DISTRICT COURT OF QUEENSLAND
CITATION:
MYS v Commissioner of Police [2021] QDC 257
PARTIES:
MYS
(appellant)
v
COMMISSIONER OF POLICE(respondent)
FILE NO:
5 of 2021 (Maryborough District Court)
DIVISION:
Civil
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court, Gladstone.
DELIVERED ON:
Orders pronounced 14 October 2021 at Maryborough.
Reasons published 20 October 2021 at Brisbane.
HEARING DATE:
11 October 2021 at Maryborough.
JUDGES:
Byrne QC DCJ
ORDERS:
1. Application for extension of time within which to appeal is allowed.
2. Appeal allowed
3. Set aside the sentences ordered in the Gladstone Magistrates Court on 12 May 2021.
4. In their stead, in respect of both charges of contravening a domestic violence order with a circumstance of aggravation and in respect of the charge of possession of a utensil the appellant is sentenced to three months imprisonment, wholly suspended with an operational period of 6 months.
5. Each of those terms of imprisonment are to run concurrently with each other, and with the term of imprisonment imposed in the Gladstone Magistrates Court on 7 April 2021.
6. In respect of the charge of possession of a restricted drug, the appellant is convicted and not further punished.
7. Convictions are recorded in respect of each offence.
CATCHWORDS:
LEGISLATION:
CASES:
CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant convicted of two counts of contravening a domestic violence order, each with a circumstance of aggravation of a prior conviction, one charge of possession of a restricted drug and one charge of possession of utensils – where appellant was sentenced to a fine of $250 in respect of the possession of utensils charge – where on all other charges the appellant was imprisoned for three months cumulative on an 18 month term of imprisonment, with immediate parole eligibility – whether the requirement for the 3 month period of imprisonment to be served cumulatively on the existing 18 month period of imprisonment was excessive – whether the sentence imposed was manifestly excessive in the circumstances
Justices Act1886 (Qld)
Corrective Services Act 1988 (Qld)
Penalties and Sentences Act 1992 (Qld)Allesch v Maunz (2000) 203 CLR 172
Barbaro v The Queen (2014) 253 CLR 58
Fox v Percy (2003) 214 CLR 118
House v the King (1936) 55 CLR 499
Kentwell v The Queen, (2014) 252 CLR 601
Lovell v Lovell (1950) 81 CLR 513
McDonald v Queensland Police Service [2018] 2 Qd R 612
Norbis v Norbis (1986) 161 CLR 513
R v Nagy [2004] 1 Qd.R 63
Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679
Veen v The Queen (No. 2) (1988) 164 CLR 465COUNSEL:
Ms. L. Olafsson (sol) for the appellant.
Ms. A. Ballantyne for the respondent.
SOLICITORS:
Legal Aid Queensland for the appellant.
Office of the Director of Public Prosecutions.
Introduction
The appellant was convicted by his pleas of guilty of two counts of contravening a domestic violence order, each with a circumstance of aggravation of a prior conviction, one charge of possession of a restricted drug and one charge of possession of utensils.
He was sentenced to a fine of $250 to be paid immediately with three days in default in respect of the possession of the utensils charge. On all other charges he was imprisoned for three months cumulative on an 18 month term of imprisonment he was then serving, with immediate parole eligibility.
The appellant seeks leave to extend the time within which to appeal and also appeals on the sole ground that the sentence of imprisonment is manifestly excessive. Although specific complaints are made about certain aspects of the manner in which the sentence hearing was conducted, and about whether certain matters were taken into account or given too much weight, they are not relied upon as specific errors and form part of the context for the appellant’s complaint of manifest excess.
The respondent argues against the granting of the appeal.
The application for extension of time.
The appellant filed his notice of appeal 6 days outside the legislated time limit. It was said to be due to delays in processing the matter in the Legal Aid office. I do not think it necessary to go into the merits or otherwise of the explanation. Where the delay is short, as it is here, an application of this nature should be determined by the prospects of success on the appeal. As the application was heard with the appeal, the prospects of success can be accurately gauged and the fate of the application should follow the outcome of the appeal.[1]
[1]R v Tait [1999] 2 Qd.R. 667.
Nature of the appeal.
The appeal has been brought pursuant to s 222 of the Justices Act 1886, and so is by way of a rehearing on the record. In this appeal neither party has applied under section 223(2) of the Justices Act for leave to be given to adduce fresh, additional or substituted evidence.
It is necessary for me to consider the evidence and make up my own mind about the effect of it, particularly where any inferences are to be drawn from primary facts.[2] The onus is upon the appellant to show that there is some relevant error in the decision under appeal.[3] Given the present appeal is against the exercise of a discretion, the principles from House v the King[4] apply.
[2]Fox v Percy (2003) 214 CLR 118 at [22]-[25]; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 at [43], [57]; McDonald v Queensland Police Service [2018] 2 Qd R 612 at [47].
[3]Allesch v Maunz (2000) 203 CLR 172 at [23]; McDonald v Queensland Police Service, ibid.
[4](1936) 55 CLR 499, 504-505.
A sentence will be manifestly excessive if it is “unreasonable and plainly unjust”.[5] A conclusion to that effect will not be made simply because the appellate court, if in the position of the primary judge, would have taken a different view.[6] It follows that the appellate Court will not interfere unless the error in the exercise of discretion below is clear.[7] The Court may only intervene if it concludes that the sentence falls outside the permissible range of sentences in light of all of the relevant circumstances including the circumstances pertaining to the offender and to the offence itself.[8]
[5]House v The King (1936) 55 CLR 499, 504-505.
[6]House v The King, ibid; Norbis v Norbis (1986) 161 CLR 513, 518-519.
[7]Lovell v Lovell (1950) 81 CLR 513, 519, 533 – 534.
[8]Kentwell v The Queen, (2014) 252 CLR 601, [35].
Factual Allegations
The appellant is a 33 year old man, both at the time of sentencing and at the time of committing the offences. He has what is quite frankly a terrible criminal history, which commenced in 2005 when he was aged 17 years. He has made depressingly regular appearances in the courts since then. He has been imprisoned to actual incarceration on, by my count, eight occasions with the first time at age 23 years. Of particular relevance, since 2010 he has appeared on 11 occasions and been convicted of 19 offences of contravening a domestic violence order, under both the present legislation and its predecessor, as well as in New South Wales. Additionally he has twice been convicted of stalking offences in New South Wales. Further, he has an extensive traffic history.
Importantly for present purposes, on 7 April 2021 he was sentenced to 18 months imprisonment with parole release after one month, and ordered to perform 40 hours of community service, for an offence of contravening a domestic violence order with a circumstance of aggravation, as well as many other offences. He was released on parole on 30 April 2021, after allowance was made for presentence custody.
Also, on 7 April 2012 a Protection Order was varied in the presence of the appellant. In its varied form the order contained eight specific conditions banning any contact with the aggrieved.
It is in that context that the present offending occurred.
On 8 May 2021, that is eight days after release on parole, the appellant attended the aggrieved’s room at a Hotel and remained there during the day and night. That is the basis of the first contravention offence. In the early hours of the next day he was observed by patrolling police to be walking with her. He attempted to walk away quickly and when police spoke to him he denied knowing the person he was walking with was the aggrieved. Police located three strips of the psychotic medication Quetiapine, also known as Seroquel, as well as a smoking pipe that had been used for the smoking of methylamphetamine nearby.
The Sentencing Hearing
In sentencing submissions the Magistrate was told, without objection, that the appellant had been residing with his aunt upon his release on parole but had been invited by the aggrieved to visit her. The Magistrate observed that there may have been “extenuating circumstances” around the contravention offences. He also observed that while the possession of drug offence may have been the more serious of the offending, “that’s fineable only”. He also accepted that there was no violence in the offending, but observed that “he’s got to be taught a lesson”.
The sentencing remarks generally reflect the Magistrate’s observations made during submissions, but his Honour also told the appellant that he showed “complete contempt for the orders of the court”, that he had a “terrible history of breaching DV orders” that he was “playing around with drugs within a week of being released from custody” and, on ordering immediate parole eligibility, stated it was “a matter for the Parole Board as to when they let you out”.
Additionally, the appellant’s solicitor submitted that it was relevant that “parole and probation” were not issuing a return to prison warrant and submitted that he had only been on parole for 8 days and it would take some time for that supervision to take effect.
Submissions on Appeal.
The essence of the appellant’s submissions on the appeal were that the Magistrate must have placed too much emphasis on the appellant’s admittedly poor criminal history such that he imposed a sentence that was manifestly excessive given the appellant’s conduct which, it was submitted was at the lower end of criminality for this style of offending.[9] Further, it was said that his Honour erred in failing to have regard to the notorious delays in the assessment of parole applications.
[9]Veen v The Queen (No. 2) (1988) 164 CLR 465
There were other lesser complaints about the manner in which the sentence hearing was conducted but, given the view I have reached, these are unnecessary to consider and, in any event not made out.
It was submitted in writing that, given the time that the appellant had served in actual custody, the appropriate order on resentencing was to order imprisonment for one month with immediate suspension and an operational period of 6 months. In oral submissions it was said that because he has served further time in custody since the outline was written, the appropriate sentence on resentencing was to convict and not further punish.
The respondent in essence contended that, given the appellant’s extensive prior convictions and the fact that he offended so soon after release on parole, the sentence imposed cannot be seen as being manifestly excessive.
Consideration
While both of the appellant’s primary arguments allege error in the sentencing process, the sole ground of appeal alleged manifest excess only. The asserted errors were said to evidence possible reasons why the sentence is manifestly excessive.
It cannot, in my view, be established that the Magistrate gave undue weight to the appellant’s criminal history. There is no doubt that it figured prominently in his Honour’s consideration, but so it should have in the circumstances of this matter.
It is settled that the sentence imposed must not be disproportionate to the criminality of the conduct constituting the offence.[10] However there is no “range” of sentences for a particular offence committed in particular objective circumstances, the sentence must be judged on the basis of the individual factors in each case before the sentencer.[11] On that basis, the aforementioned statement of principle from Veen (No. 2) cannot be properly understood to mean that a criminal history cannot elevate a proper sentence above some supposed upper limit of a range, as there is no upper limit (apart from the maximum sentence). As much is borne out from the continuance of the same passage from the plurality judgment in Veen (No. 2) where it was said:[12]
“The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.”
[10]Veen v The Queen (No. 2), supra at 477.
[11]Barbaro v The Queen (2014) 253 CLR 58, [28], [34], [35], [38].
[12]supra at 477.
It can be seen that the appropriateness of a sentence will be assessed against a range of factors, including factors subjective to the offender, and not against some supposed range of sentences based on the objective features of the offending alone. Hence, it has been observed that an appellate Court may intervene on a basis of manifest excess “only … if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence”.[13]
[13]Kentwell v The Queen, ibid.
The appellant orally submitted that any sentence that required a period of actual incarceration was manifestly excessive given the objectively less serious features of the offending. I cannot accept that submission.
In my view it was open as an appropriate exercise of the sentencing discretion to require this appellant to serve a period of actual incarceration, notwithstanding the objectively less serious features of his offending. While they are relevant, so too was his abysmal compliance with the law overt the last 16 years, notably in respect of contravention of the domestic violence protection legislation in two States. His continued disobedience is also illustrated by his lengthy traffic history.
In my view this was a case where his antecedents illuminated the moral culpability of his conduct, meaning that an actual term of imprisonment was within the appropriate boundaries of the sentencing discretion in this matter, even though that had the effect of automatically cancelling his parole.[14] A period of three months was open.
[14]Section 209 and 211 of the Corrective Services Act 1988.
I have reached this view after considering the submissions below referred to at paragraph 16 herein. While potentially relevant, the stance taken by parole authorities to not issue a return to prison warrant cannot restrict the proper exercise of the sentencing discretion. Further, it is artificial to say that parole had not had a chance to work given his short period of release before reoffending when he had been subject to parole on many other occasions.
As to the second complaint, I do not accept that the Magistrate erred in sentencing without regard to what is said to be the notorious delay in consideration of parole applications.
First, it is to be noted that the solicitor below did not make any such submissions. True it is that the Magistrate did not allow the sentencing submissions to flow, but he was expressing his doubt about the veracity of what was being put before him and the solicitor had gotten to the point of simply repeating himself. There is nothing to suggest that any such submission would in fact be made. It is difficult to say there has been an error in not taking into account a discretionary factor when the sentencer was not asked to take it into account. The nature of the exchange was not such as to amount to a denial of procedural fairness or natural justice.
Second, the delay is said to be notorious and so it is hard to understand how the Magistrate would not have been aware of it, and therefore taken it into account. The mere fact that he imprisoned the appellant, without complete suspension, does not mean that he failed to take that delay into account. As earlier explained, I do not consider an order imprisoning the appellant, and there by automatically cancelling his then existing parole, was manifestly excessive in itself.
While I do not accept that any of the specific complaints or errors have been made out, I consider that the sentence was manifestly excessive because of the requirement that the term be served cumulatively on the term of imprisonment he was then serving on parole.
While it was open to impose an actual period of imprisonment even though it would cancel his parole, to expose the appellant to the real prosect of having to serve three months in addition to the roughly 17 months remaining to be served under that term of imprisonment rendered the punishment manifestly excessive. To adapt the words used by the Magistrate, the lesson to be taught was delivered by the cancellation of parole for potentially a lengthy period, not to add to it. Further, the three day default period under the fine for the possession of restricted drug offence was ordered to be paid immediately. I am informed it was not paid. Consequently, that default period must be served cumulatively on the other period of imprisonment.[15] This adds to the excessiveness of the sentence, albeit very slightly.
[15]Section 185(2)(b) of the Penalties and Sentences Act 1992.
It therefore falls to me to sentence afresh. He has now served roughly 5 months imprisonment as a result of the order made. While I would not have interfered if the terms had not been made or required to be served cumulatively, and hence his release would have been at the discretion of the parole board, I must take his current circumstances into account, including that period of 5 months of incarceration.
I consider that the appropriate order in those circumstances is to globally take into account the criminality, including the possession of the restricted drug so soon after his release on parole, and reflect the head sentence in the two contravention of domestic violence order offences and the possession of utensil offence.[16] Adopting that approach the appropriate sentence in my view is a period of three months imprisonment, wholly suspended with an operational period of 6 months. As I apprehend it, that will have the effect of reversing the cancellation of his parole, meaning, absent any discretionary action taken by the parole authorities, he will be released and under parole until about October 2021. He will also have a suspended sentence over him for the next six months. That combination will hopefully provide enough incentive to obey the law for a while. If not, the consequences should be perfectly clear to him.
[16]R v Nagy [2004] 1 Qd.R 63.
As the overall criminality is reflected in those sentences, the possession of the restricted drug will attract a sentence of being convicted and not further punished.
Orders
My orders are:
1.Application for extension of time within which to appeal is allowed.
2.Appeal allowed
3.Set aside the sentences ordered in the Gladstone Magistrates Court on 12 May 2021.
4.In their stead, in respect of both charges of contravening a domestic violence order with a circumstance of aggravation and in respect of the charge of possession of a utensil the appellant is sentenced to three months imprisonment, wholly suspended with an operational period of 6 months.
5.Each of those terms of imprisonment are to run concurrently with each other, and with the term of imprisonment imposed in the Gladstone Magistrates Court on 7 April 2021.
6.In respect of the charge of possession of a restricted drug, the appellant is convicted and not further punished.
7.Convictions are recorded in respect of each offence.