R v Ryan

[1998] QCA 120

IN THE COURT OF APPEAL	[1998] QCA 120
SUPREME COURT OF QUEENSLAND

C.A. No. 466 of 1997

Brisbane

[R. v. Ryan]

THE QUEEN

v.

KENNETH LESLIE RYAN

(Applicant) Appellant

Davies J.A.
Thomas J.

Lee J.

Judgment delivered 5 June 1998
Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE ALLOWED. APPEAL AGAINST SENTENCE ALLOWED. ORDERS MADE BELOW SET ASIDE AND IN LIEU THEREOF THE FOLLOWING ORDERS ARE MADE:

1.          APPEAL ALLOWED IN RESPECT OF SENTENCES IMPOSED IN THE MAGISTRATES COURT ON 19 SEPTEMBER 1997 ONLY TO THE EXTENT OF ADDING TO THE ORDERS THEN MADE A RECOMMENDATION THAT THE APPLICANT BE ELIGIBLE FOR PAROLE TODAY IN RESPECT OF THE TOTAL TERM THEN IMPOSED.

2.          APPLICANT TO SERVE EIGHT MONTHS OF THE SENTENCE ORDERED TO BE SUSPENDED ON 22 NOVEMBER 1995, TO COMMENCE FROM 19 SEPTEMBER 1997 AND TO BE SERVED CONCURRENTLY WITH THE SENTENCES IMPOSED ON THAT DATE.

CATCHWORDS:	CRIMINAL LAW - Application for leave to appeal against sentence - suspended sentence activated by later offences and imprisonment for later offences made cumulative upon activated suspended term - relevant factors in determining whether whole of suspended sentence should have been activated and whether it should have been made cumulative or concurrent - total period of time in custody - whether applicant eligible for parole immediately - s.222 Justices Act 1886 - s.118(3) District Court Act 1967 - ss.146 and 147 Penalties and Sentences Act 1992.
Counsel:	Applicant/appellant appeared on his own behalf Mr. P. Rutledge for the respondent
Solicitors:	Applicant/appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	28 May 1998
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 5 June 1998

On 2 December last year a judge of the District Court dismissed an appeal to that Court pursuant to s.222 of the Justices Act 1886 by the present applicant against sentences imposed in the Magistrates Court at Gympie on 19 September that year. Those sentences were each of nine months imprisonment, to be served cumulatively for two separate offences of assault occasioning bodily harm. On the same day the learned District Court judge ordered the applicant to serve the whole of a suspended term of imprisonment of 12 months which had been imposed on him on 22 November 1995 and further ordered that the two sentences to which we have referred for assault occasioning bodily harm be served cumulatively upon the sentence of 12 months ordered to be served. His Honour then recommended that the applicant be considered for release on parole on 1 December 1998.

When the suspended sentence was imposed the learned Chief Judge of District Courts, who imposed it, noted that the applicant had spent 298 days in pre-sentence custody in relation to proceedings for the offence for which the sentence was imposed and for no other reason and appeared to conclude that, but for that period of pre-sentence custody, a sentence of two years would have been appropriate. It appears also that that period of custody, also influenced his Honour to suspend the sentence as he did. Unfortunately the relevant facts upon which his Honour sentenced the applicant are not disclosed in his reasons and the transcript of argument before his Honour is now no longer available. However Mr. Rutledge, who appeared for the Crown in this Court, conceded that a term of no more than two years was an appropriate sentence for the offences of the kind for which the sentence was imposed.

By his application for leave to appeal against sentence the applicant seeks leave to appeal against each of the nine months terms of imprisonment, the order that the whole of the suspended term be served, the order that each of the former sentences should be made cumulative upon the latter and the parole recommendation.

Having read the transcript of the proceedings relevant to the assaults the subject of the two sentences of nine months imposed in the Magistrates Court on 19 September 1997 we cannot be satisfied that either was manifestly excessive or that the learned magistrate erred in making them cumulative. Moreover an appeal to this Court from a decision of the District Court given in an appeal under s.222 of the Justices Act requires the leave of this Court pursuant to s.118(3) of the District Court Act 1967 and, subject to what we are about to say, there is, in our view, no basis shown for the granting of such leave. However the totality of these sentences is very high and, when one has regard to that totality together with the activated suspended sentence in the light of the period of imprisonment actually served, it is necessary to add to these sentences a recommendation for eligibility for parole. We refer to this further below.

It was the convictions which were imposed on 19 September which activated the provisions of ss.146 and 147 of the Penalties and Sentences Act 1992. Unfortunately this did not occur, as we have indicated, until 2 December 1997. In making the orders which he did on that date the learned District Court judge made a number of errors. In the first place it is impossible to ascertain from his Honour's very short reasons what factors, if any, caused him to fail to be of opinion that it would be unjust to make an order under s.147(1)(b) of the Penalties and Sentences Act. His Honour in reaching that conclusion referred only to the circumstances of the offences constituting the breach and appears to conclude, by reference to those only, that it would not be unjust to order the applicant to serve the whole of the suspended term. Consequently his Honour erred either in failing fully to state his reasons or in failing to take into account all relevant considerations to which we refer below. Secondly, having activated the suspended term, his Honour purported to order that the sentences imposed in the Magistrates Court on 19 September 1997 be served cumulatively upon the activated sentence ordered to commence on 2 December 1997 without taking into account that, by that date, the applicant had already served part of the sentences imposed on 19 September. Thirdly his Honour purported to make a recommendation for parole in respect of the total period of his orders, that is including the suspended sentence which he ordered to be served. See however Waters C.A. No. 379 of 1997. In those circumstances the learned sentencing judge's sentencing discretion miscarried and this Court should consider afresh what now should be done.

The applicant should not be penalised for the fact that some time elapsed after 19 September 1997 before a court could proceed under ss.146 and 147. What should be done under those sections should be considered in the way it would have been considered on that date. In considering, as at that date, whether the whole of the suspended sentence should be activated and whether, to the extent that it is it should be made cumulative upon or concurrent with the sentences imposed on that date, there are a number of factors which should be taken into account.

One is the appropriate sentence for the totality of the offences for which the suspended sentence was imposed and for which the sentences of 19 September 1997 were imposed. Another is that the offences the subject of the sentences on 19 September 1997 were committed in December 1996 more than a year after the suspended sentence was imposed and nearly two years after the offences for which it had been imposed. Moreover they were committed towards the end of the operational period of 18 months imposed in respect of the suspended sentence. A third is that, although the offences the subject of the sentence imposed on 19 September 1997 could by no means be described as trivial offences they were not extremely serious examples of their type; and, once it is accepted that it was appropriate to impose the sentence in respect of the second of them cumulatively upon that imposed for the first, this must be a relevant consideration in determining each of the two aspects of the totality of the sentences; whether it is unjust to order that the whole of the suspended sentence be served and whether it should be served cumulatively upon or concurrently with these sentences.

The applicant has an unenviable criminal record including a substantial number of convictions for assault which, as appears from the sentencing remarks of the Chief Judge of District Courts, were associated with his alcoholism. Nevertheless he appears to have made a concerted effort to keep out of trouble during the period from January 1995, when he committed the offences the subject of the suspended sentence and some other offences, to December 1996 when he committed the offences the subject of the two nine month sentences. More importantly, in respect of all of these offences he has now served a total period of 558 days in gaol, 298 days pre-sentence custody in respect of the offences for which he was sentenced on 22 November 1995 and 260 days, the period from 19 September 1997 to today, initially in respect of the two nine month sentences and, since 2 December 1997, in respect of all of them. That is a little over 18 months which may be taken for some purposes as the equivalent of a three year sentence for the totality of these offences. Accepting as we do that this man appears to have made some effort to rehabilitate himself we think that an appropriate total sentence is one which enables him to be eligible for consideration for parole now. It follows that we would conclude, having regard to the matters we have mentioned, that it would be unjust to order the applicant to serve the whole of his suspended sentence.

We would therefore grant the applicant's application, allow his appeal, set aside the orders made below and make the following orders:

1.          allow the appeal in respect of the sentences imposed in the Magistrates Court on 19 September 1997 only to the extent of adding to the orders then made a recommendation that the applicant be eligible for parole today in respect of the total term then imposed;

2. order that the applicant serve eight months of the sentence ordered to be suspended on 22
November 1995, to commence from 19 September 1997 and to be served concurrently
with the sentences imposed on that date.
In consequence of those orders he will, of course, remain subject to the balance of his

suspended sentence and, if he is granted parole in accordance with this recommendation, to the
terms of his parole.