BAB v Commissioner of Police [2019] QDC 118

DISTRICT COURT OF QUEENSLAND CITATION: BAB v Commissioner of Police [2019] QDC 118 PARTIES: BAB (appellant) v THE COMMISSIONER OF POLICE (respondent) FILE NO: D156/18 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Maroochydore Hillan A/M DELIVERED EX TEMPORE ON: 21 June 2019 DELIVERED AT: Maroochydore HEARING DATE: 21 June 2019 JUDGE: Cash QC DCJ ORDERS: 1. The appeal is allowed. 2. Set aside the sentence imposed for the offence of assault occasioning bodily harm. 3. Instead, the appellant is sentenced to imprisonment for 18 months to be served cumulatively upon the sentence imposed in the Maroochydore Magistrates Court on 3 May 2018. 4. Set aside the parole eligibility date of 2 August 2022. 5. Instead, order that the appellant be eligible for release on parole on 13 December 2019. 6. Otherwise, the orders of the magistrate are confirmed. 7. The respondent pay the appellant’s costs according to the scale amounts. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – ERROR OF LAW – FAILURE TO GIVE REASONS - s 222 Justices Act – where the appellant was convicted of a series of offences committed while on parole – where there was a requirement for cumulative sentence – where the appellant was purportedly sentenced to partially cumulative term of imprisonment – where the appellant’s parole eligibility date was more than half of the overall period -- 1 of 5 -- 2 of imprisonment – whether the Magistrate erred in not inviting submissions or giving reasons for postponing parole eligibility. Justices Act 1886 (Qld) ss 222, 223 Penalties and Sentences Act 1992 (Qld) ss 156, 156A House v The King (1936) 55 CLR 499 R v Kitson [2008] QCA 86, [17] COUNSEL: J Wallace (Solicitor) for the appellant A Nikolic for the respondent SOLICITORS: Wallace O’Hagan Lawyers for the appellant Office of the Director of Public Prosecutions for the respondent Introduction [1] On 27 September 2018 the appellant appeared before an acting magistrate at Maroochydore in relation to eight offences. He pleaded guilty and was sentenced. Various terms of imprisonment were imposed, some of them cumulative upon a sentence of imprisonment of three years the appellant was already serving. [2] The magistrate set a new parole eligibility date. The date set was more than two-thirds of the overall period of imprisonment the appellant is liable to serve. The appellant appeals against the severity of the sentence. There is no satisfactory explanation for the unusual order deferring his parole eligibility and, for the following reasons, the appeal should be allowed and the appellant resentenced. Details of the offences [3] The eight offences committed by the appellant fell into two groups. Early in the morning of 4 May 2018 the appellant went to the home of the complainant, his estranged partner. He knocked on the door, waking her, and stated, “It’s the police.” This was an offence of assuming the designation of a police officer. The complainant opened the door, saw it was the appellant and closed the door immediately. The presence of the defendant at her home constituted a breach of an existing domestic violence protection order. This was an offence of contravening a domestic violence order, an aggravated offence. [4] On the morning of 9 June 2018 the appellant attended the complainant’s home. He was told to leave by the complainant’s son. The appellant’s presence constituted a breach of an existing domestic violence protection order and this was a further offence. The appellant returned, again, around lunchtime and committed another offence of contravening a domestic violence order. Later that afternoon the complainant was at the appellant’s home, at his request, to assist him with medical issues. The appellant became angry and threatened to “gut” her. This was another contravention of the domestic violence protection order. [5] The complainant called the police on her telephone. As she did so the appellant took the phone, ended the call and grabbed the complainant by her hair. He held her to the ground and thrust her head forward, causing it to strike the floor forcefully. This was an offence of assault occasioning bodily harm. He twisted her arm behind her back and pulled the complainant up and pushed her toward the door. Before the -- 2 of 5 -- 3 complainant left, the appellant stole $50 and some cigarettes from her bag. This was an offence of stealing. The appellant shoved her outside causing her to fall to her knees. After the complainant left, the defendant broke her phone and threw it in the backyard. This was an offence of wilful damage. [6] On 14 June 2018 the appellant was arrested and refused to be interviewed. The appellant’s antecedents [7] The appellant was 42 when he committed the offences. He had a substantial and relevant criminal history. The appellant had previously breached a domestic violence protection order, committed offences of violence and been imprisoned. Most relevantly, on 3 May 2018, the day before the first offences, the appellant appeared before a magistrate at Maroochydore. He pleaded guilty to an offence of breaking and entering premises and stealing and an offence of unlawful use of a motor vehicle. He was sentenced to imprisonment for three years but was ordered to be released immediately on parole. Within hours, he reoffended. [8] When the appellant came to be sentenced in September 2018 he was serving this sentence. The fulltime discharge date of the sentence is around May 2021 or perhaps a month later, taking into account time at large. The sentences imposed [9] The magistrate imposed the following sentences: for assuming the designation of a police officer, a fine of $900; for the contravention of the domestic violence protection order on 4 May 2018, six months’ imprisonment; for contravening the order in the morning of 9 June 2018, 15 months’ imprisonment cumulative upon the sentence of three years from 3 May 2018; for the contravention of the domestic violence protection order at lunchtime on 9 June 2018, 15 months’ imprisonment also cumulative; for contravening the domestic violence protection order later on 9 June 2018, 15 months’ imprisonment also cumulative; for the assault occasioning bodily harm, two and a-half years’ imprisonment but the magistrate purported to make 15 months of that sentence cumulative; for the stealing offence, six months’ imprisonment; and for the wilful damage, six months’ imprisonment and $299 compensation. [10] Four days pre-sentence custody was declared as time already served under the sentences imposed and the magistrate fixed the day on which the appellant was to be eligible for parole as 2 August 2022. [11] The effect of the orders the magistrate made, as given effect in the verdict and judgment record, are as follows: the appellant faced a total period of imprisonment of three years plus 15 months. That is, four years and three months. This period commenced on 3 May 2018 and, on my calculations, would not end until midnight on 2 August 2022, the day which the magistrate actually fixed for the appellant to become eligible for release on parole. On that basis, the appellant is required to serve all of the sentences imposed in May and September 2018. [12] It may be that what the magistrate thought he was doing was to make the sentence of 30 months imprisonment for the assault cumulative but only to the extent of 15 months of that sentence. Such an order seems clearly contrary to the language of section 156 -- 3 of 5 -- 4 and 156A of the Penalties and Sentences Act. If that is what was intended, the effect would have been an overall period of imprisonment of five years and six months commencing from 3 May 2018. The fulltime discharge date of such a sentence would be 2 November 2023. The parole eligibility date of 2 August 2022 is four years and three months into this period or close to 80 per cent of that period. The magistrate gave no reasons for so dramatically postponing the parole eligibility date and did not invite submissions on the topic before passing sentence. Principles applicable to the appeal [13] The appellant appeals pursuant to section 222 of the Justices Act 1886. Pursuant to section 223 of that Act, the appeal is by way of rehearing on the evidence given in the proceedings before the magistrate and any further evidence admitted with leave. I am required to conduct a real review of the evidence before the magistrate and the magistrate’s reasons for imposing the sentences he did to determine whether there has been error. As this is an appeal against the exercise of the sentencing discretion, it must be determined in accordance with the well know principles in House v The King [1936] 55 CLR 499. If I find the magistrate acted upon a wrong principle, took into account irrelevant matters, failed to take into account relevant matters or mistook the facts, then I can exercise the sentencing discretion afresh. Consideration [14] In my view, the magistrate committed two clear errors. The first is that he either failed entirely, or failed to properly, make the sentence for assault occasioning bodily harm cumulative upon the sentence imposed on the appellant in May 2018, as he was required to do by section 156A of the Penalties and Sentences Act. To comply with that section, the magistrate was required to order the sentence be served cumulatively with any other term of imprisonment the offender is liable to serve. He did not do so. [15] In addition, it is well recognised that it is unusual to fix a parole eligibility point at a date later than halfway through the period of imprisonment. If this is to be done, it is necessary to give reasons why such an order is appropriate. As Justice Fraser said in R v Kitson [2008] QCA 86 at [17]: “[W]here the applicant has a claim upon the discretion for an order that he be released after serving less than half of the head sentence in view of his plea of guilty and personal circumstances, a parole release date which is significantly beyond the midpoint of the head sentence is very unusual... If such an unusual order is to be made, in my opinion the duty to give reasons requires that the sentencing remarks explain the process of reasoning underlying it.” [16] The magistrate gave no reasons for this unusual order and did not invite submissions on the topic. For these reasons, the sentences imposed must be set aside and it is appropriate to exercise the sentencing discretion afresh. [17] As the magistrate properly identified, the offences committed by the appellant were very serious. His conduct was all the more appalling because he reoffended within hours of being extended the leniency of immediate release on parole. The legislation required that any term of imprisonment imposed for the offence of assault occasioning bodily harm be served cumulatively. Principle required caution to avoid an overall sentence that was disproportionate to the gravity of the appellant’s offending. -- 4 of 5 -- 5 [18] In my view, an overall period of imprisonment of four and a-half years is appropriate to reflect the offending. That will be achieved by setting aside the sentence imposed for the assault occasioning bodily harm and, instead, sentencing the appellant to imprisonment for 18 months, which will be ordered to be served cumulatively upon the sentence imposed in the Maroochydore Magistrates Court on 3 May 2018. The parole eligibility date will also be set aside and, instead, the appellant will be ordered to be eligible for parole on 13 December 2019. That reflects a period of 18 months from when the appellant was taken back into custody and reflects, in rough terms, about a third of the overall sentence which he might be liable to serve. [19] The orders then will be: 1. The appeal is allowed. 2. Set aside the sentence imposed for the offence of assault occasioning bodily harm. 3. Instead, the appellant is sentenced to imprisonment for 18 months to be served cumulatively upon the sentence imposed in the Maroochydore Magistrates Court on 3 May 2018. 4. Set aside the parole eligibility date of 2 August 2022. 5. Instead, order that the appellant be eligible for release on parole on 13 December 2019. 6. Otherwise, the orders of the magistrate are confirmed. 7. The respondent pay the appellant’s costs according to the scale amounts. -- 5 of 5 --