Ling v Queensland Police Service
[2012] QDC 253
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- Ling v Queensland Police Service[2012] QDC 253
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Ling v Queensland Police Service[2012] QDC 253
Ling v Queensland Police Service[2012] QDC 253
[2012] QDC 253
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE HARRISON
Appeal No 39 of 2012
REGAN WILLIAM LING | Appellant |
and | |
QUEENSLAND POLICE SERVICE | Respondent |
CAIRNS
DATE 19/06/2012
JUDGMENT
HIS HONOUR: This is an appeal against sentence under section 222 of the Justices Act 1886. The appellant, who was represented by a solicitor, pleaded guilty in the Magistrates Court at Cairns on the 24th of January 2012 to an offence of assault occasioning bodily harm, an offence of entering a premises at night-time and stealing, an offence of unlawful use of motor vehicle, and an offence of unlicensed driving.
In relation to the assault occasioning bodily harm he was sentenced to 16 months' imprisonment, to the burglary 12 months' imprisonment, to the unlawful use of a motor vehicle six months' imprisonment, and he was convicted and not punished in relation to the remaining matter. The Magistrate ordered that the period of imprisonment for the burglary be cumulative for the period imposed for the assault occasioning bodily harm.
These offences were committed whilst he was on parole in relation to some offences that were dealt with in the Magistrates Court on the 18th of May 2011, and this had a number of implications. Firstly, any sentence that was imposed by the Magistrate on the subsequent offending had to be served cumulatively with the balance of that sentence. The full-time release date for that sentence as at the time he was dealt with by the Magistrate was the 13th of March 2012. Secondly, the Court did not have a discretion to fix a parole release date, and could only fix a parole eligibility date.
The appellant was born on the 11th of May 1989, and was 22 years of age at the time he was sentenced and has since turned 23. It is not necessary to go into the grounds of appeal in any detail. One ground is that the sentence was manifestly excessive, another which was added is that the Magistrate failed to have proper regard to the totality principles of sentencing, and another, that there was insufficient regard to the pleas of guilty that were entered on that occasion.
For convenience I will deal firstly with the grounds in relation to the totality of sentencing principles. I was referred to a decision of the Court of Appeal in R v. Baker [2011] QCA 104, particularly to an analysis of the principles in the judgment of Atkinson J commencing on paragraph 35. She referred to the oft quoted passage in Mill v. The Queen [1988] 166 CLR 59 at pages 62 to 63 where the High Court adopted what was said by Thomas in Principles of Sentencing Second Edition 1979 at pages 56 to 57, namely:
"The effect of the totality principle is to require a sentencor who has passed a serious of sentences, each properly calculated in relation to the offence for which it was imposed, and each properly made consecutive in accordance with the principles governing consecutive sentences to review the aggregate sentence and consider whether the aggregate is, 'just and appropriate.'"
In paragraph 39 she adopted, with approval, a passage from a West Australian decision of Stubley v. Western Australia [2010] WASCA 36 at paragraph 410, namely:
"First, the total effective sentence imposed on the offender must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referrable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate). Secondly, the total effective sentence imposed on the offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody."
She also referred in paragraph 41 to a decision of McPherson JA in R v. Cutajar Ex parte The Attorney-General [1995] QCA 570, confirming again that the combined effect of any such sentences should not be crushing.
I have considered the Magistrate's decision, and it is clear that she imposed the sentence of 16 months for the more serious matter of assault occasioning bodily harm, and then imposed the 12 months for the burglary. When she made them cumulative she did not make any comments about whether or not the overall sentence was fair and reasonable. That of itself is by no means the end of the matter, but I must consider whether or not an effective sentence of 28 months against the background where he would have to serve the balance of the earlier sentence cumulatively is fair and reasonable. On my calculations the balance was marginally under two months, being slightly in excess of seven weeks.
To assist me in that consideration I have looked firstly at his criminal history which was placed before the Magistrate, and to say at the least it is an atrocious criminal history for someone so young. On my calculations, by the time he was dealt with by the Magistrate he had six previous convictions for assault occasioning bodily harm, three for common assault, two for obstruct or assault police officers, four for unlawful use of motor vehicle, three for burglary and/or break and enters, as well as offences for some minor drug matters, some wilful damage matters, and less serious offences of dishonesty.
It is also clear from the record that he had served some previous terms of imprisonment, although the situation is not completely clear. On the 30th of January 2009 he received a fully suspended sentence for a number of offences of dishonesty and violence. The sentence imposed was four months, but he was released the same day. He was back again on the 10th of June 2009, and again a fully suspended sentence of six months was imposed on this occasion in relation to an assault occasioning bodily harm.
He was dealt with again on the 1st February, and it is clear that here he would have served some time in custody, although the record if somewhat confusing. He pleaded guilty on that occasion to numerous offences, and it appears as though that a variety of sentences were imposed which were concurrent with the larger sentence being eight months. The parole release date was fixed at the 30th of April 2011, so he would have spent at least a couple of months in custody.
He was back again on the 18th of May 2011 and dealt with for another large number of offences, which included a number of assaults and some dishonesty offences. It seems, however, that these matters predated the earlier sentence in February and he effectively received six months' concurrent sentences on some and nine months on others. It was that nine month sentence that would have remained unsatisfied as at the time he was dealt with before the Magistrate as I can best interpret things. So, he had had one previous relatively short stint in gaol at least. Also, the presentence custody certificate shows that he spent two days in custody on this matter from the 5th of November 2011 to the 6th of November 2011, before then presumably serving out part of the sentences that were imposed in May.
I have considered the circumstances of the offending, and they were contained essentially in the victim impact material that was placed before the Magistrate as I read the record. Certainly, the assault occasioning bodily harm was a serious one where he punched into his partner, where he threatened to smash her with a bottle. She sustained injuries to her face, left cheek and jaw, and he also threw the bottle in her immediate vicinity which then shattered and she was showered with glass.
The burglary, which is probably the only other matter that I need consider, was serious in the sense that he went into someone's home in the middle of the night and stole things in circumstances where the woman involved, who was 38, was asleep in the house, and so too was her 14 year old son, and it seems that this had quite a significant impact upon the son.
For the purposes of assisting me in what was an appropriate overall sentence argument was raised about what would have been an appropriate sentence for the assault occasioning bodily harm if I dealt with it in isolation. It was submitted by counsel for the appellant that a sentence of up to 18 months would have been justified, and to this extent I was referred to an authority also relied upon by the respondent in these proceedings of R v. Roache [2009] QCA 206. Roache had a bad history of violence, and also his was a serious offence of assault occasioning bodily harm. If anything, probably marginally more serious.
There was also an analysis of other cases which gave me an indication as to the range. Certainly I would agree that it was probably appropriate to impose a sentence of up to 18 months on the assault occasioning bodily harm charge, and it is difficult to find any fault with the sentence of 16 months that was imposed. Similarly, in relation to the burglary, it seems to me that against his record, if that was dealt with in isolation, that an appropriate sentence would have been in the region of 12 months' imprisonment, along the lines of what the Magistrate imposed.
I don't think what the Magistrate did do was adopt the submissions that were made by the Police Prosecutor. He in fact suggested the overall sentence that she did impose, and also suggested the very breakup that was adopted, or something in that region. It seems to me, however, that when one looks at his age, even though his record is atrocious, that an effective sentence of 28 months against the background where he still had in excess of seven weeks to go is manifestly excessive.
I note from the decision in Baker, particularly the reference to the West Australian case, that one matter I can take into account in matters such as this is the fact that he was still serving the term of imprisonment. This is referred to in the extract that I spoke of earlier. He had only previously served relatively short periods of imprisonment, and to me it was something of a quantum leave to go from what was effectively a nine month sentence back in May of 2011 for offences which may well have been dealt with earlier had they been before the Court in February when the other matters were dealt to an effective sentence of 28 months plus the seven weeks or so that was outstanding under the other sentence for which parole was breached.
When Courts are confronted with an exercise such as this the overall sentence needs to be looked at closely, and it seems to me that even though the sentences individually were justified, the combined effect results in a sentence which is manifestly excessive. He still needs to be punished for his behaviour, and it seems to me that a much fairer approach would have been to adopt an effective sentence of two years with the added proviso that the remaining seven and a bit weeks of the sentence which he was serving be effectively cumulative. That, I believe, would reasonably affect all of the competing matters on sentence here. That would take into account his age, take into account his criminal history, and at the same time punish him adequately for the collective offending here.
I have also considered when he should be eligible for parole. It seems to me that he should serve slightly in excess of eight months from the period in which he was sentenced. That would give some allowance for the fact that he's been in gaol since November 2011, but it's very much his own fault that he has offended whilst on parole against a background where he seems to have had little regard for Court orders in the past. So, it seems to me that it would be appropriate to fix his parole release date at the end of September, namely the 30th of September 2012.
So, for the reasons I have advanced, I uphold the appeal. I order that he be sentenced to two years' imprisonment on the offence of assault occasioning bodily harm which clearly was the most serious of the offences for which he was dealt with. The remaining sentences can remain the same, but I order that they be served concurrently. I'm conscious of the fact that when a Court is faced with this principle of totality it can either arrive at the result through cumulative sentences, or an effective head sentence can be fixed on the more serious of the matters. That is the approach that I always find the most appealing, and that is why I've gone down that path in this case. I fix his parole eligibility date as the 30th of September 2012.