Baker v Queensland Police Service [2009] QDC 245

DISTRICT COURT OF QUEENSLAND CITATION: Baker v Queensland Police Service [2009] QDC 245 PARTIES: BAKER, John Samuel (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) FILE NO/S: 52 of 2009 DIVISION: Appellate Jurisdiction PROCEEDING: Appeal ORIGINATING COURT: Murri Court, Cairns DELIVERED ON: 20 July 2009 DELIVERED AT: Cairns HEARING DATE: 7 July 2009 JUDGE: Bradley DCJ ORDER: That the sentences imposed by the Magistrate on 13 February 2009 and re-opened on 20 March 2009, be set aside and the following penalties be substituted:- Date of Offence Nature of Offence Penalty 3/4/07 1 x common assault 6 mths imprisonment 3/4/07 1 x breach domestic violence order 3 mths imprisonment (concurrent) 3/12/08 1 x Public nuisance 3 mths imprisonment (concurrent) 3/12/08 Obstruct police 14 days imprisonment (concurrent) 3/12/08 Assault police 14 days imprisonment (concurrent) 3/12/08 Breach of release conditions (domestic violence) 6 mths imprisonment (cumulative) 3/12/08 Breach of bail condition 14 days imprisonment (concurrent) 27/12/08 Breach of domestic violence order 6 mths imprisonment (cumulative) 27/12/08 Breach of bail condition 3 mths imprisonment (concurrent) 9/1/09 Breach of bail condition 1 mth imprisonment (concurrent) 9/1/09 Breach of domestic violence order 3 mths imprisonment (concurrent) That the appellant be released on parole today, 20 July 2009. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE OF MURRI COURT – SENTENCING PROCEDURE – -- 1 of 10 -- 2 SENTENCE MANIFESTLY EXCESSIVE – where the appellant pleaded guilty to a number of offences in the Murri Court – whether appellant entitled to credit for successfully completing Murri Court bail – whether the Magistrate erred in failing to state that the appellant’s guilty pleas had been taken into account and sentence reduced accordingly Penalties and Sentences Act 1992 (Qld), s 13(3), s 13(4) R v Harris [2008] QCA 141 R v Woods [2004] QCA 204 COUNSEL: B Murray Counsel for the appellant J Crawfoot Counsel for the respondent SOLICITORS: Wettenhall Silva Solicitors for the appellant Office of the Director of Public Prosecutions for the respondent Introduction [1] The appellant was convicted of a number of offences in the Cairns Murri Court on 6 May 2008 and 13 February 2009. As a result he received an effective head sentence of 27 months and 14 days imprisonment and after the sentences were reopened on 20 March 2009, he was given a parole release date of 9 October 2009. The appellant argues that the overall sentence is manifestly excessive. [2] The offences to which the appellant pleaded guilty are as follows:- Date of Offence Nature of Offence Penalty 3/4/07 1 x common assault 9 mths imprisonment (27 days pre-sentence custody declared) 3/4/07 1 x breach domestic violence order 3 mths imprisonment (concurrent) 3/12/08 Public nuisance 3 mths imprisonment (concurrent) 3/12/08 Obstruct police 14 days imprisonment (concurrent) 3/12/08 Assault police 14 days imprisonment (cumulative) 3/12/08 Breach of release conditions (domestic violence) 9 mths imprisonment (cumulative) 3/12/08 Breach of bail condition 14 days imprisonment (concurrent) 27/12/08 Breach of domestic violence order 6 mths imprisonment (cumulative) (9 days pre-sentence custody declared) 27/12/08 Breach of bail condition 3 mths imprisonment (concurrent) 9/1/09 Breach of bail condition 1 mth imprisonment (concurrent) 9/1/09 Breach of domestic violence order 3 mths imprisonment (cumulative) (35 days pre-sentence custody declared) -- 2 of 10 -- 3 [3] The history of the matter in the Murri Court was that the appellant pleaded guilty in that court on 6 May 2008 to the two offences committed in April 2007. A pre- sentence report with input from the Thursday Island Community Justice Group was ordered, the defendant was remanded in custody and the matters adjourned to 30 May 2008. On 30 May 2008 the appellant was released on bail with residency, no contact and reporting conditions. These included a requirement that he report to the Gumba Gumba Justice Group in Cairns. The matters were then mentioned on 20 June, 15 August and 17 October in the Murri Court. [4] On 17 October the Court was advised that the appellant had enrolled in the “Going Forward for Men” 12 week programme with Relationships Australia which was to conclude on 23 December 2008. Both the Police Service and the Community Justice Group supported the defendant completing that programme prior to sentence. A reporting to police condition on his bail was removed. Unfortunately, the appellant then committed the further offences in December 2008 and January 2009 and was remanded in custody from 21 January 2009. Appellant’s Criminal History [5] The appellant was born on 28 May 1970 and is now 39. He has an extensive criminal history as follows:- Date of Conviction Nature of Offence Penalty 29/8/90 Indecent assault 1 year probation 150 hrs community service 20/2/96 2 x Breach of domestic violence order 2 mths imprisonment on each (cumulative) 16/7/96 Breach of domestic violence order Recognizance in the sum of $300 for 1 year 2/7/99 Breach of domestic violence order Fine $400 14/7/99 Assault occasioning bodily harm; Breach of domestic violence order; Escape custody For each offence 6 mths imprisonment 22/6/00 Assault occasioning bodily; breach of domestic violence order On each offence 15 mths probation 12/4/01 Breach of domestic violence order 9 mths imprisonment 25/6/01 Breach of Probation Order Order revoked, re-sentenced to 6 mths imprisonment 8/8/01 Fraud; 3 x stalking On all charges 12 mths imprisonment to be served by way of an Intensive Correction Order 11/12/02 2 x breach of domestic violence order 3 mths and 9 mths imprisonment to be served by way of an Intensive correction Order -- 3 of 10 -- 4 23/7/03 Breach of Intensive Order x 2 Order revoked, sentenced to serve unexpired portion of order – 6 mths and 10 days 29/10/04 Breach of domestic violence order x 3; Wilful damage 4 mths imprisonment 3 mths imprisonment 5/4/05 Breach of domestic violence order 3 mths imprisonment wholly suspended for 3 years 17/5/06 Breach of domestic violence order x 2 and common assault For each offence 6 mths imprisonment suspended for 2 years after serving 3 mths 17/5/06 Common assault; breach of domestic violence order 6 mths imprisonment suspended after 3 mths for 2 years; 2 years Probation 17/5/06 Assault occasioning bodily harm 9 mths imprisonment suspended for 2 years after 3 mths 17/5/06 Wilful damage 3 mths imprisonment 17/5/06 Breach of domestic violence order Convicted and sentenced to 9 mths imprisonment wholly suspended for 2 years 17/5/06 Breach of suspended sentence imposed on 5/4/05 Order to serve 3 mths imprisonment 12/1/07 Breach of Probation Order imposed on 17/5/06 Re-sentence for original offences, 6 mths imprisonment (cumulative) 12/1/07 Obstruct police 1 mth imprisonment 12/1/07 Assault occasioning bodily harm whilst armed 3 mths imprisonment 12/1/07 Breach of suspended sentence imposed 17/5/06 Ordered to serve 9 mths imprisonment, parole release 12/1/07 [6] The defendant’s history also included offences of breach of bail; assault and resist police and drug offences. Facts of Offences [7] The facts of the offences committed on 3 April 2007 are that the appellant and the complainant (“R”) had lived in a de facto relationship on Thursday Island for many years. On 13 November 2006 the Thursday Island Magistrates Court made a Domestic Violence Protection Order in favour of R. The appellant was served with the order on 11 January 2007. On 3 April 2007 the appellant had been out drinking and returned to the residence at about 2.00 am. His de facto was sleeping in their bedroom. The appellant woke her and asked for cigarettes. She told him that she didn’t have any and the appellant became angry and began calling her names. R asked him to calm down so that he didn’t wake other relatives who were sleeping in the house. The appellant punched her to the head. R left the room, woke her relatives (including children) and asked them to leave the house which they did. As R was leaving through the front door she was pushed from behind by the appellant, -- 4 of 10 -- 5 causing her to stumble forward and fall to the ground. R got up and walked to a car and departed with her relatives. She suffered pain, including the aggravation of a back injury, otherwise she had no physical injuries. Police located the appellant on several subsequent occasions but were unable to interview him due to his level of intoxication. On 16 January 2008 the appellant declined to take part in a recorded interview stating that the incident had happened too long ago and he couldn’t recall it. [8] On 3 December 2008 at 4.45 am an off-duty police officer heard a disturbance coming from the street outside the Manoora Police Beat in Cairns. The appellant was observed walking up and down Enmore Street yelling, “Fuck” at the top of his voice, punching a street sign and yelling at a male and a female. He was observed to head-butt the female approximately three times. The police officer approached the appellant and identified himself. The appellant stated that he was leaving and the officer arrested him for committing public nuisance. The officer tried to block the appellant’s departure and told him to move back towards the Police Beat. The appellant continued to walk away and stated he was not going with the police. The appellant lunged at the officer and tried to punch him in the face. The officer evaded the blow. The officer struck the appellant’s thigh with a baton and the appellant ran away bumping his shoulder into the officer’s shoulder and knocking him off balance. [9] The police officer spoke with the female (“L”) who explained that she was the ex- partner of the appellant. He had been arguing with her because she had commenced a new relationship. She confirmed that the appellant had head-butted her and pushed her around. The appellant had previously been detained on 30 November 2008 pending an application for a Domestic Violence Protection Order in favour of L. He had been released from that detention subject to a condition that he not commit any further acts of domestic violence against her. [10] At 6.00 pm on 3 December 2008 police attended the residence of the appellant’s father at which he was to reside pursuant to a bail undertaking. They were told by the appellant’s father that the appellant was not living there. The Murri Court was told that the appellant had been charged with a similar breach of bail conditions on 30 November 2008 and on 1 December 2008 was convicted and fined $450. [11] On 4 December 2008 a Domestic Violence Protection Order was made against the appellant in favour of L. The order included conditions that the appellant not approach within 50 metres of the aggrieved and not approach within 100 metres of her residence or place of work. The appellant was informed of these conditions by police officers on 19 December 2008, though the order had not yet been served on him. Between 5.00 am and 7.00 am on 27 December 2008, L was awoken by the appellant loudly calling her name. She saw him walking around the outside of her house, banging on doors and windows. She told him to leave. The appellant damaged a sliding door and smashed a bedroom window before leaving. Police saw the appellant walking along Murray Street about 80 metres from L’s house. He was grossly intoxicated. He said that he was on the way to his cousin’s house and denied having attended L’s residence. On 19 December 2008 the appellant had been admitted to bail which included a condition that he have no contact with L. The appellant had therefore breached both the domestic violence order and his bail undertaking by attending her residence. -- 5 of 10 -- 6 [12] On 29 December 2008 the appellant was admitted to bail with conditions including prohibitions from having contact with L, attending her residence and consuming alcohol. At 9.15 pm on 9 January 2009 police were called to a disturbance at L’s residence. On arrival they saw the appellant departing from the back yard of the residence. L was not at home when the police arrived. The appellant was arrested soon afterwards and was found to have a blood alcohol concentration of .205%. The Murri Court [13] During proceedings in the Murri Court, the Magistrate was assisted by local Aboriginal elders and a representative of the Department of Corrections as well as a police prosecutor and the appellant’s solicitor. During the proceedings the elders spoke directly to the appellant and gave their opinions as to sentence to the presiding Magistrate. [14] Uncle Bob Colless, an Aboriginal elder, appears to have been present in the Murri Court assisting the presiding Magistrate on most, if not all, of the occasions on which the appellant appeared before the court. On 20 June 2008, Uncle Bob said, “…but John has come to the Justice Group on several occasions. He has responded well with our staff and our elder, Uncle Francis Mosby. There is also a letter from [indistinct] of the Thursday Island Community Justice Group and they would like to see John undergo, if there was a way, some alcohol counselling…” [15] On 13 February 2009 Uncle Bob said just prior to sentencing:- “Look, I was very happy to work with John. My elders were very impressed with John. John was a regular. He was reliable and John was the only one that was doing voluntary work. John was actually working along the Barron River at the time, in the rain at times, but he still showed up.” “…It’s a bit like Jekyll and Hyde. John sober, what a wonderful man to know and to work with. John drinks a bit and sometimes things get on to him… He did six months with Gumba Gumba. He didn’t offend. He travelled well.” Uncle Bob recommended that the appellant be able to undertake community based alcohol rehabilitation programmes. [16] The nature of the Murri Court is that discussion takes place amongst the participants including the defendant and, not unusually on a number of occasions, as the progress of the defendant while on bail is monitored. The presiding Magistrate spoke directly to the appellant throughout the proceedings and it is therefore necessary to examine all of the relevant transcripts and not just what would normally be referred to as his “sentencing remarks” to ascertain what influenced the final sentence. [17] It is clear that the presiding Magistrate had had regular contact with the appellant over many years, not only within the Court, but also for example seeing him in the street on Thursday Island. The Magistrate acknowledged that the appellant was a good man when sober and was a hard worker. The Magistrate was aware of the problems the appellant had had with his long term de facto partner (R), the -- 6 of 10 -- 7 complainant in the offences committed in April 2007 and that sometimes she was as violent towards the appellant as he was to her. However, the Magistrate rightly noted his concern that the violence had flowed into the appellant’s new relationship with L. The Magistrate told the appellant that he “cannot abide…a man hitting a woman”. The Magistrate went on to say, “But I do know, John, is it has to stop. You have to stop it. We have to stop other men and other indigenous men from committing acts of violence towards women, and the only way I can see to do it is to gaol those people we [sic] are not listening, and that is what I have to do to you today.” The Magistrate was clearly concerned about both personal and general deterrence. Effect of the pleas of guilty [18] The appellant argues that the Magistrate failed to state that he had taken the appellant’s guilty pleas into account and that he had accordingly reduced the sentence which might otherwise have been imposed, as required by s 13(3) of the Penalties and Sentences Act and that this amounts to an error of principle. [19] Subsection 13(3) of the Penalties and Sentences Act provides:- “When imposing the sentence the court must state in open court that it took account of the guilty plea in determining the sentence imposed.” Subsection (4) provides:- “(4) A court that does not, under subsection (2), reduce the sentence imposed on an offender who pleaded guilty must state in open court – (a) that fact; and (b) its reasons for not reducing the sentence. (5) The sentence is not invalid merely because of the failure of the court to make the statement mentioned in subsection (4), but its failure to do so may be considered by an appeal court if an appeal against sentence is made.” [20] As was noted by the Court of Appeal in R v Woods [2004] QCA 204 at para [10]:- “The necessity to take a guilty plea into a count and state that it has been done and how it has been done is an essential part of the transparency of the sentencing process.” In R v Harris [2008] QCA 141 Daubney J said:- “Section 13 is a significant element in the mechanism of achieving efficient administration of criminal justice in this State. It self evidently provides for an accused to receive an appropriate and tangible recognition in the sentencing process for the saving in time and cost to the courts, the prosecuting authorities, and to publicly funded or community based defence organisations which result from the entering of a plea of guilty or at least to be expressly told why recognition is not being given in a particular case. The purposes of the Penalties and Sentences Act include the promotion of consistency of approach in sentencing offenders (see s 13(c),) providing sentencing principles that are to be applied by the court (s 3(e)), and promoting public understanding of sentencing practices and -- 7 of 10 -- 8 procedures (s 3(g)). It is important for public confidence in the achievement of these purposes that the provisions of s 13 not be overlooked in the sentencing process.” [21] The respondent concedes that the Magistrate did not state in open court that the plea of guilty was taken into account but submits that the pleas were in fact taken into account but the Magistrate nevertheless exercised his discretion not to reduce the penalty and did state his reasons in open court. [22] Sentencing proceedings in this case effectively took place over a nine month period and the respondent argues it is necessary to consider what the Magistrate said throughout those proceedings, in this case particularly on 20 June 2008 and 13 February 2009, as disclosing his reasoning on sentence. On 20 June 2008, in an exchange with the appellant, the Magistrate addressed the issue of the appellant’s insight into the offending and throughout the proceedings on 20 June 2008 and 13 February 2009 clearly acknowledged the individual circumstances of the appellant’s case. However, of course on 20 June 2008 the Magistrate only had before him the two offences committed in April 2007. [23] The respondent argues that the Magistrate did refer to the continuation of the appellant’s offending in a new domestic relationship and the need for general deterrence as being reasons for not reducing the sentence. I do not agree with the respondent’s interpretation of the Magistrate’s remarks. The reasons given were to justify a relatively lengthy term of imprisonment rather than an explanation for not reducing the sentence in acknowledgment of the appellant’s pleas of guilty. [24] The sentencing discretion did therefore miscarry and it is necessary to consider again the appropriate sentence to be imposed in the circumstances. The appellant’s argument [25] The appellant’s argument is that, although it was in the Magistrate’s sentencing discretion to order that the penalty for the breach of the domestic violence order committed on 27 December 2008 be cumulative on the penalty imposed for the offending on 3 April 2007, the effect of all of the accumulation is excessive. Particularly, it is argued the Magistrate failed to give the appellant due credit for staying out of trouble for the 20 months between April 2007 and December 2008 or that he had performed well whilst on his Murri Court bail for approximately six months prior to the commission of the offences in December 2008. [26] The Magistrate was informed by the representative from the Department of Corrections that even if the appellant was in prison for two years he would not be able to access alcohol rehabilitation programmes, whereas such programmes are available in the community provided the relevant parole order is at least seven to eight months. The appellant argues that the magistrate failed to adequately take this into account. The respondent’s argument [27] In arguing in support of the Magistrate’s ultimate sentence (except for the making of the term of imprisonment of 14 days for assaulting police on 3 December 2008 cumulative) the respondent referred to the fact that although the appellant had taken steps to rehabilitate himself after first appearing in the Murri Court, he had -- 8 of 10 -- 9 nevertheless gone on to commit a series of similar offences in December 2008 and January 2009, and his lengthy history of breaching domestic violence orders between February 1996 and January 2007, spoke for itself. The appellant’s history showed that he had, on a number of occasions, been given the benefit of community based orders which were subsequently breached. [28] The respondent points out that the offences committed on 3 April 2007 and 3 December 2008, both involved actual violence towards the complainants. The offences committed on 27 December 2008, although not involving any personal violence, were nevertheless serious particularly as they occurred only approximately three weeks after the incident on 3 December 2008. The respondent argues that having regard to the appellant’s recidivism, the periods of imprisonment for those offences should be made cumulative. Analysis [29] The appellant is entitled to significant credit for successfully completing some six months on Murri Court bail prior to committing further offences in December 2008 and this should have been reflected in the sentences imposed for the offences committed in April 2007. The appropriate sentences should have been six months imprisonment for the common assault and three months imprisonment (concurrent) for the breach of the domestic violence order. He is also entitled to significant credit for entering pleas of guilty to all of the offences. This should be reflected in a parole release date at approximately one third of the total term of imprisonment. [30] Given the facts, and particularly the appellant’s shocking history of convictions for violence against his partners, the sentence for the breach of release conditions on 3 December 2008 (the head-butt) warranted a term of imprisonment of six months and the breach of the domestic violence order on 27 December 2008, in which damage was done to the complainant’s property although the complainant herself was not injured, warranted a term of imprisonment of six months. In the circumstances, it is appropriate to make the terms of imprisonment imposed for the offences committed on 3 April 2007, the breach of release conditions on 3 December 2008, and the breach of the domestic violence order on 27 December 2008, cumulative upon each other. The appellant concedes that the terms of imprisonment for each of the other offences are appropriate and the respondent concedes that the term of imprisonment of 14 days imposed for the assault police committed on 3 December 2008, should not be made cumulative on any other term of imprisonment. Order [31] I order therefore that the sentences imposed by the Magistrate on 13 February 2009 and re-opened on 20 March 2009, be set aside and the following penalties be substituted:- Date of Offence Nature of Offence Penalty 3/4/07 1 x common assault 6 mths imprisonment 3/4/07 1 x breach domestic violence order 3 mths imprisonment (concurrent) 3/12/08 1 x Public nuisance 3 mths imprisonment (concurrent) 3/12/08 Obstruct police 14 days imprisonment (concurrent) -- 9 of 10 -- 10 3/12/08 Assault police 14 days imprisonment (concurrent) 3/12/08 Breach of release conditions (domestic violence) 6 mths imprisonment (cumulative) 3/12/08 Breach of bail condition 14 days imprisonment (concurrent) 27/12/08 Breach of domestic violence order 6 mths imprisonment (cumulative) 27/12/08 Breach of bail condition 3 mths imprisonment (concurrent) 9/1/09 Breach of bail condition 1 mth imprisonment (concurrent) 9/1/09 Breach of domestic violence order 3 mths imprisonment (concurrent) Parole release date [32] There are pre-sentence custody certificates on the lower court file which indicate that the appellant was held in custody on these charges between 4 May 2008 and 30 May 2008, i.e. 27 days; and between 9 January 2009 and 13 February 2009, i.e. 35 days. This makes a total of 62 days pre-sentence custody served. The appellant has now served 158 days of his sentence and has thus served over six months of this term of imprisonment (when the pre-sentence custody is considered time served). The appellant should therefore be released on parole today, 20 July 2009. -- 10 of 10 --