Moss v Queensland Police Service
[2014] QDC 15
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- Unreported Judgment
- Moss v Queensland Police Service[2014] QDC 15
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Moss v Queensland Police Service[2014] QDC 15
Moss v Queensland Police Service[2014] QDC 15
DISTRICT COURT OF QUEENSLAND
CITATION: | Moss v Queensland Police Service [2014] QDC 15 |
PARTIES: | TERRY ANDREW MOSS (Appellant) QUEENSLAND POLICE SERVICE (Respondent) |
FILE NO/S: | 210 of 2013 |
DIVISION: | Appellate |
PROCEEDING: | Section 222 Appeal |
ORIGINATING COURT: | Magistrates Court, Cairns |
DELIVERED ON: | 21 January 2014, ex-tempore |
DELIVERED AT: | Cairns |
HEARING DATE: | 21 January 2014 |
JUDGE: | Everson DCJ |
ORDER: | Appeal allowed to the extent of setting aside the parole eligibility date of 17 June 2014 and substituting a parole eligibility date of 30 March 2014. |
CATCHWORDS: | CRIMINAL LAW – APPEAL FROM THE MAGISTRATES COURT – APPEAL AGAINST SENTENCE – where the Appellant pleaded guilty to one count of burglary and commit an indictable offence – where the Appellant was sentenced to imprisonment for 15 months to be served cumulatively upon a sentence of imprisonment for two years imposed by the District Court at Cairns on 18 January 2012 – where a parole eligibility date of 17 June 2014 was set by the learned Magistrate – where the principle of totality was not properly considered by the learned Magistrate when setting the parole eligibility date Justices Act 1886 (Qld), s 222 House v R [1936] 55 CLR 499 R v Baker [2011] QCA 104 R v Fleming [2009] QCA 112 R v Kapitano [2012] QCA 288 |
COUNSEL: | J. Trevino for the Appellant G. Webber for the Respondent |
SOLICITORS: | Legal Aid Queensland for the Appellant Office of the Director of Public Prosecutions for the Respondent |
- [1]HIS HONOUR: This is an appeal pursuant to section 222 of the Justices Act 1886 against the sentence imposed upon the appellant by a magistrate sitting at Cairns on 30 October 2013. The appellant pleaded guilty to one count of burglary and commit an indictable offence and was sentenced to imprisonment for 15 months to be served cumulatively upon a sentence of imprisonment for two years imposed by the District Court at Cairns on 18 January 2012 for wounding. A parole eligibility date of 17 June 2014 was set by the learned magistrate. The sole ground of appeal is that the sentence imposed was manifestly excessive in the circumstances. It is conceded on behalf of the appellant that it was appropriate for the learned magistrate to impose a cumulative sentence.
- [2]The circumstances of the offending giving rise to the sentence were summarised in the decision of the learned magistrate. Essentially, in the early hours of the morning, the appellant knocked on the door of the respondent’s house looking for his keys. The respondent did not have them and asked the appellant to leave her premises. After she had closed and locked the door, the appellant attempted to gain entry, and eventually did so, by smashing a glass panel in the door and forcing himself through the door into the residence. He then threatened to kill the complainant and her children, who were also in the house. The complainant fled with her children and they locked themselves in a room. The appellant then proceeded to kick and punch the door. It was only by the intervention of a third party that the appellant desisted. The police arrived shortly afterwards.
- [3]The learned magistrate identified the aggravating features of the appellant’s offending, including his criminal history, which contained entries for offences of violence. The learned magistrate also noted that the complainant was in her home alone with her children in the early hours of the morning, and therefore obviously in a very vulnerable situation. He noted that a significant degree of force had been used to gain entry to the home by smashing the front door, and he had regard to the fact that the appellant threatened to kill both the complainant and her children. Of particular significance was the fact that this offending occurred not only in the context of the appellant’s criminal history, but specifically in circumstances where he was, in fact, on parole in respect of the sentence imposed in this court on 18 January 2012.
- [4]The learned magistrate also noted relevant mitigating features. He had regard to the appellant’s full cooperation with police in the investigation of the offence, to the appellant’s early plea of guilty, and to the remorse he had shown. The learned magistrate also expressly took into account the cancelling of the appellant’s parole, which exhibit 1 before me shows resulted in him being returned to custody on 8 July 2013. The magistrate referred briefly to totality principles having regard to the need to avoid imposing a crushing sentence on the appellant in circumstances where he was imposing a cumulative sentence.
- [5]Having regard to the principles set out in House v R [1936] 55 CLR 499 at 505, the appellant must demonstrate that the learned magistrate acted upon a wrong principle or misdirected himself such that the sentence imposed fell outside the range mandated by an appropriate exercise of the learned magistrate’s sentencing discretion. The appellant submits that the learned magistrate imposed a manifestly excessive sentence on two bases. Firstly, it is submitted that the head sentence was too high, having regard to considerations of totality and comparative decisions of both this court and the Court of Appeal and secondly it is submitted that in setting a parole eligibility date of 17 June 2014, the learned magistrate imposed a sentence which was manifestly excessive.
- [6]In respect of the former argument particular guidance can be gleaned from R v Fleming [2009] QCA 112, where the Court of Appeal imposed a head sentence of three years for a not dissimilar unplanned and drunken invasion of the residence of a young woman. The circumstances were nonetheless different in certain respects and the offending more serious. The offender was armed and in company. He was much younger than the appellant, but he had a disturbing criminal history of violent offending against women and he was on probation at the time.
- [7]In arriving at the head sentence the subject of this appeal, in my view, the learned magistrate appropriately balanced the aggravating features and the mitigating features in respect of what was a serious offence involving the appellant smashing his way into the home of a woman and her children, threatening to kill them and proceeding to terrorise them. In arriving at the head sentence, the learned magistrate gave due regard to considerations of totality.
- [8]Regrettably, in my view, the same cannot be said for the approach he adopted in setting a parole eligibility date. In R v Baker [2011] QCA 104 at [39], the concept of a crushing sentence was explored. Essentially, this aspect of the totality principle requires that the total effective sentence imposed on an offender should not destroy any reasonable expectation of useful life after release from custody. These considerations are not only relevant to the head sentence but also to the determination of an appropriate date for the offender being eligible for release on parole.
- [9]In R v Kapitano [2012] QCA 288 at [46], it was observed by the Court of Appeal that section 9(2)(1) of the Penalties and Sentences Act 1992 expressly requires the consideration of “sentences already imposed on the offender that have not been served” in arriving at an appropriate sentence. While it is clear that the learned magistrate, in my view, appropriately reduced the head sentence having regard to considerations of not imposing a crushing sentence, he thereafter did not give appropriate weight to the appellant’s plea of guilty and cooperation with the administration of justice in setting a parole eligibility date as late as 17 June 2014.
- [10]In setting a parole eligibility date so far into the cumulative period of imprisonment, the magistrate imposed a manifestly excessive sentence.
- [11]It, therefore, falls upon me to resentence the appellant in this respect. I am therefore of the view that an appropriate acknowledgement of the appellant’s plea of guilty and cooperation with police required a parole eligibility date after one-third of the sentence imposed by the learned magistrate. In arriving at this conclusion, I note that, as a consequence of the offending the subject of this appeal, the appellant has served a period of approximately three and a half months after being returned to custody on 8 July 2013, before the sentence was imposed by the learned magistrate. In my view, an appropriate recognition of the plea of guilty is to set a parole eligibility date of 30 March 2014.
- [12]I therefore allow the appeal to the extent that a parole eligibility date of 30 March 2014 is substituted for the parole eligibility date of 17 June 2014.
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