Biswa v Queensland Police Service [2016] QDC 333

DISTRICT COURT OF QUEENSLAND CITATION: Biswa v Queensland Police Service [2016] QDC 333 PARTIES: AMIT BISWA (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO.: APPEAL NO. 204 of 2016 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Cairns DELIVERED EX TEMPORE ON: 2 December 2016 DELIVERED AT: Cairns HEARING DATE: 2 December 2016 JUDGE: Morzone QC DCJ ORDERS: 1. The appeal is allowed. 2. The order of the Magistrates Court made at Cairns on 24 November 2016 is set aside to the extent that the term of imprisonment of six months will be partly suspended after the appellant serves eight days and the operational period under this order will be 12 months, in lieu of two years. 3. The appellant ought be informed by these orders that if he commits an offence in that period of 12 months, he may well be dealt with and sent to prison to serve the balance of the term of imprisonment that has been imposed. 4. I declare that eight days spent in custody from 24 November 2016 to 2 December 2016 inclusive in relation to the offence is to imprisonment already served under the sentence. I direct the Registrar to inform the Commission of this declaration. -- 1 of 10 -- 2 CATCHWORDS: CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 (Qld) – conviction – sexual assault – mode of hearing of appeal – whether sentence manifestly excessive Legislation Justices Act 1886 (Qld), ss 222, s 223 Penalties and Sentences Act 1992 (Qld), s 9 Cases The Queen v Quinlan [2012] QCA 132 The Queen v Ahmadyar [2007] QCA 342 House v The King (1936) 55 CLR 499 COUNSEL: S. Williams for the appellant SOLICITORS: Wettenhall Silva Solicitors for the appellant The Office of Director of Public Prosecutions for the respondent [1] On 24 November 2016, the appellant was convicted on a plea of guilty in the Magistrates Court at Cairns of sexual assault, an offence which carries a maximum penalty of 10 years of imprisonment. [2] After hearing submissions from the prosecution and the appellant’s representative, the magistrate ordered that the appellant be sentenced to six months of imprisonment to be suspended after serving two months for an operational period of two years. The appellant now appeals that sentence. [3] Having regard to the time constraints imposed on the sentence, the appeal has been expedited to be heard by way of oral submissions having regard to the material placed before the magistrate below. Background [4] The circumstances of the offending were not disputed and were contained in a sentencing schedule.1 The complainant was a British national who was on a backpacking holiday in Cairns and was unknown to the appellant. [5] The appellant is a 33 year old man who was born in Bhutan and grew up in Nepal. He was admitted to Australia as a refugee and lived in Cairns for a period of four years immediately after his immigration. 1 Exhibit 1. -- 2 of 10 -- 3 [6] On the evening of 20 September 2016, whilst the complainant was waiting for a bus, the appellant approached her and sat next to her at the bus termination point. He proceeded to attempt to cuddle the complainant. She had not indicated any consent to that advance. [7] He then lay across her legs with his face on her right inner thigh face down touching her bare skin. Whilst in that position, he opened his mouth and began kissing the complainant on the inner part of her right thigh. The complainant pushed the appellant away, but the appellant then grabbed her on her thighs with both hands and made another attempt to embrace and further repeated those attempts. The complainant again pushed the appellant away on each occasion and told him to stop but he ignored her pleas and did not cease his behaviour as a consequence. [8] The appellant then lunged forward and attempted to grab the complainant in the groin area once again, but the complainant again told him to stop and pushed his hands away. Rather persistently, he changed his position but once again placed his head on the complainant’s thigh area. She then stood up and the appellant made attempts to grab her by the waist. She was able to push away before any further attempt by him to grab her. He then walked away and in doing so, stared at the complainant and then sat down next to some plants at some distance away. [9] The complainant was scared, violated and embarrassed by the incident and immediately complained to police. The incident was the subject of CCTV footage. Apparently, that was not relied upon at the sentence hearing. [10] During the course of the hearing, the police prosecutor relied upon two comparative cases, namely The Queen v Quinlan [2012] QCA 132, and The Queen v Ahmadyar [2007] QCA 342. It was submitted that the cases indicated a sentence of six months of imprisonment was appropriate. [11] During the course of the submissions, His Honour asked the prosecutor about the requirement to set a parole eligibility date in the context of a sexual offence. The prosecutor correctly submitted that if the magistrate was minded to impose a period of parole then a parole eligibility date was required. [12] In relation to considerations of actual imprisonment, the following exchange occurred: “Bench: None of the authorities for anyone – in the one’s you’ve referred me to, does anyone actually escape incarceration, did they? Prosecutor: No. Bench: No. Actual incarceration. Prosecutor: There was actually incarceration imposed. Bench: So I do – the submission is they support a range of about – starting at about six months. Prosecutor: Yes, your Honour. -- 3 of 10 -- 4 Bench: With a requirement for him to serve an actual period of incarceration, having regard to the offending. Prosecutor: Yes, your Honour. In the matter of Quinlan there was a period of seven weeks. Bench: Yes. Prosecutor: And that was after a trial. Bench: Yes.” [13] The appellant’s representative made submissions in the usual way about the appellant’s circumstances relevant to matters of sentencing, as well as comparing those comparatives with the circumstances subject of the sentence before His Honour. It was submitted that the circumstances before the Court were not objectively more serious than the comparatives, albeit they were different. The representative for the appellant distinguished Quinlan wherein the defendant was a taxi driver and in a position of obvious trust in circumstances where the complainant was his passenger. In contrast, it was submitted that there was a degree of opportunism in the appellant’s behaviour in the present case. And whilst it was a very serious offence, it did not have the degree of maliciousness where someone like the defendant in Quinlan was in a state of sobriety and abused a position of trust. [14] The submissions by the appellant’s representative also referred to the personal circumstances of the appellant and his plight in reaching Australia as a refugee. Since his arrival, there was no demonstrable history of any crime or any trouble at all. He had worked as a builder and a labourer and in Australia, had worked as a housekeeper and was undertaking an intensive English language course supported by a Newstart allowance. It was also submitted that he lives with his brother, his sister and his mother. The whole family had travelled to Australia in 2012 and they continued living together. The appellant is single with no dependants. He was looking after his mother and he helped her look after his brothers and sisters. That aspect of the submission was the subject of further discussion as to whether or not it was a consideration in terms of parental responsibilities in respect of children, and it seems His Honour was alert to those matters to the extent that they may have been relevant. [15] The appellant’s representative also submitted that he was remorseful having acknowledged that, “It’s a very bad thing to do,” and that he was, “very, very sorry for his behaviour.” [16] It was also submitted that he had been “very frightened” in the context that he was detained and remanded in custody until the hearing for something less than a day, but at least overnight. It was submitted that: “He is less likely to offend in the circumstances, as opposed to someone who – had a reckless attitude with regards to what had taken place.” [17] It was submitted that it was an appropriate case in the circumstances for the magistrate to wholly suspend any sentence of imprisonment in recognition of the appellant’s early plea of guilty, his acceptance of responsibility, his lack of criminal history and his contrition and remorse before the Court that morning. Reliance was also placed upon his family circumstances referred to above. -- 4 of 10 -- 5 [18] During the course of the exchange with the appellant’s representative the magistrate acknowledged that family circumstances are a factor that may be taken into account, but it did not displace the requirement to impose a proper sentence which might involve actual incarceration. He referred to the principle, in broad terms, as involving consideration of exceptional or special circumstances. It seems His Honour had in mind the Court of Appeal case of The Queen v D’Arrigo; ex parte the Attorney-General of Queensland [2004] QCA 399. In that case, the Court made it clear that consideration of parental responsibilities ought not overwhelm the proper sentencing discretion and even then, ought be taken into account only in exceptional or extreme circumstances. [19] In the course of the sentencing remarks, His Honour had regard to the matters the subject of submissions including the discussion of the comparative cases. His Honour then said: “In relation to the decisions, they express the need – in respect of sexual assaults of this type, for the four punishments to reflect, particularly general deterrence and public denunciation. This was a young woman alone at night. Your conduct was disgraceful and unlawful. In the context of an appropriate disposition, it’s conceded by [the defendant’s representative], who appears on your behalf, the imposition of a period of imprisonment is appropriate. And he accepts that the range submitted by the prosecutor is a similarly appropriate one of six months’ imprisonment. He urges that you be given the opportunity of being spared actual incarceration, having regard to those features which he submitted on your behalf were mitigating features. In view of the authorities, having regard to the nature of your conduct, notwithstanding all those matters which I have given you credit for, the very serious nature of the offence does, in my view, call for the imposition of a period of imprisonment requiring actual incarceration. In respect of the offence you are sentenced to six months’ imprisonment. That period of imprisonment will be suspended after you’ve served two months of that imprisonment. It will be suspended with an operational period of two years.” Mode of Appeal [20] Pursuant to section 223 of the Justices Act 1886, an appeal under section 222 is by way of rehearing on the original evidence given in the proceedings before the trial magistrate, and new evidence adduced on appeal in special circumstances with leave. The appeal is not a new trial to consider as if the arguments are here presented for the first time. It is a review of the record of the proceedings below rather than a completely fresh hearing.2 [21] This court is required to make its own determination of the relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view.3 [22] Fundamentally, the appellant must demonstrate some legal, factual or discretionary error.4 2 White v Commissioner of Police [2014] QCA 121 at [8] per Morrison JA (Muir JA & Atkinson J agreed). 3 White v Commissioner of Police [2014] QCA 121 at [4] per Morrison JA (Muir JA & Atkinson J agreed). 4 White v Commissioner of Police [2014] QCA 121 at [8] per Morrison JA (Muir JA & Atkinson J agreed). -- 5 of 10 -- 6 Grounds of Appeal [23] The appellant appeals against the sentence in reliance on the grounds pleaded in the Notice of Appeal as follows: (1) The sentence imposed was manifestly excessive in all the circumstances of the case; (2) The presiding magistrate erred in failing to accord sufficient weight to the defendant’s mitigating circumstances, in particular his lack of criminal history; (3) The presiding magistrate erred in failing to distinguish comparative cases before the Court where those cases involved offending that constituted an abuse of trust and no trust relationship existed between the defendant and the complainant. [24] At the commencement of this hearing, the appellant’s counsel properly, in my view, did not press the third ground of appeal and did not strenuously press the second ground. It seems to me that those matters are, really, a subset of the first ground of appeal, in any event. Appeal against sentence [25] The appellant maintains that the sentence was manifestly excessive, not in respect of the head sentence of six months, but rather, in respect of the imposition of actual time to be served in prison as well as the imposition of a lengthy operational period for the suspended sentence of two years. [26] 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.5 [27] In House v The King,6 the High Court 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 discretion afresh, unless, in that separate and independent exercise, it concludes that no different sentence should be passed so. [28] By contrast, an error may not be discernible but the sentence is manifestly excessive for being too heavy and lying outside the permissible range. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.7 Manifest Excess [29] It is apparent that in the course of the magistrate’s reasons, as well as in the earlier argument, that His Honour placed significant weight and guidance on the comparative cases provided during the course of the hearing. That guidance was properly placed in respect of the head 5 House v The King (1936) 55 CLR 499 at 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176-178; Norbis v Norbis (1986) 161 CLR 513 at 517-519. 6 [1936] 55 CLR 499 at 504-505. 7 AB v R (1999) 198 CLR 111 at [130] per Hayne J (minority). -- 6 of 10 -- 7 sentence, which is not contested here. However, it does seem that His Honour also approached the sentencing task by considering those cases in determining the question of whether actual imprisonment ought be served by this appellant. [30] In Ahmadyar the Court considered three counts of indecent assault. There was a delay in finalising the case because the defendant was declared by the Mental Health Court to be temporarily unfit to stand trial after he suffered a major mental breakdown when he was charged and imprisoned without bail. After he had recovered he stood trial for an offence of rape for which he was acquitted. He later pleaded guilty to the three counts of indecent assault and other charges were then abandoned. On each of the counts the defendant was sentenced to six months’ imprisonment, suspended forthwith, with an operational period of 12 months. [31] As it happens, he had spent 1341 days in pre-sentence custody. The defendant, there, was 34 years old at the time of sentence, and between 30 and 31 at the time of the offences. He had a minor criminal history. He was a refugee from Afghanistan, where he had, apparently, endured torture at the hands of the Taliban. His father was killed by the Taliban. He suffered post- traumatic stress arising from those circumstances, which were largely responsible for the mental breakdown. The complainant was between seven and 18 years of age. The defendant and the complainant were known to each other, since she was an employee of a clothing store where the defendant was the manager. In that role, he seriously abused his position of power over each of the complainants in sexually harassing and, then, indecently assaulting them. The first offence concerned hugging and kissing the complainant on the face and lips and touching her breasts. The second offence involved questioning a different complainant about her sexual experiences and then putting his arms around her from behind, asking if he could touch her breasts and then pushing his penis against her back before she pulled away. The final count involved an attempt to pull down yet another complainant’s pants after he had noticed a tattoo on her right pelvis. [32] The primary Judge accepted the prosecutor’s indication that pre-sentence custody could not be declared as time served. That, though, was recanted on appeal. The Court of Appeal set aside the sentence to the effect that, for each count, the defendant was imprisoned for a period of six months without any suspension, coupled with a declaration that the 1341 days he had spent in custody from 13 January 2003 to 14 September 2004 was time served. [33] It seems to me that Ahmadyar involved rather unusual, indeed unique, circumstances. It is difficult to discern anything by way of principle, or any factual, comparative which would provide any comfort or guidance in relation to whether or not actual custody ought be served, in the circumstances of the case subject of this appeal. [34] Quinlan involved a 56 year old appellant who committed the offence of sexual assault whilst driving a 25 year old complainant in his taxi. The complainant passenger had been drinking and the taxi trip occurred in the early hours of the morning after she left a hotel at 5 am. During the course of the journey, the defendant remarked: “You’ve got a nice set of lungs on you.” The complainant responded rather vaguely: “Ah, yeah, okay.” She testified that she didn’t know what the defendant meant by reference to “lungs”. The defendant then placed his left hand on and squeezed her right breast. The squeeze was not hard and it was not long, and he then let go. The matter proceeded to trial and the defendant was convicted after three days of hearing. He was sentenced to six months’ imprisonment, suspended after seven weeks, for an operational period of 12 months. -- 7 of 10 -- 8 [35] On appeal, Fraser JA, with whom Freiberg and Martin JJ agreed, remarked at paragraph 30 that: This sentence was not nearly as serious as many others of this nature which come before the courts, it was committed during a very short time, it was not submitted to have resulted in serious or long-term consequences for the complainant, and there were significant factors justifying mitigation of the sentence. Even so, a sentence of imprisonment, with seven weeks’ actual custody was within the sentencing discretion, having regard to the appellant’s significant breach of trust towards a vulnerable passenger in his taxi, the requirement for a deterrent sentence and the appellant’s inability to claim the benefit of remorse, cooperation with the authorities, or a plea of guilty. [36] His Honour continued at paragraph 31: The length of the head sentence has given me some concern. The important requirement that the sentence deter others from committing such offences might have been satisfied by a shorter term than six months, and the apparently inevitable loss of the appellant’s taxi licence must be of real significance for a man of his age with a disability. Even so, taking into account those, and the other considerations mentioned by the sentencing Judge, and the provision for a suspension of the imprisonment after seven weeks, the sentence imposed upon the appellant was not manifestly excessive. I have not found any error in the exercise of the sentencing discretion. [37] That case involved significant factual differences to the case the subject of this appeal. Like Ahmadyar, the appellant in Quinlan was in a position of significant trust in his role as a taxi driver and in relation to the state of his passenger at a time when, as a young woman, she was significantly vulnerable. It is in that context that the Court considered, as it ought to have, whether actual custody was within the sentencing discretion of the sentencing magistrate. But those very circumstances are sufficiently different such that they do not provide any comparative assistance and distract from relevant matters to this appeal. [38] Section 9(2)(a) of the Penalties and Sentences Act 1992 (Qld) requires that in sentencing an offender, a court must have regard to: “Principles that – (i) A sentence of imprisonment should only be imposed as a last resort; and (ii) A sentence that allows the offender to stay in the community is preferable” [39] That prescription, of course, is accompanied by many other factors that ought be taken into account by a sentencing court. Section 9(1) prescribes that the only purpose for a sentence being imposed on an offender is to provide appropriate punishment to an extent that is just in all the circumstances, will help the offender to be rehabilitated, will deter the offender or other persons from committing the same or similar offence, makes it clear that the community acting through the court denounces the sort of conduct involved in the offending, and protects the community from the offender. -- 8 of 10 -- 9 [40] Whilst the magistrate during the course of providing reasons in the sentence refers to the sentencing guidelines summarised above he makes no express reference to the requirements of s 9(2)(a). Rather, it seems that His Honour proceeded in reliance upon the comparative cases which provided little, if any, assistance in respect of this aspect of the sentence. [41] Whilst it does not appear exactly how His Honour reached the result embodied in the orders requiring actual time to be served in prison for two months, that result, in my opinion, was reached by His Honour failing to take into consideration, or, otherwise, acting on a wrong principle, contrary to s 9(2)(a), the result of which, in my respectful opinion, was unreasonable or plainly unjust. [42] When considered in the circumstances of the case, coupled with the lengthy operational period of the suspended sentence of two years, and having reached the conclusion that the magistrate erred in the exercise of the sentencing discretion, it is incumbent upon this court to resentence the appellant. Re-Sentence [43] Having regard to all that I’ve said, and applying the sentencing guidelines in s 9, and otherwise provided in the Penalties and Sentences Act, it seems to me that the circumstances of this case do not warrant that the appellant serve actual time in custody. Such an imposition ought be one of last resort in circumstances where a sentence that allows him to stay in the community is just and appropriate. This course is indicated quite strongly having regard to the nature and circumstances of the offending which were less serious, in my view, than the comparatives provided. [44] The appellant at his age and having regard to his behaviour and lack of any criminal history is unlikely to place the community or any individual at any significant risk of harm. It seems to me that the risk of reoffending would be low, if any. He had spent a short period of less than a day in custody before his sentence in the court below. He has since the date of sentence on 24 November 2016 spent some eight days in custody. I have no doubt that that experience alone has had a significant and sobering effect upon him. [45] In relation to the operational period, I struggle to see any justification arising out of the cases relied upon by the prosecutor, or otherwise exposed by the facts or argument presented to the magistrate, which would support such a lengthy period. It seems to me to be wholly disproportionate to the offending and the sentence imposed and I think 12 months is appropriate in the circumstances. Orders [46] For these reasons, I make the following orders. (1) The appeal is allowed. (2) The order of the Magistrates Court made at Cairns on 24 November 2016 is set aside to the extent that the term of imprisonment of six months will be partly suspended after the appellant serves eight days and the operational period under this order will be 12 months, in lieu of two years. -- 9 of 10 -- 10 (3) The appellant ought be informed by these orders that if he commits an offence in that period of 12 months, he may well be dealt with and sent to prison to serve the balance of the term of imprisonment that has been imposed. (4) I declare that eight days spent in custody from 24 November 2016 to 2 December 2016 inclusive in relation to the offence is to imprisonment already served under the sentence. I direct the Registrar to inform the Commission of this declaration. Judge D. P. Morzone QC -- 10 of 10 --