R v Silczak
[2000] TASSC 123
•31 August 2000
[2000] TASSC 123
CITATION: R v Silczak [2000] TASSC 123
PARTIES: R
v
SILCZAK, Noelene Joy
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 33/2000
DELIVERED ON: 31 August 2000
DELIVERED AT: Hobart
HEARING DATE: 21 August 2000
JUDGMENT OF: Cox CJ, Underwood and Blow JJ
CATCHWORDS:
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Grounds for interference - Whether sentence was manifestly inadequate - Effect of community service order - Whether adequate deterrent.
Sentencing Act1997 (Tas), ss7(c), 28(a) and 36(4).
Aust Dig Criminal Law [1003]
REPRESENTATION:
Counsel:
Applicant: C A Rheinberger
Respondent: A J Dillon
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Archer Bushby
Judgment Number: [2000] TASSC
Number of paragraphs: 11
Serial No 123/2000
File No CCA 33/2000
THE QUEEN v NOELENE JOY SILCZAK
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
UNDERWOOD J
BLOW J
31 August 2000
Orders of the Court:
Appeal allowed.
Direct that that part of the sentence purporting to impose a bond to be of good behaviou for two years be quashed.
In all other respects sentence confirmed.
Serial No 123/2000
File No CCA 33/2000
THE QUEEN v NOELENE JOY SILCZAK
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
31 August 2000
The respondent was convicted on her own plea of one count of trafficking in a prohibited substance and sentenced to undertake 105 hours of community service. In addition, it was ordered that she "be subject to a bond to be of good behaviour for a period of two years" and that pursuant to the Crime (Confiscation of Profits) Act 1993, s11, the respondent's property, namely $4,000 in cash (then held at the Launceston Police Station), be forfeited to the State of Tasmania. A $50 levy was also imposed. The Attorney-General has appealed on the following grounds:
1That the sentence was manifestly inadequate having regard to all the circumstances of the case; and
2That his Honour erred in law giving undue weight to the "loss" of $4,000 forfeited under the Crimes (Confiscation of Profits) Act 1993.
At the hearing, a further ground of appeal was added, namely:
3That the learned sentencing judge erred in law in imposing a bond to be of good behaviour for a period of two years.
Briefly, the facts of the offence were these. An undercover police officer went to the home of the respondent in Launceston on 11 December 1997 and spoke to her at a rear window. The officer asked for a deal of cannabis. She closed the window and returned shortly with a sachet of 2 grams of cannabis for which the officer paid $25. The same officer returned a few weeks later to find a queue of three other persons waiting at the window. The three other persons each asked for a deal and the officer asked for two deals. All were accommodated at a cost of $25 per deal. Two more males arrived and asked for a deal before the police officer left. A week later, another such deal was observed to be sold for $25, while the officer purchased two deals himself for $50. Nine days later, the undercover police officer returned yet again and asked for two further deals, passing over $50. At the same time two other persons came, each seeking a deal, but the officer had to leave before those transactions were concluded. Two further deals were sold to the police officer on 3 February 1998 in similar circumstances and other apparent customers came while the transaction took place. A drug raid followed pursuant to warrant and the respondent was seen throwing items out of a bedroom window. They turned out to be packets of cannabis. A total of 117.7 grams of cannabis was located in or around the house. It was valued at $1,450. $7,570.45 in cash was found in a bedroom. It was conceded by the respondent on her plea of guilty that of the latter sum, $4,000 was tainted money and on conviction it was forfeited to the State.
The respondent is a 44 year old widow whose husband died in 1985, leaving her with the care of three children, the eldest of whom was then 10 years old. She subsequently entered into a relationship from which two further children were born. In 1990, that relationship ceased. She now has sole responsibility for two children aged eight and ten years and receives a supporting mother's pension. She lives in a Housing Commission home. Her counsel, in a plea in mitigation, said she sold small quantities of cannabis to people whom she knew, or who were introduced to her by people whom she knew. Prior to her apprehension, she had herself used cannabis, but immediately stopped on her arrest. She had no relevant prior convictions, save one in 1996 for possessing a prohibited substance. On that occasion she had been fined $200.
Counsel for the Crown concedes that the circumstances of the offence, combined with those of the offender, were not such as to demand an immediate custodial sentence. A sentence in the order of three months' - six months' imprisonment, the execution of part or even all of which was suspended on condition of good behaviour for a set period of time would not have been opposed by the Crown. But it is submitted that in the present circumstances a non-custodial sentence which takes the form of a probation order or a community service order is manifestly inadequate. The rationale advanced for such a view is that sentences of this type would be perceived by the public to be so lenient that they would not operate as a deterrent to the offender, or to others like-minded. Counsel for the Crown cited statistics which indicate that in a high percentage of similar cases in the last ten years or so, wholly or partially suspended sentences of imprisonment have been imposed for trafficking in cannabis, whereas probation and community service orders have been extremely rare (only three out of 79 cases, compared with 26 sentences of actual imprisonment, 12 partly suspended sentences of imprisonment and 38 wholly suspended sentences of imprisonment).
There may well be a public perception that, as a general proposition, probation or community service orders are less punitive measures than suspended sentences of imprisonment. In R v Percy [1975] Tas SR 62 at 72 - 73, Neasey J referred to a suspended sentence as "the penultimate weapon in the extensive armoury of graduated penalties available to a judge of this Court for the punishment of crime". He went on to agree with the general effect of the following statement of the Lord Chief Justice in O'Keefe v R (1969) 53 Cr App R 91 at 94:
"After all, a suspended sentence is a sentence of imprisonment. Further, whether the sentence comes into effect or not, it ranks as a conviction, unlike the case where a probation order is made, or a conditional discharge is given.
Therefore, it seems to the Court that before one gets to a suspended sentence at all, a court must go through the process of eliminating other possible courses such as absolute discharge, conditional discharge, probation order, fine, and then say to itself: this is a case for imprisonment, and the final question, it being a case for imprisonment: is immediate imprisonment required, or can I give a suspended sentence?"
Under the Sentencing Act 1997 ("the Act"), a community service order can only be made if the offence is punishable by imprisonment, and a court is obliged to record a conviction if it imposes a community service order (s7(c)). If it makes a probation order, it may record a conviction (s7(d)). A community service order is subject (inter alia) to a condition that the offender must not commit an offence punishable by imprisonment while the order is in force (s28(a)) and breach of any condition of a community service order exposes the offender not only to summary proceedings punishable by a fine of ten penalty units or a sentence of three months' imprisonment, or both (s36(4)), but in addition, if the order was originally made in the Supreme Court and if the Court of Petty Sessions considers the breach to be a serious one, exposes the offender to being committed to the Supreme Court (s36(5)) where that Court may "cancel the order and deal with the offender for the offence or offences in respect of which the order was made in any manner in which the court could deal with the offender had it just found the offender guilty of that offence or those offences" (s36(6)). Hence the respondent in this case during the currency of the community service order (which, being for 105 hours, will take some considerable time to complete) is in jeopardy, if she is not of good behaviour, of being sentenced afresh to a variety of penalties including imprisonment. Unlike a person subject to a suspended sentence of imprisonment where the maximum penalty on breach is the amount of a known head sentence (s27(5)), a person subject to a community service order cannot anticipate any maximum sentence of which he or she may be in jeopardy. The same regime applies in respect of probation orders (s42). Notwithstanding, then, that there may be a perception that such orders are a milder form of punishment than a suspended sentence of imprisonment, persons subject to them are still at risk of imprisonment for an uncertain term on breach and have the added penalty of having to work, in any event, for a set number of hours, although any work they do under the order must be taken into account in proceedings for breach (s36(9)).
Given that the Crown concedes that a sentence short of actual and immediate imprisonment was within the discretion of the learned sentencing judge, I am not satisfied that a community service order requiring 105 hours of community service was manifestly inadequate in this case.
Ground 2 complains that the forfeiture order was given too much weight. As originally drawn, it claimed his Honour erred in law in taking it into account at all, but this was not persisted in, having regard to the decision of the Court of Criminal Appeal in Stocks v R [2000] TASSC 106. That decision establishes that such orders may be taken into account, but that the weight to be attached to them will vary from case to case. In this case, the learned sentencing judge noted the fact that a forfeiture order was to be made, saying "she will suffer the loss of $4,000 recovered by police and in effect this will form part of the sanction". This was said in a context where his Honour noted also her age, her having brought up five children primarily through her own resources, the fact that she had two dependant children aged eight and ten years and received a supporting mother's pension. He concluded that this was not an appropriate case for a term of imprisonment nor, having regard to her resources, for a fine. There was no evidence of any circumstances which would lead to the conclusion that the forfeiture would impose some special sanction upon her and hence it was not entitled to great weight. However, given her modest resources, her deprivation of it would have had some impact which it was, in my view, legitimate to take into account. From the nature of the sentence which I have held not to be inadequate, it is not possible to conclude that his Honour gave it undue weight.
The order that the respondent be subject to a bond to be of good behaviour for a period of two years was not an order authorised by the Act. Section 7 sets out the general sentencing powers of a court, but the power to impose a bond is not included. It is not clear from the way in which the order was expressed what the terms of the bond were intended to be, or what were to be the consequences of breach. The Act, s7, provides:
"A court that finds a person guilty of an offence may, in accordance with this Act and subject to any enactment relating specifically to the offence ¾
…
(i) impose any other sentence or make any order, or any combination of orders, that the court is authorised to impose or make by this Act or any other enactment."
The Poisons Act 1971 which creates the offence of trafficking in a prohibited substance, contains no such provision, nor does the Criminal Code under which the offence was tried (see s389). I know of no other enactment which now authorises such an order on a count of trafficking in a prohibited substance.
At the hearing of the appeal, we indicated that we would uphold ground 3 and we accordingly quashed that part of the sentence pronounced. However, we considered that the attack on the rest of the sentence had not been made out and confirmed the remaining orders. It was not necessary, in my view, to otherwise vary the sentence in consequence of the quashing of the order which purported to enforce the respondent's good behaviour for two years by way of a bond, as the substance of the learned sentencing judge's intention in that respect was in any event achieved by the condition implicit in the community service order that she be of good behaviour during its currency. We said we would give our reasons for the course we took later. The foregoing are my reasons for doing so.
File No CCA 33/2000
THE QUEEN v NOELENE JOY SILCZAK
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
31 August 2000
I agree with the reasons for judgment of the learned Chief Justice. There is nothing that I wish to add.
File No CCA 33/2000
THE QUEEN v NOELENE JOY SILCZAK
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
31 August 2000
I agree with the reasons for judgment of the learned Chief Justice. There is nothing that I wish to add.
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