Trew v The State of Western Australia
[2004] WASCA 155
•26 JULY 2004
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: TREW -v- STATE OF WESTERN AUSTRALIA [2004] WASCA 155
CORAM: MALCOLM CJ
MURRAY J
ROBERTS-SMITH J
HEARD: 1 JULY 2004
DELIVERED : 1 JULY 2004
PUBLISHED : 26 JULY 2004
FILE NO/S: CCA 205 of 2003
BETWEEN: CRAIG ANTHONY TREW
Applicant
AND
STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :MARTINO DCJ
File Number : IND 1876A of 2001
Catchwords:
Criminal law - Sentence - Sentence of 18 months imprisonment suspended for 2 years - Offence of driving under disqualification committed less than 5 months later - Fifth driving under suspension - Order that suspended sentence be served - Reduced to 12 months - Whether unjust to order suspended term to be served
Legislation:
Sentencing Act 1995 (WA), s 80
Result:
Application for leave to appeal refused
Category: B
Representation:
Counsel:
Applicant: Mr G J Huggins
Respondent: Mr B Fiannaca
Solicitors:
Applicant: Gary Huggins
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Hall v The Queen (1999) 21 WAR 364
Case(s) also cited:
Lowndes v The Queen (1999) 195 CLR 665
MALCOLM CJ: At the conclusion of the argument in respect of this application for leave to appeal against sentence, the Court dismissed the application. It was then indicated that the reasons for reaching that decision would be published later. I agree with the reasons to be published by Roberts‑Smith J and have nothing to add.
MURRAY J: The reasons published by Roberts‑Smith J, to which I have nothing to add, express sufficiently for me why, on the hearing of the appeal, I joined in making the order that leave to appeal should be refused.
It is important, I think, to emphasise that, having regard to the terms of s 80 of the Sentencing Act 1995 (WA), the onus rests upon an applicant who wishes to persuade this Court to overturn an order that the applicant serve all or part of the suspended term, to show that it was not open to the judge at first instance to conclude that it would not be unjust to make such an order. To put that positively, the obligation of an applicant who wishes to succeed in having this Court overturn such an order is to persuade the Court that, having regard to all the relevant circumstances which have arisen or have become known since the suspended imprisonment was imposed, it was not merely open to the Judge to conclude that it would be unjust to make an order that the term be served, but that that was the only conclusion open to the Judge.
ROBERTS-SMITH J: By notice dated 3 December 2003 the applicant sought leave to appeal against an order of the District Court in Perth on that date that a 12 month sentence, part of a term originally suspended, be served by way of immediate imprisonment. The applicant was subsequently released on bail pending appeal.
The application for leave came on for hearing on 1 July 2004. At the conclusion of the hearing the Court unanimously dismissed the application. We indicated that we would provide reasons later.
These are my reasons.
The suspended sentence originally imposed was one of 18 months imprisonment, suspended for 2 years. It was imposed by Fenbury DCJ on 29 November 2002. The applicant had pleaded guilty to three offences. They were one count of extortion (s 397(2) of the Criminal Code ("the Code")), one count of criminal damage to a house and a motor vehicle (s 444 of the Code) and one count of receiving a compact disc player and a digital receiver (s 414 of the Code). The individual sentences were 18 months imprisonment suspended for 2 years on count 1 and a
12 month intensive supervision order in respect of each of counts 2 and 3.
On 28 July 2003 the applicant was convicted in the Northam Court of Petty Sessions of driving under suspension. He was sentenced to 4 months imprisonment, suspended for 12 months. On 3 December 2003 Martino DCJ convicted the applicant on his own plea, of breach of the suspended sentence and the intensive supervision orders. His Honour reduced the sentence from 18 months to 12 months, taking into account amendments to the sentencing legislation made in 2003 requiring sentences imposed after 31 August 2003 to be reduced by one‑third, and ordered the applicant to be eligible for parole. For the breach of the two intensive supervision orders he fined the applicant $200 on each.
The proposed grounds of appeal are that:
"1.The learned sentencing Judge erred in activating the suspended term of imprisonment in view of all the circumstances that had arisen since the suspended term was imposed, in particular the following factors:
a.The applicant had fully complied with the directions of Community Justice Services in completing a 12 month Intensive Supervision Order.
b.The applicant had rehabilitated himself to the degree that he no longer committed offences of dishonesty, extortion or damage.
c.The applicant had rehabilitated himself to the degree that his business had continued expanding and his name was gaining repute as a tradesman carpenter.
d.The applicant had rehabilitated himself to the degree that his business was in a position to offer apprenticeships to his two employees."
The relevant statutory provisions are contained in s 80 of the Sentencing Act 1995 (WA), which so far as apposite here, are in the following terms:
"80. How re-offender to be dealt with
(1)If satisfied that a person has been convicted (in this State or elsewhere) of an offence the statutory penalty for which is or includes imprisonment and that the offence was committed during the suspension period of suspended imprisonment, a court that must deal with the person under this section must deal with the person by one of these methods:
(a)unless an order under this paragraph or paragraph (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;
(b)unless an order under this paragraph or paragraph (a) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended;
(c)unless the suspension period has ended, it may substitute another suspension period of not more than 24 months for the suspension period originally set; the new suspension period to begin on the day it is substituted;
(d)it may fine the person not more than $6 000 and make no order in respect of the suspended imprisonment.
(2)The powers in subsection (1) may be exercised as often as is necessary.
(3)A court must make an order under subsection (1)(a) unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed.
(4)If a court does not make an order under subsection (1)(a) it must state its reasons for not doing so.
(5)If under subsection (1)(a) or (b) a court orders a person to serve a term, or part of a term, of imprisonment that was suspended -
(a)section 88 applies in respect of the term to be served; and
(b)the court may make a parole eligibility order under section 89,
as if the term to be served were a term of imprisonment being imposed by the court. ..."
The operation of s 80 was explained in Hall v The Queen (1999) 21 WAR 364. Murray J (with whom Kennedy and Pidgeon JJ agreed) said (at [28]) that the matters to be regarded in making the decision whether it would be just to order service of the suspended imprisonment, are not only the circumstances that have arisen since the suspended imprisonment was imposed, but the circumstances that "have become known" since the imposition of suspended imprisonment. They would include circumstances that are new in that they have become known since the imposition of the suspended imprisonment, even though they may be circumstances which existed at or prior to that time.
As to the approach to be taken on an appeal against an order that a suspended term of imprisonment be served, Murray J pointed out ([31]) that the section requires the Court to order service of the suspended imprisonment unless it would be unjust to do so. Thus, on appeal, the applicant carries the forensic onus of persuading the Court that a Judge who took that course erred in his or her failure to decide that it would be unjust to order service of the suspended imprisonment. His Honour said that:
"… it seems to me that if, having regard to all the circumstances of the kind described in s 80(3), the appellate court considers that it was open to the judge at first instance not to decide that the order for service of the suspended imprisonment would be unjust, then whatever the members of the appellate court might have done as individuals in the position of the judge at first instance, the applicant before the appellate court will have failed to discharge the onus resting upon him or her and leave should be refused."
His Honour then continued:
"32As to whether it would or would not be unjust to make the order to which by s 80 the judge is primarily directed, in R v Holcroft [1997] 2 Qd R 392 at 394 Fitzgerald P said:
'All material circumstances which have arisen (or in the case of s 80 have become known, I would add) since the suspended sentence was imposed must be considered to decide whether it would be unjust to require the whole of the suspended sentence to be served. Those circumstances cannot be considered in a vacuum, divorced from other matters which bear upon the justice or injustice of an order that the whole of the suspended sentence be served. The period of suspended imprisonment involved is directly relevant to what is just, and other considerations, including the circumstances of the offence for which the sentence of suspended imprisonment was imposed and factors personal to the offender, might provide an essential context for a consideration of the circumstances which have arisen since the suspended sentence was imposed and a decision whether, in those circumstances, an order that the whole of the suspended imprisonment previously imposed be served would be unjust.'
33All members of the court, the others being Lee and Fryberg JJ, agreed specifically that a relevant consideration, and indeed often a significant determinative factor, was the nature of the offences, which gave rise to the need to consider activating the suspended imprisonment, particularly where they were trivial, were committed late in the suspension period, or did not themselves warrant punishment by imprisonment. But even so it might still be held that it was not unjust to order service of the suspended imprisonment: see per Fitzgerald P (at 394); Lee J (at 394‑395); Fryberg J (at 404‑405). On the same general consideration reference may be made to R v Holley; Ex parte Attorney‑General [1997] 2 Qd R 407 at 410, per de Jersey J; Lee J (at 416, 419); Fryberg J (at 425)."
Finally, his Honour saw (at [34]) that a most important consideration when considering where the justice of the case lies in the context of s 80, is the legislative policy which he thought emerged clearly from the section, that prima facie, the court ought to order service of the suspended imprisonment.
Mr Huggins acknowledged in his submissions that the onus upon the applicant was to satisfy this Court that it was not open to the learned sentencing Judge not to decide that the order for service of the suspended imprisonment would be unjust.
The offences the subject of the orders made on 29 November 2002 were committed on 2 February 2001.
The facts as outlined by the prosecution were that during the early hours of that morning the applicant was in company with an adult female friend at a house in Armadale. They went to premises in Gosnells where the complainant was asleep in the front yard. The applicant approached the complainant and at the time was armed with an expandable baton (this was disputed by the applicant, his Honour being told that it was a mag-light torch). The applicant struck the complainant between his legs with the item and a scuffle took place between them. The applicant threatened the complainant and demanded that money owing to his female friend be paid. Eventually he took the complainant to the rear of the car and locked him in so he could not escape. He then got into the vehicle alongside the complainant and the co‑offender drove it away from the premises. Whilst in the car the applicant and his co‑offender made further demands and threats to the complainant. The applicant then produced a pocket knife which he used to threaten the complainant. The applicant demanded the complainant hand over jewellery that he was wearing on his fingers at the time. When the complainant was unable to remove it, the applicant threatened to cut off his fingers. At approximately 4 am they arrived at the home of the complainant's parents in Armadale. The applicant and his co‑offender took hold of the complainant and took him to the front door of the house where he called out for his mother to open the door. The applicant still also held the mag‑light torch. When the complainant's mother opened the inner door of the house, the applicant demanded to be paid the money that was owed to his co‑offender. The complainant's father came to the door. Both the applicant and his co‑offender were yelling threats and demanding that they be paid the money that was owed. A number of scuffles took place between the applicant, the complainant and the complainant's parents who were endeavouring to free their son and get him to safety inside their house. During the scuffle the applicant kicked the complainant's father in the testicles. In the meantime the complainant's mother had activated the household burglary alarm and telephoned the police. The complainant was eventually freed by his parents and managed to get into the passageway and lock the door. The applicant then started to kick the door and used the mag‑light torch to make a hole in the security wire and threatened the family demanding they de‑activate the alarm. The two offenders then smashed the outside lights of the house as well as the windows to a number of bedrooms. Windows, lights and outer mirrors on a four wheel drive owned by the complainant's parents were also smashed.
So far as the receiving count is concerned the applicant was at home on 21 February 2001 when his female friend arrived. She was in a stolen Holden utility. In the tray of the car were two items of Sony stereo equipment, a compact disc player and a digital receiver valued at $1,249. She asked if the applicant wished to purchase any of the items. He declined, however she left both pieces of property at his address and on a later date he gave one of the items to a friend. It was not known what happened to the second item.
Counsel for the applicant before Fenbury DCJ said that issue was taken with some of the material advanced by the Crown. There was the issue of the torch, which I have already mentioned. He also said the applicant maintained he did not hit the complainant at any stage, that the doors on the car were not locked and no pocket knife was produced.
The following matters were put in mitigation by his counsel.
The applicant was a 33 year old single man, a tradesman carpenter with his own business. He left school in year 10 and was able to get an apprenticeship in carpentry immediately and had been working in that field ever since.
He initially met the female co‑offender whilst building a pergola for her at her house. They became friends. Through her he was introduced to a wider circle of people who were involved with drugs. His own relationship had broken up at the time and as a consequence the applicant formed "a fairly out of control habit". He ended up losing his house, his business and his car.
During his friendship with his co‑offender he became aware that she had numerous money problems largely stemming from her own drug habit. He began to help her with money, supplying food and clothing for her and her children. On the night of the offences he received a telephone call from a mutual friend inviting him to go around to that person's place for drinks and drugs. When he arrived there were a number of other people including his co‑offender. The talk that night centred on the money troubles she was experiencing.
Whilst at the party one of the people there received a phone call to the effect that the complainant was at that person's house. The co‑offender immediately said he owed her a lot of money which she had been trying to get from him for a long time but he had been avoiding her and she wanted to get it back. She asked the five people at the party to go with her to confront him. The applicant agreed to do so.
When they arrived, the complainant was sitting on a lounge at the front of the property. Demands for money were made. At the house of the complainant's parents, they demanded money but the complainant's mother said the co‑offender owed them money. When the complainant ran inside the house his father came out with a baseball bat and started to attack the applicant with it. He also sprayed the applicant with pepper spray. Once that occurred the applicant started moving back to the car. As he walked past the four wheel drive vehicle he was wiping the pepper spray from his face. He was very angry and smashed the tail lights and the rear window of the vehicle parked in the driveway.
Since being charged the applicant had moved to Northam to be closer to his family. He had undergone drug counselling and had overcome his drug problem. He had also recommenced his carpentry business in Northam and that was picking up very well.
His Honour heard an oral pre‑sentence report from a Community Corrections officer. She said that the applicant explained his offending behaviour as having occurred during a period following the break‑up of a relationship and at a time when he was experiencing difficulty with his business. He admitted having had a problem with substance misuse during that time, being amphetamine and alcohol use. He had a court history comprising matters of traffic violation, dishonesty, assaults and illicit drug use. He had been placed on a community based order for 6 months at the Midland Court of Petty Sessions in August 2001 and ordered to complete 100 hours of community service. The Community Corrections officer said he responded to the requirements of that order in an exemplary manner and actually completed 115 hours work well before the expiration of the order.
The applicant is the second of three children born to his parents who separated when he was very young. There appeared to have been some incidence of alcohol abuse and family violence.
After his parents separated, the applicant's mother took the family to York and she worked extended hours in order to provide for the family. His mother remarried when he was about 7 years of age.
He left home at 15 years of age to take up an apprenticeship.
At the time he was sub‑contracting and employed two hammer hands.
Overall, the officer said it appeared that when the applicant was unable to cope with the breakdown of his relationship and financial problems of his failed business venture, he sought to resolve his grief and stress through substance abuse. That inevitably saw him drawn into the criminal behaviour of the drug‑using subculture. He had now taken a step back from that and was living in Northam with his mother with the support of his family and members of the community.
In passing sentence on the applicant, Fenbury DCJ noted that each of the offences was of a serious kind. He described the incidents on 2 February as appalling behaviour, whether drug‑related or not, saying the applicant behaved like a standover man and a thug.
His Honour noted that despite the seriousness of the offences, it was in the applicant's favour and of some significance that he had apparently had some success in rehabilitating himself. In that regard he noted that the applicant had a history of compliance with orders. His Honour concluded that a sentence of imprisonment would reflect the seriousness of the circumstances but it was his intention to order that it be suspended. His Honour then said:
"… you must realise that a suspended sentence is what it says and it will hang over your head for the period it's suspended for, and if you break the law during the period then - it's like you're standing under a shower, one of those camping showers, and you pull the string and the water comes out, and that's what you will be doing. If you break the law, you will trigger the sentence and there won't be a thing you can do about it, and if you - say drugs or emotional problems or hassle at work or whatever, it will just be bad luck. The intention of that is to register the seriousness of it but also to give you the stimulus to continue our [sic: your] rehabilitation.
So in relation to count 1 on the indictment you're sentenced to 18 months' imprisonment, starting date today, and that is suspended for 2 years. I just want to repeat: that's a sentence that you don't have to go in for at the moment but you will have to go in if you break the law again in that period. Do you understand what I'm saying?
THE ACCUSED: Yes, sir.
FENBURY DCJ: Everything I have said is being recorded on this system and it's typed up and it will be on your file so if that happens and some other judge sees you, he or she will see that I spoke to you in a way that you could not possibly have misunderstood. …"
In relation to the driving under suspension offence on 19 April 2003, the applicant was detected by police driving on Great Eastern Highway at 127 kms an hour in a 110 km zone. When he was stopped the police found that he was driving under suspension. Asked for an explanation he said he was just going to visit his mother for Easter.
His conviction of that offence on 28 July 2003 was his fifth conviction for driving under suspension.
Counsel for the applicant submitted to Martino DCJ that the applicant's life at the time of the February 2002 offences revolved around his drug addiction and those circumstances had changed. He had started to rehabilitate himself even prior to sentencing by Fenbury DCJ and had made further progress since then.
As to the breaching offence of driving under suspension, counsel put to his Honour that an extraordinary motor driver's licence had issued to the applicant in March 2002. He went to renew that in March 2003 but was told by the police that he could not do so because there were outstanding fines. He knew he did not have any outstanding fines and told the police officers so. However, they were adamant that their records indicated he did. He went to the Fines Enforcement Office who confirmed to him that there were no fines outstanding. The police apparently maintained that there were, and it was not until 9 May 2003 that the extraordinary licence was finally re‑issued. However his driving under suspension offence occurred in April, when he did not have an extraordinary driver's licence because he was "not able to sort it out".
Counsel for the applicant recounted the applicant's personal history and circumstances and emphasised that although his business had run into the ground as a result of his drug addiction, he had been successful in re‑establishing it since the suspended term and intensive supervision orders had been imposed.
Counsel told the learned sentencing Judge that the applicant then currently employed two people who would become apprentices when TAFE restarted in early 2004. He had contracts to start and work in progress worth approximately $40,000.
Counsel referred to a pre‑sentence report which he said indicated that the applicant had fully complied with the orders, except for the urine tests. He noted that the applicant's main problem there was positive tests on three occasions. The first was when the applicant said he was on painkillers, which explanation appears to have been accepted. The second occasion showed amphetamines and methylamphetamines but he denied that he took those drugs, suggesting that perhaps his drink had been spiked at a social gathering. The final positive test indicated codeine, pseudoephedrine and ephedrine. In relation to that, the applicant said that he was on Codral cold and flu tablets at the time. He denied that he was on illicit drugs again.
All these circumstances, counsel submitted, showed that it would be unjust to activate the suspended term. He pointed out that the 12 month intensive supervision order had been completed.
In his sentencing remarks, Martino DCJ first noted that the breaching offence was the applicant's fifth driving under suspension. He correctly recognised that the law required him to order the applicant serve the term of the suspended sentence unless facts had occurred or become known which would have made it unjust to do so. His Honour then went on to say:
"By that offending you have also breached an intensive supervision order imposed for criminal damage and receiving. That was imposed for 12 months on 29 November 2002 and has now expired. It is clear that you have made some progress in rehabilitation since the suspended term of imprisonment was imposed. There have been some positive urinalysis test results. However, you deny that you have gone back into drug abuse to the same degree and I accept that while you may have fallen into temptation to some drug abuse you certainly have reduced your drug abuse, if it has continued at all, because you are successfully running a business now.
However, there are the provisions of the Sentencing Act to which I have referred. A relevant consideration in deciding whether it is unjust to order that the term be served is the nature of the offence and when it occurred in the suspension period and the punishment that was imposed for it, and where a minor offence has occurred late in the suspension period I might more easily be persuaded that ordering this suspended term to be served would be unjust if there are other facts, as there are other facts in this case to which I have just referred, and there is authority for that course in a Court of Criminal Appeal case called Hall v R.
But this was a serious offence that breached the suspended term of imprisonment. It was an offence that warranted another term of imprisonment albeit suspended. It wasn't an offence that was committed late in the suspension period, and although there are those factors to your credit to which I have referred, I have decided that I must order that a part of the suspended term be served, and I say part for this reason: the term was imposed on 29 November 2002 under the old sentencing legislation.
It would be unjust to order the full term be served now that the new sentencing legislation would mean that remission - means that remission is no longer available, so I reduce that sentence of 18 months' imprisonment to 12 months' imprisonment.
I order that you be eligible for parole. Having regard to the fact that you have substantially successfully completed the intensive supervision orders for the offences of criminal damage and receiving, I impose fines on each of those offences of $200. I order that these fines be payable immediately and that if they are not paid you are to serve imprisonment under section 59 of the Sentencing Act. That imprisonment is to be served concurrently with the term of imprisonment that you are serving."
I cannot accept the submission that the learned sentencing Judge placed excessive weight on the fact that the breaching offence was not a minor one occurring late in the suspension period. It was a serious offence, as is indicated by the fact the learned Magistrate imposed a sentence of 4 months imprisonment, albeit suspended. It was committed on 19 April 2003 (which was Easter Sunday), less than 5 months into the 24 month period of suspension.
There was no situation of emergency or necessity which might have afforded the applicant some extenuation for driving under suspension. The reason he gave was that he was going to visit his mother for Easter.
It must also be said that the further explanation advanced by his counsel before the learned Magistrate was quite incapable of any mitigatory effect. The fact that the applicant had been unable to obtain the reissue of his extraordinary motor driver's licence, for whatever reason, was quite irrelevant. That is because even if he had an extraordinary licence, it would not have allowed him to drive on Easter Sunday for personal or social purposes. The applicant had previously had an extraordinary licence and must have therefore been well aware of that.
But most significantly, that was the applicant's fifth conviction for driving under suspension. And on one of his previous convictions for that offence he had been sentenced to a suspended term of imprisonment.
The significance of the commission of the offence on 19 April 2003 therefore, was that it demonstrated the applicant's continuing disregard for the law. He was prepared to drive knowing he was under suspension, knowing that he had previously been convicted on four occasions for driving under suspension and well aware that a conviction would be a breach of the order suspending the sentence imposed on 29 November 2002. Having regard to the forthright manner in which Fenbury DCJ had made it quite clear to the applicant what the consequences of breaching that order would be, he could hardly have been under any misapprehension about the risk he was taking by driving under suspension. He nonetheless chose to do so.
Not only has the applicant failed to show the learned sentencing Judge erred in giving the breaching offence the weight he did, but his Honour was quite right to regard the circumstances of that offence as serious and as outweighing other circumstances personal to the applicant.
Counsel for the applicant acknowledged the learned sentencing Judge accepted the applicant had made some progress with his rehabilitation since the suspended term was imposed, that he had certainly reduced (if not ceased) his drug abuse and that he was successfully running a business. The complaint that his Honour treated those as "secondary factors" does not assist the applicant. His Honour was required to take these into account as part of all of the circumstances that had arisen or become known. He did so. The weight to be given to them in coming to his decision whether it would be unjust to activate the term of imprisonment was a matter for him - and as I have already pointed out, he could not be said to have erred by regarding those circumstances as being quite outweighed by the nature and circumstances of the breaching offence committed only 5 months into the period of suspension.
Nor is it correct to say his Honour did not make reference to the fact the applicant had substantially completed the intensive supervision orders in the context of the suspended sentence, but only took that fact into account when imposing fines for the criminal damage and receiving offences. His Honour expressly mentioned at the outset of his remarks that by the offences committed on 19 April 2003 the applicant had breached the 12 month intensive supervision orders imposed on 29 November 2002 which had by then (ie December 2003) expired. That his Honour was aware the applicant had substantially completed the intensive supervision orders and that was in his mind, is apparent from the fact that he said so when dealing with those offences. These were brief sentencing remarks and it would be wholly artificial and unjustified to infer that his Honour failed to take into account at an earlier stage, a circumstance to which he expressly adverted at a latter stage in those remarks.
In the course of argument, counsel for the applicant submitted his Honour had taken an erroneous approach to the application of s 80 of the Sentencing Act. That submission related to his Honour's comments concerning that section (AB 46):
"However, there are the provisions of the Sentencing Act to which I have referred. A relevant consideration in deciding whether it is unjust to order that the term be served is the nature of the offence and when it occurred in the suspension period and the punishment that was imposed for it, and where a minor offence has occurred late in the suspension period I might more easily be persuaded that ordering this suspended term to be served would be unjust if there are other facts, as there are other facts in this case to which I have just referred, and there is authority for that course in a Court of Criminal Appeal case called Hall v R."
The submission was that this indicated error because his Honour was saying that the circumstances that the breaching offence was:
(a)a minor offence;
(b)committed late in the suspension period,
may show it would be unjust to activate the suspended sentence, only if there are other facts also militating to that conclusion.
There are two short answers to this submission. The first is, that is simply not what his Honour was saying. All he was saying was that those circumstances were "a" relevant consideration (which is plainly correct) and where they exist his Honour "might be more easily persuaded" that ordering the suspended term to be served would be unjust, if there were other circumstances, as there were in this case militating to that conclusion. The point his Honour was making was that the breaching offence was not a minor offence occurring late in the suspension period. The second answer is that his Honour expressly acknowledged that there were other facts in this case militating to the conclusion that it would be unjust to order that the suspended term be served - but they were outweighed by the serious nature of the breaching offence and the early stage at which it was committed during the suspension period. In other words, if it was an error (which I do not think it was, because I do not think that is what his Honour was saying) it was not one which operated on the outcome of this case.
For the above reasons, it was my conclusion that the applicant was unable to show it was not open to the learned sentencing Judge not to decide the order for service of the suspended sentence would be unjust and the application for leave to appeal should accordingly be refused.
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