Brown v Commissioner of Police [2013] QDC 192

DISTRICT COURT OF QUEENSLAND CITATION: Brown v Commissioner of Police [2013] QDC 192 PARTIES: Steven Andrew BROWN (Appellant) v Commissioner of Police (The Queen) (Respondent) FILE NO/S: Appeal No. 2537 of 2013 DIVISION: Appellate PROCEEDING: Section 222, Appeal (Criminal) ORIGINATING COURT: The Magistrates Court of Queensland at Southport DELIVERED ON: 9 August 2013 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 9 August 2013 JUDGE: R S Jones DCJ ORDER: 1. The appeal be allowed; 2. The sentences imposed on 24 June 2013, in respect of the public nuisance charge and the obstruct police charge, be set aside in lieu thereof; 3. That in respect of each of those offences the appellant be sentenced to three months imprisonment to be suspended from 9 August 2013 for an operational period of 12 months, those sentences to be served concurrently; 4. I also declare that the presentence custody of 49 days between 21 June 2013 and 9 August 2013 be time served. CATCHWORDS: APPEAL – appeal pursuant to s 222 of the Justices Act 1886 – appeal against Magistrate’s orders – manifestly excessive sentence – whether a sentence requiring a young offender to service six (6) months in custody was manifestly excessive – where appellant had no previous conviction and strong prospect of rehabilitation LEGISLATIONS: Justices Act 1886 Penalties and Sentencing Act 1992 CASES: Boyd v Forbes [2012] QDC 198 Collins v Lancaster [2011] QDC 35 -- 1 of 6 -- 2 Crummer v Jenkinson [2010] QDC 310 Hills v Queensland Police Service [2009] QDC 89 House v R (1936) 55 CLR 499 R v Ruthven [2013] QCA 142 COUNSEL: SOLICITORS: CA Nelson – Legal Aid of Queensland (For the Appellant) R Marks – Office of Director of Public Prosecutions (For the Respondent) [1] I am concerned here with an appeal against sentence pursuant to section 222 of the Justice Act 1886. That section relevantly provides that if a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in the summary way on a complaint for an offence or breach of duty, the person may appeal within one month after the date of the order to a District Court Judge. However, the following relevant exception applies: if a defendant pleads guilty or admits the truth of a complaint, a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture, or punishment was excessive or inadequate. On 21 June 2013, the appellant was sentenced in the Magistrates Court of Queensland at Southport in respect of the following offences: public nuisance, trespass, and obstruct police. In respect of the public nuisance and obstruct police offences, the appellant was sentenced to four months imprisonment suspended after 2 months with an operational period of two years, those sentences to be served concurrently. In respect of the trespass offence, he was convicted but not further punished. The appeals are against the public nuisance and obstruct police penalties only. The facts surrounding the case are set out in the written submissions and there is not much difference between them. [2] It would appear that on the date in question at about 5.45 in the afternoon, police attended a premises on the Gold Coast Highway in the proximity of a Lifeline charity establishment. An employee of that charity had tried to exit the building and had been harassed by the appellant. The appellant was also causing nuisance to other members of the staff as they exited the building. The appellant’s behaviour was such as to cause some of the employees to be fearful for their safety. Police were called and they located the appellant in the entry of the doorway to the charity and he was observed to be intoxicated. It would appear that it was likely that the appellant had been drinking a considerable amount of wine from a cask. The appellant was abusive to the police when they spoke to him and said words to the effect, “You cunts just want me to die. If I had a gun I’d shoot all you dogs.” That behaviour grounded the public nuisance charge. The trespass charge would apparently appear to be associated with the fact that the appellant had been sleeping on the premises of the charity to which I have referred. The police arrested the appellant and advised him that he was under arrest and then attempted to place him in a police car. The appellant resisted and had to be forcibly placed into the police van. Even once inside the van, the appellant continued to resist by putting his feet up against the rear door of the van to prevent it from being closed. -- 2 of 6 -- 3 [3] The essential point raised by the appellant is set out in paragraph 10 of the outline of submissions, and it says, “The appellant submits that the sentence imposed by the magistrate was excessive in all the circumstances. The reasons for this are: Ground (1) the sentence imposed does not reflect the sentencing guidelines contained in section 9(2)(a)(i) and (ii) of the Penalties and Sentences Act.” The respondent submits at page 7 of its outline of arguments: “Considering the appellant’s criminal history, especially the fact that he had three previous offences of public nuisance within the two months before this offending, that the sentencing of the appellant to a short period of actual custody was well within the appropriate sentence range. The combination of the release of the halfway mark and with a lengthy operational period may be towards the higher end of the applicable sentence range, however, for the abovementioned reasons, it cannot be seen to be excessive in awe of the circumstances. Overall, the considerations of personal deterrence along with those features identified above warranted some period of actual imprisonment.” The “features identified above” include not only the level of offending involved in the subject offences, but also among other things, the appellant’s criminal history. [4] Some features of the appellant, apart from that to which I have already referred, namely that he had been drinking wine in a public place and was intoxicated and abusive. He was aged 38 at the time. As the material strongly suggested he leads a largely itinerant lifestyle. He also has a history of similar offending. There are some eight previous entries of public nuisance, one previous entry of trespass, one previous entry of assault/obstruct police, two previous entries of being drunk in a public place, two previous entries of urinating in public and three previous entries of wilful exposure. It would appear that in respect of one of those counts of wilful exposure the appellant had spent one night in custody. The learned magistrate, rightly in my view, decided that the imposition of fines was not a realistic option and would have been an artificial sentence. It is quite clear that the learned magistrate was alert to the fact that the appellant required the assistance of others. However, the appellant made it clear that he not only did not want to participate in any probation, but also was not interested in counselling from organisations such as the Salvation Army. Given the appellant’s past history and the nature of the subject offending and the appellant’s unwillingness to help himself, his behaviour smacks of a deliberate and persistent course of conduct, which inevitably results in the general public and police officers being inconvenienced, embarrassed, and on occasions, threatened, and intimidated. I am in agreement with the learned magistrate that even though prison is a sentence of last resort, which his Honour recognised and referred to, a short prison sentence was justified in this case. [5] The maximum penalty for these offences is six months. The sentence imposed, as I have said, of four months was at the upper end – towards the upper end of the maximum penalty and required the appellant to serve one half of the sentence imposed before being released. Ordinarily, a defendant pleading guilty to an offence, even if the case against him is almost a foolproof one, would expect some level of discount. As Ms Marks acknowledged, it is not unknown for offenders to sometimes, nonetheless, proceed to trial even in the most hopeless of cases. In this case, given that the learned magistrate imposed a sentence, which was towards the upper end of the maximum penalty it is difficult to see how any allowance had been -- 3 of 6 -- 4 made for the appellant’s assistance in the administration of justice. In appeals such as this, involving exercising of a discretion, it is necessary to show that some error has been revealed in the sentencing process. It is not enough, for example, for the Court sitting as an Appeal Court to consider that, if it was confronted with this particular situation, it might have imposed a lesser sentence. There are a number of cases that have been referred to. I intend to refer to only two, the first being the well known case of House v R (1936) 55 CLR 499, where at page 504 it was relevantly said, “It must appear that some error has been made in exercising the 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 appellant Court may exercise its own discretion and substitution for his if it has the material for doing so.” The Court of Appeal of Queensland, very recently in the case of R v Ruthven (2013) QCA 142, cited with approval observations of her Honour Justice Margaret Wilson in the case of Shambayati v The Commissioner of Police, where her Honour said, “The appeal from the Magistrates Court to the District Court was brought pursuant to section 222 of the Justice Act 1886. Section 223 of that Act provides for a rehearing on the evidence given at trial and any new evidence adduced by leave. In other words, it involves the rehearing, in the technical sense, of a review of the record of proceedings below rather than a completely fresh hearing. In order to succeed on such an appeal, the appellant must establish some legal, factual, or discretionary error.” Whilst Shambayati, as I understand it, was considered with an appeal against conviction, it nonetheless reinforces the proposition that, in appeals such as this, some error has to be revealed in the processes of the court below. [6] The appellant relies on four decisions of this Court to support the contention that the sentence was manifestly excessive. The first of those cases, Boyd v Forbes (2012) QDC 198 that case involved an appeal against a sentence of two months imprisonment with a parole release date after serving two months for one charge of public nuisance. The appellant in that case had a significant criminal history including five previous convictions for public nuisance and, as a circumstance of aggravation, was on parole at the time of committing the subject offence. Judge Bradley in that case noted that the four months imprisonment was too high, and the appeal was allowed, and an order of two months imprisonment wholly suspended for 12 months was substituted. [7] In Collins v Lancaster (2011) QDC 35, there was appeal, again, against a sentence of two months imprisonment to be suspended after serving seven days with an operational period of 12 months for one charge of public nuisance. In that case, the appellant had a previous criminal history including seven previous public nuisance charges. The appellant was also subject to a six-month probation order. His Honour Judge Samios allowed the appeal in that case, and re-sentenced the appellant to one-month imprisonment suspended for six months. In Hills v Queensland Police Service (2009) QDC 89, this case involved an appeal where the appellant was sentenced to a number of cumulative sentences of one, two, and four months involving public nuisance charges, which equated to seven months imprisonment, and she was required to serve three months before release. -- 4 of 6 -- 5 [8] Again, the appellant had a significant criminal history involving a similar number of offences, and, similar to this case, it would appear that the appellant there had serious alcohol problems. In Hills, the appellant was a 22 year old woman with two children. She had been sentenced to a three-month prison term on a previous occasion. On appeal, Judge Dearden allowed the appeal, and all the terms of imprisonment were ordered to be served concurrently with the parole release date set on the day of hearing. It does not appear that the four-month sentence imposed was interfered with. [9] In Crummer v Jenkinson (2010) QDC 310, this again involved an appeal against a sentence of four months imprisonment with a parole release date after serving two months imposed after a trial for public nuisance. Judge Koppenol allowed the appeal, but he did not interfere with the four months head sentence. The four month head sentence was interfered with in the sense that, as I understand the synopsis of the case provided, his Honour allowed the appeal and substituted an order of 17 days imprisonment and declared time served. These cases suggest a range of a short period of imprisonment, including terms of actual custody, but not two months through to in the order of four months imprisonment either wholly suspended or with an immediate parole release date. The respondent provided no cases, which in effect, supported the level of the imposition imposed by the Court below. [10] In my opinion, errors in the exercise of the sentencing discretion have been revealed, first by reference to the previous decisions of the Court. The imposition of a four month sentence requiring the appellant to serve two months was excessive. It also appears to me that the setting of a release date at halfway through the sentence failed to have any, or any sufficient regard to the early plea of guilty. On balance, I consider that the cases establish a range of between one to three months. It is true that in Hills, it would appear that a four month sentence was not interfered with, but in that case it seems that the appellant had a more serious history including having been sent to prison on a previous occasion. In this case, the appellant has not been the subject of any actual terms of custody saves for that one night in prison to, which I have already referred. I also consider – again, by reference to the cases to, which I have referred – that the operational period of the suspended sentence of two years was excessive. [11] Here the appellant has served some 49 days in custody between 21 June 2013 and 9 August 2013. Given the history of the appellant, I do consider it appropriate – particularly in circumstances where the appellant has deliberately refused help, including counselling – that a prison sentence was appropriate and also an operational period is also appropriate for a relatively extensive period of time, but not two years. As I said, I am satisfied that the sentence imposed was excessive for the reasons that I have given and accordingly, I order as follows: -- 5 of 6 -- 6 1. The appeal be allowed; 2. The sentences imposed on 24 June 2013, in respect of the public nuisance charge and the obstruct police charge, be set aside in lieu thereof; 3. That in respect of each of those offences the appellant be sentenced to three months imprisonment to be suspended from 9 August 2013 for an operational period of 12 months, those sentences to be served concurrently; 4. I also declare that the presentence custody of 49 days between 21 June 2013 and 9 August 2013 be time served. -- 6 of 6 --