Caen v Commissioner of Police [2024] QDC 238

[2024] QDC 238 DISTRICT COURT OF QUEENSLAND KENT KC DCJ Indictment No 3212 of 2024 LUCAS MARC CAEN Appellant v COMMISSIONER OF POLICE Respondent BRISBANE THURSDAY, 28 NOVEMBER 2024 JUDGMENT HIS HONOUR: [1] This is an appeal pursuant to section 222 of the Justices Act 1886 by the appellant against the sentence imposed on him in the Magistrates Court at Redcliffe on the 5th of November 2024. The jurisdiction arising pursuant to section 222, relevantly, is comprised in section 222, subsection (2)(c), which provides that if a defendant pleads guilty, they may only appeal on the sole ground that the punishment was excessive. The broad circumstances were that the appellant had pleaded guilty to two counts of contravening a Domestic Violence Order, aggravated, and one of public nuisance. He was also dealt with for another couple of offences, which I do not think are the subject of the appeal because of the penalty imposed. [2] Dealing with them in the same order as expressed in the respondent’s outline, the penalties imposed for the two contraventions of the Domestic Violence Order were four -- 1 of 6 -- 2 months’ imprisonment and six months’ imprisonment respectively, and there was an offence of committing a public nuisance where four months’ imprisonment was imposed. There was 19 days’ pre-sentence custody declared – sorry, it might have been 20 – and the parole release date was fixed at the 16th of December 2024, mathematically, after a third of the head sentence of six months’ imprisonment. [3] The appellant’s arguments, in my conclusion, come down to the proposition that, in all the circumstances of Mr Caen, the appropriate disposition was for him to be immediately released, presumptively, on probation, and that further immediate imprisonment was not appropriate in the sense that such a sentence was manifestly excessive, that is, outside the range of permissible sentences for the offender and the offence. [4] That, with respect, is necessarily the argument given the terms of section 222 that I have described and, indeed, the way in which the provision has been recently analysed by the Court of Appeal in Chakka v Queensland Police Service [2024] QCA 213, which might be oversimplified as the proposition, that not only should error in the exercise of the discretion of the kind recognised in House v The King be established, but the error must result in a sentence which is excessive, which arises with respect to the common law principles that have arisen in determination of appeals against sentence but also the language, in particular, of section 222. In order to understand the issues, it is necessary to understand something of the facts. [5] The offence of an aggravated breach of a domestic violence order on the 5th of September involved a number of threatening and insulting texts including threats to kill, I think, sent to the aggrieved over a period of time. The appellant and the aggrieved share a child who is now, I think I am told, 20 months old, and conflict over the contact arrangements may be one of the factors generating conflict between them and, respectfully, poor behaviour by Mr Caen. [6] This was followed on the 26th of September by the public nuisance offence. Mr Caen had attended an Australia Post outlet and become involved in some kind of dispute with a staff member, which resulted in arguing and threatening behaviour, to the extent that an off- duty police officer intervened. Finally, on the 17th of October, there was a planned meeting with the aggrieved for handover of the child for contact. Mr Caen became involved in a fight with a male, who was a named person on the Domestic Violence Order, and that resulted in -- 2 of 6 -- 3 him being remanded in custody until he was sentenced about 19 days later. [7] In terms of the history of this matter, it started its life, at least as it has impacted on my life, as an application for bail pending appeal. That came on earlier this week, but the parties were not ready to proceed. I indicated at that stage that the most utilitarian approach might be simply to hear the appeal and the parties agreed with that procedure, and here we are today. I have treated the outlines which were filed in respect of the bail application as being the outlines for the appeal, with the consent of the parties. [8] The offending by Mr Caen falls, unfortunately, against the background of his criminal history. In May of 2019 he was imprisoned for two and a-half years for armed robbery and trafficking in dangerous drugs but given immediate parole release. He was also fined for a contravention of a domestic violence order. By August 2020, he was dealt with for an attempt to pervert justice and sentenced to 12 months’ imprisonment cumulatively. In September of 2020, he also received a further total of three months’ imprisonment for drug offending. The end result of all that was that his parole eligibility date became the 2nd of September 2020, so he did serve some time in custody but, also, was released on parole. That offending dealt with in 2020 had, apparently, been committed in 2019 in breach of his parole, which is why he eventually had to have a parole eligibility date. These offences occur something like close to five years after the previous offending, so he was both a young man and one who had a serious criminal history, but the criminal history had a large gap, and that was the context when the matter came on before the Magistrate. [9] The prosecution did, in my assessment of the transcript at least, submit for a prison sentence, including a possible parole release date. What was said by Mr Ransom on that occasion on behalf of the appellant were a number of things. He, apparently, had long- standing mental health diagnoses which were part of the overall picture. He was remorseful, as is set out in his apology. There were 19 days pre-sentence custody. [10] The gap in the criminal history that I have mentioned was emphasised. He, apparently, has a Year 11 education but has a good work history in the roofing industry and, indeed, by the time of these events was running his own business with a number of employees, some of whom had to be laid off after he was remanded in custody. As I said, the daughter was 20 months old, and he was contributing to her upkeep. He had demonstrated -- 3 of 6 -- 4 some insight. [11] Referring to those factors, and in particular the mental health diagnoses, what was advanced on his behalf before the Magistrate was that having served 19 days in custody, the appropriate disposition was a probation order, possibly a lengthy probation order, the idea being that a lengthy period of supervision in the community would assist in appropriate management, particularly of his mental health problems with the idea of avoiding any reoffending and being the best outcome for him and the community. [12] The Magistrate was not receptive to these arguments, and among the arguments agitated on the appeal is, essentially, the commentary that his Honour was somewhat peremptory in rejecting those propositions and expressed himself in forthright language in a way that may give the impression that there was some element of pre-judgment of the outcome. Amongst other things, the defence argues, or the appellant argues, that insufficient weight was placed on the defence material, which indicated that he was the main provider, there were financial impacts on others, his mental health issues were significant, and he had an excellent work history. [13] In that sense, it is said that the Magistrate inappropriately fettered his discretion by, as the transcript tends to indicate, really considering nothing other than further immediate custody. All those arguments are appropriately advanced, and without being critical of the Magistrate, it is often recommended that judicial officers attempt to express themselves in temperate rather than intemperate terms. However, Mr Ransom accepts, at the end of the day, appropriately, that given the template that I have outlined for the determination of these kinds of appeals, both error and manifest excess have to be demonstrated. [14] As the parties both recognise, the question is not whether I, if I was sentencing Mr Caen, would have imposed a different penalty. The question is whether the penalty imposed by the Magistrate was outside the range which is permissible for these offences committed by this offender with this criminal history. Responding to that essential proposition, Ms Thomas for the respondent outlines that, in essence, when looked at in context, the penalty was not excessive. The relevant features of the provisions of section 9 of the Penalties and Sentences Act, particularly section 9(3) dealing with offences of violence, when given primary regard, as they must have been, produce the result that the Magistrate’s conclusion was well within -- 4 of 6 -- 5 range for this offender and these offences. [15] It is pointed out correctly that the plea of guilty was appropriately recognised by the parole release date at one-third of the head sentence, as is relatively conventional. The Magistrate also pointed out correctly that there were three separate occasions of offending, and the situation might have been different if there had been one, but three separate occasions over something more than a month produced the result that, really, a period of imprisonment was the appropriate sentence. [16] What is said by the respondent is that these conclusions are simply not shown to be wrong, that is, that the penalty is not manifestly excessive, and for that reason the appeal should fail. Whilst there is much to commend in the outcome advocated by the appellant, namely that a probation order would see him supervised for a longer period in the community with the hopeful outcome that rehabilitation might be more likely, and in the meantime he could continue earning money to everyone’s benefit, that does not of itself mean that the penalty imposed by the Magistrate was manifestly excessive. [17] In my conclusion, at the end of the day, the penalty is not shown to be manifestly excessive, and for that reason, pursuant to the statutory template in section 222 as interpreted in a number of cases, but including Chakka, the appeal must fail. I think the only order necessary is that the appeal is dismissed. MR RANSOM: Thank you, your Honour. HIS HONOUR: Is there anything else? MS THOMAS: No. Thank you, your Honour. MR RANSOM: Nothing, your Honour [indistinct] your Honour. HIS HONOUR: Okay. MR RANSOM: Thank you. -- 5 of 6 -- 6 HIS HONOUR: Thanks for your assistance. -- 6 of 6 --