Addo v Senior Constable Jacovos [2016] QDC 271

DISTRICT COURT OF QUEENSLAND CITATION: Addo v Senior Constable Jacovos [2016] QDC 271 PARTIES: RONALD PETER ADDO (appellant) v SENIOR CONSTABLE JACOVOS (respondent) FILE NO.: APPEAL NO. 129/16 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Cairns DELIVERED ON: 4 November 2016 DELIVERED AT: Cairns HEARING DATE: 28 October 2016 JUDGE: Morzone QC DCJ ORDERS: 1. Appeal allowed. 2. Set aside the sentence and orders made in the Magistrates Court on 5 July 2016 and in lieu order as follows: a. For the offence of obstruct police - the appellant is sentenced to 3 months’ imprisonment; b. For the offence of serious assault police – the appellant is sentenced to 12 months’ imprisonment; c. Those periods of imprisonment are to be served concurrently with each other, but cumulatively upon the term of imprisonment imposed on 14 August 2013; d. A parole release date is fixed at 19 December 2016. -- 1 of 16 -- CATCHWORDS: CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 (Qld) – conviction – Serious Assault Police – mode of hearing of appeal – error of law – whether sentence manifestly excessive –whether sentences requires to be served cumulatively or concurrently – whether parole eligibility date or release date applicable – totality principle. Legislation Justices Act 1886 (Qld), ss 222 & 223 Penalties and Sentences Act 1992 (Qld), ss 156A, 160A, 160B & 160 Corrective Services Act 2006 (Qld), ss 201, 202, 209, 214 & 215 Cases White v Commissioner of Police [2014] QCA 121 House v The King (1936) 55 CLR 499 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Norbis v Norbis (1986) 161 CLR 513 AB v R (1999) 198 CLR 111 R v Conway [2005] QCA 194 R v Brown [2013] QCA 185 Veen v The Queen [No.2] (1988) 164 CLR 465 R v Murray [2014] QCA 250 R v Shillingsworth [2002] 1 Qd R 527 R v Smith [2015] 1 Qd R 323; [2013] QCA 397 Mill v The Queen, [1988] 166 CLR 59 The Queen v Crofts [1999] 1 Qd R 386 The Queen v Beattie, ex parte Attorney-General (Qld) [2014] QCA 2006 The Queen v Kendrick [2015] QCA 27 The Queen v Baker [2011] QCA 104 COUNSEL: M. Dalton for the appellant B. Mantan for the respondent SOLICITORS: Cutherbertson & Co. Lawyers for the appellant The Office of Director of Public Prosecutions for the respondent [1] On 5 July 2016 the appellant was convicted, after a summary trial in the Magistrates Court held at Cairns, of serious assault police committed on 10 January 2016. He otherwise pleaded guilty to an offence of obstruct police committed on 10 January 2016. [2] The appellant was sentenced to 3 months’ imprisonment for obstruct police and 18 months’ imprisonment for serious assault police to be served concurrently with each other, but -- 2 of 16 -- cumulatively upon an existing sentence, to commence on 28 November 2016. A parole eligibility date was fixed at 28 May 2017. [3] The appellant now appeals his sentence. [4] Both parties provided outlines of argument, and made further submissions on the hearing of the appeal, which I have considered. Background [5] Prior to his offending on 10 January 2016 the appellant served a period of imprisonment of 4 years, 7 months and 23 days which commenced on 25 May 2011 for a series of sentences imposed from the first on 25 May 2011 through to the last on 14 August 2013.1 [6] His past offending included a serious assault causing bodily harm against a police officer committed on 25 March 2013 whilst on parole for which he received a concurrent sentence of 12 months’ imprisonment. On 14 August 2013 he received a head sentence of 3 years’ imprisonment cumulative on an existing sentence for a number of offences including dangerous operation of a motor vehicle. The Court set a parole eligibility date for 1 October 2014. That date was altered to 28 August 2014 after a successful appeal to the District Court in Cairns on 17 April 2014. [7] The appellant was released on parole on 31 March 2015. [8] His parole was suspended on 10 December 2015,2 and a warrant was issued for his arrest to facilitate his return to custody. [9] On 10 January 2016 police located the appellant as the subject of the warrant. The defendant tried to get away from police and during the course of which he was sprayed in the face with capsicum spray by one of the officers. Undeterred, the defendant continued to attempt to avoid arrest. He ran up a path beside the residence. The female officer ran down the path towards the appellant. She moved towards the house in an attempt to get out of the appellant’s way. The appellant veered towards the officer and deliberately shoulder charged her and struck her in the chest and face area causing her to rebound off him and into the brick wall of the residence behind her and thereby strike her head, shoulder and arm. As a result the officer was briefly knocked unconscious, suffered a mild concussion, bruising to her left arm and shoulder, and a contusion/abrasion to the top of her scalp. [10] The appellant was subsequently arrested and returned to custody on 10 January 2016. Thirty- one days was added to the appellant’s custody time for being ‘at large’. He had 10 months and 18 days to serve on the existing sentence before his period of imprisonment expired on 28 November 2016.3 [11] On 5 July 2016 the appellant was convicted after a trial of serious assault police. He otherwise pleaded guilty to obstruct police arising out of the same events. The appellant was sentenced to 3 months’ imprisonment for obstruct police and 18 months’ imprisonment for serious assault police. The sentences were to be served concurrently with each other, but 1 Exhibit 1 – Criminal History; Exhibit 2 – Pre-sentence Custody Certificate. 2 Exhibit 2 – Pre-sentence Custody Certificate 3 Exhibit 2 – Pre-sentence Custody Certificate. -- 3 of 16 -- cumulatively upon an existing sentence, to commence from 28 November 2016. A parole eligibility date was fixed at 28 May 2017. [12] By the time of sentence the appellant had spent 5 months and 25 days in custody since his return on 10 January 2016. He had a further 4 months and 23 days to serve on his existing sentence before the cumulative sentence was to commence on 28 November 2016. Mode of Appeal [13] 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 presented for the first time, the arguments advanced. It is a review of the record of the proceedings below, rather than a completely fresh hearing.4 [14] 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.5 [15] Fundamentally, the appellant must demonstrate some legal, factual or discretionary error.6 Grounds of Appeal [16] The appellant appeals against the sentence on the ground that it was manifestly excessive because: 1. the magistrate erred in adopting a starting point of 2 years for the sentence in respect of serious assault police prior to discounting for totality; 2. the magistrate erred in proceeding on the basis that the sentence must be served cumulatively on the existing sentence pursuant to s 156A of the Penalties and Sentences Act 1992 (“the PSA”); 3. the magistrate erred in imposing a parole eligibility date rather than a parole release date; and 4. the magistrate erred in the application of the totality principle by failing to fix the head sentence and the parole eligibility date by explicit reference to the aggregate term of imprisonment. Appeal against sentence [17] 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.7 4 White v Commissioner of Police [2014] QCA 121 at [8] per Morrison JA (Muir JA & Atkinson J agreed). 5 White v Commissioner of Police [2014] QCA 121 at [4] per Morrison JA (Muir JA & Atkinson J agreed). 6 White v Commissioner of Police [2014] QCA 121 at [8] per Morrison JA (Muir JA & Atkinson J agreed). 7 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. -- 4 of 16 -- [18] The High Court held in House v The King that:8 "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." [19] The 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 sentencing discretion afresh, unless in that separate and independent exercise it concludes that no different sentence should be passed. [20] 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.8 Ground 1: Notional Sentence [21] The appellant contends that the magistrate erred in adopting a starting point of 2 years’ imprisonment for the sentence in respect of the serious assault police offence prior to discounting for totality. It is submitted that the appropriate starting point was 12 months’ imprisonment.9 [22] The respondent submitted that the appropriate starting point is 15 to 18 months’ imprisonment before considering totality principles and having regard to the appellant’s criminal history, lack of remorse, taking the matter to trial requiring the complainant to give evidence and the seriousness of the offending. [23] Section 9 of the PSA prescribes the only purposes for which a sentence may be imposed on an offender. It is trite law that a sentencing court must impose a sentence which is proportionate to the gravity of the offence.10 Further, it is a well established sentencing principle that a person’s criminal history may be taken into account in determining the sentence to be imposed but cannot be given such weight as to lead the imposition of a penalty which is disproportionate to the gravity of the instant offence.11 [24] The magistrate adopted a starting point of 2 years’ imprisonment for the offence of serious assault police, taking into account specific and general deterrence, particularly having regard 8 (1936) 55 CLR 499 at 504 and 505. 8 AB v R (1999) 198 CLR 111 at [130] per Hayne J (minority). 9 R v Conway [2005] QCA 194; R v Brown [2013] QCA 185. 10 Veen v The Queen [No.2] (1988) 164 CLR 465 at 472. 11 Veen No. 2 at p 477. -- 5 of 16 -- to the appellant’s prior conviction for a serious assault police offence;12 the increase to the maximum penalty and the policy reasons behind the increase; 13 the seriousness of the offence;14 and the appellant’s prior criminal history.15 The magistrate accepted the assault was not premeditated and was on the spur of the moment.16 The assault was brief. As a result of the assault the complainant hit her head, lost consciousness for a short time and suffered grazing and bruising to her head and shoulder.17 She was able to assist with the arrest of the applicant a short time after the assault.18 [25] At sentence the prosecution relied upon The Queen v Poon19 which was factually more serious, involved significant injuries and was imposed prior to the increase in maximum penalty. The police prosecutor erroneously indicated to the learned magistrate that the offending occurred after the increase in penalty.20 [26] The maximum penalty for the offence of serious assault police with a circumstance of aggravation was increased from 7 years’ imprisonment to 14 years’ imprisonment effective from 29 August 2012.21 This must be taken into account. However, whilst it is expected that the increase in maximum penalty will lead to more severe penalties, it does not mean that sentences ought be necessarily higher or proportionally increased.22 [27] R v Benson [2014] QCA 188 involved an offence of serious assault police causing bodily harm. The 42 year old applicant punched a police officer to his left eye, tried to choke him, gouged his eyeball and bit his leg. The officer suffered injuries including a bite mark to the upper left thigh (no break to the skin), lacerations to his left knuckles, mild redness of the left eye and a small bruise on the left lower eyelid. The officer was exposed to hepatitis C infection. The applicant had an extensive criminal record in Queensland, New South Wales, South Australia, the Northern Territory and Tasmania, including multiple convictions for violence. He committed the offence while on probation and on parole. On a plea of guilty he was sentenced to 18 months’ imprisonment, with an order that he be eligible for parole after serving 6 months. By the time of sentence the applicant served out the remaining 4 months of his previous sentence of custody, which was not declarable, but a further 158 days of pre- sentence custody was declared. The Court of Appeal refused the applicant's appeal. Morrison JA remarked that 18 months’ imprisonment was not excessive and the contended 12 months’ imprisonment would be inadequate. [28] It seems to me that the applicant in Benson had a more serious history for violence than this case on appeal. The offending in Benson was deliberate and prolonged and resulted in more significant injuries. In the present case, the officer was knocked unconscious and suffering mild concussion as a result of the assault. Further, unlike Benson, the appellant took the matter to trial, compelling the complainant to give evidence. The appellant’s criminal history included similar violent offending of serious assault against a police officer, which was committed whilst on parole for other offending. He reoffended while on parole. The history 12 Decision T10/45 - T11/1. 13 Decision T11/5. 14 Decision T11/17. 15 Decision T11/17-25. 16 Decision T10/26. 17 Decision T6/35, T11/10. 18 Decision T3/1, T4/5. 19 Sentencing remarks of Shanahan J dated 21/078/2010. 20 Submissions T4/23. 21 Criminal Law Amendment Act 2012. 22 R v Murray [2014] QCA 250 at [16] per Fraser JA. -- 6 of 16 -- demonstrates a disdain for rehabilitative opportunities. The appellant’s current offending also breached his parole, which is an aggravating feature on sentence. No mitigating features were apparent in this case. [29] In the circumstance of this case, the appropriate notional sentence is in the order of 16 months, and the starting point of 2 years adopted by the magistrate was too high. Ground 2: Mandatory cumulative Sentence [30] The appellant contends that the magistrate erroneously proceeded on the basis that the sentence was required to be imposed cumulatively upon the existing imprisonment pursuant to s 156A of the PSA. Legislative provisions [31] Section 156A provides for cumulative orders of imprisonment in particular circumstances as follows: (1) This section applies if an offender— (a) is convicted of an offence— (i) against a provision mentioned in schedule 1; or (ii) of counselling or procuring the commission of, or attempting or conspiring to commit, an offence against a provision mentioned in schedule 1; and (b) committed the offence while— (i) a prisoner serving a term of imprisonment; or (ii) released on post-prison community based release under the Corrective Services Act 2000 or released on parole under the Corrective Services Act 2006; or (iii) on leave of absence, from a term of imprisonment, granted under the Corrective Services Act 2000 or the Corrective Services Act 2006; or (iv) at large after escaping from lawful custody under a sentence of imprisonment. (2) A sentence of imprisonment imposed for the offence must be ordered to be served cumulatively with any other term of imprisonment the offender is liable to serve. [32] The offence of serious assault is caught by schedule 1 and s 156A(1)(a)(i) of the PSA. There is no dispute that ss 156A(1)(b)(i), (iii) and (iv) have no application here. [33] “Parole” is defined in s 4 of the PSA to mean a parole order granted under the Corrective Services Act 2006 (“the CSA”). The CSA relevantly provides as follows: -- 7 of 16 -- Released on parole means released from a corrective services facility subject to the conditions of a parole order. Parole order means generally a parole order under s 194 of the CSA or court ordered parole. Period of imprisonment means the unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment, whether– (a) ordered to be served concurrently or cumulatively; or (b) imposed at the same time or different times; and includes a term of imprisonment. Term of imprisonment means the duration of imprisonment imposed for a single offence and includes– (a) the imprisonment an offender is serving, or is liable to serve– (i) for default in payment of a single fine; or (ii) for failing to comply with a single order of a court; and (b) for an offender on whom a finite sentence has been imposed, any extension under section 174B(6) of the offender’s finite term.” [34] Section 214 of the CSA provides: “A prisoner released on parole is taken to be still serving the sentence imposed on the prisoner.” [35] Section 215 of the CSA provides for the expiry of the order as follows: “A prisoner is taken to have served the prisoner’s period of imprisonment if the prisoner’s parole order expires without being cancelled under section 205 or 209.” Discussion [36] The issue is whether the defendant committed the offences while “released on parole” within the meaning of s 156(1)(b)(ii). [37] The appellant argues that the offence was committed when he was “unlawfully at large” and liable to serve the suspension period, but was not serving the sentence the subject of his parole pursuant to s 214 of the CRA. For this reason, it was submitted that the appellant was not then “released on a parole order” for the purposes of s 156A(1)(b)(ii) of the PSA. It seems to me that the appellant’s argument would place a non-compliant and suspended parolee in a better position than an otherwise compliant parolee who reoffended. -- 8 of 16 -- [38] The respondent relies on the continuum of the parole conditions, including that the parolee is under the chief executive’s supervision “until the end of the prisoner’s period of imprisonment”.23 [39] The appellant was released on a parole order made by the Parole Board on 31 March 2015.24 [40] Section 215 deals with the circumstances of cancellation by the Board under s 205 and the automatic cancellation effected by re-sentence under s 209. There is no similar provision for a suspension of a parole order. While a prisoner remains in the community following the suspension of a parole order he is said to be “unlawfully at large” as defined in the CRA.25 Pursuant to s 206 of the CRA, he was liable “to be taken to a prison … to be kept there for the suspension period” of 31 days’ imprisonment. [41] I do not accept the appellant’s argument because I do not see the concepts as being mutually exclusive in the context of a parolee. Fundamentally, a suspension of a parole order does not end that parole order, instead its temporal operation is suspended until the parolee serves the suspension period. The parole order will continue until it is cancelled or the underlying term of imprisonment expires. Until his arrest a noncompliant parolee is unlawfully at large but remains in the community having been released on parole. In my view a noncompliant parolee remains “released on parole” until he is taken to prison to be kept there for the suspension period. [42] For these reasons, I conclude that the defendant did commit the subject offending while released on parole pending his arrest. Since the preconditions in s 156A(1)(a)(i) and s 156A (1)(b)(ii) are satisfied, a cumulative sentence was required by s 156A(2) of the CRA. Therefore, the magistrate ordered that the sentences of imprisonment must be served cumulatively upon the existing term of imprisonment the defendant was liable to serve. [43] This mandatory sentencing requirement is a relevant to determining a punishment that is “just in all the circumstances” under s 9(1)(a) of the PSA. Section 156A was to be read as subject to the sentencing guidelines s 9, particularly in ss 9(1)(a), (2)(l) and (2)(m). Where s 156A applied to an offender, the function of the sentencing court is to impose a sentence having regard to the criminality of the current offence. But in so doing the magistrate was required by s 9 to place the sentence in its proper context, namely that it would be imposed in circumstances where it would be cumulative upon completion of the sentence imposed for the past offences.26 [44] In arriving at a just and appropriate sentence the court must avoid imposing artificially inadequate sentences in order to subvert or accommodate the rules relating to accumulation. Ground 3: Parole Eligibility [45] The magistrate fixed a new parole eligibility date after the appellant had served one third of the 18 month cumulative sentence, being 28 May 2017. 27 In doing so, the magistrate relied upon the common submissions of both the prosecutor and the appellant’s solicitor.28 23 Corrective Services Act 2006 (Qld), s 200(a)(i). 24 Exhibit 2 – Presentence Custody Certificate. 25 Definition of “unlawfully at large” is defined in Schedule 4 of the CSA. 26 R v Shillingsworth [2002] 1 Qd R 527. 27 Decision T11/30-35. 28 Submissions T8/35 and T13/25. -- 9 of 16 -- [46] The appellant contends that the magistrate erred in imposing a parole eligibility date because the appellant did not re-offend during the period of the parole order, and a parole release date was mandated. The respondent contends that because the offending occurred whilst released on parole the court must fix an eligibility date pursuant to s 160B(2) of the PSA. Legislative provisions [47] Pursuant to s 160A, ss 160B to 160D are the only law under which a court may make an order for the release of an offender on parole. Section 160B of the PSA is relevant to this appeal. [48] Section 160B of the PSA provides: (2) If the offender has a court ordered parole order cancelled under the Corrective Services Act 2006, section 205 or 209 during the offender’s period of imprisonment, the court must fix the date the offender is eligible for parole. (3) If subsection (2) does not apply, the court must fix a date for the offender to be released on parole. [49] The term “period of imprisonment” is defined in s 160 for the purposes of s 160B as meaning “the period of imprisonment that includes the term of imprisonment mentioned in section 160A”. “Period of imprisonment” is defined in s 4 as: the unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment, whether– (a) ordered to be served concurrently or cumulatively; or (b) imposed at the same time or different times; and includes a term of imprisonment. [50] The “period of imprisonment” therefore includes the “term of imprisonment” a court is imposing at the time of sentence. The latter term is defined in s 4 as: the duration of imprisonment imposed for a single offence and includes– (a) the imprisonment an offender is serving, or is liable to serve– (i) for default in payment of a single fine; or (ii) for failing to comply with a single order of a court; and (b) for an offender on whom a finite sentence has been imposed, any extension under section 174B(6) of the offender’s finite term. [51] Section 215 of the CSA provides for the effluxion of imprisonment and the expiry of a parole order follows: “A prisoner is taken to have served the prisoner’s period of imprisonment if the prisoner’s parole order expires without being cancelled under section 205 or 209.” -- 10 of 16 -- [52] Relevantly here, s 160B applies if an offender has a court ordered parole order cancelled under 209 of CSA. The provision is confined to a “court ordered parole order”, which is defined in the CSA as: “an order issued by the chief executive under section 199 in accordance with a court order under the Penalties and Sentences Act 1992, section 160B(3) fixing the date for the prisoner to be released on parole.” [53] Section 199(1) of the CSA provides: (1) The chief executive must issue a court ordered parole order for a prisoner in accordance with the date fixed for the prisoner’s release on parole under the Penalties and Sentences Act 1992, part 9, division 3.” [54] This is a reference to a parole release date, being the date fixed by order under section 160B(3) as the date the offender is to be released on parole. This is distinguished from an order merely fixing an eligibility date and other species of parole orders that may be granted by the parole board under s 194. Section 194(1) provides that: (1) A parole board may, by a parole order— (a) release any prisoner on parole, if the board is satisfied that exceptional circumstances exist in relation to the prisoner; or (b) release an eligible prisoner on parole. [55] Section 209 deals prescribes the automatic cancellation of the order as follows: (1) A prisoner’s parole order is automatically cancelled if the prisoner is sentenced to another period of imprisonment for an offence committed, in Queensland or elsewhere, during the period of the order. (2) Subsection (1) applies even if the period of the parole order has expired.” Discussion [56] On 14 August 2013 the appellant received a head sentence of 3 years’ imprisonment cumulative on an existing sentence for a number of offences including dangerous operation of a motor vehicle. At that time the court set a parole eligibility date for 1 October 2014, which was altered on appeal to 28 August 2014. [57] The appellant was subsequently released on parole on 31 March 2015 by the parole board making a parole order pursuant to s 194. The effect of s 209 was that that order was automatically cancelled when the magistrate re-sentenced the appellant on 5 July 2016 for the offences subject of this appeal.29 [58] Therefore, the appellant was not subject of a court ordered parole order as required by s 160B(2). In those circumstances, since subsection (2) does not apply, the magistrate was required to fix a date for the offender to be released on parole pursuant to s 160B(3) of the PSA. Section 160F of the PSA relevantly provides: 29 Cf. R v Smith [2015] 1 Qd R 323; [2013] QCA 397. -- 11 of 16 -- (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. [59] I respectfully conclude that the magistrate erred by fixing a parole eligibility date and should have fixed a parole release date. Ground 4: Totality in Sentencing [60] Finally, the appellant argued that the magistrate erred in the application of the totality principle by failing to fix the head sentence and the parole eligibility date by explicit reference to the aggregate term of imprisonment. [61] The appellant contends that the sentence also offends against the totality principle in that the magistrate failed to review the aggregate sentences and consider whether it was just and appropriate pursuant to s 9 of the PSA. [62] In Mill v The Queen,30 the High Court referred with approval to the passage in Thomas, Principles of Sentencing 2nd Edition, page 56 to 57: “The effect of the totality principle is to require a sentencer who has passed a series of offences, each properly calculated in relation to the offence for which it is imposed, and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and to consider whether the aggregate is, 'just and appropriate.' The principle has been stated many times in various forms. 'When a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the Court to take a last look at the total, just to see where it looks wrong.'; when cases of multiplicity of offences have come before the Court, the Court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences?” [63] In The Queen v Crofts31, the Court of Appeal said: "Of course sentences of imprisonment for a number of offences often ought to reflect that the offences were not committed in isolation. This is commonly referred to as the totality principle. The totality principle requires a Judge who is sentencing an offender for a number of offences, to ensure the aggregation of sentences of imprisonment is a just and appropriate measure for the total criminality involved. When an appropriate sentence imposed for the most serious offence is adequate to punish the total criminality involved other sentences are made concurrent. When the sentence for the most serious offence is inadequate for that purpose, and cumulative sentences are imposed for one or 30 Mill v The Queen [1988] 166 CLR 59. 31 The Queen v Crofts [1999] 1 Qd R 386 at 387. -- 12 of 16 -- more other offences, lower sentences than would otherwise be called for, can be imposed to achieve a suitable total punishment over all." [64] The ambit of the totality principle has been has been extended as explained in The Queen v Beattie, ex parte Attorney-General (Qld)32 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 the totality of criminality involved in all of the offences to which that total period is attributable’.” [65] In The Queen v Kendrick, 33 Morrison JA (with whom Fraser JA and Henry J agreed) provided a superb analysis of the relevant authorities.34 I don’t propose to repeat all that was said by His Honour, with which I, of course, agree. At paragraph [56], His Honour distilled the approach as follows: “The preferable approach, derived from Mill and Johnson, is that a sentence is fixed for each offence, then aggregated before taking the next step of determining concurrency or accumulation, and to consider what is an appropriate non-parole period. However, Johnson recognised that it was not an immutable practice.”35 [66] A 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.36 [67] When sentences are required to be served cumulatively, consideration of the aggregate of current sentences and the sentence to be imposed is a necessary precursor to the application of the totality principle to ensure there is an appropriate relativity between the whole criminality and the length of the sentences imposed. In R v Margaritis; Ex parte Attorney- General (Qld),37 Muir JA explained: “[12] The application of the totality principle does not require that there must invariably be some reduction in the accumulation of otherwise appropriate sentences to avoid the so called “crushing” effect. The appropriate course is to arrive at an appropriate sentence and then assess the cumulative effect to gauge whether the overall sentence is disproportionate to the offender’s criminality.” [68] It must also be borne in mind that s 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. As discussed above, the “period of 32 The Queen v Beattie, ex parte Attorney-General (Qld) [2014] QCA 2006 at [19]. 33 The Queen v Kendrick [2015] QCA 27. 34 The Queen v Kendrick [2015] QCA 27 at [31]-[41]. 35 See for example, R v Coleman Ann Lyons J (with whom Fraser JA and Gotterson JA agreed) had regard to the whole of the existing sentence (not just the remainder) and the cumulative sentence. 36 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]. 37 [2014] QCA 219, per Muir JA (PD McMurdo J and P Lyons J agreed). -- 13 of 16 -- imprisonment” means 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. Discussion [69] Turning to the case at hand, it is clear that the magistrate took into account that the defendant has been custody for about 6 months prior to the sentence and that this time was not declarable. 38 Her Honour also generally took into account the sentencing principle of totality:39 “I am satisfied that an appropriate sentence, in normal circumstances, would be two years’ imprisonment. I do take into account though the fact that you’re still a fairly young man. I have to look at the totality of the sentence, the total time that you have spent in custody, that a sentence should not be crushing. In recognition of those principles, I reduce the head sentence for the serious assault to 18 months’ imprisonment. That is to be served cumulatively on your current sentence.” [70] Her Honour then fixed the parole eligibility date by reference to the 18 month cumulative sentence, fixing the date at one third of this period. I have already found an error in relation to the starting point of 2 years and parole eligibility date. However, it is also apparent that Her Honour failed to explicitly consider the aggregate sentence and consider the appropriate non-parole period. [71] Adopting the Kendrick approach, the aggregate sentence imposed on the appellant calculated from the date he was returned to custody on 10 January 2016 to the new full-time discharge date of 28 May 2018 is 2 years, 4 months and 18 days. The parole eligibility date of 28 May 2017 is a period of 1 year, 4 months and 18 days from the date he was returned to custody. As such, the appellant must serve approximately 58% of his aggregate sentence before being eligible for parole. [72] Having regard to the discussion above, I have formed the view that the aggregate of the relevant sentences having regard to the non-parole period would have been too crushing and disproportionate to the overall criminality. In my respectful opinion the sentence is manifestly excessive as being too heavy and lies outside the permissible range. Conclusion [73] For these reasons, in my respectful view, the trial magistrate erred in exercising the sentencing discretion by: 1. acting upon a wrong principle in imposing an parole eligibility date; 2. allowing erroneous or irrelevant matters in the comparative cases to guide or affect her in setting the starting point; 3. failing to take into account some material considerations in the application of the totality principle; 4. resulting in a manifestly excessive sentence. 38 Decision T10/35. 39 Decision T11/20. -- 14 of 16 -- [74] The result embodied in the orders is, in my respectful opinion, unreasonable or plainly unjust. I therefore allow the appeal against sentence. Re-sentence [75] In those circumstances, I am required to allow the appeal and to re-exercise the sentencing discretion having regard to all that I have said above and the material before the magistrate. [76] At the time of sentence the appellant was 26 years old. He had a significant criminal history including prior offences of violence and a prior conviction for serious assault police committed on 25 March 2013 whilst on parole. [77] The appellant was subsequently arrested and returned to custody on 10 January 2016. 31 days were added to the appellant’s custody time for being ‘at large’. He had 10 months and 18 days to serve on the existing sentence until it expired on 28 November 2016.40 [78] Having regard to the comparable cases, the appropriate starting point is a notional sentence in the order of 16 months. The cumulative effect of that notional sentence and the existing sentence will produce an overall sentence that is disproportionate to the appellant’s overall criminality. [79] An adjustment to the sentence is warranted to reflect the overall criminality. Therefore I would reduce the starting point of 16 months to 12 months to be served cumulatively with the existing sentence from 28 November 2016. That means an effective head sentence in respect of all the offences, current and otherwise, of 1 year, 10 months and 19 days, until 28 November 2016. This reflects the overall criminality including his reoffending proximate to the parole release. [80] As to setting a parole release date, I would adopt the usual approach taken after a trial and adopt one half of the period of imprisonment from 10 January 2016, to arrive at a parole release date of 19 December 2016. Order [81] I allow the appeal, set aside the orders made by the Magistrates Court and substitute the following orders: 1. Appeal allowed. 2. Set aside the sentence and orders made in the Magistrates Court on 5 July 2016 and in lieu order as follows: (a) For the offence of obstruct police – the appellant is sentenced to 3 months’ imprisonment; (b) For the offence of serious assault police – the appellant is sentenced to 12 months’ imprisonment; 40 Exhibit 2 – Pre-sentence Custody Certificate. -- 15 of 16 -- (c) Those periods of imprisonment are to be served concurrently with each other, but cumulatively upon the term of imprisonment imposed on 14 August 2013; (d) A parole release date is fixed at 19 December 2016. Judge D. P. Morzone QC -- 16 of 16 --