R v Pilkington

[2000] QCA 78

[R v PILKINGTON]
  [2000] QCA 78

COURT OF APPEAL

McMURDO P
THOMAS JA
ATKINSON J

CA No 364 of 1999

THE QUEEN

v.

PETER OWEN PILKINGTON                   Applicant

BRISBANE

..DATE 16/03/2000

ORDER

THE PRESIDENT: I realised after the event that the order made by this Court earlier today was unlawful in that a probation order was imposed during the operational period of suspended sentence. Such an order is prohibited (see Hughes (1999) 1 Qd.R 389, R v. M (1999) QCA442, R v. C G Hughes (2000) QCA 16.)

This case is a good example of a situation where a prohibited combination of sentences would be beneficial both to the offender and to the community and plainly demonstrates the need for legislative intervention to permit such a combination of orders where appropriate.

THE PRESIDENT:  This Court has however you would agree,
Mr Byrne, no alternative but to vacate the order made earlier today.

MR BYRNE:  I do agree with that, with respect.

THE PRESIDENT:  So the orders made earlier today in respect of the offences of supplying a dangerous drug must be vacated and the sentence imposed at first instance of a suspended sentence must remain.  This means of course that neither the appellant nor the community can have the benefit of the appellant being subject to a probation order. 

To clarify the situation, I would vacate the orders I made earlier today and instead I propose the following orders. 

The application for leave to appeal is granted. The appeal against sentence in respect of the breach of suspended sentence only is allowed. That sentence is set aside and instead the appellant is ordered to serve six months of the period of imprisonment imposed and suspended by Forde DCJ. I would declare the appellant has served 107 days from 18 July 1999 to 2 November 1999 as time already served under the sentence. I would direct that under section 671G(3) of the Criminal Code the time during which the appellant was in custody pending this appeal from 2 November 1999 until today shall count as time served under the sentence.

THOMAS JA:  I will make a suggestion which I have not spoken about to the other members of the Court.  I think that it would be desirable to direct the Registrar to advise the applicant of the amended orders together with a transcript of the reasons just given with notification that the Court will reconvene for further consideration of the matter if the applicant notifies the Registrar of his desire to be heard within seven days of that notification.

ATKINSON J:  I agree.

THE PRESIDENT:  Yes, I agree with that amendment.  The orders will be as I have set out, with the additional order suggested by Justice Thomas.

MR BYRNE:  I will undertake to contact the Inala Probation Office in case the applicant turns up there tomorrow.

THOMAS JA:  Yes.  It seems possible that he either has been released or his release is imminent anyway.

MR BYRNE:  That's so, your Honour.

THOMAS JA:  It might not be as easy to serve him with the notification as one would wish.

MR BYRNE:  That's so.

ATKINSON J:  While of course he's not obliged to undergo probation obviously he shouldn't be discouraged from entering into the Fairhaven program if he so wishes.

MR BYRNE:  Yes, I if can speak to the relevant officer I'll make that point as well.

ATKINSON J:  Thank you.

THE PRESIDENT:  Thanks for your assistance, Mr Byrne.

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[2000] QCA 78
COURT OF APPEAL

McMURDO P
THOMAS JA
ATKINSON J

CA No 364 of 1999

THE QUEEN

v.

PETER OWEN PILKINGTON                   Applicant

BRISBANE

..DATE 16/03/2000

JUDGMENT

THE PRESIDENT:  The applicant pleaded guilty in the Supreme Court at Brisbane on 2 November 1999 to one count of supplying a dangerous drug, ecstasy, and one count of supplying a dangerous drug, heroin.  For these offences he was sentenced to 12 months' imprisonment suspended after four months with an operational period of 18 months. 

He was also dealt with for breach of a suspended sentence having been sentenced to 18 months' imprisonment suspended after serving six months with an operational period of two years on 10 February 1998 in the District Court for one count of break, enter and steal and two counts of burglary.

The learned Supreme Court Judge ordered the applicant to serve the suspended portion of that sentence, namely 12 months' imprisonment.  All terms of imprisonment were to be concurrent so that the effective sentence was 12 months' imprisonment with an operational period of 18 months in respect of the partially suspended sentence.  There was also a declaration in respect of time already served under the sentence.  The applicant claims the sentences imposed were manifestly excessive. 

The drug offences arose as follows.  During an interview with police in respect of other matters the applicant admitted the commission of the drug offences.  His convictions were based solely on those admissions.  He received an ecstasy tablet a few days before allowing a friend to take it. 
He told police, "I didn't care who had it.  I didn't want it any more.  I just didn't want the ecstasy or anything in my house."  He received no payment. Although he knew that it was a crime to sell the drug he thought it was all right to give it away. 

A few days later whilst shopping at Inala he bought heroin.  An acquaintance later asked him for it and he gave it away.  The heroin consisted of a small quantity of about point 1 of a gram, the quarter of the size of a match head.  Once more, he did not receive any payment and whilst he knew it was wrong to sell it believed it was all right to give it away.
He told the police the name of both his supplier and those to whom he gave the drugs.

The applicant was in custody from his arrest in April 1999 until his sentence on 2 November 1999 and until July he was serving imprisonment in respect of unpaid fines and served only 107 days solely in relation to these charges.

The applicant has informed the Court that because he ticked the wrong box in a form within the prison, the time he has spent in custody since sentence is deemed not to be part of his sentence.  The respondent accepts that this is the position.  This issue was dealt with in some detail in R v. Jeffrey Colin Jones 63/97 delivered 27 May 1997 at pages 6 to 8 of those reasons. 

That such a situation could occur is unjust in the extreme.  Certainly it can be remedied by an order of this Court but in my view it is a matter which requires remedy through immediate legislative intervention. 

The applicant is 26 years old and was 25 at the time of the offences.  He committed these offences only months after his release from custody in respect of other offences. 

The applicant's counsel at sentence submitted that it would be unjust under s.147(2)(iii) Penalties and Sentences Act (1992) to require the applicant to serve the remainder of the suspended sentence. The applicant had spent a significant period in custody and had good prospects of rehabilitation which may be detrimentally affected by a further period of imprisonment. He volunteered information about the offences which were minor examples of their type. The applicant repeats that submission in this Court.

The applicant has a bad criminal history commencing as a juvenile with offences of dishonesty, assault, street offences, drug offences and traffic offences in New South Wales.  In Queensland he has an extensive drug related criminal history since 1996.  In addition, he was convicted in 1997 of aggravated assault on a female.  He was placed on probation in 1997 and also received community service. 

He breached both the probation and community service orders and in 1998 was sentenced for a considerable number of property offences to an effective total of 18 months' imprisonment to be suspended after serving six months with an operational period of two years.  It is this sentence which is the subject of the breach proceeding.  The amount of property involved in those offences was $5,704 almost $4,000 of which was not recovered.

At the sentence a psychological report prepared by Peter Perros was tendered.  This report outlined the claim that the applicant had been sexually abused as a teenager in a boys' home.  He intends to make a formal complaint to police about the youth worker responsible.  His parents separated when he was six years old and he and his younger brother spent the next eight or nine years in boys' homes.  He is now addressing with counselling the issues of his sexual abuse which he believes was a major factor in his later heroin addiction.  His girlfriend was seven months pregnant at the time of sentence.  The applicant has a number of talents and positive character traits.  One foster father, a music teacher, introduced him to piano playing and he has recently had some sheet music published.  He is also a talented tennis player.  As a young adolescent he experimented with marijuana and progressed to more serious drugs becoming addicted to heroin in 1997 and 1998.  He has made attempts at detoxification but without any lasting success.  He applied for admission to the Salvation Army Fairhaven Drug Rehabilitation Centre prior to his sentence and was on a waiting list for admission at that time.  Whilst in custody he has taken part in programs and counselling to deal with his substance abuse.  Mr Perros opined that the applicant will need continuing therapy and medication in order to complete his rehabilitation.

References tendered at the sentence demonstrated the applicant's ability to work hard both in paid and voluntary employment and demonstrated that he has some commitment to community involvement.  The applicant's handwritten letter to the sentencing Judge claimed that he was committed to his rehabilitation, was remorseful, had his former job with a landscape designer available to him and would live on his release from prison with his mother and stepfather who were at the Court at the sentence.

The applicant, who appeared for himself today, convincingly reaffirmed his desire for rehabilitation and his preparedness to take part in the 28 week Fairhaven rehabilitation course even though this is longer than he would be required to serve in prison under his current sentence.  His girlfriend has now had the child and he is anxious to provide for his child. 

When all these matters are considered in the context of s.147(3) Penalties and Sentences Act 1992, particularly "the nature of the offence and the circumstances in which it was committed; and the proportion between the culpability of the offender for the subsequent offence and the consequence of activating the whole of the suspended imprisonment;" and his "genuine efforts at rehabilitation since the original

sentence was imposed", I am persuaded that the learned sentencing Judge erred in concluding under s.147(2) that it was not unjust to order the offender to serve the whole of the suspended imprisonment. Taking into account all relevant and competing matters an order that the offender serve six months of the suspended imprisonment under s.147(1)(c) Penalties and Sentences Act 1992 was the appropriate order.

The applicant, a heroin addict, has expressed a willingness to take part in the rehabilitation program at Fairhaven.  This would best achieve his rehabilitation and would provide suitable control over him.  A sentence could be framed in respect of the drug offences to provide for this by placing the applicant on 18 months probation with the usual conditions but including special conditions that he take part in the live-in rehabilitation program at the Salvation Army Fairhaven Drug Rehabilitation Centre and complete that program to the satisfaction of his authorised Commission officer and that he subject himself to urine analysis as required by his authorised Commission officer.

I take it, Mr Pilkington, you'd be prepared to accept probation on those terms and conditions.

APPLICANT:  Yes.

THE PRESIDENT:  In those circumstances I am satisfied that the sentences which I have proposed should be substituted. 
I would grant the application for leave to appeal against sentence, allow the appeal and instead of the sentence imposed at first instance in respect of the breach of suspended sentence, order the appellant to serve six months of the suspended imprisonment.  In respect of the two offences of supplying a dangerous drug, I would order that the appellant be placed on 18 months' probation on the usual conditions together with the special conditions outlined by me earlier.

Is that a sufficient order, Mr Byrne?  I'm getting rusty on these matters.

MR BYRNE:  Yes, I think there will have to be an order that he report within probably 24 hours of his release from custody to a probational officer.

ATKINSON J:  And we have to say where, don't we?

MR BYRNE:  Yes, we do.

THE PRESIDENT:  That's what I need to say, yes.  Brisbane?  Do you know where the Brisbane Probation Office is?  Well, you'll be told at the prison in any case.

APPLICANT:  I know the closest one to my house is Inala at the courthouse there.

THE PRESIDENT:  Would you prefer Inala?

APPLICANT:  If it's feasible, yes.

THE PRESIDENT:  The appellant must report to an authorised Commission officer at Inala within 24 hours of his release from prison. 

I would also declare that the 107 days from 18 July until
2 November be time already served under the sentence and further that the time during which the appellant was in custody from sentence pending this appeal shall count as time served as imprisonment under the sentences.

THOMAS JA:  I agree with the reasons which the President has given.  In my view the combined effect of the two sentences that the President has proposed represents the best and the appropriate response of the Court to the matters for which the applicant fell to be sentenced.  The original two sentences were by comparison manifestly excessive.  I agree both with the President's reasons and with the orders which she proposes.

ATKINSON J:  I agree with the reasons given by the President and by Justice Thomas.  The effect of the sentences imposed by this Court will give proper effect to the purposes for which sentences may be imposed under section 9 including conditions that the Court considers will help the offender to be rehabilitated which the previous sentence did not give effect to.

THE PRESIDENT:  The orders will be as I have outlined.

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