Hills v Queensland Police Service
[2009] QDC 89
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- Unreported Judgment
- Hills v Queensland Police Service[2009] QDC 89
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Hills v Queensland Police Service[2009] QDC 89
Hills v Queensland Police Service[2009] QDC 89
DISTRICT COURT OF QUEENSLAND
CITATION: | Hills v Queensland Police Service [2009] QDC 89 |
PARTIES: | LEVINA ROXANNE HILLS v QUEENSLAND POLICE SERVICE |
FILE NO/S: | D15/2008 |
DIVISION: | Civil |
PROCEEDING: | Appeal against sentence |
ORIGINATING COURT: | Magistrates Court |
DELIVERED ON: | 10 February 2009 |
DELIVERED AT: | Mt Isa |
HEARING DATE: | 10 February 2009 |
JUDGE: | Dearden DCJ |
ORDER: | Appeal granted |
CATCHWORDS: | Appeal – Criminal conviction and punishment – Where learned Magistrate imposed cumulative terms of imprisonment – Where learned Magistrate ordered a parole release date – Whether final global sentence was manifestly excessive – Whether learned Magistrate considered irrelevant issues |
LEGISLATION: | Liquor Act (Qld) 1992 Bail Act (Qld) 1980 Summary Offences Act (Qld) 2005 |
CASES: | R v Richards (1997) QCA 218 |
COUNSEL: Mr W Pennell for the applicant
Mr S Thackeray for the respondent
SOLICITORS: Aboriginal and Torres Strait Islander Legal Service, solicitors for the applicant
Director of Public Prosecutions for the respondent
- [1]HIS HONOUR: This is an appeal against the sentence of the learned Magistrate sitting in the Mornington Island Magistrates Court on 15 April 2008 in respect of the appellant, Levina Roxanne Hills.
- [2]The appellant was on that day before the Court in respect of 11 offences to which she pleaded guilty. Seven of those were in respect of contraventions of the Liquor Act (1992); one offence related to a breach of the Bail Act (1980), and the three offences which are the subject of this appeal were contraventions of the Summary Offences Act (2005). With one exception, a possession of liquor in a restricted area, the offences occurred over a two month period between 20 February and 15 April 2008.
- [3]The three breaches of the Summary Offences Act were offences of committing a public nuisance, and they occurred relevantly on 27 March, 28 March and 15 April 2008.
- [4]In respect of each of those offences, the Magistrate imposed sentences respectively of one month, two months and four months imprisonment but then (and this is ultimately the sentencing disposition which is the subject of the appeal), the learned sentencing Magistrate ordered that all terms of imprisonment be served cumulatively and set a parole release date of 14 July 2008 which equates essentially to seven months' imprisonment to serve, if I understand it correctly, three months.
- [5]The grounds on which the applicant appeals are:
(1)that the sentences were manifestly excessive, and;
(2)that the Magistrate took into account irrelevant issues.
- [6]There has been a difficulty in progressing the appeal in this matter because of the absence of a transcript. Ultimately the transcript of the sentencing submissions was able to be located and transcribed. There is, however, no transcript of the learned sentencing Magistrate's sentencing remarks. However, the legal representatives of both the applicant and the respondent are satisfied that this Court can deal with the appeal based on the record as it stands (including helpful affidavits from the Police Prosecutor who appeared on the sentence, Senior Constable Walter Brewer, and the solicitor from the Aboriginal and Torres Strait Islander Legal Service who appeared, Ms Fiona McAdam), and I thank both of them for assisting the interests of justice by providing an affidavit as to their recollection of the relevant part of the proceedings.
- [7]Each of the first two public nuisance offences involved the applicant being involved in a fight; the first on the 27th of March at about 10 p.m., the second on the 28th of March at about midnight, and the third offence also involved intoxication of the appellant (as did the previous two offences), but on that case the appellant was intoxicated, lying on a road and was swearing at other members of the public and at the police officers who took her into custody.
- [8]She was, it seems, also in breach of bail conditions in respect to the consumption of alcohol at that time.
- [9]The learned sentencing Magistrate was confronted with a difficult sentencing exercise. The appellant, although only a young woman at the time, some 22 years old, and the mother of two small children, has an unenviable criminal history which now reaches over some four pages and, perhaps unsurprisingly, is laced with offences that clearly reflect an ongoing difficulty with the use and misuse of alcohol, both personally and in breach of relevant Liquor Act provisions.
- [10]The appellant, as Mr Pennell who appears on the appeal for the appellant, readily concedes, has had an unhappy history which includes a prison sentence of three months for similar offending in the past, and I note even subsequent to the sentence on this matter, the appellant received a suspended sentence of 14 days for further breaches of the Liquor Act.
- [11]The error that the learned sentencing Magistrate fell into, however, was utilising the process of cumulative sentences in order to turn what was arguably an appropriate sentence - an effective head sentence of four months - into what was clearly, in terms of totality, a manifestly excessive sentence of some seven months.
- [12]It does appear that the Magistrate may have been motivated by a potential consideration of stopping the applicant's drinking, and there were, it seems, submissions from the local Community Justice Group which made relevant recommendations to the Magistrate.
- [13]In respect of those views expressed by the community elders, it is, of course, open to, and it is welcomed, that the Magistrate receive such recommendations. The learned sentencing Magistrate is ultimately, however, the judicial officer responsible for fixing the appropriate sentence and such a responsibility is not avoided by the process of having community elders, through the Justice Group, provide recommendations or submissions to the learned sentencing Magistrate.
- [14]It is therefore not a situation, in my view, where the Magistrate has taken into account irrelevant matters, in the sense that those matters that were taken into account, in my view, were clearly relevant. It was the effect on the Magistrate of the material placed before him and a failure to appropriately appreciate the considerations of accumulation and totality in coming to the sentence that he did, which was, as is clear from my remarks to date, manifestly excessive.
- [15]I have been assisted, in addition to those references provided in Mr Pennell's very helpful and comprehensive outline, with a referral by the counsel for the respondent to the decision in R v Richards [1997] QCA 218, a decision which, although relating to different substantive charges, is in many ways remarkably similar, in that it involved a Magistrate confronted with an array of charges, each of them not particularly serious of themselves, but on which the Magistrate imposed cumulative sentences for one or more of the matters, effectively then arriving at a final global sentence which was manifestly excessive, and it is one of the sentences which was made cumulative. Although there are, of course, situations where cumulative sentencing is not only appropriate, but either practically or legally mandated, the circumstances in this matter do not fall within the category of offending which either mandates or requires cumulative sentencing.
- [16]The sentence imposed by the learned sentencing Magistrate in respect of the last of the three offences of public nuisance seems to me, in fact, to be the appropriate sentence in all the circumstances, and the learned sentencing Magistrate fell into error in cumulating that final sentence with the previous two prison sentences, and therefore he effectively doubled, or close to doubled, the total sentence in the matter.
- [17]In all of the circumstances then, the appeal is granted. The sentence imposed by the learned sentencing Magistrate on 15 April 2008 is varied by deleting the order that each of the prison sentences imposed on 15 April 2008 be served cumulatively. I order instead that each of the sentences, which are respectively one month, two months and four months for each of the three offences of commit public nuisance, be served concurrently.
- [18]In respect of that effective head sentence of four months, I set a parole release date of today, 10 February 2009.