DISTRICT COURT OF QUEENSLAND
CITATION:
Russell v Commissioner of Police [2018] QDC 183
PARTIES:
CODY DYLAN RUSSELL
(appellant)
v
COMMISSIONER OF POLICE
(respondent)
FILE NO/S:
558/18
DIVISION:
Criminal
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
13 September 2018
DELIVERED AT:
Brisbane
HEARING DATE:
17 August 2018
JUDGE:
Farr SC DCJ
ORDER:
Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL – Justices Act 1886 – section 222 – appeal against sentence – where appellant pleaded guilty to two charges of enter premises and commit an indictable offence by break and one charge of contravene notice by discarding/propelling/burning a burning article/substance that caused a fire that would endanger persons/property/environment – where appellant also in breach of a probation order and a community service order and re-sentenced for original offences – where appellant sentenced to periods of imprisonment and a parole release date was fixed requiring a period of three months actual imprisonment – whether a period of actual imprisonment was manifestly excessive – whether appropriate weight was given to the appellant’s age and co-operation with police
Justices Act 1886 (Qld) s 222, s 223, s 225
AB v R (1999) 198 CLR 111
Bode v Commissioner of Police [2018] QCA 186
Fox v Percy (2003) 214 CLR 118
Mbuzi v Torcetti [2008] QCA 231
McDonald v Queensland Police Service [2017] QCA 255
R v Dance [2009] QCA 371
R v Horne [2005] QCA 218
R v Lovi [2012] QCA 24
R v Mules [2007] QCA 47
R v PW [2005] QCA 177
Robinson Helicopter Company Inc v McDermott [2016] HCA 22
Stevenson v Yasso [2006] QCA 40COUNSEL:
M F Bonasia for the appellant
M Evans (sol) for the respondent
SOLICITORS:
Howden Saggers Lawyers for the appellant
Office of the Director of Public Prosecutions (Qld) for the respondent
On 13 February 2018 in the Magistrates Court at Brisbane the appellant pleaded guilty to the following offences:
(a) Enter premises and commit an indictable offence by break;
(b) Contravene notice by discarding/propelling/burning a burning article/substance that caused a fire that would endanger persons/property/environment; and
(c) Enter premises and commit an indictable offence by break.
He was sentenced as follows:
(a) Ten months imprisonment for the enter premises and commit an indictable offence by break that occurred between 30 May 2017 and 24 August 2017;
(b) Four months imprisonment for the contravene notice by discarding/propelling/burning and burning article/substance that caused a fire that would endanger persons/property/environment which occurred on 24 September 2017; and
(c) Thirteen months imprisonment for the enter premises and commit an indictable offence by break which was committed on 4 February 2018.
He was also dealt with for breaching both a probation order and a community service order. For the breach of the probation order (that had been imposed in the Pine Rivers Magistrates Court on 6 March 2017) he was convicted and not further punished but he was re-sentenced for the original offences as follows:
(a) Three months imprisonment for the offence of trespass which occurred on 16 December 2016;
(b) Six months imprisonment for an offence of wilful damage which occurred on 16 December 2016; and
(c) Eight months imprisonment for an offence of enter premises and commit an indictable offence which occurred on 11 February 2017.
For the breach of the community service order (which was imposed on 15 May 2017 in the Caboolture Magistrates Court) he was convicted and not further punished but was re-sentenced to nine months imprisonment for the original offence of enter premises and commit an indictable offence which occurred on 27 March 2017.
All of the terms of imprisonment imposed on 13 February 2018 were ordered to be served concurrently. A parole release date was fixed at 6 May 2018, that is after having served a period of three months. Ten days pre-sentence custody was declared as time already served.
The facts
The appellant was 17 to 18 years of age at the time of the commission of these offences. He presently is 18 years of age.
The offence of enter a premises and commit an indictable offence by break which occurred on a date unknown between 30 May 2017 and 24 August 2017 involved the appellant entering a house at Taigum through an unlocked back door. When inside, he damaged the walls and windows of the house and damaged other property as well. He used black spray paint to spray paint words and initials over the walls.
The offence of contravene notice by discarding/propelling/placing a burning article/substance that caused a fire that would endanger persons/property/
environment was committed by the appellant when he and his girlfriend were walking in a large area of grassland adjacent to the Atkinson Dam Caravan Park. The two of them smoked a cigarette and when the appellant tried to put it out on a log, embers fell on the ground. He walked away and several minutes later smoke was observed coming from that area. When the appellant and his girlfriend went back to look, they saw a large fire. The appellant attempted to extinguish the fire with no success. The appellant’s girlfriend then called fire services before they both returned to the caravan park.
In relation to the offence of entering a premises and commit and indictable offence by break which occurred on 4 February 2018, the appellant opened the garage door to a house and went inside where he located coins. He then used an unlocked empty wooden chest which he then filled with the coins as well as a pair of binoculars and a stereo and left the house.
He has appealed the sentences on the grounds of excessiveness although submissions made on his behalf only challenge the imposition of the parole release date after a period of three months. It has been submitted that the magistrate did not give sufficient weight to the appellant’s young age nor to his co-operation with the police.
Standard to be met on appeal
Section 222(1) of the Justices Act 1886 provides for the appellant’s right of appeal to the District Court. Subsection (2)(c) provides that if a defendant pleads guilty, then there may only be an appeal on the ground that the punishment or penalty was excessive or inadequate. Section 223 provides that such an appeal, relevant to this matter, is by way of rehearing on the original evidence on the record. Section 225 empowers a judge to confirm, set aside or vary an appealed order, or make any other order considered just.
In the joint judgment of Fox v Percy,[1] Gleeson CJ, Gummow and Kirby JJ described the nature of appeals by way of rehearing as follows:[2]
[1](2003) 214 CLR 118.
[2]At [22]-[23], [25].
“The ‘rehearing’ does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.
The forgoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance’. On the other, it must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witness credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a long interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
…
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, although [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect.”
In Stevenson v Yasso, McMurdo P observed that the District Court judge in his appellate jurisdiction “was required to make his own determination of the issues on the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view.”[3]
[3][2006] QCA 40 at [36].
In Mbuzi v Torcetti, Fraser JA relevantly observed that “the judge should afford respect to the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence, and draw his or her own conclusions.”[4]
[4][2008] QCA 231 at [17].
In McDonald v Queensland Police Service, Bowskill J (with whom Fraser and Philippides JJA agreed) said:[5]
“It is well established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.” (footnotes omitted)
[5][2017] QCA 255 at [47].
More recently, McMurdo JA in Bode v Commissioner of Police[6] restated the task of a court conducting an appeal by way of rehearing to be as is described by the High Court in Robinson Helicopter Company Inc v McDermott as follows:[7]
“A court of appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.”
[6][2018] QCA 186 at [42]. These observations were made in his dissenting judgment where he considered that the District Court judge hearing an appeal from the Magistrates Court against conviction after trial did not conduct a rehearing as was required by s 223 of the Justices Act.
[7](2016) 90 ALJR 679, 686-687; [2016] HCA 22 at [43].
The appellant’s youth
There is no doubt that youth is a mitigating factor on sentence.
The appellant has referred to the matter of R v Lovi, in which Muir JA said (with whom de Jersey CJ and Atkinson J agreed):[8]
[8][2012] QCA 24.
“Imprisonment for short periods of young offenders, such as the applicant, who have not been previously imprisoned, is generally recognised as potentially harmful to their rehabilitation. Batt JA accurately remarked in R v Mills that rehabilitation benefits the community as well as the offender. As Aburbury CJ observed in Lahey v Sanderson:
‘The Courts have recognized that imprisonment is likely to expose a youth to corrupting influences and to confirm him in criminal ways, that’s defeating the very purpose of the punishment imposed. There has accordingly been a universal acceptance by the Courts in England, Australia and elsewhere of the view that in the case of a youthful offender his reformation is always an important consideration and, in the ordinary run of crime the dominant consideration in determining the appropriate punishment to be imposed. It has been said by Lord Goddard, the former Lord Chief Justice of England, that a judge or magistrate who sends a young man to prison for the first time takes upon himself a grave responsibility. With that I respectfully agree.” (Footnotes omitted)
The appellant has also referred to R v Mules,[9] where the Court of Appeal approved a statement by the court in R v Horne[10] which makes clear that youthful offenders with limited criminal histories and promising prospects of rehabilitation who have pleaded guilty and co-operated with the administration of justice, even where they have committed serious offences, should receive more lenience from courts than would otherwise be appropriate.
[9][2007] QCA 47.
[10][2005] QCA 218.
The appellant has submitted that when passing sentence the learned magistrate did not mention the appellant’s young age and the court is asked to infer that insufficient weight was therefore given to that feature.
I note though at the very outset of his sentencing remarks the magistrate stated:
“Mr Cody Russell is an 18 year old legally represented defendant.”[11]
[11]Transcript of Sentencing Remarks.
He therefore did take the appellant’s youth into account, although whether he gave it sufficient weight is a separate issue.
The appellant’s age is, of course, but one of the considerations relevant to the determination of an appropriate sentence. Also of relevance is the fact that the appellant committed the substantive offences whilst the subject of both a probation order and a community service order. It is also relevant that such orders related to offences of a similar nature to the substantive offences. Additionally, his response to those orders was abysmal. He failed to attend at the probation office on every occasion he was required to attend and he did not perform any community service. [12]
[12]T1-3, l 24.
In Lovi Muir JA had regard to the applicant’s age of 16 and 17 years in conjunction with his good prospects of rehabilitation.[13] He had no prior criminal convictions, was in the process of joining the military and had a good work history.
[13]At [39].
Similarly, in R v Mules the court took the appellant’s youth into consideration along with the promising efforts she had been making towards rehabilitation in that she had been taking care of her young children and had abstained from drugs and alcohol. The court also noted that she was not on probation at the time of her offending.[14]
[14]AT [21].
In the present matter however, the appellant has not shown that he has taken any steps towards rehabilitation and in fact has continued to offend.
The appellant also made reference to the case of R v Dance.[15] In that matter Dance pleaded guilty to 19 property offences and three summary charges. He was sentenced to 18 months imprisonment in respect of the indictable offences and a parole release date was set, after he served four months.
[15][2009] QCA 371.
Mitigating factors in that matter (upon which the Court of Appeal placed heavy emphasis) included the offender’s youth (he was 17 to 18 years of age when the offending occurred); his efforts at rehabilitation, including not having offended for some period of time, his reduced alcohol intake, his stable living and working environments; and his co-operation with authorities including the entering of pleas of guilty and the making of admissions to offences for which there was no other evidence.
In the current matter there is no evidence before the court that the appellant has taken any rehabilitative steps. In fact, the only material that was before the court was by way of a court report that suggested that he was not suitable for community-based orders. I note however, that the appellant had a dysfunctional and disruptive childhood and that his main supports are the parents of his 17 year old pregnant girlfriend. It was said on his behalf that he intends to get back into contact with his work provider with a view to obtaining employment in the future. Furthermore, notwithstanding his difficult childhood he was educated to a Grade 12 standard.
The appellant’s co-operation
There is no dispute that the appellant was co-operative with police during their investigations and made admissions to the offending when interviewed.
Disclosure of offences, either by confession to an offence under investigation or by confession to a previously unknown offence, has always been regarded as an important factor in sentencing. In R v PW[16], Keane JA (as his Honour then was) said:
“In this case there was an unusually high level of co-operation on the applicant’s part with the authorities, including his voluntary disclosure. That is indicative of real remorse and justifies the view that the applicant has shown a determination to control his behaviour. His co-operating involving his voluntary disclosure is relevant, not merely to the moderating of the sentence which is otherwise appropriate, because of the savings to the administration of justice, but also to the importance of the consideration of deterrence rather than the prospects of rehabilitation.”
[16][2005] QCA 177.
It was said in AB v R[17]:
“An offender who confesses to crime is generally to be treated more leniently than the offender who does not. And an offender who brings to the notice of the authorities criminal conduct that was not previously known, and confesses to that conduct, is generally to be treated more leniently than the offender who pleads guilty to offences that were known.”
[17](1999) 198 CLR 111.
This is of some relevance to the causing fire charge as the appellant’s admissions in his police interview formed the factual basis for the sentence.[18]
[18]T1-3, l 39.
In relation to the enter premises charge for the offence that occurred between May and August 2017, the appellant had conversations with a witness or witnesses when he was observed leaving the house on a later date. In those conversations, he made admissions to damaging the house which resulted in him being a suspect.[19] Later, he participated in an interview with police during which he made admissions to breaking into the premises and causing the damage inside.[20]
[19]T1-4, l 23.
[20]T1-4, l 26.
It must be noted though that his admissions to that witness or witnesses occurred at a date later than the date of the offending conduct, yet the appellant was again at that premises on that subsequent occasion for no lawful reason. In those circumstances, his statement to that witness or witnesses can hardly be described as being indicative of real remorse nor does it allow the inference that he had shown a determination to control his behaviour. That is confirmed by the fact that he later committed the second offence of enter a premises and commit an indictable offence by break.
Furthermore, his admissions to police in relation to that second offence also are not indicative of real remorse given that he was effectively caught in the act by neighbours and held by them at the scene until the arrival of police.[21]
[21]T1-4, ll 37 – 46.
So, whilst there is no dispute that his admissions to the charge of contravening a notice by discarding/propelling/placing a burning article/substance that caused a fire that would endanger persons/property/environment formed the basis of the case against him, the sentence imposed for that offence was subsumed by the sentences imposed for the other matters and does not particularly assist the appellant’s argument.
It can be inferred that the learned magistrate would have had regard to the degree of the appellant’s co-operation with police when the facts of the charges were read out to the court by the police prosecutor when his legal representative made specific reference to his admissions in her submissions.[22]
[22]T1-6, l 31, T1-7 ll 1-18.
Although not specifically referenced in the course of his Honour’s sentencing remarks, there is no reason to conclude that the appellant’s co-operation was not considered in the formulation of sentence.
Whilst his Honour acknowledged that a custodial term should be a last resort,[23] he was nevertheless of a view that a term of actual imprisonment was called for.
[23]Section 9(2) of the Penalties and Sentences Act 1992.
Conclusion
The appellant has not challenged the head sentences imposed by the magistrate. Whilst in the exercise of his discretion it may have been open to the magistrate to fashion a sentence that did not require the appellant to serve any greater term of imprisonment than the 10 days of pre-sentence custody, it cannot be said that the imposition of three months actual imprisonment is excessive or without justification. That is particularly so given that the magistrate appears to have adopted a global approach taking into account the full criminality of all matters when imposing sentence for the most serious charges.
In my view the magistrate took all relevant considerations into account and I can discern no factual, legal or discretionary error on his part.
Accordingly, the appeal is dismissed.