the order, he had been initially admitted to the Moonyah Residential Rehabilitation Program on 22 June 2004; he absconded on 17 July 2004 and was then remanded back in custody. He began the program again on 10 August 2004, when it was established that he had consumed cannabis during that period in which he had been returned to prison. For that consumption he then served another eight days in prison, and was released again to the Moonyah Residential Program on 24 August 2004; on the information now available he has remained drug free since then, a little over a year, apparently the longest period in his life without non-prescribed drugs since his first court appearances in 1993. He successfully graduated from the Moonyah program on 29 March 2005, and by 12 October 2005 – when the partly suspended sentences were partly activated – had succeeded in gaining employment with the Brisbane City Council and had, with his partner, bought a house into which they had by then moved. His probation order required that he submit himself to fortnightly urine testing, which had been relaxed to once a month testing by reason of what Mr Green submitted to the learned sentencing judge was the “extraordinary rehabilitation which had taken place”. Can an operational period be suspended beyond five years? Mr Green submitted to this Court, and to the learned sentencing judge, that the appropriate order was one under s 147(1)(a)(i), again extending by one year the operational period of suspension of the sentences imposed on 20 August 2002. That order, if made, would mean the operational period now totalled six years and would expire on 20 August 2008. Mr Green submitted that the restriction imposed in s 144(6)(b) applies only when a court is first making an order suspending all or part of a sentence. That section relevantly provides: “144(1) If a court sentences an offender to imprisonment for 5 years or less, it may order that the term of imprisonment be suspended. (2) An order under subsection (1) may be made only if the court is satisfied that it is appropriate to do so in the circumstances. (3) An order under subsection (1) may suspend the whole or a part of the term of imprisonment. …. (5) The court must state an operational period during which the offender must not commit another offence punishable by imprisonment if the offender is to avoid being dealt with under s 146 for the suspended sentence. (6) The operational period starts on the day the order is made and must be – (a) not less than the term of imprisonment imposed; and (b) not more than 5 years.”

CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – PROPERTY OFFENCES – applicant sentenced in August 2002 to four years imprisonment suspended after 18 months operational for four years in relation to 32 property-related offences – applicant breached suspended sentence in early 2004 – drug rehabilitation order imposed in June 2004 as part of sentence for those offences breaching suspended sentence – District Court judge dealing with breach adjourned November 2004 hearing to allow applicant to show further evidence of drug rehabilitation – different District Court judge in October 2005 activated eight months of the two and a half years suspended imprisonment – applicant had appalling and lengthy criminal history explained by drug addiction – applicant has not re-offended since May 2004 – applicant has gained employment and purchased a house with his partner whilst continuing rehabilitation – whether judge gave insufficient weight to rehabilitation efforts when activating part of suspended sentence – whether applicant is at less risk of re-offending whilst on probation rather than in prison
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS – PROBATION ORDERS AND SUSPENSION OF SENTENCE – GENERALLY – s 144(6)(b) of the Penalties and Sentences Act 1992 (Qld) limits the length of an operational period for a suspended sentence to five years – a court dealing with an offender for breaching a suspended sentence exercises powers under s 147 of that Act which include the power to extend the operational period by one year – whether the operational period can be extended by s 147(1)(a) for a period exceeding five years in total – whether the judge erred in holding that he was unable to extend the operational period by one year to six years in total – whether a court dealing with an offender for breaching a suspended sentence can impose an intensive correction order
Criminal Code 1899 (Qld), s 16 Drug Rehabilitation (Court Diversion) Act 2000 (Qld), s 19, s 20, s 36 Penalties…