Barry v Commissioner of Police [2015] QDC 61

1 DISTRICT COURT OF QUEENSLAND CITATION: Barry v Commissioner of Police [2015] QDC 61 PARTIES: WILLIAM BARRY Appellant and COMMISSIONER OF POLICE Respondent FILE NO: No. 324 of 2014 PROCEEDING: Appeal against sentence DELIVERED ON: 13 February 2015 DELIVERED AT: Southport HEARING DATES: 6, 11 & 13 February 2015 JUDGE: Judge C.F. Wall Q.C. ORDER: Appeal allowed CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – BAIL GRANTED PENDING APPEAL – where the appellant was granted bail but remained in custody for other offences – whether a sentence stops running once bail is granted in circumstances where appellant was not released from custody – whether release from custody is required – appellant sentenced to 9 months imprisonment for using a carriage service to menace, harass, or cause offence – whether the sentence was manifestly excessive Bail Act 1980, s 19, s 20, s 23, s 24, s 27, s 31, s 34 Child Protection (Offender Reporting) Act 2004 Commonwealth Crimes Act 1914, s 17A, 19B, 20(1)(a) Commonwealth Criminal Code 1995, s 474.17 (1) Penalties and Sentences Act 1992, s 147, s 158, s 159A (4)(A), s 159A (10) Re Groves [1973] Qd R 310 COUNSEL: Mr J. McNab for the Appellant Mr N. McGhee (6 & 11 February), Mr M. Whitbread (13 -- 1 of 10 -- 2 February), and Ms V. Deane for the Respondent SOLICITORS: Legal Aid Queensland for the Appellant Queensland Director of Public Prosecutions and Commonwealth Director of Public Prosecutions for the Respondent HIS HONOUR: This is an appeal by the defendant against sentences imposed on him on the 27th of October 2014 in the Magistrates Court at Southport. On that date, the appellant was convicted after pleading guilty of an offence of using a carriage service to menace, harass, or cause offence contrary to section 474.17(1) of the Commonwealth Criminal Code committed on the 2nd of October 2014. He was sentenced to imprisonment for nine months with release 5 after three months – that is, on the 26th of January 2015 – upon entering into a recognisance to be of good behaviour for three years. The maximum penalty for the offence is three years imprisonment. This conviction also breached a suspended sentence of imprisonment of four months, 10 imposed on him in the Ipswich Magistrates Court on the 10th of December 2013 for six offences of failing to comply with a reporting requirement under the Child Protection (Offender Reporting) Act 2004. These offences were committed between the 4th and the 9th of September 2013. The operational period of the sentences was 12 months. 15 The Magistrate found that it would not be unjust to order the appellant to serve the whole of the suspended imprisonment of four months. His Honour ordered that the appellant serve the whole of the suspended imprisonment and fixed a parole release date of the 26th of January 2015. The effect of his Honour’s orders as to release dates, which is also agreed by the parties, is that the sentences are to be served concurrently, notwithstanding that his Honour 20 earlier said that the Commonwealth sentence was to be cumulative upon the State sentences. Also on the 10th of December 2013 in the Ipswich Magistrates Court, the appellant was convicted of eight fraud offences committed in April, May, July, and August 2013. For these, he was sentenced to 18 months imprisonment on each charge concurrent, and a parole 25 release date of the 10th of March 2014 was fixed. He was thus on parole when he committed the present Commonwealth offence. His criminal history also included convictions in the Townsville Magistrates Court on the 1st of February 2013 of four fraud offences committed in October 2012 and two offences of 30 failing to comply with reporting conditions committed in September and October 2012. For each of the fraud offences, he was sentenced to six months imprisonment concurrent with his parole release date fixed as the 1st of December 2013, and for the other offences he was fined. He also has convictions in Victoria. In October 2008 he was sentenced to 66 months 35 imprisonment for child sex offences. In March 1999 he was sentenced to concurrent terms of two months imprisonment for fraud-related offences, and in February 1998, for fraud-related offences, he was sentenced to wholly suspended terms of four and five months’ imprisonment. In 1979, he was fined for stealing. 40 -- 2 of 10 -- 3 He was granted bail pending the hearing of this appeal on the 21st of November 2014, but has not been released in accordance with that grant of bail because he is in custody serving the sentence of 18 months imprisonment because his parole was revoked on the 27th of October 2014. His full-time release date is the 10th of March 2015. He is said by the Department of Corrective Services and by the respondents to the appeal not now to be 5 held in custody on the sentences under appeal, notwithstanding the imperfected grant of bail. Notwithstanding the presentence custody certificate – exhibit 5 – it does, though, appear that he has, since the 27th of October 2014, been serving the sentences imposed on that date concurrently with the sentences of 18 months. The Commonwealth contends that he has 10 served only 26 days between the 27th of October and when bail was granted on the 21st of November, but the fact is he was not released on the 21st of November 2014. Notwithstanding that a presentence custody certificate is not intended to determine whether a prisoner is or is not being held in custody on a particular charge, see the Penalties and 15 Sentences Act, section 159A(4A) and (10), more so at this stage of proceedings. The certificate in the present case – exhibit 5 – states, in relation to the present Commonwealth charge: The prisoner is not held in custody on this charge. Prisoner was held on remand for 20 this charge on 17th of October 2014 to 27 October 2014. At this date, he was sentenced for this charge. Appeal bail granted 21st of November 2014. This state of affairs is repeated in the Corrective Services sentence calculations – exhibit 4 – wherein it is recorded that as a result o the grant of bail on the 27th of November 2014, the 25 present charges have “been removed from the sentence calculation.” The respondents contend that the sentence stopped running when the appellant was granted bail, even though he was not released from custody as a result of the grant of bail. They rely on section 158A of the Penalties and Sentences Act which provides: 30 The term of imprisonment of an offender who appeals against sentence and is granted bail awaiting the determination of the appeal does not run during the time the offender is on bail. 35 In my view, the offender is not on bail for the purposes of this section until he is released from custody. In addition, the Bail Act clearly distinguishes between a grant of bail and release on bail. See, for example, sections 19, 20, 23, 24, 27, 31, and 34. This is consistent with the common 40 law position. In Re Groves [1973] Qd R 310 at 311 Mr Justice W.B. Campbell said: A person is said to be admitted to bail when he is released from the custody of officers of the law and entrusted to the private custody of persons called his bail. They become bound as sureties to produce him to answer, according to law to the charge or claim at 45 a specified date or place (1 Hale, Pleas of the Crown, at page 96). -- 3 of 10 -- 4 This is also how bail is defined in Osborn’s Concise Law Dictionary. In Judicial and Statutory Definitions of Words and Phrases, a 1905 United States publication, the following is said of the terms ‘bail,’ ‘released on bail,’ and ‘admission to bail’: Bail as a verb means the delivery of one under arrest to another. Bail is a delivery or 5 bailment of a person to his sureties; hence, a person out on bail is regarded in legal theory as in the custody of the sureties. The term “to bail” signifies to deliver and was at common law the delivery of the respondent to the persons who became sureties for his appearance. Blackstone derives the word bail from the French ‘bailler,’ to deliver into hands. Some derive it from the Greek word to deliver into hands. A person 10 released on bail is a person who is not in prison. An allegation in an action on an appeal bond that the accused was admitted to bail did not constitute an averment that the person was discharged from custody. The appellant was not released from custody following the order made on 21st of November 15 2014. The fact that this was because of other sentences he was serving does not mean he did not continue to serve the sentences under appeal. In my view, he did. The grant of bail on the 21st of November 2014 did not result in his release on bail for the sentences under appeal. He remained in custody serving those sentences. This means that he has already served the custodial portion of the sentences imposed on the 27th of October 2014. If the respondents’ 20 argument is correct, there would be no point in making a bail application. The application was made in the present case on the basis that the appellant may have been released earlier on the other sentences he is serving. Notwithstanding these facts, it is necessary, in any event, to consider the merits of the 25 appellant’s appeal. The facts of the Commonwealth offence as stated by the police Prosecutor, explained by Ms Turner, solicitor who appeared for the defendant, and accepted by the Magistrate are these. On the 2nd of October 2014, the defendant was at his home address at Southport. He 30 completed an online inquiry with Flight Centre on their website. The form related to the defendant inquiring about flights to Cairns. About 3 pm the same date Victoria Winwood from Flight Centre Southport telephoned the defendant on his mobile phone. She asked him why he was travelling to Cairns. He said he was going to Cairns as he was arranging for a bikie to kill his wife. Ms Winwood laughed, presuming the defendant was joking. He then 35 said, “No, I’m deadly serious. You can keep that to yourself.” Winwood was immediately alarmed by the comment. However, she continued to discuss the defendant’s travel so he did not become suspicious. At the termination of the phone call she reported his comments to her supervisor and the police. 40 On the same day the police attended the defendant’s home address where he was located and he accompanied them to the Surfers Paradise Police Station where he took part in an interview. In that interview he admitted telling the Flight Centre employee that he had planned to travel to Cairns to arrange for his wife to be killed. He agreed that Winwood’s 45 version of what he said was correct. He said he made the comment as a joke and he had no ex-wives living in Australia and had no intention of arranging for any ex-wives to be killed. He agreed the comments could cause alarm to the other person at the other end of the phone. There were no threats made against the particular person. Rather, it was stupid comment. -- 4 of 10 -- 5 Ms Turner made the following submissions to the magistrate. The appellant is 53 and employed full time as a travelling salesman in renewal energy solar panels. He made a very stupid comment, a stupid joke, a poor attempt at humour for which he is sorry. He is not now married and has two former wives, both living overseas. He cooperated with police and 5 made admissions. No threat was made against any person. He is not charged with threatening to kill a person. No one was, in fact, in danger. He doesn’t know any bikies. This is not a domestic violence issue. There is no aggrieved spouse saying she felt threatened that he was going to do anything. He was very remorseful. It was an early plea of guilty. It was an isolated event. He has not offended in a like manner previously. Most of the 10 comparative sentences referred to were of threats made to or about actual persons. Ms Turner also contended that the appellant had served about 23 days in non-declarable pre-sentence custody between the 4th and the 27th of October 2014. This was, in fact, time served on the 18-month sentence following the revocation of his parole. Ms Turner 15 submitted that it was the Commonwealth offence that, “in effect, was what got him in custody now.” That may be so but it didn’t mean that the time could legitimately be taken into account and declared. The magistrate, though, referred to it and said: It is a matter that I can take into account in my calculations of what to impose here 20 today. This suggests a sentence starting point higher than nine months or a reduction in his release date for this reason. 25 For the Commonwealth offence the police Prosecutor submitted that a conviction be recorded; that a fine was not appropriate; that a section 19B bond is not suitable; and that, “at the very least,” a section 20(1)(a) bond could be imposed but that a fine could be imposed which would be “somewhat more severe than a bond.” For the State offences it was submitted that it would not be unjust to order the appellant to serve the whole of the 30 suspended imprisonment. Alternatively, it was submitted that he should be ordered to serve part of the suspended imprisonment. For the Commonwealth offence Ms Turner submitted the non-declarable pre-sentence custody was a sufficient punishment and that a section 20(1)(a) bond should be imposed. For 35 the State offences it was submitted that it would be unjust to “activate” the suspended sentences and the operational period should be extended for 12 months because the Commonwealth offence is different to the fraud offences and because of the non-declaration pre-sentence custody. 40 On the appeal, Mr McNab for the appellant submitted that because the magistrate did not, as he was required by section 17A of the Crimes Act, state that he had considered all available sentences and was satisfied that no other sentence than imprisonment was appropriate in all of the circumstances, the sentence should be re-considered. 45 Notwithstanding that his failure to do so does not invalidate the sentence (section 17A(3)) it is an error which does enliven the discretion to reconsider the sentence imposed for the Commonwealth offence. Other submissions made by Mr McNab were: -- 5 of 10 -- 6 Commonwealth offence: (1) Insufficient regard was had to the appellant’s cooperation with and admissions to police. 5 (2) The magistrate wrongly approached the offence as one of making a threat to kill, which he was not charged with. (3) Too much weight was placed on the appellant’s criminal history, contrary to what is said in Veen v the Queen (No 2) (1988) 164 CLR 465 at 477 to the effect that 10 whilst it can be taken into account, it should not be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would impose a fresh penalty for past offences. (4) Comparative decisions to which the magistrate was referred do not support the 15 sentence imposed. Rather, they support a bond. (5) Insufficient weight was placed on the appellant’s guilty plea at the earliest opportunity. 20 (6) The magistrate placed weight on the prevalence of domestic violence in Australia and allowed this to influence his approach and distract him in circumstances where the charge was not one of committing domestic violence. State offences: 25 (7) It was unjust to impose all of the suspended imprisonment because the Commonwealth offence is an offence unrelated to the suspended imprisonment offences, was committed about 10 months into the 12 months’ operational period and is towards the lower end of criminality. 30 Mr McNab submitted that the appellant should be placed on a section 20(1)(a) bond for the Commonwealth offence and the operational period for the State offences should be extended. He conceded that the appellant’s criminal history and offending on parole are relevant considerations to the imposition of penalty. 35 In my view, there is no substance in grounds 1 and 5, notwithstanding that the magistrate said that: Other than your plea today, I have only your say so and no other demonstration of 40 remorse. I am satisfied that he, in fact, dealt appropriately with the appellant’s cooperation with police and his early plea of guilty. I should record, though, that a plea of guilty is, in fact, by itself a demonstration of remorse. Earlier his Honour referred to the fact that the appellant took part 45 in a record of interview with police and made admissions. His Honour also said: That timely plea of guilty saves the taxpayers the costs of any further proceedings from today. It shows that you’ve taken personal responsibility for committing this crime. It -- 6 of 10 -- 7 also saves the witnesses and victims the necessity of having to come to court to give evidence against you and to face you in court. So that, in particular, is also a very great saving and a benefit to you in sentence. On the other hand, I think there is substance in the other grounds relied upon by Mr McNab. 5 The appellant was not charged with using a carriage service to make a threat to kill, an offence against section 474.15(1) of the Commonwealth Criminal Code. The maximum sentence for that offence is imprisonment for 10 years. 10 The appellant was, in fact, charged with using the telephone to menace, harass or cause offence to Ms Winwood. In relation to this aspect, the magistrate said: You’ve made the remark, you’ve made the threat and everyone is now left guessing. It’s all very well for you to say, “It was just a joke.” What credibility have you got with 15 your history of fraud and dishonesty? Later his Honour said: A threat to kill is a threat to kill. It doesn’t really matter whether you were threatening 20 to bomb someone or shoot them or to stab them, or whether you leave them guessing how you’re going to go about it. After referring to the facts of a comparative decision of Horne, his Honour said: 25 Well, that’s not even as serious as a threat to kill. A little later his Honour said: The submission that you can’t make good on your threat because you have no wife in 30 Australia I find totally irrelevant. I think it likely that the magistrate, in fact, sentenced the appellant for conduct extending beyond what is involved in the offence with which he was charged. In the present case the appellant did not threaten anyone. He said only that he was going to Cairns to arrange for a 35 bikie to kill his wife. As to the appellant’s criminal history, the Magistrate referred to it in detail, described it as a disgrace, and said: 40 That history shows that you have little regard for others and for their personal safety and welfare, for their physical welfare, or for their financial welfare. And those matters are highly relevant here today. The sex offences in Victoria involved sexual activity with and without penetration of a 45 female child under 16. And it is difficult to see that these were what his Honour was referring to when he referred to the personal safety and welfare, and physical welfare of others. Apart from these offences, the appellant’s criminal history consists almost entirely of -- 7 of 10 -- 8 offences of dishonesty. In these circumstances I think the Magistrate, with respect, in all probability has inadvertently overvalued or misrepresented the accused’s criminal history. As to the ground relating to domestic violence, the Magistrate said: 5 I have been advised here in court today and on the last occasion that you have no ex- wives living in Australia. I hardly think that matters. In this day and age where the world has virtually shrunk in size and it is so easy for people to do things on the other side of the globe with almost an instant’s notice, I hardly think that matters. And if your ex-wives learned or have learned about this threat, they would be quite entitled to 10 feel very concerned. You’ve heard me remark earlier today that in this country alone it is a national disgrace that on average, from 500 to 600 Australian women a year are killed by their partners and ex-partners. This is a verified statistic published recently by the 15 Australian Institute of Criminology. You are just such a person: an ex-partner of two women who may come to learn of this ridiculous threat. If nothing further is done about men behaving badly to women in this country, then it means over the next decade, if nothing different is done to what we’re doing now, in the next decade 600 Australian women will be dead at the hands of their partners and ex-partners. You might compare 20 that to the risk of six Australian soldiers being killed in Iraq in the next 10 years. You might compare that to the risk of there being 600 terrorist attacks on Australian soil in the next 10 years. But there will be 600 women dead. This was not a case of domestic violence. And the Magistrate’s comments were, with 25 respect, completely irrelevant and inappropriate, and likely to have influenced his sentencing discretion. This ground has therefore been made out. A schedule of what was said to be comparative decisions was placed before the Magistrate. His Honour didn’t find the schedule particularly helpful but did refer to some decisions. They were clearly different from the present. Brelsford involved a threat to kill amongst other threats. Unsworth and Kaufer also 30 involved a threat to kill. Sawtell involved threats to cause serious harm and a maximum penalty of imprisonment for seven years and other threats for which the defendant was sentenced to eight months imprisonment with immediate release. Horne involved charges of the type faced by the appellant and sentences of probation, community service and imprisonment with immediate release. Wench involved threats to kill by a defendant with an 35 old and irrelevant criminal history. He was sentenced to four months imprisonment with immediate release. Mr McNab referred me to a number of other decisions. These included Smedley, where phone threats were made directly to the complainant and the young, first offender was placed on a section 19B bond; McKieran, where a phone threat was made to the complainant to hurt 40 her children, and the defendant was placed on a section 20(1)(a) bond; Dane, where the defendant phoned her bank manager and threatened to “blow you fucking up, you fuckers” and was fined; Des Met, where threats where made to separate persons and the defendant was also placed on a section 20(1)(a) bond; and Smith, District Court, Warwick, 8th of November 2007 where a phone threat to attack nurses at a hospital was made to hospital staff member, 45 and the defendant was sentenced to six months imprisonment with immediate release. Ms Deane for the Commonwealth referred to Conias, where the threat was made to the complainant; Haberkorn, where 617 calls were made to 12 complainants threatening them, -- 8 of 10 -- 9 and the defendant had previously been sentenced for similar offences; Casey, where threats were made to two separate complainants; Renella, where threats were made to the complainant and his family; Worth, where a threat was made to a police officer’s life, and Russell, where threats were made to harm Centrelink staff. 5 None of these decisions are comparable to the present case. And none support a sentence such as was imposed by the Magistrate. Had this been the only complaint, I would have concluded that this was by itself sufficient to indicate error in the exercise of the sentencing discretion by implication from the length of the sentence. 10 Generally, the Magistrate took into account the non-declarable presentence custody as being effectively attributable to the Commonwealth offence, the absence of any like offending on the appellant’s criminal history, and the fact that he was on parole and subject to a suspended sentence when he committed the offence. 15 State Offences In finding that it would not be unjust to order the appellant to serve the whole of the suspended imprisonment, the Magistrate curiously said he had regard to the nature of the offences for which the suspended imprisonment was imposed and the nature of the 20 Commonwealth offence. There is no similarity between the offences, in fact there is a clear difference between them and this does not appear to have been recognised or sufficiently recognised. The Commonwealth offence is not though a trivial offence. Further, the Magistrate appears to have overlooked the requirement to have regard to the 25 relative length of any period of good behaviour during the operational period, section 147(3)(v)(A) of the Penalties and Sentences Act. Here, the Commonwealth offence was committed about 10 months into the 12 months operational period of the suspended imprisonment. In Smith already referred to, the judge did not activate the entire 18 months suspended imprisonment given that the defendant had done more than half the operational 30 period without committing an offence. His Honour activated half the sentence and ordered immediate parole which was consistent with imprisonment with immediate release for the Commonwealth offence. Disposition 35 In my view, taking account of the circumstances of the offence and its commission whilst the appellant was on parole and subject to a suspended sentence of imprisonment, and having regard to the features of the case and the offender already referred to, no other sentence than imprisonment is appropriate in all of the circumstances. To this extent, I agree with the 40 Magistrate. In my view, the present Commonwealth offence is not as serious as Smith, no direct threat having been made to anyone. But on the other hand, whilst it was also committed when the defendant was subject to a suspended sentence of imprisonment, he was not also on parole at 45 the time. It should though be recognised that the appellant is presently suffering the consequences of offending whilst on parole, his parole having been revoked by reason of the commission of the Commonwealth offence. -- 9 of 10 -- 10 For the State offences, I consider for the reasons given that it would be unjust to order the appellant to serve the whole of the suspended imprisonment. The Commonwealth offence bears no similarity to the reporting offences. And he’d almost completed the operational period. Offending whilst subject to a suspended sentence is not though to be regarded as risk 5 free. … HIS HONOUR: For the reasons I have given I allow the appeal in respect of both sentences. 10 I set aside the sentences imposed by the Magistrate and in lieu thereof the following sentences will be substituted therefor. And these sentences take into account that the appellant has, in fact, been in custody for the Commonwealth and State offences from the 27th October 2014 until the 27th of January 2015, along with other sentences. 15 For the Commonwealth offence he will be sentenced to imprisonment for one month commencing today, with immediate release upon entering into a reconnaissance in the sum of $200 to be of good behaviour for 12 months. For the State offences I order that he serve, commencing on the 27th of October 2014, one month of the four months suspended imprisonment imposed in the Ipswich Magistrates Court on the 10th of December 2013 for 20 the offences of failing to report. That sentence is to be served concurrently with other sentences he has been serving. The effect of these substituted sentences is that the appellant is not now liable to serve any more time in prison for the Commonwealth and the State offences. So does that cover 25 everything now? MS DEANE: Thank you, your Honour. MR WHITBREAD: Thank you, your Honour. 30 HIS HONOUR: All right. Thank you for your assistance. -- 10 of 10 --