R v Smith

[1998] QCA 332

COURT OF APPEAL

[1998] QCA 332

McMURDO P
PINCUS JA
HELMAN J

THE QUEEN

v.

JAMES WATENE SMITH  (Applicant)

BRISBANE

..DATE 05/08/98

JUDGMENT

HELMAN J: Smith applied for leave to appeal against a sentence imposed on 27 March 1998 in the Brisbane District Court in respect of a number of property offences. The learned sentencing Judge purported to make a probation order in relation to all of the offences under section 92(1)(b) of the Penalties and Sentences Act 1992. He sentenced Smith to imprisonment for six months and made the period of the probation order three years.

As a requirement of the probation order his Honour included the payment of compensation for loss of, and damage to, property in the sum of $10,395 and he directed that the compensation be paid by monthly instalments of $350 beginning on 1 October this year.  It was in relation to that requirement that the application was made to the Court.

In the course of the hearing of the application it became clear that sections 95 and 96 of the Penalties and Sentences Act 1992 had not been complied with before his Honour had made the orders he did. Mr Leask, for Smith, then sought and obtained the leave of the Court to appeal on the ground that the orders made by the learned sentencing Judge had been made in contravention of those sections.

It was conceded on behalf of the Crown that there was merit in that ground, and in my view the orders were indeed made without power because section 96 in particular provides that a court may make a probation order only if the offender agrees to the order's being made, and that did not happen in this case. In fact, in the course of the proceedings before his Honour it was made clear by counsel for Smith that Smith was not willing to agree to an order for compensation should his Honour sentence Smith to a term of imprisonment. Mr McGuire, for Smith, said, when this subject was mentioned before his Honour:

"In my submission then to both sentence him to a term of imprisonment and to order compensation with some default period on top would be too severe, in my submission."

I conclude from that that Mr McGuire was indicating that his client did not agree to the requirement which nonetheless his Honour included in the order. 

In the result, Smith's appeal should be allowed and the orders made by his Honour set aside.  In the circumstances it appears to me to be appropriate that the matter be remitted to the District Court at Brisbane for further determination of the appropriate sentence.

THE PRESIDENT:  Yes, I agree.

PINCUS JA:  Yes, I also agree.  I would add that counsel for the applicant expressed unwillingness to accede to the proposed order on the ground that the outcome was, he thought, inevitable.  It appears to me, however, to be the fairer course to give the applicant an opportunity to place before the sentencing judge, who will of course commence de novo, such material as is thought fit.  I therefore agree that the appeal should be allowed and the sentences imposed set aside and the matter remitted for resentencing de novo.

THE PRESIDENT:  The order of the Court is accordingly.

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