Brandon v Commissioner of Police [2014] QDC 88

DISTRICT COURT OF QUEENSLAND CITATION: Brandon v Commissioner of Police [2014] QDC 88 PARTIES: JASON ANTHONY ROBERT BRANDON v COMMISSIONER OF POLICE FILE NO: BD4580/2013 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Brisbane District Court DELIVERED ON: 17 April 2014 DELIVERED AT: Brisbane HEARING DATE: 14 April 2014 JUDGE: Smith DCJ ORDER: Appeal dismissed CATCHWORDS: CRIMINAL LAW- SENTENCE- Whether errors made- whether sentence is excessive Bail Act 1980 (Q) ss 29 and 33 Justices Act 1886 (Q) ss. 222, 223 and 225 Penalties and Sentences Act 1992 (Q) s 9 R v Barbaro and Zirilli [2014] HCA 2 Teelow v Commissioner of Police [2009] QCA 84 COUNSEL: Mr. N. Hanley Solicitor for the Appellant Mr. Y. Matsuyama Solicitor for the Respondent SOLICITORS: Legal Aid (Q) for the Appellant Office of the Director of Public Prosecutions (Q) for the Respondent Introduction [1] This is an appeal by Mr Brandon against sentences imposed on him in the Caboolture Magistrates Court on 19 November 2013. -- 1 of 8 -- 2 [2] Section 222(2)(c) of the Justices Act 1886 (Q) provides that where the defendant pleads guilty then the person may only appeal on the sole ground that the fine, penalty, forfeiture or punishment was excessive or inadequate. [3] Section 223(1) of the Justices Act provides that the appeal is to be by way of rehearing on the evidence given in the proceeding before the justices. There is also provision for the admission of fresh, additional or substituted evidence in certain circumstances. [4] Section 225(1) of the Justices Act provides that: “On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.” [5] In Teelow v Commissioner of Police [2009] QCA 84, Muir JA held at [4]: “It is a normal attribute of an appeal by way of rehearing that the powers of the appellate court are exercisable only where the appellant can demonstrate that having regard to all of the evidence now before the court, the order that is the subject of the appeal as a result of some legal, factual or discretionary error …”. The charges [6] The following were the charges and penalties imposed: Charge No. Date Offence Sentence Parole Release Date 1 5 July 2013 Commit public nuisance 6 months imprisonment 30 January 2014 2 5 July 2013 Assault or obstruct police 6 months imprisonment 30 January 2014 3 5 July 2013 Commit public nuisance 6 months imprisonment 30 January 2014 4 5 July 2013 Assault or obstruct police 6 months imprisonment 30 January 2014 5 5 July 2013 Assault or obstruct police 6 months imprisonment 30 January 2014 6 5 July 2013 Assault or obstruct police 6 months imprisonment 30 January 2014 7 5 July 2013 Assault or obstruct police 6 months imprisonment 30 January 2014 8 13 July 2013 Contravene direction or requirement. Convicted and not further punished. 9 29 July 2013 Failed to appear in accordance with an undertaking 3 months imprisonment cumulative 30 January 2014 -- 2 of 8 -- 3 In addition 12 days pre-sentence custody dating between 8 November 2013 and 19 November 2013 was declared. The effective sentence was nine months imprisonment to serve 2 months and 22 days. The proceedings [7] The appellant was born on 2 September 1977. He was 35 years old at the time of the offences and 36 years old at the time of the sentence. The appellant had a very lengthy criminal history of 17 pages. The history included five offences for breach of bail, numerous disorderly conduct offences, numerous offences of assaulting/obstructing police offences and a number of breaches of court orders. He had been sentenced to imprisonment on not less than eight occasions. [8] The present offences occurred while the appellant was the subject of a District Court parole order imposed on 25 June 2013. On that occasion the appellant had been sentenced to six months’ imprisonment with an immediate parole release date (73 days was declared pre-sentence custody) for serious assault, two charges of assaulting a police officer and drunk or disorderly conduct. The sentencing proceedings [9] A schedule of facts was handed to the court by the prosecution. [10] At about 8.40 pm on 5 July 2013 police were called to assist the ambulance service at soccer grounds at Grant Road, Morayfield. After the police arrived they saw the appellant had a head wound. He was also intoxicated, clearly affected by prescription drugs. [11] He was taken to the hospital where they arrived at about 9.00 pm. [12] At about 9.10 pm the appellant began to abuse hospital staff and police. He was asked several times to keep quiet. He initially complied but then started to swear loudly calling police and nearby civilians “fucking cunts”. The police continued to try to reason with him. He then threw a punch at Constable Kenworthy. The punch was stopped before it connected. There was a short struggle and the appellant was placed under arrest. He refused to put his right arm behind his back despite police instructions. He was then issued with a notice to appear. [13] At about 11.00 pm on 5 July 2013 whilst the appellant was at the hospital, Constables Jurd and Wilson from the Caboolture Police Station attended the Caboolture Hospital in order to guard another prisoner who was receiving treatment. The appellant was in a bed nearby being held down by two other police officers. These two police left and Constable Jurd and Wilson were asked to remain to ensure the appellant did not cause a disturbance. The appellant then started abusing Constable Jurd calling him a “dog cunt”. At this time the appellant was in the emergency department where a number of civilians, including a small child, were located. The police advised the appellant he was causing a public nuisance. He then began abusing the other prisoner. The appellant again was asked to be quiet but continued to hurl abuse. After a treating doctor left the appellant was told to -- 3 of 8 -- 4 stay in bed. The appellant then attempted to stand up and told the police “go fuck yourself”. Constable Jurd advised him he was under arrest for public nuisance. He started to throw punches at Constable Jurd then kicked him with his legs. His right leg connected with Constable Jurd’s stomach causing pain and discomfort. Security staff attended to assist. The appellant continued to struggle whilst handcuffs were being applied and then refused to get out of bed. He was then carried to a police vehicle and transported to the watch house. [14] Whilst at the watch house he was given an identifying particulars notice requiring him to attend the police station to provide identifying particulars. He failed to attend the police station to provide these within the specified time-frame. He later told police he thought it was in August rather than in July when he had to attend the police station. [15] He also failed to appear in the Caboolture Magistrate’s Court on 29 July 2013. The appellant when questioned about this said that he thought the court date was in late August. [16] The prosecution contended for the head sentence of 12 months’ imprisonment for the appellant to serve one third (T1-6.25) taking into account the failure to appear. It should be noted this decision was decided before R v Barbaro and Zirilli [2014] HCA 2 and accordingly no weight should be attached to the prosecution’s submission in this regard. [17] The defence solicitor pointed out to the court that there had been no previous failures to appear. He usually turned up for his court dates. On this occasion his legal aid application was not lodged in time for his court date and he was not reminded of when he needed to appear and he missed the court date. He was readily located at his home address. It was an oversight on his part. It was submitted a fine only would be appropriate on this charge (T1-7.7). [18] It was submitted with respect to the failure to comply with the direction there was no need for the court to impose any additional punishment for that offence. [19] As regards the substantive offences, the appellant was drinking with some friends at a local pub. Whilst drinking he was assaulted by another person causing a head wound. He became agitated as a result of this offence. The appellant has had a problem with alcohol and had been trying to overcome that problem for sometime. It is his intention on release from custody to take Naltrexone because when he had taken it, it enabled him to abstain from drinking for quite a period of time. [20] The defence then relied on a report by Dr Kovacevic dated 19 May 2013. The report noted the following: (a) The appellant had an extensive history of alcohol and illicit substance abuse and was under the care at that stage of the prison mental health service having been diagnosed with paranoid schizophrenia and was receiving a combination of anti-psychotic and sedative medications (2.7). -- 4 of 8 -- 5 (b) He had recently been admitted to the Caboolture Hospital’s Psychiatric Unit where he had been treated for an acute psychotic episode (2.8). (c) He had been experiencing auditory and visual hallucinations for over 10 years, the symptoms first occurring in the context of illicit substance abuse (3.2). (d) The appellant received little in terms of consistent treatment over the years (3.3). (e) It was clear the appellant began abusing alcohol and drugs from the age of 13 but he had stopped abusing morphine and speed some six years prior but his drinking had increased markedly. He believed his drinking exacerbated his psychosis (3.5). (g) The appellant had only gone to school until year 8. The family disintegrated when he was aged 13 (4.4). (h) He was able to maintain relatively stable employment despite ongoing illicit substance abuse (4.5). (i) The most critical event in his life was the death of his father about seven years prior. After this death his drinking escalated significantly and he had been spending the majority of time in custody (4.6). (j) The appellant lived with his mother in Caboolture. She is wheelchair bound and requires significant care and assistance and he helped her (4.6). (l) As for his plans for future he was hoping to get out of prison to support his mother and was planning to find employment and attend AA meetings. (m) In conclusion the doctor was of the opinion that alongside the appellant’s anti-social background. He had an extensive history of poly-substance abuse and alcohol dependence. In this context he developed a major mental illness namely schizophrenia (6.3). The doctor concluded he was probably psychotic at the time of the offences (I hasten to add these are the offences for which he was dealt in June 2013). (n) “I believe the combined effects of mental illness and intoxication reduced his capacity to control himself and caused impairment in his thinking and judgment. In the circumstances where he already experienced significant paranoia intoxicating effects of alcohol contributed to his impulsivity, anger and aggressive behaviour that ultimately precipitated his offending” (6.7). (o) In conclusion the appellant suffers chronic paranoid schizophrenia. The condition is chronic and severe. His prognosis was guarded. The doctor believed there was a strong relationship between his mental illness and his offending behaviour (7.3). He thought it would be challenging for him to maintain his compliance with medications in the community. [21] The defence solicitor submitted that the appellant as a result of his mental condition perceived that he was going to be mistreated by police. When the police arrived it caused him to react badly. The appellant was very remorseful for his behaviour. He is a very different person when sober (T1-8.10). It was submitted that a sentence of imprisonment would certainly be an appropriate penalty. It was conceded that six -- 5 of 8 -- 6 months’ imprisonment was within the range with respect to the substantive offences (T1-8.20). It was submitted that the court might consider a parole release date after one third of his sentence (two months). It was submitted that his parole had been suspended fairly shortly after 5 July 2013 (T1-8.32). It was stressed it was important for him to look after his mother. It was also stressed that with the Naltrexone treatment this would assist his rehabilitation (T1-9.1). [22] It was submitted that the parole release date should be around 26 November 2013. A certificate of pre-sentence custody was obtained which showed that there was 12 days of pre-sentence custody. The appellant had indeed served 12 days past his full-time sentence for which the parole had been cancelled (T1-9.10). Decision [23] The learned magistrate noted the appellant had pleaded guilty to all of the charges. He noted that he had a criminal history of similar charges and had been given terms of imprisonment in the past (R2.2). He was sentenced to six months’ imprisonment for all charges excluding for the breach of bail offence. [24] It was noted by the learned magistrate that there were no breaches under the Bail Act of failing to appear but there were certainly breaches of the Bail Act previously (R-2.43). The magistrate imposed three months’ imprisonment to be served cumulatively. Grounds of appeal [25] The notice of appeal simply alleges that the sentence was manifestly excessive. [26] In the appellant’s outline however the two grounds relied upon are: 1. The sentence under the Bail Act was manifestly excessive; and 2. The learned magistrate erred in taking into account the appellant’s pleas of guilty. This ground was abandoned at the hearing of the appeal. The sentence for the Bail Act was manifestly excessive. [27] It is submitted by the appellant that the maximum penalty for a breach of s 33 of the Bail Act is two years’ imprisonment or 40 penalty units. Any such term must be served cumulatively upon any other term of imprisonment (see s 33(4)). [28] It is then pointed out that a breach of a bail condition is an offence defined in s 29 of the Bail Act which carries the same maximum penalty but is not necessarily to be served cumulatively. It is argued that offences contrary to s 33 are different in the sense that there is the cumulative aspect. [29] It is submitted the learned magistrate erred in two respects. Firstly, he incorrectly stated the solicitor for the appellant had submitted “there’s no breaches of the Bail Act in the appellant’s criminal history”. In fact the submission of the solicitor was that he had not been convicted of the offence of failing to appear. -- 6 of 8 -- 7 [30] Secondly, it is submitted the learned magistrate appears to have categorised the offence of failing to appear as the same as a breach of a bail condition. [31] The respondent on the other hand submits that whilst there were only five previous breaches of the Bail Act in the appellant’s history he is a recidivist offender with disregard for compliance with orders. Once a term of imprisonment was determined to be warranted then it was mandatory for the sentence to have a cumulative effect. [32] The respondent rejects the assertion that the learned magistrate erred in categorising an offence of failure to appear as akin to a breach of bail condition. All the magistrate did in this case was to acknowledge the appellant had no previous convictions for failing to appear but did have offences of breaching bail conditions. [33] Regardless the magistrate was entitled to have regard to the appellant’s prior breaches of bail conditions as an aggravating feature under s 9(8) of the Penalties and Sentences Act 1992 (Q). Conclusion on ground 1. [34] It may be right to say the learned magistrate erred in his categorisation of the appellant’s solicitors’ submission but in the result I think this was an immaterial error. It did not in my view affect the approach the Magistrate took concerning the sentence. I otherwise accept the Respondent’s submissions regarding this matter. [35] Ultimately in the reasons the magistrate, in my respectful opinion, was entitled to have regard to the previous breaches of the Bail Act. I do not find there was any significant error in the learned magistrate’s approach. Accordingly I do not uphold this ground. Were the sentences excessive? [36] Regardless of my findings as to error the allegation that the sentences were manifestly excessive was not abandoned and I turn to consider this issue. [37] I note no point was taken by the appellant concerning the six month period of imprisonment imposed for the substantive offences. In this case it is my respectful view that the sentences were not manifestly excessive. [38] It could be said that the penalty with respect to the failure to appear was heavy (as the appellant had no previous failures to appear) but it was still within the range of available penalties in my opinion. [39] The following considerations were relevant to the total sentence: (a) The appellant was a mature man with a concerning history; (b) The appellant had consistently breached court orders and disobeyed the lawful authority of police officers; (c) The incidents were violent and protracted; (d) The appellant breached parole imposed for a like offence; -- 7 of 8 -- 8 (e) The need for general and personal deterrence were important factors. [40] Further, a court may be (depending of the circumstances) entitled to regard seriously the fact that a person fails to appear in accordance with their undertaking. Such offences can have a significant effect on the orderly conduct of the court’s business, particularly in a busy court such as the Magistrates Court. [41] The offences showed the appellant had a disregard for both the authority of the courts and the police. [42] In those circumstances it could not be said that a total sentence of nine months’ imprisonment was excessive. [43] On the other hand, the appellant had entered early pleas of guilty, clearly suffered from alcohol abuse and had a mental condition which may well have contributed to the offences in question. [44] In those circumstances it was appropriate for the court to reduce the non-parole period from four and a half months to two months and twenty two days. I note the appellant has already served the custodial portion of the sentence. [45] In all of the circumstances I do not find that the sentences imposed were excessive. [46] In the circumstances I confirm the sentences imposed below and dismiss the appeal. -- 8 of 8 --