DISTRICT COURT OF QUEENSLAND
CITATION:
Yuile v Queensland Police Service [2021] QDC 337
PARTIES:
BAELEY-ROSE KIRSTY YUILE
(Appellant)
v
Queensland Police Service(Respondent)
FILE NO/S:
D44/21
DIVISION:
Civil
PROCEEDING:
Appeal under s 222 Justices Act 1886
ORIGINATING COURT:
Magistrates Court at Ipswich
DELIVERED ON:
2 November 2021 ex tempore
DELIVERED AT:
Ipswich
HEARING DATE:
2 November 2021
JUDGES:
Horneman-Wren SC DCJ
ORDER:
1. Appeal allowed
2. Set aside the sentence imposed on 15 February 2017 and resentence the Appellant
3. On charge 1, the Appellant is resentenced to 12 months imprisonment
4. On charge 2, the Appellant is resentenced to 2 years and 6 months imprisonment
5. On charge 3, the Appellant is resentenced to a period of 18 months Probation
6. Terms of imprisonment wholly suspended for a period of 3 years.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where the Appellant was sentenced to a head sentence of 3 years imprisonment for home invasion offences – where the Appellant is a citizen of New Zealand – whether the Appellant’s likely deportation as a result of visa cancellation pursuant to s 501(a) of the Migration Act 1958 (Cth) was a mitigating feature in sentence – whether the Magistrate erred at law by structuring a sentence the Appellant could not comply with – where appeal allowed
COUNSEL:
Mr Hans (sol) for the Appellant
Ms A Robinson for the RespondentSOLICITORS:
Hans Legal for the Appellant
Director of Public Prosecutions for the RespondentThe original sentence
On 12 October 2021, the Appellant was sentenced by a Magistrate, having pleaded guilty to one count of assault occasioning bodily harm, one count of burglary and assault occasioning bodily harm whilst armed and in company, and one count of wilful damage. She was sentenced, respectively, to terms of imprisonment of 12 months, three years and three months. That is a sentence of a three months, not three years and three months. Each to be served concurrently. The learned sentencing Magistrate fixed her parole release date as 22 March 2022. A period of 40 days of pre-sentence custody was declared. The effect of the sentencing orders was that, of the three year head sentence, the Appellant was required to serve six months in actual custody.
The respondent concedes that the learned sentencing Magistrate erred at law in sentencing the Appellant in that way because by ordering the Appellant’s release on parole, the court imposed an order with which she would be unable to comply, for the reasons identified by the Court of Appeal in R v Abdi [2016] 263 A Crim R 38. This stems from the Appellant being a citizen of New Zealand. She resides in Australia only by authority of a visa. Because of the sentence imposed, that visa would be subject to mandatory cancellation by the Minister by operation of section 501(a) of the Migration Act 1958 (Cth). Because of this error, the Appellant must be re-sentenced. The offending for which the Appellant is to be re-sentenced is serious. It involves what is commonly referred to as a home invasion.
Facts
The offences arose in circumstances in which the Appellant, having been drinking with a group of people at a local tavern, returned to a private dwelling. In the course of that night, she sent communications to friends which suggested that she was in serious risk of harm and encouraged, indeed incited, them to come to her assistance. Three, two males and a female, did so. One of the males was her then partner, Mr Yay. They came armed with a baseball bat. Having entered the dwelling and having searched the premises for the Appellant, the group proceeded to inflict considerable violence upon two occupants of the dwelling, including by use of the baseball bat. They also damaged property at the dwelling after the occupants fled to a neighbouring property to gain assistance. The two males were the main offenders in terms of the violence inflicted. The other female, Ms Davies, may have participated in the violence but to a lesser extent.
The Appellant was liable as a party, but it must be immediately appreciated that whilst she was a party, as the instigator, there simply would not have been any offending but for her imploring others to do so. As has been noted, the Appellant spent 40 days in pre-sentence custody. That followed immediately after her arrest. She was granted bail by the Supreme Court on strict conditions. She complied with those conditions. She engaged with the Alcohol and Other Drugs Service to address underlying alcohol abuse issues which clearly featured in this offending. It had also featured in an earlier offence of assault occasioning bodily harm for which she had been sentenced on 21 August 2020 to nine months probation. She was approximately halfway through that order when she committed the current offences. The fact that the offences were committed in breach of that earlier probation order is an aggravating feature, and of course, of no credit to her.
The Appellant’s antecedents
A report in respect of her probation order however reveals that psychological issues needed to be addressed. It was noted that she had been the victim of domestic violence perpetuated by her co-accused, Mr Yay. He is the father of her two young children. The report notes her engagement with counselling. Despite her further offending, it identifies her as being suitable for further community-based orders. In those circumstances, I should consider that she has reasonably strong prospects for rehabilitation. That rehabilitation will be severely disrupted, if not entirely eroded, by sentencing orders which have the effect that she could not continue to engage with counselling services. An order which results in the mandatory cancellation of her visa and likely deportation would have that effect. Such an outcome, in my view, is, if possible, to be avoided. Not for the purpose of defeating the operation of the Migration Act, but to foster and further the rehabilitation which she has already commenced.
Deportation as a mitigating feature
The Appellant’s likely deportation is also a mitigating feature in sentence. In the Appellant’s case, her deportation would demonstrably cause her hardship. She came to Australia as an eight year old. She has no meaningful ties in New Zealand and all her support mechanisms and networks are here – her parents and her current partner, in particular. Her current partner who is the father of a child she shall give birth to in March 2022 is a serviceman in the Australian Army. She would be separated from him upon deportation. This would separate father and child and remove support for her in raising the child. She would also be separated from her other two children.
The sentencing purposes of general and personal deterrence and community denunciation can be achieved by a lengthy term of imprisonment being imposed for the offending, suspended for a lengthy operational period of time. That will have the deterrent effect that she can be later dealt with further for the offending should she breach her suspended sentence. The now 61 days of detention which she has served will no doubt also serve as a personal deterrent, particularly, one suspects, her having been returned to jail after sentencing, and after having previously been released on bail after the initial period of 40 days. Rehabilitation can be achieved by fashioning orders which do not further disrupt the steps taken in that regard already. A further period of probation would assist in that regard.
Of course, she also has the benefit of her plea of guilty, which should be considered in reducing the sentence which might otherwise be imposed. In the course of sentencing submissions, Mr Hans, who appeared for the Appellant also raised an issue of parity as concerning the sentence ultimately imposed upon the co-offender Ms Davies. Ms Davies was much less implicated in the offending, although she too was a party. She was the recipient of the communications, not the sender of the communications as was this Appellant, which caused these matters sadly to unfold. Furthermore, there were matters quite personal to Ms Davies concerning her mental health which meant that issues concerning general deterrence were not of such significance in sentencing her. She was re-sentenced to a period of probation.
Resentence
In my view, the advocating for a lengthy term of imprisonment for this Appellant, albeit one suspended or upon which she is admitted to immediate court-ordered parole, detracts from the argument that she would have a well-founded sense of grievance because of disparity between her sentence and that of Ms Davies.
Ms Yuile, the orders that I intend to impose upon you would include a further period of probation of 18 months from today. Now, you know what is involved in probation. You have been on probation before. It would be subject to all of those conditions and also, that you undertake any psychological assessment and interventions which might be required of you. Would you consent to probation in those terms for a period of 18 months?
APPELLANT: Yes.
The formal orders are: I set aside each of the sentences imposed by the Magistrates Court at Ipswich on 12 October 2021. In lieu thereof, on charge 1, you are sentenced to 12 months imprisonment. On charge 2, you are sentenced to two and a-half years imprisonment. Each of those terms of imprisonment are to be served concurrently. I order that each be suspended immediately for an operational period of three years. On charge 3, I release you under the supervision of a Corrective Services Officer at Logan for a period of 18 months. You must comply with all the requirements of the probation order. You must report to an authorised Corrective Services Officer at Logan by 4 pm on Friday, the 5th of November 2021. That probation order is also subject to the requirement that you undertake such psychological assessments and interventions as may be directed.
In respect of the Probation Order, a conviction is recorded.
I expressly state for the purpose of section 159A of the Penalties and Sentences Act that I have taken into account two periods of pre-sentence custody, being a period of 40 days and a period of 21 days, in coming to the conclusions as to the orders that I have made. But I expressly refrain from declaring those periods of time.
There is no order as to costs.
In respect of the suspended sentences, if you commit any offence punishable by a term of imprisonment during that three year period which is the operational period, you will be brought back to the court to be dealt with for the suspended portions of those sentences. That is the whole two and a-half years. You should be aware that if you find yourself in that situation, the court must order that you serve the whole of those terms of imprisonment unless the court considers it unjust that you do so. If you breach your probation order for the wilful damage charge, you can be brought back to the court and re-sentenced for that offence. The probation order is able to be revoked or varied upon the application of the probation services, an authorised Corrective Services Officer or upon your application.