R v SDN[2021] QCA 158

[2021] QCA 158

McMURDO JA: On 29 September 2020, the applicant pleaded guilty to three charges. Two of those offences were committed on 20 February 2020, against his former partner. They were living separately, the applicant living in Brisbane and the complainant and their children living in Townsville. On that day, the applicant and the complainant argued in a series of text messages, in the course of which the applicant made threats to kill the complainant and her parents. He said that he would kill himself and take her and her parents down with him and burn her alive. By making those threats, he committed one of the offences. His conduct was also in breach of a protection order which was imposed in the Magistrates Court on 15 February 2019, which prevented contact with the complainant except for very limited purposes. I will refer to those offences as the domestic violence offences. However, they were not the first offence of that kind which he had committed. At the time, he was subject to a suspended term of four months imprisonment imposed for contraventions of a domestic violence order. That four month term had been imposed on 15 April 2019.

He was charged with the domestic violence offences and became a remand prisoner on 24 February 2020.

The other offence was committed in the Woodford Correctional Centre on 14 April 2020. The applicant and 13 other prisoners defied a direction whilst they were in the exercise yard and a riot ensued. The prisoners barricaded a door and threatened correctional officers. They broke chairs, destroyed phones, armed themselves with makeshift weapons and broke glass windows. They gained access to an officer’s station and removed items, including a computer, phone, notebook and pens. According to an agreed statement of facts, the applicant was actively encouraging the prisoners who initiated the incident, yelling directions and arming himself with a metal pole with which he was involved in damaging glass windows.

Within a few hours, the incident had been shut down and the applicant and the other prisoners involved were taken to what is called the detention unit. The applicant was convicted of and sentenced for an offence of taking part in a riot in a corrective services facility and wilfully and unlawfully damaging property during the riot.

The applicant was sentenced to four years’ imprisonment for the riot offence and 12 months’ imprisonment for each of the domestic violence offences. The terms were ordered to be served concurrently. Parole eligibility was set at 23 February 2021, which was after he had served 12 months, allowing for his time in pre-sentence custody.

The applicant remains in custody and he has therefore served the terms for the domestic violence offences. He applies for leave to appeal against the four year sentence for the riot offence. It is submitted that the sentence was manifestly excessive and that there is a disparity between that sentence and the sentences which were subsequently imposed by another judge on the applicant’s co-offenders.

At the sentencing hearing, the prosecutor submitted that there should be a “global” sentence of two to two and a half years, with parole release after serving one-third of the term. Counsel for the applicant submitted for a global sentence in the same range.

The sentencing judge referred to the applicant’s antecedents. He was born in 1990 and was 29 at the time of the offences and 30 when he was sentenced. He had a criminal history which commenced when he was 17 years old, and he first went to jail in 2010. However, he committed no offences between 2011 and 2018 (apart from a drunk and disorderly charge). In 2018, he was for the first time convicted of drug offences. As already noted, in April 2019 he was convicted of offences of contravening a domestic violence order, which were committed in November 2018, and he received a fully suspended four month term of imprisonment as well as a 12-month probation order. A report on his performance under that probation order was tendered at the hearing and it recorded the applicant’s resistance to engaging in supervision to address his risk factors.

The applicant had an attention deficit hyperactivity disorder as a child and he finished school at Year 10 before entering the workforce. He met the complainant in the domestic violence offences in 2012 and they had two children together born in 2014 and 2017. He worked as a labourer and took up an apprenticeship in 2015. In 2017, the relationship with the complainant began to deteriorate and the applicant began using methylamphetamine for the first time. He became a heavy user of the drug. The applicant was remorseful for his conduct towards the complainant, and at the sentencing hearing, he apologised to her and said that he was “deeply ashamed”. He had the support of his family and friends and two offers of employment.

As for the riot offence, her Honour referred to the overcrowding within prisons and the fact that the applicant was sharing a cell with another prisoner that was designed for one person only, requiring the applicant to sleep on the floor. Her Honour recorded that this was the explanation for how the riot eventuated. She noted that the applicant had spent two weeks in the detention unit, after which he was placed on an intensive management plan under which he was locked in his cell for 22 hours a day for three months.

Her Honour described the threats which the applicant had made to the complainant as appalling. She said the offence of riot was “inherently serious because there is a danger that persons or property will be injured”, and that the damage to property here was “considerable”. She added that his offending was more serious because he was in breach of a suspended sentence at the time that he committed all of these offences. Ultimately, her Honour activated that suspended sentence but ordered it to be served concurrently with the other sentences.

The judge said that the appropriate sentence was one of four years, to take into account all of his offending. To allow for the conditions under which he had been in prison and the punishment he had already received in the jail for the riot offence, as well as his pleading guilty at the first available opportunity, her Honour ordered that he be eligible for parole after serving only one year of that four year term.

On 25 May this year, 10 of his co-offenders in the riot were sentenced by Judge Smith. Each pleaded guilty and received sentences varying from 15 months to 18 months. I will describe the offending by those who received 18 month terms.

An offender named Hyde, who was 25 at the time of the riot and had a 26 page criminal history, was serving a total period of imprisonment of four and a half years. He was described as one of the instigators of the riot and a prominent participant. His 18 month sentence was necessarily made cumulative upon his other sentences.

Another offender named Morgan was described as the leader of the riot. He was 26 years of age at the time and was serving a five year sentence. He had a criminal history for property, weapons, violence, drugs, driving offences and arson.

Another offender named Strafford was 21 at the time of the riot. He had a 10 page criminal history containing 60 offences and was serving a sentence of four years and two months at the time. He was described as a prominent participant in the riot from an early stage.

Another offender, named Byrne, was aged 21. He was on remand, and was sentenced to 18 months with immediate release, having served 315 days.

Judge Smith referred to another offender named Cleland who had been sentenced by Judge Rinaudo for a term of 18 months for his involvement in the riot and, it would appear, other “more serious charges”. Judge Smith also referred to the applicant’s case, noting:

“[The applicant], who was actively involved, received four years. But again, other charges were involved, so I need to bear in mind those matters.”

A comparison of the applicant’s sentence with the sentences for his co-offenders is complicated by the fact that this was a global sentence, intended to reflect his criminality also for the domestic violence offences. Nevertheless, in my conclusion, the applicant could feel a sense of grievance about the outcome in his case when he considers the sentences received by his co-offenders.

The domestic violence offences were undoubtedly serious, and they warranted terms of actual imprisonment. However, there were several mitigating factors, as the judge recorded. The judge might have imposed concurrent terms for the domestic violence offences of the order of 18 months and a cumulative term for the riot offence whilst activating the suspended sentence as she did. However, in that event, a sentence of two and a half years for the riot offence could not have stood with the sentences subsequently imposed upon his co-offenders. Moreover, the sentences for the co-offenders could not be said to be especially lenient.

With the benefit of the sentences imposed on the co-offenders, a cumulative term of 18 months would have been the appropriate sentence. Consequently, in my view, he should be ordered to serve the period of imprisonment of no more than three years. He has now been in prison for these offences for 17 months. I would grant leave to appeal, allow the appeal, vary the sentence for the riot offence to one of three years imprisonment and order that he be released immediately, that is to say, that his parole release date be varied to 30 July 2021.

FRASER JA: I agree.

APPLEGARTH J: I agree.