Broederlow v Commissioner of Police (No 2) [2019] QDC 241

DISTRICT COURT OF QUEENSLAND CITATION: Broederlow v Commissioner of Police (No 2) [2019] QDC 241 PARTIES: ETHAN SHANE BROEDERLOW (Appellant) v COMMISSIONER OF POLICE (Respondent) FILE NO/S: 1261/19 DIVISION: Civil PROCEEDING: 222 Appeal ORIGINATING COURT: Magistrates Court at Beenleigh DELIVERED ON: 29 November 2019 DELIVERED AT: District Court at Beenleigh HEARING DATE: 21 November 2019 JUDGE: Chowdhury DCJ ORDER: 1. The sentence of 12 months imprisonment to be served wholly in a corrective services facility on the charge of unlawful possession of a Category H weapon is set aside 2. The appellant is sentenced to 2 years probation for the offence of unlawful possession of a category H weapon. The appellant is further ordered to report to the Logan Central Office of Probation and Parole within 1 business day from the delivery of this judgment. 3. A conviction is to be recorded for the offence. 4. In respect of the activated suspended sentences of imprisonment of 2 months and 6 months imposed on 15 May 2018 in the Beenleigh Magistrates Court, the appellant is to be released on parole on the date of this order. I request the appellant’s lawyers to advise him of the conditions of parole, and that if he fails to report on parole in accordance with this order he is deemed to be in breach of parole and a warrant may issue for his arrest. The appellant is to report within 1 business day from the delivery of this judgment to the Logan Central Office of Probation and Parole. -- 1 of 6 -- 2 5. In respect of the sentence of 9 months imprisonment imposed on the offence of entering premises with intent to commit an indictable offence, that sentence is varied by ordering that the appellant be released on court ordered parole after serving 112 days imprisonment. I request the appellant’s lawyers to advise him of the conditions of parole, and that if he fails to report on parole in accordance with this order he is deemed to be in breach of parole and a warrant may issue for his arrest. The appellant is to report within 1 business day from the delivery of this judgment to the Logan Central office of Probation and Parole. 6. All other orders of the learned Magistrate remain. CATCHWORDS: APPEAL FROM MAGISTRATE – MANDATORY MINIMUM SENTENCING - s 222 Justices Act 1886 (Qld) – ss 50(1)(c)(i) and 50(1)(d)(iii) Weapons Act 1990 (Qld) - Whether Magistrate erred in finding that probation is not an available sentencing option Justices Act 1886 (Qld) s 222, s 225 Weapons Act 1990 (Qld) s 50(1)(c)(i), s 50(1)(d)(iii) Broederlow v Commissioner of Police [2019] QDC 228 COUNSEL: K. Juhasz for the applicant M. Le Grand for the respondent SOLICITORS: Guest Lawyers for the applicant Office of the Director of Public Prosecutions for the Queensland Police Service for the respondent [2] Following my judgment in Broederlow v Commissioner of Police [2019] QDC 228,1 the parties were heard on what consequential orders should be made. While I have the power under s 225(2) Justices Act 1886 to set aside the sentence imposed on the offence of unlawful possession of a category H weapon, contrary to s 50(1)(c)(i) Weapons Act 1990 and to remit the matter to the original sentencing Magistrate or any other Magistrate with directions to resentence the appellant in accordance with my judgment, both parties agreed that I should simply exercise my power under s 225(1) Justices Act 1886. 1 On reflection I should also have referred to R v Stipendiary Magistrate ex parte Kornhauser [1992] 2 Qd R 150 in my judgment. Shepherdson J considered the hierarchy of courts from a decision of a Magistrate particularly at 155-157. Williams J, with whom Ambrose J agreed on the question, said at 167 it was not necessary to determine it to decide the appeal. Shepherdson J's comments now have to be viewed in light of the repeal of s 209 Justices Act 1886. -- 2 of 6 -- 3 [3] Since the hearing of the appeal the transcript of the learned Magistrate’s sentencing remarks has been obtained and provided to the parties. Relevantly, the Magistrate said the following: “His pleas of guilty to all but one of the above charges generate a breach of suspended sentence – or two breaches of suspended sentences of two and six months respectively, imposed in the Magistrates Court at Beenleigh on the 15th of May 2018. The factual bases of all of the offences is contained in exhibit 1. A sentencing factual schedule to which there has been no dispute. The offending ranges between the 10th of May 2018 and the 22nd of December 2018 when the defendant was remanded in custody. Exhibit 6 is a presentence custody certificate which states that the defendant has spent 109 days in presentence custody since that day, all of which is declarable as presentence custody. Indeed, this is the first time that he has spent any real time in prison. The offending is not particularly serious in itself. The break and enter charges somewhat unusually involved the entry of the defendant and a co-accused into a property to steal a kayak. They were interrupted by others who stole their motor vehicle keys and they desisted with the stealing. The three disqualified driving charges are arguably the most serious matters because the defendant has an appalling traffic history, including five previous disqualified driving convictions and four previous unlicensed driving convictions, and is already disqualified until the year 2021 from driving. The offence which has the most draconian consequences for the defendant, however, is the possession of the shortened firearm in a public place. A circumstance of aggravation, pursuant to which s 50(1)(d)(iii) of the Weapons Act requires a mandatory sentence. The firearm was rudimentary in its construction, but clearly, from the photographic exhibits, a short firearm. In a preliminary ruling, I have already found this court is bound to sentence the defendant to the mandatory 12 months imprisonment to be served wholly in a correctional services facility. That judgment has been part-delivered and will be published shortly. The defendant has a concerning criminal history. His offending breaches two suspended sentences. He has been previously placed on probation twice for drugs and Weapons Act offences in 2016, and some of these offences breach a two year probation order from July 2016. Arguably, he might be not suitable – a suitable candidate for future community- based order. However, there are a number of factors in his favour: first, his pleas of guilty; second, his cooperation with the authorities, in particular, his ready acknowledgement of the possession of the shortened firearm secreted in his motor vehicle. It is certainly not the case of a -- 3 of 6 -- 4 possession of a handgun in the view of the public – brandished in view of the public, I should say. Third, a comprehensive report from Dr Paul Bowden, a clinical psychologist, has provided a detailed insight into the dysfunctional teenage years of the defendant, despite his coming from a seemingly privileged and stable home. His learning problems, presumably in a family and social context of high academic and career achievement, and other traumatic events in his teenage years have left him vulnerable to psychological problems and substance abuse. Dr Bowden diagnosed, inter alia, a major depressive disorder, substance abuse disorders and a provisional diagnosis of a post- traumatic stress disorder. It is clear that Dr Bowden’s expert opinion is that the defendant will struggle more than an able minded prisoner with the stressors of prison life. To that end, the defendant has already been a victim of a series of assaults whilst in custody and has been placed in isolation where he has had limited access to a number of niceties – I use that word advisedly – such as television and social access to other prisoners. Dr Bowden nominated three factors that would serve to reduce his chances of reoffending. First, the first time prison experience for the defendant has had a salient effect on him, hopefully motivating him as a factor not to return to prison; second, the last 109 days or so have separated the defendant from his drug-using associates and his own drug use; third, the defendant has a positive family support which has developed further since his incarceration and includes his parenting of a 2 year old boy; fourth, and perhaps most encouragingly, the defendant has access to immediate employment from his – on his release from custody. The principles in R v Verdins (2007) 16 VR – or 169 A Crim R at page 581 – demand that rehabilitation be the foremost in such circumstances and less so general and personal deterrence, which are clearly apposite here. I’ve not been referred specifically to any comparable – sorry. I am not going to refer specifically to any comparable authorities on disqualified driving. The prosecution has submitted that a global sentence of 18 months imprisonment would be open, and this is not really in contest. I agree that 18 months might be the appropriate starting point, but I regard it as at the very extent of an appropriate sentence. It is critical that the defendant be sentenced on what is before the Court – rather than his trip – his concerning criminal and traffic history. I refer specifically to section 9 subsection (11) of the Penalties and Sentences Act, which – where section 10 refers to the aggravating factors of a serious criminal history. Despite section 10, the sentence imposed must not be disproportionate to the gravity of the current offence. That is, of course, consistent with Common Law authorities such as Veen (No 2) v R from HCA. Given all the mitigating factors, I will exercise my discretion of the Court to make – to not make the fully activated suspended sentence -- 4 of 6 -- 5 cumulative. I should say I would have structured a sentence that would provide for the defendant’s release today on parole for the balance of the 12 – for the balance of the 12 month sentence followed by a further year, that is, 2 years probation on concurrent sentences. However, s 50(1)(d)(iii) of the Weapons Act, on which I have already ruled, mandates a 12 month term of imprisonment with a parole release date on the very last date. Because the prisoner can only have one parole date for all offences served in imprisonment, he must serve all of the 12 months before his release.” [4] It is clear that the learned Magistrate would have placed the appellant on a two year probation order for some offences together with release on parole after serving 112 days for the balance of a 12 month sentence were it not for his view of having to impose the minimum sentence of imprisonment. Both parties submitted that it would be appropriate for me to set aside the sentence of 12 months imprisonment for that offence and resentence the appellant to 2 years probation. [5] The learned Magistrate declared a period of 112 days from 22 December 2018 to 11 April 2019 as time served under the sentences of imprisonment. That period would not apply to the activated suspended terms of imprisonment. [6] I have received written confirmation from the appellant’s lawyers that the conditions of probation have been explained to him, and that the consequences of breaching probation have also been explained to him. I further request that the lawyers explain to the appellant that the probation order can be amended or revoked upon the appellant’s application, the application of the Director of Public Prosecutions or by an authorised corrective services officer. Having received written confirmation from the appellant that he is willing to comply with a 2 year probation order, I make the following further orders: 1. The sentence of 12 months imprisonment to be served wholly in a corrective services facility on the charge of unlawful possession of a Category H weapon is set aside 2. The appellant is sentenced to 2 years probation for the offence of unlawful possession of a category H weapon. The appellant is further ordered to report to the Logan Central Office of Probation and Parole within 1 business day from the delivery of this judgment. 3. A conviction is to be recorded for the offence. 4. In respect of the activated suspended sentences of imprisonment of 2 months and 6 months imposed on 15 May 2018 in the Beenleigh Magistrates Court, the appellant is to be released on parole on the date of this order. I request the appellant’s lawyers to advise him of the conditions of parole, and that if he fails to report on parole in accordance with this order he is deemed to be in breach of parole and a warrant may issue for his arrest. The appellant is to report within 1 business day from the delivery of this judgment to the Logan Central Office of Probation and Parole. 5. In respect of the sentence of 9 months imprisonment imposed on the offence of entering premises with intent to commit an indictable offence, that sentence is varied by ordering that the appellant be released on court ordered parole after serving 112 days imprisonment. I request the appellant’s lawyers to advise him of the conditions of parole, and that if he fails to report on parole in accordance with this order he is deemed to be in breach of parole and a -- 5 of 6 -- 6 warrant may issue for his arrest. The appellant is to report within 1 business day from the delivery of this judgment to the Logan Central office of Probation and Parole. 6. All other orders of the learned Magistrate remain. -- 6 of 6 --