Strong v Queensland Police Service
[2010] QDC 280
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- Unreported Judgment
- Strong v Queensland Police Service[2010] QDC 280
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Strong v Queensland Police Service[2010] QDC 280
Strong v Queensland Police Service[2010] QDC 280
DISTRICT COURT OF QUEENSLAND
CITATION: | Strong v Queensland Police Service [2010] QDC 280 |
PARTIES: | BENJAMIN JAMES STRONG (Appellant) AND QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO/S: | Appeal No. 23/10 |
DIVISION: | |
PROCEEDING: | Appeal |
ORIGINATING COURT: | District Court, Toowoomba |
DELIVERED ON: | 13 July 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 May 2010 |
JUDGE: | Reid DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – Sentencing principles – erroneous decision by Magistrate – where parole release date set at the full term of the head sentence – setting a parole release date |
COUNSEL: | R. Davies for Appellant C. Winlaw for Respondent |
SOLICITORS: | David Burns Lawyers for Appellant Office of the Director of Public Prosecutions for the Respondent |
Overview
- [1]In this matter Benjamin James Strong (“the appellant”) appeals against a sentence imposed by a magistrate at Toowoomba on 12 March 2010, he was given an effective head sentence of eight months and 28 days’ imprisonment, with a court ordered parole release date fixed at the full term.
- [2]The appellant accepts that he should have been committed to prison for the balance of the period of an intensive correction order of two months and 28 days, and also accepts the appropriateness of a sentence of six months in respect of various charges brought against him. He does not, therefore, contest the appropriateness of the total head sentence of eight months and 28 days imposed.
- [3]On 12 March 2010 the appellant was convicted before the learned magistrate of the following offences:
- Breach of an intensive correction order, for which he was committed to prison for the balance of the term of the order, namely two months and 28 days.
- Assault occasioning bodily harm and wilful damage for which he was sentenced to six months’ imprisonment, to be served cumulatively to the sentence for breach of the intensive correction order.
- Driving a motor cycle whilst unlicensed, for which he received a period of two months’ imprisonment, to be served concurrently with the sentence for assault occasioning bodily harm and wilful damage.
- Contravening lawful directions and driving an uninsured and unregistered motor vehicle, for which he was fined with no time to pay, and no fine option order but an order that he serve in default a short period of imprisonment, to be served concurrently with the sentence for assault occasioning bodily harm and wilful damage.
- [4]The issue on the appeal concerned the decision of the learned magistrate to set a parole release date at the full term of the cumulative sentence. The appellant submits that an appropriate parole release date was at one half of the sentence.
- [5]The appellant asserts that the learned magistrate erred in law in that he failed to comply with the appropriate procedure to be followed when imposing a parole release date beyond the half of the head sentence, set out by the Court of Appeal in R v Kitson [2008] QCA 86. The appellant also submits that I would be in a position to impose a fresh sentence. In the alternative, it is said that the imposition of a parole release date at the full term of the period of cumulative imprisonment was manifestly excessive and that a parole release date fixed at 50% of the term of imprisonment ordered would be appropriate.
- [6]The Crown in its submissions asserted that the magistrate had in fact complied with the requirements set down in R v Kitson (supra) and that neither the head sentence, nor the imposition of a parole release date fixed at the full term was manifestly excessive.
Facts
- [7]The appellant was in 2009 originally convicted of one count of assault occasioning bodily harm in company and one count of stealing. An intensive correction order for a period of six months was imposed on 24 March 2009. The circumstances of that offence were that in the early hours of the morning of 16 November 2008 the complainant was walking home from a night out with friends. He walked into a side street and was confronted by the appellant’s co-offender on a pushbike. As they spoke, the appellant ran up behind the complainant and punched him twice. The complainant fled but was chased and pushed down to the ground and punched several more times to the head and body boy both offenders. His wallet, containing $10 in cash, and his mobile phone were stolen.
- [8]On 12 March 2010 the magistrate as I have said sentenced the appellant in respect of one count of assault occasioning bodily harm and one count of wilful damage, which offences occurred on 17 December 2009, and one count of unlicensed driving, one count of contravening a direction, one count of driving an uninsured motor vehicle, and one count of driving in an unregistered vehicle, which offences occurred on 20 January 2010.
- [9]The circumstances of the offences are set out in the transcript of proceedings, and the judgment of the magistrate. I do not propose to set them out in full. On 16 December 2009 at about 7.50pm the appellant was walking past the complainant’s residence. The complainant was at home with his wife and two children. They heard a loud bang to the front of their residence, which sounded like some sort of metal hitting the roof or gutter of the house. As a result the complainant went to the front door and saw the appellant and another man near the footpath. The appellant began to yell out at the complainant, who asked him to leave. The appellant took offence and approached the complainant’s residence, punching the top glass panel near to the front door of the residence causing it to break. The glass shattered through the residence. Pieces of dark glass struck the complainant, causing cuts to his chin and chest. He nevertheless went outside and again asked the appellant to move on without causing further trouble. The appellant then attacked the complainant. During the scuffle, both fell to the ground. The complainant’s wife called the police. After a short period of time the appellant and the complainant let go of one another. The complainant went to go back inside his house but the appellant again approached the house. He then kicked a bottom glass panel on the right-hand side of the front door, causing it to also shatter. He also banged against the security door, without causing damage, before leaving. As might be expected, the complainant’s wife and young children, who were in the house, were very scared.
- [10]Police arrived and saw the appellant. When they called out to him, he ran away. The man who he was with spoke with police and identified the appellant. Subsequently, when he was found by police, he acted aggressively towards them. He was taken to hospital and subsequently arrested. He refused to be interviewed and gave no reasonable excuse for his actions. The cost of the damage amounted to some $1,288.
- [11]It is unnecessary to go through the traffic offences, which are self explanatory. They involved the appellant driving a motor cycle from Toowoomba to Brisbane and return. He was stopped at Helidon. He did not have a current licence, and indeed had never held one. The vehicle was to his knowledge both unregistered and uninsured.
- [12]The intensive correction order imposed on 24 March 2009 was breached by the appellant on 26 August 2009, when he failed to perform community service as directed. After initially attending pursuant to the order upon the Toowoomba Probation and Parole Office, and attending up to 2 June 2009, he thereafter failed to attend community service on 10 and 17 June and 8 July. He said this was because he had secured employment but, despite being requested to do so, did not produce any documentation to support this assertion. He continued to thereafter fail to attend community service from 22 July, except on two occasions, on 21 August and 2 September. It appears from the transcript of the Magistrates Court proceedings that he had in fact been under continuous community service obligations from September 2007. An assessment undertaken in October 2007 by the department had indicated that he was a general risk of recidivism due to mental health and relationship issues. There were instances where he had refused counselling, saying he wished to attend upon a psychologist, and then, when psychologist’s appointments were arranged, attended only three appointments and thereafter failed to further attend, allegedly because he was dissatisfied with the particular psychologist.
- [13]It does not appear from the material, however, that the plaintiff has spent any time of actual imprisonment, up to the imposition of a term of imprisonment from the learned Magistrate on 12 March 2010. I note he his a young man, born on 3 January 1988. He is thus even now only 22 years of age.
R v Kitson
- [14]In R v Kitson (supra) the defendant was convicted of offences including possession of the dangerous drugs methyl amphetamine and methadone and one count of possession of a mobile phone for use in connection with the commission of the crime of supplying a dangerous drug. He was originally sentenced to 12 months’ imprisonment on each count, with an order that he be released on parole after serving nine months. The defendant in that case appealed on the ground that the sentence was manifestly excessive, particularly in relation to the specification of a parole release date after three-quarters of the sentence had been served. Fraser JA at paragraph 15 of his judgment (with whom Fryberg and Lyons JJ agreed) drew a relevant distinction between cases where a party was eligible for parole at the half-way mark of a sentence unless a contrary order as made, and cases, such as this case, where a sentence was for a term of less than three years, and the offences were not serious violent offences or sexual offences, so that the date upon which a party was to be released on parole was any date fixed by the learned sentencing judge which could fall within any date of the party’s sentence. Fraser JA pointed out at paragraph 16 of his judgement that the distinction was however somewhat illusory since in each case the court retained a discretion, not relevantly fettered, to fix the relevant date.
- [15]In respect of matters such as this, where the term of imprisonment was for a period of less than three years and the offences were not serious violent offences or sexual offences, His Honour referred to two relevant considerations those being:
- The appellant had a claim upon the discretion for an order that he be released after serving less than half of the head sentence, in view of his plea of guilty and personal circumstances, and because a parole release date which is significantly beyond the mid-point of the head sentence was very unusual (the Court of Appeal referred to R v Norton [2007] QCA 320 per Douglas J). Fraser JA pointed out that in such a case, because the order was unusual, the duty of courts imposing such a sentence was to give reasons explaining the process of reasoning underlying the decision, but said that such an explanation might be quite brief in many cases;
- The possibility of postponement of the parole release date beyond the midpoint of the sentence was unusual, and should, therefore, not be imposed unless a sentencing judge (or Magistrate) averts to it and gives the parties an opportunity to be heard about the issue.
- [16]In this regard, Fraser JA, said at paragraph 22:
“In re Hamilton; In re Forrest [1981] AC 1038 Lord Fraser of Tullybelton said, at 1045, that:
‘One of the principles of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against him, so that he, or someone acting on his behalf, may make such representations, if any, as he sees fit.’”
Compliance with R v Kitson
- [17]An immediate point of inquiry in this case, therefore, is to determine whether or not the magistrate has complied with this obligation to give adequate notice and opportunity to the appellant’s solicitor so that the solicitor could make such representations as she sees fit. In my view, this required the learned Magistrate to effectively notify the appellant’s solicitor, in the circumstances of this case, that he intended to require the appellant to serve the whole of any period of imprisonment and to invite submissions.
- [18]In the proceedings before the magistrate, the defendant’s solicitor sought an immediate parole order (p 8 lines 50-52). She submitted that a head sentence for a period of nine months would be appropriate, but with immediate parole. She did concede that actual imprisonment was, however, within range (p 9 lines 1‑9). The learned Magistrate indicated that he did not agree with that submission (p 9 line 10). After being so notified the applicant’s solicitor indicated that her submission was that all terms should run concurrently, except that the term to be served under the intensive correction order be imposed cumulatively. She submitted that a fixed parole release date after one-third of the sentence be imposed.
- [19]In response to such submission, the learned Magistrate indicated that he proposed to make the sentences for breach of the intensive correction order and for the most serious of the charges before him, that of assault occasioning bodily harm and wilful damage, cumulative. He further indicated he would be “setting a parole release date and it will not be one-third, I can assure you of that.” He invited her to make further submissions in respect of that, but at no stage did he imitate that he was thinking of ordering that more than half of the sentence , let alone the whole of any term of imprisonment be served prior to parole release.
- [20]In response, the applicant’s solicitor submitted that perhaps a one-half parole release date be set (see p 10 line 6-7), to which the Magistrate said:
“that could be done too, but he’s also demonstrated, from his criminal history here, when given opportunities, put back into the community by way of probation, by way of community service, by way of intensive correction order, he snubs his nose at that … and he’s not a person suitable for this. I don’t propose to waste this Court’s time, or any other Court in Queensland’s time, let alone the Department of Corrective Services, in placing him around any more.”
- [21]If this was intended by the learned Magistrate to convey that he was intending to set a parole release date at the full term of the cumulative sentence, it was in my opinion an oblique way of doing so. He did not so satisfy the requirements of R v Kitson that he advert to his intention to impose such an unusual sentence, and give the applicant’s solicitor an opportunity to be heard on it. In my view, he was required to make clear what he was intending to set such a release date so that she had every opportunity to comment upon his proposal.
- [22]The sentence the magistrate in fact ordered was that the appellant serve the unexpired portion of two months and 28 days of his intensive correction order, and that he serve a period of imprisonment for six months, cumulative with the service of the unexpired portion of the intensive correction order.
- [23]In his reasons for judgment, the Magistrate said:
“The opportunity in sentencing options that have been offered to you have had no deterrent effect by way of fine, probation, community service, and intensive correction order and you have squandered each and every one of those.”
- [24]From my reading of his judgment, it appears that his fixing a parole release date at the end of the totality of the cumulative sentence appears primarily to have been motivated by the view that the appellant had, in the past, been offered opportunities for serving sentences in the community, but had not appropriately responded to such options.
- [25]I am concerned that release of a young offender, into the community at the end of his period of imprisonment when he had an extensive criminal history and a clear need for direction and supervision, will without any ongoing supervision. I say this, despite his breach of community-based orders in the past. It is to be hoped that, as a result of the period of actual imprisonment he has to date served, his attitude to such community-based orders will have changed. Whilst punishment and deterrence are important considerations, so too is the need to encourage rehabilitation, especially for young offenders.
- [26]These offences occurred whilst he was subject to an intensive correction order made on 24 March. That sentence provided of a period of six months’ imprisonment to be served by way of an intensive correction order. The criminality then before the court covered offences of assault occasioning bodily harm and stealing.
- [27]He has not previously served any actual period of imprisonment. Although his response to the intensive correction order was poor, in my view this must be seen in light of that circumstance. One hopes that a period of actual imprisonment, such as he is currently serving, may change his attitude somewhat.
- [28]In my view, the facts accepted by the learned magistrate in his sentencing remark support the view that after a period of actual imprisonment he should, upon his release, be subject to some ongoing supervision rather than being released unsupervised after a somewhat more lengthy period of actual imprisonment. I do not accept, as the magistrate appeared to do, that to do so would merely waste the time of the Department of Corrective Services. In my view, to ensure there was a period of supervision after the end of the appellant’s first period of actual imprisonment improves the prospects of his rehabilitation and therefore improves the possibility of community protection. To do as the learned magistrate did in circumstances where he has not previously served actual imprisonment was in my view an error.
- [29]In my view, therefore, the learned magistrate was in error in not following the requirements of R v Kitson and, further, was in error in not ordering a parole release date at one-half of the period of imprisonment which he ordered, such that it would be said his sentence was manifestly excessive.
- [30]In the circumstances, I would allow the appeal and make the following orders:
- In respect of the breach of the intensive correction order, I order that the appellant be sentenced to imprisonment for a period of two months and 28 days.
- In respect of the offences of assault occasioning bodily harm and wilful damage, I order that he be sentenced to a period of imprisonment for six months imprisonment, cumulative on the period of imprisonment for breach of the intensive correction order.
- In respect of the offence of driving whilst unlicensed, I order that he serve a period of two months of imprisonment to be served concurrently with the order for six months’ imprisonment.
- In respect of the offences of contravening a direction, driving an uninsured vehicle and driving an unregistered motor vehicle, I believe the orders of the magistrate were reasonable and appropriately make no alterations to these.
- [31]In all, therefore, the head sentence imposed is of some eight months and 28 days. I fix a parole release date at one-half of that period, that is four months and 14 days from the date of the sentence of the learned magistrate, and fix a parole release date of 27 July 2010.