R v Fowler[2022] QCA 265

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  I agree with the reasons for judgment of Crow J and with the order proposed by his Honour.
2. [2]
   FLANAGAN JA:  I agree with Crow J.
3. [3]
   CROW J:  On 14 October 2022 the applicant pled guilty to one count of extortion with the circumstance of aggravation, seven counts of threatening violence, one count of dangerous conduct with a weapon and two counts of breaching a domestic violence order.  The applicant was sentenced to six years’ imprisonment upon count one (the extortion), 12 months’ imprisonment to be served concurrently on one count of contravention of a DVO, and convicted but not further punished in respect of each of the remaining counts.  The sentencing judge ordered the applicant be eligible for parole on 12 November 2022.
4. [4]
   The applicant seeks leave to appeal against the sentence imposed upon him on the grounds that:

1. The sentenced imposed was manifestly excessive;
2. The sentence imposed gave no, or insufficient, regard to the principles of totality and the sentence imposed was harsh;
3. The sentencing judge had no, or insufficient, regard to the principles and precedents of sentencing; and
4. The sentencing judge failed to address the two-stage process in s 159A of the Penalties and Sentences Act 1992 (Qld) (the Act).

Ground 4 – failure to comply with s 159A of the Act

5. [5]
   Relevantly, s 159A of the Act provides:

“159A Time held in presentence custody to be deducted

3. (1)
   If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders.

[…]

3. (3)
   If an offender was held in custody in circumstances to which subsection (1) applies, and the court has not made an order mentioned in subsection (3A), the sentencing court must, as part of the sentencing order—

1. (a)
   state the dates between which the offender was held in presentence custody; and

2. (b)
   calculate the time that the offender was held in presentence custody; and

3. (c)
   declare the time calculated under paragraph (b) to be imprisonment already served under the sentence.

(3A) Subsection (3B) applies if—

1. (a)
   an offender was held in custody in circumstances to which subsection (1) applies (presentence custody); and

2. (b)
   the sentencing court orders that the time, or part of the time, the offender was held in custody is not to be taken to be imprisonment already served under the sentence.

(3B) The sentencing court must, as part of the sentencing order—

1. (a)
   state the dates between which the offender was held in presentence custody; and

2. (b)
   calculate the time that the offender was held in presentence custody; and

3. (c)
   declare the part of the time that is taken to be imprisonment already served under the sentence or declare that no time is taken to be imprisonment already served under the sentence.”

6. [6]
   Section 159A(3) and (3B) contain the same three requirements, that is, the sentencing court is required to state the dates that the offender has been held in pre-sentence custody, calculate the time the offender was held in pre-sentence custody and declare either that all, part or none of that time is to be taken as time served.
7. [7]
   Section 159A(3) and (3B) (through (3A)) applies to offenders to which s 159A(1) applies.  Section 159A, since its 2020 amendment, is to be engaged in all circumstances where an offender is held on remand for offences being dealt with at the sentencing hearing, as well as other offences not being dealt with at the sentencing hearing.
8. [8]
   The effect of the change was explained by Bowskill J (as her Honour then was) in R v Whiteley (2021) 8 QR 283.  Relevantly her Honour said:

3. “[9]
   Prior to its amendment, there was no question of time the offender had served, under a sentence of imprisonment previously imposed, being the subject of a declaration of time served under s 159A, in respect of other offences. Although, consistent with the totality principle, it could be taken into account to the extent considered appropriate.

3. [10]
   The question which has arisen in the present case, however, is whether, as a result of the recent amendment to s 159A(1), it is open to the court to formally declare time the offender has been held in custody, even where that is in respect of a previous sentence of imprisonment, as opposed to being held on remand for the present or other offending

[…]

3. [17]
   One might anticipate that the reason for the amendment was to overcome the practical difficulties which frequently arose in sentencing proceedings where a person was held in pre-sentence custody for offences including, but not limited to, the offence(s) they were then being sentenced for. It may or may not have also been Parliament’s (subjective) intention to broaden the scope of operation of the provision to include a declaration of time served under a sentence previously imposed. Nevertheless, construing the words used in s 159A(1), as it now provides, the power to make a declaration is very broad. It extends to a power to formally declare time served even where that time is served under a previously imposed sentence. The qualifying fact that must be present, for the power to be exercised, is that the time must be time the offender was held in custody in relation to proceedings for the offence. If that is established, it is open to the Court to exercise the power under s 159A(1).

3. [18]
   However, as s 159A makes clear, the sentencing court retains a discretion whether or not to declare all, or some, or any of that time. Considerations such as those referred to in the cases above remain relevant to the exercise of that discretion.

3. [19]
   I observe that the fact that the Court can now declare time served in custody, under a previous sentence, as time served under the sentence imposed by the Court obviates the need to ameliorate, to quite the same extent, the otherwise appropriate head sentence. This has the positive consequence of not distorting the sentence imposed, the explanation for which may not be apparent without consideration of the sentencing remarks.”

9. [9]
   The principles discussed by Bowskill J (as her Honour then was) in Whiteley are engaged in the present case.  Prior to 7 October 2014, the applicant had several convictions, mostly for violence and domestic violence.  On 7 October 2014, the applicant was convicted of assault occasioning bodily harm in the Ipswich Magistrates Court.  A conviction was recorded, and he was sentenced to imprisonment for six months, to be suspended after serving two months, for an operational period of two years.  About four and a half months later, on 19 March 2015, the applicant masterminded the Cecil Hotel robbery.^[1]  After being apprehended he was placed on bail and breached his bail.
10. [10]
    On 29 June 2016, the applicant’s suspended sentence was extended for a period of six months, extending the operational period to 7 October 2015.
11. [11]
    The applicant was returned to custody for 30 days between 7 July 2015 and 7 August 2015 and then released.^[2]  The applicant was then returned to custody between 5 and 20 March 2018.^[3]  On 20 March 2018, the applicant was sentenced in the Ipswich District Court to a period of four years and four months’ imprisonment for the Cecil Hotel robbery.  The sentencing judge declared 30 days in pre-sentence custody between 7 July 2015 and 7 August 2015 as time served upon the sentence imposed.  The sentencing judge set a parole eligibility date of 10 August 2019.  The sentencing judge also dealt with the breach of suspended sentence imposed on 7 October 2014, by sentencing the applicant to four months’ imprisonment to be served cumulatively upon the four years and four months.
12. [12]
    Accordingly, as at 20 March 2018, the applicant had been sentenced by Horneman‑Wren SC DCJ to a cumulative period of four years and eight months’ imprisonment with some 30 days in pre-sentence custody between 7 July 2015 and 7 August 2015 declared as time served upon the sentence.  The full-time discharge date was 17 October 2022^[4] (some three days after the sentence date for the subject sentence).  Horneman-Wren SC DCJ set the parole eligibility date of 10 August 2019 and the applicant was granted Board ordered parole on 13 August 2019.  It was whilst he was on parole on 12 November 2019 that the applicant was charged with the subject offending and so his parole order was suspended and he was returned to custody.  According to his pre-sentence custody certificate the applicant was held on remand from 12 November 2019 to 13 October 2022, a period of 1067 days.  The sentencing judge, in those circumstances, was required to comply with s 159A(3B) of the Act.  The sentencing judge did comply with s 159A(3B)(c) in not declaring any time to be taken as time already served under the sentence and the sentencing judge did apply the reasons in Whitely and R v Wilson [2022] QCA 18 in reducing the head sentence from eight years to six years to reflect the principle of totality.  The sentencing judge did not, however, comply with s 159(3B)(a) and (b) in that her Honour did not state the dates the applicant had been held in pre-sentence custody (12 November 2019 to 13 October 2022) and did not calculate the times the applicant was held in pre-sentence custody (1,067 days).
13. [13]
    However, the sentencing judge was plainly aware of the requirements of s 159A and the court order sheet does include the appropriate s 159A declarations.  The error is technical in the sense that it may have been corrected on a re-opening of the sentence and does not amount to an appealable error.^[5]

Grounds 1, 2 and 3

14. [14]
    The applicant’s criminal record shows that he had served two months in prison in 2012 for domestic violence offences.^[6]  The applicant also spent a further two months in prison between 7 October 2014 and 7 December 2014 for assault occasioning bodily harm.  As set out above, after the robbery at the Cecil Hotel on 19 March 2015 the applicant was remanded in custody between 7 July 2015 and 5 August 2015 and also between 5 and 20 March 2018.  The applicant was then sentenced on 20 March 2018 in the Ipswich District Court to a sentence of imprisonment for a total period four years and eight months with a parole eligibility date being ordered on 10 August 2019.
15. [15]
    The applicant obtained his parole only three days later on 13 August 2019.  It was only two weeks later, on 27 August 2019, that the applicant commenced extorting his former partner, with the extortion concluding on 5 October 2019.
16. [16]
    The applicant engaged more than five men to terrorise his former partner.  Two men, Crowden and Wilson were members of the Mongol Motorcycle Club.  Hill and Halaufia were members of the Raiders Motorcycle Club, a supporter or feeder club to the Mongols Motorcycle Club.  Harbour was an associate of the applicant.  The other men remain unidentified.
17. [17]
    The complainant, a 31-year-old female had been in a relationship with the applicant.  In 2017 they had commenced a business together, The Health and Fitness Shed.  The applicant was violent to the complainant and a domestic violence order was made in January 2018.  However, despite the order, the applicant continued to reside with the complainant and continued to visit violence upon her.
18. [18]
    It was a result of an instance of violence perpetrated by the applicant upon the complainant in breach of the domestic violence order that the applicant was remanded in custody from 5 to 20 March 2018.
19. [19]
    In around October 2018 the complainant commenced a new relationship.  After the applicant was released from custody on 13 August 2019, the applicant started a process to exclude the complainant from the business.  The Health and Fitness Shed was a business conducted by a company to which the complainant and the applicant were equal shareholders.  On 28 August 2019, the applicant sent the complainant an email demanding a company meeting occur at 2.00pm on 26 September 2019 for the purpose of appointing the applicant as the director of the company and that he be employed on a full-time basis by the company as a fitness consultant.
20. [20]
    The next day, 29 August 2019, at the instigation of the applicant and Crowden, Hill and two other males dressed in black tracksuits and wearing black beanies, went to the complainant’s father’s house informing the complainant’s father that the complainant had to “sign the business over to Chook [the applicant] and “stop fucking about” and if they contacted police they would be back”.
21. [21]
    On the next day, 30 August 2019 at 8.30 pm, Hill attended at the complainant’s house, banging on the back and sides of the house and kicking in the side door.  Both the complainant and her new partner were in the house at the time and called the police.  Thereafter over the following weeks, Harbour, a 45-year-old male, threatened the complainant, often at the request of the applicant.
22. [22]
    On 15 September 2019 at 8.00 pm, the complainant and her partner were in the bedroom of their home when a male person who was completely disguised came to the front door of the home with a gun in each hand and commenced firing through the front door.  One shot passed through the internal wall of the lounge room and into the bedroom and the second shot hit a bookcase in the lounge room.  The shooting incident was captured on CCTV and had been arranged by Crowden.  The CCTV footage captured the assailant shooting the guns through the front door and then running off to the front passenger side of a parked car.
23. [23]
    As a result of the shooting incident and due to the fear of further violence, the complainant made contact with a solicitor and commenced signing over her share of the business to the accused.
24. [24]
    Four days later, on 20 September 2019, the complainant was at work at the gym when she received a call from a Mr Halaufia telling her “I’ve just driven past the gym, and your car’s still there.  Get out of the business, or you and your dad are dead”.
25. [25]
    Plainly the complainant was shaken by this as she contacted police and waited at the gym for police to escort her away from the gym.  On 26 September 2019, the complainant had organised for a removalist truck to take some equipment from the gym as part of an agreement in signing it over to the applicant, however, that morning the complainant received a call from Harbour relaying a conversation from the applicant that the complainant did not appear to be scared enough and that the complainant “needed another fucking scaring”.  Harbour also told the complainant that the applicant knew where she was and wanted to “Make sure Baz gets a punch to the head”.
26. [26]
    On 27 September 2019, the complainant used her mother’s vehicle to go to the gym to try to organise the removal of more items.  Police observed the applicant drive past the gymnasium at 2.15 pm and at 2.24 pm the complainant received a phone call from Harbour telling the complainant that the applicant was angry at her for having taken the equipment and that he was to pass on a message for the applicant that:

“If I were [the complainant] and her Mum, I would get the fuck out of the gym right now, drop the keys off, or they will get some visitors in about 20 minutes.”

27. [27]
    At 2.41 pm, after the applicant had a discussion with Crowden, the complainant received a phone call from Wilson threatening her:

“Is your mum still standing next to you? I want you to have a good look at your mum. Look in her eyes and explain what – explain to her what you’ve done and why she’s going to go home by herself. Do it, give the keys in today. Leave all the shit behind… Keep going and you’ll find out.”

28. [28]
    On the same day, 27 September 2019 at 4.08 pm, Harbour told the applicant to have someone drive past the complainant’s mother and father’s house advising him that the parents are back now and stating “She’ll know, it’s not bullshit… Just get someone to do something so she fucking knows…”.
29. [29]
    At 4.09 pm, the applicant called Crowden and told Crowden “I think what we spoke about might need to happen again…”.
30. [30]
    On 27 September 2019, the complainant sent a Form 370 to the applicant’s solicitor resigning from the gym and the applicant then sent Crowden a signed resignation and a share transfer.  On 30 September 2019, the transfer was complete with the gym being renamed “West Extreme Boxing Pty Ltd” and registering the names Crowden and Fowler as directors.
31. [31]
    In respect of the shooting incident of 15 September 2019, it was agreed that:^[7]

“Fowler had knowledge of something significant happening that weekend but not necessarily that he knew it would involve a shooting as opposed to some other act of violence or threat. Fowler is liable to be sentenced for the shooting, as such an occurrence of the shooting was a foreseeable consequence of the plan to extort the complainant of her business interest.”

32. [32]
    At the time of the offending, the applicant was a 45-year-old male with extensive criminal history, principally involving violence as set out above.  He had been incarcerated on five separate occasions.  The applicant had masterminded the violent robbery of the Cecil Hotel on 19 March 2015 only 3.5 months after being released from prison.  The applicant had breached his bail, breached his suspended sentence, and despite returning to custody between 7 July 2015 and 5 August 2015, the applicant continued to breach his domestic violence orders and commit domestic violence.  As discussed above, after being incarcerated from 5 March 2018 until 13 August 2019 (when he obtained parole), the applicant commenced extorting his ex-partner, the complainant, 14 days after being released and whilst on parole.
33. [33]
    The applicant had in his favour his plea of guilty, but little else.  In particular, there is no demonstrated remorse.  There was a dearth of comparable authorities, and realistically no useful yardsticks.
34. [34]
    In R v Dean; R v Murphy; R v Jaffe [2017] QCA 276, Philippides JA with whom Fraser JA and Flanagan J agreed, surveyed several authorities detailing sentences reviewed by the Court of Appeal for the offence of extortion.  The range as set out in those authorities was from as little as three years (R v Taouk [2012] QCA 211) up to a sentence of seven years in R v Stratton [1992] QCA 102.  In Stratton, on a plea of guilty, the sentencing judge’s sentence of nine years with no recommendation for early parole eligibility was reduced by the Court of Appeal to a sentence of seven years with no recommendation for early parole eligibility.
35. [35]
    Stratton was an entirely different type of extortion involving Stratton and his co-accused Black arranging for a businessman to be lured into a situation where he was videotaped having sex with a female for the purposes of making demands of the businessman for money.
36. [36]
    The Court of Appeal considered that co-offender Black and Stratton’s roles were sufficiently similar to invite comparison with respect to sentence, noting that Black had been sentenced to seven years and six months’ imprisonment with a non-parole period of two years six months, but that Black had previously been dealt with in the Supreme Court for conspiracy to import cannabis which was executed contemporaneously with the extortion.^[8]
37. [37]
    Prior to being sentenced for extortion, Black had already been sentenced to seven years’ imprisonment (with non-parole for two years and three months) for the conspiracy to import cannabis.  Black was a 49-year-old male with no previous convictions and of otherwise good character.  Stratton was a 50-year-old male when sentenced and had no relevant criminal history (having committed two minor stealings in his late teens and early twenties).  At pages 12 to 13 their Honours said:^[9]

“In considering what sentence is appropriate, reference should be made to Mr Herbert’s second argument, that the sentence imposed cannot be justified by comparison with other sentences for extortion. Cases of extortion vary widely in the way that they are committed. This is not a case where physical violence to a person or harm to the community at large was threatened. It is not a case where information that was used in the extortion had come into the possession of the offenders by chance. It involved a plan to lure the victim into a situation where a film of his extra-marital sexual activities could be made. […] The planning, persistence and large demands are serious elements although it is clearly not in the worst category of cases.”

38. [38]
    In Stratton, the demands commenced as a demand for payment of $500,000 and reduced thereafter to $250,000.  It seems to me that none of the cases referred to by Philippides JA in Dean are of much assistance in this case, as cases of extortion do vary widely in the way in which they are committed.  This case involves serious and persistent threats of violence to the complainant, the complainant’s father and the complainant’s mother, attendance upon the complainant’s father’s house and the complainant’s house, as well as the shooting incident of 15 September 2019.
39. [39]
    Despite the shooting incident of 15 September 2019, the applicant urged further acts of violence or threats to enable him to achieve the extortion.  As the victim impact statement of the complainant shows, she has been financially ruined by the extortion as well as the victim of significant personal trauma.  The sentencing judge was correct in concluding that the combination of the serious and persistent threats of violence, together with the applicant’s antecedents and his plea of guilty, results in a just sentence, absent a reduction for totality, of eight years’ imprisonment.
40. [40]
    As explained by Bowskill J (as her Honour then was) in Whiteley, Fraser JA in Wilson and McMurdo JA in R v Braeckmans [2022] QCA 25 the principle of totality requires that there be some moderation of the sentence for extortion to reflect the almost three years the plaintiff has been remanded in custody since 12 November 2019.  As the applicant has persisted in offending, the sentencing judge was correct in concluding that it would not be in accordance with the principle to allow the applicant full credit for the time served, but rather to provide a discount on the basis of the principle of totality of a period of two years, reducing the period of sentence of eight years to six years.
41. [41]
    The sentencing judge set a parole eligibility date of 12 November 2022, that being a period of three years after the applicant was returned to custody on 12 November 2019.  It cannot be demonstrated that setting the parole eligibility date three years after the return to custody is excessive.  Although that is a lengthy period of time, the applicant did not meet his full-time discharge date on the sentence of 20 March 2018 until 17 October 2022.  Setting a parole eligibility date therefore of 12 November 2022 takes into account the lengthy period of time the applicant has spent prior to being eligible for parole of some three years from the most recent incarceration of 12 November 2019, however given the applicant’s antecedents it cannot be said to be crushing.  In summary, the sentence was not manifestly excessive and was formulated appropriately having regard to sentencing principles and in particular the principle of totality.
42. [42]
    I would dismiss the application.