Queensland Police Service v Dowsett
[2006] QDC 502
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- Queensland Police Service v Dowsett[2006] QDC 502
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Queensland Police Service v Dowsett[2006] QDC 502
Queensland Police Service v Dowsett[2006] QDC 502
[2006] QDC 502
DISTRICT COURT | Appeal No 415 of 2005 |
CIVIL JURISDICTION
JUDGE ROBERTSON
QUEENSLAND POLICE SERVICE | Appellant |
and
WILLIAM BERNARD DOWSETT | Respondent |
MAROOCHYDORE
DATE 26/05/2006
JUDGMENT
HIS HONOUR: This is an appeal by the Queensland Police Service in relation to a sentence imposed by her Honour Magistrate Fingleton on the 18th of November 2005 in the Caloundra Magistrates Court.
The respondent was between 22 and 23 years of age at the time of the offences and was 23 at the time of sentence. His date of birth is the 16th of September 1982. At the time of sentence, he was subject to a number of suspended sentence orders, in particular, a suspended sentence imposed in the Redcliffe Magistrates Court for offences of a similar nature on the 22nd of June 2004, for which he had been sentenced to a term of 12 years, suspended for three years, after serving three months; and also a suspended sentence imposed in this Court on the 2nd of August 2004 for offences of stealing and fraud. On that occasion, he was sentenced to nine months imprisonment, which was suspended for three years on the 21st of November 2004.
For the purposes of the appeal, I adopt and incorporate into my reasons the very helpful and comprehensive description of the offences before the learned Magistrate, which form annexure A to the written submissions of Miss Cupina, the solicitor for the Queensland Police Service, who appears on its behalf this morning.
The respondent at the time he came to be sentenced by her Honour, had a significant criminal history dating back to 2000. During that time, he had been convicted of a number of offences against the Drugs Misuse Act and offences of dishonesty and offences against the now superseded Vagrants Gaming and Other Offences Act and the Regulatory Offences Act and also breaches of domestic violence and possession of a knife and other offences of dishonesty. He had been subject to fines, probation, suspended sentences and actual terms of imprisonment.
He clearly has a significant drug problem, and that obviously underlies some of his offending. The offences before her Honour are not the most serious examples of those offences, albeit his offending over the six month period covered by the charges was persistent and offences were committed whilst on bail.
In imposing a sentence of six months as a global term of imprisonment for the offences, her Honour took into account appropriately, the previous criminal history of the respondent and matters in mitigation, including the difficult background that he had, particularly relating to his mother suffering from a mental illness. She also took into account his drug problem and his early plea of guilty. The early plea of guilty was significant in that it also involved him accepting the jurisdiction of the Magistrates Court, by making an election in relation to offences which could have been dealt with on indictment, so he certainly saved the State a considerable amount by not going to trial and his plea constituted very significant cooperation with law enforcement agencies.
It is now submitted that her Honour erred in imposing the six month term, by ordering that that be served concurrently with the suspended sentence of nine months, which she also activated. The submission of the prosecution now is that an appropriate sentence would have been an additional three months, cumulative upon the nine month activated suspended sentence. Implicit in that submission and acknowledged properly by Miss Cupina in argument, is an acceptance by the prosecution that a six-month term for the offending in all the circumstances was within an appropriate exercise of sentencing discretion.
There is no mandate either in principle or in law that sentences imposed for offences which constitute a breach of a suspended sentence which leads to the activation of the whole of the suspended sentence, should be served cumulatively. As Williams JA. said in the R v. Conway, ex parte the Attorney-General (2002) QCA 507 at paragraph 21:
“Whether or not a suspended sentence should be made cumulative with the other sentence imposed will always be a matter to be determined by the circumstances of the particular case. It is difficult, if not impossible to lay down clear guidelines as to when it would be appropriate to make the sentence cumulative”.
Sentence appeals by the prosecution, either the Queensland Police Service from sentences imposed in the Magistrates Court or the Attorney-General, when sentences are imposed in the higher Courts, are subject to the restrictions set out in cases such as Everett v. Queen (1994) 181 CLR 295 at 300 and the R v. Milano, ex parte the Attorney-General [1995] 2 QdR 186. In Everett the majority judgment of Brennan J, as his Honour then was, and Deane, Dawson and Gaudron JJ adopted part of a statement made by Barwick CJ in Griffiths v. Queen (1977) 137 CLR 293 and said at page 310:
“An appeal by the Attorney-General should be a rarity brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the Governments and guidance of Courts having the duty of sentencing convicted persons”.
The reference to the matter of principle in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards, which Barwick CJ saw as constituting an error of principle.
An example of this approach is the R v. Kopa and Istogu, ex parte the Director of Public Prosecutions of the Commonwealth (2004) 144 Australian Criminal Reports 287. In that case, the Court did not interfere in a sentence that it regarded as being on the low side, because it did not fall outside the appropriate range of sentences imposed for that particular type of offence.
As Mr Hishon observed in his written submission, it is not a proper approach for an appellant court to say, “well, the sentence that I impose would have been greater or less, it's only if the appellant court is satisfied that the sentence is manifestly excessive that it can then interfere on the grounds that the lower court has made an error of principle.”
Given the submissions made by the prosecution and given the lack of any comparable sentences that have been discovered and placed before me, and given the fact that her Honour specifically took into account that ultimately it was inevitable that the respondent would be dealt with in the District Court for a breach of the suspended sentence imposed on the 2nd of August 2004, constituted by his conviction for the offences on the 18th of November 2005, I am not satisfied that any error has been shown and the appeal is dismissed.