Allen v Commissioner of Police [2019] QDC 34

DISTRICT COURT OF QUEENSLAND CITATION: Allen v Commissioner of Police [2019] QDC 34 PARTIES: MELISSA JANE ALLEN (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: PROCEEDING: Section 222 Appeal ORIGINATING COURT: Magistrates Court, Gladstone DELIVERED ON: Ex tempore reasons given 31 January 2019 DELIVERED AT: Rockhampton HEARING DATE: 31 January 2019 JUDGE: Horneman-Wren SC, DCJ ORDER: 1. Appeal against sentence allowed; 2. Sentence imposed in Gladstone Magistrate Court set aside 3. Resentenced on original charges CATCHWORDS: MAGISTRATES – APPEAL AGAINST CONVICTION – s 222 JUSTICES ACT 1886 – where the appellant was sentenced on 31 charges after pleading guilty – where the appellant appeals on the basis that the head sentence and subsequent concurrent sentences were manifestly excessive – whether the learned Magistrate erred in their calculation of Pre-Sentence Custody – whether the learned Magistrate erred in exercising their sentencing discretion – s9(2); s13(1); Penalties and Sentence Act 1992 (Qld) – weather the learned Magistrate erred in their consideration of parity with the co- offender. CASES: House v The King [1936] 55 CLR 499 R v Howie [2009] QCA 50 LEGISLATION: Justices Act 1886 (Qld) Criminal Code 1899 (Qld) Penalties and Sentences Act 1992 (Qld) COUNSEL: Mr S Moon for the appellant Mr E Fleetwood for the respondent -- 1 of 9 -- 2 SOLICITORS: Legal Aid Queensland Office of the Director of Public Prosecutions for the respondent -- 2 of 9 -- 3 HIS HONOUR: On 5 October 2018, the appellant, Melissa Jane Allen, pleaded guilty to 31 charges in the Magistrates Court at Gladstone. The learned acting magistrate imposed an overall head sentence of 20 months imprisonment, and ordered the prisoner’s release on parole to be fixed at 15 March 2019, representing a period of actual incarceration of approximately six and a-half months. That head sentence was attached to two of the 32 charges, being an attempt to enter premises with intent to commit an indictable offence, and an entry of premises and committing an indictable offence. Lesser concurrent sentences, including one of 18 months, for another entry of premises and committing an indictable offence by break were imposed. For some matters, the appellant was convicted and not further punished. On a number, she was sentenced to 37 days imprisonment which his Honour incorrectly calculated to be the period during which she had already been detained. The appellant appeals against those sentences on the basis that the head sentence, and certain of the other concurrent sentences, were manifestly excessive. In very thorough written submissions, Mr Moon, of counsel, who appears for the appellant, identifies several errors which he submits were committed by the acting magistrate in the exercise of the sentencing discretion. Those errors are: that the acting magistrate failed to consider the appellant’s plea of guilty, in accordance with section 13(1) of the Penalties and Sentences Act 1992; that he failed to consider the appellant’s mitigating circumstances as required by section 9(2), of the Penalties and Sentences Act; that he imposed a sentence that was disproportionate to the gravity of the subject offence; and that he failed to adequately consider parity with the sentence of a co-offender of the appellant’s. That co-offender was a person in a relationship with the appellant at the time. There had been submissions made by the solicitor who appeared for the appellant in the proceedings below that for those offences, for which they were jointly charged, the appellant had effectively simply gone along with her co-offender out of adherence to her relationship with him and thereby became a party to those offences. It should be observed that he was only charged with six of the offences which the appellant was charged with. He did, however, have a worse criminal history. He was sentenced to 18 months imprisonment with parole release at what was described as the end of February. It seems that he had been sentenced earlier on the same day or the previous day. The factual material before the acting magistrate was very limited. Mr Sleath who had appeared for the prosecution provided an outline of submissions. That outline annexed a summary of the charges. It also referred, seemingly separately, to particulars of the offending being detailed in what was described as a schedule of facts. Some reference to a schedule of facts as an extra aid was made by Mr Sleath in the course of the sentencing submissions, but no such document was placed before his Honour. The result being that the only description of the factual circumstances of any of the offending was that which appeared in the annexure under the heading Summary. It may be observed, generally, that what appears in that summary is, in fact, a summary of what constituted the offence, for example, possession of a particular amount of a particular drug, as opposed to any relevant factual -- 3 of 9 -- 4 circumstances in which the offending was said to have occurred or to have been detected. The raft of offences that were being dealt with involved numerous drug offences, including possession, failure to dispose of needles, dishonesty offences, including fraud or attempted fraud, property offences, including receiving tainted property and stealing, driving offences, particularly drug driving. That is merely by way of a summary. Some further factual information was placed before the learned Magistrate by way of submissions made without objection by the solicitor who appeared for the appellant below. Those factual matters cast little, but it must be said not a lot, of light on the factual circumstances surrounding the offending. All the offending that was described by his Honour as being lower end offending. There were, however, a number of matters upon which the appellant’s solicitor addressed the learned acting Magistrate which went to mitigation. Although the appellant had a relevant and substantial criminal history, she had not previously been sentenced to any actual incarceration. As I observed, she had been in prison for some 38 days when the matter was dealt with by way of sentence. Matters raised by her solicitor in mitigation included that since her incarceration, she had taken steps to address her drug addiction, which she admitted in respect of a number of drugs, including heroin, methylamphetamine and cannabis, having first started using drugs when she was 13, when she first started using cannabis. Her solicitor informed the court that since her incarceration, the appellant had had time to reflect on her actions, unaffected by continued substance use, and that she deeply regretted that which she had done. She expressed the appellant’s remorse for her actions. Those expressions of remorse included insight into the fact that the crimes were committed whilst she was in the grip of drug addiction, and it was said on her behalf that since being in prison, she had been putting in place, as best as she was able, strategies with how to cope day to day. Further, she had demonstrated an understanding that if she was going to be released, she needed to use those strategies to abstain from further use of drugs. It was identified that she had an incentive to follow such strategies to remain drug-free. In particular, she hoped to be reunited with the daughter who had been taken from her care as a consequence of her drug use. It was submitted that many of the offences were committed at a time when she was homeless, she and her co-accused having been “kicked out” of the address where they were required to live as part of their bail conditions, and that a number of the offences were committed, essentially, to survive. Although not supported by any particular medical evidence, it was submitted for the appellant that she had been diagnosed with post-traumatic stress disorder arising from an incident in which she had sustained injury resulting in a miscarriage. It was said that she would start counselling for that post-traumatic stress disorder when released from prison. Whilst in custody, she had applied to Narcotics Anonymous -- 4 of 9 -- 5 which she said she would continue upon her release. It was said that she would also participate in a program directed towards opiate addiction, having earlier been on a methadone program. The appellant, who has trained as a barista, had been working in the kitchen upon her initial entry into prison, and more recently in the library. Those were matters of mitigation which ought to have been taken into account in formulating an appropriate sentence. So, too, the matters of parity with the sentence imposed on her co-offender ought to have been taken into account. With great respect to the learned acting Magistrate, who was no doubt discharging the sentencing function in a very busy Court, his Honour’s decision do not demonstrate any reasons by which his Honour came to the sentence imposed. It is apparent from the record that having heard the sentencing submissions, his Honour adjourned for a period of time and then returned to deliver his decision. His decision is, with respect, simply a recital of the particular sentences to be imposed for the particular offences, but without disclosing any reasons as to how that result was arrived at. There is no demonstration of a consideration of any of the mitigating factors, or of the considerations of parity. A consideration of the comments made by his Honour during the sentencing proceedings suggest that his Honour took the approach so as to formulate an overall global sentence of starting from a position of nine months which his Honour then said he was going to “build up to around that mark”, that mark being the sentence of two years which had been submitted for by the Prosecution. There is an absence of any reasons in his Honour’s decision as to how he came to conclude that the end point of 20 months was the appropriate sentence, having been “built up” from a starting point of nine months. A consideration of some of the concurrent sentences imposed does serve to demonstrate, in my view, that those concurrent sentences were themselves excessive and that the view his Honour took of that offending and the appropriate sentences to be imposed for it demonstrate the overall excessiveness of the 20 month head sentence. For example, on one charge relating to possession of 0.5 grams of cannabis, his Honour imposed a concurrent sentence of nine months imprisonment. On another charge of possession of one gram of cannabis, which weight included the bag, his Honour imposed six months imprisonment. Those sentences themselves are, in my view, disproportionate to the gravity of that particular offending. And, as I say, they tend to demonstrate that the overall result was itself excessive. In my view, it has been demonstrated by the appellant that his Honour’s sentencing discretion miscarried, and that his Honour committed error in the exercise of that discretion in the sense referred to in to in House v The King [1936] 55 CLR 499 at 505, particularly as he failed to take into account some material considerations. Furthermore, the absence of reasons give rise to error of the second kind identified in House v The King;, that is, that it does not appear from those reasons how he reached the result embodied in the final sentence, but upon the limited facts before him, the result appears, in my view, unreasonable, leading to the inference that there has been a failure on the acting Magistrate’s part properly to exercise the discretion. -- 5 of 9 -- 6 Error of that kind having been identified, it is appropriate to resentence the appellant. That, of itself, is not an easy exercise for this Court to perform because of the lack of factual detail placed before the Court below. That record has not been supplemented by any further facts on the appeal. In the circumstances, however, it is in my view best for this Court to resentence the appellant, given that she has now already been in prison for in excess of five months. I have considered the authorities which were relied upon by the prosecution below and by Mr Fleetwood, who appears for the respondent today in support of the sentence which was ultimately imposed by his Honour. In particular, it is submitted that the judgment of the Court of Appeal in R v Howie [2009] QCA 50 best demonstrates that a sentence of up to two years imprisonment was in range for this offending, and that the sentence of 20 months imprisonment imposed was not, therefore, excessive. In my view, Howie was a more serious case than this particular case, given what was described by both the prosecution and his Honour as largely low-end offending. In my view, a global sentence of 15 months to reflect the overall criminality of the appellant’s offending over the considerable period over which the offences were committed is appropriate. It is also, in my view, a sentence which maintains parity with the sentences imposed on her co-accused in respect of the most serious of the offending which, on the facts before the court, suggest her involvement was to a lesser degree than that of a co-accused. The appellant has already served more than one third of a 15 month head sentence and her immediate release on parole is, therefore, appropriate. The sentence which I shall impose is also one that will see her supervised in the community for a period of 10 months. That of itself is, in my view, appropriate. There needs to be a further correction made by this court. In sentencing the appellant, the learned acting magistrate deducted one day from the period of time of pre-sentence custody identified in the pre-sentence custody report. That report identified a period of 38 days pre-sentence custody. His Honour, incorrectly, reduced that to 37 days on the basis that it included the day of the sentencing hearing. The day of the hearing ought to have been included in the period, and the period declared 38 days. Now, gentlemen, it seems to me what I need to do is identify – I think there is three sentences that need to be upset. MR MOON: Yes, I believe so. I will just double-check with the – two for 20 months and maybe - - - HIS HONOUR: And the 18 months. MR MOON: - - - the 18 months. I will just get those for your Honour. HIS HONOUR: Now, can I do that by reference to the schedule, the numbers in the schedule? Were they – were they the charge numbers, or do I need to refer -- 6 of 9 -- 7 specifically to the bench charge sheets. I think I will probably do it in the bench charge sheets. MR MOON: To be sure, your Honour. I suspect that they are in line because they are in date order. HIS HONOUR: Yes. MR MOON: But one can’t be certain. HIS HONOUR: Very well. In respect of – so the formal orders will be as follows: (1) allow the appeal; (2) set aside the sentences imposed by the Gladstone Magistrates Court in respect of charge 3 – or charges 3 and 4 – can anyone identify for me the bench charge sheet number? MR MOON: I will just check, your Honour. We’re just checking if we’ve actually got the bench charge sheets. HIS HONOUR: You - - - MR MOON: I see on page 4 of his Honour’s sentencing remarks, the first paragraph, it says: 14 August enter premises. That is on another file: 14 August, convicted and sentenced to 18 months’ imprisonment. 37 days. That is number 24. It must be referring to the schedule. HIS HONOUR: The schedule, I think. MR MOON: Yes. HIS HONOUR: I might - - - MR MOON: It appears we don’t have that – the bench – the bench charge sheets. MR FLEETWOOD: We’ve got the criminal history here, your Honour, which seems to feature the bench charge sheet numbers on page 3. I think that’s the updated criminal history. HIS HONOUR: Yes, I won’t have that. MR FLEETWOOD: If I may hand it up. HIS HONOUR: Yes, thank you. -- 7 of 9 -- 8 MR FLEETWOOD: It was part of an affidavit – I will just – I have made some notations but they have got the bench charge sheet numbers. HIS HONOUR: Thank you. I think I found it but I better just be sure. Thank you. All right. Well – yes. I think I found it. I thought I had it. Yes. Thank you. So set aside the 20 month sentence of imprisonment imposed on bench charge sheet number 1803291311. Set aside the 20 month term of imprisonment imposed on bench charge sheet 1803291400. Set aside the 18 month term of imprisonment imposed on bench charge sheet number 1803271999. Substitute a sentence in respect of each of those of 15 months imprisonment. Each of those sentences to be served concurrently with each other and concurrently with the other sentences imposed by the Gladstone Magistrates Court on the 5th of October 2018. In respect of each of those sentences, declare 38 days of pre-sentence custody served between 28 August 2018 and 5 October 2018, to be time served under those sentences pursuant to section 159A of the Penalties and Sentences Act. In respect of the declarations of time served made by the Gladstone Magistrates Court on the 5th of October 2018, set aside all those declarations, and in lieu, declare 38 days of pre- sentence custody served between 28 August 2018 and 5 October 2018 to be time served under those sentences. Otherwise confirm the sentences imposed on the 5th of October 2018. Does that dispense with everything that I need to do? MR FLEETWOOD: Did your Honour make a parole release date? HIS HONOUR: Sorry. Now, as a matter of practicality, if I order a parole release today, can it be done? MR MOON: My instructor tells me that she’s organising an urgent video link at 4 pm with the client. I anticipate that – I have had people released by 6 pm. It depends on – I will just find out if – she’s in Brisbane, I believe. Toowoomba. HIS HONOUR: Well, I fix today, the 31st of January 2019, to be her parole release date. I should say, I set aside the parole release date of 15 March 2018, and I fix today, the 31st of January 2019, to be her parole release date. MR MOON: Your Honour, it – 15 March 2019, your Honour meant to say. I think you said ’18. HIS HONOUR: Did I? Thank you. MR MOON: You might have, but I - - - HIS HONOUR: I set aside the 19th of March – sorry, the 15th of March 2019 and fix today, the 31st of January 2019 to be her parole release date. I will be good by about September. I will get it right by then. MR MOON: Like all of us. -- 8 of 9 -- 9 HIS HONOUR: All right. Now, I will just put this file back into order. Is there anything else? MR MOON: Nothing further, thank you, your Honour. MR FLEETWOOD: No, your Honour. HIS HONOUR: Thank you. Yes. Adjourn the court, please. -- 9 of 9 --