Clarke-Davis v Commissioner of Police [2014] QDC 61

- 1 - [2014] QDC 61 DISTRICT COURT OF QUEENSLAND APPELLATE JURISDICTION JUDGE FARR SC CLARKE-DAVIS Appellant and COMMISSIONER OF POLICE Respondent BRISBANE 9.30 AM, WEDNESDAY, 12 MARCH 2014 DAY 1 -- 1 of 8 -- __________________________________________________________________________________ - 2 - HIS HONOUR: The appellant has appealed against a sentence imposed in the Brisbane Magistrates Court on the 20th of January 2014 for the offence of riot. He was sentenced, after entering a plea of guilty, to nine months imprisonment with parole release fixed after a period of four and a half months. The parole release date is the 28th of April 2014, and a declaration in relation to 38 days of presentence 5 custody was made pursuant to section 159A (3B) of the Penalties and Sentences Act 1992. The facts: the appellant was part of a riot that occurred at the Aura Tapas & Lounge Bar at Broadbeach. He was at that time a prospect member of the Bandidos 10 Motorcycle Club. The incident developed as follows: on the 27th of September 2013, a large gathering of approximately 60 members of the Bandidos Motorcycle Club attended the Broadbeach Central Business District on the Gold Coast. They congregated at the eastern end of the Broadbeach mall. They then proceeded en masse up the mall to Surf Parade. They crossed Surf Parade and assembled together 15 on the eastern side of that parade. That group then split, it seems, as a result of traffic that was passing, and some of the group, about 15 to 20 in number, crossed the street heading towards the Aura Tapas & Lounge Bar. Many in that group then entered that restaurant and made their way to a rear table 20 where two members of a rival gang were dining. The time was approximately 8.30 pm, and the restaurant was busy with many customers. Some of the group then made some threats towards those two diners before they all turned and walked out of the restaurant, including the two diners. As that group approached the entry/exit way, there was an eruption of violence. That violence seemed to only involve a few of 25 those who entered and one or both of the diners. It lasted only a very short time as there were a number of police officers present nearby, and police were able to very quickly subdue those involved in the altercation. The situation then developed where there were two groups. One group was 30 immediately outside the restaurant, and the larger group was a short distance away from the restaurant. Those groups were separated by a small number of police officers. That larger group constituted a threatening and intimidating presence towards the police and failed to move on as instructed by police officers for about 20 minutes. The police prosecutor in the court below particularised the riot as having 35 commenced at the outbreak of the altercation and having ended when the larger group dispersed. No one was injured in this incident. No one was armed with anything, and there was no property damage. The appellant’s role in this offence was constituted by his presence at the scene. He 40 was part of the smaller group, although he did not enter the restaurant. There is no suggestion that he played any part in the altercation, and there is no evidence of him misbehaving in any way during the 20 minutes it took for the police to disperse the larger group. 45 The sole ground of appeal, as must be the case pursuant to section 222 (2) (c) of the Justices Act 1886, is that the sentence was manifestly excessive. Pursuant to section 223 of that Act, an appeal under section 222 is by way of re-hearing on the evidence given in the proceeding in the court below in the -- 2 of 8 -- __________________________________________________________________________________ - 3 - absence of any application for leave to adduce fresh evidence. There is no such application in this matter. Of course, to be successful the applicant would have to establish that the sentence imposed was not a reasonable one in all the circumstances. Submissions: the appellant has raised a number of arguments in support of the 5 appeal. The submissions which, in my view, have the greatest force are (1) that the sentences that have been imposed in comparable matters do not support the sentence imposed here and (2) that the sentences imposed on co-offenders to this offence also do not sit comfortably with the sentence imposed, and that the principle of parity in sentencing for like offenders has been offended. 10 I shall deal with the former submission first. The relevant circumstances personal to the appellant are (1) he entered an early plea of guilty, (2) he was still reasonably young, being only 22 years of age at the time of the offence, (3) his involvement in the offence was constituted solely by his presence, (4) he was not part of the group 15 that entered the restaurant, (5) he did not engage in any verbal threats to any person, including police officers, and (6) his criminal history consists of six previous convictions for drug-related offences; one previous conviction for an offence of dishonesty; two previous convictions for assault or obstruct a police officer, both of those matters occurring on the same day; and one offence of commit public 20 nuisance. He was also sentenced on the 30th of June 2011 in the Brisbane Magistrates Court to 12 months imprisonment, to be released on parole after serving 105 days of presentence custody for the offence of unlawful deposition of explosives or noxious substances. He was also sentenced to four months imprisonment, fully suspended, with an operational period of nine months in the Warwick District Court on the 15th 25 of November 2012 for the offence of damaging evidence with intent. He has been sentenced to terms of imprisonment on four occasions prior to his appearance in Court on this matter, although he was required to serve actual imprisonment on only one of those occasions. 30 During submissions I have been referred to a number of what are said to be comparable decisions for my assistance. They are: R v Toby [1998] QCA 452 – in that matter, the accused, who was 40 years old and crippled from childhood polio, instigated an unlawful assembly where approximately 70 people congregated outside a hotel in Camooweal, a small outback Queensland town, at 10 pm intent on fighting 35 a large group of people inside the hotel. The town’s two police officers were present, but couldn’t diffuse the situation and, ultimately, about 200 people became involved in the tumult, which appeared to consist of brawling throughout the streets of the town. No one was seriously injured and no property was damaged, although the incident went on for approximately four and half hours and resulted in police 40 reinforcements coming from the Northern Territory and Mount Isa. Toby had a minor criminal history. He was sentenced to three months imprisonment, fully suspended, with an operational period of nine months. I note that notwithstanding that the maximum penalty for that offence was only 12 months 45 -- 3 of 8 -- __________________________________________________________________________________ - 4 - imprisonment, it was nevertheless a demonstrably more serious incident than the incident the subject of this matter. The next matter to which reference has been made is R v Felsman, Baker, Baker & Baker [2005] QCA 453. In this matter, a group of 12 people with a history of 5 animosity towards another group attended the house of one of that other group and yelled abusive, threatening and racist comments, smashed windows to the house, armed themselves with makeshift but dangerous weapons, and threatened the personal safety of people inside the house. A two year old child inside the house received minor cuts from broken glass down her back. Neil Baker was a 49 year old 10 man with some minor convictions. He drove one of the two cars containing the rioters to the scene and was armed with a stick during the riot, and he took a leadership position in respect of the other offenders. He was sentenced to six months imprisonment after pleading guilty. 15 Felsman was 25 years of age and had previous convictions for seven counts of fraud, drunk and disorderly, common assault and some minor drug offences. She was sentenced to six months imprisonment, suspended after three months. The other two offenders were 17 and 19 years of age at the time and had no previous convictions, and they were each ordered to perform 120 hours of community service. 20 I then refer to R v Poynter, Norman and Parker; ex parte Attorney-General (Queensland) [2006] QCA 517. That matter involved the infamous riot at Palm Island on the 26th of November 2004, during which a crowd of up to 300 people abused and threatened police officers, including threats to kill, smashed windows and 25 security grills, threw rocks at public buildings and at fleeing police, set the police station, the court house and the police residence on fire and injured a number of police officers. The riot lasted for approximately four hours. Poynter was 26 years old and had a lengthy, serious criminal history. He pleaded 30 guilty to riot. He first involved himself after the police station and residence had been set alight. Nevertheless, he joined the crowd after arming himself with a metal bar, which he wielded in the general direction of two police officers and used it to destroy a hospital sign. He also abused and threatened police officers. He was sentenced to 15 months imprisonment with his parole release date set after five 35 months. Clearly, his criminality was far greater than that of the appellant in this matter yet he was required to serve only two weeks more imprisonment. Norman was charged with unlawfully damaging a building while part of a riotous assembly with others. That charge carries a maximum penalty of seven years 40 imprisonment, compared to the three year maximum in the present case. That, of course, makes useful comparison very difficult. She was 31 years old, with no prior convictions. She was present when threats to burn the police station and to kill the police officers were made. She threw rocks at the police station and barracks and at police officers, she allowed her 14 year old son to be at the scene and entered the 45 barracks after police had fled the scene. On the Attorney’s appeal, she was -- 4 of 8 -- __________________________________________________________________________________ - 5 - sentenced to 18 months imprisonment with release on parole after four months – that is, two weeks less than the appellant in this matter is required to serve. Parker was also charged with the more serious offence. He was 37 years old and had an appalling criminal history. He was present throughout the incident, although did 5 not throw rocks or issue threats, himself – although he did drive a garbage truck and position it on the road from the airport in an ineffectual attempt to block the road to prevent police reinforcements reaching the township. He was sentenced to two years imprisonment with release on parole after nine months. His matter is of no comparable value. This brief recitation of facts demonstrates, most clearly, that the 10 matter that I’m dealing with today was substantially less serious than that matter. I note, also, that during the course of submissions the learned magistrate, in the Court below, was also referred to some interstate cases for comparison purposes. No reliance has been placed on any of those matters in submissions before me. I note 15 that some of those that were referred to, for instance, R v Menzies (2012) NSWSC 158 and R v Aboundader (2012) NSWSC 1312, were matters which arose as a consequence of two bikie gangs brawling at the Sydney Airport which resulted in someone being killed. They were clearly substantially more serious matters than this and provide little, if any, comparative value. 20 When one assesses all of these matters, it is difficult to find any support for the sentence handed down in the current matter. In fact, they are matters which clearly show that the sentence, the subject of this appeal, was manifestly excessive. That is not to say that this matter was not serious. It, quite obviously, was very serious. The 25 appellant has associated himself with a large group of people who, through sheer weight of numbers, intentionally used those numbers for intimidatory purposes. Whilst that group’s actions were directed at the two men connected with a rival gang, the effect of the riot was that completely innocent members of the public, including families with children, were subjected to fear for their personal safety from the 30 actions of the entire group. In the circumstances, the potential for violence was immense and actual violence did occur. Nevertheless, given the nature of the appellant’s role in this incident, the sentence which was imposed was unacceptably disproportionate to the offence and not 35 supported by authority. When I speak of the appellant’s role, I note that the learned magistrate was of the view that two potential approaches were open when assessing the appellant’s degree of criminality. The first was to consider that all parties are equally guilty of the crime, regardless of the part played by each of them in its commission – which was described as the “basic approach”. The second was to 40 depart from this basic approach and take into account the actual conduct on the part of the offender in the riot by way of aggravation or mitigation. His Honour, below, identified, in his reasons, that he proposed to take the basic approach. I note that this approach was discussed in the Victorian case of R v 45 McCormack et al (1981) VR 104 at 108/109. The relevant abstract says: -- 5 of 8 -- __________________________________________________________________________________ - 6 - The basic approach is that the offender is not sentenced for his individual acts considered in isolation. He is sentenced for having, by deed or encouragement, been one of the number engaged in a crime against the peace. Any participation, whatever, irrespective of its precise form in an unlawful or riotous assembly of its type, derives its gravity from becoming one of those who 5 by weight of numbers pursued a common and unlawful purpose. The law of this country has always leant heavily against those who, to attain such a purpose, used the threat that lies in the power of numbers. See R v Caird (1970) 54 Criminal Appeal Reports 499 at 5 and 7. Whilst this is the basic approach, it is open to the sentencing judge at his discretion to take into 10 account the actual conduct of an offender in the riot by way of aggravation or mitigation. The appellant has submitted, however, that his Honour was bound to take into account his actual conduct during the offence and that there is no discretion to do 15 otherwise. I agree. Section 9(2)(d) of the Penalties and Sentences Act states that when sentencing an offender, a court must have regard to the extent to which the offender is to blame for the offence and section 9(2)(g) mandates that a court have regard to any aggravating or mitigating factor concerning the offender. I also note the comments of Chief Justice Gibbs in R v Lowe (1984) CLR 606 at 609 where his 20 Honour said: It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal and such matters as the age, background, 25 previous criminal history and general character of the offender and the part which he or she played in the commission of the offence, have to be taken into account. Similarly in Poynter, Norman and Parker, the president said: 30 … it would be unjust to sheet home to these three respondents who played a relatively minor role in the riot, the full responsibility for the worst excesses of the riots. 35 I am of the view that in this matter, the learned magistrate failed to take into account the appellant’s actual conduct during the offence, which deprived the appellant of having an important mitigating feature taken into account. I turn now to the issue of parity. The appellant has submitted that the sentence 40 imposed is manifestly disparate when compared to the sentences imposed on some co-offenders. The first of these co-offenders is Craig Jackson, who was sentenced to six months imprisonment, suspended after two months with an operational period of two years in 45 the Magistrates Court at Southport in December of 2013. He had prior convictions, although most were for offences that occurred many years ago. His history was not as bad as the appellants and he was 39 years of age. His conduct was more serious though in that he was described as a rearguard and he actually entered the restaurant. In all other respects, however, his conduct was identical to that of the appellant. 50 -- 6 of 8 -- __________________________________________________________________________________ - 7 - Notwithstanding his less serious criminal history, the difference in the penalties imposed are disparate and unreasonable. The learned sentencing magistrate appeared to take the view that the sentence imposed on Jackson was inadequate. He in fact said, “Two wrongs do not make a 5 right” in that context and when referring to other penalties that had been imposed in relation to this matter. Unfortunately, the comparative sentences do not support such a conclusion for the reasons I’ve already detailed. I also note that the learned magistrate indicated that he reduced the sentence he otherwise considered appropriate, that of 12 months imprisonment to serve six months, to the sentence he 10 ultimately imposed because the sentences that had – because of the sentences that had already been imposed on others involved in this matter. Despite his Honour’s intentions, in my view the sentence that he imposed gave rise to a manifestly disparate sentence to that imposed on others, including Jackson, and would undoubtedly have caused an impression of injustice and engendered a justifiable 15 sense of grievance in the appellant. Another co-offender to have been sentenced for this riot was Hamza Nasser Elcheikh, who was sentenced in the Magistrates Court at Southport on the 19th of November 2013 and was ordered to perform 150 hours of unpaid community service. 20 He was guilty by his continued presence at the riot, but he did not enter the restaurant and was not involved in any violence. He was part of the second group, and to quote the sentencing magistrate: Saw fit to vocalise his displeasure at the police response. 25 I note that later he was seen to pull another person away who was yelling at police in an apparent effort to calm things down. He had a criminal history containing entries for wounding and assault occasioning bodily harm in company for which he had been sentenced to 18 months imprisonment – and I note that he pleaded guilty to the 30 riot charge. I also note that the police prosecutor most appropriately also referred the learned magistrate in this matter to the matter of the Police v Leavitt. He was a man sentenced on the 10th of December 2013 in the Brisbane Magistrates Court for the 35 offence of riot arising from this incident. Leavitt was described as a young man who had a previous conviction for affray. He was part of the second group who didn’t – which didn’t approach the restaurant and he was sentenced to four months imprisonment, suspended after 21 days with an operational period of 15 months. Taking those matters into account, it is impossible to reconcile the sentences imposed 40 on those co-offenders with that imposed on the appellant. Finally, there is one further issue that I need to address. At page 16, line 25 of his reasons, the learned magistrate said: 45 Had it not been for the sentences imposed previously on the co-offenders, I would have imposed a head sentence of 12 months full time custody on this offender to reflect the objective seriousness of the offence. I would have fixed a parole release date at the end of six months; that is, on 20 June 2014, on -- 7 of 8 -- __________________________________________________________________________________ - 8 - account of his age, plea of guilty, and the circumstances in which he has and is likely to serve his sentence in a correctional facility. His Honour did not, however, indicate in any way that the head sentence had been reduced on account of any mitigating circumstances. Given that I am of the view 5 that the head sentence which was actually imposed was outside the range which was reasonably open, it stands to reason that when his Honour opined that an even heavier head sentence would have been appropriate were it not for parity issues, then that starting point had also not been reduced on account of mitigating circumstances. Accordingly, given that the appellant’s parole release date was only set at the 10 halfway point, it does not in any way reflect the mitigating circumstances. The consequence is that the sentence was unreasonably high in the circumstances. Conclusion: For these reasons I am satisfied that the sentence imposed was manifestly excessive. Other arguments have also been presented to support the 15 appellant’s appeal, but given my conclusions above, it is unnecessary for me to consider those matters. As I say, given the sentences that co-offenders received, bearing in mind the roles that they played, it is my view that a sentence of six months imprisonment, that requires the appellant to serve the time that he has already spent in custody, would be appropriate in all of the circumstances. Accordingly, the orders 20 are as follows: (1) the appeal is allowed (2) the sentence imposed in the Magistrates Court of Brisbane on the 20th 25 of January 2014 is set aside (3) the appellant is sentenced to a period of six months imprisonment (4) I note he has served 89 days presentence custody from the 13th of 30 December 2013 to the 11th of March 2014 and I declare that to be time served under the sentence that I just imposed (5) I order that he be released on parole after serving 89 days of that term of imprisonment. That is, I set his parole release date as today, the 35 12th of March 2014. -- 8 of 8 --