R v Van Hout

[2002] QCA 169

[2002] QCA 169

COURT OF APPEAL

McMURDO P
  McPHERSON JA
  MACKENZIE J

CA No 55 of 2002

THE QUEEN 

v.

PAUL NEVILLE VAN HOUT

BRISBANE

..DATE 14/05/2002

JUDGMENT

THE PRESIDENT:  This is an application for leave to appeal

against a sentence imposed on the 26th February 2002 of

three months' imprisonment, suspended after serving 14 days,

with an operational period of 12 months.  The applicant was

granted bail pending appeal after serving a few hours in

custody. 

The applicant was originally sentenced on the 3rd November

2002 to 80 hours community service without conviction, with

a special condition that he pay compensation in the sum of

$1,821 at $50 per week commencing on Friday, 10 November

2000. 

The applicant completed only 25 of the 80 hour community

service order, leaving 55 hours outstanding.  He failed to

complete the compensation payments, paying only $500 with

$1,321 outstanding.

The Community Corrections officer's court report noted that

at the time of receiving this community service order the

applicant was also the subject of a fine option order which

required him to perform 160 hours of community service, 86

hours of which were outstanding at the time of his sentence. 
  He has since completed the 106 hours.

It is not in contention that the applicant breached his

community service order.  He failed to report to the

Community Correctional office within 72 hours of the order

being made.  He was then directed to report on 6 December

2000.  It was not until May 2001 that he signed work

instructions in relation to the 80 hour order.  He completed

the earlier community service hours under his fine option

order on the 12th August 2001.  The 80 hour order had to be

complied with within 12 months of the sentence, namely

2 November 2001.  He last reported for community service on

23 September 2001.

The applicant's counsel submitted at sentence that he

breached the order because he lost his job and could not pay

the compensation nor his rent, and was effectively moving

from one friend's residence to another.  He lost contact

with his Community Service Corrections officer.  By the time

of sentence in February this year, he had obtained

employment and offered to complete the remaining 55 hours'

community service and to recommence paying the compensation,

completing it over a nine month period.

The learned sentencing Judge was understandably concerned

that the applicant had not taken advantage of the

opportunity given to him to make compensation and complete

the community service order without conviction.  He

resentenced him for the original offence.

The circumstances of that offence were that the complainant,

a 21 year old student from North Queensland, was studying in

Queensland and was given a Telstra telecard by her father. 

The complainant allowed a friend to use the card on one

occasion.  The applicant was present at that time and he

obtained the details.  Between 30 October 1999 and 10 March

2000 he made a total of 1,513 unauthorised calls.  When

questioned by police in April 2000 he made full admissions. 
  He looked through the telephone bills and identified the

unauthorised phone calls made by him.  These calls were

billed at $1,821.  The applicant was 24 when he committed

the offence and 25 when first sentenced.  He pleaded guilty

at an early stage by way of ex officio indictment.  His only

prior conviction was for possession of utensils or pipes in

the Stanthorpe Magistrates Court on 1 October 1999 for which

he was fined $200.

Although I understand the learned primary Judge's

disappointment with the applicant for not taking advantage

of the opportunity given to him, the applicant was still

comparatively young, 26 at the time of his sentence for the

breach.  He had no prior convictions for dishonesty and only

one relatively minor conviction.  He pleaded guilty at an

early stage.  These factors, combined with the circumstances

of the offence which was not the most serious of its type to

come before the District Court, did not in my view warrant

an actual term of imprisonment even though the applicant had

shown by his subsequent behaviour that he was undeserving of

a community-based order.  Nor did his subsequent behaviour

suggest that he was capable of paying a fine.

His conduct warranted punishment and in these circumstances,

the appropriate course was to resentence the applicant,

convict him and sentence him to three months' imprisonment,

fully suspended with an operational period of 12 months.

The applicant concedes that the wholly suspended sentence

should be accompanied by an order for compensation under

s 35 Penalties and Sentences Act 1992 (Qld). The applicant

does not contend that this penalty is a heavier penalty than

that imposed at first instance.

I would grant the application for leave to appeal, allow the

appeal and amend the order imposed at first instance by

suspending the sentence forthwith and by further ordering

under s 35 Penalties and Sentences Act 1992 (Qld) that the

applicant pay compensation in the sum of $1,321 to the

Deputy Sheriff of the District Court at Brisbane for

transmission by him to Emily Louise Rigby of an address to

be notified by the Director of Public Prosecutions within 12

months of today's date, in default three months'

imprisonment.

I would otherwise confirm the order imposed at first

instance.

McPHERSON JA:  I agree.

MACKENZIE:  I agree.

THE PRESIDENT:  That is the order of the Court.

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