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  • Unreported Judgment

EPN v Queensland Police Service

 

[2020] QDC 34

 

DISTRICT COURT OF QUEENSLAND

 

CITATION:

EPN v Queensland Police Service [2020] QDC 34

PARTIES:

EPN

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO:

Appeal No. 126 of 2019

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

4 March 2020

DELIVERED AT:

Cairns

HEARING DATE:

10 December 2019

JUDGE:

Morzone QC DCJ

ORDER:

  1. Appeal allowed.
  2. The sentence and orders of the Magistrates Court made in Cairns on 16 July 2019 are varied by setting aside the parole release order and substituting the following orders:
    1. The terms of imprisonment are partly suspended after the appellant serves 60 days imprisonment; and
    2. The operational period under this order is 2 years.
  3. I declare that 60 days the appellant spent in custody from 12 September 2018 to 23 October 2018 and from 16 July 2019 to 2 August 2019 inclusive in relation to the offending is to be imprisonment already served under the sentence. I direct the Registrar to inform the Commission of this Declaration.
  4. All other sentences and the disqualification order are affirmed.

CATCHWORDS:

CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 - conviction – contravening a domestic violence order and dangerous operation of a motor vehicle, whilst adversely affected by an intoxicating substance – characterisation of the nature and extent of the offending conduct – whether offending in the broad category as the comparative cases - period of pre-sentence custody – whether the period of time ordered to be served in actual custody excessive – consideration of suitability parole or suspended sentence - whether sentence manifestly excessive – resentence.

Legislation

Allesch v Maunz (2000) 203 CLR 172

Dwyer v Calco Timbers (2008) 234 CLR 124

Fox v Percy (2003) 214 CLR 118

Forrest v Commissioner of Police [2017] QCA 132

House v The King (1936) 55 CLR 499

Kentwell v R (2014) 252 CLR 60

Lovell v Lovell (1950) 81 CLR

Lowe v The Queen (1984) 154 CLR 606

MAR v Queensland Police Service [2015] QDC 144

McDonald v Queensland Police Service [2017] QCA 255

R v Allison [2012] QCA 249

R v Forsythe [2011] QCA 71

R v Goodwin; Ex Parte Attorney-General (Qld) [2014] QCA 345

R v H (1993) 66 A Crim R 505

R v Lomass (1981) 5 A Crim R 230

R v McIntosh [1923] St R Qd 278

R v Morse (1979) 23 SASR 98

R v Pearce [2010] QCA 338

R v Read (unreported, Court of Appeal, Qld, No 525 of 1996, 26 February 1997)

R v Ross [2004] QCA 21

R v Shrestha (1991) 173 CLR 48

R v Tufuga & Kepu; ex parte A-G [2003] QCA 171

Theuerkauf & Theuerkauf; ex parte A-G [2003] QCA 94

Warren v Coombes (1979) 142 CLR 531

White v Commissioner of Police [2014] QCA 121

Cases

Justices Act 1886 (Qld)

Penalties and Sentences Act 1992 (Qld)

COUNSEL:

J Trevino for the appellant

S Shaw for the respondent

SOLICITORS:

O’Reilly Stevens Lawyers for the appellant
Office of the Director of Public Prosecutions for the respondent

  1. [1]
    The appellant appeals on the grounds that the sentence imposed on 16 July 2019 in the Magistrates Court in Cairns was manifestly excessive, being an effective 18 months imprisonment with a parole release date of 16 October 2019, and 18 months driving disqualification.
  1. [2]
    Both parties provided outlines of argument, and made further submissions on the hearing of the appeal, which I have considered.

Background

  1. [3]
    On 12 September 2018, the 54 year old appellant offended by contravening a domestic violence order and dangerously operating a motor vehicle, whilst adversely affected by an intoxicating substance. Both offences arise out of the same incident at the residence of the complainant, the defendant’s estranged husband.
  1. [4]
    The facts were agreed in a schedule, which I summarise. In contravention of the temporary protection order made on 30 August 2018 (particularly the conditions to not approach or contact) on the night of 12 September 2018, the appellant went to the complainant’s residence (the former matrimonial home). At the back of the residence, she damaged property by throwing items, including furniture. After the complainant locked himself inside the house, the appellant then got into her Toyota LandCruiser Wagon and drove it through and over the front fence and into the front wall of the house. She reversed and rammed the wall a second and third time until the car broke through the wall and entered the lounge room of the house. This last occasion was videoed by a neighbour. By the time the car penetrated the house the complainant was in the kitchen about five metres away and was not injured by the offending. The house was extensively damaged with rectification costs estimated at $68,944.53.
  1. [5]
    The appellant was arrested that night. She informed police that she had been drinking a lot of light beer and drove to Mr W’s house while drunk; she explained that she attempted to talk with Mr W, but he locked himself inside and said words to the effect of “show me what you can do”.  A breath test conducted on the appellant on the night of 12 September 2018 revealed a BAC of 0.163. 
  1. [6]
    The appellant was remanded in custody for 42 days from 12 September 2018 until Supreme Court bail was granted on 23 October 2018.
  1. [7]
    In the meantime, the appellant indicated her plea of guilty on 4 December 2018.
  1. [8]
    The sentence was first listed for 22 March 2019, but was adjourned part heard. At that time, the prosecutor submitted that a sentence of 12 to 18 months’ imprisonment suspended after the 42 days already served would be appropriate. After receiving submissions from the appellant’s solicitor,[1] the learned magistrate adjourned the hearing to enable the parties to address those decisions.[2]
  1. [9]
    There were a number of further mentions and additional hearings before the imposition of a sentence.
  1. [10]
    On 29 March 2019, the sentence was adjourned in the wake of the learned magistrate’s reticence about the sufficiency of evidence in support of the prosecution’s application for an order of compensation. The matter was subsequently mentioned on 10 April 2019, 15 May 2019 and 5 June 2019.
  1. [11]
    The matter returned to court on 10 July 2019 when parties relied upon written and oral submissions on sentence.
  1. [12]
    The appellant was then 55 years old with no criminal history. She migrated to Australia from Thailand in 1989. She had some proficiency in spoken English, but could not read or write English. The appellant had a good work history, mainly in housekeeping and hospitality roles. The appellant and complainant met and married in 2012. They lived together at the complainant’s residence and bought a take-away business together in 2015. The marriage collapsed, and about three months before the offending, the appellant moved out of the matrimonial residence and lived at the business premises. At the time of the offending, the appellant had taken sole responsibility for the business operations as well as a market stall.
  1. [13]
    References spoke favourably of the appellant’s work ethic, character and of her shame, remorse and embarrassment about her offending conduct.[3]  One from a domestic violence counsellor confirmed that the appellant had sought and attended counselling and had refrained from alcohol use in the aftermath of the incident.
  1. [14]
    The appellant’s solicitor highlighted the appellant’s antecedents and sought to distinguish the case as one of using the car to damage property, as distinct from driving a car as weapon against a person, at speed or on a public road.
  1. [15]
    At the conclusion of final submissions, the learned magistrate declined to make a compensation order, and adjourned the matter to 16 July 2019 for pronouncement of sentence. His Honour also indicated: “Can I also – I’m not sure I append (sic) she appreciates the position she’s in.  Can I give her this indication.  And I’ve had the benefit of your submissions in the matter, Mr Prior’s submissions.  She should make some personal arrangements in relation to….
  1. [16]
    During the course of passing sentence on 16 July 2019, the learned magistrate:
  1. (a)
    Accepted that the appellant entered timely pleas of guilty that reduced the penalties that would have otherwise been imposed;
  1. (b)
    Did not consider that the appellant gave any co-operation in respect of the investigation into her offending, nor that she made any relevant admissions; 
  1. (c)
    Stated that “I accept the submissions on your behalf that confronted with the prospect of being held to account for your criminality, you are remorseful”; 
  1. (d)
    Stated that he declined to make a compensation order but was of the view that “the amount of loss, that is the significant and substantial damage to the property, resulting in a loss to Mr W of more than $60,000.00, is a feature to be taken into account in assessing the seriousness of your criminal conduct”;
  1. (e)
    Characterised the appellant’s offending as “extremely serious conduct and deliberate, obviously intended to cause “at least” property damage; was prolonged and carried out in a fit of rage, exposed the complainant to “very serious potential risk of injury”, caused extensive damage to the home and took place when the appellant was intoxicated. 
  1. (f)
    Opined that: “The offending, in respect of the dangerous operation offences, fall in – generally, in to three categories.  The Court of Appeal refers to those doing their inebriated best in driving and conduct which is manifestly dangerous, those who deliberately drive a vehicle, including those who, in many of the comparatives, evaded police in the course of driving, and the final category, using the vehicle, effectively, as a weapon.  The objective seriousness of your criminality falls in that most serious of the categories, that is using the vehicle as a weapon.
  1. (g)
    Considered that because the offending “falls towards the upper end of the spectrum an appropriate starting point for the dangerous driving offence absent of the features in mitigation, was two years imprisonment, but that penalty should be moderated to reflect the appellant’s timely plea, lack of criminal history, remorse and rehabilitation. 
  1. (h)
    Stated that he was not persuaded that the appellant should not be required to return to custody having regard to “the serious nature of the offending” and “the significant damage and loss suffered by the complainant.
  1. [17]
    The appellant was ultimately sentenced to a term of six months imprisonment for contravention domestic violence order; 18 months imprisonment for dangerous operation of a motor vehicle, whilst adversely affected by an intoxicating substance and 18 months disqualification from holding or obtaining a drivers licence. The periods of imprisonment were ordered to be served concurrently. Forty-two days of pre-sentence custody was declared as time already served, and a parole release date was set at 16 October 2019 (being at five months and 11 days in custody).
  1. [18]
    The appellant appeals against the sentence on the grounds that it was manifestly excessive. On 2 August 2019, she was granted bail pending the appeal hearing.

Mode of Appeal

  1. [19]
    The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld).  Section 222(1) relevantly provides:

“If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.”

  1. [20]
    Pursuant to s 223 of the Justices Act 1886 (Qld) the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave.  Section 223 provides:
  1. (1)
    An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.
  1. (2)
    However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
  1. (3)
    If the court gives leave under subsection (2), the appeal is—
  1. (a)
    by way of rehearing on the original evidence; and
  1. (b)
    on the new evidence adduced.
  1. [21]
    For an appeal by way of rehearing “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error,”[4] and thereby resulting in a manifestly excessive sentence.
  1. [22]
    The rehearing requires this Court to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case.[5] 
  1. [23]
    Its function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings. In doing so it ought to pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the magistrate’s view.[6]

Appeal against Sentence

  1. [24]
    The appellant also appeals against the sentence on the grounds that it was manifestly excessive.
  1. [25]
    This court ought not interfere with a sentence unless it is manifestly excessive, that is, beyond the acceptable scope of judicial discretion or “so outside the appropriate range as to demonstrate inconsistency and unfairness.[7] 
  1. [26]
    Even if the appellate court finds that the sentence was at the extreme end of a permissible range, or has a different opinion about the way in which the discretion should be exercised, these are not sufficient justifications for review; it must be shown that the discretion miscarried resulting in a manifestly excessive sentence.[8]  In that context, it may be vitiated by an error of principle, where there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice.[9]
  1. [27]
    The High Court held in House v The King[10] that:

“It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the Judge acts upon a wrong principle, if he allows erroneous 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 Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

  1. [28]
    The High Court in Kentwell v R[11] held:

“In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed.  By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.”

  1. [29]
    The decisions distinguish cases of specific error and manifest excess. Once an appellate court identifies a specific error, the sentence must be set aside and the appellate court must exercise the sentencing discretion afresh, unless, in that separate and independent exercise it concludes that no different sentence should be passed. By contrast, an error may not be discernible; but the sentence is manifestly excessive as being too heavy and lies outside the permissible range. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.

Grounds

  1. [30]
    The appellant argues that the sentence was manifestly excessive because:
  1. The learned magistrate mischaracterised the nature and extent of the offending conduct;
  1. The learned magistrate then misdirected himself by considering that appellant offending in the broad category as the comparative cases; and
  1. Taking into account the period of pre-sentence custody, the period of time to be served in actual custody was excessive.

Characterisation of offending

  1. [31]
    The appellant argues that the learned magistrate erred by characterising that the appellant’s criminality fell into “the most serious of the categories, that is using the vehicle as a weapon” and that she exposed the complainant to “very serious potential risk of injury.”
  1. [32]
    The respondent argues that the findings were “clearly open on the case”.  The respondent points to the appellant’s conduct of breaching protection orders by going to the house, throwing around furniture, and after the complainant said “show me what you can do” and locked himself inside, using the car like a battering ram.
  1. [33]
    In my respectful opinion, the learned magistrate did mischaracterise the offending as falling in the most serious of categories. It seems to me that whilst the appellant used the vehicle as a weapon, it was not in the most serious of categories where an offender weaponises a vehicle in a direct personal attack with potential serious injury of an unprotected victim. Her criminal conduct was in the context of a volatile marriage breakdown, where she was displaced from the matrimonial home and she went on a rage of wilful destruction of matrimonial assets whilst intoxicated. Her use of the vehicle to damage the house followed her damaging items of furniture and provocative remarks by the complainant. The appellant, reacting in the moment, got into the vehicle then deliberately and repeatedly rammed the house. She willingly caused extensive damage at the speed she drove, with the potential of indirectly causing injury to the complainant. The offending is aggravated by her intoxicated state, domestic violence and contravention of the protection order.

Comparative Cases

  1. [34]
    The appellant further argues that the learned magistrate compounded the error by considering that the appellant’s offending fell within the same broad category of four cited cases[12] involving more serious examples of the offence. 
  1. [35]
    During the sentencing hearing on 22 March 2019 the prosecutor relied upon on the decision of MAR v Queensland Police Service [2015] QDC 144.  However, that submission prompted the following observation from the learned magistrate:

In relation to your submission on penalty, the ultimate obligation of any sentencing court is to impose a proper sentence in the context of what I accept is a reasonably unusual and, I conceive, difficult exercise in fixing appropriate comparable sentences that is not aided by endeavouring to assess, a range by virtue of one decision, a decision – the one you’ve referred me to – to another inferior court of record in the District Court.”[13]

  1. [36]
    The learned magistrate then referred the parties to other decisions,[14] which indicated that “at first blush” the appellant “would seem to be exposed to a penalty at the upper end of the range fixed by those decisions,[15] seemingly in the region of 2.5 years. 
  1. [37]
    Finally, during the course of passing sentence on 16 July 2019, the learned magistrate made reference to five cases in his decision in relation to penalty: MAR v Queensland Police Service [2015] QDC 144, R v Forsythe [2011] QCA 71, R v Allison [2012] QCA 249, R v Pearce [2010] QCA 338 and R v Theuerkauf & Theuerkauf; ex-parte Attorney-General (Qld) [2003] QCA 94.
  1. [38]
    Manifest excess is revealed by a consideration of all of the matters that are relevant to fixing the sentence, particularly the nature of the offending and the sentences imposed in the most closely comparable cases. As Fraser AJ said in R v Goodwin; Ex Parte Attorney-General (Qld):[16]

“It is necessary to mention only Barbaro v The Queen; Zirilli v The Queen (2014) 88 ALJR 372 at 379 in which the High Court concluded that past sentences do not mark the outer bounds of a sentencing judge’s permissible discretion, and that a sentencing judge who is properly informed about the facts, relevant sentencing principles, and comparable sentences “will have all the information which is necessary to determine what sentence should be passed…”.  Comparable sentences assist in understanding how those factors should be treated, but they are not determinative of the outcome and they do not set a “range” of permissible sentences. Whether or not a sentence is manifestly inadequate or manifestly excessive is not to be decided by reference to a predetermined range of available sentences but by reference to all the factors relevant to sentence.”

  1. [39]
    As to the use of cases, the basic tenets of the doctrine of precedent render comparative decisions binding as to principle, and of persuasive comparative value for guidance, depending upon the hierarchy of courts. Magistrates ought pay due regard to decisions of the District Court being the appellate court for their jurisdiction, regardless of whether the District Court is acting at first instance or in the appellate jurisdiction, but of course this is subject to obedience to higher State courts and ultimately the High Court of Australia.
  1. [40]
    In MAR v Queensland Police Service [2015] QDC 144, the MAR was sentenced for two sets of offences. For the offence of dangerous operation of a motor vehicle he did burnouts in a hospital car park, hitting a boom gate and driving with speed through heavy traffic until he swerved into a pole in the middle of the road, which fell into the path of oncoming traffic.  No one was injured, but some motorists had to swerve to avoid the pole.  On appeal, at paragraph [28] the Court held that: “The dangerous driving involved property damage and significant risk to others as it occurred in the vicinity of a major public hospital at a particularly busy time of day. It did not, however, fall in the most serious category as no personal injury was caused and the driving was not directed towards any individual.”  The more serious offence was a contravention of a domestic violence order which involved the punching and choking of his partner when MAR’s psychological conditions were directly relevant to the offending and reduced his moral culpability.  The appellate court did not disturb the sentence of 10 months imprisonment for the driving offence, but did reduce the two years imprisonment to 18 months imprisonment for the contravention.
  1. [41]
    Unlike MAR, the appellant’s driving occurred in the context of a marriage breakdown, her wilfully damaging items of property after going to the house in breach of orders, and then using the car to ram and extensively damage the front section of the house.  It seems to me that MAR’s offending is marked by the dangerous driving damaging property in a hospital car park followed by driving at speed on heavily trafficked public roads.  It seems to me that the offending conduct is so different between the two cases that there is little comparative value in MAR.
  1. [42]
    R v Theuerkauf & Theuerkauf; ex-parte Attorney-General (Qld) [2003] QCA 94 involved two offences of dangerous driving. The first involved the one using a vehicle as a weapon when, after the 70 year old male complainant admonished his driving, the offender twice drove at, and hit the man, causing injuries to his shoulder and elbow. The offending only stopped after the intervention of a bystander. The victim suffered pain, stiffness and irritation for seven to ten days, and adversely affected his health, ability to work, confidence and his capacity to care for his disabled wife and caused significant injuries to him.  The second offence involved both offenders in a high-speed police chase, which presented a real danger to other road users.  Both offenders were youthful (20 & 24) and had prior traffic and criminal histories but never sentenced to prison.  On successful Attorney’s appeals, the offenders were sentenced to two years and six months imprisonment suspended after twelve months and two years imprisonment suspended after nine months, respectively. De Jersey CJ referred to four previous decisions of the Court of Appeal involving targeted driving at people.  His Honour noted that three years imprisonment would have been appropriate for the driver but for his plea of guilty and compliance with three months of the intensive corrections order prior to appeal.
  1. [43]
    The nature and extent of the offending as well as the ages and antecedents of the offenders, are so different as to render the case of little comparative value. Theuerkauf is more serious and protracted offending than the present appeal.  It involved two separate but related driving offences, the first with a passenger and targeted at and causing actual injury to an elderly man, and the second endangering other people in a high speed chase.  The appellant ought expect something less than this case.
  1. [44]
    In R v Pearce [2010] QCA 338 the applicant was sentenced after trial to 18 months imprisonment with parole release after serving nine months, for one count of dangerous driving. The applicant was 50 years old at the time of the offending with a largely irrelevant criminal and traffic history. The applicant yelled threats to kill and chased the complainant in his car while the complainant was riding a scooter.  He followed the complainant from the road up onto the footpath.  After the complainant abandoned his scooter the applicant drove backwards and forwards over the scooter three or four times causing $789 in damage, and then had a consensual fight with the complainant.  In refusing the application for leave to appeal, the Court remarked that “it is difficult to see that 18 months imprisonment in the present case was out of any proper range of sentencing; albeit at the high end.[17] 
  1. [45]
    Again, I think the nature of the offending in Pearce is more serious having regard to the deliberate car chase of a person on a scooter, continuation off the road, the car vis-à-vis a scooter, using the vehicle to damage the scooter, followed by the further physical fight.  Putting aside the appellant antecedents, I think her offending was not directly targeted at the complainant and did not involve any physical injury.  The appellant ought expect something less than this case.
  1. [46]
    In R v Forsythe [2011] QCA 71 the applicant was refused leave to appeal a sentence of 2 years imprisonment with immediate parole release.  Whilst driving with his 5 year old son in the car, the 35 year old applicant drove his car across a bus lane and over the kerb to hit the complainant, a man who was in a relationship with his former partner, who was walking on an adjacent footpath.  The complainant was thrown into the air.  He suffered minor injuries at the time and subsequently suffered from depression, frustration and anxiety, which affected his personal life and ability to work. The applicant had an appalling traffic record and a criminal history of violence.
  1. [47]
    The offending is Forsythe was a spontaneous but deliberate and vengeful attack on a person using the vehicle as a weapon and resulting in injuries.  The applicant injured the complainant and endangered his young passenger.  The nature and seriousness of the offending eclipses that of the appellant rendering it of little comparative value.  At least, the appellant could expect a lesser sentence.
  1. [48]
    The 20 year old applicant in R v Allison [2012] QCA 249 was also refused leave to appeal a sentence of 12 months imprisonment with immediate parole release and compensation order for one count of dangerous driving simpliciter.  Spurred by the complainant’s social media comment that the applicant’s murdered sister “deserved it,” the applicant drove to the shopping centre where the complainant worked and when he located the complainant in the car park, he drove at him before colliding into another stationary car.  The applicant pursued the complainant on foot and made threats to kill him.  The applicant’s criminal and traffic records were not considered as particularly significant.
  1. [49]
    The applicant’s offending is again distinguishable, involving a deliberate driving at a person in supermarket car park with a real risk of safety to the complaint and other members of the public. The sentence also reflects the mitigating effect of the provocative nature of the complainant’s remarks in setting the sentence. The remark of the complaint in this appeal is not of that calibre, but apparently spurred the appellant ramming the house.
  1. [50]
    I struggle to see any of the cited cases as truly comparable cases capable of much guidance in this case.  Each case involved the serious feature of a direct personal attack with a vehicle being used as a weapon upon an unprotected victim.  The applicant’s offending is not in same serious category, and such are the unusual features that there is no ready comparative guidance. 
  1. [51]
    The appellant’s offence of dangerous operation of a motor vehicle had the circumstance of aggravation of being under the influence of an intoxicating substance and carried a maximum penalty of up to five years imprisonment. The appellant’s offending is marked by the appellant’s deliberate repeated ramming of the house that finally caused extensive damage requiring $68,944.53 of rectification work. She did so while using a heavy car over a short distance and at a relatively low speed, and knowing the complainant was inside. She was intoxicated with a BAC of 0.163. The offending is further aggravated by being domestic violence and in contravention of a no contact order.
  1. [52]
    In my respectful view, the learned magistrate erred by characterising the appellant’s criminality fell into “that most serious of the categories, that is using the vehicle as a weapon.”  I am unsure how His Honour opined that the appellant’s “objective criminal conduct falls toward the upper end of that spectrum,” except it’s apparent that His Honour placed too much weight on the disparate cases to guide the exercise of the sentencing discretion.
  1. [53]
    However, that is not the end of the matter, since manifest excess is not decided by some predetermined range of available sentences, but by reference to all the factors relevant to sentence.[18] 

Date & Mode of Release

  1. [54]
    The learned magistrate imposed court ordered parole and set the parole release date of 16 October 2019 being after the appellant served 5 months and 11 days in actual custody (including 42 days declared as pre-sentence custody).
  1. [55]
    The appellant further argues that in failing to suspend the appellant’s sentence after the 42 days that she had already served, the learned magistrate gave insufficient weight to the following matters:
  1. (a)
    The appellant’s lack of criminal history and minor traffic history;
  1. (b)
    The appellant’s otherwise good character;
  1. (c)
    The appellant’s timely pleas of guilty and demonstrated remorse;
  1. (d)
    The appellant’s co-operation with the investigating police;
  1. (e)
    The length of time the appellant had spent on conditional bail since the offence and the steps taken towards rehabilitation in that time;
  1. (f)
    That the damage was caused to the former matrimonial home, an asset in which the appellant no doubt had some interest in, even if she was not noted as a registered owner of it; and
  1. (g)
    The dangerous driving offence did not involve the use of personal violence with the consequence that the principles in s 9(2)(a) of the Penalties and Sentences Act applied to the sentence (i.e. a sentence of imprisonment should only be imposed as a last resort and a sentence that allows an offender to stay in the community is preferable).
  1. [56]
    The respondent argues that in setting the time of actual custody at less than a third of the sentence, the learned magistrate had regard to the “significant” favourable factors but considered general deterrence and denunciation as more important features in this case.
  1. [57]
    The final submission of the prosecutor was for a head sentence of 18 to 24 months with “actual imprisonment being in the range of 42 days (i.e. time already served in presentence custody) and one third of the head sentence ultimately imposed.  The appellant’s solicitor ultimately contended for a range of 9 to 15 months imprisonment, suspended after the 42 days already served for an operational period of 2 to 3 years. 
  1. [58]
    The learned magistrate was not persuaded by that submission by “having regard to the very serious nature of your offending, the significant damage and loss suffered by the complainant.”  These are relevant matters to be considered,[19] and in doing so, it is tolerably clear that His Honour considered it appropriate to impose a sentence of imprisonment as a last resort and a sentence that allowed the appellant to immediately return to the community was not preferable.[20]   But the rectification costs and loss resulting from damage to the house should also he viewed in the context of the matrimonial dispute and matters subject of property settlement proceedings in due course.  Further, in the absence of any identified need for supervision on release, it is unclear whether His Honour rejected the proposition that the imprisonment ought be party suspended at a later time.[21]
  1. [59]
    Section 144 of the Penalties and Sentences Act 1992 (Qld) provides that if a court sentences an offender to imprisonment for 5 years or less, it may order that the term of imprisonment be suspended wholly or partly.  A suspended sentence ought properly be regarded as a significant punishment,[22] without depriving the offender of employment and effective rehabilitation within the community in appropriate circumstances.  Such an order may made if the court is satisfied that it is appropriate to do so in the circumstances, and where it is not appropriate for the offender to be imprisoned for the term of imprisonment imposed.[23]
  1. [60]
    In this way, a suspended sentence should be used sparingly in the appropriate circumstances. In R v Ross,[24] McKenzie J (with whom the Chief Justice and Davies JA agreed) said:

“Suspension of a sentence rather than an order of eligibility for early release is not something given as a matter of course.  Whether an order for suspension is appropriate in a particular case will depend on a range of factors.  Factors personal to the prisoner, particularly any that indicate that he may need the benefit of supervision and assistance available under the post-prison community-based release system, which would not be available if the sentence is suspended, are in my view, relevant.”

  1. [61]
    Such a sentence casts personal responsibility on the offender to not reoffend during the operational period usually longer than the term of imprisonment imposed. As Byrne J said in R v Read:[25]

“[A] suspended sentence of imprisonment brings home to the offender the personal responsibility which he or she bears to avoid committing an offence punishable by imprisonment during the operational period of the suspension. The utility of such an incentive will be diminished unless full effect is given to the Parliament's stated intention, that the sentencing judge must order the offender to serve the whole of the suspended term … unless persuaded that it would be unjust to do so.”

  1. [62]
    This can be contrasted to the nature and purpose of the parole release during the term of imprisonment. In R v Shrestha, Deane, Dawson and Toohey JJ explained:[26]

“The basic theory of the parole system is that, notwithstanding the sentence of imprisonment is the appropriate punishment for the particular offence and all the circumstances of a case, considerations of mitigation or rehabilitation may make it unnecessary, or even undesirable, that the whole of that sentence should actually be served in custody.  In some cases, of course, those considerations may be so compelling at the time of sentencing that, consistently with a need for punishment and deterrence, any sentence of imprisonment should be suspended or deferred upon entry into a good behaviour bond or recognisance with the result that imprisonment may never take place.  In most cases however, a suspension or deferral of the appropriate term of imprisonment will not be justified.  In such an event and subject to some exceptions where a prisoner is automatically entitled to release on parole at the expiry of the non-parole period upon conditions then determined by the parole authority, the parole system allows for a review of the offender's case after he has actually served a significant part of a custodial sentence, for the purposes of deciding whether he should be released on parole at that stage.  At the time of that review the reviewing authority should have available to it up to date information about the prisoner's conduct while in custody, his current attitudes, his present circumstances and the prospects of his rehabilitation in the community if he be released on parole.  Obviously, a reviewing authority with that up to date information should be in a better position to determine whether it is appropriate that the prisoner be then released on parole than the sentencing judge would have been at the time, often years before, when the head sentence of imprisonment was imposed and a minimum non-parole period was fixed. Thus, and subject to the above mentioned exceptions, it is an essential aspect of the working of parole systems in this country that the function performed by the sentencing judge in relation to parole is to determine whether it is appropriate or inappropriate that the convicted person be eligible to be considered by the parole authority for release on parole at some future time.

The fact that considerations of mitigation and rehabilitation would ordinarily found a decision that a prisoner be released on parole does not mean that they are the only considerations which are relevant to the question (for the sentencing judge) whether a convicted person should be eligible for release on parole at some future time or to the subsequent question (for the parole authority) whether the prisoner should be actually released.  All of the considerations which are relevant to the sentencing process, including antecedents, criminality, punishment and deterrence, are relevant both at the stage when a sentencing judge is considering whether it is appropriate or inappropriate that the convicted person be eligible for parole at a future time and the subsequent stage when the parole authority is considering whether the prisoner should be released on parole at or after that time.”

  1. [63]
    It seems to me that having regard nature and extent of the offending and mitigating factors, the appellant clearly deserved a term of imprisonment, satisfying considerations of punishment, personal and general deterrence. By the time of sentence, the first time offender had served 42 days in pre-sentence custody.  It was open for the learned magistrate to relax the requirement of actual prison by recognising that the mitigating factors outweighed any dangers to the community.  As for the mode of release, I think that parole was contraindicated and a suspended sentence ought to have been considered as being particularly suitable for the appellant.  Her offending was contextual and situational, and she did not require close supervision when released into the community.  As was clear from good behaviour and demonstrable self-rehabilitation while on Supreme Court conditional bail for about 9 months before sentence.
  1. [64]
    Therefore, in my respectful opinion the learned magistrate erred in the exercise of the sentencing discretion by failing to take into account some material considerations and the suitability of a suspended sentence in all the circumstances.

Conclusion

  1. [65]
    For these reasons, in my respectful view, the learned magistrate erred in exercising the sentencing discretion by:
  1. Mistaking the facts and mischaracterising the offending;
  1. Allowing erroneous or irrelevant matters in comparative cases to guide or affect him in the exercise of the sentencing discretion; and
  1. Failing to take into account some material considerations indicating suitability of a suspended sentence.

And in the result imposed a manifestly excessive sentence outside the permissible range in the circumstances of the case.

Resentence

  1. [66]
    Having reached that conclusion, it is incumbent on this court to re-exercise the sentencing discretion.
  1. [67]
    The only purpose for which a sentence may be imposed by virtue of s 9(1) of the Penalties and Sentences Act 1992 (Qld) is to punish an offender to an extent or in a way that is just in all of the circumstances, facilitate avenues of rehabilitation, deter the offender and others from committing a similar offence, make it clear that the community denounces the conduct in the offending and to protect the community.  The relevant factors to which the court must have regard are in the subsequent subsections of s 9 of the Penalties and Sentences Act 1992 (Qld).
  1. [68]
    It is trite to say that the appropriate sentence will depend on the particular circumstances of the offending and the degree of culpability of the offender. An order for compensation is likely to be futile and, best left to the parties property settlement proceedings in the matrimonial dispute. The gravity of this offending can also be gleaned by the relative minimum and maximum penalties, with due regard to the factors of general and, as appropriate, personal deterrence in the context of the aggravating factors of intoxication and domestic violence in contravention of a protection order. For this offending, it is also relevant that imprisonment should only be imposed as a last resort and a sentence that allows the appellant to stay in the community is preferable.
  1. [69]
    The appellant ought have recognition for her co-operation with the police at the scene and her plea of guilty indicated on 4 December 2018. She endured the continuing uncertainty though multiple court hearings until finally sentenced on 16 July 2019.
  1. [70]
    The appellant was a 55 years old Thai immigrant with no criminal history. She is socially disadvantaged by her inability to read or write English, yet has a good work history, and most recently assumed sole responsibility for the joint business operations as well as a market stall. There is no challenge to the favourable character references.
  1. [71]
    The appellant has acted on her shame, remorse and embarrassment. She has behaved while on conditional bail for about nine months before sentence and has actively taken steps of self-rehabilitation with counselling and refraining from alcohol.
  1. [72]
    Having regard to the nature and extent of the appellant’s offending together with all relevant factors, I am not persuaded that the head sentence of 18 months imprisonment imposed by the learned magistrates is too heavy or outside the permissible range. For the reasons discussed above, the sentence ought be suspended after the appellant serves a moderate time in actual custody.  The appellant served 42 days in presentence custody, and has now served at total of 60 days in custody.  I see no utility in returning her to custody, especially given her demonstrable good behaviour and self-rehabilitation before and since the magistrate’s sentenceInstead of ordering parole, the terms of imprisonment should be suspended after the appellant serves 60 days imprisonment (already served) for an operational period of two years.  If the appellant commits an offence in that period, then she will be dealt with and likely sent to prison to serve the balance of the term of imprisonment unless considered unjust to do so.
  1. [73]
    In coming to this conclusion, I have had regard to the conduct of the defendant in the whole offending, how the offences otherwise overlap arising from the series of conduct that night, and the related sentences. Having reviewed and considered the aggregate of the appropriate sentences, I think it is just and appropriate and not too crushing or disproportionate that the sentences of imprisonment be served concurrently.
  1. [74]
    For these reasons, I will allow the appeal and vary the sentence according to these reasons.

Order

  1. [75]
    I make the following orders:
  1. Appeal allowed.
  1. The sentence and orders of the Magistrates Court made in Cairns on 16 July 2019 is varied by setting aside the parole release order and substitute the following orders:
  1. (i)
    The terms of imprisonment are partly suspended after the appellant serves 60 days imprisonment; and
  1. (ii)
    The operational period under this order is 2 years.
  1. I declare that 60 days the appellant spent in custody from 12 September 2018 to 23 October 2018 and from 16 July 2019 to 2 August 2019 inclusive in relation to the offending is to be imprisonment already served under the sentence. I direct the Registrar to inform the Commission of this Declaration.
  1. All other sentences and the disqualification order are affirmed.

Judge DP Morzone QC

Footnotes

[1]  Including submissions about R v Allison [2012] QCA 249.

[2]  T1-20/34 – T1-21/24.

[3]  Exhibits 9 and 10.

[4] Allesch v Maunz (2000) 203 CLR 172, [22] – [23] followed in Teelow v Commissioner of Police [2009] QCA 84, [4]; White v Commissioner of Police [2014] QCA 121, [8], McDonald v Queensland Police Service [2017] QCA 255, [47]; contrast Forrest v Commissioner of Police [2017] QCA 132, 5.

[5] Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, 5 and McDonald v Queensland Police Service [2017] QCA 255, [47].

[6] White v Commissioner of Police [2014] QCA 121, [5]-[8]; Forrest v Commissioner of Police [2017] QCA 132, 5 & 6; McDonald v Queensland Police Service [2017] QCA 255, [47].

[7] R v Morse (1979) 23 SASR 98; R v Lomass (1981) 5 A Crim R 230; R v McIntosh [1923] St R Qd 278; Lowe v The Queen (1984) 154 CLR 606.

[8] Lovell v Lovell (1950) 81 CLR 513 at 519 per Latham CJ, 533-534 per Kitto J; see also Gronow v Gronow (1979) 144 CLR at 519, 525, 534 and 537.

[9] House v The King (1936) 55 CLR 499, 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176-178; Norbis v Norbis (1986) 161 CLR 513, 517-519.

[10] House v. The King (1936) 55 CLR 499, 504 & 505.

[11] Kentwell v R (2014) 252 CLR 60, [35], adopting AB v R (1999) 198 CLR 111, [130] per Hayne J (minority).

[12] R v Allison [2012] QCA 249; R v Pearce [2010] QCA 338; Theuerkauf & Theuerkauf; ex parte A-G [2003] QCA 94 and R v Forsythe [2011] QCA 71.

[13]  T1-10/10 -15.

[14] R v Pearce [2010] QCA 338; R v Tufuga & Kepu; ex parte A-G [2003] QCA 171; Theuerkauf & Theuerkauf; ex parte A-G  [2003] QCA 94; R v Borgage [1994] QCA 195; Pendlebury v The Queensland Police Service [2017] QDC 166; R v Dean [2006] QCA 256; R v Smith [2004] QCA 126; Heydt v Commissioner of Police [2017] QDC 104; Butler v The Queensland Police Service [2012] QDC 46; R v Harris [2008] QCA 32.

[15]  T1-10/20 – T1-12/45.

[16] R v Goodwin; Ex Parte Attorney-General (Qld) [2014] QCA 345 at [5].

[17] R v Pearce [2010] QCA 338 at [17].

[18] R v Goodwin; Ex Parte Attorney-General (Qld) [2014] QCA 345 at [5].

[19] Penalties and Sentences Act 1992 (Qld), s 9(2)(c) & (e).

[20] Penalties and Sentences Act 1992 (Qld), s 9(2)(a).

[21] Penalties and Sentences Act 1992 (Qld), s 144.

[22] R v H (1993) 66 A Crim R 505 at 510, referring to Elliott v Harris (No 2) (1976) 13 SASR 516 at 517 & Paterson v Stevens (1992) 57 SASR 213 at 216.

[23] Penalties and Sentences Act 1992 (Qld), ss 144(2) & (4).

[24] R v Ross [2004] QCA 21 at [6].

[25] R v Read (unreported, Court of Appeal, Qld, No 525 of 1996, 26 February 1997).

[26] R v Shrestha (1991) 173 CLR 48 at 67-69; 231-233.

Close

Editorial Notes

  • Published Case Name:

    EPN v Queensland Police Service

  • Shortened Case Name:

    EPN v Queensland Police Service

  • MNC:

    [2020] QDC 34

  • Court:

    QDC

  • Judge(s):

    Morzone QC DCJ

  • Date:

    04 Mar 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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