Butler v Queensland Police Service
[2012] QDC 46
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- Butler v Queensland Police Service[2012] QDC 46
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Butler v Queensland Police Service[2012] QDC 46
Butler v Queensland Police Service[2012] QDC 46
DISTRICT COURT OF QUEENSLAND
CITATION: | Butler v Queensland Police Service [2012] QDC 46 |
PARTIES: | Timothy Andrew Butler (Appellant) V QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO/S: | No 3 of 2011 |
DIVISION: | Appellate |
PROCEEDING: | Appeal against sentence |
ORIGINATING COURT: | Warwick Magistrates Court |
DELIVERED ON: | 10 February 2012 (ex tempore) |
DELIVERED AT: | Warwick |
HEARING DATE: | 10 February 2012 |
JUDGE: | Irwin DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant pleaded guilty to one count each of stealing, dangerous operation of a motor vehicle with prior conviction and burglary – where the appellant was sentenced to imprisonment for 2 years and 6 months on each offence to be served concurrently, but cumulative upon a sentence he was then serving and which expired on 17 March 2012, and a parole eligibility date was fixed on 11 January 2013 – where the sentence was for a series of offences committed within a short period of time on the same date – where the appellant was 20 years of age at all material times – where it was accepted that he had a “very serious” criminal history including 2 past terms of juvenile detention, a 3 year sentence for armed robbery, a sentence of imprisonment for 2 years and 6 months for burglary and a similar dangerous operation of a motor vehicle – where he was on parole for the previous burglary and dangerous operation of a motor vehicle charges at the time he committed the offences for which he was sentenced – where he had only been released from gaol approximately 2 months prior to his offending – where the sentences were cumulative on the outstanding balance to be served for the previous sentences for which parole was revoked – whether the sentence for stealing was excessive in its own terms and in comparison with the sentences imposed for the more serious offences – whether the combination of the sentences imposed offended the totality principle – whether the sentences imposed were manifestly excessive. Justices Act 1886 (Qld), s 222 (2), s 225 (2), s 225 (3) House v The King (1936) 55 CLR 499, applied Mill v The Queen (1988) 166 CLR 59, cited R v Baker [2011] QCA 104, applied R v Flynn [2010] QCA 254, applied R v Gillies; ex parte Attorney-General [2000] QCA 503, considered R v Hamilton [2009] QCA 391, applied R v Melano; ex parte Attorney-General [1995] 2 Qd R 186, applied Stubley v Western Australia [2010] WASCA 36, cited |
COUNSEL: | R. Davies for the appellant M. Aylward for the respondent |
SOLICITORS: | David Burns Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent |
HIS HONOUR: On 11 October 2011 the appellant was summarily convicted on his pleas of guilty to one count each of stealing; dangerous operation of a motor vehicle with prior conviction (dangerously operate or interfere with a vehicle, previous conviction against section); burglary (entering a dwelling and commit an indictable offence); holding a learner licence, fail to comply with learning requirements; and failure to stop a motor vehicle.
For each of the indictable offences he was sentenced to two years and six months' imprisonment to be served concurrently but cumulative upon the sentence he was then serving and which expired on 17 March 2012. A parole eligibility date was fixed at one third of the 30 month sentence, ie on 11 January 2013.
The learned Magistrate took this sentence into account so as to not further punish him in relation to the two more minor summary charges. He was disqualified as a result of the dangerous operation charge from holding or obtaining a driver licence for a period of three years from the date of sentence.
The appeal is brought under section 222(2) of the Justices Act 1886 which limits the appeal to manifest excessiveness of penalty. It follows from House v The King [1936] 55 CLR 499 at 502 that for an appellate court to interfere with the exercise of a sentencing discretion the appellant must demonstrate that the judicial officer acted upon a wrong principle, allowed extraneous or irrelevant material to guide or affect him or her, mistook the facts, or did not take into account some material consideration.
In R v. Melano; ex parte Attorney‑General [1995] 2 Qd R 186 at 189 the Court of Appeal held: "Unless the sentencing Judge erred in principle, either because an error is discernible or demonstrated by a manifest inadequacy or effectiveness, the sentence he or she has imposed will be proper."
The effect of the argument on behalf of the appellant is that there are discernible errors of principle by the sentencing Magistrate.
Firstly, it is argued that there was a failure to consider and apply the totality principle of sentencing. This is set out in the grounds of appeal in terms that, "The sentence is 'crushing' in its terms and devoid of any or any adequate and proper consideration and application of the sentencing principle of totality".
Further, it is argued that the correct sentencing procedure was not followed in imposing the same penalty for each of the indictable offences.
As I understand it, the argument is that the Magistrate fell into error by imposing concurrent sentences that did not individually reflect the criminal liability for each separate offence.
The second argument is accepted by the respondent, who agrees that the penalty of 30 months' imprisonment for the offence of stealing cannot be reconciled in terms of criminal liability when viewed in the context with the offence involving dangerous operation of a motor vehicle. The respondent concedes that this in itself would justify appellate intervention.
However, there is a difference between the respondent and the appellant as to how I should proceed in the event I decide that the Court has fallen into this or any other error.
The respondent submits in writing that the matter should be remitted to the Magistrates Court for rehearing pursuant to section 225(2) of the Justices Act. The appellant submits that I should rehear the sentence pursuant to section 225(3).
In the event that I resentence the appellant, there is a difference between the parties as to the sentence to be imposed as reflected in the written outlines of submission.
I note that notwithstanding the written outline Ms Aylward, who appears for the respondent, but who is not the author of the outline, did not oppose my proceeding to resentence the appellant in the proceedings which are before me.
Each of the offences occurred on or about 11 September 2011. The minor summary offences were part of the factual matrix of the dangerous operation offence. The appellant was the driver of the motor vehicle at the time of both this offence and the stealing offence, although the Magistrate mistakenly sentenced him on the basis that it was he, and not his co‑accused, who physically stole an $80 carton of alcohol from the Warwick Hotel drive‑through bottle shop.
The other person walked into the drive‑through and asked for the carton at about 2.30 p.m. He grabbed the carton and ran to a vehicle which the appellant drove away.
A short time later the vehicle was seen in a carpark in the vicinity of the hotel. The police attended as the vehicle was exiting the carpark. They activated their lights and siren and attempted to intercept it. The appellant accelerated the vehicle away from the police, who chose not to pursue it. The dangerous operation charge relates to the appellant's manner of driving when he attempted to evade the police.
The prosecution case about this appeared to rely heavily on the admissions made by the appellant about this after being apprehended by the police the following day. He told them he sped off because he had been involved in the alcohol theft and did not want to go back to gaol.
The appellant told the police he swerved towards an oncoming car and motorbike because he believed this would make them stop trying to pull him over. He believed his car was, "Halfway on the wrong side of the road" when the motorbike was approaching. He said he was, "Trying to drive crazy so the police would stop chasing him". He also admitted to driving unaccompanied on a learner's permit at the time.
Following this, in the early hours of the morning he committed the offence of burglary, the charge being described as entering a dwelling house and committing an indictable offence. This was committed in company with another person. He admitted to the police that they entered the garage and jacked up a sedan and removed the four wheels with the tyres. These were put in the back of the vehicle they were using. They were subsequently sold by the co‑accused.
The appellant's solicitor at the sentence mentioned that the appellant's co‑accused had previously been dealt with, at least in relation to the theft of the alcohol. It was accepted that no issues of parity arose.
The appellant was 20 years of age at the time of his offending and sentence. He is still 20 years of age.
It is accepted that the circumstances which aggravated his offending arose from his criminal history, which it is accepted is "very serious". In Mr Davies' outline of submissions this is summarised as including two past terms of juvenile detention, a three year sentence for armed robbery, a two and a half year sentence for burglary, a similar dangerous operation and other offences. He was on parole at the time. He had only been released from gaol approximately two months prior to this offending.
In addition to the burglary charge he had three previous convictions of entering a dwelling or premises with intent or committing an indictable offence. He also had seven previous convictions for stealing. The other offences included seven of unlawful use of a motor vehicle (including attempts), six of wilful damage (including by graffiti), three of assault occasioning bodily harm (including one of being armed or in company), two of assaulting or obstructing a police officer, three of possessing dangerous drugs and associated offences, and some street offences.
His traffic history, which commenced when he was 12 years of age, included three unlicensed driving offences committed as a child, and one of driving under the influence of liquor. He had been disqualified from holding or obtaining a driver licence until 29 October 2010.
The first five entries in his criminal history were for Childrens Court appearances.
In December 2005 for one offence each of stealing and wilful damage, when he was 14 and a half years of age the benefit of community service was extended to him.
In December 2006 at 15 years of age he was sentenced to a total of nine months' detention on one count each of entering a dwelling house and committing an indictable offence, entering premises and committing an indictable offence, assault occasioning bodily harm, stealing and possession of a knife in a public place or school.
In June 2007 as a 15 year old he again received the opportunity of community service for one count each of stealing, wilful damage by graffiti and possession of utensils and pipes that had been used in connection with a dangerous drug. In October of that year he was sentenced to six months' detention together with 12 months' probation on two counts of stealing and four counts of unlawful or attempted unlawful use of motor vehicles. He was also reprimanded on less serious charges, including possessing liquor as a minor.
His last Childrens Court appearance was in January 2008 for offences also committed when he was 16. On this occasion he was convicted and not further punished for one count each of stealing, wilful damage and obstructing police.
He was convicted of the armed robbery offence on his first District Court appearance. This was on 1 October 2008 when he was still 17 years of age, having committed the offence about a month after his 17th birthday. According to his solicitor's submissions to the sentencing Magistrate, this involved a bottle shop and he was armed with a bottle. In relation to this offence, and a charge of assault occasioning bodily harm whilst armed or in company, he received the sentence of three years' imprisonment referred to. This was suspended after serving nine months. This was combined with a three year probation order on one count of entering premises with intent and two counts of wilful damage. The order included a special condition concerning his undergoing medical, psychiatric and psychological treatment. These offences involved a breach of his previous probation order and his most recent community service order. These orders were revoked, a conviction was recorded, and no further action was taken in respect of them.
As an 18 year old he was fined for drug related offences. Significantly on 30 October 2009 he was convicted for a series of offences committed as an 18 year old including the burglary and the dangerous operation of a motor vehicle for each of which he was sentenced to two and a half years' imprisonment.
The only reference to the circumstances of this dangerous operation charge before the learned Magistrate was an observation by his solicitor that there was more persistence before the police ceased to be involved on that occasion.
On the same occasion he was concurrently sentenced to two years' imprisonment for three counts of unlawful use or attempted unlawful use of motor vehicles, 12 months for one count each of assault occasioning bodily harm and wilful damage, and six months for one count of stealing.
Because these offences were committed in breach of the partly suspended sentence and the probation order imposed on 1 October 2008 the breaches were found proven. He was ordered to serve the 27 month balance of the suspended sentence. The probation order was revoked and he was resentenced to 12 months' imprisonment for the enter premises with intent offence to be served concurrently with six months' imprisonment for each of the two charges of wilful damage.
A parole release date was fixed at 11 October 2010. He was also convicted and not further punished on a number of summary offences.
Shortly after his parole release he was convicted of two counts of possessing dangerous drugs for which he was sentenced to a cumulative sentence which totalled four months to be served concurrently with sentences of one month each for committing a public nuisance and assaulting or obstructing a police officer. He was given a parole eligibility date of 21 December 2010 in respect of this sentence.
It was accepted for the purpose of the sentence by the learned Magistrate and for this appeal that he was only released from prison on parole on 20 July 2011, approximately two months before he committed the offences the subject of the sentence and this appeal and that his full‑time release date for the sentences he was currently serving is 17 March 2012; i.e.approximately five months from the date upon which he was sentenced by the learned Magistrate.
The fact that he was released on parole on 20 July 2011 is confirmed by the presentence custody certificate which was read and tendered before me on this appeal. He was not eligible for presentence custody to be declared. This is obviously because his parole had been revoked as a result of him being charged with these offences and he was returned to custody on 12 September 2011 and his parole was automatically cancelled by the sentence on 11 October 2011. As a result he was required to serve the balance of the sentence for which he had been released on parole. In these circumstances there was an additional period of one month between his return to custody and sentence which he has served and which could not be declared on sentence.
The offences for which he was sentenced were committed in breach of parole on which he had been released in connection with his having been sentenced by the District Court on 30October 2009 and which included offences of burglary and dangerous operation of a motor vehicle which were similar to two of the offences for which he was being sentenced.
As MrDavies states in his written outline, in summary the total sentence imposed was 30 months. As this was made cumulative, it would commence on 18 March 2012. The sentence imposed by herHonour would therefore not be complete until 17 September 2014. It was a total effective sentence of 35 months. Further, the result of the accumulation of all the sentences which commenced from 30 October 2009 as identified by the presentence custody certificate was for a total of five years and two months. Because only a parole eligibility date was open to be fixed by her Honour, in setting it at effectively 10 months or the one‑third mark of the 30 month sentence the appellant would not be eligible for parole until 11 January 2013 according to the presentence custody certificate.
This sentence was greater than suggested by the Prosecutor which was that "a head sentence in the area of two years would be appropriate and to serve a third of that period". While accepting it was a matter for the learned Magistrate as to whether this sentence should be served concurrently or cumulatively with the balance of the 30October 2009 sentence, the Prosecutor said, "Probably it should be concurrent," which would leave him on a lengthy period of parole when he is eventually released.
It is this submission which the respondent submits ought to be adopted for the purposes of this appeal if I am to resentence the appellant. On the other hand, Mr Davies submits it would be appropriate to construct a sentence of 18 months for the three offences to be served concurrently with the sentence expiring on 17 March 2012. This would result in a full term release on 11 April 2013 with a parole eligibility date of 11 June 2012. However he concedes that the sentence proposed by the Prosecutor at first instance and on behalf of the respondent on this appeal is within the range of my sentencing discretion.
In support of his submission Mr Davies points to the following factors in favour of the appellant and which were relied upon by the appellant's solicitor in his submissions to the sentencing Court. First he relies on the appellant being only 20 years of age at the time of the offending, although it is accepted that the impact of his youth on penalty would be diminished by virtue of his very bad history. Further, the dangerous operation charge relied heavily on admissions made by the appellant as to the manner of the driving and this had to be taken into account. Next the dangerous operation was of a very short duration. Mr Davies notes that this was never explored at sentence, however the appellant's solicitor's submission that it was over a relatively short period of time was not challenged. I accept this. The submission that there was no suggestion that he had forced other people off the road was also not challenged. As the police chose not to pursue him when he accelerated away from them, I accept Mr Davies' submission that this was not a true police chase type case.
With reference to the burglary, it is submitted that it is at the lower end of the scale because it did not involve entry into the actual house or any kind of ransacking. It is argued that the true criminality would not have been much different had the car been parked in the driveway when the wheels were removed.
The points are made that he was educated to only Year Six, came from a broken family and was raised by his father. Further, it was said that alcohol had been a significant problem for him together with drug abuse. Reference was made to his enjoying some ongoing family support. It was submitted that he had entered timely pleas of guilty since he had first appeared before the Court on 13 September 2011. An adjournment had been required for his solicitor to apply for Legal Aid and to take further instructions. It had not been necessary for a brief of evidence to be prepared. It was submitted that he was unlikely to be released on parole given the past two breaches of parole orders.
The submission made to the Magistrate as to penalty was to not make the sentence crushing overall. Although the totality principle was not expressly referred to, I consider it was implicit in this submission. This is particularly so because it was suggested to her Honour that she look at the matter as a whole. It was submitted the Court consider a partially suspended sentence to provide for certainty of release in circumstances where the parole prospects of this young offender were very poor. In any event this was rejected (and Mr Davies makes no criticism of the Court for doing so). It was submitted the sentence should be 18 months to two years concurrent with the term then being served and at the lower end of this range, again because of the likelihood of the appellant not getting a parole release.
In sentencing the appellant her Honour found that there were only three factors in his favour. These were his age, his early plea of guilty and a recognition of the need for the inevitable sentence of imprisonment not to have a crushing effect on him, especially as she recognised that due to the revocation of his parole he would not be released until March 2012.
The aggravating factors relied upon by the Magistrate were the serious nature of the offences, her finding as to the appellant's need to engage in thrill seeking and high risk behaviour, his criminal history, the need to protect the community, the lack of restitution and the lack of evidence of any positive change for the future.
As I have indicated, she wrongly stated that he had gone into the bottle shop and physically removed the alcohol, however I do not consider that in the circumstances his role as the getaway driver was any less culpable. She described the dangerous operation charge as involving brazen behaviour. With reference to her finding about the appellant's thrill seeking and high risk behaviour, her Honour said:
"It seems to me that your behaviour suggests that you are unable to curb some, I wouldn't put it as high as an addiction, but something that you have within yourself that gives you a thrill to seek out and engage in high risk behaviours."
Her Honour then proceeded to say:
"So sentencing you in these circumstances cannot be about learning through penalty not to engage in criminal behaviour given the nature of the offending, and I will come to it, but given your criminal history for similar offending the more pressing need to my mind is a sentence that factors in protection of the community from you rather than a rehabilitative type sentence."
She concluded that his criminal history alone supported a sentence that is cumulative to his current term of imprisonment. This would appear to be with particular reference to his commission of the offences while on parole for similar offending involving dishonesty and dangerous operation of a motor vehicle. In finding that there was no evidence of any positive change for the future, her Honour rejected the submissions that his relationship with a girlfriend who was present in Court would have this effect. This was because it was not a relationship tested by time or otherwise and she considered that the relationship was all the more fragile due to her being pregnant to someone else. She considered that no restitution was possible due to his being unemployed for a long period and that in any event he was going to be imprisoned on his revoked parole.
Her Honour concluded:
"Taking all of those things into account and going back to what I started with, namely trying to devise a sentence that is not crushing, nevertheless you are convicted and sentenced to a term of imprisonment of 30 months‑ two and a half years‑ for stealing, dangerous operation of a motor vehicle and entering the garage and committing that offence of stealing the tyres and that is to be cumulative on the current sentence you are serving. For that reason the parole eligibility date will be set and what I have done is made it by factoring in that you will commence this sentence in March 2010, set at one‑third, that's 10 months, and I will use the 11th as that date so you are parole eligible on the 11th of January 2013."
I agree with the submission of Mr Davies on the appellant's behalf, and which was accepted by the respondent, that the learned sentencing Magistrate fell into error by imposing concurrent sentences that do not individually reflect the criminal liability for each separate offence.
In conceding that this in itself would justify appellate intervention, the respondent refers to R v. Flynn [2010] QCA 254 from [104]. In that case the appellant was sentenced to concurrent terms of imprisonment of 15 years on each of two counts of maintaining a sexual relationship and on each of three counts of rape, 10 years on one count each of indecent treatment and procuring a sexual act by coercion by administering a drug and eight years on two counts of taking an indecent photograph. The appellant appealed only against the eight year terms of imprisonment on the ground that the sentences were manifestly excessive. Although because these sentences were ordered to be served concurrently with the other much longer terms of imprisonment, any reduction in their length would not affect the overall sentence, it was successfully argued that the sentences were manifestly excessive and the sentences were varied by substituting sentences of four years and three years' imprisonment.
Fraser JA (with whom Holmes JA and Mullins J agreed) concluded that the sentence of eight years' imprisonment for that single offence seemed excessive both in its own terms and in comparison with the proper sentences imposed for the more serious offences. The respondent had appropriately conceded that the sentence on one of the counts was difficult to support, but argued that a more severe sentence was appropriate for the other count.
Fraser JA observed:
"The trial Judge's sentencing remarks do not explain the reasons for the severity of these sentences, presumably because they have no particular bearing on the effective period of imprisonment imposed upon the appellant."
In the present case the Magistrate's sentencing remarks also do not explain the severity of these sentences. She simply described them generally as "very serious" offences. As Mr Davies correctly submits, this manner of sentencing makes it impossible to gauge how each offence has been assessed and whether the correct punishment has been imposed. Further, a sentence of two and a half years' imprisonment for the stealing offence in the circumstances of this case seems excessive both in its own terms and in comparison with the sentences imposed for the more serious offences. In particular, even taking into account his previous convictions for stealing, a sentence of two and a half years' imprisonment seems excessive in the circumstances of this case which include that the maximum penalty for the offence is five years' imprisonment and the maximum penalty available to the Court was three years' imprisonment. Even assuming that the penalty of 30 months' imprisonment was appropriate for either of the more serious offences of dangerous operation of a motor vehicle and burglary, the same term of imprisonment for the stealing cannot be reconciled with these penalties.
As I have indicated, the respondent has submitted that if I rehear the sentence the Prosecutor's submissions at first instance ought to be adopted. This submission was that a head sentence in the area of two years would be appropriate with one‑third of that period to be served. It was said by the Prosecutor that it should probably be served concurrently with the balance of the 30 October 2009 sentence. The respondent does not depart from this submission before me. Accepting for the purposes of argument that it would be appropriate to construct a sentence which achieves this result, it can readily be appreciated that a sentence of two and a half years' imprisonment for stealing is excessive. The same result would follow if the sentence was structured to achieve a concurrent sentence of 18 months' imprisonment as submitted by Mr Davies.
For these reasons I find that the appellant has demonstrated a discernible error involving the learned sentencing Magistrate acting upon a wrong principle, justifying appellate intervention in relation to the sentence imposed.
I also consider that the appellant has demonstrated a further discernible error of this nature by the Magistrate failing to consider and apply the totality principle of sentencing. As such, herHonour not only acted on a wrong principle, but failed to take into account a material consideration. This is the position as submitted on behalf of the respondent. Rv.Baker [2011] QCA 104 is referred to as an example. In that case Atkinson J (with whom Margaret McMurdo P and Peter Lyons J agreed) conveniently cites leading authorities about the effect of the totality principle and its application in practice.
Atkinson J said at [36] that in Mill v. The Queen (1988) 166 CLR 59 at 62‑63, the High Court approved the following expression of the totality principle taken from the publication by Thomas on Principles of Sentencing (Second Edition, 1979). The passage quoted by Atkinson J is as follows:
"The effect of the totality principle is to require a sentencer who has passed a series of sentences each properly calculated in relation to the offence for which it is 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'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the Court to take a last look at the total just to see whether it looks wrong'; 'when...cases of multiplicity of offences come before the Court, the Court must not content itself by doing the arithmetic and passing a sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.'"
Her Honour also said that the Court of Appeal in Western Australia in Stubley v. Western Australia [2010] WASCA 36 [410] described the totality principle as comprising two aspects. This aspect of the Court's decision is referred to by her Honour at [39] as follows:
"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 referable 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."
In that case the sentencing Judge had activated the balance of imprisonment outstanding of a suspended sentence and ordered that this be served cumulatively upon the sentence of imprisonment imposed for an offence committed in breach of the suspended sentence.
In allowing the appeal against the sentence imposed, Atkinson J observed that after imposing both sentences the sentencing Judge did not consider whether the combined sentence offended the totality principle. He did not, in accordance with the requirements in Mill, review the aggregate sentence and consider whether the total was just and appropriate. It was held that the failure to explicitly consider the aggregate sentence in order to determine whether the total sentence was just and appropriate bespoke an error in the exercise of the sentencing discretion.
In R v. Hamilton [2009] QCA 391 McMurdo P said at [21]:
"Applying the totality principle requires that to ensure the overall effect of the cumulative sentence is not crushing the sentence must be appropriately moderated."
Accordingly, the learned sentencing Magistrate, in imposing a sentence of 30 months' imprisonment cumulative on the sentence which the appellant was then serving and which did not expire until 17 March 2012, with the result that the aggregate sentence was approximately 35 months and, as I have also indicated, involved a period of imprisonment of five years and two months from the sentence imposed on 30 October 2009, was required to review this and determine whether the aggregate sentence was just and appropriate. She was required to look at the totality of the criminal behaviour and ask herself, what was the appropriate sentence for all the offences. She did not do so.
Although her Honour recognised that the sentence of imprisonment should not be crushing, as appears from Stubley, this is only one aspect of the totality principle. The other aspect is that the total effective sentence imposed on the offender must bear a proper relationship to the overall criminality (including those offences in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all the relevant circumstances, including those referable to the offender personally. As I have already observed, it is this aspect of the principle that her Honour did not apply.
In these circumstances it also cannot be said that her Honour appropriately moderated the sentence to ensure that the overall cumulative effect was not crushing, given that despite the respondent's serious criminal record he was nonetheless still only 20 years of age. As such, it should not be concluded that there was no reasonable expectation that he would live a useful life after release from custody. By recognising that the sentence should not be crushing her Honour must be taken to have accepted this.
As in Baker, the failure to explicitly consider the aggregate sentence in order to determine whether the total sentence was just and appropriate evidenced an error in the exercise of the sentencing discretion.
Accordingly, I have concluded that I should re‑exercise the sentencing discretion. While I accept that section 225(2) of the Justices Act invests me with a discretion to remit the matter to the Magistrates Court for rehearing, section 225(3) enables me to exercise any power that could have been exercised by the Magistrate in the event I set aside or vary the appealed order.
As I have all the information before me which was before the sentencing Magistrate, and the benefit of submissions from both parties on the appropriate manner to exercise the sentencing discretion, I consider that it would be counterproductive and inefficient for me to remit the matter for this purpose. As I have indicated, Ms Aylward, who appears for the respondent, does not argue against my adopting this approach.
As I have indicated, because the total sentence imposed of 30 months' imprisonment was made cumulative so as to commence on 18 March 2012, it would not be complete until 17 September 2014. I note that the pre‑sentence custody certificate identifies the end date of the sentence as the next day, 18 September 2014. This is obviously the way in which Queensland Corrective Services calculate the full term of the sentence.
As I have already said, it was a total effective sentence of approximately 35 months. The parole eligibility date was, according to the pre‑sentence custody certificate, 11 January 2013. However, as submitted by Mr Davies, there would be a real likelihood that he would not receive early release on parole, in particular because from experience it was likely to require him to demonstrate his interest towards rehabilitation by taking courses available within the prison system before he would be considered for release on parole. This would be expected to take some period of time based on what the Court can glean from its general experience in sentencing offenders.
Further, because the sentence was cumulative on the balance of the sentence of 30 October 2009 which he was serving on the revocation of his parole, the effect of it was that the total effective sentence for the offences for which he was dealt with by her Honour and those earlier offences was 62 months or five years and two months, according to the pre‑sentence custody certificate. This additional period of two months would also seem to reflect the cumulative sentences imposed on 22 November 2011.
This total sentence of 62 months reflects the two counts each of dangerous operation of a motor vehicle and burglary, three counts of unlawful or attempted unlawful use of a motor vehicle, and one count each of assault occasioning bodily harm, wilful damage and stealing. When looked at in this way it is also apparent that the effect of the sentence imposed by her Honour was manifestly excessive for a 20 year old, even with his criminal history.
The respondent's contention that the appropriate resentence is to adopt the submission by the prosecutor at first instance involves a concession that the original sentence was manifestly excessive.
As indicated, Mr Davies' submission is that it would be appropriate to construct a sentence of 18 months for the three offences to be served concurrently with the sentence expiring on 17 March 2012. This is on the basis that the 18 month sentence would be achieved through the appropriate moderation of sentence by applying the totality principle.
In his submission each of the offences should first be considered in isolation. The stealing could not realistically be categorised as serious and may have warranted three months' imprisonment. The dangerous operation was serious and may have warranted 12 months' imprisonment. The burglary was at the lower end justifying 6‑9 months' imprisonment. He submits that this total of 21‑24 months, after applying the totality principle could be reduced to 18 months, which would be particularly appropriate given that the conduct occurred over one day only.
He then submits that because it would be very unlikely that the appellant would receive an early parole release, to reflect the whole circumstances, concurrency would be appropriate with a parole eligibility date of 11 June 2012.
Accepting Mr Davies' approach, I would nonetheless consider, that considered in isolation, the burglary was sufficiently serious to warrant a sentence of 12 months' imprisonment to properly reflect its criminality. Although it did not involve entry into an actual house or any kind of ransacking, it went further than simply removing the wheel of a vehicle parked in a driveway.
Despite the maximum penalty available to the Magistrate being three years' imprisonment, the offence itself carries a maximum penalty of life imprisonment. It was also relevant that the appellant had three previous convictions of entering a dwelling or premises with intent or committing an indictable offence in addition to the conviction for burglary for which he was on parole at the time he committed the present offences. He also had an unenviable record for other offences of dishonesty.
Again, applying the structure of the sentence otherwise suggested by Mr Davies, if these individual sentences were to be served cumulatively, this would be a total of 27 months' imprisonment which I accept must be moderated in accordance with the totality principle.
In my view, the first step in this process is to reduce the total sentence to two years. This is in accordance with the submission on behalf of the respondent. Mr Davies does not argue that this approach is not within the exercise of my sentencing discretion.
Further, as these offences were not greatly separated in time, it would be more routine to fix a sentence appropriate to the total criminality and impose it for the worst of the offences while imposing concurrent penalties for the other offences: See R v. Gillies; ex parte Attorney‑General [2000] QCA 503 per Pincus JA (with whom Thomas JA agreed) at [16].
Although for the reasons I have given I would not randomly impose a sentence indiscriminately in the circumstances of this case to the stealing charge to reflect the total criminality. It is to be noted that MacPherson JA said at [19]: "I am firmly of the view that it has long been the practice when confronted by a series of offences of the same or a similar kind for Judges to impose a sentence on one count chosen sometimes at random that reflects the totality of the criminal conduct disclosed by all of the offending considered in combination and to impose relatively nominal sentences in respect of the other offences in the series."
Further, the approach I adopt is consistent with that expressed by the later decision of Baker.
In this case given the potential for serious personal injury and property damage to other users of the roadway inherent in the charge of dangerous operation of a motor vehicle, I would fix a sentence appropriate to the total criminality on that charge, which sentence has been moderated in accordance with the totality principle. This is a sentence of two years' imprisonment with concurrent sentences of 12 months' imprisonment for the charge of burglary and three months' imprisonment on the charge of stealing.
I would further moderate that penalty by ordering that it be served concurrently with the sentence expiring on 17 March 2012, which the prosecutor had submitted to the sentencing Magistrate was probably the approach which could be taken. This is also the approach adopted by the respondent on this appeal and it is also consistent with MrDavies' submission.
The result would be a full term date for the sentence of 10 October 2013 (or possibly 11 or 12 October 2013 depending on how this calculation is made by the Corrective Service authorities) as opposed to 18 September 2014.
The effective sentence when the period of approximately five months' imprisonment with which the sentence would be concurrent is taken into account, would then be approximately 19 months. The combination of this sentence and the 30 October 2009 sentence would be approximately 49 months or approximately four years. An additional two months may be required to be added to this figure in accordance with the calculations in the pre‑sentence custody certificate.
As I have said, this approach is in accordance with the respondent's submission which Mr Davies accepts is open to me to adopt in the exercise of my sentencing discretion.
I would also adopt the prosecution submission also advanced by the respondent on this appeal that I fix a parole eligibility date at the one third mark of the two year sentence. This was also the approach taken by the sentencing Magistrate to fixing a parole eligibility date in respect of the sentence that she imposed. That is that the parole eligibility date would commence eight months from 11 October 2011. I fix this as 10 June 2012. This is in accordance with both the submissions of the respondent and Mr Davies.
I consider that the total sentence which results is just and appropriate, and given the appellant's age the overall effect is not crushing. In coming to this conclusion I consider it also gives appropriate weight to his timely pleas of guilty, his cooperation with the administration of justice through his admissions to the police and to the real likelihood that he will not, in fact, receive an early parole release on the eligibility date that I set, given that it can be expected that he will have to take longer than this to demonstrate to the prison authorities that he is a candidate for parole release. This approach also takes into account the month he served in custody which cannot be declared as time already served under the sentence.
I make it clear that the imprisonment to which I have resentenced the appellant will commence from 11 October 2011, the date of the initial sentence.
Accordingly, the order of the Court will be:
- Appeal against sentence allowed.
- The sentence imposed at first instance for the offence of dangerously operate or interfere with vehicle, previous conviction against section, is set aside and instead a sentence of two years' imprisonment is imposed.
- The sentence imposed at first instance for the offence of stealing is set aside and instead a sentence of three months' imprisonment is imposed.
- The sentence imposed at first instance for the offence of enter a dwelling house and commit an indictable offence is set aside and instead a sentence of 12 months' imprisonment is imposed.
- The sentences commence from 11 October 2011 and are to be served concurrently with each other and any sentence the appellant is currently serving.
- The date the appellant is eligible for parole is fixed at 10 June 2012.