Farrell v Commissioner of Police [2023] QDC 243

DISTRICT COURT OF QUEENSLAND CITATION: Farrell v Commissioner of Police [2023] QDC 243 PARTIES: JAKE ADAM FARRELL (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: 62/23 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Maroochydore Magistrates Court DELIVERED ON: 4 August 2023 (delivered ex tempore) DELIVERED AT: Maroochydore District Court HEARING DATE: 4 August 2023 JUDGES: Dearden DCJ ORDER: (1) The time for filing a notice of appeal is extended to 18 April 2023. (2) Appeal dismissed. CATCHWORDS: CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – where the appellant at the time of his sentences was serving an effective five year sentence for armed robbery – where the appellant plead guilty to a range of offences - where the appellant was sentenced to 18 months imprisonment to be served cumulatively on the existing sentence – where a parole eligibility date was set at one third of the sentence – where the appellant appeals on the ground that the sentence was manifestly excessive COUNSEL: Appellant in person J Lee for the respondent SOLICITORS: Appellant in person Office of the Director of Public Prosecutions for the respondent. -- 1 of 6 -- 2 Introduction [1] The appellant Jake Adam Farrell, pleaded guilty at the Maroochydore Magistrates Court on 7 February 2023 in respect of the following charges:- (1) Receiving tainted property (one car key and one motor vehicle) between 12-15 November 2022. (2) Unlawful use of a motor vehicle between 15-19 November 2022 and used the motor vehicle to facilitate the commission of an indictable offence. (3) Stealing (petrol on 15 November 2022) with two previous convictions for stealing on 10 December 2020 and 30 October 2017. (4) Stealing (petrol on 16 November 2022) with two previous convictions of stealing on 10 December 2020 and 30 October 2017. (5) Stealing (petrol on 17 November 2022) with two previous convictions of stealing on 10 December 2020 and 30 October 2017. (6) Possession of a dangerous drug (methylamphetamine) on 19 November 2022. (7) Possession of a dangerous drug (buprenorphine) on 19 November 2022. (8) Receiving tainted property (Queensland registration numberplates) between 13 October and 19 November 2022). (9) Unlawfully take goods away (lollies and two drinks from Woolworths, Maroochydore Plaza) on 12 November 2022. (10) Stealing (poker machine cash voucher) on 13 November 2022. [2] Utilising the same numbering, the learned magistrate imposed the following penalties: (1) Convicted and sentenced one year imprisonment. (2) Convicted and sentenced 18 months imprisonment, cumulative on existing sentences. (3) Convicted and sentenced six months imprisonment. (4) Convicted and sentenced six months imprisonment. (5) Convicted and sentenced six months imprisonment. (6) Convicted and sentenced one day imprisonment. (7) Convicted and sentenced one day imprisonment. -- 2 of 6 -- 3 (8) Convicted and sentenced six months imprisonment. (9) Convicted and not further punished. (10) Convicted and sentenced to six months imprisonment. [3] As identified above, all the sentences imposed were concurrent with each other, but the sentence in respect of the unlawful use of a motor vehicle charge (item 2) was a sentence of 18 months imprisonment imposed cumulatively on existing sentences. [4] At the sentence hearing on 7 February 2023, the learned magistrate declared a period of 81 days custody from 19 November 2022 to 7 February 2023 as time served under the sentence, and fixed a parole eligibility date of 18 November 2024.1 [5] The sentence was reopened on 4 April 2023, and the declaration of 81 days as time served was set aside, with the parole eligibility date confirmed as 18 November 2024.2 Appeal [6] The applicant filed a notice of appeal on 18 April 2023 on the following ground: - The setting of the eligibility date at 18.11.24 requires me to serve 50 per cent of my “period of imprisonment” before being eligible for parole. This is manifestly excessive. [7] The applicant also filed a notice of application for extension of time for filing a notice of appeal on 18 April 2023, given the original sentence date was 7 February 2023, the matter was re-opened on 7 March 2023 and adjourned for further hearing to 4 April 2023, on which date the declaration of time served was set aside and a parole eligibility date of 18 November 2024 was confirmed. [8] The appeal has been filed outside the period of one month from the original sentence,3 but within one month of the orders made on resentencing. Although it is not entirely clear to me that a notice of application for extension of time is required, the respondent does not oppose it and it is appropriate in the circumstances, particularly given the way in which this matter was re-opened, to grant the application for an 1 Exhibit 3 - Affidavit of Lily Breedon affirmed 27 July 2023, exhibit LGB-3. 2 Exhibit 3 - Affidavit of Lily Breedon affirmed 27 July 2023, exhibit LGB-05. 3 Justices Act 1886 (Qld) (JA) s.222(1). -- 3 of 6 -- 4 extension of time. Accordingly, pursuant to Justices Act 1886 (Qld) (‘JA’) s.224(1), I extend the time for filing a notice of appeal in this case to 18 April 2023. The Law [9] I repeat and adopt my exposition of the law in respect of appeals under the Justices Act 1866 (Qld) as set out in Jenkins v Commissioner of Police [2021] QDC 289, [7]- [9]. Background [10] At the time of his sentence before the learned magistrate on 7 February 2023, the appellant was serving a sentence (effectively) of five years imprisonment for an armed robbery in company, imposed at the Maroochydore District Court on 27 September 2021 (concurrent sentences of three years imprisonment for two assault occasioning bodily harm counts and two years imprisonment for threatening violence were imposed concurrently), as well as the balance of a suspended sentence (three years less 406 days) imposed at the Maroochydore District Court on 23 January 2019 for armed robbery, in company, using personal violence, which had an operational period of four years. [11] The District Court sentence imposed on 27 September 2021 set a parole eligibility date of 5 May 2022, but the appellant was not actually released until 31 October 2022, and the offences which are the subject of this appeal were committed within three weeks of the appellant’s release on parole.4 [12] As at 7 February 2023 the appellant’s full-time release date in respect of that District Court sentence from 27 September 2021 was calculated as 27 July 2027.5 [13] The 18 months sentence for the unlawful use of a motor vehicle imposed by the learned magistrate was ordered to be served cumulatively upon the unexpired terms of imprisonment in the Maroochydore Magistrates Court.6 4 Exhibit 2 – Outline of submissions on behalf of the respondent, [7]. 5 Exhibit 2 – Outline of submissions on behalf of the respondent, [9]; Sentence Exhibit 4 – Sentence calculation. 6 Exhibit 3 – Affidavit of Lily Breedon affirmed 27 July 2023, exhibit LGB-03; Exhibit 2 – Outline of submissions on behalf of the respondent, [9]. -- 4 of 6 -- 5 [14] The effect of the 18 months cumulative sentence (I note in passing that the cumulative nature of that sentence, and the length of that sentence, is not the subject of this appeal), is that the appellant’s full-time discharge was pushed out to 27 January 2029, which was just under six years from the sentence date in the Maroochydore Magistrate Court, being 7 February 2023.7 [15] The learned magistrate, on 7 February 2023, set a parole eligibility date two years from when the appellant came back into custody (after committing the offences on parole) on 19 November 2022, being the calculation of an eligibility date of 18 November 2024. The learned magistrate originally declared the 81 days from 19 November 2022 through to 7 February 2023 as time served, but that declaration made on 7 February 2023 was set aside at the Penalties and Sentences Act s.188 re-opening hearing on 4 April 2023. With respect, that also seems to me to be the correct and appropriate approach when the matter was re-opened. Submissions [16] The appellant’s reference to “50 per cent of his period of imprisonment” appears to be a reference to 50 per cent of the total term imposed at the Maroochydore Magistrates Court on 27 September 2021. With respect, that approach fails to take account of the effect of the 18-month cumulative sentence imposed on 7 February 2023. That sentence, reduced from an indicative two-year head sentence, to ensure that the overall outcome was not crushing, was an appropriate and orthodox sentence in the context of this appellant’s criminal history, having repeatedly committed further offences while on parole and in this case, most recently, within three weeks of release on parole, in respect of that 27 September 2021 Maroochydore District Court sentence. [17] The learned magistrate then, entirely appropriately in my view, set a parole eligibility date at one-third of the effective six-year head sentence applicable as at 7 February 2023, taking into account the unexpired portion of the appellant’s then existing District Court sentence, plus of course the 18 months ordered to be served cumulatively. I should note that ordering the 18 months cumulative in that context, 7 Exhibit 3 – Affidavit of Lily Breedon affirmed 27 July 2023, exhibit LGB-03, p.1-2. -- 5 of 6 -- 6 given the way in which the further offending had occurred within such a short period of being placed on parole, is again unexceptional. Again, such an approach by the learned magistrate, setting a parole eligibility date at one-third of the remaining six- year effective sentence to be served, was orthodox, appropriately generous, recognised the plea of guilty and was consistent with the decisions in R v Denning [2022] QCA 72, [27]-[28] and R v Reynolds [2015] QCA 111. [18] There is in my view nothing about the sentence (and the setting of the parole eligibility date) that is so unreasonably or plainly unjust that there must have been a failure to properly exercise the discretion at first instance (Hili v R [2010] 242 CLR 520, [59]), and it does not represent an error as identified in House v The King [1936] 55 CLR 499, 503. This decision to set a parole eligibility date at one-third (approximately) of the effective balance sentence to be served by the appellant was a discretion exercised judicially, not arbitrarily or capriciously; there was an appropriate and entirely justifiable logic in setting that parole eligibility date at one- third of the effective remaining term; and in the context of the appellant’s criminal history, this was in my view an appropriate and orthodox sentence and eligibility date. [19] Although I acknowledge the appellant’s sense of grievance, I am not persuaded that there has been any identifiable error on the part of the learned magistrate. It follows that I accept the respondent’s submission in that respect. What also follows is that the appeal should be dismissed. Orders [20] I make the following orders: (1) The time for filing a notice of appeal is extended to 18 April 2023. (2) Appeal dismissed. -- 6 of 6 --