Bird v Commissioner of Police [2021] QDC 49

DISTRICT COURT OF QUEENSLAND CITATION: BIRD v Commissioner of Police [2021] QDC 49 PARTIES: ALLAN DAVID BIRD Appellant v COMMISSIONER OF POLICE Respondent FILE NO: 2293 /20 DIVISION: Appellate PROCEEDING: Appeal against sentence s. 222(2)(c) Justices Act 1886 ORIGINATING COURT: Magistrates Court at Sandgate DELIVERED ON: 26th March 2021 DELIVERED AT: Brisbane HEARING DATE: 17th March 2021 JUDGE: East QC DCJ ORDER: 1. Appeal against sentence allowed. 2. Set aside the sentences of 9 months imprisonment imposed with respect to the Public Nuisance offences committed on 6,7 and 20 April 2020 and the term of 6 months imprisonment imposed on the Public Nuisance offence committed on 3 April 2020. 3. Instead order that the appellant be sentenced as follows:- (a) 3 April 2020 – three months’ imprisonment (b) 6th April 2020 – four months’ imprisonment (c) 7 April 2020- three months’ imprisonment (d) 20 April 2020 – Convicted Not further punished 4. Set aside the orders of nine months’ imprisonment imposed with respect to the two charges of Stealing committed on 20 April 2020. 5. Instead order that the appellant be sentenced to one month’ imprisonment on each offence. 6. All substituted sentences of imprisonment be served concurrently with each other and concurrent with the sentences of 12 months’ imprisonment imposed on the charges of Wilful Damage. -- 1 of 15 -- 2 7. Set aside the order that the activated one month suspended term of imprisonment be served cumulative to the other sentences of imprisonment imposed 20 July 2020. 8. Instead order that the activated one month suspended term of imprisonment be served concurrently with the sentences imposed on 20 July 2020. 9. All other sentences affirmed. 10. Declare 91 days pre-sentence custody from 20 April to 20 July 2020 inclusive to be imprisonment already served under all of the sentences imposed. 11. I direct the Registrar of the District Court Brisbane inform the Chief Executive Officer of the Corrective Services Commission of this declaration. CATCHWORDS: Public nuisance – sentences exceeded maximum penalty – breach suspended sentence – whether order ought to be cumulative or concurrent. LEGISLATION: Summary Offences Act 2005 (Qld) s 56 (1)(b) Penalties and Sentences Act 1992 (Qld) s 9, s 148, s 159A CASES: Kentwell v R (2014) 252 CLR 601 Perry v Commissioner of Police [2015] QDC 21 R v Baker [2011] QCA 104 Q v KAX [2020] QCA 218 R v Rose [2020] QCA 234 COUNSEL: Appellant: Self represented Respondent: Mr. N Dagan SOLICITORS: Appellant: Self represented Respondent Director of Public Prosecutions Introduction [2] On 15 July 2020 in the Sandgate Magistrates Court the appellant pleaded guilty to 15 offences. [3] On 20 July 2020 the appellant was sentenced to various terms of imprisonment resulting in a head sentence of 12 months. A suspended sentence of one month imprisonment was activated and ordered to be served cumulatively, making a total period of imprisonment of 13 months. A parole release date of 18 September 2020 was set (about 1/3). -- 2 of 15 -- 2 Appellant’s antecedents [4] The appellant’s previous offending commenced in 1995 and has continued in an unrelenting way for the past quarter of a century. His criminal history extends over 20 pages. The subject of this sentence appeal concerns Chapter 69 of that history. In short, the appellant is a serial pest. [5] Be that as it may, he was entitled to be sentenced according to law on 20 July 2020. The respondent necessarily concedes he was not. The discretion having miscarried, it falls to this court to re-exercise the sentencing discretion.1 [6] The appellant was convicted on his pleas of guilty to the following 15 offences in chronological order of offending:- 3 April 2020 – Public nuisance [7] The appellant created a disturbance at the Bald Hills Railway Station. He was shouting aggressive and incoherent abuse whilst punching a metal pole. Unsurprisingly he was observed to be grossly intoxicated. He was sentenced to 6 months imprisonment, the maximum penalty provided by the Summary Offences Act 2005 Section 6 (1) (b). 6 April 2020 [8] Three days later, while on bail for the earlier offence, he approached three Council employees at a park and hurled abusive obscenities at them for no discernible reason. He shadow boxed them, then challenged them to a fight. Their efforts to calm him down having failed, in understandable disbelief, they locked themselves in their work truck and called police (public nuisance). [9] Unsatisfied by their refusal to engage, the appellant began striking the truck with an unknown implement causing just short of $3,500 damage. Police attended, he was arrested and later released again on bail. [10] On the public nuisance charge he was sentenced to nine months’ imprisonment. As observed above, the maximum penalty for that offence is one of six months’ imprisonment. It is that error of law that requires this appeal to be allowed. 1 Kentwell v R (2014) 252 CLR 601. -- 3 of 15 -- 3 [11] On the charge of wilful damage, the appellant was sentenced to 12 months’ imprisonment 7 April 2020 [12] The day after the above episode the appellant took two bottles of juice valued at $6.90 from a Woolworths store (unauthorised dealing with shop goods). [13] For that offence he was convicted and not further punished. [14] The appellant had been confronted by staff over the theft. He was aggressive to both staff and customers. A security officer who intervened was subjected to loud obscenities (public nuisance). Police who attended were told that he would “fuck you cunts up”. For reasons identified above at Para [10] he was sentenced, incorrectly, to nine months’ imprisonment. [15] A Police search of his backpack revealed an unpackaged syringe and needle (Fail to take reasonable care of a syringe). On that charge he was convicted and not further punished. 11 April 2020 [16] While on bail for the above offences, the appellant committed three further offences on this day. [17] The appellant went into the yard of a dwelling (Trespass). When challenged, he frankly admitted to the occupiers that he was “sussing the place out”. Unsurprisingly the Police were called. For that trespass offence he was convicted and not further punished. [18] Attending police required the appellant to provide his correct name. He told them twice that he was “Toby Maguire” (contravene a PPRA direction). Identification documents located in his backpack brought that somewhat pathetic ruse undone. [19] He was convicted and not further punished for that offence. [20] When police found him, he was drinking from a can of premixed rum and cola (consume liquor on a road). [21] He was convicted and not further punished for that offence. -- 4 of 15 -- 4 [22] To assist in presenting a chronological narrative, it will be useful at this point to interpose the following matter dealt with by a different court than the one that ultimately sentenced him. Suspended Sentence [23] On 14 April 2020, the appellant breached a condition of a domestic violence order which named him as the respondent. The following day (15 April 2020) the appellant promptly pleaded guilty to that breaching offence and was sentenced to one month imprisonment wholly suspended for a period of six months. 18 April 2020 [24] Three days into the suspended sentence the appellant committed an offence of wilful damage. He was in Breakfast Creek Road, Newstead. For unknown reasons he was seen to become angry and ranting nonsensically. He picked up a street sign lying on the footpath and began striking various objects, trees and ultimately a carpark entry light, rendering it inoperable. Some $820 was expended to repair the damaged light. An interview with police resulted in an admission of intentional damage. [25] He was sentenced to 12 months imprisonment for that offence. 20 April 2020 [26] Two days later the appellant committed five offences on this day. The complainant was opening his Sandgate HUB takeaway shop at 8 am. The appellant “aggressively” demanded free food. When it was refused he took a $2.00 Ribena drink from the fridge. When challenged he responded “I don’t give a fuck” and left. He was charged with stealing rather than take away shop goods. He was sentenced to nine months imprisonment for that offence. [27] About 15 minutes later he walked past the Chemist Warehouse at Sandgate. He stole a six pack of tissues valued at $2.99 and a bottle of shampoo valued at $5.00 from display stands located outside the store on the footpath.2 (stealing) 2 The defendant has previously said it was hand wash for Coronavirus but given his likely state of intoxication that maybe his misunderstanding. See Sentencing Submissions 15 July 2020 page 1-3 l26. -- 5 of 15 -- 5 [28] For completeness, shortly afterwards he was seen urinating in a nearby garden bed. He was described as “yelling at himself”. When police attended they found him lying on a bench. He was noted to be intoxicated. He then shouted abuse and engaged in racial rants. [29] The prosecution sentencing schedule tendered at sentence identified the public nuisance offence as having been committed at the time of the Sandgate HUB Takeaway incident. Those facts outlined above at Para [28] however suggest that it may more likely have occurred in the aftermath of the Chemist Warehouse incident. [30] In any event, he was sentenced to nine months imprisonment for the public nuisance offence, and for the same reasons identified at paragraph [10], this sentence was also an error of law. [31] Later in the day, following his arrest for the above offences, the appellant was being transported between watchhouses in a police car. He was heard to “hock” spittle in his mouth as if to clear his throat. He was warned by police not to spit. He did so anyhow, spitting on the carpet of the car. $105 was taken from the public purse to pay for the cleaning of the carpet. [32] For that offence of wilful damage, he was sentenced to 12 months’ imprisonment. [33] The last offence committed on that day was a failure to comply with a COVID-19 health direction. At the relevant time there was in place a health direction which required citizens to remain in their home except for specified reasons. When asked by police why he was not at home that day he blithely replied that he could go anywhere he wanted. [34] On that charge he was convicted but not further punished. It should be noted that he had two prior convictions for that particular offence. He committed the same offence on 11 and 18 April, both during this offending period. He was dealt with on 8 June and 15 June 2020, and on each occasion he was fined $1334. Those penalties were brought to the sentencing Magistrate’s attention.3 3 15 July 2020 page 1-5 line 32 of Sentence Submissions. -- 6 of 15 -- 6 [35] The appellant was remanded in custody on that day (20 April 2020) with respect to four of the five offences committed that day: • Failure to comply with COVID-19 direction; • 2 x stealing (HUB Takeaway and Chemist Warehouse); and • Public nuisance. [36] On 13 July 2020, the appellant’s bail on the remaining charges was revoked (one assumes on his application). That meant he was remanded in custody on the remaining charges including the wilful damage charge related to spiting on the carpet of the police car on 20 April. [37] As noted, on 15 July 2020, he entered his pleas of guilty. In the course of sentencing submissions the prosecution contended 12 months’ imprisonment with parole release at about 1/3 was called for. [38] The appellant’s solicitor contended nine months imprisonment with immediate parole was warranted. The hearing was then adjourned to obtain further custody details. Sentence 20 July 2020 [39] The longest term of imprisonment imposed was 12 months’ imprisonment for each of the three wilful damage offences. No order was made that the terms of imprisonment be served concurrently however section 155 of the Penalties and Sentences Act deems them concurrent in the absence of a contrary order. [40] The suspended sentence imposed on 15 April was activated and an order made that he serve the whole of the one month imprisonment. It was further ordered that he serve that term cumulatively to other sentences handed down on the day of sentence. [41] Declarations of pre-sentence custody of 91 days from 20/04 to 20/07/2020 (the day of sentence) were made for the nine month imprisonment sentences for: • Stealing HUB Takeaway 20 April; • Stealing Chemist Warehouse 20 April; and • Public nuisance 20 April -- 7 of 15 -- 7 [42] On the remaining offences, seven days imprisonment between 13 July 2020 and 20 July (the date of sentence) was declared. Errors in sentences of nine months’ imprisonment for public nuisance offences on 6, 7 and 20 April [43] Magistrates have heavy workloads, typically covering a myriad of offences and legislative mazes on a daily basis. It is highly regrettable that the learned Magistrate was not assisted by either the prosecution or the defence in correctly identifying the maximum penalty for the offence of public nuisance. [44] A review of the appellant’s extensive criminal history shows that he had been convicted of the offence of public nuisance and earlier analogues on 29 previous occasions.4 That was plainly an aggravating factor. In the past he had been fined, given probation or sentenced to short terms of three months’ imprisonment, although that penalty needs to be understood in light of the fact that it invariably included other offending. [45] On 10 May 2019 he was sentenced to three months’ imprisonment with immediate parole for an offence of public nuisance, stealing, assault police and obstruct police. The facts of that public nuisance are unknown but it is highly likely, judged against the pattern of behaviour in the current offences, that it involved gross intoxication and senseless loud, obscene abuse directed to the world generally. [46] The worst example of the three public nuisance offences that attracted nine months’ imprisonment was his conduct towards the Council workers on 6 April. The shadow boxing and invitation to fight must have caused them real apprehension of violence. Although they outnumbered him, they chose the safer course of locking themselves in the truck and calling police. Bad as it was, that conduct does not call for the maximum penalty of six months’ imprisonment. The appropriate sentence for that offence is one of four months’ imprisonment. [47] The 7 April offence at Woolworths was not particularised with any great clarity. He was described as “heavily” intoxicated, unsteady on his feed and agitated. He was aggressive and abusive to staff and customers before he left the store with the purloined bottles of juice. He was aggressive and threatening to a security officer. He 4 Previously known as behave in a disorderly manner or creating a disturbance on a train. -- 8 of 15 -- 8 was described as being in his face and yelling obscenities. A sentence of three months’ imprisonment is appropriate in the circumstances. [48] The offence of 20 April is problematic as it was based on his conduct at the HUB takeaway shop, rather than the more likely concerning behaviour soon after the stealing at the Chemist Warehouse. It is however, not for this Court to correct that likely factual error. Judged against the known facts of the stealing offence at the takeaway shop, the offending was a very minor example of the offence of public nuisance. His behaviour seemed to come down to a demand for free food, and when challenged, taking the drink saying there was nothing they could do to stop him. One must necessarily be careful not to sentence in a duplicitous way incorporating the facts of the stealing offence into the public nuisance offence. The appropriate sentence is a conviction should be recorded but no further punishment should be imposed. Public nuisance 3 April [49] The appellant was sentenced to the maximum of six months’ imprisonment, although the sentencing Magistrate must plainly have assumed that the maximum penalty was higher. It is impossible to know where the learned Magistrate believed the maximum penalty rested. Would her Honour have imposed the maximum for this offence if she had known it was in fact the maximum penalty? [50] His erratic and concerning behaviour caused a train to stop halfway along the platform. He was grossly intoxicated (.249) and yelling incoherently, while punching a steel pole in unfathomable anger. While intoxication is no excuse, and does not mitigate his anti-social behaviour,5 it does however, like much of his criminal history, raise issues about moral culpability. [51] As R v Veen (No 2) (1998) 164 CLR 465 informs, the criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instance offence. To do so would be to impose a fresh penalty for past offences. 5 Section 9 (9A) Penalties and Sentences Act. -- 9 of 15 -- 9 [52] An appropriate sentence is one of three months’ imprisonment. The wilful damage offences 6, 18, 20 April [53] On each charge the applicant was sentence to 12 months’ imprisonment. When one has regard to the senseless deliberate damage on 6 th April ($3500) and 18th April ($820) against the background of his extensive criminal history, it cannot be said that 12 months’ imprisonment was in any way excessive. While it might be thought that the 20 April offence of spitting on the carpet of the police car causing $105 expenditure pales into insignificance when compared to the magnitude of the offending on 6 April and 18 April, 12 months’ imprisonment is well within range. [54] There is no sustainable argument that the 12 month sentences imposed were excessive and ultimately the appellant himself conceded that was so. The appellant cited no authority. The respondent cited Perry v Commissioner of Police [2015] QDC 21. That was a significantly worse case involving eight counts of deliberate targeted wilful damage, causing over $16,500 damage. It is of little assistance. Importantly, the damage caused on 6 and 18 April was deliberate rather than merely reckless. Although the appeal will be allowed, the sentences imposed for the three offences of wilful damage will not be interfered with. Contrary to the appellant’s assertion, the sentence imposed for those offences was not greater than what the prosecution had ultimately submitted as a head sentence. The stealing offences of 20 April [55] As apprehended by the Court and by the respondent, the appellant appears to assert that the stealing offences should have been prosecuted as unlawfully taking away shop goods. That argument should be rejected. The decision to charge stealing rather than take away shop goods was entirely a matter for prosecutorial discretion. This appeal is not an inquiry into the exercise of that discretion. The appellant pleaded guilty to two stealing offences and that is the end of that aspect of his argument. [56] However, sentences of nine months imposed for the stealing of a $2.00 drink, in circumstances that were on any view remarkably similar to taking away shop goods unlawfully, leads to an inevitable conclusion that despite his extensive criminal history, nine months’ imprisonment was excessive. -- 10 of 15 -- 10 [57] Similarly, the theft of the tissues and the shampoo with a combined value of $7.99 leads again to a conclusion that nine months’ imprisonment was excessive. The disparity between, on the one hand being convicted and not further punished for unlawfully taking away two bottles of juice and on the other, nine months for taking another juice drink, even recognising the differing maximum penalties, is so manifestly extreme that it warrants intervention. [58] On each of those stealing charges, sentences of one month’ imprisonment should be substituted. [59] There can of course be no complaint with the Magistrate’s decision to convict and not further punish on the remaining offences. Activation and culmination of the suspended sentence [60] The appellant committed six offences during the operational period, beginning just days after he was placed on the suspended sentence. The appellant faintly argued that the breaching offences were not of a like nature to the original offence of breaching a domestic violence order. [61] That argument is impossible to sustain and the appellant ultimately accepted that the activation of the whole one month sentence was inevitable and not in any way unjust in the circumstances. [62] The true issue was the exercise of the discretion to make a cumulative order. Her Honour first imposed the sentences for the offending from 3 – 20 April. The last matter in the sentencing remarks was the activation of the whole of the suspended sentence and the order of accumulation. The only remark made dealing with the discretion to order concurrency or accumulation was “… It should, in all the circumstances of that matter and the charges and number of matters that I am dealing with you for, be cumulative”. [63] That approach, making the suspended sentence cumulative to the other sentences imposed is contrary to the correct approach outlined in R v Baker [2011] QCA 104 at [32]-[34]. Section 156A did not apply to the appellant’s circumstances so that sections 148, 155 -156 applied. With respect, the above quoted remark did not explain why the discretion was exercised in the way it was. It merely stated that there was a breach -- 11 of 15 -- 11 of a DVO and a penalty of one month’ imprisonment (the circumstances of that matter) and that the Magistrate was dealing with a number of further matters, some of which were committed in breach of the suspended sentence. That certainly justified activation of the sentence in full, but did not deal with what should flow from that. No reference was made to any discretionary factor favouring accumulation over concurrency. [64] That error in approach requires this court to review that part of the sentence proceedings. There are two factors that favour the discretion to order the suspended sentence be served concurrently. [65] Firstly, the breach of the DVO offence occurred on 14 April, broadly speaking in the middle of the total offending period between 3 and 20 April 2020 that the learned Magistrate was dealing with. The offending on 3, 6, 7 and 11 April preceded it and those sentences were ordered to be served concurrently and concurrent with the later offending on 18 and 20 April. [66] The suspended sentence order was made on 15 April, the day after the breach of the domestic violence offence, again, at a time within the timeframe of the other offending. In other words, the suspended sentence and the original offence leading to it were not isolated in time to the other offending. [67] The offending of 18 and 20 April occurred within three and five days after the suspended sentence order. From 20 April, the appellant was remanded in custody. His offending ceased from that point. Given that all the offending dealt with on 20 July 2020 was to be served concurrently, it was entirely appropriate to order that the one month suspended sentence be served concurrently with the other sentence orders. Declarations of pre-sentence custody [68] The pre-sentence custody certificate makes clear that the appellant went into custody on 20 April 2020 for four offences committed on that day but not the wilful damage charge (spitting on the carpet) which occurred that same day. On 13 July 2020, the appellant’s bail on the remaining charges, including the wilful damage of 20 April, was revoked on his application. Plainly, he did not enjoy that bail – he had been in custody since 20 April. -- 12 of 15 -- 12 [69] Rather than declare the 91 days between 20 April and 20 July 2020 for the offences committed between 3 and 20 April 2020, as contemplated by section 159A(1) & (4), the declarations were made separately - • 91 days for the three offences of 20 April • 7 days for all the other sentences of imprisonment [70] Shortly prior to the sentence hearing, on 25 May 2020, section 159A (1) was amended by the Justice and Other Legislation Amendment Act 2020 to remove from section 159A (1) the words “and for no other reason”. Section 258 of the transitional provisions resulted in the amended section 159A applying to the sentencing of an offender for offences and convictions that occurred before or after commencement. [71] Section 159A (4)(b) retains the words “and for no other reason”. However, it is abundantly clear that the appellant was not in custody for reasons unconnected to all of the offences, for example, because he was serving a sentence on an unrelated matter. A reading of section 159A makes clear that the appellant should have been given a declaration of 91 days with respect to all of the sentences of imprisonment not just the four offences occurring on 20 April 2020. The Magistrate’s order requires amendment in that respect. COVID-19 considerations [72] The appellant contended that the sentences should have been ameliorated because of the hardship endured in custody as a consequence of the pandemic restrictions imposed on prisoners. There have been a number of single judge decisions recognising that factor although precisely how the deduction or allowance is made seems to be a matter of instinctive synthesis rather than mathematical calculation. This difficulty was identified in R v KAX [2020] QCA 218 at [31] Mullins JA. In R v Rose [2020] QCA 234, Sofronoff P at [8] considered the COVID-19 circumstance did not render a sentence severe because no reduction was made. [73] In any event, the sentencing Magistrate indicated that she had “taken into account … all of those matters that have been placed before me by … Ms Bruxner on your behalf”. His lawyer had referred to his hardship in prison in submissions. -- 13 of 15 -- 13 [74] It is also somewhat ironic that the appellant had been thrice convicted of disobeying COVID-19 restrictions before he went into prison, yet he contends that the hardship caused by the restrictions in prison justifies a further reduction of sentence. There is nothing in this ground. The pleas of guilty [75] The learned Magistrate made no specific reference that would comply with the requirements of Section 13 (3) of the Penalties and Sentences Act. However it is clear Her Honour must have taken it into account in setting the parole release date. The failure to mention the plea of guilty has been considered in this appeal, however the head sentence is not invalid by reason of that failure. Events subsequent to this sentence [76] The appellant was released from custody on 18 September 2020 in accordance with the parole release date set. Within a short time of his release he committed an offence of stealing (Chapter 70) and was returned to custody on 28 th September 2020. His parole was suspended indefinitely. [77] On the subsequent stealing offence he was sentenced to 3 months imprisonment to be served cumulatively on the sentence the subject of this appeal. That sentence is also subject to a separate appeal. [78] In those circumstances there is no utility in making a further parole release date, so that the provisions of the Corrective Services Act concerning parole will take effect. Order [79] I make the following orders:- 1. Appeal against sentence allowed. 2. Set aside the sentences of 9 months imprisonment imposed with respect to the Public Nuisance offences committed on 6,7 and 20 April 2020 and the term of 6 months imprisonment imposed on the Public Nuisance offence committed on 3 April 2020. 3. Instead order that the appellant be sentenced as follows:- -- 14 of 15 -- 14 (a) 3 April 2020 – three months’ imprisonment (b) 6 th April 2020 – four months’ imprisonment (c) 7 April 2020- three months’ imprisonment (d) 20 April 2020 – Convicted Not further punished 4. Set aside the orders of nine months’ imprisonment imposed with respect to the two charges of Stealing committed on 20 April 2020. 5. Instead order that the appellant be sentenced to one month’ imprisonment on each offence. 6. All substituted sentences of imprisonment be served concurrently with each other and concurrent with the sentences of 12 months’ imprisonment imposed on the charges of Wilful Damage. 7. Set aside the order that the activated one month suspended term of imprisonment be served cumulative to the other sentences of imprisonment imposed 20 July 2020. 8. Instead order that the activated one month suspended term of imprisonment be served concurrently with the sentences imposed on 20 July 2020. 9. All other sentences affirmed. 10. Declare 91 days pre-sentence custody from 20 April to 20 July 2020 inclusive to be imprisonment already served under all of the sentences imposed. 11. I direct the Registrar of the District Court Brisbane inform the Chief Executive Officer of the Corrective Services Commission of this declaration. -- 15 of 15 --