Dargusch v Kosieradzki [2010] QDC 391

DISTRICT COURT OF QUEENSLAND CITATION: Dargusch v Kosieradzki [2010] QDC 391 PARTIES: ANDREW JOHN DARGUSCH (appellant) v MICHAEL LUCAS KOSIERADZKI (respondent) FILE NO/S: BD1788 of 2009 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Brisbane Magistrates Court DELIVERED ON: 30 April 2010 DELIVERED AT: Brisbane HEARING DATE: 27 April 2010 JUDGE: Dorney QC DCJ ORDERS: (1) The appeal is allowed. (2) The sentences imposed in the Brisbane Magistrates Court on 18 June 2009 are varied, by ordering, instead of the cumulative sentences imposed, that the sentences imposed on 18 June 2009 be served concurrently with each other and concurrently with all other sentences being served. (3) The parole eligibility date is fixed at 18 June 2009. CATCHWORDS: APPEAL AGAINST SENTENCE – Whether sentence manifestly excessive – appropriateness of cumulative sentence. COUNSEL: S. Ganasan for the Appellant R. Marks for the Respondent SOLICITORS: Legal Aid Queensland for the Appellant Director of Public Prosecutions for the Respondent -- 1 of 7 -- 2 Introduction [1] The appellant, on his own plea, was convicted and sentenced on 18 June 2009 at the Magistrates Court Brisbane. The offences with which he was charged were: possessing a thing used in the commission of a crime (namely, in connection with the supply of a dangerous drug) (on 24 October 2008); and driving without a licence (disqualified by court order) (on 10 December 2008). [2] On the first offence he was sentenced to 3 months imprisonment; and on the second offence he was sentenced to 5 months imprisonment, as well as a disqualification from driving for a period of 30 months. The sentences imposed were cumulative on each other and on sentences already being served. A parole eligibility date was fixed at 18 June 2009. [3] The appellant was born in early 1976, was aged 32 in October and December 2008, and is presently aged 34. Grounds of appeal [4] The appellant originally relied upon two grounds of appeal. They were, first, that the imposition of cumulative periods of imprisonment, cumulative upon a current order of imprisonment, is manifestly excessive, and, secondly, that the imposition of a cumulative sentence without giving the parties an opportunity to respond is a breach of natural justice. [5] In both written and oral submissions, the appellant merely pressed the issue of cumulative sentencing being manifestly excessive. The Pre-sentence Custody Certificates [6] The first Certificate, dated 8 May 2009, concerning the appellant, was available for consideration by the learned sentencing Magistrate in June 2009. A further Certificate, dated 27 April 2010, has now been presented to the Court; see Exhibit “A” to the affidavit of Marc Lawrence Dressler filed 27 April 2010. But this Certificate is based on the sentencing under appeal being held to be ultimately effective. The earlier Certificate shows that the appellant was then serving a sentence for 3 years, with a start date of 6 March 2008, an end date of 5 March 2011, and a parole release date fixed at 27 April 2008. From the appellant’s criminal history in Queensland (Exhibit 1), the sentence was one imposed by the District Court at Brisbane on 6 March 2008. [7] The offences which are the subject of this appeal breached the terms of the appellant’s parole. In particular, the appellant had been released under court ordered parole when the incidents in October and December of 2008 occurred. Thus, pursuant to s 209 of the Corrective Services Act 2006, any further term of imprisonment would trigger an automatic cancellation of parole. -- 2 of 7 -- 3 Preliminary issue [8] In response to a request for a copy of transcript of the learned sentencing Magistrate’s reasons in this case, the Transcripts Clerk, by letter dated 29 October 2009, noted that on 18 June 2009 the particular court in which the hearing of the conviction and sentencing was held “had technical difficulties…which consequently corrupted all recordings on that day”. It was further stated that it was “unfortunate that we are unable to supply any transcripts” relevant to the present appeal. [9] On behalf of the respondent, Melissa Jade Wilson, by affidavit filed 9 December 2009, after stating that she was the Prosecutor at the summary hearing, deposed that the written sentence submissions that she had prepared outlined the facts that she put up orally at the sentence of the appellant. Exhibit A to that affidavit is a copy of those written sentence submissions. The affidavit does not depose what was stated from the bench by the learned sentencing Magistrate. [10] On behalf of the appellant, Ann-Maree Josephine Russo, by affidavit filed 15 December 2009, after stating that she made the sentencing submissions on behalf of the appellant and noting that the information contained in the affidavit was from memory only, recalled what words she used in her submissions. Again, apart from one matter (to be mentioned next), the affidavit does not depose to any reasons given by the learned sentencing Magistrate. That one matter that is referred to in this affidavit is that the deponent remembered the Magistrate ordering the periods to be cumulative, stating that the deponent did not recall being invited to make submissions on the cumulative aspect of the sentencing. [11] As earlier stated, in the appellant’s written submissions there is no reliance upon the ground of breach of natural justice (or procedural fairness). They merely contend that it is now not possible to examine on what basis the sentencing discretion was exercised. [12] Both the written and oral submissions on behalf of the appellant concentrated, instead, on the alleged failure by the learned sentencing Magistrate to take properly into account the totality principle, such that the sentencing imposed had a crushing effect on the appellant by reason of the successive cumulative sentences imposed, particularly where there was no reflection in the extended cumulative sentencing of the mitigation aspect of a guilty plea, it being illusory if the early parole release date eligibility as determined was intended to acknowledge this factor. The illusion arises because of the effect of s 209 (mentioned earlier). [13] From the respondent’s perspective, there was reliance solely on the submission that the sentencing discretion was exercised without relevant error. [14] But a potential complication arises from what was considered, but rejected, by the Court of Appeal in Teelow v Commissioner of Police [2009] QCA 84. There, due to a technical recording problem, there was no transcript of the proceedings heard before the Magistrate. After remarking that, as was appropriate, an appeal such as this in the District Court is by reference to the evidence before the Magistrate, Muir JA, with whom Fraser JA generally agreed with some additional brief observations and with whom Mullins J expressly agreed, held that it was incumbent upon an appellant’s legal representatives to place any material matters upon which there was an intention to rely before the District Court Judge: at [5]. In circumstances where -- 3 of 7 -- 4 reasons were, in fact, given and the content of those reasons could have been deposed to and probably would have been if reliance was to be placed on what was said or admitted to be said by the learned sentencing Magistrate, Muir JA held that he was unable to accept the proposition that the failure to bring a transcript into existence was tantamount to a failure to give reasons: at [16]. This led him to conclude that there was, thus, no error or law requiring a judge to “exercise the sentencing discretion afresh”: also at [16]. [15] But given that Teelow concerned, simply, a conviction after a plea of guilty on one charge of unlawful possession of methylamphetamine, given that the present appeal concerns an area of law – (for reasons which will be developed later) that needs express elaboration – and given that both the appellant and the respondent have filed affidavits wherein nothing is deposed to which details any reasons for imposing cumulative sentences (at least in any detail of significance), I conclude that this appeal is distinguishable from Teelow and that it is appropriate to treat this appeal as one in which there was no reliable extrinsic evidence as to the content of the Magistrate’s reasons: see Fraser JA at [33]. [16] Consequently, I conclude that it is proper for this court to exercise the sentencing discretion afresh. Principles of cumulative sentencing [17] The offences of “possessing things” contrary to s 10(1)(b) of the Drugs Misuse Act 1989 and “disqualified driving” contrary to s 78 of the Transport Operations (Roads Use Management) Act 1995 were not offences closely related in time and nature: see the Court of Appeal in R v Dinaro [1997] QCA 358. But even in cases where there can be no strict application of the traditional “totality” principle referred to in R v Mill (1988) 166 CLR 59 because the offences involved are quite discrete and are committed a significant time apart, such cases might require the application of the principle in the case of a prisoner serving a lengthy term: at folio 9. This was stated to be so because such a further term imposed cumulatively does not begin to run until well into the future and may have an extremely onerous, or perhaps an overwhelming, effect in some cases: at folio 9. In such circumstances, the sentence imposed should not be a “crushing one”: at folio 9. Nevertheless, the case from which the last comment was extracted referred to a sentence being deferred for a lengthy period, with a statement that the view was that five years was such a period: then, some moderation is called for with respect to the length of the sentence in question: at folio 9. There can be no doubt that the principle applies not only to the sentences being imposed but also to those then currently being served: see Postiglione v R (1996-1997) 189 CLR 295 at 308, per McHugh J. [18] On a more narrow view of totality, more recently, in R v Dobie [2009] QCA 394, the Court of Appeal, again by reference to Mill (among many other cases), with respect to two counts of presenting false documents where there was a sentence of 12 months imprisonment to be served cumulatively upon an effective four year term otherwise to be served, held the sentencing judge was entitled to regard those two counts as separate episodes of criminality warranting cumulative punishment, although noting that the learned sentencing judge might have instead imposed only concurrent sentences on the footing that the offender was involved in “one multi- -- 4 of 7 -- 5 faceted course of criminal conduct”; but, in that event, the learned sentencing judge might perhaps have increased the sentence imposed for one of the serious offences to refect the overall criminality: at [47] per Fraser JA, with whom Cullinane and P Lyons JJ expressly agreed. Fraser JA then went on to conclude that, however that might be, it was within the sentencing discretion to impose cumulative imprisonment in circumstances in which there were no elements in common but where the term imposed cumulatively was relatively moderate and the resulting effective sentence was not disproportionate or crushing: also at [47]. What the observations demonstrate is that a reasoned decision is required where cumulative sentences are imposed. Relevant circumstances [19] Both the appellant’s Queensland criminal history and the appellant’s Queensland traffic record were tendered: see Exhibits 1 and 2. As accurately summarised in the respondent’s written submissions: • the appellant has been convicted of summary drug offences on seven previous occasions; • the offence of driving while disqualified constituted the second instance of this offence where the appellant had previously been convicted of unlicensed driving on five occasions; • the appellant has previously been fined, sentenced to community based orders (namely community service and probation), sentenced to suspended terms of imprisonment, and also sentenced to terms of imprisonment with a parole release date; and • the first offence occurred approximately two months after having been released on parole (being the offence of “possessing things”) and the second offence occured approximately four months after having been released on parole (being the “disqualified driving” offence). [20] Besides the above, the appellant has both an otherwise considerable criminal and traffic history. And it was during that second period of release on the court ordered parole that the appellant committed both of the relevant offences. Consideration [21] It became clear during oral submissions that the appellant was not contesting that the actual periods of imprisonment (namely, 3 months for “possessing things” and 5 months for “disqualified driving”) were themselves “manifestly excessive”. What was of concern to the appellant was the effect of those sentences being imposed cumulatively on each other and particularly on the sentence of imprisonment already being served. [22] The frankly expressed consequence was that the appellant, if he did not receive relevant parole release would probably have to serve a further 8 months after the -- 5 of 7 -- 6 full-time release date on the sentence of imprisonment already being served, with the consequence it would be illusory if it was intended, by the early parole eligibility date ordered, to accept that that would ameliorate any sentence imposed. Where the offences were similar in nature and cause to what the original sentence of 3 years involved, the consequence would be that it was likely he would serve a substantial portion of all sentences imposed on him. [23] The respondent’s primary contention was that it was within the clear sentencing discretion of any court involved in this sentencing to conclude that the appellant’s actions depicted a person who has had no real remorse and who has had an utter contempt for the previous court orders that have been imposed, and that, in light of those actions and the offending conduct, the sentences imposed were either not manifestly excessive or were appropriate to the present circumstances. It was submitted that if the terms of imprisonment had not been, or would not be, ordered to be served cumulatively, it would not have acknowledged, or acknowledge, the aggravating circumstance of continuing to offend whilst on parole and thus render to the appellant “no practical penalty”. In support of the latter proposition the respondent relied upon both Ford v Cook [2002] QDC 278 and The Commissioner of Police v Hotchkiss (unreported, 19.10.06, Forde DCJ). It is noted that both those cases concerned cumulative sentencing in circumstances of suspended terms of imprisonment. To that extent at least, there is an analogy. But the analogy does not necessarily hold here where the automatic imposition by s 209 (already addressed) of the cancellation of parole reactivates the imposed imprisonment. That is a penalty that these breaches engender, upon imprisonment for them. To further penalise without further reasoning why these should be an accumulation of all sentences is, in my view, erroneous. The new imprisonment does not, for instance, swallow up the reactivated imprisonment. Conclusions [24] I hold that this is an appropriate case in which to apply the extended notion of the totality principle. Here, if not applied, there would be the extension to a significant term of imprisonment (3 years) of a further total of 8 months [being the effect of the cumulative sentences of 3 months and 5 months imprisonment (the latter being a significant, perhaps increased, sentence, reflecting the overall criminality), respectively]. Otherwise, even conceding notions of aggravating circumstances arsing from the offences being committed while on parole release, it takes it out of what is both a just punishment in the circumstances and one that shows proper denunciation of the offending conduct. The cumulative effect would be disproportionate to the overall criminality. This approach takes into account the mitigation that must necessarily apply because of the pleas of guilty. While it is not totally irrelevant that both these offences occurred during a period of release on parole, both of these offences are similar to other offences which were taken into account at the earlier sentencing date of 6 March 2008. [25] The setting of the parole eligibility date as at the date of original sentencing then can properly reflect an acknowledgement that parole can be considered now for all sentencing imposed. This gives due attention to the effect, otherwise, of s 184(1)(d) and s 184(2) of the Corrective Services Act 2006. -- 6 of 7 -- 7 [26] Consequently, the appeal will be allowed. Alternative conclusion [27] Should I be wrong in concluding that the sentencing should be exercised afresh, it is clear from the reasoning canvassed here that I would come to exactly the same conclusion if obliged to reconsider the sentencing on 18 June 2009 from the perspective of the application of House v The King (1936) 55 CLR 499 at 504-505. The errors would arise from the failure to consider adequately the effect of cumulative sentencing, the failure to consider adequately the effect of cumulative sentencing on top of an existing 3 year sentence of imprisonment which would be automatically reactivated by such sentences of imprisonment, and the failure to appropriately address the mitigating effect of the pleas of guilty. Further, there was a failure to adequately consider what real effect the eligibility date for parole chosen could have on a proper consideration of parole for this particular offender. Orders [28] The orders of the court are: (1) The appeal is allowed. (2) The sentences imposed in the Brisbane Magistrates Court on 18 June 2009 are varied by ordering, instead of the cumulative sentences imposed, that the sentences imposed on 18 June 2009 be served concurrently with each other and concurrently with all other sentences being served. (3) The parole eligibility date is fixed at 18 June 2009. -- 7 of 7 --