Prior v State of Queensland[2012] QDC 169

QDC [2012] 169

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE DURWARD SC

No 677 of 2011

TOWNSVILLE

DATE 11/04/2012

JUDGMENT

HIS HONOUR:  The appellant was convicted in the Magistrates Court at Townsville of diving offences on 8 December 2011, and has appealed against the sentences on the ground that they are manifestly excessive.

The sentences imposed were as follows:  two burglary and commit indictable offence, in respect of which the sentence was two years' imprisonment, and 58 days presentence custody was declared on one of those two offences; going armed so as to cause fear, the sentence was 12 months' imprisonment, 58 days presentence custody was declared in respect of that offence; two breach of bail condition offences, in respect of which the appellant was convicted and not further punished. The terms of imprisonment were concurrent. A parole release date was fixed for 11 June 2012.  

The burglary and going armed charges were committed on Palm Island on the same day and within a very short time. The appellant was intoxicated. He first entered one complainant's house, calling out for a fight. He left after the complainant punched him off his feet and told him to leave. He then returned and approached a house with an axe in his hand and then walked away. He returned again and walked into the house with the axe and swung it. He was disarmed by occupants, and the police arrived.

The police Prosecutor had contended for a head sentence of 18 months to two years. He relied on two comparative sentence cases, R v. Fitzgerald [2004] QCA 241, and R v. Boyd [2009] QCA 8, where the appellant's applications for leave to appeal were dismissed.

Fitzgerald had been sentenced to 21 months' imprisonment, suspended after six months, on charges of break and enter with intent in respect of the complainant's home, and assault occasioning bodily harm. He was aged 39 years and had no prior convictions. The appellant's wife had commenced a sexual relationship with the complainant.

Boyd had been sentenced to two years and to three six month terms of imprisonment on charges of burglary with assault and three wilful damage charges, respectively. The offences were committed in company and involved a home invasion. The offender had intended to give the complainant a touch-up. Gratuitous damage was done to property. Similarly, the appellant's de facto partner had left him to start a relationship with the complainant. He was aged 24 years and had a relatively minor prior history.

The appellant's lawyer had submitted that those two cases were far more serious than the appellant's offending behaviour and that the appropriate range was 12 to 14 months. The Magistrate nevertheless said the following, at pages D3 to 4, "As a general proposition, someone who comes to a house with an axe, regardless of the intent, enters the house uninvited, forms an intent to do that and then does it for the reasons that have been given, should reasonably expect a significant period of time in gaol. My concern was that I would not be able to deal with the matter and the matter should be dealt with in a higher Court with greater jurisdiction, but in general terms there seems to be the notion given there is no physical damage to the individual, notwithstanding his intent, that somehow keeps the sentence down below three years."

The head sentence imposed was, in effect, just in excess of eight months in actual custody. That is, the appellant had been in custody from 2 October 2011, the date of his arrest.

The calculation of presentence custody by the Magistrate was wrong. The appellant had been in presentence custody from 2 October 2011 to 7 December 2011, plus the day of sentence on 8 December 2011, a total of 68 days. However, the Magistrate took the view that the presentence custody should be calculated from the first return date in Court, rather than the date he was first put in custody in respect of the offences. The first return date was 11 October 2011. That view was an appellable error and was properly conceded as such by the respondent on the appeal. Hence, on the day of the hearing I indicated that I would allow the appeal, at least on that ground.

The Magistrate's view was clearly contrary to section 159A(4) of the Penalties and Sentences Act 1992. It also does not appear to me that the Magistrate acted under section 159A(3A) and (3B), and that latter option would not have applied in the circumstances, in any event.

It follows that the appeal must be allowed on that point, at least. I do not understand how that error could be made when it is so contrary to the legislation and to conventional practice. The Magistrate also declared the presentence custody that he had incorrectly calculated only in respect of one of the burglary offences, that is, one burglary offence had no declaration made upon it. That is also an error.

All of the offences were the subject of a single declaration. In the circumstances of this case, the presentence custody was required to be declared in respect of all of them. Presentence custody should not be selectively declared. Such an issue arises from time to time in respect of sentences in this Court where summary offences are brought up to be dealt with, when an accused is being sentenced for offences the subject of an indictment. If offences listed in a presentence custody certificate, and I note that they were all listed on the certificate in this case, are not dealt with at the same sentencing proceeding, a declaration cannot be made.

There is a discretion to take presentence custody into account in making the sentence, but that is not a presentence custody declaration. In this case the presentence custody, correctly calculated, should have been declared in respect of all of the offences in the one declaration. A customary way of stating the declaration, using this case as an example, is as follows,  "I declare that 68 days, from 2 October 2011 to 8 December 2011, inclusive, spent in custody solely in relation to these offences is to be imprisonment already served under the sentence. I direct the Registrar to inform the Commission of this declaration."  It is a very simple formula.

Mr Turner, for the respondent, referred to Fitzgerald and Boyd as being comparative, so far as the conduct of the appellant was concerned, and also referred to R v. Beauchamp [2002] QCA 238.

Beauchamp received a head sentence of 18 months' imprisonment. He was 46 years of age and pleaded guilty to two counts arising from one incident, an enter a dwelling with intent whilst armed and a common assault. He was very intoxicated. He entered his neighbour's flat and sat on her bed and touched her on the shoulder. He was naked and holding a large knife. She got out of bed and screamed and he walked out with a small towel wrapped around his waist. There was some pre-existing tension between them in respect of domestic duties, and he said, somewhat inexplicably, "Why don't you let me use your washing machine and I'll mow the whole lawn."  That might indicate his state of mind. He was sentenced on the basis that his intent upon entering the flat was to steal some detergent. There were no threats made and the assault consisted only of a touch on the shoulder. He had no previous convictions for some 22 years. The appeal was successful and he was ordered to serve 18 months' imprisonment, suspended after the time served prior to the granting of appeal bail, which was about three weeks. The circumstances were said to have been most unusual.

In this case the appellant has prior convictions, including one burglary and six offences of violence. Whilst there was no actual striking with the implements wielded by the appellant and he had a good work history, was intoxicated at the time of the offence and had not planned the offending behaviour, although he clearly intended to commit violence but was unable physically so to do, despite his anger arising from a personal health status and directed at the complainants, he apparently was otherwise motivated in the first burglary by his sister having been subject to domestic violence at the hands of that complainant, and in the second burglary by insults directed at him by the complainant. Hence the head sentence is nevertheless in range, although at the higher end, perhaps.

The relevant principles on appeals against sentence are those established in the long-standing authorities of House v. R (1936) 55 CLR 499, and particularly, the statements made at pages 504 and 505; and Hughes and Hopgood [1950] QWN 21. A sentence is excessive only if it is beyond the acceptable scope of judicial discretion or so outside the appropriate range as to demonstrate inconsistency and unfairness. There are a number of authorities that refer to those statements of principle, including R v. Morse (1979) 23 SASR 98, Lemass v. R (1981) 5 A Crim R 230, Lowe v R (1984) 154 CLR 606 and the R v. McIntosh [1923] St R Qd 278.

I cannot find that the Magistrate was in error in making the head sentence imposed. However, as I have observed, he was in error in respect of the presentence custody declaration. Pursuant to section 223 of the Justices Act 1886 I may, amongst other things, vary or confirm the orders below.

The appeal is allowed to the extent that the presentence custody declaration requires correction. I set aside the presentence custody declaration and the parole release date fixed by the Magistrate. The rest of the sentence remains extant.

In lieu thereof I make the following orders:  I declare that 68 days from 2 October 2011 to 8 December 2011, inclusive, spent in custody solely in relation to these offences is to be imprisonment already served under the sentence. I direct the Registrar to inform the Commission of this declaration. I fix a parole release date of 1 June 2012.