Moore v Commissioner of Police
[2013] QDC 59
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- Moore v Commissioner of Police[2013] QDC 59
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Moore v Commissioner of Police[2013] QDC 59
Moore v Commissioner of Police[2013] QDC 59
DISTRICT COURT OF QUEENSLAND
CITATION: | Moore v Commissioner of Police [2013] QDC 59 |
PARTIES: | HAYLEY JEAN MOORE (Appellant) And COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | D157 of 2012 |
DIVISION: | Appellate |
PROCEEDING: | Section 222 Appeal |
ORIGINATING COURT: | Caboolture Magistrates Court |
DELIVERED ON: | 28 March 2013 |
DELIVERED AT: | Maroochydore District Court |
HEARING DATE: | 15 March 2013 |
JUDGE: | Long SC DCJ |
ORDER: | The order made by the sentencing Magistrate on the 6 August 2012 be varied, only by substituting a period of four months as the suspended term of imprisonment |
CATCHWORDS: | CRIMINAL LAW- APPEAL FROM MAGISTRATES COURT- GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant was convicted and sentenced to a term of six months imprisonment, wholly suspended for a period of two years, in relation to an offence of assaulting a police officer under s 790(1) PPRA– where appellant submitted Magistrate erred by failing to make proper allowance for the plea of guilty – where the term of imprisonment imposed was the maximum term allowed - whether sentence fell outside appropriate range - whether the sentence was excessive Criminal Code Act 1899 (Qld) s 340(1)(c), s 552A, s 552H Justices Act 1886 (Qld) s 222(2)(c) Penalties and Sentences Act 1992 (Qld) s 13 Police Powers and Responsibilities Act 2000 (Qld) s 790(1) House v R (1936) 55 CLR 499 at 507 Markarian v R (2005) 228 CLR 357 R v Corrigan [1994] 2 Qd R 415 at 416 R v Chivers [1993] 1 Qd R 432 at 436-7 |
COUNSEL: | Mr A MacAdam for the appellant Ms D Palmer for the respondent |
SOLICITORS: | Towns-Wilson Lawyers for the appellant Office of the Director of Public Prosecutions for the respondent |
The appeal
- [1]On 30 August 2012 and on her own guilty plea, the appellant was convicted and sentenced to a term of six months imprisonment, wholly suspended for a period of two years, in relation to an offence of assaulting a police officer. The charge was brought pursuant to s 790(1) of the Police Powers and Responsibilities Act 2000.
- [2]The offence had occurred on 28 March 2012, when the appellant was being processed at the Maroochydore watch house on “a return to prison warrant”.[1]
- [3]The offence was directly constituted by the appellants actions in reaching for and digging her fingernails into the right wrist of the female arresting police officer, causing immediate pain and leaving scratches, including several places where the skin was broken. That occurred in circumstances where the appellant had become difficult with police officers during a search of her, upon being admitted to the watch house. She appeared to become angry, when there was to a refusal to accede to her demand of providing her with a new tracksuit to wear. As she was escorted from the room in which she was searched, she began walking down the corridor to the cells and she asked the arresting officer if she wanted to finish searching her and “feel her boobs.” As she walked down towards the cells, she removed the singlet that she was wearing to reveal her naked breasts. Because there were male prisoners in the cells further down the corridor, police intervened to stop the appellant and attempted to place her in the nearest cell. The appellant resisted this. At one point she turned and raised her clenched fist “as if to fight police.” Another female police officer took hold of her right arm and she was then restrained by police action and placed on the floor of the padded cell. It was at that time that the assault which constituted the offence occurred. Immediately after committing the offence the defendant yelled “Hep C, Hep C. Remember you’re lucky I didn’t punch you.”[2]
- [4]The appellant appeals against the sentence imposed and on the hearing of that appeal, it was common ground between the parties that the function of the Court was to determine whether the sentencing function of the Magistrate had miscarried, by applying the principles of House v R.[3] That is, that the appellant was required to demonstrate that the sentence imposed had resulted from some error of fact or law and was accordingly, excessive.[4]
- [5]The appellant contended that:
- The Magistrate had erred in sentencing the appellant to the maximum period of imprisonment available under s 790(1) of the PPRA, when the circumstances of the offence were clearly not within the worst category of an offence under that section[5] or, at least, the Magistrate appears to have been incorrectly influenced in this regard, by the maximum penalty that may have applied if the appellant had been charged instead with an indictable offence;
- The Magistrate failed to properly comply with s 13 of the Penalties and Sentences Act (“PSA”), in either taking the appellants guilty plea into account by way of reduction of her sentence or to explain the reasons why that did not occur in accordance with s 13(4);
- The sentence imposed was not proportionate to the offence committed.
- [6]At the time that the appellant came before the Magistrate’s Court, she had a lengthy prior criminal history. Whilst it can be correctly observed that, that history contains only entries for appearances before Magistrates and often for offences at the minor end of the spectrum, it must also be necessarily observed that there are many such entries dating back to November 2008, including prior entries for assaults, and offences of assaulting or obstructing police pursuant to s 790(1) of the PPRA and that there were prior instances of breaches of community based orders.
- [7]Prior to her appearance on this matter, the appellant had appeared in the Children’s Court at Southport on 30 November 2010 in respect of the breach of a probation order imposed on 19 June 2009. On that occasion she was re-sentenced for the original offending and sentenced, as an adult to 12 months imprisonment, with her parole release date being fixed at 30 November 2010.
- [8]Subsequently and on 11 March 2011, she appeared in the Southport Magistrates Court in respect of five instances of breaching previously imposed probation orders, eight instances of breach of bail and various offences committed between 9 April 2010 and 6 December 2010, including instances of offences under s 790(1) of the PPRA and an attempted serious assault. The net result of this was the imposition of cumulative short periods of imprisonment, resulting in a total period of imprisonment (including the sentence imposed on 30 November 2010) of two years and one month, with a parole eligibility date set at 11 December 2011.[6]
- [9]Some explanation for this history may be found in the submissions made on behalf of the appellant and noted by the sentencing Magistrate. The appellant is now aged 21 years having been born on 10 September 1991. She was 17 years old when her criminal history commenced and when she committed this offence and when she came to be sentenced for it, she was aged 20. Her life history has been chaotic and characterised by the murder of her father at the age of 5 and her history of being placed in foster care with various unsatisfactory outcomes thereafter. At about age 10 she came to Queensland with her mother and her mother’s then boyfriend, and with her brother but they were mistreated, with constant police attention at the household and the end result of the children being taken away from their mother. Once again the appellant was taken into foster care. She left a foster home when aged 14 and has lived on the streets since then, with an inevitable descention into drug abuse. It was said that she had offended in order to survive and had been particularly affected by her complaint of being raped by the older brother of her best friend, at a party and her unsuccessful attempts to have that matter prosecuted. It was also asserted by the defence solicitor that “she has some psychiatric condition… and she said that she didn’t have – she wasn’t on her tablets at that time. She was transported from Caboolture.”[7]
- [10]On the basis of a letter from Corrective Services,[8] it was understood that after being sentenced on 11 March 2011 and then having a parole eligibility date fixed at 11 December 2011, the appellant was;
- (a)released on parole on 6 March 2012;
- (b)the subject of an indefinite parole suspension order, made on 26 March 2012; and
- (c)then in custody, with a full time release date of 27 September 2012.
Discussion
- [11]It is not entirely clear that although six months imprisonment is the maximum term of imprisonment allowed under s 790(1) of the PPRA, that the Magistrate has here imposed the maximum sentence as that concept is discussed in cases such as R v Colless, as being reserved for the worst category of offending of it’s type. Further it does not appear or that the Magistrate has failed to comply with s 13 of the PSA.
- [12]The respondent points out that in R v Corrigan,[9] it was recognised that an “ameliorating accompanying order” such as “an order for suspension of the whole or part of a term of imprisonment,” may be an appropriate way of reducing a sentence in accordance with s 13 of the PSA. Further, the respondent contends that the making of an order wholly suspending the term imposed here (and contended to be a generous result) has the effect that the maximum penalty was not imposed.
- [13]Effectively the respondent contends that there should be an approach of viewing the sentence in an entire sense and it may be observed that such a view accords with the approach of the High Court in Markarian v R.[10]
- [14]However, and as the appellant pointed out and not withstanding that the result in R v Corrigan critically depended upon a conclusion that a more significant reduction in sentence should have been made because of his guilty pleas, the majority observed:[11]
“Even having in mind the extreme seriousness of the present circumstances, the guilty plea should have called for some reduction from the maximum term of years effectively imposed. The slight improvement in release prospects constituted by the recommendation after four years was not enough.”
In that case, an effective period of 10 years imprisonment with a recommendation for parole after serving 4 years was reduced to 8 years and the recommendation for parole remained at 4 years, notwithstanding that merely equated with the statutory entitlement.
- [15]It should be noted that as pointed out in the separate judgment of Davies JA, Corrigan’s sentence had been imposed in respect of 28 counts of misappropriation of property, with a further 75 such offences being taken into account, with the resultant “theft of approximately 1.2 million dollars.” Whilst 24 of the indicted offences involved a circumstance of aggravation and therefore a maximum penalty of 10 years imprisonment, that head sentence was achieved by making cumulative sentences of 6 years (for those offences with the circumstance of aggravation) and 4 years (imposed for the other offences).
- [16]An obvious difficulty with discernment of the worst category of case for which the maximum penalty provided under s 790(1) of the PPRA might be reserved, is that the same conduct could also be charged as an indictable offence, being a serious assault, in accordance with s 340(1)(c) of the Criminal Code and where the maximum penalty is 7 years imprisonment. Notwithstanding some variation in expression, the elements of each offence appear to be the same.[12] Although there are also some other possible alternatives,[13] they do not provide direct analogues as to the elements involved. A charge brought pursuant to s 340(1)(c) of the Criminal Code, can also be dealt with summarily, at prosecution election.[14] When that occurs, the applicable maximum penalty is generally reduced to 3 years imprisonment.[15]
- [17]The Magistrate appears to have been cognisant of the more serious analogue offence. In the course of submissions, the prosecutor drew attention to it, when he submitted:
“Certainly this would be at the higher end of this – of this particular charge. This particular charge does provide for imprisonment and police have utilised some discretion and certainly not charged her with serious assault of police, which … upon the facts would have been quite within range. But actually I’ve considered this is at the higher end. I want to ask your Honour to consider the criminal history of the defendant which is quite significant in the circumstances. Upon my respectful submission, your Honour would consider a term of imprisonment.”[16]
Subsequently and in the course of the submissions of the appellant’s solicitor, the Magistrate observed:
“As the police prosecutor said, it’s fortunate that the police have taken – charging her only under the Police Powers and Responsibilities Act…. They could have quite easily charged her…. under the – as a serious assault under the Criminal Code for which she wouldn’t have got a suspended sentence, I guess.”[17]
In his sentencing remarks, the Magistrate said (in part):
“Now taking into account the totality of the matters and luckily for you, as the police prosecutor has pointed out and I pointed out to Mr Marais, that the police have chosen to only charge you as an assault under the Police Powers and Responsibilities Act which of course, none the less, the legislature has saw fit, quite rightly in my view, as part of a punishment for anyone like you to be sentenced to a term of imprisonment.”[18]
- [18]The appellant submits that this evidences error on the part of the Magistrate. However, I am not satisfied that is so. Whilst it would clearly be wrong for a Magistrate to sentence upon a basis that an offender had effectively committed a more serious offence than the one being dealt with,[19] that is not the implication of the Magistrate’s observations.
- [19]The arguments put forward on this appeal by the appellant exemplify the problem that confronted the Magistrate. The maximum penalty allowed for an offence against s 790(1) of the PPRA is relatively low[20] and when this is considered in the context of the indictable offence provided in s 340(1)(c) of the Criminal Code, it may be discerned that there is a legislative intent that the summary offence is provided as an alternative to proceeding on the more serious charge, in instances of this type of offending that might occur at the less serious end of the spectrum. However the circumstances which will actually come before a Magistrate’s Court in respect of charges of this type will entirely depend upon the exercise of prosecutorial discretion.[21]
- [20]These considerations make it exceedingly difficult to discern whether or not a case is in the worst category of offending pursuant to s 790(1).[22] It simply does not follow that all offending charged under this section must be notionally scaled by reference to the range of circumstances that could constitute an offence brought under s 340(1)(c) of the Criminal Code and therefore conceivably able to be also charged under s 790.
- [21]Whilst the maximum penalty provided for a particular offence, is a relevant and important consideration in sentencing,[23] the point at which one may approach and reach that mark will obviously occur more quickly in the case of lower maxima. This will be particularly so in the case of recidivist offending. However, it must be recognised that the principle that the maximum penalty is intended to be applied only to cases within the worst category of cases for which the penalty is prescribed, is necessarily directed at the imposition of a head sentence. In respect of any such sentence, there will, in the absence of any judicial order, be a statutory entitlement for parole eligibility[24] and the point at which that eligibility is reached may, pursuant to judicial order, be either before or after the statutory entitlement. Suspension of a term of imprisonment may also serve to define a limited period of immediate actual incarceration.
- [22]
“This does not mean that one must envisage the worst possible example of the crime in order to impose the maximum penalty, but rather that it must be seen as qualifying for the worst category of that kind: Veen [2 at 478]. It may be difficult, if not impossible, to envisage ‘categories’ of cases of attempted murder and I would interpret this statement as requiring that the circumstances reveal conduct towards the top end of the sale when one is looking at the range from the least serious to the most serious examples of such offences.”
In the same case, De Jersey J noted that the “worst category test” is both subjective and artificial because of inherent precision.[27]
Conclusions
- [23]Whilst there is an obvious conceptual distinction between a term of imprisonment requiring the serving of at least some part of that term in actual custody and the imposition of a term which is wholly suspended, it must be noted that it is now also possible to achieve a similar outcome of avoidance of immediate incarceration, by fixing an immediate parole release date. However, a significant difference is that in the case of a wholly suspended term, the potential liability throughout the operational period remains as to the whole term.[28] Further and whilst it need not inexorably follow that for any breach of the suspended sentence,[29] an offender will be required to serve the entire suspended term, that is the prima facie position.[30]
- [24]In this case, the sentencing Magistrate correctly appreciated that there were serious aspects to the appellant’s offending. This was not only because of the inherent defiance and contempt for lawful authority demonstrated by a recidivist offender but also because that defiance was in full context, not transient. Further, and although the particular act constituting the offence was brief and not one involving significant application of force or risk of injury, it was in the nature of a directed act at the particular officer and one calculated to cause discomfort if not pain to that officer. Notwithstanding that there was no imparting of bodily fluid, such discomfort may reasonably have extended to concern as to communicable disease, or at least infection and this situation was exacerbated by the words of the appellant, even if intended only as a warning. In fact she did carry Hepatitis C.[31]
- [25]For the reasons that have been set out, I am not satisfied that the Magistrate did not comply with s 13 of the Penalties and Sentences Act.
- [26]However, the fact remains that the maximum term of imprisonment was imposed and there is nothing in the record to indicate that the principles relating to the imposition of such a term of imprisonment were adverted to and/or considered by the Magistrate. The prosecution submissions[32] did not equate with an invitation to view this offending as being within the worst category and therefore deserving of the maximum term of imprisonment.
- [27]However it is well recognised that:
- (a)Any sentence that is imposed upon an offender must be proportionate to the circumstances of the offending and the offender;[33] and
- (b)That a proportionate sentence will be one that may fall within an appropriate range of sentence.[34]
- [28]Because in any given instance there may be a range of appropriate sentences, it follows that if the factors favourable to an offender are to be recognised by complete suspension of a term of imprisonment, that term may not otherwise be reduced, as relevant factors might otherwise warrant if it were to be imposed as imprisonment having some immediate effect.
- [29]On the other hand a proportionate response also demands that regard be had to the effect of a wholly suspended term of imprisonment and therefore also to the prospect of the term being later served, should the order be breached.[35] Sight should also not be lost of the fact that an obvious expectation of the imposition of a wholly suspended sentence, is that it not be breached.
- [30]For the appellant here; it was contended (with some justification) that such prospect was real and apparent. Further and as recognised by the Magistrate, it was expected that the appellant would not be released from custody until the full time release date under her existing sentences, on 27 September 2012.[36] By then, she would have served something in excess of 21 months in custody.[37]
- [31]An obvious and appropriate intent of the order made with an operational period of two years, was to act as a personal deterrent to the appellant through that period. However I am satisfied, in all of the circumstances, that the imposition of the maximum term allowed, being 6 months imprisonment was not a proportionate response to this difficult matter, notwithstanding the suspension of that entire term of imprisonment. Therefore the sentence is properly regarded as excessive.
- [32]Accordingly, the appeal is allowed and it will be ordered that the order made by the sentencing Magistrate on the 6August 2012 be varied, only by substituting a period of four months as the suspended term of imprisonment.
Footnotes
[1]T 1-8 Line 5
[2]T 1-3 Lines 15-55
[3](1936) 55 CLR 499 at 507
[4]Excessiveness of penalty is the touchstone specifically referred to in s 222(2)(c) of the Justices Act 1886
[5]See R v Colless [2011] 2 Qd R 421 at [31] where there is reference to Ibles v R 1987 163 CLR 447, at 451-2
[6]Although the basis of this is not apparent, 94 days pre-sentence custody (between 6 December 2010 and 11 March 2011) was declared as time already served in respect of those sentences.
[7]T 1-5 LBO – 1-6L20
[8]Dated 3 July 2012 and which was provided to the sentencing Magistrate and is contained on the Magistrates Court file but was not tendered or marked in the sentencing proceedings
[9][1994] 2 QD 415 at 416
[10](2006) 228 CLR 357
[11]At p 416
[12]That is that there appears to be no effective difference between a police officer acting in execution of duty and performing such duty.
[13]Such as charges of common assault (s 335 of the Criminal Code) and assault occasioning bodily harm (s 339(1) of the Criminal Code).
[14]See chapter 58A of the Criminal Code; s 552A
[15]S 552H Criminal Code, leaving aside some specific instances referred to in that section.
[16]T 1-4 LL 7-20
[17]T 1-9 LL 10-25
[18]D 2 LL 27-40
[19]R v D [1996] 1 Qd R 363
[20]For instance when generally dealing with indictable dealings summarily with indictable offences, the maximum penalty applying in the Magistrates Court is 3 years imprisonment: See s 552H of the Criminal Code.
[21]Unlike the situation provided in s 552D of the Criminal Code when dealing summarily with an indictable offence a Magistrates Court cannot abstain from dealing with a matter charged under s 790(1) of the PPRA.
[22]Unsurprisingly and when pressed at the hearing to describe the nature of such a category, counsel were unable to meaningfully do so.
[23]Markarian v R (2006) 228 CLR 357 at [31]
[24]Leaving aside instances of parole release being fixed by judicial order.
[25]Veen v R (2) (1988) 164 CLR 465 at 478
[26][1993] 1 Qd R 432 at 436-7
[27]Ibid at 443
[28]Whereas time spent on parole before any relevant reoffending will be regarded as serving of the term of imprisonment: see s 211(2) Corrective Services Act 2006.
[29]Which pursuant to s 146, can only be relevant re-offending in the operational period.
[30]See s 147 of the PSA
[31]T1-5 LL15-20
[32]See paragraph [17] above.
[33]S 9 PSA and Veen v R (No 1) (1979) 143 CLR 458, and Veen v R (No 2) (1988) 164 CLR 465 at 472
[34]See Lowe v The Queen (1984) 154 CLR 606, at 612 per Mason J; and of Pearce v R (1998) 194 CLR 610 at [46]; Markarian v R (2005) 228 CLR 357 at [27]
[35]Although that is not to be regarded as an inevitable prospect having regard to s 147 of the PSA.
[36]D3 L1
[37]At the hearing, an updated copy of the appellants criminal history was admitted as new evidence under s 223 of the Justices Act, but only for the purpose of any resentencing by this Court. The significance of that was demonstrated through a further entry for another offence under s 790(i) of the PPRA, committed on 26 March 2012 and dealt with in the Caboolture Magistrates Court on 13 September 2012 with the result being the imposition of a cumulative term of 3 months imprisonment with a parole release date set at 26 October 2012