Commissioner of Police v Alexine Aplin [2012] QDC 391

1 The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Email: [email protected] [2012] QDC 391 DISTRICT COURT APPELLATE JURISDICTION JUDGE DEARDEN No 15 of 2012 COMMISSIONER OF POLICE Respondent/Plaintiff and ALEXINE APLIN Applicant/Defendant MOUNT ISA ..DATE 03/12/2012 JUDGMENT -- 1 of 6 -- 2 JUDGMENT HIS HONOUR: This is an appeal by Alexine Aplin in respect of the sentence imposed by the learned magistrate in Mount Isa on the 15th June 2012. That sentence which was in respect of a series of substantive offences, and the activation of suspended sentences, was (after taking account of the collation of concurrent and cumulative sentences) effectively a head sentence of two years and nine months. INTRODUCTION: The learned magistrate set a parole release date at 10 November 2013, after declaring 36 days as time served in respect of the sentence. In summary, the sentence was, in reality, two years and nine months (i.e. 33 months) with fixed parole after 18 months (i.e. after 54.5 per cent of the sentence). This equates (if the parole release date had been fixed at the usual one-third) to an effective head sentence of four and a half years. THE LAW IN RESPECT OF JUSTICES ACT S.222 APPEALS: I refer to and adopt my exposition of the relevant law in respect of Justices Act s.222 Appeals, as set out in Moore v. QPS [2012] QDC 133 at paragraphs 2-4 (and adopt the citations contained in those paragraphs). ISSUES: The sentence on 15 June 2012 involved pleas of guilty to 10 fresh charges as follows:-  "Two and a-half years imprisonment for assault occasioning bodily harm;  Nine months imprisonment, concurrent, for breaching a -- 2 of 6 -- 3 JUDGMENT domestic violence order;  Three months imprisonment concurrent for wilful damage;  Nine months imprisonment concurrent for common assault;  Two months imprisonment, cumulative, for breach of bail conditions;  Convicted and not further punished for urinating in a public place;  Convicted and not further punished for contravening a direction order requirement;  Convicted and not further punished for breaching a bail undertaking on 6 January 2012;  Convicted and not further punished for contravening a direction or requirement on 1 February 2012;  Convicted and not further punished for breaching bail on 14 February 2012." (Outline of submissions on behalf of the respondent at para 2.2). The sentence also involves the activation of eight suspended sentences, imposed originally on 11 January 2012 and breached by subsequent offending. The activated suspended sentences were as follows:-  "One month suspended for 12 months - breach of domestic violence order (re-sentenced after breach of probation order);  Fourteen days suspended for 12 months - wilful damage (re-sentenced after breach of probation order);  One month suspended until 10 January 2013 - assault or obstruct police; -- 3 of 6 -- 4 JUDGMENT  Fourteen days suspended until 10 January 2013 - assault or obstruct police;  One month suspended until 10 January 2013 - commit public nuisance;  Fourteen days suspended until 10 January 2013 - two breach of bail offences;  Fourteen days suspended until 10 January 2013 - assault or obstruct police; and  Four months suspended until 10 January 2013 - commit public nuisance" (Exhibit 1 - outline of submissions on behalf of the respondent para 2.3). The learned magistrate declared a period of 36 days between 10 May and 14 June 2012 as pre-sentence custody and fixed a parole release date at 10 November 2013. The effective head sentence, taking into account the two and a-half years imprisonment for assault occasioning bodily harm, the two months imprisonment cumulative for breach of bail conditions (in respect of the fresh charges), and the two cumulative 14 day sentences in respect of two breach of bail offences on the activated suspended sentences, amounted in total to two years and nine months. The appellant concedes that the effective head sentence, outlined, of two years and nine months is not excessive, but argues that setting a parole release date, effectively at 18 months into a two year nine month (33 months) sentence, amounted to sentencing error and was manifestly excessive. The learned magistrate raised during submissions the issue of -- 4 of 6 -- 5 JUDGMENT a parole release date in excess of the usual one-third, in these terms:- "And so the sentence that I have to impose, to keep her [the appellant] within the jurisdiction of the court, may have to involve a parole release date which is more than one-third. Now, in accordance with that [indistinct] case, I'm thinking I warn you, Mrs Blundstone, that what I propose to do is have a parole release date which is more than the usual one-third and ask you to tell me why you think that's inappropriate." (Sentencing submissions transcript p.1-11 LL32-38). As it turned out, the non-parole period set by the learned magistrate, as I've indicated, equated to an effective head sentence of four and a-half years (working on the usual one- third approach). Simply put, if the learned magistrate was concerned that he could not adequately punish the appellant within the limits of his jurisdiction (see Criminal Code s.552C(2)(b), s.552D(1), s.552H(1)(a)), then the proceedings should have been committed to the District Court pursuant to Criminal Code s.552B(3). Pursuant to my powers under Justices Act s.223, I do consider that the learned magistrate has fallen into error, in exercising his discretion to sentence the appellant, rather than commit her to the District Court, and in doing so to set a parole release date at 54.5 per cent of the effective head sentence, rather than the usual one-third of the head sentence. -- 5 of 6 -- 6 JUDGMENT In doing so, in my view, the learned magistrate failed to give appropriate recognition to the pleas of guilty and the appellant's cooperation with the administration of justice. There was no compelling reason on the basis of the facts placed before the learned magistrate on sentence, to set a parole release date later, and as occurred here, significantly later, than the usual one-third. If, as I've indicated, the learned magistrate considered that the appropriate sentence exceeded his jurisdiction (a maximum effective head sentence of three years) then he should have committed the appellant to the District Court for sentence rather than proceeding to sentence her himself. CONCLUSION: (1) Appeal granted; (2) Set aside the parole release date fixed at 10 November 2013 and substitute a parole release date fixed at 10 April 2013. ----- -- 6 of 6 --