Bolton v Queensland Police Service [2018] QDC 114

1 DISTRICT COURT OF QUEENSLAND CITATION: Bolton v Queensland Police Service [2018] QDC 114 PARTIES: JASON BOLTON (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO/S: 69 of 2018 DIVISION: Appellate PROCEEDING: Appeal under s 222 Justices Act 1886 ORIGINATING COURT: Magistrates Court, Cairns DELIVERED ON: 7 June 2018 (delivered ex tempore) DELIVERED AT: Cairns HEARING DATE: 7 June 2018 JUDGE: Fantin DCJ ORDER: 1. The appeal is dismissed CATCHWORDS: CRIMINAL LAW – APPEAL – appeal against sentence pursuant to s 222 Justices Act 1886 – where the appellant was convicted of assault occasioning bodily harm while armed – road rage incident – where the learned Magistrate was led into error on maximum penalty – whether hardship to the family of offender was appropriately considered – whether sentence was excessive Legislation Justices Act 1886 (Qld) ss 222, 223 Penalties and Sentences Act 1992 (Qld) s 9 Cases House v The King (1936) 55 CLR 499 Kentwell v R (2014) 252 CLR 601 R v Chong; ex parte Attorney-General (Qld) [2008] QCA 22 R v D’Arrigo; ex parte Attorney-General (Qld) [2004] QCA 399 -- 1 of 10 -- 2 R v Ewen [2006] QCA 11 R v Le & anor [1996] 2 Qd R 516 R v McDonald [2005] QCA 383 R v Middleton and Johns (2006) 165 A Crim R 1 R v Stone [2010] QCA 157 R v Tootoo (2000) 115 A Crim R 90 COUNSEL: R Logan for the Appellant G Meoli for the Respondent SOLICITORS: Richardson Eckersley Lawyers for the Appellant The Office of Director of Public Prosecutions for the Respondent -- 2 of 10 -- 3 HER HONOUR: On 20 April 2018 the appellant was convicted on his own plea of guilty in the Magistrates Court at Cairns of one count of assault occasioning bodily harm while armed on 6 November 2017. The Magistrate sentenced the appellant to 12 months imprisonment suspended after serving three months with an operational period of two years. The suspension was after having served one quarter, rather than 5 one third, of the sentence. The appellant appeals against the sentence of imprisonment on the ground that it is manifestly excessive. 10 Both parties provided outlines of argument and made further oral submissions on the hearing of the appeal, which I have considered. At the time of hearing the appeal the appellant had served 48 days in custody. The appellant had also filed an application for appeal bail but, in light of the appeal being 15 determined ex tempore today, it is unnecessary to consider that application. The circumstances of the offending occurred in this way. The appellant is a 39-year- old man. The complainant is a 67-year-old man. Between 6 and 6.30 am on 6 November 2017 the appellant and the complainant were involved in what can be 20 described as a road rage incident on the Bruce Highway between Gordonvale and Deeral. The appellant overtook the complainant’s vehicle. The complainant appeared to take offence to that. They proceeded to overtake each other’s vehicles, each slowing 25 down in front of the other. The appellant submitted to the Magistrate and, in the absence of any evidence to contradict that from the prosecutor, the Magistrate accepted, that the complainant gestured to the appellant to pull over into a service station. On arrival at Deeral the complainant drove into a service station and the defendant immediately followed him. 30 The complainant stopped his vehicle. It was accepted that the complainant then left his vehicle. The appellant drove in, also stopped, armed himself with a wheel spanner (also known as a tyre spanner), got out of his vehicle and used the spanner to strike the complainant several times on his left forearm. The appellant only stopped 35 hitting the complainant when a third party came to the aid of the complainant. Words were exchanged between the complainant, the witness and the appellant. A short time later the appellant left the scene in his car. That night, police spoke to the complainant. He said that when the appellant hit him 40 he felt immediate pain and discomfort and that the blows to his forearm caused the skin to split, and bruising and bleeding resulted. There was no Victim Impact Statement nor photographs of the injuries before the Magistrates Court or before this Court. 45 On 11 November 2017 the appellant voluntarily went to the police station. He participated in a record of interview and made admissions to hitting the complainant with the wheel spanner. However he said he had done so as he believed the complainant had a box cutter or Stanley knife in his hand and he wanted to disarm him. The complainant did not have any such implement. The defendant accepted on 50 sentence that he was mistaken about that fact. The defendant was asked why he did not call police about the complainant’s behaviour or why he had not just driven past -- 3 of 10 -- 4 when the complainant pulled into the service station, to which the defendant responded: he thought they would just have an argument. The appellant relies upon the following grounds of appeal. 5 First, that the Magistrate erred by referring to the maximum penalty for the offence as 11 years. Second, that the Magistrate failed to give specific regard to material (in a letter and references which had been tendered) about the appellant’s family responsibilities. It 10 was submitted that the Magistrate referred to the references but not to the letter from the hospital, and that he erred in failing to consider that incarceration would be detrimental to the appellant’s family. That was said to be in circumstances where the appellant was the father to a prematurely born infant and his spouse was dependent on his financial support as well as for her physical and emotional wellbeing. 15 Third, the appellant submitted that the Magistrate erred in his consideration of the authorities placed before him. In particular, by placing significant weight on the Court of Appeal decision in Ewen [2006] QCA 11, and by failing to take into account the fact that the appellant had never been given the opportunity to comply 20 with any orders of imprisonment to be served in the community. Within the same ground the appellant further submitted that the Magistrate erred in concluding that the conduct in R v McDonald [2005] QCA 383 and others, was comparable to the conduct in this matter. It was further submitted that the Magistrate 25 erred in considering the Court of Appeal decision in R v Tootoo (2000) 115 A Crim R 90. Those errors, it was submitted, led to a sentence which was manifestly excessive. Finally, the appellant submitted that, properly considered, the appellant’s family 30 circumstances and those authorities supported a non-custodial outcome for the appellant. At the hearing before the Magistrate, the appellant’s solicitor tendered a bundle of four documents comprising a letter from a social worker at the Cairns Hospital and 35 three references. The letter from the social worker was dated 2 March 2018. The sentence occurred on 20 April 2018. The letter confirmed that the appellant’s daughter had been born prematurely on 5 February 2018 and at the time of the letter, 2 March 2018, was still in hospital. It also confirmed that the appellant’s partner was staying in local accommodation so she could easily access the baby and that the 40 appellant remained living in Mirriwinni for ease of access to his employment. The references included a reference from the appellant’s partner who confirmed the details about the birth of the baby, that the appellant financially supported her while she was on maternity leave, that he was a caring father and partner, and that she 45 relied upon him for support as she did not live in the same town as her family. There was also a reference from the appellant’s sister who confirmed that she employed him in her local business as a bread contractor and spoke highly of him as an employee. There was, finally, a reference from a friend of the appellant who spoke highly of him and confirmed that he was the sole financial provider for his family at 50 that time. -- 4 of 10 -- 5 At the outset of the appeal hearing, the respondent conceded that the Magistrate was led into error by the police prosecutor at the sentencing hearing because the police prosecutor said that the maximum penalty was 11 years whereas it was, in fact, 10 years imprisonment. Notwithstanding that error, the respondent’s ultimate submission was that the sentence imposed by the Magistrate was not manifestly 5 excessive having regard to all of the circumstances and the relevant authorities. The proceeding before the Magistrate was heard at Cairns on 20 April 2018. The sentencing hearing took almost one hour and the Magistrate heard submissions from both parties. The police prosecutor submitted for a sentence of 15 to 18 months 10 imprisonment, to serve one third. The appellant’s solicitor submitted that the Court would consider not imposing a term of actual imprisonment given the very minor level of injuries and the facts leading up to the incident. The Magistrate gave concise but carefully considered sentencing remarks. He took 15 into account the fact that the appellant had pleaded guilty and accepted that he had demonstrated remorse. He accepted that the appellant had a limited and dated criminal history, which I will say more about shortly. He accepted that the appellant cooperated with police. With regard to the material tendered by the appellant’s solicitor, he said: 20 I have references before me that indicate that you are a person of good work ethic, held in high regard, and a family man. Those factors go into mitigation with respect to the penalty to be imposed. 25 He referred to the circumstances of the offending as a violent offence involving the use of a wheel spanner which involved several blows to the complainant, although he acknowledged that the injuries suffered were at the minor end with respect to the type of injury for this offence. He referred to the fact that road rage incidents occurred with increasing regularity in the community. 30 The Magistrate then took into account the relevant Court of Appeal decisions in formulating the head sentence. He did that in a careful and logical way. He did not refer to the Court of Appeal decisions in McDonald and Stone. He did refer to the Court of Appeal decisions in Ewen, Tootoo and Middleton and summarised them in a 35 way which was, in my view, uncontroversial. With respect to Middleton, he referred to it only for its statement of principle and said: 40 Middleton would indicate to me that, quite clearly, a custodial sentence is well within range, despite the history involved. He also concluded by saying this: 45 Taking those factors into consideration, I have to conclude therefore that the behaviour was appallingly irresponsible from a licence holder to use a motor vehicle. It cannot be condoned and requires general deterrence in sentencing and to send a message that this type of offending will not be tolerated. Taking those factors into considering, noting what I have already commented with 50 respect to distinguishing some of the cases that have been presented to me, I consider it appropriate therefore that you be sentenced to a term of 12 -- 5 of 10 -- 6 months imprisonment ... the sentence will be suspended partly after serving three months for an operational of two years. Turning now to the nature of the appeal, it is an appeal pursuant to section 222 of the Justices Act 1886 (Qld). Pursuant to section 223, the appeal is by way of rehearing 5 on the original evidence. Here, there is no application to adduce fresh evidence. The powers of the appellate Court are exercisable only where the appellant can demonstrate that, having regard to all of the evidence now before the appellate Court, the order that is the subject of the appeal is the result of some legal, factual or 10 discretionary error. The Court does not merely consider whether or not the Magistrate has made an error of fact or law. The rehearing requires the Court to conduct a real review of the evidence before it and make up its own mind about the case. 15 The 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. Applying the well-known dictum in House v The King, it 20 must be shown that the discretion miscarried. The High Court in Kentwell v R (2014) 252 CLR 601 at [35] recently held that in the case of specific error, the appellate Court’s power to intervene is enlivened and it becomes its duty to resentence unless, in the separate and independent exercise of its 25 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 sentence. 30 This is a case where at least one specific error has been identified and conceded. That is, the Magistrate was led into error by the police prosecutor and referred incorrectly to the maximum penalty for the offence of 11 years rather than 10 years. As specific error has been identified, the sentence must be set aside and the appellate Court must exercise the sentencing discretion afresh unless, in that separate and 35 independent exercise, it concludes that no different sentence should be passed. I’ve already dealt with the first ground of appeal, which is clearly an error of law requiring me to exercise my discretion with respect to the sentence. 40 Turning to the second ground of appeal, I do not accept that the Magistrate failed to have regard to the letter from the hospital and the references tendered about the appellant’s family circumstances and responsibilities or that he failed to afford them sufficient weight. 45 The principles on the relevance of hardship to the family of the offender are settled. The appellant’s counsel referred me to the decision of the Court of Appeal in R v Chong [2008] QCA 22 and the statements of principle and other authorities referred to at paragraphs 31 to 33 in particular. 50 The Court of Appeal in R v Le & anor [1996] 2 Qd R 516 at 522 said that the hardship and distress shared by the family of an offender cannot be allowed to -- 6 of 10 -- 7 overwhelm factors such as retribution and deterrence. The practice is to give consideration when appropriate to the effect of a sentence on an offender’s young children. The Court of Appeal decision in R v D’Arrigo [2004] QCA 399 stated at pages 5 to 6: 5 The balance of authority supports the view that while hardship to third parties because of the imprisonment of a family member may, if rarely, be a relevant consideration, it must not overwhelm others such as the need for deterrence, denunciation and punishment. (See Le & Le v R [1996] 2 Qd R 516.) Indeed, the preponderance of authority is to the effect that this consideration may be 10 brought to account only in exceptional or extreme circumstances. In this case, the highest that the material about hardship to the appellant’s family went was to establish that the appellant was at the time of sentence the sole breadwinner, that his partner was at home on maternity leave and caring for a 15 premature infant, and that she relied upon him financially and for emotional support. However, the appellant was also working full-time at that stage. He was not the primary carer of the child, nor was this the kind of case that the Court considered in Chong. That is, this was not a case where the appellant was the parent of a young child who was being breastfed and a situation where imprisonment would have had 20 an exceptionally harsh effect on that child and any other children. I accept that the best interests of children who are dependent on the appellant fall within section 9(2)(r) of the Penalties and Sentences Act 1992, any other relevant circumstance. However in my view this was not a case where the facts were 25 sufficient to amount to exceptional or extreme circumstances. It is also clear from the Magistrate’s decision in the first paragraph that he did have regard to the references before him. He did not expressly refer to the letter from the hospital in his decision. But it is very clear from the transcript of the submissions 30 before him that when those documents were tendered he took the time to read them and he invited the appellant’s solicitor to make any further submissions about them. It is clear he did take them into account. Therefore the second ground of appeal is not made out. 35 I turn then to the final issue, which is whether the sentence was manifestly excessive. This question is relevant because, even if an error is detected in the original sentence, as is the case here with respect to the maximum penalty error, the Court will not allow the appeal if it would not itself in the independent exercise of its discretion impose any lesser sentence. Essentially, since an error has been identified, this Court 40 does not assess to what extent the error affected the outcome in determining what the correct sentence should be but rather, in the exercise of my independent discretion, this Court must determine what is the appropriate sentence for the appellant and the offence. 45 If in the exercise of its independent discretion the Court would not impose any different sentence, then the appeal would be dismissed, notwithstanding the error (see Kentwell v R (2014) 252 CLR 601 at 35). I accept that this is a case where it was open to the Court to require the appellant to 50 serve a different period of time in actual custody, either slightly more or slightly less, than was imposed. However, exercising my own independent discretion I would -- 7 of 10 -- 8 have imposed the same sentence as the Magistrate, a head sentence of 12 months, suspended after three months. The reasons why a sentence of that length with a period of actual custody are in my view warranted rather than a wholly suspended sentence are as follows. 5 First, when sentencing for an offence involving violence or physical harm to a person, pursuant to section 9(3), of the Penalties and Sentences Act, the Court must have regard primarily to the following matters: the risk of physical harm to members of the community if a custodial sentence is not imposed; the need to protect members of the community from that risk; the personal circumstances of the victim; 10 the circumstances of the offence including the injury; the nature or extent of the violence used; any disregard by the offender for the interests of public safety; the offender’s past record including any attempted rehabilitation; and the number of previous offences of any type committed; his personal circumstances, age and character; any remorse and anything else about the safety of members of the 15 community the Court considers relevant. In summary, the offending involved: the appellant and the complainant overtaking each other on a busy highway; the complainant gesturing to the appellant to pull off the highway; the appellant choosing to turn off the highway and follow the 20 complainant’s car into a service station rather than elect to disengage and continue his work journey; the appellant stopping, arming himself with a serious weapon in the form of a wheel or tyre spanner and hitting a 67 year old man with it several times and only stopping when a third party intervened. 25 Fortunately, the injuries suffered by the complainant were relatively minor. I accept the offending therefore fell within the less serious category for this offence. No Victim Impact Statement was provided. It is accepted that the injuries suffered were in the nature of bruising and a splitting of the skin and bleeding which did not require sutures. 30 I accept that the appellant’s criminal history was dated and not particularly relevant. It included a previous conviction for assault occasioning bodily harm in 1997 when the appellant was only 18 years old for which he was convicted and fined $600. It also included, between 1996 and 2000, a number of minor drug offences and 35 property offences for which the appellant received fines. The last of those convictions occurred in 2000. There was then 15 years with no offending. In April 2015 the appellant was convicted of wilful disturbance. A conviction was recorded and he was sentenced to a $750 recognisance for a good behaviour period of 12 months. I accept that the appellant’s criminal history, because of its dated nature and 40 the nature of the convictions, is not particularly relevant. The offending here falls into what is now commonly described as a road rage incident. The Court of Appeal decisions make it clear that general deterrence and the safety of members of the community are significant considerations in sentencing for 45 offences of this kind. That is because the citizens of Queensland are entitled to feel safe on their roads. Whether through inadvertent driving or otherwise where they might offend another driver, they are entitled to feel safe on the roads such that the risk of the driver getting out and abusing them or physically assaulting them simply should not occur. Road users should feel safe enough to drive a vehicle on a public 50 road without fear that some person, such as the appellant, who cannot control his anger will jump out of his car armed with a weapon and proceed to assault them. -- 8 of 10 -- 9 I have had regard in particular to the following decisions of the Court of Appeal. In the matter of Ewen, the defendant was 31 years old. He was sentenced to two years imprisonment and had served 169 days declared as time served. He had an extensive criminal history including previous convictions for assault. He had been driving 5 erratically for some kilometres. The complainant stopped. The defendant swung a wheel spanner a few times and struck him in the forehead. The injury required sutures. His criminal history was extensive, including offences of violence. The injuries suffered were more serious. The court confirmed, at page 11, that: 10 Incidents of violent conduct as a consequence of road rage must be actively discouraged. They are apt not only to terrify and injure the immediate victim, but also to alarm and imperil the safety of other users of public roads. I accept that the circumstances of the offending, the criminal history and the injuries 15 suffered were more serious in Ewen than in the subject case. The decision in Stone [2010] QCA 157 involved a defendant who was 19 years old at the time of the offending and 21 years old at the date of sentence. He had no criminal history, but was found guilty after a trial of assault occasioning bodily harm. 20 He was sentenced on appeal to 12 months imprisonment with a parole release date after one-half or six months. He punched and kicked the complainant after dangerous driving of a vehicle. The court there considered a number of other Court of Appeal decisions, including Middleton and Johns. That involved two young offenders who pleaded guilty to unlawful assault occasioning bodily harm in 25 company. They had been involved in an affray, punching and kicking the complainant. They received six months imprisonment and three years probation, and three months imprisonment followed by three years probation. Neither had criminal convictions of any significance. Both had good employment histories. 30 The court also considered the decision of McDonald [2005] QCA 383, in which the applicant was sentenced to serve 15 months imprisonment suspended after five months, with an operational period of two years, after pleading guilty to assault occasioning bodily harm and assault occasioning bodily harm while armed. He attacked an unsuspecting man with a Bourbon bottle half an hour after he had 35 unlawfully assaulted him. The injuries suffered were more significant, including apparent permanent effect on vision. McDonald had no relevant prior history of crimes of violence, had responsibility for a four year old child, and had a good work history. 40 In Middleton and Johns, the Court of Appeal said at [39]: Those decisions make clear that even for offenders aged 18, this Court will uphold sentences resulting in actual custody for first offenders with no prior convictions who plead guilty to assault occasioning bodily harm, where there 45 are aggravating circumstances including of being armed … While actual imprisonment is not mandated, it will ordinarily be within the proper exercise of a sentencing discretion. Finally, the defence relied upon the decision in R v Tootoo (2000) 115 A Crim R 90 50 in which the Court of Appeal revised the sentence on appeal to 12 months suspended after five weeks, for an operational period of two years. Tootoo involved an -- 9 of 10 -- 10 applicant driving in a vehicle beside another car in which the complainant was in the passenger seat. There was an incident leading to the driver of the complainant’s vehicle blasting his horn and swearing at the applicant, and making an insulting gesture. While the vehicles were driving side-by-side, the applicant drove beside the passenger side of the other vehicle and threw a coffee mug at it. The mug struck the 5 complainant in the head. The blow resulted in a bump. The injury was relatively minor. The complainant was said to have a small scar and to suffer from headaches. The applicant there was 38 years old. He had two children, supported his family through employment, and had a limited criminal history with no previous convictions 10 for violence. The court there said that the true aggravating feature in relation to throwing the mug during the driving was its high potential for damage to the occupants of the other travelling vehicle. It was therefore a reckless act, and it was fortunate that greater damage was not, in fact, caused. The offending was also described as toward the lower end of seriousness in cases of assault occasioning 15 bodily harm with a circumstance of aggravation. The circumstances of offending in this case before me seem to be more serious than in Tootoo because of the nature of the weapon used, the fact that the appellant drove into the service station following the complainant, that he armed himself with a 20 serious weapon, that he hit the complainant not once but several times, and only desisted when a third party intervened. In my view, a sentence which included a period of actual imprisonment was well within range here. I accept there are a number of mitigating circumstances. They include the appellant’s 25 early plea of guilty, consistent with remorse; his cooperation with police; the fact that he was in full-time employment as a delivery driver for his sister’s business; that he had a good work history; that he was in a stable family relationship and lived with his partner at Mirriwinni; and that on 5 February 2018 his partner had given birth prematurely to a daughter who had been in hospital for several weeks before going 30 home. Those factors warranted, in my view, suspension of the sentence earlier than the one third point of the sentence. And that is what the Magistrate did, suspending the sentence after one quarter of the head sentence. Nonetheless, in my view, those circumstances did not amount to sufficiently compelling circumstances to warrant no time in actual custody being served. 35 On appeal, the appellant’s counsel did not challenge the head sentence of 12 months imposed, nor the operational period, but submitted that the appellant should not have had to serve any actual time in custody, and that having now served 48 days in custody, he should be immediately released. That would involve this Court 40 interfering in the sentence imposed only to the extent of reducing the time served in actual custody by half, from three months (or 90 days) to the 48 days actually served to date. As a general proposition, it is undesirable for the Court on appeal to tinker with a sentence imposed that falls within the proper exercise of the sentencing discretion, and to fashion it to now simply reflect time served. In my view, it is 45 inappropriate to do so in this case. I would therefore dismiss the appeal. 50 ______________________ -- 10 of 10 --