McCarthy v Campbell[2014] QDC 108

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an appeal by the prosecution against a sentence imposed in the Maroochydore Magistrates Court by her Honour Magistrate Callaghan on 13 November 2013. On that day the respondent pleaded guilty to one count of possessing tainted property on 14 May 2013. This is an offence created by s 252(1) of the Criminal Proceeds Confiscation Act 2002. The offence carries a maximum penalty of 100 penalty units or two years imprisonment.

2. [2]
   As a result of his conviction for the offence the respondent breached a suspended sentence made in the same court on 11 March 2013. On that day, he was sentenced for a number of offences, including an offence of the same nature committed on 8 June 2012, for which he received a three month term of imprisonment, wholly suspended for a period of nine months. It follows that the breaching offence was committed just a few days over two months into the operational period of the suspended sentence.

The law

3. [3]
   The appeal is pursuant to s 222(1) of the Justices Act 1886, and, by virtue of s 223(1) is to be by way of rehearing on the evidence before the magistrate. However, pursuant to s 222(2) (c) if (as is the case here) the defendant pleads guilty, the sole permissible ground of appeal is that the penalty imposed was inadequate. It is unlike an appeal against conviction, and it follows that on appeal, it is a rehearing in a technical sense of a review of the record below.

4. [4]
   It is common ground that the sole ground of appeal that the sentence was inadequate enlivens the principles laid down by the High Court in House v The King (1936) 55 CLR 499 at 505.

5. [5]
   It is not sufficient that an appellate court considers a sentence lenient, or would have imposed a heavier penalty. Recently in Bugmy v The Queen [2013] HCA 37 by reference to a different sentencing regime (that in New South Wales) the High Court wrote at [24]:

“ … sentencing is a discretionary judgment and there is no single correct sentence for an offender and an offence. Plainly enough the Court of Criminal Appeal disagreed with the sentence imposed (below) and favoured a more severe sentence. The difference between the Court of Criminal Appeal’s assessment of the appropriate sentence and (the court’s below) assessment may be explained by saying that (the sentencing judge) gave too little weight to some factors and too much weight to other factors. However, within a range of sentences for this offence and this offender, the weight to be given to the evidence, and the various conflicting purposes of sentence, was a matter for (the sentencing judge). The authority of the Court of Appeal to substitute a sentence for that imposed by (the sentencing judge) was not enlivened by its view that it would have given greater weight to deterrence and less weight to the appellant’s subjective case. The power could only be engaged if the court was satisfied that (the sentencing judge’s) discretion miscarried because in the result his Honour imposed a sentence that was well below the range of sentences that could be justly imposed for the offence consistently with sentencing standards.”

The proceedings below

6. [6]
   The police prosecutor related the following facts to her Honour which were not disputed by the respondent’s barrister:

“Tuesday night, 14 May 2013, 8.00 pm, police from the Tactical Crime Squad attended the Rebels Outlaw Motorcycle Club at Kunda Park and executed a search warrant in relation to liquor offences. On arrival, police gained entry to the premises. The defendant in the matter, Mr Campbell, along with several other associates inside the club house [sic]; all persons present were detained and warned of their rights. The defendant was deemed to be in charge of the premises at the time as he had the keys to the front door of the premises in his possession. The defendant was served a copy of the search warrant and notice to occupy.

Police then conducted a search of the defendant, and upon lifting up his shirt front the police observed three bundles of Australian currency held together by rubber bands tucked between the defendant’s track pants and waist. Senior Crime Officer [sic] was present and filmed the location of the currency in his possession. (That should read scenes of crime officer). The money was removed and placed on the table. The police observed they were mostly bundles of 50s. The police asked the defendant whose money it was, and the defendant stayed silent. The defendant refused to say anything about the money. The defendant stated that he wished to speak to his solicitor first. The police then finished searching the defendant and his bum bag. Inside the bum bag, the police located a quantity of currency being held in a money clip and $60.00, along with coins and personal items, including driver’s licence etcetera.

The defendant then attempted to contact his solicitor, and the defendant then sent a text message to his solicitor. A short time later, the defendant’s solicitor then contacted the defendant by mobile. After finishing that conversation, the defendant stated he had receipts in the back of the bum bag for three grand from a TAB win in the bank. The defendant stated that he didn’t wish to answer any further questions in relation to the money located. The TAB win place card was a payout receipt on a bet of $800 from the 4/5/2013, and there were two white receipts with faded and almost illegible writing on them. There were no dates on the bank receipts of amounts withdrawn.

A later inspection of police – a later inspection [sic] police attended and the scenes of crime attended, and they counted the currency while the defendant was present. The first bundle, there was $2,000 [sic]. The second bundle was $3,000 in Australian currency, and the third bundle police counted $2,000 in Australian currency. In total, tucked down the defendant’s pants was $7,000. The police then counted the money in the bum bag clip, which totalled $1,115.00. $60.00 loose was in the bum bag; also coins totalling $5.70. The defendant was in possession of $8,480.70. He was given an opportunity to answer questions in relation to it, but he declined to answer.”

7. [7]
   The prosecutor then referred to a search of the motor vehicles of two other persons present in the club house at the time of the search, and to an allegation that methyl amphetamine was located in that search. The respondent’s barrister objected on the basis that these factual allegations were not relevant to the sentencing exercise and after argument her Honour ruled in favour of the objection. There was no complaint by the appellant about that ruling.

8. [8]
   The prosecutor did not seek to call evidence nor did he suggest that the matter proceed as a contested sentence.

9. [9]
   The respondent’s criminal history was tendered and its contents were admitted. The criminal history revealed that the respondent was born on 31 December 1979, so he would have been 33 at the time of the offence and 34 at the time of sentencing. That basic information was not conveyed to her Honour, and the prosecutor referred initially only to the entry on 11 March 2013 in the Maroochydore Magistrates Court when the respondent was sentenced to a three month term of imprisonment wholly suspended for nine months for a similar offence committed on 8 June 2012. The only information given to her Honour about this most relevant entry was that it also involved possession of money, namely $36,970.00

10. [10]
    As a general observation, the history bespeaks a mature man who had convictions dating back to 1997. When younger, he had been convicted of offences of violence and he had been sentenced to terms of imprisonment. He had also been convicted of property offences including a count of receiving in 1997. In more recent times, he had been convicted of drug offences, and Weapons Act offences. On 29 November 2010 in the Townsville Magistrates Court, he was fined for a number of offences including one count of possession of tainted property. No information was given to her Honour about that offence.

The prosecutor’s submissions below:

11. [11]
    The prosecutor made general reference to the criminal history; and submitted that the respondent be sentenced to two months imprisonment for the breaching offence; the suspended sentence be activated in full and ordered to be served cumulatively on the two months, that is an overall sentence of five months; and that the respondent be ordered to serve one third – approximately seven weeks. As Mr Cummings observed in oral argument, her Honour was not greatly assisted by the submissions made below. If a Court acts under s 147(1) of the Penalties and Sentences Act 1992 and orders that a suspended sentence be activated, unless the court orders otherwise, pursuant to s 148, the imprisonment must be served:

1. (a)
   Immediately; and

2. (b)
   … concurrently with any other imprisonment previously imposed on the offender by that or another court.

12. [12]
    In R v Baker [2011] QCA 104 Atkinson J, with whom the President and Peter Lyons J agreed, wrote (at [32]):

32. “[32]
    The PSA does not otherwise deal with whether or not the order to serve the whole or part of the suspended imprisonment should be ordered to be served concurrently or cumulatively with a sentence imposed for an offence which was committed in breach of the suspended sentence and for which the offender is being sentenced on the same occasion on which the offender is ordered to serve the whole or part of the period of imprisonment. The judge has a choice to impose sentence on the indictment before the court and then decide whether or not to activate the suspended sentence, in whole or in part, in which case the sentence must be served concurrently with a sentence imposed on the indictment; or to activate the suspended sentence and then sentence on the indictment. That is the more usual course: R v Chard; ex-parte Attorney General (Qld) [2004] QCA 372 at [7]; R v Gander [2005] QCA 45 at [24]. In that case the sentences may be able to be served cumulatively or concurrently. The period of suspended imprisonment which is activated must be served immediately unless there is a specific order to the contrary.”

13. [13]
    The prosecutor went on to concede that although the plea was not early, it was timely. He then made more specific reference to the criminal history; and a submission that ‘there is (sic) significant suspicious circumstances surrounding the circumstances of how this money was located, and, indeed, offences like this for money and drugs are the lifeblood of organised crime’. Mr James interrupted pointing out that drugs were not part of the offence, but made no formal objection. The prosecutor then referred to money being the lifeblood of organised crime, and emphasised the need for general and personal deterrence. In response to some questions from her Honour, the prosecutor did submit that the suspended sentence should be first activated in full, and he submitted that a two month cumulative sentence be imposed for the breaching offence.

The respondent’s submissions below:

14. [14]
    Mr James submitted that an overall sentence of four months should be imposed, either by activating two months of the suspended sentence and two months cumulative for the breaching offence; or four months for the breaching offence, activating the suspended sentence in full and ordering that it be served concurrently. He tendered a number of testimonials which proved decisive in her Honour’s subsequent orders.

15. [15]
    The first was from Mr Joseph Pennisi who described himself as a 38 year old company director with a number of business interests, one of which was as a boxing promoter for a boxing promotions company Ringside Fight Promotions. He wrote that he had known the respondent through boxing for “five or so” years. He wrote:

“Lorne approached me not long after we first met and asked if he could be of any assistance in supporting local boxing and boxers. Since then, he has given both his time and financial contribution to the boxing community. He’s helped raised funds for young amateur boxers, making it possible for them to attend and compete in State titles, as well as supported and sponsored several professional boxers by giving them merchandise from his clothing label to both wear and sell, as well as mentoring many of them in a very positive way. His dedication and commitment to many young lads involved in this sport has been a pleasure to witness.

Lorne recently mentioned to me his desire to step into the ring and experience a boxing bout himself, but in doing so, he again wanted to help the community and asked if we could organise a charity fight on our next promotion. We have done so and have scheduled the fight to take place on November 29 in Townsville. Lorne’s fight will be raising monies for two charities, the Movember appeal (Men’s Health Awareness) and F.A.C.A.A. (Fighters’ Against Child Abuse of Australia). Not only will Lorne be stepping into the ring to raise money, but he has also generously donated merchandise from his clothing label to be sold with all monies from the sale of these goods going to the aforementioned charities.”

16. [16]
    Another was from Kim Daboul, a senior director of Fighters’ Against Child Abuse Australia who had known the respondent for three years. He wrote that the respondent was a loyal sponsor who “ provides financial assistance for our charity, which helps children who have survived child abuse through the use of counselling and mentoring programmes and fully sponsored martial arts training.”  He too referred to the fight arranged for 29 November 2013.

17. [17]
    The other referees referred to the respondent’s interest in a clothing company, and his assistance, particularly in relation to charitable causes and his family connections.

18. [18]
    By reference to Popa v Austin [2004] QCA 227, an authority relied upon by the prosecutor, Mr James made the obviously correct submission that the circumstances there were so different as to render the judgment of the Court of little assistance to her Honour. In that case the applicant had been convicted of trafficking in heroin and sentenced to 12 years’ imprisonment. He was then convicted in the Cairns Magistrates Court of possession of tainted property, namely $8,520.00, for which he received a six month sentence to be served concurrently with the 12 year term. The Crown had relied upon the possession of the money as part of its case on the trafficking. There is nothing in the judgment dealing with the antecedents of the offender, because the appeal was only against conviction. The appeal was dismissed. I agree with Mr James and her Honour that it was of no assistance to her in framing a sentence in the circumstances of this offence and this offender.

19. [19]
    Mr James submitted that his client’s criminal history indicated that he had never been subject to parole supervision. He referred to the R v Newman [2008] QCA 147 only as an example of where (as he submitted) there was some evidence of rehabilitation since the imposition of the suspended sentence, where the setting of an immediate or early parole release date could be considered as part of a proper exercise of sentencing discretion. He then referred to a number of cases, which frankly were not comparable and could not have assisted her Honour. She made a similar observation in her reasons.

20. [20]
    In response to some comments from her Honour, Mr James conceded that although his client had been involved in charity work for sometime, this was the first time he had volunteered to box himself in a charity event.

21. [21]
    Mr James emphasised that, in effect, parole was more intense supervision than a suspended sentence, which was relevant to the issue of deterrence. He also referred to the sentencing exercise as “global”, which Mr Cummings submits now, along with the approach suggested by the prosecutor, led her Honour into error.

Her Honour’s reasons

22. [22]
    Her Honour adjourned at 12.23 pm to “have a long, hard think about it.”  She gave her decision, at 2.17 pm on the same day.

23. [23]
    She referred to the plea as a timely plea; to the respondent’s history, and in particular the suspended sentence. She made reference to the competing submissions.

24. [24]
    She made specific reference to Mr Pennisi’s letter and to Mr Daboul’s reference and to the other references.

25. [25]
    She then said (p 2, l 31):

“I want to make a couple of comments: first of all, I do accept the submission by the prosecution with regards to why the sentences ought to be cumulative. I accept that. It is appropriate. This offence has been committed whilst you’ve been on a suspended sentence for a similar offence, so the terms of imprisonment that I’m going to give you are going to be cumulative. First of all, I’m going to fully activate the wholly suspended term, and that is three months, and the prosecution submitted two months. On the view that it ought to be three months, so in total there will be a period of six months imprisonment. Then comes the question of whether or not you ought to serve actual time.

Now, I’ve considered the prosecution’s submission where they submitted that you ought to serve a third on their submission of the five months, which would be about six weeks. I don’t think there’s a lot to be gained by that, whereas you are currently running a company. That company is involved in the promotion of some charitable boxing events, and you yourself are involved in organising boxing events for a charitable organisation. I am of the view that the community – I know it’s the second time that you have actually committed this offence and I am – when I thought about whether or not you ought to serve actual time, I reached the conclusion that you ought not. And I’m going to not suspend the terms of imprisonment; I’m going to have a parole release date of today, so you will have hanging over your head a term of six months’ imprisonment for that period of six months.

I think that the community is better served by your remaining in the community, continuing to work, continuing your involvement with these charitable organisations and whilst having that period of imprisonment hanging over your head. That would provide you with, as the prosecutor says, with the key to the jail door, basically. So that’s what I intend to do and they’re reasons for it. On the offence today, you are sentenced to three months imprisonment, to be served cumulatively. Parole release date; 13 November 2013. I will activate fully the suspended sentence, to be served cumulatively, and the parole release date is 13 November 2013, conviction is recorded.”

26. [26]
    In setting an immediate parole release date her Honour did not comply with s 160G (5) of the Penalties and Sentences Act 1992 in that she did not inform the respondent that he was required to report to a probation parole office within a certain period (as specified in s 16G(3)); nor did she inform him of the consequences of a failure to comply with the requirement. No complaint is made about that on appeal and it is not suggested that that error affects the lawfulness of the sentence imposed.

The appellant’s submissions on appeal

27. [27]
    The one ground of appeal articulated in the Notice of Appeal, and expanded somewhat in the written outline, is that the sentence was inadequate. Mr Cummings in oral argument, expressed the appellant’s complaint about her Honour’s sentence by reference to an error of law which he described as follows:

“… what I do say in my submission is this: that if one looks at – from 31 onwards, (this is a reference to page 2, line 31 of the reasons) what one is seeing is the Magistrate is very clearly factoring in the components which are relevant to mitigation for the breach offence sentence, into a matter of mitigation pertaining to the activation, and that’s where I say the error is, because the sentence was imposed – the wholly sentence suspended (sic) term was imposed, and the factors of mitigation relevant to the imposition of that sentence occurred at that time.

What the court was contemplating, it decided it should be activated, and what it was really deciding was the interplay between the sentence which it was to impose for the breaching offence, suitably moderated, and how that interfaced in a totality way with the activated sentence, and that’s what her Honour didn’t do and she was led down that path, if I can put it that way, by this global approach that both defence and prosecution urged upon her.”

28. [28]
    In other words, Mr Cummings submits that her Honour fell into error by conflating two separate sentencing exercises; firstly the more restricted exercise of deciding whether or not it was unjust to activate the whole or part of the suspended sentence, and then considering the appropriate sentence for the breaching offence. He submits that in dealing with the breach of the suspended sentence her Honour impermissibly took into account factors that could only be relevant to the exercise of the sentencing discretion in relation to the breaching offence.

Respondent’s submission on appeal

29. [29]
    Not surprisingly, Ms Sharp of Counsel focused on the arguments articulated by Mr Cummings in his written outline. The narrowing of the appellant’s argument to one discrete allegation of error was not readily discernible from that outline. Ms Sharp did not assert prejudice, and submitted simply that her Honour did not err as alleged and that the appellant had not otherwise demonstrated that the sentence was inadequate by reference to the principles in House v The King.

Discussion

30. [30]
    During the hearing, and when I appreciated the appellant’s much narrower argument to that set out in his written submission, I raised with the parties the application of R v Baker. Having re-read the decision that afternoon after the hearing, I invited the parties to make further submissions based on that decision and R v Norden [2009] QCA 42 which it was quoted with approval at [48] of Baker by Atkinson J.

31. [31]
    At page 3, lines 11-14 her Honour Magistrate Callaghan in her reasons appears to sentence on the breaching offence but then says the words “to be served cumulatively”. If indeed she elected this course, as had been suggested by the prosecutor, upon activating the whole of the suspended sentence, she would have been in error by ordering that it be served cumulatively for the reasons expressed in R v Baker by reference to the express words of s 148 of the Penalties and Sentences Act 1992, because, in those circumstances, the activated sentence would have to be served immediately and concurrently with the three month term imposed for the breaching offence. However when read as a whole, and particularly by referring back to her Honour’s sentencing remarks at p 2, ll 36-39 it is appropriately clear from her reasons that she intended to activate the suspended sentence in full “first”, and then impose three months’ cumulative upon that for the breaching offence.

32. [32]
    Mr Cummings responded to my offer to make further submissions based on a consideration of R v Baker and R v Norden as did Ms Sharp whose submission was received on 5 May 2014. As he notes, the decision to activate the whole of the suspended sentence is not a re-exercise of the sentencing discretion for the original offence.

33. [33]
    Norden is authority for the proposition that in deciding whether it would be unjust, pursuant to s 147(2), the decision to set a parole release date (where the sentence is 3 years or less and not a sexual or serious violent offence), is to be regarded as part of that decision making process, and not as a separate independent exercise of discretion once the decision to activate the whole or part is made. That case involved a breach of a suspended sentence and a breach of a probation order, which (as Holmes JA wrote at [14]) involved “two functions”, the first being the decision pursuant to s 147, the second being the probation breach, and having revoked that order the re-sentencing for that offence.

34. [34]
    Baker was a case like the present, where the sentencing Judge had two functions to perform, consideration of the activation of a breached suspended sentence, and sentences for a number of breaching offences. He was held to be in error, in that he had failed to consider the imposition of a parole release or eligibility date in relation to the original offence, and had considered that only in relation to the subsequent breaching offences.

35. [35]
    Turning then to Mr Cummings’ primary submission, to the effect that her Honour inpermissibly conflated the sentencing exercise pursuant to s 147 with the sentencing exercise for the breaching offence, which led to a sentence that was inadequate in that it was “unreasonable or plainly unjust”. As he writes, in his recent submission:

“The (only) error made by (her Honour) was to consider that the setting of a parole release date in relation to the period of imprisonment imposed by activating the suspended term, and imposing a sentence for the breaching offence, was decided as part of the exercise of one sentencing discretion taking into account factors which where (sic) were only relevant to the imposition of the sentence for the breaching offence” (punctuation added.)”

36. [36]
    A number of things can be said in response. Clearly some of the factors in mitigation such as “his involvement in charitable organisations, and his involvement working in his company”, were factors that existed at the time that he was sentenced on 11 March 2013. However, when her reasons are read as a whole it is not readily discernible to me that her Honour fell into the error suggested by Mr Cummings. Although Norden is authority for the proposition that in the circumstances, “two functions”, or two different exercises of discretion were required, Holmes JA noted [at [15]] that “it may not be possible to divorce the effects of the two processes where one has practical relevance to how the other will operate, ….”

37. [37]
    Section 147(3)(a) requires the court to look at “antecedents” to determine whether the subsequent offence was “trivial”, but also “any specific circumstances arising since the original sentence was imposed”, in deciding whether or not it would be unjust to activate the whole or part of the sentence. The respondent’s antecedents and any evidence of rehabilitation (which would include the respondent’s decision to box for charity himself) since the suspended sentence was imposed, were obviously also factors relevant to the exercise of sentencing discretion in relation to the breaching offence, but not constrained by s 147(3) factors.

38. [38]
    There was never any suggestion, nor could there have been, that the appellant could satisfy her Honour by reference to s 147(3), that it would be unjust to activate the whole or part of the suspended sentence. The whole sentencing process proceeded on the basis that the suspended sentence should be activated in full or in part. Mr James sensibly made no attempt to persuade her Honour otherwise.

39. [39]
    Given the high volume of work in the Magistrates Court, it is simply unreasonable to expect a sentencing magistrate to set out in great detail statements which clearly show that he or she is technically complying with what are sometimes quite complex provisions in the Penalties and Sentences Act 1992. Section 147 is certainly one such section. If compliance can be inferred from the reasons read as a whole, then that should not require correction. In my opinion this is one such case.

40. [40]
    The remaining consideration is whether, in the absence of discernible error, the sentence is nevertheless inadequate in the sense that it is “unreasonable or plainly unjust” so that, even if the nature of the error may not be discoverable, it is apparent that a “substantial error” has in fact occurred.

41. [41]
    There can be no suggestion (nor is there) that the full activation of the three months, with a three month cumulative sentence for the breaching offence (one month more than that suggested by the prosecutor), fell outside the appropriate sentencing range for the breach and for the offending. It remains therefore to consider whether in making an immediate parole release order instead of ordering the respondent to serve 10 weeks in prison (more than the seven weeks suggested below) is caught by the “unreasonable or plainly unjust” characterisation.

42. [42]
    I am satisfied, having regard to the whole of the record before her Honour that the ultimate disposition did not fall into this category. The appeal is dismissed.