Gallaher v Commissioner of Queensland Police Service
[2014] QDC 26
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- Unreported Judgment
- Gallaher v Commissioner of Queensland Police Service[2014] QDC 26
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Gallaher v Commissioner of Queensland Police Service[2014] QDC 26
Gallaher v Commissioner of Queensland Police Service[2014] QDC 26
DISTRICT COURT OF QUEENSLAND
CITATION: | Gallaher v Commissioner of Queensland Police Service [2014] QDC 26 |
PARTIES: | KENNETH SAMUEL GALLAHER (appellant) v COMMISSIONER OF QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | D23/13 |
DIVISION: | Civil |
PROCEEDING: | Section 222 appeal |
ORIGINATING COURT: | District Court at Gympie |
DELIVERED ON: | 14 February 2014 (Orders), 20 February 2014 (Reasons Published) |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 14 February 2014 at Maroochydore |
JUDGE: | Long SC DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – s 222 Justices Act (Qld) 1886 – appeal against sentence – whether sentence manifestly excessive – where sentencing Magistrate did not give reasons for fixing parole eligibility date at the expected end point of a term of imprisonment liable to be served on cancellation of parole Criminal Code Act (Qld) 1899, s 408A, s 552BA, s 552BB Corrective Services Act (Qld) 2006 s 180(2)(b), s 184(2), s 209 to 215 Justices Act (Qld) 1886 s 144(6), s 145, s 222, s 229 Penalties and Sentences Act (Qld) 1992, s 4, s 9(l) and (m), s 13, s 160, s 160B(2) R v Tait [1999] 2 Qd R 667 R v Ruha, Ruha and Harris ex-parte DPP (Cth) [2011] 2 Qd R 456 |
COUNSEL: | Appellant: No legal representation Respondent/Crown: A. Stark |
SOLICITORS: | Appellant: No legal representation Respondent/Crown: Office of the Director of Public Prosecutions |
- [1]On 14 February 2014 and when this appeal was heard in the District Court at Maroochydore, orders were made to extend the time for the filing of a notice of appeal in this matter, allowing the appeal and varying the orders of the sentencing magistrate made on 6 August 2013, by deleting the fixing of a parole eligibility date and instead substituting orders for the suspension of the sentence and the fixing of an operational period.
- [2]What follows are the reasons for those orders.
- [3]By a notice of application for extension of time for filing a notice of appeal and a notice of appeal, each executed on 29 September 2013, the applicant seeks to appeal the orders made against him in the Magistrates Court at Gympie, on 6 August 2013.
- [4]On 6 August 2013, the applicant was dealt with on the basis of his guilty plea to an offence of unlawful use of a motor vehicle, pursuant to s 408A of the Criminal Code.
- [5]The applicant was sentenced to 15 months’ imprisonment, with a PED fixed at 14 February 2014. That term was to be served concurrently with the sentence he was then serving, as a result of this offence having been committed in breach of his parole in relation to an earlier sentence of imprisonment. This was because he was, on 13 July 2012, sentenced in the Gympie Magistrates Court in respect of a number of offences including a burglary, wilful damage, possession of dangerous drugs and failures to appear in accordance with a bail undertaking and a breach of a probation order imposed on 7 February 2012, to a total period of 20 months’ imprisonment with a parole release date fixed at 30 November 2012 and after 30 days of presentence custody had been declared as time served in respect of the sentence. That equated to a release after serving approximately five and a-half months of that sentence.
- [6]In his notice of application for extension of time, the applicant states his grounds as:
“I didn’t get the paperwork for the appeal until now from my lawyer and I need help reading and writing.”
- [7]It would appear that both notices were received at the Magistrates Court at Gympie on 10 October 2013 and that they were forwarded by Legal Aid Queensland, on behalf of the applicant but with the specific notation that that organisation did not act for the applicant.
- [8]It is common ground that the applicant requires an extension of time in which to make his appeal and that where there is some explanation for the delay on the face of the material, a critical question may become the assessment of the merit of the proposed appeal: see R v Tait [1999] 2 Qd R 667 at [5].
- [9]When the call over for the first sittings of the District Court at Gympie for 2014 was held, on 6 December 2013 and because it was apparent that there had been no outline of argument filed by the applicant, in accordance with Practice Direction 5 of 2001 and no step had been taken by the respondent pursuant to s 229 of the Justices Act 1886, this matter was listed for mention on 3 February 2014 (being the first day of those sittings). At that time, the applicant confirmed his desire to proceed with his application and appeal, again raised his asserted difficulties in relation to reading and writing and although he was desirous of having legal representation, it was apparent that he had no means to obtain that. In particular, it was clear that there had been no favourable response to his application for legal aid.
- [10]Accordingly and having regard to the broad understanding of the circumstances outlined, directions were made so that the correspondence which the applicant had informed the court he had forwarded to the respondent’s solicitors, be taken as his outline of argument and for the respondent to promptly prepare an outline of argument.[1] Subsequently directions were made for the listing of this matter for hearing on 14 February 2014, at Maroochydore and on the basis that the applicant appear, at his request, by video link from the Maryborough Correctional Centre. The circumstances of the applicant’s offending were first put before the magistrate by the prosecutor in terms that at 10.40 am on 9 April 2013 and after the vehicle was sighted in Mary Street, Gympie and subsequently pulled over the accused was found to be in the front passenger seat during a search of the vehicle police located personal items belonging to him. After taking legal advice he declined to be interviewed. The vehicle had been taken in the early morning of 24 March 2013 by persons entrance to premises at Boreen Point and removal of items including the car keys and the Holden Commodore motor vehicle. It was explained by the applicant’s solicitor after urging, as was apparent, that this matter should be treated as an early guilty plea:
“Now, in relation to my client, he was the passenger in this motor vehicle. I am instructed that he came into this position as a result of seeking to purchase that vehicle. He had seen the vehicle and become aware that it was for sale. He contacted the owner and arranged to try the vehicle out and meet in town. Now, my client understands that the deal was a good deal and as such he should have been aware that there was something not legitimate in relation to this deal. However, as the facts state, there were keys available for this car. So my client would have been slightly misled by the fact that someone selling a car provided him keys. My client is not connected or alleged to have been involved in the actual taking of the vehicle, merely his possession of that, being a passenger in possession of that vehicle. And he intended to buy it. And my client does not have a licence. It had been intended for his partner. He had his brother drive the vehicle who was licensed. And the vehicle was then tested – driven, and they were quickly intercepted by police. Now, my client accepted that in retrospect he should have known what was going on with this vehicle. It was too good a deal. But he was more interested in the car than the giving of much thought in that regard. He has no knowledge of the seller and had not met this person prior. And also had no ongoing – no knowledge in connection with the original theft of the vehicle. He was not a party to it.[2]
- [11]The basis for that charge being heard and determined summarily and therefore the basis of the appeal sought to be brought to this court, under s 222 of the Justices Act 1886, is that this was a charge that was required to be dealt with summarily, pursuant to s 552BA of the Code. However, that depended on this particular offence not being an “excluded offence” under s 552BB and that in turn relevantly depended upon the application of the “relevant circumstance” that the applicant pleaded guilty to the offence. It can otherwise be noted that there is no indication in the record as to the value of the vehicle involved and therefore as to whether the other potential relevant circumstance set out in s 552BB was satisfied or not.
- [12]The underlying basis of these proceedings therefore is of some potential relevance to issues which are raised by the applicant. That is because, as was noted in the respondent’s submission, some concerns raised in the applicant’s written materials appeared to suggest some issue being taken as to the guilty plea entered below. However and on the hearing, it was confirmed by the applicant that he did not mean to question or raise any issue as to his plea being entered in accordance with his instructions and in an exercise of free choice by him and accordingly the precise reasons for that choice are not important for present purposes.[3] It can also be noted that the applicant did not seek to depart from the position stated by his legal representative, to the effect that in the circumstances of his misconduct with the vehicle he could not claim any honest and reasonable belief that he had the consent of the person in lawful possession of the vehicle, to use it.
- [13]Further and although the matter was further complicated by the fact that despite the strictures of s 145 of the Justices Act 1886 were not followed or that the applicant was not personally or expressly informed of the substance of the charge nor asked to plead to it. However he was then legally represented and what occurred was that his lawyer was simply permitted to indicate his guilty plea to the charge and that does not invalidate the proceedings. However, it should be noted that the wisdom of that long established practice has been doubted.[4]
- [14]Essentially the applicant’s complaint about his sentence is that in the circumstances it was too severe and he may be kept in prison too long. That is, the complaint is as to the sentence being excessive, that is he seeks to raise what is expressed as his only option in s 222(2)(c) of the Justices Act 1886 and that is the only ground stated in the Notice of Appeal.
- [15]It is convenient to now return to some details of the applicant’s sentences and current position. After his release on parole on 30 November 2012, it was approximately four and a-quarter months later when the offence of unlawful use of a motor vehicle was committed, on 9 April 2013. As from 10 April 2013 the applicant’s parole order was suspended and he was returned to custody in respect of that sentence.
- [16]It can be noted that the applicant’s expected fulltime discharge date under the sentence imposed on 13 July 2012 (effectively commenced on 14 June 2012) was presented to the Magistrate who dealt with the applicant on 6 August 2013, as 14 February 2014 and that is the date which was fixed by the sentencing Magistrate as the applicant’s parole eligibility date.
- [17]It can otherwise be observed that if, as presently remains unclear, there is any complication arising as a result of the effects of s 209 to 215 of the Corrective Services Act 2006 and as a consequence of the sentence imposed on 6 August 2013, that could only relevantly extend that discharge date by one day.
- [18]In summary then and as matters stand before this court, the applicant is serving a total period of approximately 28 and three quarter months imprisonment and has up to 14 February 2014, which is also his parole eligibility date in respect of that period, served a total of 15 and three quarter months imprisonment, with a further period of four and a quarter months between 30 November 2012 and 8 April 2013 being counted, pursuant to s 211(2) of the Corrective Services Act, as time served on parole release.
- [19]However and apart from the circumstances which have been set out above, the applicant had a prior criminal history of some significance and had been imprisoned prior to the order made on 13 July 2012. In particular, on 20 November 2003 in the District Court at Gympie, he was sentenced to three and a half years imprisonment in respect of an offence of dangerous operation of a vehicle causing death and on 20 August 2009 in the Magistrates Court at Gympie, he was ordered to serve the whole of a period of suspended imprisonment of three months imposed on 31 March 2008 in relation to an offence of disqualified driving, with an immediate parole release date. That appears to have been because of his commission, on 9 August 2008, of the offences of committing a public nuisance and common assault, which were dealt with on 8 September 2008 in the Gympie Magistrates Court, with the imposition of a fine. In addition, it can be noted that the probation order which the subject of the breach proceedings dealt with on 13 July 2012, had been imposed for a period of six months in the Gympie Magistrates Court on 7 February 2012, in respect of a breach of bail conditions and further that on 2 December 1997 in the Gympie District Court a probation order was also made in respect of an offence of unlawful use of a motor vehicle.
- [20]The applicant was born on 4 May 1979 and is therefore now aged 34.
- [21]In the circumstances, including the commission of this offence in breach of parole, the head sentence of 15 months cannot be regarded as an excessive sentence, particularly as it was imposed concurrently with the sentence then being served by the applicant upon the suspension of his parole. Accordingly, the effect was to increase that period of imprisonment by approximately eight and three-quarter months’, to 5 November 2014 and as I have noted, to effect a total period of 28 and three-quarter months’ imprisonment. Any term imposed cumulatively must necessarily have been shorter, because it is at least different, in the circumstances, to see that any longer total period of imprisonment was appropriate to the applicant’s circumstances and to achieve an appropriate outcome in totality.
- [22]However the position in relation to the fixing of the parole eligibility date is less than clear. First there is no express explanation for the selection of that eligibility date. Although the applicant’s solicitor contended for a suspended sentence as an option, it can be observed that having regard to the applicant’s background and the reality confronting the sentencing Magistrate that whatever order he made, there remained an issue as to the point at which the applicant might again be released under his existing sentence and which was a matter for the relevant parole board. It was not inappropriate therefore, to impose a term of imprisonment and fix an appropriate parole eligibility date. Such a date rather than a parole release date, was required pursuant to s 160B(2) of the Penalties and Sentences Act 1992. This is because, having regard to the effect of s 209 of the Corrective Services Act 2006 and the definitions of “period of imprisonment” in s 4 and s 160 of the Penalties and Sentences Act 1992, the applicant then had a court-ordered parole order cancelled during that period of imprisonment.
- [23]The effect of the sentence imposed was that the applicant would serve about six and a‑quarter months of the 15 months’ imprisonment imposed, before having an eligibility for further release on parole. Further and having regard to the total period of imprisonment involved and as I have already noted, by that time he would have actually served approximately 15 and three-quarter months in custody and had the benefit of the four and a-quarter months of parole release, to constitute a total period of approximately 20 months that would count towards his period of imprisonment.
- [24]As I have observed, there was no explanation given by the sentencing Magistrate as to how the parole eligibility date was selected or fixed and therefore no reason for concluding that the sentencing Magistrate did so act, but it can be observed that there is no reason for assuming that parole eligibility cannot or should not be fixed prior to the expected end date of a sentence already being served, even if there has been a suspension or cancellation as a result of a breach of parole. Similarly, it should not necessarily be expected that such a prisoner will or should serve the entirety of that sentence before another release to parole. Obviously much will depend on the circumstances, including the length of the respective terms of imprisonment that comprise the period of imprisonment, in respect of which the parole eligibility is to be fixed and the overall effect of the sentence. However it can be observed that in circumstances like the present and having regard to those general considerations, an adjustment by even a month or so, may be regarded as significant.
- [25]The principles applicable to the fixing of allowances for early release of prisoners, were confirmed in R v Ruha, Ruha and Harris ex-parte DPP (Cth)[5]:
“Those principles were summarised by Buss JA, with extensive reference to authority, in Bertilone v The Queen [2009] WASCA 149 at [29]-[33]: provisions for early release confer a benefit upon the offender but such provisions are made in the interests of the community; the non parole period is the minimum period of imprisonment that justice requires the offender to serve; it mitigates the offender’s punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period; and relevant factors to be taken into account in determining the length of the non-parole period include the length of the head sentence and its position in the permissible range, the seriousness of the offence and the prospects of rehabilitation, and the need to ensure that the sentence reflects the criminality involved and does not lose the important significant effect of general deterrence”.
As has been noted the fixing of the parole eligibility date (or non-parole period) in this was required to be referable to the total period of imprisonment.
- [26]The concern that necessarily arises is as to whether the fixing of this parole eligibility date at 14 February 2014, appears to give appropriate regard to all of the relevant circumstances and particularly those relating to the applicant’s guilty plea and the sentence which he was already liable to serve, which respectively are required to be taken into account pursuant to s 13 and s 9(2)(l) and (m) of the Penalties and Sentences Act 1992.
- [27]Upon an independent review of this matter, the better view is that it should be concluded that the sentence is manifestly excessive in that the parole eligibility date should clearly have been fixed at a substantially earlier date. Whilst that means that error has been identified in the sentence imposed, in the sense of being an unreasonable or plainly unjust sentence and in accordance with applicable principles,[6] the immediate problem is that the present circumstances complicate the consideration of the appropriate method of rectification.
- [28]First, there appears to be little utility or point in now fixing an earlier parole eligibility date than today. This is particularly because of the effect of s 180(2)(b) of the CSA which has prevented any application for parole by the applicant before the determination of this appeal and the prospect that there will necessarily be a further period in custody, before any such application is made and determined and before any decision to release the applicant could be effected. Whilst this may ordinarily be regarded as the result of decisions made by the applicant and therefore not as effecting any error in the original sentencing order because of such decisions[7], this is a different situation where the applicant has successfully appealed the existing sentence and the delay in that determination and which has compounded the situation is essentially explained by the difficulties of the applicant in attempting to obtain legal representation and then dealing with the appeal process as an unrepresented litigant.
- [29]In those circumstances, it is necessary to have regard to the current position of the applicant, as well as those that pertained when he was sentenced and a significant difference now, is that he has effectively served the entirety of the earlier sentence and notwithstanding what may have previously been the desirability of a release on parole after consideration by a relevant board, the error that has been identified is likely to be compounded by insisting on that.
- [30]Accordingly, it is appropriate to look to other way of rectifying the situation. However and as was discussed at some length at the hearing of the appeal, there are potentially complications and difficulties confronting most if not all of the viable alternatives. Not the least of the potential problems was that as the applicant informed the court and as was potentially relevant to the exercise in resentencing the applicant, he was unsure about his bail status in respect of some other charges which remain unresolved and may in some way be linked back to property found in the car in April 2013.
- [31]Notwithstanding that the merit of the original conclusion of the sentencing magistrate that a release under the supervision of parole was appropriate, in all the circumstances it would now appear that the reality of the applicant’s position is such that it is most appropriate to look to a suspension of his sentence. However even that is fraught with difficulty because and pursuant to s 144(6) of the Penalties and Sentences Act, any operational period imposed, which must be not less than the period of imprisonment imposed under the suspended sentence, would take effect from 14 February 2014, being the date of the making of the order.
- [32]Realistically there appeared to be two options; one was to completely set aside the sentence imposed by the magistrate and to resentence the applicant to the balance of the term of 9 months that remains unserved, suspended for an operation period of equivalent length. However the substantial reason for not doing that is that it would effect a significant change to the effective sentence, including as to the head sentence, which has otherwise been viewed as not being inappropriate or excessive. The alternative adopted was to simply vary the sentencing magistrate’s order by deleting the fixing of the parole eligibility date and substituting an order that the term of 15 months’ imprisonment be suspended after the applicant had served a period equivalent to the period up to and including 14 February 2014 (192 days) and imposing an operational period of 15 months. A consideration which supported that, as an appropriate approach, was that had such a sentence been imposed in the first instance, the operational period must have been at least 15 months and was likely to have been set at a longer period and therefore extending beyond the present duration of the sentence that was imposed.
Footnotes
[1] With his agreement and at the hearing, a further letter sent by the applicant to the respondent, was also included.
[2] Transcript 1-3.30 – 1-4.2
[3] See Long v Spivey [2004] QCA 118 at [22]
[4] See McKinlay v Commissioner of Police [2011] QCA 356, McNamara v Queensland Police Service [2013] QCA 100 and Commissioner of Police Service and Magistrate Spencer [2013] QSC 202
[5] [2011] 2 Qd R 456 at [46]
[6] See House v R (1936) 55 CLR 499
[7] See R v Craggie [2014] QCA 1