Bryant v Commissioner of Police [2020] QDC 14

DISTRICT COURT OF QUEENSLAND CITATION: Bryant v Commissioner of Police [2020] QDC 14 PARTIES: BRYANT (Appellant) V COMMISSIONER OF POLICE (Respondent) FILE NO/S: 2905/19 DIVISION: Appellate Jurisdiction PROCEEDING: Appeal ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 17 February 2020, ex tempore DELIVERED AT: Brisbane HEARING DATE: 17 February 2020 JUDGE: Everson DCJ ORDER: Appeal dismissed CATCHWORDS: APPEAL – FROM MAGISTRATES COURT – BY LEAVE OF COURT – s 222 Justices Act 1886 – appeal against sentence – where sentence was manifestly excessive because of the parity principle – where appeal be allowed and a lesser sentence be imposed upon the appellant. LEGISLATION: Justices Act 1886 (Qld) CASES: Postiglione v R (1997) 189 CLR 295 R v Owen [2015] QCA 46 COUNSEL: M J Bowie for the Applicant E L Hislop for the Respondent SOLICITORS: Legal Aid Queensland for the Applicant Office of the Commissioner of Police for the Respondent -- 1 of 3 -- 2 [1] This is an appeal pursuant to s 222 of the Justices Act 1886 in respect of a sentence imposed in the Beenleigh Magistrates Court on 2 April 2019 for going armed so as to cause fear. The appellant was sentenced to imprisonment for 14 months with a parole release date of 2 October 2019. [2] Although the notice of appeal states the basis that the grounds of appeal are that the sentence is manifestly excessive, the basis for this assertion has now narrowed to whether the sentence which was not manifestly excessive of itself, is nonetheless manifestly excessive because of the parity principle. Allegations of failing to take into account mental health issues of the appellant and other submissions concerning the sentence itself have now been abandoned. [3] The contentious remaining basis for the appeal concerns the sentence imposed on the appellant’s co-offender, Mr Dobbin, in the Magistrates Court at Beenleigh on 2 October 2019. Both offenders were convicted of going armed so as to cause fear, and Mr Dobbin received a more lenient sentence. He was sentenced following a plea of guilty to a term of imprisonment of nine months, suspended immediately, with an operational period of 18 months. [4] The facts surrounding the offending giving rise to each of the sentences are set out in the transcript of the proceedings before the Magistrate on 2 August 2019. Essentially, the complainant was seated in his car at the McDonald’s car park in Woodridge at approximately 1.30 am on 24 February 2019, when he was approached by the appellant and Mr Dobbin, who alighted from their vehicle. He was then threatened by the appellant, who was carrying a pole or a baton, but significantly, Mr Dobbin produced a small, black handgun, pulled the top slide back and pointed it at the complainant. Whereas the appellant accepted the version of events outlined by the prosecutor in the hearing on 2 August 2019, including that his co-offender had pointed a gun at the complainant, Mr Dobbin contested this fact and was sentenced by another Magistrate on 2 October 2019 on the basis that he merely possessed “an item…with intention to cause alarm” and that he pretended “to arm himself with a gun”. It is this issue about the presence or absence of an actual firearm that gives rise to the appeal before me. [5] While the appellant argues that considerations of parity demand that the appeal be allowed and a lesser sentence be imposed upon the appellant, the respondent submits that the disparity between the two sentences can be accounted for by the different factual basis on which the co-offenders were ultimately sentenced. [6] As a starting point, it is necessary to consider what the parity principle means. In Postiglione v R (1997) 189 CLR 295 at 301-302, it was explained in the following terms: “The parity principle… is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowances should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated… however… there should not be a marked disparity which gives rise to “a justifiable sense of grievance”. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.” -- 2 of 3 -- 3 [7] There are however limitations to the applicability of the parity principle. As Morrison JA noted in R v Owen [2015] QCA 46 at [3]: “Mr Owen’s co-offender, Mr Whatley was fortunate to be sentenced by a learned magistrate who was not told all the relevant facts, and specifically, not the value of the damage caused. However that error occurred, it was an error of fact and has the result that there are significantly different circumstances between the two co-offenders. Those differences are reflected in the sentences, with the result that one is not comparing like with like.” [8] His Honour subsequently emphasised at [15] that “the parity principle applies where there is a “justifiable sense of grievance”. There could not be a justifiable sense of grievance once it is known that one decision was affected by error of law”. [9] The circumstances before me are that the appellant did not contest that his co-offender had produced a firearm when he fell to be sentenced. On the other hand, Mr Dobin did. No application has been brought to adduce further evidence or in any way seek to vary the facts which were placed before the learned magistrate below by the police prosecutor, in circumstances where the appellant was legally represented. As noted above, to the credit of Ms Bowie who appears on behalf of the appellant, it is conceded that the sentence imposed was not manifestly excessive of itself. The result is that the appellant has been sentenced on facts he admits are true and correct, but which are materially different to those admitted by his co-offender, Mr Dobin. The differences; namely the circumstances surrounding the weapon produced by Mr Dobin are reflected in the different sentences. To point a real firearm at someone and threaten with it is a much more serious scenario than to pretend to do so. Accordingly, I am not comparing like with like and I find that there is no justifiable sense of grievance, where the appellant, with legal advice, pleaded guilty to a factual scenario, which led to an appropriate exercise of the sentencing discretion by the learned magistrate below. [10] I dismiss the appeal. -- 3 of 3 --