Blatch v Commissioner of Police [2016] QDC 242

DISTRICT COURT OF QUEENSLAND CITATION: Blatch v Commissioner of Police [2016] QDC 242 PARTIES: JOSHUA BRETT BLATCH (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: 7/16 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: District Court at Maryborough DELIVERED ON: Ex tempore reasons delivered 8 September 2016 DELIVERED AT: Maryborough HEARING DATE: 8 September 2016 JUDGE: Smith DCJA ORDER: 1. The appeal is allowed. 2. The sentences imposed on the two counts of failing to appear, two counts of breaching a domestic violence order, 1 count of possessing a dangerous drug, one count of going armed in public and one count of burglary are set aside. 3. The compensation orders made with respect to the burglary count and the stealing count are also set aside. 4. In lieu thereof the appellant is convicted on each count and the following sentences are imposed: (a) For the failing to appear on 20 May 2016- convicted and not further punished. (b) For the failing to appear on 26 May 2016- convicted and not further punished. (c) For the breach of the domestic violence order on 13 January 2016- 14 days imprisonment. (d) For the breach of the domestic violence order on 14 January 2016- 14 days imprisonment. (e) For the possession of dangerous drug on 23 -- 1 of 6 -- January 2016- 7 days imprisonment. (f) For the going armed in public- 6 months imprisonment. (g) For the burglary- 2 years imprisonment. 5. Those terms of imprisonment are to be served concurrently with each other and concurrently with the other terms of imprisonment imposed by the magistrate on 4 July 2016. 6. I order that the date the appellant be released on parole be fixed as at 3 February 2017. 7. I declare pursuant section 159A of the Penalties and Sentences Act 1992 (Q) that the appellant has served 95 days in pre-sentence custody. I state the dates are between 4 June 2016 and 8 September 2016 and I declare that as time already served under the sentence. CATCHWORDS: CRIMINAL LAW – JUDGMENT AND PUNISHMENT – APPEAL AGAINST SENTENCE – whether magistrate erred – whether the magistrate should have made a compensation order in light of the fact the appellant was to serve a substantial time in prison- whether an entry in the history should have been excluded from consideration- whether the totality principle was considered- whether sentence manifestly excessive. Penalties and Sentences Act 1992 (Q) ss 9, 159A R v AB (1999) 198 CLR 111 R v Duncan [2006] QCA 46 R v Ewins [1996] QCA 203 R v Hughes [1998] QCA 61 R v Matauaina [2011] QCA 344 Teelow v The Commissioner of Police [2009] 2 Qd R 489 COUNSEL: Mr P Rutledge for the appellant Mr G Webber for the respondent SOLICITORS: Morton and Morton Lawyers for the appellant Office of the Director of Public Prosecutions for the respondent -- 2 of 6 -- 20160908/MBH/DC/1/Smith DCJ __________________________________________________________________________________ 3 HIS HONOUR: This is an appeal under section 222 of the Justices Act. In order for the appellant to succeed, he must show that there was some legal or factual error below (see Teelow v The Commissioner of Police [2009] 2 Qd R 489 at [4]). The appeal brought by the appellant alleges that the magistrate erred in imposing 5 default periods on the sentences for failure to appear, particularly bearing in mind he was only given 28 days to pay and clearly would not be able to because he was in custody. Secondly, an error was made in ordering compensation of $4100, again bearing in mind there was no possibility of paying this because he was sentenced to, effectively, 34 months’ imprisonment to serve 12 months (see e.g. R v Matauaina 10 [2011] QCA 344; R v Hughes [1998] QCA 61; R v Ewins [1996] QCA 203; R v Duncan [2006] QCA 46). Thirdly there was no reference to the totality principle. And finally the magistrate should not have had regard to an entry in the appellant’s criminal history from when he was a child. 15 I have paid careful regard to the decision given by the magistrate, and I do find that his Honour erred in the respects argued by the appellant. I note the respondent conceded that errors did occur in the sentencing process. In those circumstances, it is for this court to resentence the appellant (see R v AB 20 (1999) 198 CLR 111 at [130]). Let me turn to the appellant here. On 4 July 2016 the appellant was dealt with for two counts of failing to appear; one count of driving a motor vehicle without a driver’s licence, disqualified by court order, on 13 January 2016; a further count of 25 driving a motor vehicle without driver licence, disqualified by court order, 23 January 2016; three counts of assault or obstructing police, 4 June 2016; one count of wilful damage, 4 June 2016; one count of receiving tainted property, 2nd June 2016; one count of contravening a domestic violence order, 13 January 2016; one count of contravening a domestic violence order, 14 January 2016; one count of possessing 30 dangerous drugs, 23 January 2016; one count of burglary and commit indictable offence, 30 May 2016; and one count of going armed in public so as to cause fear, which offence occurred on the 4th of June 2016. He was born on the 4th of March 1992, so he’s still a relatively young man. He’s 35 presently 24 years of age. He has a criminal history. I disregard the first entry dated the 3rd February 2009, but thereafter, there are many offences of dishonesty and violence. Going through the history, for example, on the 4th of February 2010 he received three years’ imprisonment for robbery with actual 40 violence with circumstances of aggravation, two and a-half years for arson, another nine months for entering premises, six months for unlawful use of motor vehicles, another two years for attempted robbery and another six months for other relevant counts. He’d already done 283 days in pre-sentence custody. So a significant penalty was imposed on him then. Then later, he received three years cumulative for 45 a robbery -- 3 of 6 -- 20160908/MBH/DC/1/Smith DCJ __________________________________________________________________________________ 4 with circumstances of aggravation in the Beenleigh District Court, with parole fixed as at 8th December 2011. He appeared in 2013 in the Beenleigh Magistrates Court on assault or obstruct police, unlawful possession of a weapon, failing to stop a motor vehicle, and 5 contravening a direction. On 22 May 2014, he appeared in the Beenleigh Magistrates Court for assault occasioning bodily harm, unlawful possession of weapons, and carrying dangerous goods. So his history is not good for such a young man. His parole was suspended on some of those earlier sentences and he was released from jail in late 2015. After his release from jail, he committed the offences 10 now before the court. The facts of the offences are specified in the transcript. The stealing matter of the 6th of January relates to the theft of $50.02 in petrol. The disqualified driving relates to an intercept by police on the 13th of January 2016. The two domestic violence orders 15 involved contacting the aggrieved when there was a no contact order. He wanted to find out a password for Facebook. I consider they are minor breaches of that legislation. On 23rd of January 2016 he committed the offence of disqualified driving. He was 20 found, again, driving. He was traveling to the Calamvale Hotel to meet with friends. Police found some Subutex in his black bum bag on that occasion- the possession of drugs charge. The receiving charge (2nd of June 2016) involved receiving a Mastercard in the name of Min Chen and his wallet. As to the going armed in public charge on 4th of June 2016, he went to the FoodWorks store at Tiaro at 9 am. He was 25 clearly affected by a substance. He was agitated and aggressive. He yelled out he wanted an ambulance. The victim said he’d call one. He was undecided. The victim offered to drive him to Maryborough hospital. He then jumped up, knocked over some carry baskets. They tried to calm him down and he picked up a pair of scissors. He kept up his demands of wanting an ambulance. The victim was fearful someone 30 was going to be injured. The assault matters relate to the police attending the store, and the appellant behaving erratically. Police told him to get to the ground. They used the Taser to try and restrain him. He kicked out at a male and connected with one of the officers. He 35 continued to resist arrest. A third officer subdued him. He was still thrashing and kicking about. As to the burglary on 30th of May 2016 he broke into the rear window of a house at Little Mountain with others and stole property – cash, jewellery. The total was about 40 $4100. It’s a serious offence. There’s the wilful damage on the 4th of June. It relates to a mud guard of a vehicle and a scuff mark on the bonnet. So bearing in mind his history, a condign punishment was called for. Having said all of that, the defence solicitor informed the magistrate that at the time 45 her client was 24 years of age. After his release from jail, he was able to get a job straight away – or at least within two weeks – as a forklift driver, and worked 12 hour shifts. -- 4 of 6 -- 20160908/MBH/DC/1/Smith DCJ __________________________________________________________________________________ 5 He entered into a relationship. Unfortunately, he separated from his former partner in January 2016, and things went downhill. At the time of the sentence, he had a new partner who was six weeks pregnant. He went to year 8 at Marsden State High School. On his release from custody, he intended to move to Brisbane or the 5 Sunshine Coast to obtain employment with forklift driving or landscaping. A number of character references were tendered on his behalf. I’ve read those carefully. It seems to me he’s well-regarded, and he did change after his release in October 2015, but, unfortunately, relapsed, and used ice. It seems to me, on the 10 material, that drug use is his problem, and he’s got to stay away from ice. If he doesn’t, he will come back before the Courts again, and get longer and longer sentences. The keys are in his hands, not in the Courts’. He’s got to make the choice. So he needs to put in place a plan, a relapse prevention plan, when he’s released from jail, it seems to me. 15 The Defence solicitor explained the circumstances relative to the offences, and I’ve had regard to those submissions in reaching my conclusions today. It was submitted he was regretful and remorseful for his actions. I accept that. In the cold light of day, I’m sure he is. The solicitor pointed out to the magistrate that the appellant had 20 served 28 days in pre-sentence custody. A submission was made for a wholly or partly suspended sentence. Ultimately, the Magistrate imposed a total of, in effect, 34 months’ imprisonment, with release in excess of a third, and made the orders for compensation I’ve referred to previously. 25 In re-sentencing the appellant, I have regard to the purposes of sentencing mentioned in section 9 subsection (1) of the Penalties and Sentences Act, and the matters mentioned in section 9 subsection (2). Also, with respect to the going armed in public and assaults, I have regard to the matters mentioned in section 9 subsection (3) of the Act. I have regard to the pleas of guilty; they are timely ones. The penalty 30 should reflect the pleas of guilty, and, also, his prospects of rehabilitation. In the circumstances, my orders will be as follows: (1) The appeal is allowed. (2) I set aside the sentences imposed on the two counts of fail to appear, the two counts of breaching a domestic violence order, the one count of possessing a dangerous drug, 35 the one count of going armed in public, and the offence of burglary. I also set aside the compensation orders made on the stealing count and the burglary count. The other sentences are not interfered with. (3) With respect to each count with which I am dealing, a conviction is recorded. 40 With respect to the failing to appear, on the 20th of May 2016, he is convicted and not further punished. With respect to the failing to appear on 26 May 2016, he is convicted and not further punished. With respect to the breach of the domestic violence order on 13 January 2016, I imprison the appellant for 14 days. With respect to the breach of the domestic violence order on 14 January 2016, I imprison 45 the appellant for 14 days. With respect to the possession of the dangerous drug charge from 23 January 2016, I imprison the appellant for seven days. With respect to the going armed in public charge from 4th June 2016, I imprison the appellant for -- 5 of 6 -- 20160908/MBH/DC/1/Smith DCJ __________________________________________________________________________________ 6 six months. With respect to the burglary and commit indictable offence on 30 May 2016, I imprison the appellant for two years. All of those terms are to be served concurrently with each other, and concurrently with the other penalties imposed by the Magistrate on the 4th of July 2016. I order 5 that the date the appellant be released on parole be fixed as at 3rd February 2017. Pursuant to section 159A of the Penalties and Sentences Act, I declare that the appellant has spent 95 days in pre-sentence custody. I state the dates are between the 4th of June 2016 and the 8th of September 2016, and I declare that as time already 10 served under the sentence. HIS HONOUR: Any other orders needed, Mr Webber? MR WEBBER: Not in my submission. 15 HIS HONOUR: Mr Rutledge? MR RUTLEDGE: No. Thank you, your Honour. 20 HIS HONOUR: Well, thank you both for your assistance. And bear in mind, Mr Blatch, you will be released on the 3rd of February next year now, all right? And I would strongly advise that you take steps to stay off these drugs. If you don’t, you’ll just breach this parole and be locked up; do you understand that? You’ll also need to report to the parole office within 24 hours of your release, all right? 25 APPELLANT: Yep. Thank you. HIS HONOUR: All right. Well, thank you both for your assistance. 30 ______________________ -- 6 of 6 --