Chapman v Queensland Police Service [2016] QDC 141

DISTRICT COURT OF QUEENSLAND CITATION: Chapman v Queensland Police Service [2016] QDC 141 PARTIES: Ashley Neal CHAPMAN (Appellant) -v- QUEENSLAND POLICE SERVICE (Respondent) FILE NO: Bowen D1/16 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Bowen DELIVERED ON: 02 June 2016 DELIVERED AT: Townsville HEARING DATE: 09 May 2016 JUDGE: Durward SC DCJ ORDERS: 1. Appeal allowed. 2. The sentence of imprisonment imposed in the Magistrates Court at Bowen on 04 February 2016 is set aside. 3. The Appellant is to appear to be re sentenced on a date to be fixed. His bail undertaking pending Appeal is enlarged. 4. I will hear the parties further with respect to costs of the Appeal after the resentence of the Appellant. CATCHWORDS: CRIMINAL LAW – SENTENCE – POSESSION OF A DANGEROUS DRUG – APPEAL – whether sentence of 2 months imprisonment wholly suspended for possession of a dangerous drug offence manifestly excessive – where quantity of dangerous drug, cannabis, was 0.5 of a gram. CRIMINAL LAW – SENTENCE – RELEVANCE OF CRIMINAL HISTORY – DISPROPORTIONALITY OF SENTENCE – considerations relevant to exercise of discretion – where sentence imposed reflected criminal history accumulated over time – where sentence imposed disproportionate to gravity of subject offence. -- 1 of 9 -- 2 CRIMINAL LAW – SENTENCE – PROCEDURAL FAIRNESS – where term of imprisonment imposed – where contemplated sentence of imprisonment was not communicated to defence by Magistrate – where submissions regarding appropriateness of imprisonment not sought by Magistrate. LEGISLATION CASES: Sections 222, 223, 225 and 231 Justices Act 1886; sections 9(11) and 13 Penalties and Sentences Act 1992. R v Cunningham [2005] QCA 321; R v Morse (1979) 23 SASR 98; R v Lomass (1981) 5 A Crim R 230; R v McIntosh [1923] St R Qd 278; Lowe v The Queen (1984) 154 CLR 606; Veen v The Queen (No 2) (1988) 164 CLR 465; R v CBG [2013] QCA 44; R v McCusker [2015] QCA 179; R v Taylor and Napatali, ex parte Attorney General (Qld) (1999) 106 A Crim R 578; R v Safi [2015] QCA 13; R v Taki [2015] QCA 60; R v Harrison [2015] QCA 210; House v The King (1936) 55 CLR 499; Hughes v Hopwood (1950) QWN 21. COUNSEL: D Castor of Counsel for the Appellant. A Walklate of Counsel for the Respondent. SOLICITORS: Aboriginal and Torres Strait Islander Legal Service for the Appellant. Office of the Director of Public Prosecutions for the Respondent. [1] The Appellant was convicted on 04 February 2016 in the Magistrates Court at Bowen of the offence of possession of a dangerous drug (a small quantity of cannabis – 0.5 of a gram – able to be held in the palm of the closed hand) and sentenced to 2 months imprisonment wholly suspended for an operational period of 12 months. [2] I heard the Appeal in Bowen on 09 May 2016. The Appellant has appealed on the following grounds: 1. That the sentence is manifestly excessive; 2. That the learned sentencing Magistrate erred in imposing a sentence that was disproportionate to the gravity of the subject offence; 3. That the learned sentencing Magistrate erred in placing excessive weight on the criminal history of the Appellant; 4. That the learned sentencing Magistrate erred in imposing a term of imprisonment without inviting submissions on the appropriateness of such sentence. Factual circumstances [3] On 12 July 2015 police apprehended the Appellant in Bowen and he agreed to accompany them to the police station. He was placed in the interview room (the police enquiries relating to other matters) and asked whether he had anything in his -- 2 of 9 -- 3 possession that he wished to declare. He unclenched his fist, producing 0.5grams of green leafy material. He said it was cannabis. Submissions to the Magistrate [4] No submissions on sentence were made by the prosecutor and there was no invitation from the Magistrate so to do, until after the defendant’s counsel had made his submissions. Mr Castor, who also represented the Appellant in the Court below, provided to his Honour antecedent information, submitted that the amount of cannabis involved was very small and said this offence of possession of a dangerous drug was at the lowest end of offences of this nature. He quite properly conceded that the defendant had an ‘unenviable’ criminal history with respect to drug matters, but submitted that the Magistrate should not impose a sentence that was disproportionate to the gravity of the subject offence. He submitted that a monetary penalty should be imposed. He said that since the appellant was now in paid employment, a monetary penalty would act as a personal deterrent to him. [5] The Magistrate then gave the prosecutor an opportunity to make a submission about section 9 (11) of the Penalties and Sentences Act 1992. The prosecutor however, elected not to make further submissions. The Magistrate did not offer that opportunity, prior to sentence, to Mr Castor. [6] Section 9 (11) of the Penalties and Sentences Act 1992 provides as follows: “Despite subsection (10), the sentence imposed must not be disproportionate to the gravity of the current offence.” Hence the issue of disproportionality was a live issue in the mind of his Honour. The Magistrate’s sentencing remarks [7] The Magistrate said in sentencing the Appellant that:  The plea of guilty was ‘timely but not early’;  the plea of guilty was taken into account and the sentence was reduced as a result;  the Appellant now had employment and he wished to be careful not to interfere with that employment as much as possible;  the criminal history of the Appellant was poor;  the offence was not particularly serious in the scheme of things;  his Honour’s original intention was to impose a sentence involving actual imprisonment; and  that if he was to impose a fine, it would have to be of such a significant amount that it would have a significant impact upon the Appellant’s lifestyle for years, potentially. -- 3 of 9 -- 4 [8] When the sentence was awarded, Mr Castor stated that he had not been heard with respect to a sentence of imprisonment and that he had an alternative submission about probation. He asked whether the Magistrate would be open to a submission about that. The Magistrate responded that Mr Castor had the opportunity to do so previously and that he had just passed sentence. He stated the following justification: “Given that Mr Chapman is working and given that I think that is the highest and best outcome for him personally, probation may well interfere unreasonably with that. If you are going to make those sorts of alternate submissions then you should do so at the time.” Mr Castor quite appropriately simply responded “as it pleases the court”. There was nothing else he could reasonably say. However, I have something to say about his Honour’s references to the Appellant’s employment and the ‘opportunity’ to make alternative submissions. Appellant’s submissions on appeal [9] The Appellant raises the issue of proportionality in the context of the low level gravity of the subject offence; the imposition of a sentence of imprisonment where the Magistrate said that he had originally contemplated an actual term of imprisonment, but in fact never communicated that to Mr Castor. The Appellant says that gave rise to considerations of procedural fairness, his counsel not having been forewarned that a case involving a very small amount of cannabis might require a submission for sentences alternative to that which he had submitted: namely a fine of sufficient proportion that reflected the criminal history, but not a sentence of imprisonment regardless of whether it was suspended or not. [10] There is also his Honour’s curious statement that the plea of guilty was ‘not early’ but nevertheless was ‘timely’. The Appellant expresses some uncertainty as to whether that statement meant that the plea was not taken into account in the full way; that the observation about ‘unreasonable interference’ with the Appellant’s employment did not reflect any submissions made to that effect in the course of the hearing; and that there was no evidence that the Appellant was unsuitable for a community order if a fine had been considered inappropriate or unreasonable in his circumstances. Antecedents of the Appellant [11] The Appellant was 37 years of age at the time of the offence and 38 years of age when dealt with by the Magistrate. His date of birth was 03 February 1978. [12] The Appellant had a criminal history in Queensland that included offences of dishonesty and numerous drug related offences. Between 1995 and 2004 he had been convicted and fined in respect of three possession of dangerous drug charges, four possession of utensils or pipes charges and one failure to take reasonable care and precaution in relation to a syringe. In 2010 he was convicted of two charges of supplying dangerous drugs and sentenced to one month imprisonment with immediate parole. In 2014 he was convicted of four charges of possession of dangerous drugs and sentenced to six months imprisonment for that charge and -- 4 of 9 -- 5 three months imprisonment for three minor drug offences, all of which were subject to immediate parole. In 2015 the Appellant was convicted of possessing utensils or pipes and was fined the sum of $300. The Respondent’s submissions on appeal [13] Mr Walklate submitted that a sentence of imprisonment was open to be imposed per se, simply by reference to a term of actual imprisonment having been imposed (with immediate release on parole) for a pervious drug offence (in August 2014); and that the defence should have had a ‘reasonable anticipation’ of a sentence of imprisonment being imposed, and referred to: R v Cunningham [2005] QCA 321 at p 10, per Jerrard JA. He also referred the Magistrate’s remark that he was imposing a sentence “that is sufficiently strong that you’ll keep the change [to his life] going…”. [14] In those circumstances, he submitted there was no sentencing error. Discussion The relevance of a criminal history [15] The criminal history referred to in paragraph [12] supra, is by no means remarkable and it is a matter of sentencing principle that one does not impose sentences that escalate – offence by offence – simply because the criminal history has accumulated over a period of time. To do so is an error in sentencing discretion. [16] However, whilst it is open to take a prior criminal history involving similar convictions into account on sentence, care should be taken not to place too much weight on this. The principles of sentence must be applied together and holistically. [17] In sentencing an offender it is the facts and circumstances of the subject offence that must be the primary consideration: Veen v The Queen (No 2) (1988) 164 CLR 465, at pp 476, 477-478. See also R v CBG [2013] QCA 44; and R v McCusker [2015] QCA 179. Disproportionality of the sentence [18] His Honour made two statements in imposing the sentence of imprisonment. In the first instance, he said that “half a gram of cannabis is not particularly serious in the overall scheme of things”; and then said the [Appellant] was “a mature man with a bad history. Punishment has to fit the crime and in relation to the gravity of the offence and your personal circumstances”. [19] As I have observed, too much emphasis was placed on the criminal history of the Appellant. Possession of half a gram of cannabis is not a serious offence and his Honour was correct in his statement to that effect. Further, the “gravity of the offence” was not great. It was at the lower end of the scale of seriousness. The sentence of imprisonment with immediate parole, imposed in August 2014, was not described in submissions in any way. On the face of the criminal history, which is part of the Magistrate’s Court file but is not recorded as having been tendered as an exhibit, which it should be if the Magistrate was to take it into account (which he clearly did), that sentence was made in respect of four charges of possession of dangerous drugs (unspecified as to type or quantity) and was imposed by his -- 5 of 9 -- 6 Honour’s predecessor as Magistrate at Bowen. The facts and circumstances of those offences were thus unknown. [20] Despite the sentence of imprisonment having been wholly suspended, it was in my view disproportionate to (as his Honour described it) the “gravity of the offence”. A fine would have sufficed. Procedural fairness [21] There has been a breach of procedural fairness in this case. I do not agree with the submission made on behalf of the respondent that Mr Castor could have ‘reasonably anticipated’ the imposition of a sentence of imprisonment – either actual or wholly suspended – for an offence of possession of 0.5 grams of cannabis, even where the Appellant had a prior history of drug offences. [22] In R v Cunningham [cited above], Keane JA (as he then was) wrote, at p 5-6: “to impose a penalty without allowing the person affected to have an opportunity to respond is a clear breach of the rule of natural justice that a court is required to follow. As Lord Fraser of Tullybelton, in a passage approved by this court in Re Criminal Proceeds Confiscation Act 2002 [2004] 1 Qd R 40 at 49, said in In re Hamilton; In re Forrest [1981] AC 1038 at 1045: ‘One of the principles of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against him, so that he, or someone acting on his behalf, may make such representations, if any, as he sees fit. That is the rule of audi alteram partem which applies to all judicial proceedings, unless its application to a particular class of proceedings has been excluded by Parliament expressly or by necessary implication.’ It has been recognised in previous decisions of this Court that the principle described by Lord Fraser is as applicable to sentencing as it is to any other judicial proceeding. See, for example, R v Moodie [1999] QCA 125; CA No 439 of 1998, 14 April 1999.” Taking account of the plea of guilty [23] The taking of a plea of guilty into account and a statement as to how it has been done “is an essential part of the transparency of the sentencing process”: R v Taylor and Napatali, ex parte Attorney General (Qld) (1999) 106 A Crim R 578, at 580 per McPherson JA. [24] Section 13 of the Penalties and Sentences Act 1992 provides that: “Guilty plea to be taken into account: (1) In imposing a sentence on an offender who has pleaded guilty to an offence, a court – (a) must take the guilty plea into account; and -- 6 of 9 -- 7 (b) may reduce the sentence that it would have imposed had the offender not pleaded guilty. (2) A reduction under subsection (1)(b) may be made having regard to the time at which the offender – (a) pleaded guilty; or (b) informed the relevant law enforcement agency of his or her intention to plead guilty. (3) When imposing the sentence, the court must state in open court that it took account of the guilty plea in determining the sentence imposed. (4) A court that does not, under subsection (2), reduce the sentence imposed on an offender who pleaded guilty must state in open court – (a) that fact; and (b) its reasons for not reducing the sentence. (5) A sentence is not invalid merely because of the failure of the court to make the statement mentioned in subsection (4), but its failure to do so may be considered by an appeal court if an appeal against sentence is made (emphasis added).” [25] Those principles have been recently considered and reinforced by the Queensland Court of Appeal: R v Safi [2015] QCA 13, at [16] per Fraser JA; R v Taki [2015] QCA 60, at [20], per Morrison JA; and R v Harrison [2015] QCA 210, at p 6 per Margaret McMurdo P. [26] However the Magistrate said that he took what he regarded “as a timely plea of guilty” into account, then added that it was not an “early” plea, but that the [Appellant] had not sought to have the matter “dragged out through a hearing and otherwise hugely delayed the matter”. He said he would reduce the penalty to take that into account. [27] I do not accept that the plea of guilty was not properly taken into account by his Honour. His language may have given rise to an inference that he may not in fact have done so that sometimes happens when a Judicial Officer is busy and giving ex tempore decisions. However, his Honour’s initial intention to impose a term of actual imprisonment was reduced to a wholly suspended sentence. He also acknowledged the cooperation given to police. That is sufficient overt compliance with section 13 of the Penalties and Sentences Act 1992. The meaning of ‘manifestly excessive’ [28] For a sentence to be ‘excessive’ it must be “beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness: R v Morse (1979) 23 SASR 98; R v Lomass (1981) 5 A Crim R 230; R v McIntosh [1923] St R Qd 278; Lowe v The Queen (1984) 154 CLR 606. Principles to be applied on Appeal -- 7 of 9 -- 8 [29] The Appeal is conducted as a hearing de novo, on the evidence that was before the Magistrate: sections 222 and 223 Justices Act 1886. [30] The material principle to be applied in an Appeal against sentence is that some error in the exercise of the sentencing discretion must be identified: in House v The King (1936) 55 CLR 499. Dixon, Evatt and McTiernan JJ, at 505 wrote: “The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the Judges comprising the appellate court consider that, if they had been in the position of the primary court they would have taken a different course. It must appear that some error has been made in exercising their discretion. If the Judge acts upon a wrong principle, if he allows extraneous 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.” [31] The principles governing appeals against the exercise of discretion on sentencing are well established. In Hughes v Hopwood (1950) QWN 21 at 31, Macrossan CJ stated that an Appeal Court is not entitled to interfere unless it “… can find that the sentence is manifestly excessive or that there are some circumstances which show that the Magistrate acted under a misapprehension of fact or on some wrong principle in awarding a sentence”. Powers on an Appeal [32] I may confirm, set aside or vary the appealed order or make any other order that I consider just: section 225(1) Justices Act 1886. An order made by me has the effect and may be enforced in the same way as if it had been made by the Magistrate below: section 225(4) Justices Act 1886. [33] Any sentence that I impose in determining the Appeal may be enforced as if no Appeal was made: section 231 Justices Act 1886. Conclusion [34] The Magistrate should have stated his initial view about actual imprisonment and thus alerted those at the bar table of that. It seems that Mr Castor would then have specifically addressed that issue in his submissions prior to sentence. [35] Whilst a criminal history that incudes prior similar offending is a relevant sentencing consideration, it must be assessed in the context of the facts and circumstances of the subject offence. His Honour did not do so. [36] His Honour was concerned not to interfere with the Appellant’s new employment arrangements. However, there were no submissions made to the effect that a fine (or any other order, including community based orders for that matter) would impact adversely on those arrangements. His Honour could have raised that matter in the course of the submissions. Indeed, with respect, he should have. Whilst his concerns about the change in the course of life of the Appellant were commendable, he had -- 8 of 9 -- 9 an obligation to alert those at the bar table to them so that they had the opportunity to make further submissions. [37] Insofar as his Honour’s observation about the plea of guilty is concerned, as I have observed, it is not altogether clear but he seems to have taken it into account in the customary way, the term of imprisonment having been wholly suspended. Resolution [38] The Appellant has discharged the onus and the grounds of appeal 1 to 4 referred to in paragraph [2] supra, have each been made out. His Honour’s sentencing discretion has miscarried. He erred in respect of the matters referred to above under the heading ‘Conclusion’. The appeal is allowed. The Appellant will be resentenced by me on a date to be fixed. I propose to do so in his presence so that he understands, by listening to me, why the appeal succeeded and why he needs to be cognisant of the very real potential of the imposition of terms of imprisonment should he be convicted of serious drug offence in the future. I would otherwise have substituted another sentence in lieu of imprisonment, in this judgment. ORDERS 1. Appeal allowed. 2. The sentence of imprisonment imposed in the Magistrates Court at Bowen on 04 February 2016 is set aside. 3. The Appellant is to appear to be re sentenced on a date to be fixed. His bail undertaking pending Appeal is enlarged. 4. I will hear the parties further with respect to costs of the Appeal after the resentence of the Appellant. -- 9 of 9 --