Curious Hiatus or Whopping Great Lacuna? The Sentencing Fiction gets Stranger than Fiction

There should be little doubt that the suspended sentence is a valuable tool in the armoury of the criminal sentencing court.  To meet the obligations imposed by s. 9 of the Penalties and Sentences Act 1992 a sentencing court needs the option of giving a person one last chance or alternatively, a taste of what they are getting themselves into.  Herein lies the suspended sentence.  Sentencing fiction or not, it remains an option for offenders who for one reason or another do not need to spend any or all of their sentence in custody.

The reasoning of Williams and Jerrard JJA in R v Muller (2005) 157 A Crim R 104 ([2005] QCA 417), and its subsequent application by the Court of Appeal in R v Lam [2006] QCA 560 have now exposed the serious deficiency in orders extending the operational period of an original suspended sentence. According to the reasoning in Muller and Lam, an offence committed during an extended operational period does not enliven the suspended sentence.  Jerrard JA referred to this as a “curious hiatus” (Muller para [50]), but one which could not be correct by judicial interpretation.  The cause of this hiatus is the wording of s. 146(1) of the Penalties and Sentences Act 1992.  Section 146(1) provides:

Section 144 deals with the imposition of a suspended sentence for a person who commits an offence.  It does not deal with the extension of the operational period.  That is provided for under s. 147(1)(a)(i) where at the date of the sentence the operational period is still in effect and s. 147(1)(a)(ii)(B) where the operational period has expired.  Where the operational period has expired, s. 147(1)(a)(ii)(A) allows for the sentence to be further suspended.  However this further suspension is not catered for in the text of s. 146 and so again, will not require the Court to proceed through the corridors of s. 146 and inevitably onto s. 147.  An offender who commits an offence during an extended operational period will not be before the Court for an offence committed “during the operational period of an order made under s. 144” as is required by s. 146(1), but rather for an offence committed during an operational period of an order made under s. 147!
    
In Muller, the appellant had been sentenced on 20th August 2002 to four years imprisonment suspended after serving 18 months with an operational period of four years. On 24th March 2003 the appellant committed a further offence (disqualified driving). When he appeared before the learned trial judge, the appellant was given the benefit of the sentencing discretion and the operational period was extended for a further 12 months (remember, the offence was committed in the original operational period which was still in operation). Consequently, the reasoning of Williams and Jerrard JJA are clearly obiter, strong well reasoned obiter, but obiter all the same.  As Atkinson J said (at para [65]), the hiatus referred to by Williams and Jerrard JJA was not argued on the appeal, nor was it necessary for the disposition of the appeal. In Muller the appellant had argued the sentence he received was manifestly excessive.  The appellant had argued the appropriate order was one extending the operational period (the learned trial judge had reasoned he could not extend the operational period beyond 5 years — another interesting point to be left for another time).

In Lam the appellant had in October 2006, in addition to sentences of imprisonment for serious offences, been ordered to serve the balance of a suspended sentence previously imposed in August 2001.  That previous suspended sentence had been breached and the operational period extended in November 2004 (a further suspended sentence was imposed at this time for other offences). The serious offences dealt with by the sentencing court had occurred during the extended operational period post November 2004. In submissions the Crown submitted that the suspended sentence imposed in August 2001 and extended in November 2004 could not be activated.  Phillippides J said it was proper for the Crown to raise the point and concurred that on the basis of Muller, that part of the sentence could not stand.  McMurdo P and Helman J simply agreed with Phillipides J.  It would appear on this authority that extending an operational period has no value because it can not be given effect to if an offence is committed in that period.

Extending an operational period under s. 147 is an important sentencing option.  Section 147 requires that the balance of a suspended sentence be imposed, unless the Court considers it unjust to do so.  There are many circumstances where it will be unjust for a suspended sentence in whole or in part to be imposed on an offender (see for example R v Bowen [1997] 2 Qd R 379; R v Holcroft [1997] 2 Qd R 392 and R v Holley; ex parte Attorney-General [1997] 2 Qd R 407).  On the present state of the authorities, its effectiveness is nullified by the inability to activate the original sentence if an offence occurs in this period — indeed an offence committed in the extended period may be one which deserves the imposition of some or all of the sentence of imprisonment as the offender has already had his chance, so to speak.  It is submitted that the hiatus described by Williams and Jerrard JJA in Muller is a serious deficiency in the sentencing armoury of a Court.  Whilst it may be advantageous for a few wrongly sentenced, the long term effect of the hiatus will be the loss of the sentencing option.  It is submitted that the greater public interest is not served by it.

It does not appear that there is an effective method of interpreting ss. 146 and 147 which is not burdened by the reasoning of Williams and Jerrard JJA in Muller.

A legislative amendment is necessary to enable the continued effective use of the extended operational period mechanism provided for in s. 147 of the Penalties and Sentences Act 1992. Without it, where an order requiring a person to serve the whole or part of a previous suspended sentence is unjust, courts may be reluctant to apply the extension provision because of its lack of effective enforcement. It is not simply a hiatus, it is a lacuna.

Darin Honchin