Burnett v Commissioner of Police [2021] QDC 251

DISTRICT COURT OF QUEENSLAND CITATION: Burnett v Commissioner of Police [2021] QDC 251 PARTIES: LUCAS JOHN BURNETT (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO: 55 of 2021 DIVISION: Appellate PROCEEDING: Appeal pursuant to s 222 Justices Act 1886 (Qld) ORIGINATING COURT: Magistrates Court at Cairns DELIVERED ON: 29 July 2021 ex tempore DELIVERED AT: Cairns HEARING DATE: 28 July 2021 JUDGE: Fantin DCJ ORDER: 1. Leave is granted to adduce the new evidence. 2. The appeal is allowed only to the extent that the parole eligibility date of 15 September 2021 is replaced with an immediate parole eligibility date of 29 July 2021 and any application for parole be assessed under the Court Ordered Immediate Parole Eligibility project. 3. Otherwise, the Magistrate’s orders made on 23 March 2021 are confirmed. 4. I direct that the Registrar provide a copy of my revised reasons, once available, to the Parole Board of Queensland to facilitate the appellant’s application. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL –– APPEAL AGAINST SENTENCE - where the appellant pleaded guilty to 10 offences including serious assault on a police officer – where appellant was sentenced to four months imprisonment to be served cumulatively on an earlier term of imprisonment – where the parole eligibility date was set at slightly less than one third of the total period of imprisonment - where the appellant had a criminal history for drug offending - whether the parole eligibility date rendered the sentence excessive – whether leave should be granted to adduce new -- 1 of 8 -- 2 evidence about Parole Board of Queensland delays in assessing applications for parole Legislation Justices Act 1886 (Qld) s 222, s 223 Penalties and Sentences Act 1992 (Qld) s 159A, s 160F Corrective Services Act 2006 (Qld) s 180(2)(b), s 180(2)(c) Cases Gallagher v R [1986] 160 CLR 392 Pavlovic v The Commissioner of Police [2007] 1 Qd R 344 R v Whitely [2021] QSC 154 Stuurman v Queensland Police Service [2021] QDC 80 COUNSEL R Logan for the appellant S Williams for the respondent SOLICITORS Legal Aid Queensland for the appellant The Office of the Director of Public Prosecutions for the respondent [1] FANTIN DCJ: Pursuant to section 222 of the Justices Act 1886 (Qld), the appellant appeals against the sentence imposed upon him on 23 March 2021 in the Magistrates Court at Cairns on the ground that the sentence, in all the circumstances, was manifestly excessive. [2] On that date the appellant pleaded guilty and was sentenced for 10 offences. A schedule of agreed facts was tendered at the sentence. The appellant was sentenced to an effective head sentence of four months imprisonment to be served cumulatively on the period of imprisonment he was already serving. This resulted in a revised full time expiry date of his sentence in July 2023. [3] The appellant was given a parole eligibility date of 15 September 2021, which was less than one third of the total period to be served, calculated from the date the appellant had been returned to custody on 18 December 2020. [4] The principles applicable on such an appeal against sentence are well settled and may be briefly stated. In order to succeed on such an appeal, the appellant must demonstrate that the decision the subject of the appeal was the result of some legal, factual, or discretionary error. Pursuant to section 223 of the Justices Act 1886 (Qld), the appeal is by way of rehearing unless leave is granted to adduce fresh evidence where there are special grounds to do so. Grounds of appeal [5] The appellant contends that the imposition of a parole eligibility date on any date other than the day of sentence rendered the sentence manifestly excessive due to delays by the Parole Board in considering applications for parole. It is contended that those delays would, in effect, have the practical effect of -- 2 of 8 -- 3 requiring the appellant to serve almost half of the total period of imprisonment in custody before being considered for parole. Summary of facts [6] It is necessary to summarise the offences and the circumstances of the offending, as well as the penalties imposed. There were 10 charges committed in two episodes of offending approximately one month apart. [7] The first two offences were possession of property suspected of being proceeds of an offence under the Drugs Misuse Act 1986 (Qld) and possessing anything for use in the commission of a crime. They were both committed on the 19 th of November 2020. That involved the appellant being in a vehicle that left a place that police were observing for the supply of dangerous drugs. Police intercepted the vehicle and it stopped. The appellant and another person fled. Police tracked the appellant via CCTV. They saw him stash a bag in a drain. Police recovered the bag, which contained some $4600 in cash, as well as a large number of clipseal bags, digital scales and two mobile phones. [8] The next set of offences occurred on 18 December 2020. Although there were eight offences, they all occurred as part of the single course of conduct. The first of those was an unlawful use of a motor vehicle. [9] Before I turn to those, for completeness I record that for the possession of property suspected of being proceeds of an offence under the Drugs Misuse Act 1986 (Qld), the appellant was sentenced to three months imprisonment, and for the possessing anything for use in the commission of a crime, one month imprisonment. [10] Returning to the offences on the 18th of December 2020, the appellant was a passenger in a vehicle that had been reported as stolen. It had been lent to someone else and not returned. Police were unable to intercept the vehicle. They deployed tyre deflation devices. The appellant fled and hid. That forms the offence of unlawful use of a motor vehicle. For that, he was sentenced to three months imprisonment. When he ran from the stolen car, he was holding a knife in his hand. That formed an offence of possession of a knife in a public place. For that, he was convicted and not further punished. [11] The appellant ran into a house. He forced entry to the house and went inside. That formed the offence of trespass. For that, he was convicted and not further punished. When the appellant entered the house, he hid in a cupboard. Police located him. He presented the knife, holding it in front of him and walking towards police, yelling, “Get out”. The appellant refused to comply with police directions to drop the knife. That constitutes two offences of serious assault on police while pretending to be armed with a weapon. Those offences attracted the head sentence of four months imprisonment, which were order to be served concurrently with each other but cumulatively on the sentence the appellant was currently serving. [12] During that course of conduct, the appellant had dropped a bag near the property. The bag was found to contain 0.6 grams gross of methylamphetamine. That formed a charge of possessing a dangerous drug. For that, he was convicted and -- 3 of 8 -- 4 not further punished. In the bag, police found a notebook, a tick sheet of debts owed, a set of scales, a syringe, needle, and clipseal bags. That formed a charge of possessing anything for use in the commission of a crime. For that, he was convicted and not further punished. There was a further charge of possessing tainted property: the bag also contained a large quantity of currency, some $13,000. For that offence, he was convicted and sentenced to three months imprisonment. Forfeiture orders were also made for the cash and items possessed. Antecedents and criminal history [13] The appellant had a relevant criminal history for drug offending including trafficking. It also included convictions for an assault or obstruct police in 2018 and for contravention of domestic violence orders. Most relevantly, in 2018 he was sentenced in the Supreme Court for drug trafficking and other drug offences. He received a sentence of four years imprisonment suspended after serving 347 days for four years. In 2019, he was sentenced again in the Supreme Court for a breach of that suspended sentence. The suspended sentence was fully invoked. Approximately three years and 18 days were activated. He was also sentenced for breach of a domestic violence protection order and received six months imprisonment, cumulative, for that offence. [14] He was given a parole eligibility date of 15 March 2020. On 16 March 2020, he was released on board ordered parole. He committed the subject offences in November and December 2020, approximately eight months into his parole period. He was returned to custody on the 18th of December 2020. [15] By the time of sentence on 23 March 2021, the appellant had served 94 days in presentence custody. He was serving out the earlier sentence of imprisonment. He was also held on remand in relation to the subject offences. At the time of sentence, the full-time expiry date of his earlier sentences was 7 March 2023. The penalty imposed for the serious assault offences of four months imprisonment was ordered to be served cumulatively upon that earlier sentence. That resulted in the full-time expiry date being extended to at least 7 July 2023. [16] His Honour calculated the total period of imprisonment from the date the appellant went back into custody. He did so expressly, and he fixed a parole eligibility date of 15 September 2021. The learned Magistrate expressly structured the sentence in a way that set the parole eligibility date at slightly less than one third of the total period of imprisonment. The practical effect of the penalty intended to be imposed is that the appellant would serve approximately 10 months in custody before being eligible for parole. [17] However, the appellant now submits, on the basis of new evidence sought to be adduced, that because of delays by the Parole Board in assessing parole applications, the appellant’s parole would not be considered until at least February 2022. That is some 15 months after his return to custody, which is close to half of the total period of imprisonment. [18] The appellant’s antecedents were outlined in sentencing submissions before the learned Magistrate. He was a man of 39 years of age. He was the father of two children. He had a good work history. He was a qualified tradesperson and had -- 4 of 8 -- 5 employment. He had suffered from a methylamphetamine addiction for some time. His criminal history reflected that drug addiction. He also suffered from depression and anxiety. Notwithstanding his criminal history, the appellant continued to have the support of his family, which was demonstrated by letters of support tendered on sentence. It was submitted that his time in custody away from the drug had resulted in some insight. Presentence custody [19] On sentence, the appellant’s presentence custody certificate was also placed before the court. [20] I pause to mention a matter briefly which was not identified in the notice of appeal or outlines of submissions, but which arose late during oral submissions in response to a question from me. The appellant had served 94 days of presentence custody on remand in relation to the subject offences. Strictly speaking, that period of presentence custody could have been declared by the learned Magistrate, pursuant to section 159A of the Penalties and Sentences Act 1992 (Qld) (despite submissions to the contrary by the police prosecutor and the appellant’s solicitor in the Magistrates Court). See R v Whitely [2021] QSC 154. [21] However, pursuant to a proper exercise of the discretion, in my view, it is unlikely that the 94 days would have been declared because the appellant was also serving out a previous term of imprisonment which was reasonably lengthy. The period of presentence custody of 94 days was expressly taken into account by the learned Magistrate in setting the parole eligibility date. While it could, in theory, have been declared, the parties do not now submit that it should be. In my view, nothing turns on this issue. Magistrate’s decision [22] In his sentencing remarks, the learned Magistrate referred to the facts of the offending, the appellant’s criminal history, including his previous convictions for drug offences, his history of drug usage and its connection to his criminal history. He referred to the fact that the appellant continued to enjoy family support. He said that the serious assault police charges would, on their own, have attracted a sentence of six to 12 months imprisonment but that the sentence had to be imposed cumulatively because of the offending on parole and that totality was a prominent feature. He took into account the period served on remand and he set out the methodology he applied in arriving at that sentence. [23] Significantly, no complaint is made by the appellant on appeal about the head sentence of four months imprisonment, nor with decision to order that that sentence be served cumulatively upon the sentence the appellant was already serving. There is no suggestion that the learned Magistrate erred in law or fact or in the exercise of his discretion. -- 5 of 8 -- 6 Parole eligibility [24] The sole ground of appeal relates to the contention that current notorious delays in assessing parole eligibility applications render the parole eligibility date of 15 September 2021 manifestly excessive. It is said that given the current delays if that date remains, the appellant would spend almost half of his current period of imprisonment in custody before his application is assessed. [25] The total period of imprisonment is said to be 931 days and an assessment of parole in February 2022 (the date said to be likely to be when his parole application would in fact be assessed) would be at the 410 th day. It is submitted this would result in a crushing sentence for the appellant. [26] The effect of section 180(2)(c) of the Corrective Services Act 2006 (Qld) is to enable a prisoner to apply for parole within 180 days before the prisoner’s parole eligibility date. If a prisoner has appealed their conviction or sentence then, pursuant to section 180(2)(b), an application for parole cannot be made until the appeal is decided. [27] Therefore, the appellant could have applied for parole immediately after his sentence in the Magistrates Court on the 23rd of March 2021 notwithstanding that his parole eligibility date was 15 September 2021. That is because it was within 180 days before the parole eligibility date. However, he could not apply once he had filed this appeal against his sentence. There was no information before this court as to whether the appellant did apply to the Parole Board before filing the appeal. [28] Turning then to the question of whether the parole eligibility date rendered the sentence excessive, at the sentencing hearing, the appellant’s solicitor did not address the learned Magistrate nor adduce any evidence with respect to delays being experienced by the Parole Board of Queensland in assessing applications. The learned Magistrate was not assisted by any information about that. The learned Magistrate noted that it would be up to the Parole Board in any event to decide when the appellant would be released. The learned Magistrate correctly fixed the parole eligibility date by reference to the total period of imprisonment pursuant to section 160F of the Penalties and Sentences Act 1992 (Qld). Application to adduce new evidence [29] The appellant seeks to adduce new evidence pursuant to section 223(2) of the Justices Act 1886 (Qld). The respondent opposed the application to adduce new evidence. The test in considering whether there are special grounds for giving leave includes the following three considerations. First, whether the evidence relied on could, with reasonable diligence, have been produced by the accused at sentence. Second, whether the evidence is apparently credible or at least capable of belief. And third, whether the evidence, if believed, might reasonably have led the tribunal of fact to return a different decision. See Pavlovic v The Commissioner of Police [2007] 1 Qd R 344 at paragraph 30, and Gallagher v R [1986] 160 CLR 392 at 395 and 396. [30] That first consideration is not a universal and inflexible requirement. The strength of the fresh or new evidence may, in some cases, be such as to justify -- 6 of 8 -- 7 interference with the verdict even though that evidence might have been discovered before the trial or sentence. In this case, the new evidence is an affidavit from a different solicitor employed by Legal Aid Queensland. It deposes that the first formal advice received by the relevant Legal Aid office in relation to delays experienced by the Parole Board of Queensland in assessing applications was not received until 23 April 2021. [31] The solicitor further deposes that since that time, Legal Aid Queensland has received regular updates via email concerning Parole Board delays. At the date of execution of the affidavit, the most recent advice, which was dated 21 June 2021, from the Parole Board of Queensland was to this effect: If a prisoner were to make an application for parole on 21 June 2021, it would likely not be listed until late February 2022. … The timelines for the Court Ordered Immediate Parole Eligibility project (COIPE) had moved from the Board first considering such an application within 10 business days to the Board now considering such applications between 20 and 25 business days. [32] I turn to the first consideration. The fact that there were delays in considering applications for parole eligibility was known at the time of sentence in March 2021 to some extent, at least in the District Court of Queensland (eg. see Stuurman v Queensland Police Service [2021] QDC 80 and the sentencing remarks of Byrne QC DCJ in R v Wright, 22 March 2021). However, I accept the unchallenged evidence of the affidavit of Ms Walker as to when formal advice was first received by the relevant Legal Aid Queensland office about the extent of those delays. It is clear that there is now a greater level of knowledge about delays by the Parole Board of Queensland in the assessment of applications, including the regular provision by the Board of updated timelines about the assessment of parole applications. [33] The second and third considerations of the test are not in issue. The evidence in the affidavit of Ms Walker is clearly credible. In my view, the evidence, if adduced before the learned Magistrate, might reasonably have led to a different result. I form that view in particular because the learned Magistrate, in his sentencing remarks, expressly calculated the parole eligibility date by reference to the appellant’s total period of imprisonment and with the intention that the appellant would serve less than one third of that total period before being eligible for parole. [34] It is uncontroversial that whether parole is actually achieved pursuant to such an order is a matter for the parole authorities, as is any time delay consequential on the way in which they perform their duties. Delays experienced by the Parole Board of Queensland are ordinarily matters external to the sentencing court’s discretion. But the unfortunate reality of the Parole Board of Queensland delays, on the basis of the new evidence, is that unless the appellant is given an immediate parole eligibility date to facilitate his application for parole under the Court Ordered Immediate Parole Eligibility project, he would not have his application for parole considered at or even around the time the learned Magistrate expressly intended. Nor it appears, would he have it considered for some eight months after the intended date. -- 7 of 8 -- 8 [35] In my view, that is a particularly relevant consideration where the head sentence imposed was only four months’ imprisonment, a relatively short period, ordered to be served cumulatively on an existing sentence for a significantly longer term. The order of the sentencing court could not be given its intended effect because of circumstances that existed, but were not brought to the attention of the court when the sentence was imposed. [36] Although the matter is finely balanced, in my view, this is a matter where, evidence having now been placed before the court with more up to date detailed information, leave should be granted to adduce that new evidence. If that evidence had been adduced at sentence, it might reasonably have led to a different result. Conclusion [37] Therefore, I grant leave to adduce the new evidence. The sentence imposed by the learned Magistrate is varied, not due to any error of law or fact or exercise of his discretion, but because, on the basis of the new evidence, the parole eligibility date of 15 September 2021 results in an excessive sentence. [38] Therefore, the orders I make are these: 1. Leave is granted to adduce the new evidence. 2. The appeal is allowed only to the extent that the parole eligibility date of 15 September 2021 is replaced with an immediate parole eligibility date of 29 July 2021 and any application for parole be assessed under the Court Ordered Immediate Parole Eligibility project. 3. Otherwise, the Magistrate’s orders made on 23 March 2021 are confirmed. 4. I direct that the Registrar provide a copy of my revised reasons, once available, to the Parole Board of Queensland to facilitate the appellant’s application. -- 8 of 8 --