Re Colin Lesley Campbell v R [1985] FCA 13; 58 ALR 407 / 4 FCR 137 (6 February 1985)

FEDERAL COURT OF AUSTRALIA

Re: COLIN LESLEY CAMPBELL
And: THE QUEEN
No. G29 of 1984
Criminal Law
[1985] FCA 13; 58 ALR 407 / 4 FCR 137

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Fox(2) and Blackburn(3) JJ.

CATCHWORDS

Criminal law - suspended sentence - Further offence constituting breach of recognizance - Term of imprisonment ordered - Suspended sentence reactivated - Whether power to make sentences cumulative.

Crimes Ordinance (A.C.T.) - ss.444(1), 556C

Crimes Act (Cth) - s.19

Criminal Law - Sentence - Cumulative sentence - Power to impose - Breach of recognizance - Breach during suspended sentence - Sentence of imprisonment for later offences causing breach - Power to make re-activated sentence cumulative - Crimes Act 1900 (NSW), ss 444(1), 556C(4).

Criminal Law - Sentence - Recognizances - Proceedings for breach - Power to make re-activated suspended sentence cumulative - Offender sentenced to imprisonment for later offence occasioning breach - Crimes Act 1900 (NSW), ss 444(1), 556C(4). Held, that where a prisoner is dealt with pursuant to the Crimes Act 1900 (NSW) s 556C(1) (in its application to the Australian Capital Territory) for breach of recognizances, due to the commission of an offence during the period of a suspended sentence, and the prisoner is serving a term of imprisonment for the later offence, the re-activated suspended sentence cannot be made cumulative upon the later term of imprisonment as there is no conviction within s 444(1) of the Act.

R. v. Blow (1963) QWN 1; Butawilya v. Stobbart (1982) 6 A Crim R 107, applied.

HEARING

1984, October 31; 1985, February 6. 6:2:1985
APPEAL

Appeal against judgment and orders of the Supreme Court of the Australian Capital Territory (Gallop J).

H D Palmer, for the appellant.

G C Lalor, for the respondent.
Cur adv vult

Solicitors for the appellant: Legal Aid Office, Canberra.

Solicitor for the respondent: Australian Government Solicitor.
BAG

ORDER

1. The appeal be allowed.

2. The sentence ordered by the trial judge be quashed.

3. The matter be remitted to the trial judge.

Orders accordingly

DECISION

I agree with the orders proposed by Fox J. and with his reasons.

This is an appeal against orders made by Gallop J. in the Supreme Court of the Australian Capital Territory, when dealing with breaches of a recognizance given by the appellant under suspended sentences of imprisonment imposed by the same judge.

2. The appellant on 14 July 1983 had pleaded guilty in the Supreme Court to two charges, one of stealing a motor car, and the other of maliciously setting fire to it. The passing of sentences, having been adjourned for the benefit of the accused, had taken place on 26 August 1983. In relation to the offence of stealing, the accused had been sentenced to six months imprisonment, suspended upon his entering into his own recognizance in the sum of two thousand dollars to be of good behaviour for a period of two years, and to observe other requirements. For the other offence, he had been sentenced to imprisonment for twelve months, suspended upon his entering into a recognizance in the same amount and subject to the same conditions. The recognizances had been given on the same day - 26 August 1983.

3. The appellant committed several breaches of the recognizances, and for one offence, constituting a breach, which was committed on 2 September 1983, he was sentenced in the Canberra Court of Petty Sessions to two years imprisonment with a non-parole period of twelve months.

4. The breaches were reported to the Supreme Court on 9 May 1984 by sworn information of a Chief Inspector of Police, acting under s.556C(1) of the Crimes Act 1900 (N.S.W.) in its application to the Territory.

5. His Honour dealt with the matter on 10 May 1984. He expessed the orders he made as follows:

"In relation to the offence of maliciously setting
fire to the motor car, I sentence you to 12 months
imprisonment, such sentence to commence at the
expiration of the sentence which was imposed upon you
by Mr Dainer on 1 May. In relation to the offence of
stealing, I sentence you to six months imprisonment
with hard labour to be served concurrently with the
sentence of 12 months which I have just imposed."

The sentence of Mr. Dainer to which he referred was the one I have mentioned which led to a sentence of two years imprisonment. What is challenged in this Court by the appellant is the order that the sentences (in themselves concurrent) be cumulative to the two years imprisonment.

6. The Crown submitted at one stage that the relevant provision was s.19 of the Crimes Act 1914 (Cth) which it was contended was made applicable by s.7 of the Interpretation Ordinance 1937. Having in mind the terms of s.19, the submission is clearly untenable, and I think was abandoned. In the alternative, counsel for the Crown relied on s.444(1) of the New South Wales Act. It is not submitted by the Crown that the "cumulative" part of his Honour's order would otherwise be justified.

7. It is common ground that the cases came before his Honour pursuant to s.556C(4) of that Act, and that the relevant paragraph thereof is (e). Sub-section (4) is as follows:

"(4) Where a person who has been released in
pursuance of an order made under the last preceding
section appears before the court on summons or warrant
issued under sub-section (1) of this section or as a
result of having been committed to be dealt with by the
court under the last preceding sub-section, the court,
if it is satisfied that -

(a) the person has failed during the period of
good behaviour to comply with a condition
specified in the order in accordance with
sub-paragraph (ii) of paragraph (a) of
sub-section (1) of the last preceding section;

(b) the person has failed to pay, as provided in
the order, the penalty or an instalment of the
penalty for the payment of which he has given
security; or

(c) the person has been convicted, whether within
or outside the Territory, of an offence
committed during the period of good behaviour,

may -

(d) in a case where the person was released
without sentence having been passed on him -
impose on the person any penalty which the
Court would, if the person had then and there
been convicted of the offence with which he
was originally charged, be empowered to impose
or make any order (including an order under
sub-section (1) of the last preceding section)
which the Court would, if he had then and
there been convicted of the offence of which
he was originally charged, be empowered to
make; or

(e) in a case where the person having been
sentenced, was released forthwith or after he
had served a specified part of the sentence
imposed on him - commit the person to prison
to undergo imprisonment for such term, being a
term not exceeding the sentence or the balance
of that sentence, as the case requires, or
make any order (including an order under
sub-section (1) of the last preceding section)
which the Court would, if he had then and
there been sentenced for the offence of which
he was originally charged, be empowered to
make."

Section 444 is as follows:

"444. (1) Where a person is convicted of any
offence, and at the time of passing sentence the term
of any sentence of imprisonment previously passed on
him is unexpired, the Judge may direct that the
sentence for the offence of which such person then
stands convicted shall commence at a future day to be
named by the Judge, and to be within, or at the
expiration of the period of such unexpired sentence.

(2) Where no such direction is given the sentences
shall be concurrent."

8. The submission for the appellant is that what was done on the later occasion, under s.556C(4) was not "passing sentence" within the meaning of s.444(1). This seems to me to be correct. What that sub-section refers to is passing sentence upon a conviction and the sentences upon conviction in the present case were the suspended sentences. The Queensland legislation considered in Reg. v. Blow ((1963) QWN 1) was in language comparable with that of s.444(1), and the Full Court of that State there reached the same conclusion, so that the activated sentence could not be made cumulative to the imprisonment imposed for a crime committed during the period of operation of the suspension (see also Butawilya v. Stobbart (1982) 14 NTR 1).

9. In the early part of para. (e) of sub-s. (4), the power is to commit for the balance (including the whole) of the prison sentence. This is not a process of sentencing, but of committing. Nor does the balance of the paragraph deal with sentencing. It provides for the making of orders, and these are in the same paragraph distinguished from sentences. The date of the sentence is still the earlier date, in this case 26 August 1983. The paragraph does not provide that the later order is to be regarded as a sentence. Even if it did, the language of s.444(1) would not accommodate it, because that section is referring to sentence upon conviction, and is not referring to what would in effect be a second sentence for the one conviction. To make the second sentence cumulative upon a sentence for an offence which had not occurred at the time of the first sentence (as is the case here) would seem entirely unjustified.

10. This leaves unanswered the query of the learned judge as to what in justice is to be done when there has been a suspended sentence but a further crime has been committed during the period of good behaviour and the court has to consider the consequences for the suspended sentence when a term of imprisonment for the later offence is currently being served. To commit for the term, or balance of the term of the suspended sentence may be of no real effect, and a further recognizance would be futile. The estreatment of a recognizance (a separate matter) may also be of little or no use. I think that this situation is one of the frailties attendant upon suspended sentences. They are often useful, but their use has been criticised, and they have their difficulties (see foreword by L. Radzinowicz, Ancel, Suspended Sentence (1971) (vi); Saeed, Suspended Sentences, 1970 Current Legal Problems, 71 especially at 86, 89). One remedy, the obvious one, is for legislative amendment. A study of what is done elsewhere would be helpful in this regard (see, for example, s.40 of the Criminal Justice Act 1967 (U.K.) and s.23 of Powers of Criminal Courts Act 1973 (U.K.)).

11. The appeal should be allowed, the sentence quashed and the matter remitted to the trial judge.

I concur entirely in the reasons for judgment delivered by Fox J. and in the order he proposes.