English v Queensland Police Service [2021] QDC 217

DISTRICT COURT OF QUEENSLAND CITATION: English v Queensland Police Service [2021] QDC 217 PARTIES: ENGLISH, Brennan Johnathon (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO/S: 5 of 2021 DIVISION: Appellate PROCEEDING: Appeal pursuant to s 222 of the Justices Act 1886 (Qld) ORIGINATING COURT: Mount Isa Magistrates Court DELIVERED ON: 10 September 2021 DELIVERED AT: Mount Isa HEARING DATE: 6 September 2021 JUDGE: Dearden DCJ ORDER: 1. The appeal is allowed. 2. The sentence imposed on 12 August 2021 is varied to the extent that the appellant’s parole release date is fixed at 10 September 2021. 3. In respect of counts 1 and 2, the appellant is sentenced to 40 hours community service. 4. The sentences are otherwise confirmed. 5. The appellant is released on parole pursuant to s 200(1) of the Corrective Services Act 2006 (Qld). 6. The appellant is required to report to a parole officer at Mount Isa by 5:00pm 13 September 2021. If the appellant fails to do so, he will be unlawfully at large. 7. Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), the appellant has been in custody between 12 August 2021 and 20 August 2021, a period of 8 days, which is declared to be imprisonment already served under the sentence. -- 1 of 10 -- 2 8. The Registrar of the District Court of Queensland at Mount Isa is directed to amend the Verdict and Judgment Record to the extent that the order for compensation is referred to the Registrar, State Penalties Enforcement Registry. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – s 222 JUSTICES ACT 1880 – where appellant was convicted of 3 charges being assault occasioning bodily harm, common assault and commit public nuisance, all committed in a public place, while adversely affected by alcohol – where the appellant was convicted of all charges and received a head sentence of 12 months imprisonment – where a parole release date was fixed after 3 months of actual custody – where in respect of the assault occasioning bodily harm and common assault charges the appellant was ordered to pay $2500 compensation – where the appellant had served 8 days in pre- sentence custody – whether the sentence was manifestly excessive – where the learned Acting Magistrate failed to impose a mandatory community service order as part of a sentence imposed, pursuant to s 108B of the Penalties and Sentences Act 1992 (Qld) Criminal Code 1899 (Qld) ss, 335, 339 Justices Act 1886 (Qld) ss 222, 223 Penalties and Sentences Act 1992 (Qld) ss 9, 108B Forrest v Commissioner of Police [2017] QCA 132 MacDonald v Queensland Police Service [2017] QCA 255 Price v Queensland Police Service [2017] QDC 31 R v Hilton [2009] QCA 12 R v Lude; R v Love [2007] QCA 319 R v Middleton [2006] QCA 92 Ross v Commissioner of Police [2016] QDC 205 COUNSEL: DA Marley for the appellant M Mahlouzarides for the respondent SOLICITORS: Anderson Telford Lawyers for the appellant Office of the Director of Public Prosecutions for the respondent Introduction [1] The appellant, Brennan John English, was convicted and sentenced at the Mount Isa Magistrates Court on 12 August 2021 as follows: -- 2 of 10 -- 3 Charge 1 – Assault occasioning bodily harm, in a public place, while adversely affected by an intoxicating substance (29/05/2021) Convicted and sentenced to 12 months imprisonment Charge 2 – Common assault, in a public place, while adversely affected by an intoxicating substance (29/05/2021) Convicted and sentenced to 1 month imprisonment Charge 3 – Commit public nuisance, in a public place, while adversely affected by an intoxicating substance (29/05/2021) Convicted and sentenced to 14 days imprisonment [2] The sentences were ordered to be served concurrently. The court fixed a parole release date at 11 November 2021 (3 months actual custody). In respect of charges 1 and 2, the appellant was ordered to pay compensation of $2500 to the complainant. [3] A notice of appeal was filed on 13 August 2021 and appeal bail was granted on 20 August 2021. Grounds of appeal [4] The grounds of appeal are: (1) The sentence was manifestly excessive. (2) The sentence was not in accordance with the law, as the learned Acting Magistrate failed to impose a mandatory community service order as part of a sentence imposed, pursuant to s 108B of the Penalties and Sentences Act 1992 (Qld) (‘PSA’). [5] Relevantly, the appellant’s outline of submissions states:1 [6] The scope of the first ground of appeal is confined to the appellant’s grievance that the sentence was manifestly excessive because the parole release date was not fixed at the date of sentence. [7] It is submitted that the Court can infer that the learned Acting Magistrate failed to give sufficient weight to the appellant’s features in mitigation, as well as the combined effect of a community service order and compensation order, when fixing the parole release date after 3 months. [8] The appellant does not dispute that: (a) the terms of imprisonment were excessive; and (b) the compensation order was excessive. 1 Exhibit 1 – Appellant’s outline of submissions, [6]-[8]. -- 3 of 10 -- 4 The law – appeals [6] Justices Act 1886 (Qld) s 222(1) provides: If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge. [7] Justices Act 1886 (Qld) s 223 provides: Appeal generally a rehearing on the evidence (1) An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices. (2) However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave. (3) If the court gives leave under subsection (2), the appeal is— (a) by way of rehearing on the original evidence; and (b) on the new evidence adduced. [8] In MacDonald v Queensland Police Service [2017] QCA 255, at [47] Bowskill J stated: It is well established that, on an appeal, under [Justices Act 1886 (Qld)] s 222 by way of a rehearing, the District Court is required to conduct a real review of the trial, and the magistrate’s reasons, and make its own determination of the relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error. [citations deleted] [9] In Forrest v Commissioner of Police [2017] QCA 132, at p 5, Soffronoff P stated: …an appellate court hearing an appeal by way of rehearing must conduct a real review of the evidence and makeup its own mind about the case. Facts [10] The facts have been helpfully summarised by the appellant as follows:2 2 Exhibit 1 – Appellant’s outline of submissions, [16]-[21]. -- 4 of 10 -- 5 [16] The facts of the offending are contained in a schedule which was tendered on the sentencing hearing. Those facts were admitted by the appellant and are briefly summarised below. [17] On 29 May 2021, the appellant was drinking at the Overlander Hotel, Mount Isa. He did not know the complainant. [18] The complainant was playing pool with his friends. The appellant was being excessively loud to the complainant’s group and disrupting their game. He touched the complainant’s testicles with a cupped hand. All of this conduct amounted to charge 3 – public nuisance. [19] The appellant then walked towards the complainant in a threatening manner. One of the complainant’s friends intervened. The appellant pushed the complainant into a novelty game machine and punched him twice: once to the jaw and once to the head (charge 2 – common assault in a public place while adversely affected by an intoxicating substance). [20] The appellant grabbed hold of the complainant’s testicles and ripped his shorts and underwear. The appellant bit the complainant’s abdomen and caused an open bleeding wound (charge [1] – assault occasioning bodily harm, in a public place while adversely affected by an intoxicating substance). [21] The prosecution tendered photographs of the complainant’s abdominal injury. The complainant sought medical treatment at the Mount Isa Hospital. Discussion Ground 2 – Failure to make a community service order [11] As the appellant identifies,3 the circumstance of aggravation in respect of each of charges 1 and 2, namely that the offences were committed in a public place while the appellant was adversely affected by an intoxicating, required the learned Acting Magistrate to sentence the appellant to a term of community service in respect of those charges, pursuant to s 108B(2) of the PSA. 108B When community service order must be made (1) It is a circumstance of aggravation for a prescribed offence that the offender committed the offence in a public place while the offender was adversely affected by an intoxicating substance. (2) If a court convicts an offender of a prescribed offence with the circumstance of aggravation mentioned in subsection (1), the court must make a community service order for the offender 3 Exhibit 1 – Appellant’s outline of submissions, [22]-[26]. -- 5 of 10 -- 6 whether or not the court also makes another order under this or another Act. (2A) However, subsection (2) does not apply if the court is satisfied that, because of any physical, intellectual or psychiatric disability of the offender, the offender is not capable of complying with a community service order. [12] Both common assault (Criminal Code 1899 (Qld) s 355) and assault occasioning bodily harm (Criminal Code 1899 (Qld) s 339) are prescribed offences for the purpose of PSA s 108B(1) & (2).4 [13] There was no submission made nor finding that the PSA s 108B(2A) was applicable, so the imposition of a community service order was mandatory in the circumstances. [14] The learned Acting Magistrate declined to make a community service order, despite the mandatory terms of the PSA s 108B(2), stating:5 I take into account the circumstances regarding the offending, and, in my view, a community-based order is not proper in all the circumstances when one looks at your overall conduct constituting the three offences. I accept the legislative body provides that, in some cases, it is mandatory to impose community service. But because imprisonment is being imposed, and I am going to order a term of that imprisonment to be served, the making of the community-based orders is not appropriate. [15] The appellant submits and the respondent accepts,6 that the failure of to impose a community service order on charges 1 and 2 was an error of law, and accordingly has enlivened this court’s sentencing discretion afresh. [16] The appellant argues that a community service order, in these circumstances, constitutes an additional degree of punishment, serves as a further specific and general deterrent, and would assist in the appellant’s rehabilitation.7 [17] The appellant then goes on to submit that the mandatory imposition of a community service order component to the overall sentence requires an integrated approach in order to arrive at a just sentence, in which the combined effect of the community service order, the compensation order and the fixing of the parole release date must all be considered. [18] This approach to the integrated sentencing process was addressed by Kent DCJ in Price v Queensland Police Service [2017] QDC 31, [20]-[23] as follows: [20] In my view these principles [of approaching sentencing as an integrated process] apply by analogy to the present situation in that the effect of s 108B of the Penalties and Sentences Act was to mandate the imposition of a community service order upon the 4 PSA s 108A. 5 Affidavit of Holly Trentin, sworn 18/8/2021, Exhibit HT-01 (Decision p 3, ll 1-6). 6 Exhibit 2 – Respondent’s outline of submissions, [6]. 7 Exhibit 1 – Appellant’s outline of submissions, [26]. -- 6 of 10 -- 7 appellant, however the quantum of such order remained a matter for the exercise of the sentencing discretion as part of an integrated process. [21] The same can be said of his Honour’s decision to impose a parole release date pursuant to s 160B of the Penalties and Sentences Act. It was mandatory for his Honour to do so, however the choice of the date, and therefore its relationship to the head sentence, was a matter for the exercise of the sentencing discretion as part of an integrated process, having regard to all relevant factors including the mandatory obligation under s 108B. [22] His Honour, in his sentencing remarks, exposed his reasoning for the parole release date at p 5, saying that it was not to be at the usual one third mark “due to your appalling behaviour in trying to make your escape and due to the many like offences in your history”. This indicates: (a) the usual release date would be the one third mark; (b) it was delayed due to his actions in trying to escape and also because of his history. His Honour did not really, in my view, expose his reasoning process in arriving at the figure of 200 hours community service. [23] All of these matters were part of the sentencing process and when looked at as a whole, I am of the view that the result – a head sentence towards the top of the range, a parole release date higher than one third thereof, and a high amount of community service – is manifestly excessive, demonstrating that the sentencing discretion has miscarried. [19] The appellant then submits that, on appeal, a resentence, incorporating the mandatory community service orders and the compensation, as well as the 8 days of custody prior to bail being granted, should result in the appellant being subject to an immediate parole release date. [20] The respondent, on the contrary, while frankly acknowledging the learned Acting Magistrate’s sentencing error, argues that actual custody was within range, and that an outcome, on appeal, involving actual custody even with the mandatory community service order ordered, would still not be manifestly excessive. Ground 1 – Parole release date [21] The appellant submits that, by not fixing an immediate parole release date at the date of sentence, the outcome was manifestly excessive because it can be inferred that the learned Acting Magistrate failed to give sufficient weight to the appellant’s mitigating features. The appellant acknowledges that charges 1 and 2 were both offences involving violence, and therefore imprisonment is not a sentence of last resort (PSA s 9(2)(a), 9(2A)), subject to the considerations set out in PSA s 9(3)(a)-(k). [22] The appellant identifies the following matters relevant to PSA s 9(3):8 8 Exhibit 1 – Appellant’s outline of submissions, [35]-[39]. -- 7 of 10 -- 8 [35] The appellant had no criminal history, other than an entry on his non-TORUM record for public nuisance. He had no prior convictions for violence [PSA s 9(3)(g)]. The present offences occurred during a single incident, while he was intoxicated. There is no ongoing risk of physical harm to any members of the community if a custodial sentence was no imposed, nor a need to protect the community [PSA s 9(3)(a), (b)]. He has never been the subject of a community-based order or parole in the past. [36] No victim impact statement was provided, although it is accepted that the appellant caused bodily harm and the complainant was treated in hospital [PSA s 9(3)(c), (d)]. The compensation order addresses, to some extent, the harm caused to the complainant. The violence was gratuitous and led to injury [PSA s 9(3)(e)]. [37] The appellant had significant features in mitigation. He was in full- time employment since 2011 at the Mount Isa Mines. He otherwise had an excellent prior work history [PSA s 9(3)(h)]. [38] He commenced psychological treatment on 6 April 2020 and attended 10 separate sessions [PSA s 9(3)(j)]. It was observed by the psychologist, Paul Mitchell, that the appellant was: “…dealing with multiple unresolved grief and loss issues compounded with mariatial (sic) problems on the background of childhood trauma. [The applicant’s] depressed state was emotionally expressed through anger and was exacerbated by drinking alcohol. Brennan has sown good insight into his behaviour and has ben (sic) proactive towards self-correction.” [39] The appellant pleaded guilty which, prima facie, demonstrates remorse [PSA s 9(3)(i)]. The psychologist also opined that he was remorseful. The appellant’s remorse was further demonstrated in his letter to Court [Transcript of Decision (12/08/2021), p 2 ll20]: “I would like to express my absolute disgust and embarrassment for my actions that have led me to being before this Court. I am very sorry to the young man who was impacted by my actions on 29th of May 2021. If that young man has incurred any medical bills as a result of the incident, I am happy to compensate him for them. I have made the personal choice to abstain from alcohol, and I certainly do not intend to be back before the Court.” [23] The appellant also notes the significance of the compensation order of $2500, the 8 days of custody prior to appeal bail being ordered, and the inclusion of a community service order in a re-sentence.9 9 Exhibit 1 – Appellant’s outline of submissions, [47]. -- 8 of 10 -- 9 [24] In particular the appellant points to the decision of Ross v Commissioner of Police [2016] QDC 205, where a younger appellant, with prior convictions for public nuisance involving violence, was originally sentenced to 15 months imprisonment, with release after 2 months on parole, for an assault occasioning bodily harm, in company, involving multiple blows to the face, and injuries (including lacerations requiring stitches) of similar severity to the injuries in this matter. [25] The respondent, on the other hand, submits that although a more lenient sentence involving imprisonment with immediate parole may have been within range, it could not be said that the sentence imposed was manifestly excessive, citing R v Lude; R v Love [2007] QCA 319, [16]; R v Middleton [2006] QCA 92 and R v Hilton [2009] QCA 12, [22]-[23]. [26] The respondent identifies, in particular, the fact that this was “a gratuitous and vicious attack on a stranger in a public place, with the infliction of a serious injury and the risk of transmitting disease.”10 Conclusions [27] In my view, the effective head sentence of 12 months imprisonment, not contested on this appeal, clearly recognises the serious aspects of the appellant’s offending, and achieves the appropriate goals of deterrence, denunciation and proportionate punishment. [28] However, given the acknowledged error in failing to impose a community service order pursuant to PSA s 108B, it is necessary to re-sentence the appellant. [29] That re-sentence, as an integrated process, should recognise the plea of guilty; the minor criminal history of the appellant, who was 43 years old at sentence; the fact that the appellant had never previously been the subject of a community service order or parole; was in full time employment with an excellent work history; had been accessing psychological treatment; the fact that there was no victim impact statement and the injuries had healed conservatively; that a substantial compensation order of $2500 was made; an order for community service must be made on re-sentence; and recognition to 8 days custody served prior to appeal bail being granted. [30] Appropriate recognition of that range of factors, in my view, leads to the conclusion that a re-sentence, involving no further period of actual custody, is the just sentence in all the circumstances. There has, in my view, been a failure to appropriately recognise the mitigating factors outlined above, in an integrated sentencing process. As is clear from that conclusion, the sentence originally imposed, if it included (as it should) a community service order component, but still required a period of actual custody, would be manifestly excessive. It follows that the appeal should be granted. Compensation orders [31] The Verdict and Judgment Record, it should be noted, does not accurately reflect the learned Acting Magistrate’s oral orders, and should be corrected.11 10 Exhibit 2 – Respondent’s outline of submissions, [19]. 11 Exhibit 1 – Appellant’s outline of submissions, [56]. -- 9 of 10 -- 10 Orders [32] The court makes the following orders: 1. The appeal is allowed. 2. The sentence imposed on 12 August 2021 is varied to the extent that the appellant’s parole release date is fixed at 10 September 2021. 3. In respect of counts 1 and 2, the appellant is sentenced to 40 hours community service. 4. The sentences are otherwise confirmed. 5. The appellant is released on parole pursuant to s 200(1) of the Corrective Services Act 2006 (Qld). 6. The appellant is required to report to a parole officer at Mount Isa by 5:00pm 13 September 2021. If the appellant fails to do so, he will be unlawfully at large. 7. Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), the appellant has been in custody between 12 August 2021 and 20 August 2021, a period of 8 days, which is declared to be imprisonment already served under the sentence. 8. The Registrar of the District Court of Queensland at Mount Isa is directed to amend the Verdict and Judgment Record to the extent that the order for compensation is referred to the Registrar, State Penalties Enforcement Registry. -- 10 of 10 --