R v Sainz

[1994] QCA 82

IN THE COURT OF APPEAL [1994] QCA 082

SUPREME COURT OF QUEENSLAND	C.A. No. 24 of 1994
Brisbane [R.v. Sainz]

T H E Q U E E N
v.

IVAN SAINZ Applicant

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DAVIES J.A. PINCUS J.A. MACKENZIE J.

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J udgment delivered 06/04/1994

REASONS FOR JUDGMENT - THE COURT

ORDERS MADE:

EXTEND TIME WITHIN WHICH TO APPEAL TO 24 JANUARY 1994.
GRANT THE APPLICATION FOR LEAVE TO APPEAL AND ALLOW THE APPEAL.
SET ASIDE THE ORDER FOR FINES AND RESTITUTION IMPOSED BELOW.
SUBSTITUTE SENTENCES IN EACH CASE OF THREE MONTHS' IMPRISONMENT
TO BE SERVED CONCURRENTLY WITH THE SENTENCES IMPOSED IN THE
DISTRICT COURT ON 29 NOVEMBER 1993.
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_

CATCHWORDS:CRIMINAL LAW - SENTENCE - Applicant sentenced by magistrate for two offences of breach of probation - fines imposed and restitution ordered - previous day applicant sentenced by District Court judge for other offences which constituted the breaches of probation - remarks that sentences imposed appropriate to the total criminality of conduct, inclusive of the breaches of probation - magistrate's sentencing discretion not affected by judge's remarks - applicant not to be subject to greater penalty, having regard to totality of offences, than if sentenced by one court for all offences - consideration of Div. 2 of Part 7 of the Penalties & Sentences Act.

Counsel:Mr P. Alcorn for the Applicant
Mr P. Rutledge for the Respondent
Solicitors:Legal Aid Office for the Applicant
Director of Prosecutions for the Respondent
Date(s) of Hearing:29 March 1994

R EASONS FOR JUDGMENT - THE COURT

Judgment delivered 06/04/1994

The applicant was convicted on his own plea in the Magistrates Court at Southport on 30 November 1993 on two counts of breaches of probation orders made on 18 March 1993 and 21 April 1993. The learned magistrate, acting pursuant to s. 125(4)(a) of the Penalties and Sentences Act 1992, then dealt with the applicant for the offences for which the probation orders were made by fining him in respect of those offences. The fines were $400 in respect of a receiving offence, $500 in respect of a breaking and entering offence, $500 in respect of a wilful damage offence, and $800 in respect of an offence of unlawful use of a motor vehicle. Short terms of imprisonment were imposed in the event of default in payment of those fines within the time stated. In addition, the magistrate ordered restitution in the sum of $100 in respect of the wilful damage offence.

The applicant did not appeal against the above sentences within the time prescribed and seeks leave to extend that time. If leave is granted, he then seeks leave to appeal against those sentences.

The notice of application for extension of time and the application for leave to appeal against sentence were not received by the Registrar of this Court until 24 January this year. However, the delay does not appear to have been the fault of the applicant. On 20 December 1993, still within time, he completed a notice of appeal and handed it to a welfare officer who told the applicant that he would have it lodged in the court. The officer apparently went on holidays without filing the notice and it was not until 17 January that an officer of the Legal Aid Office found that the notice of appeal had not been filed. The applicant had done his best to ensure compliance with the time limit, and believed that it had been complied with. We therefore think that an extension of time should be granted so as to allow the application for leave to appeal against sentence to be heard. Accordingly, we would extend the time within which to file such application until 24 January 1994.

The offences for which the applicant was sentenced by the learned magistrate arose out of convictions in March and April 1993. On the day before the above sentences were imposed, the applicant was convicted and sentenced in the District Court for a number of offences which commenced shortly after his conviction in April 1993. These offences were of burglary, house breaking and stealing. They were committed during the probation periods which had been imposed in March and April.

The learned sentencing judge imposed an effective sentence of four years' imprisonment which he suspended after a period of three months on condition that, during the period of suspension, the applicant did not commit another offence punishable by imprisonment. The suspension took into account the applicant's pleas of guilty of those offences, his cooperation with the police, and, most importantly, his prospect of rehabilitation, having regard to his youth and the fact that he had not previously been sentenced to imprisonment. He was 19 years of age, having been born on 3 June 1974.

It is clear from his Honour's sentencing remarks that he was aware that the applicant would, on the following day or shortly after, be sentenced by a magistrate for the offences the subject of this appeal, and he said further in that respect:

"In accordance with the usual courtesy extended by magistrates to decisions of judges of this court it is likely that the sentence I impose will be followed. I believe that the better course then is to suspend your sentence after a time in order to make clear to you and to anyone else the maximum period of imprisonment which I consider appropriate for these offences and, without in any way seeking to trespass on the grounds that the magistrates might cover, which would be a period probably appropriate for those offences as well. The magistrate is quite at large and he is not bound to follow me, but I feel that it is a more certain result than the act of simply making a recommendation as to when you should be considered for parole."

We think it implicit in his Honour's remarks that, though he was not sentencing as well for the offences the subject of this appeal for they were not before him, he would not have imposed any greater sentence than he did if they had been before him, because they would not have added sufficiently to the totality of the appellant's criminal conduct to justify a higher sentence than that which he imposed. We think that that view is correct.

Consequently, it is unfortunate that in this and in other cases which have come before this Court all of the offences which could have been dealt with at any one time have not always been dealt with by one court. Failure to do this results in duplication of time and cost and, more importantly as this case demonstrates, may result in injustice.

It seems likely that, in the present case, one of the probation orders was made by the Magistrates Court, that imposed on 18 March 1993, and one by the District Court, that imposed on 21 April 1993. Proceedings for breach of the probation order made by the District Court could have been brought before the learned sentencing judge: Penalties and Sentences Act 1992, s. 126. But curiously if a community based order is made by a Magistrates Court it appears that proceedings in respect of its breach cannot be brought before a District Court, or for that matter a Supreme Court, even if that is the more convenient course: see. ss. 124, 125, 126, 128 and 129 of the Act. Nor, notwithstanding that that may be the more convenient course, does the Act contemplate that proceedings for breach of such an order made by the Supreme Court could be heard by a District Court.

In other words, Division 2 of Part 7 does not appear to sufficiently provide for the case where it is more convenient, in order to have a number of offences dealt with at the same time, to have offences of breaches of community based orders dealt with by a court which, as in the example of this case, is dealing with the offences which caused those breaches.

Breaches of both orders could have been taken into account by the learned sentencing judge under s. 189 if the procedure in that section had been followed. In view of the difficulties referred to in the preceding paragraphs, that may have been the more convenient course to take in this case. But in view of the difficulties, in this respect, caused by Division 2 of Part 7 of the Act, we are not inclined to criticise the prosecuting authority for not taking this course.

In the present case, the learned magistrate thought, with some justification, that he was being told by the appellant's representative that he was obliged to exercise his sentencing discretion in accordance with the sentencing remarks of the learned District Court judge the previous day. Understandably, he reacted to this suggestion with some asperity for the exercise of his sentencing discretion could not have been circumscribed by the sentencing remarks of the learned District Court judge.

Nevertheless we think that, had the offences of breaches of probation orders been dealt with at the same time and by the same court as sentenced him for the offences for which he was sentenced on 29 November, the sentence which was imposed on that date would not have been any greater, having regard to the totality of the offences. And we do not think that the applicant should be subjected to any greater penalty because that course was not taken. One way of effectively achieving that result is by substituting for the fines which were imposed by the learned magistrate, sentences in each case of three months' imprisonment to be served concurrently with those imposed in the District Court on 29 November.

The orders therefore are:
1.extend time within which to appeal to 24 January 1994;

2.grant the application for leave to appeal and allow the

appeal;

3.set aside the orders for fines and for restitution imposed

below;

4.substitute sentences in each case of three months imprisonment to be served concurrently with the sentences imposed in the District Court on 29 November 1993.