Atem v Commissioner of Police [2024] QDC 117

DISTRICT COURT OF QUEENSLAND CITATION: Atem v Commissioner of Police [2024] QDC 117 PARTIES: ATEM GAK ATEM (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: 3777/23 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Pine Rivers Magistrates Court DELIVERED ON: 31 July 2024 DELIVERED AT: Brisbane HEARING DATE: 15 July 2024 JUDGES: Dearden DCJ ORDER: (1) Appeal granted. (2) Set aside all sentences imposed at the Pine Rivers Magistrates Court on 24 November 2023. (3) In respect of each of the offences of sexual assault and stalking, substitute sentences of 3 months imprisonment, concurrent. (4) On all other charges, order that the appellant be convicted and not further punished. (5) Declare the period of 316 days between 13 January 2023 and 24 November 2023 as time served in respect of each of the orders of imprisonment. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – where the appellant pleaded guilty to one count of unlawful stalking, one count of sexual assault and other summary offences – where the appellant was sentenced to 18 months’ imprisonment suspended after serving 316 days for an operational period of 5 years for the unlawful stalking charge and 9 months’ imprisonment concurrently for the sexual assault charge – whether the sentence was manifestly excessive in all of the circumstances. -- 1 of 13 -- 2 LEGISLATION: Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) ss.5 and 9, sch 1 Summary of Offences Act 2005 (Qld) s.15 Penalties and Sentences Act 1992 (Qld) s.144 CASES: Jenkins v Commissioner of Police [2021] QDC 289 House v The King [1936] 55 CLR 499 R v Pham (2015) 256 CLR 550 R v Morse [1979] 23 SASR 98 R v SDF [2018] QCA 136 R v Sherwin [1998] QCA 463 DMS v Commissioner of Police [2020] QDC 345 R v GAW [2015] QCA 166 R v Oliver [2018] QCA 348 R v Cox [2016] QCA 251 R v Bunton [2019] QCA 214 Hili v The Queen (2010) 242 CLR 520 R v Nagy [2004] 1 Qd R 63 COUNSEL: A Beard (sol) for the appellant J Coghlan (sol) for the respondent SOLICITORS: Legal Aid Queensland for the appellant Office of the Director of Public Prosecutions for the respondent Introduction [1] The appellant, Atem Gak Atem, pleaded guilty in the Pine Rivers Magistrates Court on 27 November 2023 to the following charges: (1) Sexual assault (22 November 2022); (2) Unlawful stalking (22 November 2022); (3) Breach of bail condition (9 December 2022); (4) Breach of bail condition (9 December 2022); (5) Breach of bail condition (16 December 2022-13 January 2023); (6) Breach of bail condition (22 December 2022); (7) Breach of bail condition (13 January 2023); (8) Possession of implements that was being or about to be used in relation to particular offences (Summary of Offences Act 2005 (Qld)) (13 January 2023). -- 2 of 13 -- 3 [2] The appellant was sentenced to 18 months’ imprisonment, suspended after serving 316 days (which was declared) with an operational period of five years for the stalking charge. In respect of the sexual assault charge, the defendant was sentenced to nine months’ imprisonment. For the possession of the implements charge, the defendant was sentenced to three months’ imprisonment. For each of the breach of bail condition charges, the appellant was sentenced to one month imprisonment. [3] All sentences were declared to be concurrent and subject to the declaration of 316 days of pre-sentence custody from 13 January 2023 until 24 November 2023. The items the subject of the implements charge (a knife and a pick implement used to break windows) were forfeited to the Crown.1 Grounds of Appeal [4] The appellant’s notice of appeal filed 19 December 2023 identified a single ground of appeal namely: The sentence imposed by the learned sentencing magistrate was manifestly excessive in all the circumstances. [5] The appellant’s outline of submissions identified a further or alternative ground of appeal namely: “The failure by the learned acting magistrate failed to have regard to the impact that becoming a reportable offender under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) (“CPOR”) renders the sentences imposed excessive.”2 [6] The outline of submissions on behalf of the respondent3 dealt with the original ground of appeal (manifestly excessive sentence) and the ground pursuant to the CPOR, so it is convenient on this appeal to consider both grounds. The law - appeals [7] I repeat and rely upon my exposition of the law in respect of sentence appeals in this court as set out in Jenkins v Commissioner of Police [2021] QDC 289. [8] As House v The King [1936] 55 CLR 499, 505 identified: 1 Exhibit 2 – Affidavit of Bronwyn Rae Mantle affirmed 28 March 2024, Exhibit BRM-5, p.1-4. 2 Exhibit 1, [1]. 3 Exhibit 3. -- 3 of 13 -- 4 “If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the material for doing so”. [9] In R v Pham (2015) 256 CLR 550, 559 it was held: “Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.” [10] In R v Morse [1979] 23 SASR 98, 99 King CJ stated: “To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.” Circumstances of the offending [11] The appellant’s outline conveniently summarises the facts of the offending as follows4: “Unlawful stalking and sexual assault The 16 year old complainant was travelling on the Redcliffe trainline. The appellant was seated behind her. When the train has pulled into the Mango Hill East train station, both the appellant and the complainant have disembarked. At this point, the appellant has engaged the complainant in conversation, exchanged names and shaken hands. The appellant has grabbed the complainant’s hand and ‘twirled’ her, touching her ribs at the same time. He has then walked across the complainant several times, forcing her to change her direction of walking. Whilst at the top of the stairs, the appellant has asked the complainant where she was going, stating that he wanted to have fun and have sex with her. The complainant has said ‘no’ several times. The appellant … has walked down the stairs with the complainant, and whilst at the bottom of the stairs has grabbed the complainant’s buttock (sexual assault). The complainant has moved her body swiftly away. The complainant has tried to move away from the appellant, but the 4 Exhibit 1 – appellant’s outline of submissions [7.4]. -- 4 of 13 -- 5 appellant’s movements in front of her has forced her to [change] directions several times. The complainant has removed herself from the appellant and walked under an underpass, away from the train station. The appellant has run towards the complainant, who has called her father and friend, and sprinted away from the appellant. The appellant returned to the train station, and was located a short time later. He participated in a record of interview, wherein he said that he and the complainant had made eye contact on several occasions, and he thought that she might be interested in him. He further stated that he followed the complainant to apologise, as he may have said the wrong thing, and did not think that he had harassed the complainant at the train station. Breach of a bail condition on 9 December 2022 The appellant was required to be present at his address between the hours of 8pm and 6am. At 10.51pm police attended, and despite knocking on the door several times, and looking through the windows, the appellant could not be located. When spoken to, the appellant said that he was at home, but must have been asleep when police arrived. Breach of a bail condition on 9 December 2022 The appellant was required to report every Monday, Wednesday and Thursday to the officer-in-charge of police at Petrie. On Friday 9 December 2022 he failed to report pursuant to that obligation. The appellant attended the Petrie police station on 14 December 2022. On that date, he said that he had forgotten to report on 9 December 2022, but could otherwise not offer a defence to the charge. Breach of bail between 16 December 2022 and 13 January 2023 Between 16 December 2022 and 13 January 2023 the appellant failed to report to the officer-in-charge of police at Petrie station a total of 11 times. When he was arrested on 13 January 2023, he was unable to offer a defence to the charge. Breach of a bail condition on 22 December 2022 The appellant was required to be present at his address between the hours of 8pm and 6am. On 22 December 2022 police attended his nominated residence, but despite knocking several times the appellant was unable to be located. When he was located, the appellant could not offer a defence to the charge. -- 5 of 13 -- 6 Breach of a bail condition on 13 January 2023 The appellant was located by police at 3am on 13 January [2023] at the rear of Strathpine Shopping Centre. This contravened his requirement that he not be away from his residence between 8pm and 6am. The appellant stated that he was looking for discarded cigarette butts, but could not provide a defence to the charge. Possession of implements that was being or was to be used in relation to particular offences on 13 January 2023 After being located for the offence above [breach of a bail condition on 13 January 2023] the appellant volunteered his backpack for a search. Inside was a 20cm blade in a black leather sheath, which the appellant said he had for his protection. A pick implement, believed by police to be used to break windows was also located.” Submissions on sentence [12] The appellant’s outline helpfully summarises the submissions by prosecution and defence on the sentence before the learned acting magistrate, as follows:5 “7.5 At the commencement of her submissions in respect of penalty, the prosecutor tendered victim impact statements (VIS) from the complainant, and the complainant’s mother. … 7.6 The prosecutor then made the following submissions: 7.6.1 The VIS makes it clear that the victim was in a vulnerable class (being a sufferer of autism); 7.6.2 She was 16 at the time of the commission of the offences; 7.6.3 She had watched the CCTV footage of the incident personally, and it was clear that the complainant was uncomfortable as a result of the ‘manoeuvres’ of the appellant in front of her; 7.6.4 The appellant’s actions constituted a violation of her personal space, as well as a sexual assault; 7.6.5 The appellant repeatedly asked an autistic 16 year old girl for sex; 7.6.6 The complainant did not ask for the conduct or lead the appellant on in ‘any way, shape or form’; 5 Exhibit 1 – appellant’s outline of submissions [7.5]-[7.8]. -- 6 of 13 -- 7 7.6.7 The court could take judicial notice that an autistic person struggles in social situations; 7.6.8 The impact upon the complainant had been dramatic; 7.6.9 Personal and general deterrence were significant features in the exercise of the sentencing discretion; 7.6.10 The community expected safety, and that was a feature in respect of the sentence of ‘this particular defendant’; and 7.6.11 The seriousness of the charges and the time that he has spent in custody, meant that imprisonment was the only appropriate sentence. 7.7. In response, the appellant’s lawyer noted the following: 7.7.1 The matter proceeded as a timely plea of guilty, resolving after some case- conferencing; 7.7.2 The only delay has arisen because more serious, unrelated matters were progressing through the District Court; 7.7.3 The appellant was young, with a limited criminal history; 7.7.4 The appellant’s motivation for following the complainant towards the end of the offending was to apologise; 7.7.5 It wasn’t apparent to the appellant at the time of the commission of the offences that the complainant suffered from autism; 7.7.6 His timely pleas of guilty, coupled with his intention to apologise was evidence of genuine remorse. 7.8 In respect of the appellant’s personal antecedents, the appellant’s lawyer noted that: 7.8.1 He was born in Sudan but moved to Uganda shortly after birth; 7.8.2 His father was in the military, and his lack of time with him meant that there was a distant relationship; 7.8.3 He and his family came to Australia when he was 11 years old, pursuant to a refugee visa; -- 7 of 13 -- 8 7.8.4 He has enjoyed a variety of positions of employment, largely in the hospitality sector; 7.8.5 He had struggled for employment since the pandemic, and, as a consequence, had been homeless for a period of time; 7.8.6 He had utilised the time in custody to obtain some further certificates, being a Responsible Service of Alcohol, Working in Industry and a short drug and alcohol course; and 7.8.7 In all the circumstances, the court should impose a term of imprisonment between three and six months and declare the time spent in custody.” (Citations deleted) Sentencing Remarks [13] The appellant’s outline has also helpfully summarised the learned acting magistrate’s sentencing remarks:6 “7.9 In sentencing the appellant, the [learned acting] magistrate noted the following features of the sentence: 7.9.1 The pleas of guilty; 7.9.2 The period of time spent in custody, being 316 days inclusive of the date of the sentence; 7.9.3 His previous criminal history; 7.9.4 His disadvantaged childhood, prospects of rehabilitation and employment prospects; 7.9.5 The facts of the offences, and noted that they were ‘disgusting … and concerning’, an invasion of the complainant’s privacy, and that it involved grabbing the complainant’s buttock and persistence in seeking sex; 7.9.6 The effect on the complainant and her family has been longstanding; 7.9.7 People, inclusive of young women, were entitled to feel safe when in public, or utilising train services; 7.9.8 The comments made to police about wishing to apologise to the complainant were attempts at minimising the seriousness of the conduct; 7.9.9 The appellant’s behaviour needed to be denounced; 6 Exhibit 1 – appellant’s outline of submissions [7.9]. -- 8 of 13 -- 9 7.9.10 In all the circumstances, a sentence of imprisonment of between three and six months would not reflect the seriousness of the conduct; and 7.9.11 The nature of the offences required risk assessment and management in the community, but due to the uncertainty of release, a lengthy operational period was required on a suspended sentence.” (Citations deleted) Consideration [14] The most significant penalty imposed by the learned acting magistrate was the sentence of 18 months’ imprisonment, suspended after 316 days, with a declaration of 316 days (approximately 10 months) as time served, and subject to an operational period of five years, for the stalking charge. [15] The imposition of that sentence in respect of the stalking charge, in comparison to a sentence of nine months’ imprisonment imposed in relation to the sexual assault charge, is, with respect, utterly inexplicable. The stalking charge effectively overlaps with the particulars of the sexual assault, and might be thought, at the most, to frame that latter charge. However, it is not possible to discern how the stalking charge could be considered to have been so much more serious than the sexual assault, that it justified not only the imposition of a sentence of 18 months, suspended after 316 days’ time served (i.e., double the sentence on the sexual assault charge), but further, be subject to the longest possible operational period of five years.7 [16] It is notable that the learned acting magistrate was not assisted by any authority whatsoever. The appellant has identified a number of decisions in respect of sexual assault which, on their face, clearly indicate that the sentence imposed on the sexual assault charge in this appeal was substantially out of step with penalties imposed for similar or analogous conduct. For example, in R v SDF [2018] QCA 136, a sentence of 12 months’ imprisonment, suspended after four months, for two counts of sexual assault by the appellant on his granddaughter, involving firstly a massage of her lower back, and a rubbing of her vagina, which was skin on skin and by a person with a familial relationship, was found to be manifestly excessive, and a sentence of eight 7 Penalties and Sentences Act 1992 (Qld) s.144(6)(b). -- 9 of 13 -- 10 months’ imprisonment suspended after time served (two months and four days) was substituted. [17] In R v Sherwin [1998] QCA 463, the appellant, who was the father of the complainant’s friend, touched the complainant on his penis and buttocks while on a sleepover with the appellant’s son, and although initially sentenced to three months’ imprisonment followed by two years’ probation, on appeal, was re-sentenced to two years’ probation with a conviction recorded. [18] In DMS v Commissioner of Police [2020] QDC 345, the appellant, a 50 year old female, pleaded guilty to two offences of sexual assault, and was initially sentenced to two years’ probation, with a conviction recorded, but on appeal, the order that a conviction be recorded was deleted and an order was made that no conviction be recorded. The appellant in that case had committed the offence against a complainant who was 15 years and 11 months old, was the daughter of a friend of the appellant, and it involved skin on skin contact under the complainant’s shorts to the top of her pubic hairline on two occasions. The appellant, who had a good work history, required a blue card to maintain her employment and the court held that there had been an error in failing to consider the impact of the appellant becoming a reportable offender as a result of a conviction being recorded. [19] In R v GAW [2015] QCA 166, the appellant was convicted of indecent dealing with his 13 year old stepdaughter. He had lifted her skirt to see the underpants which she had purchased with him earlier that day and he had then grabbed or groped one of her “arse cheeks” on the outside of her underpants for a short time. The Court of Appeal held that a sentence “in the range of six months imprisonment suspended forthwith with a 12 month operational period” would have been appropriate had the appellant been sentenced after his conviction, but taking into account that the appellant had served more than three months’ imprisonment prior to being granted appeal bail, he was, on his successful appeal, re-sentenced to three months’ imprisonment with the court noting that “this was a harsh penalty for such low level offending”.8 [20] In respect of the stalking count, the decisions in R v Oliver [2018] QCA 348 and R v Cox [2016] QCA 251 are both examples of far more serious stalking than the 8 R v GAW [2015] QCA 166, per Margaret McMurdo P and Holmes JA [4]. -- 10 of 13 -- 11 strikingly bare particulars in this appeal. The appellant in Oliver, who was originally sentenced to 18 months’ imprisonment suspended after serving three months, was, on appeal, sentenced to 18 months’ imprisonment wholly suspended with an operational period of three years. The stalking in Oliver occurred over a period of four months and five days, involved repeated threats of personal violence, and various aspects of attempted and actual communication with the complainant. It was clearly a far more serious matter than the matter the subject of this appeal. [21] In Cox, the stalking took place over a period of eight days and involved a complainant who was a cleaner of a unit complex where the appellant was a long-term resident. That matter proceeded to trial, and on conviction, the appellant was sentenced to a fine of $2,000 with a conviction being recorded. That appellant had a relevant criminal history, was much older (aged 49 when the offending occurred) and had not served any pre-sentence custody. Conclusions [22] In my view, the inconsistency between the sentence imposed in respect of the sexual assault and the sentence imposed in respect of the unlawful stalking is inexplicable, inconsistent, disproportionate, clearly unfair and undoubtedly constitutes manifest error because the sentences imposed were “out of the range of sentences that could have been imposed”,9 and, as identified, are impossible to reconcile as between those two charges. [23] With respect, the learned acting magistrate has not only clearly mischaracterised the overall seriousness of the unlawful stalking charge, but has also mischaracterised its relative seriousness in comparison to the sexual assault, which is clearly either more serious than or at most, of a similar seriousness to the stalking charge. [24] The brief review of comparable decisions set out above indicates quite clearly that the sentences imposed by the learned acting magistrate in respect of both the stalking and the sexual assault charges were so far outside the appropriate range as to demonstrate that there was some misapplication of principle. I acknowledge, however, as identified above, that the learned acting magistrate was not assisted with 9 Hili v The Queen (2010) 242 CLR 520, [60]. -- 11 of 13 -- 12 any reference to authority and this may well have contributed to the obvious sentencing error that has occurred. [25] The appellant also argues that the learned acting sentencing magistrate failed to have regard to the impact of the appellant becoming a reportable offender pursuant to the CPOR. Relevantly, CPOR ss.5 and 9, together with Schedule 1, indicate that the recording of a conviction in this case would have the consequence of the appellant becoming a reportable offender. [26] In R v Bunton [2019] QCA 214, [30]-[34], the Court of Appeal held that a failure to consider the impact of the imposition of the onerous conditions of being a reportable offender meant that the sentencing discretion had miscarried. [27] Neither the police prosecutor nor the appellant’s solicitor at the sentence proceedings drew the learned acting magistrate’s attention to the impact of the recording of a conviction. In those circumstances, it is clear that this issue was not considered at all by the learned acting magistrate. Accordingly, that specific error, as well as the demonstrated House v The King error, clearly indicate that the learned acting magistrate’s sentencing discretion has miscarried, the sentences should be set aside, and the appellant re-sentenced. [28] Although the appellant had served 316 days’ imprisonment as at the date of sentence, the sentence imposed on the appellant in a re-sentence by this court on appeal should not simply be crafted to meet the time served but rather should reflect the relative seriousness of the offending in its context. [29] In my view, the serious nature of the sexual assault, and the associated stalking charge, when balanced against the other relevant considerations, including the early plea of guilty, and the appellant’s antecedents, noting the appellant’s minor criminal history, with no sexual offending, still justifies the imposition of a prison sentence. [30] Mr Beard, who appeared for the appellant, indicated that he had lost contact with the appellant, and did not hold current instructions to consent to probation, even if this court considered that was the appropriate penalty on a re-sentence.10 10 Appeal Transcript of Proceedings (15 July 2024) 1-4, ll27-35. -- 12 of 13 -- 13 [31] The sentences imposed on a re-sentence should, in the circumstances, be moderated, and should reflect the inevitable consequences under the CPOR legislation which flow from the recording of a conviction if a prison sentence is imposed. [32] Accordingly, the sentences imposed in respect of the charges of sexual assault, stalking, breaches of bail and possession of implements that was being or about to be used in relation to particular offences, should be set aside, and the appellant re- sentenced. [33] In respect of each of the offences of sexual assault and stalking, the appellant is re- sentenced to 3 months imprisonment on each charge. On each of the offences of breach of bail, and the offence of possession of implements that was being or about to be used in relation to particular offences the appellant is convicted and not further punished. In accordance with the principle in R v Nagy [2004] 1 Qd R 63, it is appropriate to attach the prison sentences to the most serious offences, to reflect the totality of the criminal conduct. Orders (1) Appeal granted. (2) Set aside all sentences imposed at the Pine Rivers Magistrates Court on 24 November 2023. (3) In respect of each of the offences of sexual assault and stalking, substitute sentences of 3 months imprisonment, concurrent. (4) On all other charges, order that the appellant be convicted and not further punished. (5) Declare the period of 316 days between 13 January 2023 and 24 November 2023 as time served in respect of each of the orders of imprisonment. -- 13 of 13 --