R v WBQ[2022] QCA 48

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS JA:  I agree with Boddice J.
2. [2]
   BODDICE J:  On 15 March 2022, the applicant was granted leave to appeal a sentence imposed for an offence of assault occasioning bodily harm whilst armed.  The offence was a domestic violence offence.
3. [3]
   The applicant relied on three grounds of appeal.
4. [4]
   First, that the sentence was excessive.  Second, that the sentencing process was infected by legal error.  Third, that the sentencing Judge failed to give adequate reasons for her decision.
5. [5]
   On 15 March 2022, the Court ordered that the appeal be allowed; and that the sentences be varied by:

   1. (a)
      deleting the order “Term be served cumulatively with reactivated suspended sentences below”;
   2. (b)
      deleting the parole eligibility date of 13 June 2022; and
   3. (c)
      ordering that the date on which the applicant be released on parole is fixed at 15 March 2022.
6. [6]
   These are my reasons for joining in those orders.

Sentence

7. [7]
   On 17 December 2021, the applicant pleaded guilty to the offence.  The sentencing Judge ordered that the applicant serve nine months’ imprisonment for the offence.
8. [8]
   The offence was committed on 17 October 2020.  The complainant was the applicant’s partner.  During a verbal altercation, the applicant, who was intoxicated, armed himself with a knife.  The complainant’s hand was cut by the knife when the applicant pointed the knife in the complainant’s direction.
9. [9]
   The commission of that offence breached the terms of a suspended sentence of imprisonment, imposed on 16 April 2019.  The suspended sentence related to an offence of possessing dangerous drugs in excess of the Schedule, committed on 26 September 2018.  The applicant had possession of cannabis, weighing 13.4 kilograms.  The applicant was sentenced on the basis he had possession of that cannabis in the role of courier.  The applicant was sentenced to imprisonment for 18 months, suspended for an operational period of four years.
10. [10]
    The sentencing Judge ordered that the whole of that suspended sentence be activated, to be served concurrently with a sentence of three years’ imprisonment, imposed on 15 January 2021, for an offence of trafficking in dangerous drugs.  The trafficking count concerned trafficking in cannabis between 25 September 2018 and 12 February 2019.
11. [11]
    The sentence for trafficking was imposed on the basis the offending warranted a notional head sentence in the order of five years’ imprisonment.  The sentence was reduced to have regard to principles of totality^[1] and other relevant circumstances, including lack of history, remorse and prospects of rehabilitation.  The applicant was given an immediate parole release date.
12. [12]
    The sentencing Judge ordered that the sentence of nine months’ imprisonment be served cumulatively “with the existing sentence”.  Parole eligibility was fixed at 13 June 2022.

Applicant’s submissions

13. [13]
    The applicant submitted that a cumulative sentence of nine months’ imprisonment was excessive as it necessitated the fixing of a parole eligibility date, whereas a concurrent period of imprisonment would have allowed a parole release date.
14. [14]
    The applicant further submitted the sentencing Judge failed to provide reasons for the imposition of a sentence requiring a parole eligibility date when there was an obligation to do so as there was an inherent unfairness in a lack of certainty of release in the context of ongoing delays in the consideration of parole applications.
15. [15]
    Finally, the applicant submitted the sentencing Judge erred in having regard to a victim impact statement, which was redacted and comprised substantially phrases from websites.  Such a victim impact statement was highly prejudicial.  The sentencing Judge made no findings in relation to it, as required by s 132C of the Evidence Act.

Respondent’s submissions

16. [16]
    The respondent submits the sentence was not excessive.  The offence involved the use of a weapon and was a domestic violence offence.  It was committed in breach of a suspended sentence and whilst on bail for a serious drug offence.  The sentence of imprisonment, imposed in the context of the activation in full of a suspended sentence was consistent with the applicant’s overall criminality.
17. [17]
    The respondent further submits there was no legal error.  The sentencing Judge expressly had regard to totality.  The sentencing Judge also noted a concession made by the applicant that the injuries sustained by the complainant would have had an effect upon her, whilst acknowledging that the victim impact statement did not reflect that impact.  In such circumstances, the reasons were adequate.

Consideration

18. [18]
    The offence of assault occasioning bodily harm whilst armed was committed when the applicant pointed a knife during a heated altercation with his partner, with the consequence that the partner sustained an injury to her hand.  It had the aggravating features that it was a domestic violence offence, committed whilst the applicant was subject to a suspended sentence for drug offending and whilst on bail for further drug offending.  Such circumstances warrant a sentence reflective of denunciation and deterrence.
19. [19]
    However, in sentencing for that offence, the sentencing Judge had to have regard to not only the applicant’s plea of guilty and personal circumstances, but also the consequence of the imposition of a period of imprisonment to be served cumulatively. The prosecutor had made submissions to the sentencing judge giving alternative sentence structures of a cumulative sentence with a parole eligibility date or a concurrent sentence with a parole release date.
20. [20]
    There was an obligation on the sentencing Judge to record reasons for the imposition of a cumulative period of imprisonment, rather than a concurrent period of imprisonment.  The sentencing remarks provide no such reasons.  The failure to do so constituted an error of law warranting appellate intervention.
21. [21]
    The requirement to give reasons for the imposition of a period of imprisonment, to be served cumulatively, was particularly important in circumstances where the sentencing Judge had determined to activate, in full, the suspended sentence, without giving reasons for why it was not unjust to do so.
22. [22]
    The conclusion that the sentence was subject to legal error necessitated resentencing by this Court.  As such, it was unnecessary to consider the remaining ground of alleged specific error, namely reliance upon the victim impact statement.  Had it been necessary to do so, I would not have found legal error was established in the circumstances.  The sentencing Judge expressly noted a concession on the applicant’s part that the offence had an impact upon the complainant and specifically observed that this impact existed “irrespective of whether this is how it affected her” when referring to the victim impact statement.  Those observations obviated any need to make findings as to its use.

Resentence

23. [23]
    The applicant was born in 1988.  He had a criminal history which included previous offending for drugs.  There was no prior history for violence.
24. [24]
    The applicant entered a timely plea to the offence.  The applicant expressed remorse and had apologised to the complainant.  There was also evidence that the applicant was well regarded by his employer, had a new supportive relationship and that he had positively engaged in counselling to assist in his rehabilitation.
25. [25]
    Against that background, there was a significant benefit to the applicant and the community in the applicant having certainty of release, particularly in the context of an existing three year sentence which is the subject of parole supervision.
26. [26]
    A consideration of the circumstances of the offence, in the context of the applicant’s past history and positive steps towards rehabilitation, supported a sentence of nine months’ imprisonment, to be served concurrently with the existing sentence of three years’ imprisonment imposed on 15 January 2021.  Such a sentence properly reflected the need for deterrence and denunciation, whilst acknowledging the applicant’s cooperation and ongoing rehabilitation.
27. [27]
    A consequence of the applicant’s conviction of that offence is that the applicant has breached the suspended sentence imposed on 16 April 2019.  Whilst the breaching offence was of a different nature to the original offence, the breaching offence involved a domestic violence offence, in circumstances where the applicant introduced a weapon into an altercation with his then partner.  Having regard to those circumstances, it was not unjust to activate the whole of that sentence of imprisonment, with an order that it be served concurrently with the applicant’s existing sentence.
28. [28]
    Having regard to the time the applicant had served in custody to date, his timely plea of guilty, and his lack of prior criminal history for violence and the positive steps towards rehabilitation, the applicant’s parole release date was fixed at 15 March 2022.

29. [29]
    FLANAGAN J:  For the reasons given by Boddice J, I joined in the making of the Court’s orders on 15 March 2022.