Town v Queensland Police Service
[2012] QDC 194
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- Town v Queensland Police Service[2012] QDC 194
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Town v Queensland Police Service[2012] QDC 194
Town v Queensland Police Service[2012] QDC 194
[2012] QDC 194
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE DORNEY QC
Appeal No 79 of 2011
CATHERINE PATRICIA TOWN | Appellant |
and | |
QUEENSLAND POLICE SERVICE | Respondent |
TOOWOOMBA
DATE 06/02/2012
JUDGMENT
HIS HONOUR: This proceeding involves an appeal. The notice of appeal filed on 17 October 2011 appeals against a sentence. The appellant was convicted on the 22nd of September 2011 and sentenced that particular day.
The offences in question were three offences of disqualified driving, one of obstructing police, one of contravening a direction, and one being a breach of a suspended sentence.
The sentence that was imposed constituted, respectively: with respect to the disqualified driving, 12 months' imprisonment on each offence to be served concurrently; with respect to the obstructing police, 27 days' imprisonment; with respect to the contravention of a direction, a conviction and no further punishment imposed; with respect to the breach of the suspended sentence, that the balance of the suspended sentence be activated in full, to be served cumulatively. In addition, a pre-sentence custody declaration of 27 days was made and declared as time served, and a parole release date was fixed at 27 June 2012.
The notice of appeal which was filed essentially relies upon the ground of manifest excess. There are in fact three particular separate issues which are outlined in detail in the appellant's outline of submissions and in the reply. They are summarised in the appellant's written submissions in reply and it's best that I turn to them in that regard.
First is the matter of cumulative sentences. While reasons are not required to be given with respect to certain matters in the sentencing process, it's clear that reasons are an essential part of the judicial making process.
It is accepted by the respondent that the learned Magistrate did not make any particular reference to the matter of cumulative sentencing, other than referring to the fact that some of the sentences would be served cumulatively. As is stated in the written outline of submissions on behalf of the respondent, it's conceded that the learned Magistrate did not state in open Court the reasons for imposing the cumulative sentence.
The respondent relies upon section 10(2) of the Penalties and Sentences Act 1992. It's unnecessary in the approach I take for me to decide whether in fact that is an appropriate provision in the circumstances of this case. It may well be that on a wide reading of section 10 the reference to imposition of a sentence of imprisonment includes the concept of cumulative imprisonment, or cumulative imposition.
In the circumstances where subsection 2 of section 10 states not only that a sentence is not invalid merely because of the failure of the Court to state its reasons as required by subsection 1(a) but also that its failure to do so may be considered by an Appeal Court if the appeal against sentence is made, I take it as appropriate in any event that this Court consider the matter, even if section 10(2) has application. So with respect to its application, or not, I think it is appropriate that this Court take into account the failure to state reasons.
Necessarily, it may well be that on a full survey of the reasons which were relied upon in the sentencing process that the cumulative sentences could have actually be justified. So the appellant's submission with respect to that is that, even if the Court accepted that, it still ought bear in mind that it is appropriate to say so, so that a parole release date which is earlier than the parole release date which was imposed is seen to be not appropriate and reasonable, taking into account any accumulation.
The second issue raised by the appellant is the matter of totality. It's clear again that the expressed criteria of totality has not been addressed. I'm referred by the appellant's counsel to The Queen v Baker [2011] QCA 104 and its consideration of Mill. The reference to Mill is to Mill v The Queen (1988) 166 CLR 59. It dealt with the appropriate approach to matters when a number of different sentences were being considered and imposed, particularly if those sentences were to be served cumulatively.
As is remarked by the Court of Appeal's consideration of this issue in the judgment substantially given by Justice Atkinson, the failure to explicitly consider aggregated sentences in order to determine whether the total sentence is just and appropriate bespeaks an error in the exercise of the sentencing discretion.
Thirdly, there is a reliance by the appellant on a failure to comply with section 147(3)(b) of the Penalties and Sentences Act. The particular requirements of that section oblige a person who is considering activation of a suspended sentence to take into account the seriousness of the original offence, including any physical or emotional harm done to a victim and any damage, injury or loss caused by the offender.
No criticism can be laid at the door of the learned Magistrate in this case because the learned sentencing Magistrate was provided with no information which touched on that particular issue. I allowed the actual details of that original sentence imposed to be tendered as an exhibit which became Exhibit 1 in this case. An examination of the actual circumstances of the original offence show that there is nothing exceptional about them. The important point made by the appellant in this case is that any consideration of them would not have led to any aggravation of the circumstances in question and therefore provide no basis for a cumulative sentence.
In determining whether in fact the sentencing process undertaken by the learned Magistrate effectively miscarried, I had my attention drawn by both parties to the case of Santilan (that's Santilan v Queensland Police Service [2008] QDC 33). The appellant's recourse to it, in the reasons given by Judge Brabazon QC of this Court, is for the purposes of what is stated in paragraph [9] of the reasons. They stated that, overall, the case showed that insufficient attention was shown to the degree of criminality shown by the young man. It's illustrated by the fact that, in truth, many of the things that he was doing represented simply a social rather than a criminal problem, and that he was not demonstrated to be a risk to others on the road (apart perhaps from his habit of speeding) and was otherwise carrying on a useful life.
In the written outline of submissions of the respondent, a number of submissions were made with respect to Santilan. I won't go through them in detail, but they are sufficiently set out in a very clear way at paragraph 5.5.
The aspect that this raises of course is the fact that it is open to a Magistrate in these driving while disqualified cases to view gaol as a last resort. In this context also, my attention has been drawn by the appellant to the fact that the appellant is a mother who has the care of a young child. That is an aspect that I ought, if I am otherwise convinced that the sentence needs to be reopened and examined, should take into account.
I am convinced in the end that given the accumulated issues on which the appellant relies, that it is appropriate to conclude in accordance with House v The King that the sentencing process has miscarried in a way which requires this Court to consider again what has occurred.
The particular passage relied upon at paragraph 5.1 of the written outline of submissions on behalf of the respondent shows that the wording which was used by the sentencing Magistrate has an air of formality about them rather than a true consideration of all the matters that come up for consideration in a case such as this. Again, I understand with respect to sentencing in the Magistrates Court that it is very difficult, in light of the heavy burden they face, to always apply in the case in question remarks that don't form a standard way of expressing themselves.
Nevertheless, given the three issues raised in this case, particularly those of cumulative sentences and totality, no blame being placed on the Magistrate with respect to the matter of the failure to comply with section 147(3)(b), I think it is appropriate in this case to examine the matter again. In doing so, I come to the conclusion that it was appropriate, given the matters which were raised before the Magistrate, that a cumulative sentence ought to be considered in the circumstances.
But, having said that, I also reach the conclusion that not enough attention was being paid to those particular matters that went in mitigation, such mitigation concerning, obviously, not only the pleas of guilty but also the above referred to the mother's role as a carer of a child.
As noted by the solicitor appearing, by way of background in the original sentencing arguments, the appellant was 32 years of age and had five children. One was in her own care, three lived with her father and one was cared for by her own mother. She had a long-standing drug problem that appeared to be waning, she had full awareness of her wrongdoing, and did not proffer any excuses for her conduct. There's also the key points which are referred to in paragraph 19 of the appellant's written outline of submissions, which I think are important as well.
The approach I therefore reach is that in resentencing I accept that the original sentences imposed could well have been imposed in the way in fact in which they were. I therefore reach the conclusion myself that it is appropriate on my part, even though I have reopened the matter of sentencing, to impose sentences for the head sentences in each of the particular cases the sentences that in fact have been imposed.
Nevertheless, I accept that not sufficient attention had been paid towards the mitigating features in this case. I therefore conclude that a parole release date should be fixed earlier than that in fact which was originally imposed.
I note that among the orders proposed in the appellant's written outline of submission is that, if the Court should leave the cumulative sentences as they are, then a parole release date of about one third would be the appropriate course to follow. For the reasons that I have canvassed in some detail here, that is the course I intend to follow.
Can I have, please, for the moment your submissions in reply? Yes, they doesn't add to that. I was just concerned, Mr Davies, that there may have been some clarification or addition to what you had submitted in the original outline of submissions.
Now, turning then, and I ask you firstly, Mr Davies, in light of the intimations I've given, what the appropriate orders ought be in this case?
MR DAVIES: That then, your Honour, would be a parole release date, I've calculated the 21st of April. That‑‑‑‑‑
HIS HONOUR: 21st of April?
MR DAVIES: 21st of April of 2012.
HIS HONOUR: And I would leave the other orders intact?
MR DAVIES: Yes.
HIS HONOUR: Right. Do you have any problem with that?
MS HELSDON: That - if I may ask, that's after a third, your Honour?
HIS HONOUR: I'm sorry?
MS HELSDON: That parole release date is after a third? That's being‑‑‑‑‑
MR DAVIES: That's essentially correct. Yes, he is‑‑‑‑‑
MS HELSDON: Yes. Yes.
MR DAVIES: Yes.
HIS HONOUR: Yes.
MS HELSDON: Thank you, your Honour. I have no issue with that.
HIS HONOUR: Which, as is pointed out in the written submissions, is about the appropriate one third of the total sentence imposed. I have no problem with that issue - with that aspect of the issue.
MS HELSDON: Yes.
HIS HONOUR: All right. The orders I make are as follows: the appeal is allowed only to the extent of that part of the sentence imposed which deals with the fixing of the parole release date. Therefore, all other orders with respect to sentencing remain in force. With respect to the parole release date, I fix the parole release date as at 21 April 2012.
Now, are any orders with respect to costs being sought in this‑‑‑‑‑
MR DAVIES: Not seeking costs, your Honour.
HIS HONOUR: Okay. Anything further, Ms‑‑‑‑‑
MS HELSDON: No, thank you, your Honour.