Boyd v Forbes [2012] QDC 198

1 DISTRICT COURT OF QUEENSLAND CITATION: Boyd v Forbes [2012] QDC 198 PARTIES: CAMERON KEITH BOYD (applicant) v CONSTABLE B FORBES (respondent) FILE NO/S: D31/12 DIVISION: Application jurisdiction PROCEEDING: Section 222 Appeal ORIGINATING COURT: District Court at Toowoomba DELIVERED ON: 29 June 2012 DELIVERED AT: Ipswich HEARING DATE: 28 June 2012 JUDGE: Bradley DCJ ORDER: 1. The appeal is allowed. 2. The order is set aside. In lieu thereof, the appellant is sentenced to two months imprisonment, wholly suspended for an operational period of 12 months. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant pleaded guilty to one charge of public nuisance – where appellant sentenced to term of imprisonment of two months with parole fixed after serving the two months – whether sentence imposed was manifestly excessive Justices Act 1866 (Qld) s 222 Penalties and Sentences Act 1992 (Qld) s 9 Corrective Services Act 2006 (Qld) ss 209, 211 COUNSEL: R Davies for the applicant L Helsdon for the respondent SOLICITORS: David Burns Lawyers for the applicant Office of the Director of Public Prosecutions for the respondent -- 1 of 7 -- 1-2 JUDGMENT 1 10 20 30 40 50 60 HER HONOUR: This is an appeal against a sentence by Cameron Keith Boyd. The appellant pleaded guilty to a charge of committing a public nuisance and was sentenced in the Toowoomba Magistrates Court on the 11th of April 2012. He was sentenced to a term of imprisonment of two months with parole fixed after serving the two months. The appellant appeals against that sentence on the basis that it is manifestly excessive. And, more particularly, as outlined in the appellant's outline of submission that, firstly, the learned Magistrate failed to take into account and or adequately reflect the critical considerations that he, that is the appellant, was not the instigator. It was a single punch only and he himself suffered significant injuries which have meant that he's been unable to work for months. Secondly, the learned Magistrate failed to adequately consider the consequence of imposing a term of actual imprisonment. The effect of sections 209 and 211 of the Corrective Services Act was to require the appellant to potentially serve many months extra in gaol. This was expressly required to be considered under section 9(2)(m) of the Penalties and Sentences Act. And finally, that the learned Magistrate placed undue weight on the appellant's criminal history. The appellant argues that the appropriate sentence would be one of two months imprisonment wholly suspended for an operational period of 12 months. The respondent argues that -- 2 of 7 -- 1-3 JUDGMENT 1 10 20 30 40 50 60 the appropriate head sentence should be one of four months imprisonment wholly suspended for 12 months. The facts upon which the appellant was sentenced are set out in the outline of submissions of the appellant and agreed to by the respondent and are as follows: At approximately 5.30 a.m. on the 11th of the 12th 11 the appellant, who was alone, was walking near the Cube Hotel in Margaret Street. As he passed a group of six or seven males it appears one of them said something to him and someone from the group has then approached him. The appellant reacted by throwing a single punch and was immediately set upon by the large group. He was punched taken to the ground and stomped on and kicked whilst defenceless on the ground. The appellant suffered very significant injuries in the assault upon him. His tricep was torn from his elbow which required hospitalisation and surgery. He sustained an infection from the operation and this required further hospitalisation and weekly rehabilitation for some months. He's not been able to work since the time of the episode and his incapacity is expected to continue for an extended period. The appellant was not the instigator of the episode and his violence was limited to a single punch. Two other persons were charged with commit public nuisance arising out of the same episode. Neither had any criminal history and each was fined $500. -- 3 of 7 -- 1-4 JUDGMENT 1 10 20 30 40 50 60 The appellant was 25 years of age and he's a labourer by occupation. He does have a very significant criminal history and this was alluded to in some detail by the sentencing Magistrate. His criminal history goes back to 2004 and includes offences of dishonesty including breaking into property in the night-time, assault occasioning bodily harm, drug offences, wilful damage and, significantly, five previous convictions for committing a public nuisance or similar offences. Most seriously, on the 5th of February 2010 in the Brisbane District Court, the appellant was convicted of breaching a probation order and a community service order that had been imposed in the Toowoomba District Court on the 11th of September 2007 in relation to a break and enter and other related offences. The upshot of those proceedings were that the appellant was resentenced for the original offences and sentenced to 30 months imprisonment, and a parole release date fixed at the 5th of February 2010. As a result, therefore, the appellant was on parole at the time of the commission of this public nuisance offence. The issue of parity is a live one in this matter, but because the offence was committed whilst on parole, the major issue to be considered by this Court is the effect that a sentence of actual imprisonment has on the appellant's ability to apply -- 4 of 7 -- 1-5 JUDGMENT 1 10 20 30 40 50 60 for and obtain parole. The sentencing Magistrate remarked that he believed a head sentence would be "in the range of some four months", but said that he didn't propose to impose four months, but rather "to reflect that in the parole eligibility date." He went on "I fix a parole eligibility date accepting" - I think that's a typo - it should've probably read "expecting that you may serve a lot of - other period of imprisonment that you were on parole for to the 4th of August 2012 and fix a parole eligibility date of the end, the 11th of June 2012." The maximum term of imprisonment that can be imposed for an offence of public nuisance is six months imprisonment. Leave was given at the hearing of this appeal yesterday to the respondent to adduce additional evidence in the form of an affidavit by Jessica Ann Gillespie, an authorised Corrective Services officer. Ms Gillespie deposes to the fact that the appellant's response to supervision has been "deemed positive." He has successfully complied with all reporting obligations, maintained regular contact with his GP to address mental health concerns, and had addressed relationships through psychological treatment. Although early on in his parole he provided positive urinalysis samples to cannabis, he has since provided six clear samples. In December 2011 the Southern Queensland Regional Parole Board -- 5 of 7 -- 1-6 JUDGMENT 1 10 20 30 40 50 60 cancelled a previous executive decision to suspend his parole. I agree with the submission made on behalf of the appellant that the starting point of four month's imprisonment for the offence in the current circumstances is too high. That is taking into account the maximum penalty for the offence, the appellant's plea of guilty, the fact that he was not the instigator of the incident, that he threw one punch only, that he suffered significant injuries and the consequences for himself were significant, and that he has made good progress on parole. Although it is ultimately a question for the parole board, an order that the appellant serve an actual term of imprisonment does leave the appellant exposed to a very real risk that he will have to serve a further four months imprisonment. The Magistrate could not set a parole release date, only a parole eligibility date. An application for parole will likely take some time to be processed and the effect of section 209 of the Corrective Services Act is that his parole order is automatically cancelled if he is sentenced to another period of imprisonment during the period of the order. A wholly suspended term of imprisonment does not have that effect. As a result of the effect of section 211 of the Corrective Services Act, the appellant is liable to serve four month's imprisonment (that is, the period of time between the date of -- 6 of 7 -- 1-7 JUDGMENT 1 10 20 30 40 50 60 the offence, the 11th of December 2011, and the date of the sentence for the offence, the 11th of April 2012) cumulatively on the sentence of two months imposed by the sentencing Magistrate. Section 9(2)(m) of the Penalties and Sentences Act requires a sentencing Court to have regard to "sentences that the offender is liable to serve because of the revocation of orders made under this or another Act for contraventions of conditions by the offender." It is clear that the sentencing Magistrate did not have sufficient regard to this factor. In fact, the respondent concedes that, in all the circumstances, two months actual imprisonment is manifestly excessive, but the respondent argues that the appropriate penalty should be one of four month's imprisonment, wholly suspended for 12 months. As I said, in my view, four months is too high and the appropriate term of imprisonment for the offending in this case is one of two month's imprisonment. Accordingly, the appeal should be allowed. The order made on the 11th of April 2012 in the Magistrates Court, Toowoomba is set aside, and in its place I make an order that the appellant be sentenced to two months imprisonment, wholly suspended for an operational period of 12 months. -- 7 of 7 --