R v Russell

[1998] QCA 170

COURT OF APPEAL

[1998] QCA 170

FITZGERALD P
DAVIES JA
FRYBERG J

CA No 414 of 1997

THE QUEEN

v.

STUART BARRY RUSSELL  Applicant

BRISBANE

..DATE 26/02/98

JUDGMENT

DAVIES JA: The applicant seeks leave to appeal against an order made in the Supreme Court under section 947 of the Penalties and Sentences Act 1992 ordering the applicant to serve the balance of a suspended sentence imposed on him on
25 August 1994.  The circumstances in which that order came to be imposed are as follows.

On 25 August 1994 the applicant was sentenced to four years imprisonment on five counts of supplying cannabis.  The sentence was ordered to be wholly suspended with an operational period of four years.  On 3 April 1996 the applicant was convicted of possession of marijuana and fined $500.  This required a Court to proceed under sections 146 and 147 of the Act.  It did so on 16 August 1996 by concluding that it would be unjust to activate the whole of the four year suspended term because of circumstances which had arisen since the original sentence was imposed.

Those circumstances were that the applicant had taken on custody of his five year old child following his separation from his former de facto wife, that he had obtained employment and that he had been able to effect some improvement in his attitude towards unlawful drugs.  The learned Judge before whom the matter came also took into account the context of the offence which gave rise to the activation of section 147 which was not a particularly serious offence.  His Honour ordered that the applicant serve six months of the suspended term.

Then on 15 October 1997 the applicant was sentenced in the District Court to three years imprisonment wholly suspended for an operational period of four years for the offence of arson.  It was the conviction for this offence which resulted in the order the subject of the present application.

The arson was quite serious in that the applicant put petrol against a window and against the door of a house in which he knew there were other people, one of them asleep, and attempted to set it alight.  He had been evicted from the house by a woman with whom he had had a relationship and had been trying to re-enter the house unsuccessfully before he attempted to set it alight.  Although the damage caused was only $8,500, the risk of greater damage and, more seriously, that of injury or even death, made the offence quite serious.

There were nevertheless a number of factors in the applicant's favour.  The offence was not a premeditated one.  On the contrary it appears to have been irrational and the consequence of frustration in his relationship with the woman to whom I have referred.  He made full and frank admissions at an early point and offered restitution.  He has been the sole carer of two children of an earlier relationship because his former de facto wife is dying of cancer.  He has also performed some charity work.

Section 147 required the primary Judge to order the applicant to serve the whole of the balance of the suspended sentence unless he was of opinion that it would be unjust to do so.  The learned Judge did not consider it unjust to require the applicant to serve the balance of the suspended sentence.  It is plain that the offence which activated the making of an order was far from trivial and that the original offence was a serious one.  The learned Judge had, himself, on the earlier occasion in ordering part of the original suspended sentence to be served, taken into account, as I have already indicated, circumstances which had arisen since the suspended sentence was imposed.  Those circumstances, to which I have already referred, appear to continue.

Mr Farmer, for the applicant, submits that there are two further circumstances which should be taken into account.  The first of those is the likelihood that his former de facto wife will die because of her unfortunate condition.  I do not see that as a circumstance which ought to have persuaded His Honour to take a different course from that which he did.  The fact was, as I have already mentioned, that the applicant already had full custody of his children.  The only effect that will have will be that the applicant will be the sole carer with no possibility of his wife taking care of the children at any time in the future.

The second factor Mr Farmer submitted, in my view, was even more remote a circumstance which His Honour should have taken into account and that is the suspended sentence.  I have already made the point that the offence for which the sentence was imposed was a very serious one and, in my view, the sentence, although it is not before us, seems to me to be a light one.

Plainly His Honour in the present case must have thought that in view of the most recent offence of arson, the circumstances to which I have referred did not make it unjust to impose the whole of the term of the suspended sentence and I cannot be satisfied that His Honour's conclusion in that respect was wrong.  I would therefore refuse the application.

THE PRESIDENT:  I agree.

FRYBERG J:  I agree.

THE PRESIDENT:  The application is refused.

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