BHN v Queensland Police Service [2019] QDC 129

DISTRICT COURT OF QUEENSLAND CITATION: BHN v Queensland Police Service [2019] QDC 129 PARTIES: BHN (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO/S: APPEAL NO: 186/18 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Cairns DELIVERED ON: 11 February 2019 DELIVERED AT: Cairns HEARING DATE: 11 February 2019 JUDGE: Morzone QC DCJ ORDER: 1. Appeal allowed. 2. The sentence and orders made on 19 September 2018 by the Magistrates Court in Cairns are varied by substituting the parole release date of 19 February 2019 in lieu of 21 May 2019. CATCHWORDS: CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 (Qld) – appeal against sentence – contravention of Domestic Violence Order (aggravated offence) – accession of head sentence – whether error in setting the parole release date of one third of the term of imprisonment – whether sufficient regard to the period of imprisonment when setting date 8 months from date of sentence – whether sentence manifestly excessive. Legislation Justices Act 1886 (Qld) s 222, s 223(1) & 227 Penalties and Sentences Act 1992 -- 1 of 7 -- 2 Cases Allesch v Maunz (2000) 203 CLR 172 Fox v Percy (2003) 214 CLR 118 House v The King (1936) 55 CLR 499 Kentwell v R (2014) 252 CLR 601 LJS v Sweeney [2017] QDC 18 R v Mohammed [2018] QCA 289 RJD v Queensland Police Service [2018] QDC 147 The Queen v Baker [2011] QCA 104 The Queen v Beattie, ex parte Attorney-General (Qld) [2014] QCA 206 at [19]. COUNSEL: J Trevino for the Appellant SOLICITORS: Cuthbertson & Co Lawyers for the Appellant The Office of Director of Public Prosecutions for the respondent [1] On 19 September 2018 the appellant was convicted after pleading guilty in the Magistrates Court held in Cairns, of one charge of contravention of domestic violence order (aggravated offence). He was sentenced to 2 years’ imprisonment with a parole release date set at 21 May 2019. [2] The appellant now appeals his sentence. [3] Both parties provided outlines of argument, and made further submissions on the hearing of the appeal, which I have considered. Background [4] On 15 June 2017 a protection order was made against the appellant for the protection of his partner, the complainant, which requiring him to be of good behaviour and not commit acts of domestic violence against her. [5] The appellant breached the order on 19 May 2018 when he assaulted the complainant by punching her in the stomach, slapping her on the chin and biting her hand. The complainant suffered bruising to her stomach and a scratch on her hand. The violence occurred during a drunken argument at the complainant’s home. As the appellant tried to leave the home, the complainant grabbed his bag containing his ankle bracelet charger, and she refused to give it back in circumstances where it was a condition of the appellant’s parole that he wear an ankle bracelet device. The enraged appellant then perpetrated the offending violence on the complainant. [6] The index offending was committed while the appellant was on parole for two earlier offences committed on 22 October 2017 for contravening the same protection order. On 5 December 2017 the appellant was sentenced for those earlier offences to 6 months’ imprisonment with a parole eligibility date of 22 December 2017. He was released on parole pursuant to that order on 12 April 2018, but as a result of the commission of the index his parole was suspended and -- 2 of 7 -- 3 he was returned to custody on 22 May 2018. The full-time expiry of that sentence being 20 August 2018, but was remanded pending the sentence. [7] The complainant made a formal complaint to police a couple of days after the incident. On 22 May 2018, the appellant was arrested and taken to the Cairns watch house for questioning. He participated in a record of interview in which he made admissions to his offending. [8] The appellant was 48 at the time of the offence and 49 at sentence. He had an extensive and relevant criminal history; predominately for offences of violence, having been sentenced to terms of imprisonment on 18 previous occasions. Significantly, included within his extensive history of violence were 16 previous convictions for contraventions of a domestic violence order, nine of those within the last five years of the date of sentence. [9] The appellant and the complainant were not living together at the time of the offence. Their relationship was described as a dysfunctional one that had been “on and off” for the last 10 years. The complainant had the care and custody of their three young children and the appellant had attended upon her residence on the day of the offence for the purposes of contact with them. [10] The appellant, a Torres Strait Islander man, had little formal education, leaving school after year 8. He had some work history in landscaping but had not had any employment in more recent times. He was born on Thursday Island but raised in Bamaga by his grandparents. He later moved to the Cairns region upon the passing of his grandparents. [11] At sentence, the prosecutor submitted that a head sentence of 18 months to two years was within range, relying on LJS v Sweeney [2017] QDC 18 and RJD v Queensland Police Service [2018] QDC 147. She made no submission directed to the appellant’s release on parole and did not seek any extension or amendment to the protection order (which will remain in place until 15 June 2022). [12] The appellant’s solicitor tendered a hand-written letter of apology to the complainant signed by the appellant (Exhibit 4) and submitted that by its terms the appellant had accepted full responsibility for the offence and acknowledged that he had a “very serious drinking problem.” She emphasized his early plea of guilty and co-operation and submitted for a sentence of between 12 and 18 months’ imprisonment with parole release after a third of that sentence had been served. [13] In his sentencing remarks of 19 September 2018, the learned Magistrate observed the relevant pertinent factors: 1. The offending was a “serious assault” involving “significant violence”; 2. There were a number of aggravating features, the most significant being that the offence was committed whilst on parole for a similar offence involving the same complainant; 3. The appellant made admissions in a record of interview and accepted that the appellant had entered an early plea, which were both matters “that ought be taken into account to reduce ... the penalty that would otherwise be imposed”; 4. The letter of apology but ultimately did not accept that the appellant was genuinely remorseful because he had a significant criminal history of similar offending, stating that “In the context of the weight to be given to your remorse and contrition, noting the written apology, proper consideration needs to be given, however, to your criminal history. That is, whilst now faced with the consequence of, again, being sentenced to a -- 3 of 7 -- 4 significant period of imprisonment for a contravention of a protection order, you proffer an apology. An examination of your conduct – certainly, your conduct in the last five years, which would appear to have seen you convicted and sentenced to imprisonment in relation to nine contraventions of a protection order – you – that provides little comfort that you have any genuine remorse;’ 5. The appellant did not have the benefit of youth and that there was “no suggestion of any medical or psychiatric conditions relevant;’ 6. Assessed that the appellant’s prospects of rehabilitation “couldn’t be placed as strong’; 7. The complainant was entitled to expect the imposition of “appropriately condign punishments where, as is the case with you, you have been a recidivist offender;’ 8. Considered that LJS v Sweeney [2017] QDC 18 (two year head sentence) and RJD v Queensland Police Service [2018] QDC 147 (18 month head sentence) were less serious as the offending in those cases did not involve any injury and the offending here involved a bite and the appellant had a more serious criminal history; 9. The appellant had bitten the complainant “like a dog”; 10. The appellant had demonstrated a continued disobedience of the law warranting the imposition of a more severe penalty; 11. He would fix a parole date that would see the appellant serve one third of the head sentence. [14] His Honour then sentenced the appellant for the charge of contravention of a domestic violence order (aggravated offence) to two years’ imprisonment. He declared that twenty-nine days of presentence custody from 21 August and 18 September 2018 was time already served, and set the parole release date of 21 May 2019. Grounds of Appeal [15] The appellant appeals against the sentence on the grounds that it is manifestly excessive by reason of the parole release date. Mode of Appeal [16] The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld). Pursuant to section 223 of the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave. [17] For such an appeal by way of rehearing “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.”1 [18] The rehearing requires this court to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case.2 1 Allesch v Maunz (2000) 203 CLR 172, [22] – [23] followed in Teelow v Commissioner of Police [2009] QCA 84, [4]; White v Commissioner of Police [2014] QCA 121, [8], McDonald v Queensland Police Service [2017] QCA 255, [47]; contrast Forrest v Commissioner of Police [2017] QCA 132, 5. 2 Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, 5 and McDonald v Queensland Police Service [2017] QCA 255, [47]. -- 4 of 7 -- 5 [19] Its function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings. In doing so it ought pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the magistrate’s view.3 Appeal against Sentence [20] This court ought not interfere with a sentence unless it is manifestly excessive, it is vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice. A mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.4 [21] The High Court held in House v. The King5 that: “It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” [22] The High Court in Kentwell v R6 held: “In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.” [23] The decisions distinguished cases of specific error and manifest excess. Once an appellate court identifies a specific error, the sentence must be set aside and the appellate court must exercise the sentencing discretion afresh, unless, in that separate and independent exercise it concludes that no different sentence should be passed. By contrast, an error may not be discernible; but the sentence is manifestly excessive as being too heavy and lies outside the 3 White v Commissioner of Police [2014] QCA 12, [5]-[8]; Forrest v Commissioner of Police [2017] QCA 132, 5 & 6; McDonald v Queensland Police Service [2017] QCA 255, [47]. 4 House v The King (1936) 55 CLR 499, 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176-178; Norbis v Norbis (1986) 161 CLR 513, 517-519 5 (1936) 55 CLR 499, 504 and 505 6 Kentwell v R (2014) 252 CLR 601, [35], adopting AB v R (1999) 198 CLR 111, [130] per Hayne J (minority). -- 5 of 7 -- 6 permissible range. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed. Manifestly Excessive [24] The appellant argues that the sentence was manifestly excessive caused by an error in setting the appellant’s parole release date. [25] Notwithstanding the learned magistrate’s vocalised intention and reasoning, as it transpired His Honour set the parole release at 9 months from the effective start of the sentence being more than one third of the head sentence being 8 months from the date of sentence. It is now well settled that there is and ought not be a fetter of the sentencing judge’s discretion in setting a parole release date at or about one-third. It could be more or less. [26] But of particular relevance here is the requirement to set a parole eligibility date in accordance with s 160F of the PSA, which provides (with my bolding): “(1) One of the objects of sections 160A to 160E is to ensure that at any one time there is only one parole release date or parole eligibility date in existence for an offender. (2) When fixing a date under this division as the date an offender is to be released on parole or is to be eligible for release on parole, the date fixed by the court must be a date relating to the offender’s period of imprisonment as opposed to a particular term of imprisonment.” [27] The respondent properly concedes that the learned magistrate erred in setting the appellant’s parole release date. Pursuant to s 160F(2) of the Penalties and Sentences Act 1992 the learned Magistrate was required to fix the appellant’s parole release by reference to the appellant’s total period of imprisonment.7 That total period of imprisonment as at the date of sentence was two years and three months from his return to custody on 22 May 2018. By the time of sentence that meant that the appellant had already been in custody for four months, of which 29 days was declared as time served from 21 August 2018. [28] Section 160F of the PSA requires that there only be 1 parole eligibility or release date and that date must relate to the offender’s period of imprisonment, as opposed to a particular term of imprisonment. “Period of imprisonment” is the unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment, whether to be served cumulatively or concurrently, and includes the “term of imprisonment” a court is imposing at the time of sentence. Even though the appellant served out his pre-existing sentence upon returning to custody, is nevertheless forms part of the unbroken duration of appellant’s imprisonment. [29] In this way, the extension of the totality principle is engaged as explained in The Queen v Beattie, ex parte Attorney-General (Qld)8 by Philip McMurdo J (as he then was) as follows: “The principle has also been extended in the sentencing of an offender who is then serving an existing sentence. In such a case, ‘the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents 7 R v Mohammed [2018] QCA 289 8 The Queen v Beattie, ex parte Attorney-General (Qld) [2014] QCA 206 at [19]. -- 6 of 7 -- 7 the totality of criminality involved in all of the offences to which that total period is attributable’. [30] It is also evident that the learned magistrate proposed to set the parole release date at the notionally one-third mark of the term of imprisonment, but His Honour simply failed to bring the pre-sentence custody into account, and failed to have sufficient regard to the period of imprisonment. [31] It seems to me that the learned magistrate’s failure to explicitly consider the aggregate sentence in order to determine whether a total sentence is just and appropriate bespeaks an error in the exercise of the sentencing discretion.9 It is regretful that the matter was not revisited when drawn to his Honour’s attention immediately after pronouncement, but such are the rigors of that very busy court [32] In those circumstances, this Court is required to allow the appeal and to re-exercise the sentencing discretion. [33] In doing so, I have no hesitation joining in the observations made by the learned magistrate in the sentencing remarks, save that the offending ought not be characterised as being more serious nature than that in both LJS v Sweeney and RJD v Queensland Police Service. However, those two cases amply justified the head sentence imposed, which is not challenged in this appeal. [34] The focus is on the appropriate time to set the parole release date. [35] The appellant submits that in order to give sufficient weight to the appellant’s plea of guilty and co-operation, taking account of the time that the appellant had already spent in custody should have resulted in a parole release date set a further five months from the date of sentence on 19 February 2019. By contrast, the respondent submits that the parole eligibility date ought to be more precisely 21 February 2019. [36] In the circumstances of this case, it seems to me that the appropriate time in actual custody does not warrant any more than one-third or 273 days of the period of imprisonment being 19 February 2018, and I will vary the sentence and orders accordingly. Conclusion [37] For these reasons, in my respectful view, the trial magistrate erred in exercising the sentencing discretion by acting upon a wrong principle, and thereby failing to take into account the material considerations of the period of imprisonment when setting the parole release date. [38] I allow the appeal, and order that the sentence and orders made on 19 September 2018 by the Magistrates Court in Cairns be varied by substituting the parole release date of 19 February 2019 in lieu of 21 May 2019. Judge Morzone QC 9 The Queen v Baker [2011] QCA 104 at [47] Atkinson J (with whom the President and Lyons J agreed), affirmed by The Queen v Kendrick [2015] QCA 27 at [54]. -- 7 of 7 --