Crocos v Queensland Police Service [2024] QDC 159

DISTRICT COURT OF QUEENSLAND CITATION: Crocos v Queensland Police Service [2024] QDC 159 PARTIES: DAVID PETER CROCOS (Appellant) V QUEENSLAND POLICE SERVICE (Respondent) FILE NO/S: 61/24 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 4 October 2024 DELIVERED AT: Brisbane HEARING DATE: 4 September 2024 JUDGE: Heaton KC DCJ ORDER: Leave to adduce the new evidence granted. Appeal dismissed. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the Appellant was sentenced in the Magistrates Court to 2 years imprisonment with parole release after he had served 7 months – whether the sentence imposed was manifestly excessive – whether the magistrate did not have due regard to mitigating circumstances – whether the learned sentencing magistrate erred by failing to give any or sufficient consideration to section 9(3) of the Penalties and Sentences Act 1992 (Qld) – whether the learned sentencing magistrate erred by not giving due weight to the applicant’s therapeutic treatment of his Autism Spectrum Disorder– whether the learned sentencing magistrate erred by refusing the offer of restitution, and not placing any weight on the offer of compensation. COUNSEL: M Longhurst for the Appellant. M Hancock for the Respondent. SOLICITORS: Osbourne Butler Lawyers for the Appellant. -- 1 of 8 -- 2 Commissioner of the Queensland Police Service for the Respondent. Introduction [1] The appellant was sentenced to two years imprisonment with release on parole after he had served seven months when he appeared in the Magistrates Court in Cairns and pleaded guilty to 11 charges, including Dangerous Operation of a motor vehicle and for which he was sentenced to a total of two years imprisonment with release on parole after seven months. The appellant says the sentence is too high and a result, firstly of a factual error by the learned sentencing magistrate in her consideration of the extent to which the appellant had engaged in therapeutic treatment for Autism Spectrum Disorder (ASD) prior to his sentence and secondly, that she failed to have proper regard to the appellant’s offer of compensation. Circumstances of offending [2] The appellant’s offending was particularly concerning. First, on 24 June 2023, whilst unlicensed and drunk, the appellant drove dangerously and collided into the back of another vehicle containing people who was strangers to him. The appellant continued to drive dangerously and collided further times with the other vehicle. He was arrested and remanded in custody until he was released on bail on 12 February 2024. [3] Whilst on bail, the appellant seriously offended again. On 12 March 2024, in contravention of a domestic violence order, the appellant made numerous calls to his ex-partner. Later that same night, he again drove dangerously, again whilst drunk, and this time he targeted a friend of his former partner. He collided with the car being driven by that friend and caused him bodily harm. When arrested, he was found in possession of cannabis, and he refused to cooperate or provide a specimen of breath contrary to a police direction, and police were forced to physically remove the breath test equipment from his mouth. [4] He continued to obstruct police upon arrival at the watchhouse, and assaulted the two police officers who were attempting to escort him to the cells. Once in the cell, the appellant damaged them by the use of his own faeces to write on the walls. -- 2 of 8 -- 3 Did the magistrate give sufficient weight to treatment for ASD? [5] The appellant contends in this appeal that the sentencing magistrate failed to recognise that the appellant had engaged with treatment concerning his ASD and that his engagement was for a significant period of time and continued for months after the offending period. The fact of his having ASD was a feature of the report of Psychologist, Leah Rawlings, which was tendered on the appellant’s behalf at the sentencing hearing. So too was the fact that he had been receiving treatment from the Cairns Psychologists from time to time. [6] If the sentencing magistrate misunderstood the extent of his treatment concerning his ASD, it was understandable given the material tendered, and in any event, it was, in my view, of no moment in the exercise of the sentencing discretion. In her report, Ms Rawlings stated; “Whilst David was diagnosed with ASD in 2008, he’s had little to no therapeutic treatment for it. This treatment is imperative in building a strong self-identity, thereby eliminating or significantly reducing the need to socially mask in an effort to get his needs met (overcompensation for emotional inhibition; defensive avoidance; self-protection; autistic burnout; etc). David is accessing this treatment now.” [7] Further, Ms Rawlings outlined that the appellant was a patient under her care, having commenced treatment on 15 March 2023 following a referral from his general practitioner. He attended her clinic regularly until late June 2023, at which time he engaged with Alcohol Tobacco and Other Drugs Services (ATODS) for alcohol detoxification. Ms Rawlings then states that he resumed treatment at her office in December 2023 and again in February 2024. In March 2024, he engaged with Ramsay Clinic as an inpatient for their Substance Misuse and Addiction Program. That was, in the opinion of Ms Rawlings, “not handled well by staff”. Prior to his incarceration, the appellant tried again to engage with Ramsay Clinic although nothing is said of the success or otherwise of the second engagement. [8] Since his release from jail, the applicant again attempted to engage with Ramsay Clinic but they refused to take him as he was on parole. He then sought the services of St Vincent de Paul and became an inpatient in their Alcohol and Other Drugs Residential Recovery Service. He continued to attend Narcotics Anonymous ‘up to’ -- 3 of 8 -- 4 five times per week and continued to engage the services of Ms Rawlings on a weekly basis. [9] In addition to the statement set out in [6] above, Ms Rawlings explained that in her opinion “David’s offending is directly linked to his alcohol consumption. This unhealthy coping mechanism is being replaced with healthy alternatives. David is now abstinent. He is an inpatient at St Vincent de Paul’s ADO Residential Recovery Service. He attends NA meetings daily when possible. He remains under the guidance of his GP and is engaged in weekly psychological treatment at this office.” [10] Ms Rawlings expressed the opinion that the applicant is committed to alcohol abstinence, and he has been attempting to do so for the last 12 to 18 months. She then concluded by expressing grave concerns for his phycological wellbeing and physical safety should he be incarcerated again. [11] In her sentencing remarks, the magistrate specifically referred to the passages within the report of Ms Rawlings which outlined the efforts the appellant had undertaken to address his alcohol addiction and accepted the opinion of Ms Rawlings that his offending was directly linked to alcohol intoxication. She also accepted that he suffered from ASD and took that into account in reducing the time that he would otherwise have been required to spend in custody. [12] It is unsurprising, given the contents of the report tendered on his behalf, that the sentencing magistrate’s focus when sentencing the appellant was to regard his ASD as a factor which would make incarceration more burdensome for the appellant than for others without that disorder, and she expressly stated that she reduced the penalty to give some credit for that feature. Otherwise, the focus of the report of Ms Rawlings was on his drug and alcohol treatment engagement and not on his treatment for ASD. His treatment for alcohol addiction was undoubtedly a significant factor relevant to the exercise of the sentencing discretion. The evidence before the magistrate drew a link between alcohol intoxication and the offending. She then went on to refer to the evidence tendered which spoke of his treatment with ATODS and the St Vincent de Paul Society and expressly stated that she took into account the matters reflected in all of that material. -- 4 of 8 -- 5 [13] The appellant submits that the his engagement with rehabilitation was a crucial factor in the consideration as to whether a sentencing involving actual custody was just in all of the circumstances. The material tendered on his behalf outlined, in some detail, his efforts to address his alcohol addiction. [14] I am unpersuaded that the sentencing magistrate has erred in a material way. The predominant feature of his rehabilitative efforts was in relation to his alcohol addiction as, on the evidence available to her, the offending was directly linked to alcohol intoxication. Whilst voluntary intoxication is not a mitigating factor, it remained relevant that he had undertaken treatment to unshackle himself from his alcohol addiction. Given the link between alcohol and his offending, if he is able to maintain his abstinence, then the risk of further offending would be reduced. His rehabilitation is therefore relevant to the sentencing discretion in that way. It is evident that the sentencing magistrate took those rehabilitative efforts into account in the overall exercise of her sentencing discretion. In addition, she gave the appellant further consideration for his diagnosis of ASD, and the evident impact that would have on him as a result of being incarcerated. She accepted that he was now receiving treatment for it even though, on the material provided to her, she did not understand where he was receiving that treatment except perhaps through Ms Rawlings (which the new evidence suggests was correct). [15] The appellant seeks to adduce new evidence which provides further detail of the treatment undertaken by the appellant and clarifies what is unclear in the original report of Ms Rawlings. The new evidence sought to be adduced may tend to illuminate the features of the appellant’s treatment with Ms Rawlings, but it does not evidence an error in the exercise of the sentencing discretion. To the extent that his treatment for anything to do with his ASD was relevant to the exercise of the sentencing discretion, it was sufficiently taken into account by the sentencing magistrate. In sentencing the appellant, the magistrate accepted that he was “accessing that treatment now”, although she was understandably unsure as to where he was receiving the treatment. The new evidence identifies with greater clarity the treatment he was receiving from Ms Rawlings to educate the appellant about his ASD and how to manage his day-to-day functioning, but it does not advance the case so as to give rise to any error or miscarriage of justice as a result of the magistrate acting on the material before her. Despite that, to the extent that the new material seeks to -- 5 of 8 -- 6 clarify that which was unclear in the material before the sentencing magistrate, I am satisfied that special grounds exist for the granting of leave to adduce this new evidence. [16] The weight given to the factors relevant to his rehabilitation was a matter of discretion. The circumstances of the offences were concerning. Not only were they serious offences, but the second tranche of offences were committed whilst on bail for the first tranche. Despite his limited criminal history, his psychological difficulties and his efforts at addressing his alcohol addiction, it was well within the sound exercise of the sentencing discretion to impose a period of actual incarceration, moderated as it was, to give credit for his plea of guilty, and the other matters in mitigation, including his ASD and its impact on his experience in jail. Did the magistrate fail to give sufficient weight to the offer of compensation? [17] Secondly, the appellant contends that the sentencing magistrate erred in that she failed to give sufficient, or any weight to the offer of compensation made by the appellant on the date of the sentence. The offer for compensation arose as the duty lawyer submitted that the appellant would be willing to pay compensation in the range of $1000 to $1500 to the complainant if the magistrate were to order it, although there was no evidence which might quantify the actual damage caused or the loss experienced by the complainant. [18] Whilst the appellant concedes that an order of compensation could not “…overwhelm the sentencing discretion…”1 he submits that the offer was nonetheless an important consideration in relation to the appellant’s remorse.2 [19] Given the absence of evidence which might give meaning to the amount of compensation offered, the magistrate found it to be “superficial” and “vague”. The magistrate expressed concerns as to the quantum offered, the mechanism by which it was to be paid, and the means by which the magistrate could reasonably determine the sufficiency of, and therefore the appropriate weight to be given to, the offer of compensation. She was told that the appellant was in a position to pay the amount 1 Appellant submissions at [6]. 2 R v Cuff ex parte Attorney General [2001] QCA 351. -- 6 of 8 -- 7 offered immediately, although he had not put any compensation money into trust in anticipation of the sentencing. [20] There is no doubt that an offer of compensation may be a relevant factor in mitigation of penalty. Its relevance stems from the degree to which the offer, or payment, of compensation may go to evidence genuine remorse, an acknowledgement of wrongdoing and a genuine desire to make amends for it. It may also go to support the conclusion of steps towards rehabilitation and demonstrate that the community will be protected by the steps already undertaken by an offender to address the criminal conduct. [21] The relevance of the offer in this case is difficult to determine. The submission was made on the basis of his wishing to compensate the complainant in the offence of Assault Occasioning Bodily Harm. That harm was caused when he drove dangerously and collided with his car causing significant (although unquantified) damage. That offending was in addition to the significant damage he caused on the earlier occasion that he drove dangerously and collided with another car. There was no offer, it seems, to make good any of that loss. Consequently, the offer of compensation is somewhat nebulous in the circumstances of this case and the magistrate was right to regard it as of limited weight in the exercise of the sentencing discretion. It was certainly not a feature which would, either alone, nor in combination, warrant the significant reduction in the penalty imposed which is contended for by this appeal. In my view, the magistrate did not err in her treatment of this factor when sentencing the appellant. Conclusion [22] No challenge is made to a head sentence of two years imprisonment attaching to the second offence of Dangerous Operation of a motor vehicle whilst adversely affected, with concurrent shorter sentences for the other offences. That sentence is consistent with the submissions made by the legal representative for the appellant at the sentence hearing. The contention on this appeal seeks to establish that the sentence was excessive as a consequence of the sentencing magistrate acting on an erroneous factual matter and failing to give proper weight to the offer of compensation as a matter in mitigation. It is now submitted that had the proper factual basis been understood, and proper weight been given to the offer of compensation, the -- 7 of 8 -- 8 appropriate sentence would not have involved a period of actual custody. That contention cannot be accepted. [23] This appellant’s offending was serious. His committed his second tranche of offending whilst on bail for the first, and after spending a period of time in custody. The sentencing magistrate was right to give prominence to the seriousness of the offending and the need for deterrence and protection of the community. The penalty imposed was appropriately moderated to reflect the matters properly in mitigation. [24] In my view, the sentence of two years imprisonment with parole release after serving seven months was an appropriately stern sentencing response to the particular offending involved. [25] In my review of the whole of the evidence now before me in this appeal, I am unable to conclude that the sentence imposed in the Magistrates Court on 15 May 2024 by the learned magistrate is the result of some legal, factual or discretionary error. For the reasons articulated above, the offending was sufficiently serious as to justify a sentence which involved some period of actual custody. Despite the matters personal to the appellant and in mitigation of penalty, I am unable to conclude that requiring the appellant to serve seven months in actual custody was outside the limits of the sound exercise of the sentencing discretion. No errors are demonstrated, and the sentence is not manifestly excessive. Orders [26] Leave to adduce the new evidence is granted. The appeal is dismissed. -- 8 of 8 --