Chevathen v Queensland Police Service [2016] QDC 270

DISTRICT COURT OF QUEENSLAND CITATION: Chevathen v Queensland Police Service [2016] QDC 270 PARTIES: WAYNE STUART CHEVATHEN (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO.: APPEAL NO. 141/16 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Cairns DELIVERED ON: 4 November 2016 DELIVERED AT: Cairns HEARING DATES: 2 & 3 November 2016 JUDGE: Morzone QC DCJ ORDER: 1. Appeal allowed. 2. The order made in the Magistrates Court in Cairns on 5 July 2016 is varied by substituting the parole release date of 4 November 2016. 3. The conditions of the appellant’s parole will be under s 200 of the Corrective Services Act 2006 (Qld). 4. Direct that the appellant report to the Parole and Probation office at Cairns by 4:00 pm on 4 November 2016. CATCHWORDS: CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 – conviction – serious assault police – mode of hearing of appeal – error of law – whether sentence manifestly excessive by setting parole release date in relation to sentences required to be served cumulatively with existing -- 1 of 14 -- 2 sentence – 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 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 Smith [2015] 1 Qd R 323 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 206 The Queen v Kendrick [2015] QCA 27 R v Margaritis; Ex parte Attorney-General (Qld) [2014] QCA 219 R v Herbert [2013] QCA 62 Murray v The Queen [2015] QDC 219 COUNSEL: J. Trevino for the appellant N. Friedewald for the respondent SOLICITORS: Legal Aid Queensland for the appellant The Office of Director of Public Prosecutions for the respondent [1] On 11 August 2016 the appellant was sentenced in the Magistrates Court at Cairns on his plea of guilty to six offences as follows: 5 May 2016 Public nuisance (s. 6 Summary Offences Act) Convicted but not further punished 5 May 2016 Possession of a knife in a public place (s 51(1) Weapons Act) Convicted but not further punished 7 May 2016 Enter dwelling with intent at night (s 419(1)&(3)(a) Criminal Code) 12 months’ imprisonment -- 2 of 14 -- 3 7 May 2016 Enter premises & commit indictable offence by break (s 421 (2) and (3) Criminal Code) 12 months’ imprisonment 7 May 2016 Wilful damage (s 469 Criminal Code) 6 months’ imprisonment 8 May 2016 Assault or obstruct police (s 790(1) Police Powers and Responsibilities Act) 3 months’ imprisonment [2] Those sentences were ordered to be served concurrently with each other, but the head sentence of 12 months’ imprisonment was made cumulative upon an existing sentence being served by the appellant. A parole release date was fixed at 11 December 2016. [3] The appellant now appeals against the sentence. [4] Both parties provided outlines of argument, and made further submissions on the hearing of the appeal, which I have considered. Background [5] The offences the subject of this appeal were committed in breach of court-ordered parole which commenced on 27 April 2016. [6] On that date the appellant was convicted in the Magistrates Court at Cairns of 4 charges of contravening a domestic violence order, 3 charges of wilful damage, and 1 charge of burglary. For those offences the appellant was sentenced to 6 months’ imprisonment and given immediate release on parole taking into account 38 days in pre-sentence custody. [7] In the early hours of 5 May 2016, the appellant fought with another man outside a nightclub in Cairns. He was subsequently arrested and taken into police custody, where he was found in possession of a pocketknife. He was charged with public nuisance and possessing a knife in a public place. [8] The appellant’s parole was suspended on 5 May 2016. [9] Two days later at about 1:45pm on 7 May 2016, the appellant broke into the Yarrabah police station by smashing a glass door, constituting the offence of enter premises and commit. Whilst inside, the appellant used a black marker to graffiti on the wall, constituting the offence of wilful damage. The appellant further entered the accommodation barracks to the rear of the police station compound, constituting the offence of enter dwelling with intent. [10] The next morning, on 8 May 2016, the appellant was located by police in an open carport at a residential address in Yarrabah. When he saw the police car, the appellant walked towards the car with his hands behind his back. He did not comply with police commands to show his hands and continued to walk towards the car. He was subsequently tasered by police and even then resisted the attempts of the officers to restrain him and made threats that he would kill the police. That formed the basis of the assault or obstruct police charge. [11] The appellant was returned to custody on 8 May 2016. He did not participate in a record of interview with police. The appellant remained in custody from 8 May 2016 for about 3 months until the sentence on 11 August 2016. -- 3 of 14 -- 4 [12] On 11 August 2016 the appellant was sentenced with concurrent terms of imprisonment for the offences on 7 and 8 May 2016 with an effective head sentence of 12 months to be served cumulatively upon an existing sentence being served by the appellant. The parole release date was fixed at 11 December 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.1 [14] This court is required to make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view.2 [15] Fundamentally, the appellant must demonstrate some legal, factual or discretionary error.3 Ground of Appeal [16] The appellant appeals against the sentence on the basis that it was manifestly excessive because the magistrate erred in the process of fixing the parole release date which has resulted in an excessive sentence. [17] No complaint is made about the individual sentences, the head sentence of 12 months’ imprisonment imposed or that the sentence be served cumulatively upon the existing sentence. Appeal against sentence [18] This court ought not interfere with a sentence unless it is manifestly excessive, it is vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice. A mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.4 [19] The High Court held in House v The King that: 5 "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, 1 White v Commissioner of Police [2014] QCA 121 at [8] per Morrison JA (Muir JA & Atkinson J agreed). 2 White v Commissioner of Police [2014] QCA 121 at [4] per Morrison JA (Muir JA & Atkinson J agreed). 3 White v Commissioner of Police [2014] QCA 121 at [8] per Morrison JA (Muir JA & Atkinson J agreed). 4 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. 5 (1936) 55 CLR 499 at 504 and 505. -- 4 of 14 -- 5 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." [20] 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. [21] By contrast, an error may not be discernible but the sentence is manifestly excessive as being too heavy and lies outside the permissible range. Only then may the appellate court intervene and in the exercise of its discretion consider what sentence ought be imposed.5 Parole Release Date [22] The magistrate fixed a new parole release date of 11 December 2016 being almost 50% of the 16 and a half months’ total period of imprisonment. [23] After the appeal hearing I invited further submissions from the parties about: 1. whether the appellant committed the appeal offences on 7 and 8 May 2016 “during the period of the [parole] order” for the purposes of s 209 of the Corrective Services Act 2006 (“the CSA”) notwithstanding that the order was suspended on 5 May 2016; and 2. whether s 160B(2) of the Penalties and Sentences Act 1992 (“the PSA”) requires the court to set a parole eligibility date. Legislative provisions [24] Pursuant to s 160A of the PSA, 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 is relevant to this appeal. [25] 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.” [26] 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: 5 AB v R (1999) 198 CLR 111 at [130] per Hayne J (minority). -- 5 of 14 -- 6 “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.” [27] 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.” [28] This is a reference to a parole release date, being the date fixed by an 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. [29] “Parole” is defined in s 4 of the PSA to mean a parole order granted under the CSA. The CSA relevantly provides as follows: “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 s194 of the CSA or court ordered parole. parole period means the period during which a prisoner is released on parole.” [30] 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”. The “period of imprisonment” therefore includes the “term of imprisonment” a court is imposing at the time of sentence. Those terms are defined in s 4 of the PSA as follows: “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.” -- 6 of 14 -- 7 [31] Section 201 of the CSA empowers the chief executive to suspend a parole order as follows: “(2) The chief executive may, by written order, suspend a parole order if the chief executive reasonably believes the prisoner— (a) has failed to comply with the parole order; or (b) poses a serious and immediate risk of harm to someone else; or (c) poses an unacceptable risk of committing an offence; or (d) is preparing to leave Queensland, other than under a written order granting the prisoner leave to travel interstate or overseas. … (4) A written order suspending a parole order has effect for the period of not more than 28 days, stated in the written order, starting on the day the order is made.” [32] Section 202 provides for imprisonment of an offender after suspension of the parole order and arrest: “(1) If the chief executive makes a written order under section 201(2) suspending a prisoner’s parole order, the chief executive may issue a warrant for the prisoner’s arrest. (2) The warrant may be directed to all police officers. (3) When arrested, the prisoner must be taken to a prison to be kept there for the suspension period.” [33] Section 209 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.” [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 that: “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] Whilst the appellant obviously reoffended during the period of the parole order on 5 May 2016, he was not punished by a term of imprisonment for those offences. Therefore, s 160B(2) is not engaged. However, the issue is whether the appellant committed the appeal offences on 7 and 8 May 2016 “during the period of the order” for the purposes of s 209 of the CSA, notwithstanding that the order was suspended on 5 May 2016. -- 7 of 14 -- 8 [37] The appellant argues that s 160B(2) does not apply and the Court was obliged to set a parole release date under s 160B(3), despite the appellant reoffending while released on parole albeit suspended and pending his arrest. [38] At first blush 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. If the parole order was cancelled under either s 205 or s 209 of the CSA during the parolee’s period of imprisonment, a non-compliant parolee would not be subject of the mandatory imposition of a parole eligibility date (as opposed to a parole release date). It warranted further submissions and consideration. [39] Section 209(1) of the CSA provides for an automatic cancellation of a parole order if a prisoner is sentenced “to another period of imprisonment” for an offence committed “during the period of the order”. The provision was considered in a different context in R v Smith, 6 where Morrison JA said:7 “The reference to “another period of imprisonment” seems clearly to indicate that it is a period of imprisonment other than the one in respect of which the parole order was made. Further, s 209(1) does not require that the sentence, which has the effect of automatically cancelling the parole order, occur during the period of the parole order. It merely requires that a sentence be imposed in respect of an offence committed during the period of a parole order. Thus it contemplates at least two situations: first, where the offence and the sentence both occur within the period of the parole order; and secondly, where only the offence occurs during the period of the parole order, with the sentence occurring subsequently.” [40] The use of the term “period of the order” seems purposeful. The term “period of the order” is not used elsewhere in the PSA or CSA. Section 209(1) does not require the offence to be committed while released on parole like s 156A or while serving the term of imprisonment.8 [41] It seems to me that “period of the order” is a reference to the temporal period subject of the order. [42] It distinguishable from the various other terms used in those Acts. It is not the same as the term “parole period” which means the period during which a prisoner is released on parole (not being a reference to the period of the order). The term “released on parole” is a description of the state of an offender being released from a corrective services facility subject to the conditions of a parole order. The term “parole order” is a reference to the order as the instrument. [43] In R v Smith,9 Morrison JA distinguished between the “period of the order” and a “parole order”, again in the context of that case, saying: “[29] Section 209 makes provision in respect of two different things, namely a parole order in subsection (1), and the period of the order under subsection (2). It is the 6 R v Smith [2015] 1 Qd R 323. 7 R v Smith [2015] 1 Qd R 323 at [21] per Morrison JA (Muir JA and Daubney J agreed). 8 See Addo v Senior Constable Jacovos (Unreported, District Court Cairns, Morzone DCJ, 4 November 2016) for discussion about the effect of suspension on cumulative sentencing under s 156A. 9 R v Smith [2015] 1 Qd R 323 at [29] – [31] per Morrison JA (Muir JA and Daubney J agreed). -- 8 of 14 -- 9 parole order which is the subject of automatic cancellation under s 209(1). That cancellation can occur even after the period of the order has expired: s 209(2). Where that happens, the prisoner will not be taken to have served the period of imprisonment because s 215 is not engaged. Rather, s 211(2)(c) applies so that the only time served by the prisoner under the prisoner’s period of imprisonment is that which was served prior to committing the offence which subsequently, by way of sentence, results in the automatic cancellation of the parole order. [30] The construction above provides for a coherent system where a prisoner commits an offence during the period of a parole order. Where that occurs the prisoner becomes subject to a contingent liability that the sentence for that offence will have the result of automatically cancelling the parole order under s 209(1), even if the sentence bringing about that result occurs after the period of the parole order has expired: s 209(2). In that situation the contingent liability in terms of the period to be served is made clear by s 211(2)(c) of the CSA, which provides that the time served under the parole order up to the commission of the relevant offence is taken to be time served under the period of imprisonment, but the balance of the period is not. The balance of the period is the “unexpired portion” which must be served if the prisoner is arrested: s 210(3) of the CSA. [31] It does not matter to that analysis that a prisoner is outside prison when the prisoner is on parole. Section 214 of the CSA makes it clear that a prisoner released on parole is still taken to be serving the sentence. Further, if the contingent liability comes to pass, in the sense that a parole order is cancelled under s 209, the prisoner will not be taken to have served the period of imprisonment.” [44] With the benefit of further submissions by the parties, I opine that the suspension of a parole order does not end that parole order. Instead, its temporal operation is suspended until the parolee serves the suspension period. That is, the “period of the order” in this case was suspended from 5 May 2016 until completion of the appellant’s imprisonment for the suspension period pursuant to s 202 of the CSA. [45] This construction provides for a regime where a prisoner commits an offence during the suspended period of a parole order. The court’s power to impose a parole eligibility date is confined to a subsisting court ordered parole order not subject of suspension. The regime creates a diversion for non-compliant parolees, which subjects them to arrest and additional imprisonment. Further, the Chief Executive retains the power to cancel or amend the parole order under s 206 and s 209 would apply in that event. That this might result in a perceived anomaly in the legislation is not a matter for this court to resolve, but a matter for legislators. [46] Since the period of the order was suspended at the time the defendant re-offended on 7 and 8 May 2016, section 160B(2) is not engaged. Instead, the magistrate was required to fix a parole release date in accordance with s 160B(3) of the PSA. This requires the application of the totality principal to achieve a just and appropriate sentence. Totality in Sentencing [47] The appellant contends that the magistrate failed to set the parole release date by reference to the appellant’s total period of imprisonment pursuant to s 160F(2) of the PSA and without due regard the totality principle. -- 9 of 14 -- 10 [48] Section 160F plainly emphasises the significance of an offender’s period of imprisonment together with examples, as follows: “(1) One of the objects of sections 160A to 160E is to ensure that at any 1 time there is only 1 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. Examples— 1 O is sentenced to a term of 1 year’s imprisonment on 1 July 2007 with a parole release date of 1 January 2008. O is released on parole on 1 January 2008. On 1 April 2008, O is sentenced to a further term of 1 year’s imprisonment for another offence. A parole eligibility date fixed for O under section 160B(2) must relate to the 2 years period of imprisonment to which O has been sentenced and must not be earlier than 1 January 2008. 2 O is sentenced to a term of 1 year’s imprisonment on 1 July 2007 with a parole release date of 1 January 2008. On 1 November 2007, O is sentenced to a further term of 1 year’s imprisonment for another offence, to be served concurrently with the first term. A parole release date fixed for O under section 160B(3) must relate to the 16 months period of imprisonment to which O has been sentenced and must not be earlier than 1 January 2008.” [49] Section 160F requires that there only be one 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. The legislature has provided salient examples in relation to the application of the principles under section 160B(2) relevant here. As discussed above, the “period of imprisonment” means the unbroken duration of imprisonment that an offender is to serve for two or more terms of imprisonment, whether to be served cumulatively or concurrently. Fundamentally, consideration must be given to the total duration of imprisonment including the existing sentence and not just the sentence before the court. [50] This is consistent with the totality principal explained in Mill v The Queen,10 where 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 10 Mill v The Queen [1988] 166 CLR 59. -- 10 of 14 -- 11 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?” [51] In The Queen v Crofts11, 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 more other offences, lower sentences than would otherwise be called for, can be imposed to achieve a suitable total punishment over all." [52] The ambit of the totality principle has been extended as explained in The Queen v Beattie, ex parte Attorney-General (Qld)12 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’.” [53] This approach is made plain in s 160F of the PSA. For cumulative sentences, consideration of the aggregate of existing sentences and the sentence to be imposed is a necessary precursor to the application of the totality principle to ensure there is appropriate relativity between the whole criminality and the length of the sentences imposed. [54] In R v Margaritis; Ex parte Attorney-General (Qld),13 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.” [55] Further, in R v Herbert,14 the court held that: 11 The Queen v Crofts [1999] 1 Qd R 386 at 387. 12 The Queen v Beattie, ex parte Attorney-General (Qld) [2014] QCA 2006 at [19]. 13 R v Margaritis; Ex parte Attorney-General (Qld) [2014] QCA 219, per Muir JA (PD McMurdo J and P Lyons J agreed). 14 R v Herbert [2013] QCA 62 at [15] per Fraser JA (with whom Muir JA and Douglas J agreed). -- 11 of 14 -- 12 “[15] … Section 160F(2) merely makes it plain that a parole release date or a parole eligibility date fixed by the Court must relate to the total duration of imprisonment. The sentencing Judge understood as much.” [56] In The Queen v Kendrick,15 Morrison JA (with whom Fraser JA and Henry J agreed) provided a superb analysis of the relevant authorities.16 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.”17 [57] A failure to explicitly consider the aggregate sentence in order to determine whether the total sentence is just and appropriate bespeaks an error in the exercise of the sentencing discretion.18 Discussion [58] The force of this analysis was properly relied upon by the appellant’s solicitor at the hearing, which sparked the following exchange:19 “SOLICITOR: That section 160 of the Penalties and Sentences Act requires a Court to, effectively, take into account – add the terms that’s being imposed today to the term that he is, in this case, serving, which becomes the period of imprisonment. And that it is the period of – the period of imprisonment, in other words, the total to which a parole release date is fixed, which - - - BENCH: Well, that – that – I can stop you right there. That is just wrong and the Court of Appeal has said in the clearest possible terms that that’s just wrong. The judgment of Justice of Appeal Fraser said – it was very curt – said we’ve – on this occasion, this case – two previous occasions, [indistinct] that’s correct. I mean, it’s got to be moderated if it’s going to be cumulative. But the – the proposition that you add them together and just give him a third is wrong. Anyway, not a whole lot will turn on that on the ultimate disposition of it.” [59] His Honour’s approach was exposed in his decision where he said:20 “The position in respect of cumulative sentences and the application of the totality principle was succinctly statement by the Court of Appeal in the Decision of The Queen v Margaritis, where at paragraph 12 Justice Muir said: “The application of the totality 15 The Queen v Kendrick [2015] QCA 27. 16 The Queen v Kendrick [2015] QCA 27 at [31]-[41]. 17 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. 18 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]. 19 T1-19/36 to 1-20/2. 20 Decision 4/10-17 & 35-44. -- 12 of 14 -- 13 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. … Turning then to fixing a parole release date, it being the case that as you have committed these offences not whilst on parole – that is that your parole was suspended – under section 160, the Penalties and Sentences Act requires me to fix a parole release date. The appropriate manner in which that is determined, noting that the sentences will commence upon the ending of your current terms of imprisonment, on the 23rd of September 2016, is to fix a parole release date which will see you serve one third of the period of imprisonment imposed today. I therefore fix a parole release date which will see you serve four months of that period of imprisonment. I fix a parole release date as at the 11th of December 2016.” [60] The appellant’s period of imprisonment commenced on 8 May 2016, upon his return to custody. By the time of sentence on 11 August 2016, he had spent close to 3 months in custody. The resultant parole release date of 11 December 2016 is 43% of the appellant’s 16.5 months total period of imprisonment, being the aggregate of the existing sentence and proposed sentence. When fixing the parole release date, the magistrate did not have due regard to the period of imprisonment as required by s 160F. Instead, he identified the commencement date of the cumulative term and isolated the proposed term of imprisonment as the basis for setting the parole release date. [61] Harrison DCJ examined this approach in Murray v The Queen.21 His Honour considered s 160F in conjunction with the definition of “period of imprisonment” and examined the decisions of R v Herbert [2013] QCA 62 and R v Margaritis [2014] QCA 219. He concluded that there was no legislative or authoritative basis that supported the magistrate’s approach. I respectfully agree. [62] In my respectful opinion having regard to the non-parole period imposed, the sentence would be too crushing and disproportionate to the overall criminality, and the result was unreasonable or plainly unjust. [63] For these reasons, in my respectful view, the magistrate erred in exercising the sentencing discretion by acting upon a wrong principle when imposing a parole release date, resulting in a manifestly excessive sentence. [64] I therefore allow the appeal against sentence. Re-sentence [65] In those circumstances, I am required to re-exercise the sentencing discretion having regard to all that I have said above, the material before the magistrate and the relevant statutory sentencing guidelines. [66] The appellant was a relatively young man being 31 years of age and had a relevant criminal history. The public nuisance and possess knife offences were low level offending and the other 21 Murray v The Queen [2015] QDC 219. -- 13 of 14 -- 14 offending was “odd” and “bizarre”. The appellant suffered from a mental illness and was receiving treatment whilst in custody. Like the magistrate, I will moderate the sentence to reflect his mental health condition, with less weight attaching to the need for specific and general deterrence in the circumstances. I accept the appellant was remorseful. A cumulative sentence was appropriate.22 The appellant entered timely pleas of guilty. [67] No complaint is made about the individual sentences, the head sentence of 12 months’ imprisonment imposed or that the sentence be served cumulatively upon the existing sentence. On my review those matters do not warrant disturbance. The appeal concerns the parole release date ordered by the magistrate. [68] The appellant’s period of imprisonment commenced when he was returned to custody on 8 May 2016. He is liable to serve the existing imprisonment until 23 September 2016, when the new sentence of 12 months’ imprisonment will commence. After this sentence, the appellant’s full time release date will be 23 September 2017. The aggregate of the existing sentence and proposed sentence equates to an aggregate or total period of imprisonment of 16 months and 15 days. [69] Having regard to the appellant’s timely plea, mental health condition and the total period of imprisonment, a parole release after serving 180 days, being a little more than one third of his total period of imprisonment, is just and appropriate. This properly reflects the overall criminality including his violent reoffending proximate to his parole release. Orders [70] For these reasons, I make the following orders: 1. Appeal allowed. 2. The order made in the Magistrates Court in Cairns on 5 July 2016 is varied by substituting the parole release date of 4 November 2016. 3. The conditions of the appellant’s parole will be under s 200 of the Corrective Services Act 2006 (Qld). 4. Direct that the appellant report to the Parole and Probation office at Cairns by 4:00 pm on 4 November 2016. Judge Dean P. Morzone QC 22 See Addo v Senior Constable Jacovos (Unreported, District Court Cairns, Morzone DCJ, 4 November 2016). -- 14 of 14 --