Brase v Queensland Police Service [2016] QDC 24

DISTRICT COURT OF QUEENSLAND CITATION: Brase v Queensland Police Service [2016] QDC 24 PARTIES: ANDREW PAUL ROSS BRASE (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO/S: APPEAL NO: 168 of 2015 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Cairns DELIVERED EX TEMPORE ON: 11 February 2016 DELIVERED AT: Cairns HEARING DATE: 11 February 2016 JUDGE: Morzone QC DCJ ORDER: 1. Appeal allowed. 2. In respect of charges 1 to 4, set aside the order that the appellant be imprisoned for a period of 12 months. 3. In lieu thereof, the appellant is sentenced as follows: a. For charge 1 of public nuisance committed on 26 July 2015, 4 months imprisonment; b. For charge 2 of failing to appear committed on 13 August 2015, 1 month imprisonment; c. For charge 3 of wilful damage committed on 17 August 2015, 4 months imprisonment; d. For charge 4 of public nuisance committed on 17 August 2015, 4 months imprisonment; 4. The sentences for charges 1, 3 and 4 are to be served concurrently with each other and with the sentence that the appellant is already currently serving. 5. The sentence for charge 2 is to be served cumulatively upon the sentence the appellant is already currently serving and upon the sentences hereby imposed for charges 1, 3 and 4. -- 1 of 7 -- 2 6. The parole eligibility date of 15 January 2016 is undisturbed. CATCHWORDS: CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 – conviction on guilty plea – limited appeal rights in respect of conviction – appeal against sentence – whether manifestly excessive – whether magistrate placed too much emphasis on appellant’s criminal history – whether magistrate failed to take into account whether total sentence imposed was just and appropriate Legislation Justices Act 1886 (Qld), ss 222, 223(1), 158A and 158B Penalties and Sentences Act 1992 (Qld), ss 160F Cases House v The King (1936) 55 CLR 499 The Queen v Baker [2011] QCA 104 Mill v the Queen [1988] 166 CLR 59 COUNSEL: J. Trevino for the Appellant SOLICITORS: Legal Aid Queensland for the Appellant The Office of the Director of Public Prosecutions for the Respondent [1] On the 16th of October 2015 the appellant was convicted on his own plea in the Magistrates Court to four offences, namely: (1) public nuisance committed on 26 July 2015; (2) fail to appear committed on 13 August 2015; (3) wilful damage committed on 17 August 2015; and (4) public nuisance committed on 17 August 2015. [2] The appellant was sentenced on each charge to four months’ imprisonment. The sentence imposed in respect of charges 1, 2 and 4 were ordered to be served cumulatively with each other, with the effect that charges 3 and 4 would be served concurrently. The result was that the head sentence of 12 months was ordered to be served cumulatively upon a sentence of 11 months which the appellant was already then serving. Background [3] At sentence, the appellant was serving that 11 month sentence as a result of earlier offences, namely, breach of probation imposed in respect of one charge of wilful damage of police -- 2 of 7 -- 3 property, public nuisance, and assault or obstruct police; breach of probation imposed in respect of one charge of stealing; breach of suspended sentence imposed in respect of four charges of failing to appear and one charge of public nuisance, two charges of failing to appear, two charges of public nuisance, and three charges of stealing. [4] The earlier sentence comprised of a mixture of concurrent and cumulative sentences for those offences which were dealt with on the 23rd of June 2015 and subsequent offending which were dealt with on the 7th of July 2015. On that date the appellant was sentenced for one charge of public nuisance, one charge of possession of a knife in a public place, and one charge of consuming alcohol on land controlled by a local authority. The sentences imposed in respect of the subsequent offences were ordered to be served concurrently with the sentences imposed on the 23rd of June 2015. [5] The offending that was committed and subject of the sentence relevant to this appeal occurred whilst the appellant was on parole for offending of a similar nature. Consequently, he was returned to custody on the 17th of August 2015. And by the time the sentencing magistrate dealt with him for the sentences subject of appeal on the 16th of October 2015, the appellant had already spent almost two months in custody since his return. On my reckoning, the pre- existing sentence of 11 months’ imprisonment was due to expire on the 11th of June 2016. The sentencing magistrate, whilst dealing with the later offences, ordered the appellant be given a parole eligibility date of 15 January 2016, being three months after the date of sentence. Grounds of appeal [6] The appellant appeals against the sentence on the ground that the sentence was manifestly excessive. It is argued that the sentence is manifestly excessive for two reasons: (1) The learned magistrate placed too much emphasis on the appellant’s criminal history; and (2) The learned magistrate failed to take into account whether the total sentence imposed was just and appropriate. Appeal against sentence [7] This Court ought not interfere with the sentence unless it is manifestly excessive where it is vitiated by an error of principle, or there has been a failure to appreciate a salient feature, or there is otherwise a miscarriage of justice. [8] A mere difference of opinion about the way in which the sentencing discretion should be exercised is not a sufficient justification for review. It must be shown that the discretion miscarried. I’m guided by the established principles in the House v the King,1 and subsequent application of those principles by the courts. Circumstances of offending [9] The public nuisance offence (charge 1) involved the appellant propositioning an elderly woman who resided at a hostel in which the appellant was staying. The proposition was for sex. She 1 (1936) 55 CLR 499 at 504 and 505. -- 3 of 7 -- 4 refused, and in response the appellant threatened, “I’m going to get a knife and stab you.” He was charged on the date of offending, the 26th of July 2015 and failed to appear in the Brisbane Magistrates Court on 13 August 2015. He failed to appear in accordance with his undertaking and thus committed the second offence being the failure to appear (charge 2). [10] The offending relating to charges 3 and 4 occurred over one course of conduct. The appellant created a disturbance at Cairns Tropical Zoo whilst significantly intoxicated. The zoo staff asked him to leave. He refused and chased some of them yelling, “You’re lucky you got away, I’m a dangerous man.” He then urinated on a pathway leading to the zoo entrance, tipped over a bench and destroyed a tree (constituting the wilful damage for charge 4). After this he confronted a woman who was attempting to leave the zoo. He followed her to her car calling her “lesbian cunt” before grabbing her arm. The woman pushed the appellant away and managed to get into the car. The appellant then jumped onto the bonnet of the car and spat on the driver’s side window. The woman managed to leave. The appellant’s misbehaviour continued. He was seen kicking a pelican through the zoo fence. Shortly after the time of his arrest, his blood alcohol concentration was recorded at 0.244 per cent. [11] At the hearing before the sentencing magistrate emphasis was placed upon the appellant’s “extensive history for like offending”, and that the subject offending occurred whilst on parole for similar offences. The Court was urged to impose cumulative terms of imprisonment. The Court also heard on behalf of the defendant that the appellant had significant health issues which included a diagnosis of schizophrenia as well as alcohol abuse. His early pleas were emphasised and the Court was urged not to impose a cumulative sentence on the basis that it may be too crushing. [12] As is apparent from the sentencing remarks of the magistrate, the appellant’s pleas were accepted as being timely. His criminal history of like and past offending was described as “prolific”. And the magistrate observed the appellant had “a complete lack of ability to not offend for any significant period of time.” His Honour recognised that the appellant seems to offend in association with his alcohol consumption. He said “despite the attempts or the opportunity that community based orders have been offered, your offending has continued. And it has quite simply reached the point where orders for imprisonment are to be made with respect to offences of this nature.” The magistrate had regard to the maximum penalty applicable to the offending including six months for public nuisance, and two years for failing to appear. [13] At this hearing, and quite properly, the appellant, through his counsel, take no issue with the parole eligibility date set by the magistrate of 15 January 2016 but maintain arguments consistent with the grounds set out above. Manifestly excessive [14] It is difficult to discern from the sentencing remarks to what extent the magistrate relied and acted upon the appellant’s criminal history except that which I have set out above. It is also difficult to discern whether the magistrate considered the principles of totality. Clearly enough by setting the parole eligibility date, his Honour had regard to balancing factors which are consistent with turning his mind to the principles of totality (applying s 160F of the Penalties and Sentences Act 1992 (Qld) (“the Act”)). -- 4 of 7 -- 5 [15] The appellant’s criminal history is evidently prolific, as described by the magistrate. Clearly enough, it is a proper consideration in arriving at an appropriate and just sentence. However, in doing so an offender’s criminal history ought not take on an overwhelming force and thereby elevate the nature of the offending subject of the sentence. It seems to me that by raising the defendant’s criminal history in the way he did, the magistrate properly considered the nature and extent of the appellant’s offending, including the effectiveness of various sentencing options which had been tried and failed in respect of the appellant. In that context I’m unable to discern any error that reference or consideration of the criminal history contributed to the extent of the sentence, although it is said to be manifestly excessive. [16] However, the appellant also contends that the sentence offends against the totality principle in that the magistrate failed to review the aggregate sentences and consider whether it was just and appropriate. The appellant points to the imposition of the cumulative terms which it seems to me are in congress with the magistrate’s setting of the parole eligibility date. [17] The totality principle has received much judicial consideration and comment. It is a settled principle and I do not propose to repeat what has been said. In The Queen v Baker,2 Atkinson J, with whom the President and Lyons J agreed, said: The sentencing judge in this case did not consider, after he had imposed both sentences, whether the combined sentence offended the totality principle. He did not, in accordance with the requirements in Mill, review the aggregate sentence and consider whether the total was just and appropriate… The failure to explicitly consider the aggregate sentence in order to determine whether the total sentence was just and appropriate bespeaks an error in the exercise of the sentencing discretion. [18] I do not think that her Honour, by those remarks, meant that the absence of express reasons in the sentencing remarks fail to show such a review and thereby constitutes or bespeaks an error. But an absence of such remarks are, at least, consistent with an absence by the judge or magistrate of consideration of the principles. Here, the imposition of the periods of imprisonment of up to four months on each of the offences are unremarkable if considered in isolation. However, the sentencing magistrate had before him sufficient material and circumstances which ought to have invoked consideration of amelioration of the sentences rather than requiring them to be served cumulatively. The legislation dictated a cumulative sentence in respect of charge 2 for the failure to appear offence. But the balance required the magistrate to exercise his discretion, cognisant of the totality principle, to arrive at a just and appropriate sentence. [19] In Mill v the Queen,3 the High Court set out the principles at page 63: The effect of the totality principle is to require a sentencer who has passed a series of sentences, 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 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 2 [2011] QCA 104 at [47]. 3 [1988] 166 CLR 59. -- 5 of 7 -- 6 necessary for the court to take a last look at the total just to see whether it looks wrong'; 'when ... cases of multiplicity of offences 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.' [20] Here, it seems to me that the learned magistrate acted on a wrong principle by simply totalling the specific punishments for each of the offences. By doing so the second stage of considering that total, which in my view looks wrong, and reviewing the aggregate to consider what was just and appropriate, was not undertaken by the sentencing magistrate. I have formed the view that the aggregate of the various sentences imposed by the magistrate is too crushing and disproportionate to the overall criminality. This was an appropriate case, as I have indicated, to reflect the total criminality in the sentence. This would be done by attaching to the most serious offence a head sentence with the balance to be served concurrently, except where required by statute to be served cumulatively. In my respectful view, the head sentence of 12 months, as imposed by the magistrate, was outside the appropriate range, such that the sentence is manifestly excessive, unreasonable, and plainly unjust. Re-sentence [21] In those circumstances, I am required to allow the appeal and to re-exercise the sentencing discretion. The appellant is 32 years old. He does have a significant history of dishonesty and street offending. At various opportunities the Court has provided and imposed different forms of punishment which have apparently failed to have any significant personal deterrence upon the appellant. I have set out the facts and circumstances of the subject offending. The appellant’s behaviour has had significant impact upon others who were going about their lawful and ordinary daily lives. I’ve taken into account the defendant’s health issues, his early pleas and that he had, by the time of sentence before the magistrate, spent almost two months in custody. Consistently with the approach by the appellant, I do not propose to disturb the parole eligibility date of the 15th of January 2016. [22] Having regard to the totality principle, the total effect of the sentence imposed on the appellant must bear a proper relationship to his overall criminality. Viewed in its entirety, having regard to all the relevant circumstances and sentencing considerations, the total effect of the sentence should not be too crushing or disproportionate, that is, it should not destroy any reasonable expectation of a useful life after his release from custody, hopefully having the deterrent effect intended by the sentence. It seems to me that, having regard to his criminal history, periods of imprisonment are warranted for the offences, cognisant of the maximum penalties applicable to them, and all that I have said above. [23] The sentence must accord with the Act such that it is appropriate punishment in the circumstances, facilitates avenues of rehabilitation, deters others from committing a similar offence, makes it clear that the community denounces the appellant’s conduct in his offending, and protects the community. Orders [24] For these reasons, I make the following orders: 1. The appeal is allowed. -- 6 of 7 -- 7 2. The orders of the Magistrates Court made on 16 October 2015 are set aside to the extent that the sentences in respect of charges 1 to 4 are substituted as follows: (a) For charge 1 of public nuisance committed on 26 July 2015, 4 months imprisonment; (b) For charge 2 of failing to appear committed on 13 August 2015, 1 month imprisonment; (c) For charge 3 of wilful damage committed on 17 August 2015, 4 months imprisonment; (d) For charge 4 of public nuisance committed on 17 August 2015, 4 months imprisonment; 3. The sentences for charges 1, 3 and 4 are to be served concurrently with each other and with the sentence that the appellant is already currently serving. 4. The sentence for charge 2 is to be served cumulatively upon the sentence the appellant is already currently serving and upon the sentences hereby imposed for charges 1, 3 and 4. 5. The parole eligibility date of 15 January 2016 is undisturbed. Judge D. P. Morzone QC -- 7 of 7 --