Ford v QPS; Ford v QPS[2014] QDC 205

DISTRICT COURT OF QUEENSLAND

1. [1]
   These appeals were filed pursuant to Section 222 of the Justices Act 1881 (“the Act”).  They were heard together.  I reserved my decision.

History

2. [2]
   Isaac William Ford was convicted on a plea of guilty on 11 February 2014 in the Magistrates Court at Townsville of an offence of assault occasioning bodily harm in company and sentenced to a nine month term of imprisonment with a parole release date of 10 April 2014.  Hence the term of actual custody was two months. 

3. [3]
   Tyrone John Ford was convicted on a plea of guilty on the same date of the same offence and sentenced to a nine month term of imprisonment with a parole release date of 10 May 2014. Hence the period of actual custody was three months.

Appeals

4. [4]
   The ground of appeal for both Isaac Ford and Tyrone Ford is that each sentence was manifestly excessive.

Factual Circumstances

5. [5]
   Isaac Ford was urinating in a carpark in Flinders Street East.  The complainant and his wife asked him to leave.  He responded with a rude gesture.  An argument began.  The complainant robustly told the appellant to leave.  Tyrone Ford and Isaac Ford then approached the complainant and Tyrone Ford punched the complainant in the face as the complainant looked away towards his wife.  A fight then ensued and the complainant was punched a number of times by both appellants, including when he was on the ground. 

6. [6]
   Both appellants were too intoxicated to be interviewed by the police. The complainant suffered a fractured nose and bruising to the face.

The Hearing in the Magistrates Court

7. [7]
   At the hearing below the Magistrate initially thought that Isaac Ford had deliberately exposed himself to the complainant’s wife and acted in a sexual and contemptuous manner. He subsequently corrected that erroneous view.

8. [8]
   Character references were tendered on behalf of Tyrone Ford. The Magistrate said, “… it seems to me that your clients probably are very decent, law abiding, hard working people except when they are full of alcohol.”

9. [9]
   With respect to the injuries, the Magistrate said that they “… in the scale of things could be considered to be minor injuries.”

10. [10]
    The appellants’ lawyer submitted that probation was appropriate, with restitution (sic) so they could have the benefit of probation supervision. The Magistate rejected that submission and stated that such a sentence “… flies in the face of all authorities” and referred to parole being a more intensive form of supervision.  Not surprisingly, the appellants’ lawyer then submitted that immediate parole release date or a suspension of any term of imprisonment was appropriate. The Magistrate rejected that submission, stating “… it’s too serious for that.”

11. [11]
    In the course of sentencing the appellants the Magistrate said both appellants had kicked the complainant on the ground. That was wrong and he was corrected by both the prosecutor and the appellants’ lawyer.

12. [12]
    Isaac Ford was aged 23 years, had minor previous criminal history and was said to have had a solid work history. Tyrone Ford was 27 years of age, had minor previous history, had attained a grade 11 education and had been a member of the Australian Army and completed two seven month deployments to Iraq.  Since leaving the Army he had taken an adult apprenticeship and was in his third year of that apprenticeship. Bothe appellants entered timely pleas of guilty. 

13. [13]
    The Magistrate in the course of sentencing said the following:

“I take into account your good references, and I accept that both of you have had a productive working life so far, and undoubtedly, given your natures, that you will be productive to yourself and to society in the future, and that you show some initiative to reinvent yourself and find yourself a new career when the occasion demands that.”

Discussion

14. [14]
    The ground of appeal in each case is said to be supported by the following:

1. (a)
   That the Magistrate misdirected himself when stating that probation “flew in the face of the authorities”;

2. (b)
   That the Magistrate expressed a view which was not justified on the material before the court, when he said the following:

“I accept, from the references especially, that there has been a degree of remorse and insight, perhaps in a more sobre time in your life that you did.  And I accept that you were hard-working young people.  Nevertheless, we can’t behave like savages in this society and attack anyone we might just disagree with.  That’s just simply not called for.”

3. (c)
   That the Magistrate took a pre-determined adverse view of the appellants when he erroneously thought that Isaac Ford had deliberately exposed himself to the complainant’s wife and that the both appellants had kicked the complainant when he was on the ground. The Magistrate also had said in respect of Tyrone Ford, that his ego was “too brittle to take that sort of language from Mr Crab (the complainant)”.  It is said the latter was something never referred to in the course of submissions and that the character references tendered on behalf of Tyrone did not express that view but rather reflected a completely different view.

4. (d)
   The sentence imposed was contrary to the principle that short terms of actual imprisonment are undesirable.

15. [15]
    In the submissions on sentence, the prosecutor cited authority to support a submission that an actual term of imprisonment was called for: Lude & Love [2007] QCA 319.  However, Mr Collins for the appellants in the appeal hearing submitted that the Magistrate was not referred to R v Wilkins ex parte A-G (Qld) [2008] QCA 272, where the case relied on by the prosecutor was discussed in the following terms by the Court of Appeal:

“[15] Lude and Love recognises that as actual imprisonment in that case was within the range of a proper exercise of the sentencing discretion.  It is not authority for the proposition that young offenders with promising prospects of rehabilitation, who have pleaded guilty and co-operated with the administration of justice and who are being sentenced for the first time for an offence of violence which is not in the most serious category of violence, must serve a period of actual custody.”

16. [16]
    In a supplementary outline of submissions, Mr Collins referred to a sentence imposed by the Magistrate on another person, RJH, on a charge of AOBH while armed with a dangerous weapon, on 17 February 2014.in the Magistrates Court at Townsville. As the Magistrate observed, the ‘weapon’ would have been more correctly described as an ‘offensive instrument’ - a beer bottle which the defendant intentionally broke and then stabbed the complainant in the neck with it, an offence committed in the context of a dispute about money owing and remaining unpaid, by the complainant to the defendant. The sentence imposed was 9 months imprisonment with a parole release date that required the defendant to serve 3 months actual custody. The complainant suffered a minor injury. The defendant had no prior convictions and was 23 years of age.

17. [17]
    Mr Collins submitted that the RJH matter was more serious than that of the appellants and demonstrated that the sentences imposed on Isaac Ford and Tyrone Ford were manifestly excessive. I agree.

Principles applicable to appeals against sentence.

18. [18]
    The relevant principles on appeals against sentence are those established in the long standing authorities of House v The King (1936) 55 CLR 499, at 504-505; and Hughes v Hopwood (1950) QWN 21.

19. [19]
    A sentence is excessive only if it is “beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness“ (see R v Morse (1979) 23 SASR 98; R v Lemass (1981) 5A Crim R 230; Lowe v The Queen (1984) 154 CLR 606; R v McIntosh [1923] St. R. Qd. 278;

20. [20]
    The oft-cited passage from House v The King is apposite to the circumstances of this case:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  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, 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 and substitution for his if it has the materials for so doing.  It may not appear how the primary judges reach the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”

Short periods of imprisonment

21. [21]
    There are a number of decisions of the Court of Appeal that have recognised that short periods of imprisonment are undesirable: R v C [1996] QCA 234; R v Hamilton [2000] QCA 286; R v Daw [2006] QCA 386; R v Wharley [2007] QCA 295; R v Riley [2007] QCA 391; R v Hilton [2009] QCA 12; R v Yanner & Yanner; ex parte AG (1999) 109A CrimR 109; [1999] QCA 515.

22. [22]
    Some context should be given to those cases: firstly, they were determined at a time when the principle that imprisonment is to be imposed only as a last resort and that a sentence that allows the offender to stay in the community is preferable (s 9(2)(a) Penalties and Sentences Act 1992) was in force; and secondly, a number of them involved first offenders or youthful first offenders.

23. [23]
    Two months and three months actual imprisonment respectively are not necessarily “short periods of imprisonment” and neither appellant could be described as a “youthful” first offender and the appeals would not succeed on this ground alone.

Errors in Exercising the Sentencing Discretion

24. [24]
    The mistake by the Magistrate about the factual circumstances, made during the sentencing of the appellants, further compounds his earlier mistakes and raises the possibility that the Magistrate’s rejection of sentencing options other than imprisonment with actual time to serve was based on erroneous understanding or misapprehension of the facts. That is an error in the exercise of the sentencing discretion. The Magistrate was also in error when he said that “probation flies in the face of all authorities”. He did not cite any authority to justify such a statement. That statement is not supported by ‘case authority’, whatever that simple reference is intended to convey.

Powers on Hearing Appeal

25. [25]
    Section 225(1) of the Act provides:

“(1) On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any another order in the matter the judge considers just.”

Conclusion

26. [26]
    It follows that these errors vitiate both sentences imposed by the Magistrate. The appeals are allowed and the sentences are set aside.

27. [27]
    The appellants are to be re-sentenced. In the circumstances, I will re-sentence them both, there being no utility in sending the proceeding back to the Magistrate or to the Magistrates Court.

28. [28]
    I will hear from the parties about the arrangements for the re-sentencing hearing in this court and as to costs of the appeal, if the latter is pursued by the appellants. The hearing is adjourned for that purpose. The respective bail applications are enlarged.

Orders

Isaac William Ford

1. Appeal allowed

2. Hearing adjourned for sentence on a date to be fixed

3. Bail enlarged

Tyrone John Ford

1. Appeal allowed

2. Hearing adjourned for sentence on a date to be fixed

3. Bail enlarged