Whitney v The Commissioner of the Queensland Police Service
[2014] QDC 172
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- Unreported Judgment
- Whitney v The Commissioner of the Queensland Police Service[2014] QDC 172
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Whitney v The Commissioner of the Queensland Police Service[2014] QDC 172
Whitney v The Commissioner of the Queensland Police Service[2014] QDC 172
DISTRICT COURT OF QUEENSLAND
CITATION: | Whitney v The Commissioner of the Queensland Police Service [2014] QDC 172 |
PARTIES: | SEAN GLEN WHITNEY (appellant) v THE COMMISSIONER OF THE QUEENSLAND POLICE SERVICE (respondent) |
FILE NO: | 28 of 2014 |
DIVISION: | Appellate |
PROCEEDING: | Appeal under s 222 of the Justices Act |
ORIGINATING COURT: | Maroochydore |
DELIVERED ON: | 8 August 2014 (Orders Made) 15 August 2014 (Reasons Published) |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 8 August 2014 |
JUDGE: | Long SC, DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – s 222 Justices Act (Qld) 1886 – appeal against sentence – whether sentence manifestly excessive – whether sentencing Magistrate allowed any appropriate mitigation or reduction of the sentence for the appellant’s guilty pleas – whether sentencing Magistrate failed to give reasons for fixing a parole eligibility date at a point beyond the mid point of the period of imprisonment, and did not invite submissions or alert the parties to that intention Corrective Services Act 2006, s 184, s 209, s 211, s 214, s 215 Justices Act 1886 s 47(5), s 222, s 223, s 225 Penalties and Sentences Act 1992, s 4, s 156, s 160B, s 160C(4), s 160D(4), s 160F, s 160G Transport Operations Road Use Management Act 1995, s 78(3) Commissioner of Police v Al Shakaji [2013] QCA 319 Fox v Percy (2003) 214 CLR 118 House v R (1936) 55 CLR 499 Mbuzi v Torcetti [2008] QCA 231 Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181 Rowe v Kemper [2009] 1 Qd R 247 R v Kitson [2008] QCA 86 R v Nagy [2004] 1 Qd R 63 R v Smith [2013] QCA 397 Teelow v Commissioner of Police [2009] QCA 84 at [20]. Tierney v Commissioner of Police [2011] QCA 327 |
COUNSEL: | M. Dixon for the Appellant. A. Stark for the Respondent. |
SOLICITORS: | Legal Aid Queensland for the Appellant. Queensland Police Solicitor for the Respondent. |
Introduction
- [1]These are the published reasons for the order made, on the hearing of this appeal on 8 August 2014 and upon allowance of the appeal and to vary the parole eligibility date fixed for the appellant, to 3 December 2014.
- [2]By notice of appeal filed on 12 February 2014, the appellant appealed in respect of the sentence imposed upon him, on 15 January 2014, in the Magistrates Court at Maroochydore. That sentence was imposed upon the appellant’s convictions, consequent upon his guilty pleas to offences of:
- (a)driving a motor vehicle whilst disqualified by court order, in respect of which a term of 18 months imprisonment was imposed;
- (b)obstructing police, in respect of which a term of two months imprisonment was imposed.
- (c)wilfully driving a vehicle in a way that made unnecessary noise, in respect of which a fine of $800 in default eight days imprisonment was imposed; and
- (d)using an unregistered vehicle on a road, in respect of which a fine of $400 in default four days imprisonment was imposed.
- [3]Each of those offences had occurred on 22 November 2013, at Florence Street, Nambour. In addition, guilty pleas were entered to further offences that occurred on 30 November 2013, at Coes Creek, being offences of possession of the dangerous drug cannabis and a failure to take reasonable care and precaution in respect of a needle and syringe. In respect of each of those offences the appellant was sentenced to terms of six months imprisonment.
- [4]It should be noted that the pecuniary penalties were the only option in respect of the offences for which they were imposed and that at the election of the appellant’s legal representative those fines were immediately referred to SPER, as opposed to the alternative of making an order that they were payable immediately.
- [5]Except in respect of the term of 18 months imprisonment imposed for the most serious offence of disqualified driving, all terms of imprisonment were ordered to be served concurrently. However the term of 18 months imprisonment was ordered to be served cumulatively upon, or in the terms of s 156 of the Penalties and Sentences Act 1992 (“PSA”) to start at the end of the period of imprisonment that the appellant was then serving. That period related to an earlier term of 18 months imprisonment imposed on 3 September 2013 in relation to an offence of disqualified driving, committed by the appellant on 31 May 2013 and it was the associated court order disqualifying him, on 3 September 2013, from driving for a period of four years, which was an aggravating circumstance of the disqualified driving offence dealt with on 15 January 2014.
- [6]This circumstance of aggravation increased the maximum penalty for the disqualified driving offence from 12 to 18 months and the previous convictions incurred on 14 July 2011 and 3 September 2013, were the subject of a notice issued under s 47(5) of the Justices Act 1886 and which engaged s 78(3) of the Transport Operations Road Use Management Act 1995 and the requirement that the Magistrate make an order for disqualification of the appellant’s entitlement to a driver’s licence in the range of two to five years. The order that was made was for the maximum: five years.
- [7]Because the appellant’s offending had occurred whilst he was on parole and that parole order was automatically cancelled under s 209 of the Corrective Services Act 2006, when he was sentenced in this way and in accordance with s 160B(2) of the Penalties and Sentences Act 1992, the Magistrate was required to and did fix a parole eligibility date for the appellant. However, this was fixed as 15 November 2015.
The circumstances of the offending
- [8]When the appellant was sentenced on 3 September 2013, it was for an offence that was committed in breach of an order made in respect of earlier similar offending. The defendant who is now aged 32 years[1] and apart from a criminal history demonstrating some drug related and dishonesty offending and a sequence of proceedings for breaches of court orders, including a breach of the suspended sentence and a breach of an intensive correction order (for which a period of actual imprisonment was imposed), when sentenced on 15 January 2014, had some 12 prior entries for disqualified driving in his traffic history and five prior entries for drink driving type offences.
- [9]It may be particularly noted that on 14 July 2011 and in respect of offences including two instances of disqualified driving (on 2 and 13 December 2010), the defendant was sentenced to terms of 18 months imprisonment, on each, and given a parole release date on 13 December 2011 (that is after five months imprisonment) and then disqualified from driving for three years. Then and on 3 September 2013, the appellant was again sentenced for an offence of disqualified driving (which occurred on 31 May 2013 and therefore in breach of the earlier court order) and he was sentenced to a term of 18 months imprisonment, with an immediate parole release and disqualified from driving for a period of four years.
The relevant facts of the offending, as placed before the sentencing Magistrate, were that police intercepted the red Hyundai Elantra then being driven by the appellant at about 4.55 in Florence Street at Nambour.[2] Although the appellant provided his correct name to police and then stated that he had no lawful or emergent reason to be driving at the time and also informed police that he was unlicensed, he ran away and it was not until 30 November 2013 that he was arrested by police. It was his fleeing from the intercept location that formed the basis of the charge of obstructing police. The charge of wilfully driving the motor vehicle causing excessive noise was based on the police observation of loud revving of the engine of the motor vehicle and in respect of that, the defendant stated that his foot had become stuck on the accelerator. Further enquiries conducted in relation to the motor vehicle revealed that the registration had expired on 12 November 2013.
- [10]The drug related offences arose out of the arrest of the defendant, at his place of residence at Coes Creek, on 30 November 2013. As a result of detecting the odour of cannabis, the occupants were detained and police located a small amount of cannabis in a bowl on the appellant’s bed, which he then admitted was in his possession. In the course of the search police also located approximately 50 used syringes and needles, located in a shelf in a walk-in wardrobe in the master bedroom. The appellant also admitted ownership of the syringes and that he had used them to inject drugs.
- [11]At the sentencing proceedings, the following submissions were made for the appellant:
- (a)He no longer owned any motor vehicles having sold them after being sentenced on 3 September 2013.
- (b)The vehicle driven on 22 November 2013 belonged to a friend and was driven because he was at his friend’s house when he was contacted and advised that his five year old son had been injured and was calling out for his father and because his friend had consumed alcohol and was unable to drive.
- (c)When intercepted by police he gave his name before panicking and running away from police.
- (d)He made full admissions when later arrested at his home.
- (e)He is 32, resides with his wife and four children aged between five and fourteen.
- (f)He had maintained work as an Australia Post delivery contractor for six years, with his wife driving the van and him delivering the packages. It was contended that, depending on the length of time he is held in custody, that position may remain open to him.
- (g)He has had issues with drug and alcohol abuse and has suffered depression and anxiety.
- [12]Accordingly, the offences committed separately on 22 and 30 November 2013, were all committed in breach of the appellant’s parole. The earliest of those offences was committed less than three months after his release on parole. The Magistrate was informed and acted on the basis that the appellant’s parole had been suspended and that he had been in custody since 2 December 2013.[3]
The Appeal
- [13]The grounds of appeal stated in the notice of appeal are:
“1. That the sentence imposed was manifestly excessive in all the circumstances.
- That there was a failure to consider the mitigating circumstances and the plea of guilty.
- That there was a failure to consider the totality of the sentence imposed.”
- [14]In submissions made in support of the appeal and although the appellant obviously sought to rely upon the principle requiring an appropriate assessment of the total effect of accumulating terms of imprisonment, the main thrust of the submissions was directed at the manifest excessiveness of the sentence being found in an absence of allowance for the appellant’s guilty pleas and the absence of any express or apparent reason for the setting of the appellant’s parole eligibility date, in November 2015 and therefore at a point which was well past the midpoint of the appellant’s period of imprisonment and where there had been a failure to alert the parties and invite submissions as to the Magistrate’s intention to impose such a parole eligibility date, contrary to the principles discussed in R v Kitson [2008] QCA 86.
- [15]On the appeal, this court is required to conduct a review of the sentencing hearing and ultimately correct any error of the sentencing Magistrate, determined on the basis of that review and this court’s own conclusions[4]. Because the review is to be conducted in respect of an exercise of sentencing discretion, the following principles, as extracted from House v R[5], apply:
“It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the material for doing so.”[6]
- [16]The respondent concedes that there has been such error, in that the sentencing Magistrate did not appropriately fix the appellant’s parole eligibility date particularly by having regard to his guilty pleas to the offences that were being dealt with and because of the absence of any express or apparent reason for fixing a parole eligibility date at a point beyond the mid point of the 36 month period of imprisonment to be served by the appellant. It is also conceded that there was a failure to invite submissions or alert the parties to that intention, in accordance with the decision in R v Kitson.
- [17]On the other hand the respondent pressed that there was no error to be found in the order of the Magistrate in accumulating a period of 18 months imprisonment for the offences dealt with on 15 January 2014, whereas the appellant pressed for a period of 12 months to be served cumulatively and therefore a total period of two and a half years imprisonment.
Discussion
- [18]In my view, there is no error to be found in the Magistrate’s orders in effectively accumulating the second term of 18 months imprisonment for those offences. In the first instance, the terms imposed by the sentencing Magistrate must be viewed collectively and in that regard the fixing of the effective term of imprisonment at 18 months, for the most serious of the appellant’s offences, must necessarily be viewed as an exercise of sentencing prerogative, in accordance with the principles laid down in R v Nagy.[7] And therefore as a reflection of the overall criminality involved.
- [19]Further and whilst it may be considered that the offences committed by the appellant on 22 November 2013, in addition to the disqualified driving offence, added not a great deal to that criminality and in any event he was separately punished in the way that has been outlined in respect of the offences for which the fines were imposed, and also by way of the imposition of the maximum available period of driver’s licence disqualification, separate and concurrent terms of six months imprisonment were imposed in relation to the drug related offences, which constituted separate offending also occurring in breach of the appellant’s parole.
- [20]Also the appellant’s reoffending occurred not just in respect of a prior history of persistent offending of similar kind but relatively soon after being placed on parole and this provides a point of distinction from the cases which were sought to be relied upon by the appellant, as broadly comparative and in any event and as has been noted above, a matter of primary significance was the prior imposition of head sentences of 18 months imprisonment on the appellant, for this very type of offending.
- [21]The respondent also relied upon a concession made by the appellant’s lawyer before the Magistrate[8] to the effect that he could not contend that it would be inappropriate to impose 18 months as a head sentence (as had been suggested by the police prosecutor) on a cumulative basis.[9] Although, it should be noted, that in the first instance, the solicitor sought to contend that 18 months imprisonment might be imposed in a concurrent fashion in order to extend the period of imprisonment.
- [22]In the circumstances that have been outlined, it would have been open to the sentencing Magistrate to have moderated the sentence imposed upon the appellant by perhaps reducing somewhat the effective term to be imposed as a cumulative sentence. Further, the period of imprisonment which has now been imposed upon the appellant must necessarily be regarded as substantial and at the high end of an appropriate range. However I am not satisfied that the Magistrate erred by imposing a sentence that was outside of an appropriate range, by way of head sentence.
- [23]However and as correctly conceded by the respondent, different considerations arise in respect of the fixing of the appropriate parole eligibility date.[10] In this regard it is instructive to note that in the course of an interchange with the appellant’s legal representative, the Magistrate expressed views tending to indicate an understanding or view that because the appellant had breached his parole, he would be serving the entire balance of the 18 months imprisonment and therefore could not be released until early March 2015, in respect of his existing sentence.[11] Although that discussion appeared to confuse the concepts of liability and requirement, in respect of the balance of the appellant’s existing sentence, the solicitor for the appellant did proceed to make submissions drawing the Magistrate’s attention to his ability to fix a parole eligibility date, which would then leave the matter in the hands of the parole board to decide if and when the appellant was released. However, it would appear that the Magistrate may have proceeded upon an erroneous basis that the appellant was or would be required to serve the entire balance of his existing sentence, before any question of eligibility for parole might or should arise and that may tend to explain why the eligibility date was set so late in the period of imprisonment.
- [24]There is no statutory or other warrant for any such view. Indeed and pursuant to the statutory provisions introduced as Division 3 of Part 9 of the Penalties and Sentences Act 1992 (“PSA”), in 2006 and which govern the fixing of parole entitlements for prisoners sentenced by courts (whether as a release date or an eligibility date), some important considerations are made expressly clear:
- (a)First and pursuant to s 160F(1), it is stated that one of the objects of the provisions that provide the powers for courts to fix parole entitlements, “is to ensure that at any 1 time there is only 1 parole release date or parole eligibility date in existence for an offender”.
- (b)Secondly and pursuant to s 160F(2), that any such release or eligibility date fixed by a court, must be “a date relating to the offender’s period of imprisonment as opposed to a particular term of imprisonment”.
- (c)Thirdly and by having regard to s 160F, s 160G and the definitions of the terms “current parole eligibility date” and “current parole release date”, in conjunction with ss 160B(4), 160C(4) and 160D(4), the only limitation or restriction placed on the selection of a day in the period of imprisonment, to be so fixed, is that it can not be any earlier than any pre-existing such date that has been fixed in respect of any pre-existing period of imprisonment that is constituted by any term or terms of imprisonment that will form part of the total period of imprisonment to be served.
- [25]In this context, it is also necessary to understand that:
- (a)the following definitions are found in s 4 of the PSA:
“period of imprisonment means the unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment, whether—
- (a)ordered to be served concurrently or cumulatively; or
- (b)imposed at the same time or different times; and includes a term of imprisonment…
term of imprisonment means the duration of imprisonment imposed for a single offence and includes—
- (a)the imprisonment an offender is serving, or is liable to serve—
- (i)for default in payment of a single fine; or
- (ii)for failing to comply with a single order of a court; and (b) for an offender on whom a finite sentence has been imposed, any extension under section 174B(6) of the offender's finite term”[12]; and
- (b)That s 214 of the Corrective Services Act 2006 (“CSA”) provides that “a prisoner released on parole is taken to be still serving the sentence imposed on the prisoner” and that an effect of related provisions (including s 211 and s 215 of the CSA) is that the time for which a prisoner is released on parole, before there is a relevant breach that results in a cancellation of the parole order or a cancellation of the order by a parole board, will count as time served in respect of the period of imprisonment[13].
- [26]Accordingly, one way of viewing the effect of the Magistrate’s orders, as at 15 January 2014, was that in respect of a period of 3 years imprisonment imposed on the appellant, with effect from 3 September 2013:
- (a)He had served approximately 2½ months on parole before he first re-offended (3 September 2013 to 21 November 2013);
- (b)He would serve approximately 23½ (from 3 December 2013 to 14 November 2015) before becoming eligible for release on parole on 15 November 2014; and
- (c)He would be liable to sere approximately a further 10 months (on parole or otherwise) from 15 November 2015 to 13 September 2016.
- [27]Therefore and in summary, his parole eligibility date was fixed well past any half way point of this period of imprisonment and at a point when the appellant would have actually served approximately 23½ months imprisonment and had a total of 26 months counted towards his total liability.
- [28]Although in R v Kitson, the Court of Appeal noted a point of distinction raised in respect of the reliance on earlier decisions in respect of different legislation and where there was a statutory entitlement to parole at the halfway point of a sentence, in the absence of contrary order[14], the court did not finally determine the validity of the distinction. This was primarily because:
- (a)It was noted that in all instances the court retains an unfettered discretion as to the fixing of a relevant parole date; and
- (b)It was very unusual for such a parole date to be fixed beyond the midpoint of a head sentence, particularly where there are personal circumstances and a guilty plea that provide claims for an earlier order; and
- (c)The failure to provide reasons for such an unusual course, either in the reasons for sentence or in the course of submissions, was an appellable error, particularly in the absence of adverting to such an unusual aspect and giving the parties an opportunity to be heard on it.
- [29]It is necessary to note that the reasoning in Kitson was not in respect of a situation where there were the complications of a breach of parole or the accumulation of terms of imprisonment in order to create the period of imprisonment. Nor was that decision in respect of the situation which prevailed here and where the Magistrate was then obliged rather than entitled, to fix a parole eligibility date. Such complications might conceivably negate the applicability of any expectation that a parole eligibility date might not usually exceed the halfway point of a period of imprisonment[15].
Further and although the application of the provision is complicated, s 184 of the CSA provides some indication of a retention of a default position of parole eligibility premised on the mid point of a period of imprisonment. Further and notwithstanding that s 184(3) makes it clear that the application of the section is always subject to any court order made in respect of parole entitlement, this provision tends to confirm that even offenders who have a parole order cancelled are not necessarily expected or required to serve out the entire liability under any term of imprisonment, before again having an entitlement for release on parole in respect of the period of imprisonment. Of course, an effect of s 160B(2) of the PSA and s 184 of the CSA is that any such entitlement will be a parole eligibility date and therefore only effected by a favourable decision of a parole board.
Conclusion
- [30]In the present case there was an absence of any express reasoning for the fixing of the parole eligibility date and although there was an interchange with the defence lawyer on the topic generally, the prospect of such a late date was not clearly adverted to. However and more particularly and in circumstances where a high head sentence was imposed in conjunction with pecuniary penalties and the maximum period of drivers licence disqualification, it is not apparent or explained that any appropriate mitigation or reduction of the sentence was allowed for the appellant’s guilty pleas. On this basis, the sentence imposed on the appellant was manifestly excessive, as far as the fixing of the parole eligibility date was concerned.
- [31]It was upon such a conclusion that the order varying the appellant’s parole eligibility date to 3 December 2014 was made, on 8 August 2014. At that point the appellant will have actually served 12 months of his period of imprisonment and a further period of approximately 2½ months will also count towards his total period of imprisonment.
Footnotes
[1] He will turn 33 on 26 August 2014.
[2] It is not made clear as to whether that time related to the morning or the afternoon.
[3] However on the hearing of the appeal the pre-sentence custody certificate dated 24 February 2014 which had been attached to the respondent’s outline of submissions was, without objection, admitted as additional evidence pursuant to s 223(2) of the Justices Act, on the basis of it being necessary for any order that might be made under s 225 of the Justices Act, if the appeal were in any sense allowed. That certificate provided evidence that although his parole had been suspended on 2 December 2012, the appellant had returned to custody on 3 December 2012 and that his full-time discharge date in respect of his period of imprisonment is presently calculated at 13 September 2016. That is because the period of a little more than two and a half months from 3 September 2013 and until the first reoffending by the appellant on 22 November 2013 but not the period from 22 November 2013 until his return to custody on 3 December 2013, would count as time served in respect of his period of imprisonment.
[4] s 223 Justices Act 1886 and see Fox v Percy (2003) 214 CLR 118 at [25], Rowe v Kemper [2009] 1 Qd R 247 at [5], Mbuzi v Torcetti [2008] QCA 231 at [17], Teelow v Commissioner of Police [2009] QCA 84 at [2]-[4], Tierney v Commissioner of Police [2011] QCA 327 at [26], Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181 at [10] and Commissioner of Police v Al Shakaji [2013] QCA 319.
[5] (1936) 55 CLR 499 at 505.
[6]Teelow v Commissioner of Police [2009] QCA 84 at [20]
[7] [2004] 1 Qd R 63
[8] A different solicitor to the appellant’s representative on this appeal.
[9] See T 1-5, ll 20-24.
[10] Which was required as opposed to a parole release date, in accordance with s 160B(2) of the PSA.
[11] T 1-5, l 42 - 1-6 l 8.
[12] These definitions are also incorporated into the CSA by Schedule 6 of that act
[13] See R v Smith [2013] QCA 397 at [24] – [29]
[14] [2008] QCA 86 at [15]
[15] For example that point may already have been reached (if only because of the counting of successfully completed on parole time) before an offender is again sentenced and the utility of fixing a past eligibility date is at least doubtful.