Oakhill v The Commissioner of the Queensland Police Service
[2014] QDC 292
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- Oakhill v The Commissioner of the Queensland Police Service[2014] QDC 292
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Oakhill v The Commissioner of the Queensland Police Service[2014] QDC 292
Oakhill v The Commissioner of the Queensland Police Service[2014] QDC 292
DISTRICT COURT OF QUEENSLAND
CITATION: | Oakhill v The Commissioner of the Queensland Police Service [2014] QDC 292 |
PARTIES: | TYRAN LEE OAKHILL (appellant) v THE COMMISSIONER OF THE QUEENSLAND POLICE SERVICE (respondent) |
FILE NO: | 139 of 2014 |
DIVISION: | Appellate |
PROCEEDING: | Appeal under s 222 of the Justices Act |
ORIGINATING COURT: | Maroochydore |
DELIVERED EX TEMPORE ON: | 10 December 2014 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 10 December 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 benefit for the appellant’s guilty pleas or time spent in custody – whether sentencing Magistrate failed to properly take into account totality issues – whether sentencing Magistrate erred by fixing parole eligibility date at what he incorrectly understood to be the conclusion of the existing 18 month sentence Corrective Services Act 2006, s 209, s 211 Justices Act 1886, s 222, s 225 Juvenile Justice Act 1992, s 148 Penalties and Sentences Act 1992, s 13, s 160-160H Transport Operations (Road Use Management) Act 1995, s 9, s 83, s 160B R v Woods [2004] QCA 204 Whitney v The Commissioner of the Queensland Police Service [2014] QDC 172 |
COUNSEL: | S. Lewis for the Appellant. M. Gawrych for the Respondent. |
SOLICITORS: | Legal Aid Queensland for the Appellant. Commissioner of Police for the Respondent. |
Introduction
- [1]On the 6th of August 2014, the appellant came before the Maroochydore Magistrates Court and pleaded guilty to five offences. First, there were offences committed on the 3rd of June 2014 of disqualified driving where the disqualification was by Court order and an offence of driving without due care and attention. Then, on 1 July 2014 and whilst the appellant was still at large, he was found in possession of a small quantity of amphetamine, a utensil, a water pipe that he had used in connection with smoking a dangerous drug and possession of two hypodermic syringe and needles that had been used in connection with the administration of a dangerous drug and, in respect of which, he had failed to properly dispose of.
- [2]The appellant was, by the commission of these offences, in breach of earlier Court orders and, in particular, a suspended sentence, first imposed in the Magistrates Court at Caloundra on 21 September 2012, a separate suspended sentence, which was first imposed in the District Court at Maroochydore on 17 June 2013 and a Court ordered parole order that was made on 17 January 2014.
- [3]Prior to those orders, the appellant had an extensive criminal history dating back to 2007, when he was aged 13 years and apart from that year, two minor and inconsequential entries, it can be noted that, on 21 January 2008, he was placed on six months probation for offences of burglary, unlawful use of a motor vehicle, attempted entry of a dwelling with intent and stealing.
- [4]It should be noted that the history placed before the Magistrate, without any objection or, indeed, without any apparent advertence by anyone in the proceedings, included all of the appellant’s juvenile criminal history, including entries for which no conviction had been recorded. That is allowed under s 148 of the Juvenile Justice Act, but it should be noted that a different position is stated in subsection (1) as the primary position and subsection (3) allows the admission of such material. Accordingly, a court may be called upon to exercise a discretion as to whether any such evidence is to be admitted and, therefore, taken into account. Ordinarily that discretion will be exercised on application made by the prosecutor and, whilst that did not occur here, the absence of any objection by the defendant’s lawyers must necessarily deprive that situation from categorisation as an error, which invalidates this sentencing process.
- [5]Such a conclusion is also warranted because the real focus of attention, in any event, was necessarily upon the adult criminal history of the appellant, who turned 17 on 17 February 2011. That demonstrated the following complicated and obviously concerning situation, leaving aside some of the more incidental or minor entries in it.
- a)On 21 September 2012, the appellant was sentenced in the Magistrates Court at Caloundra in relation to four offences of assault occasioning bodily harm and some other more minor offences. He was then sentenced to six months imprisonment, which was suspended for an operational period of 18 months; they were concurrent orders in relation to those assaults.
- b)On 17 June 2013, he came before the District Court at Maroochydore and was sentenced in relation to a number of offences, including armed robbery in company, it seems with the use of personal violence, and another armed robbery in company. There were also offences of breaking into a dwelling at night with intent and some drug-related offending. The effective outcome was a period of four years imprisonment, which was suspended for an operational period of four years, and pre-sentence custody totalling 465 days and dating back to the 9th of March 2012, was declared as time already served under that sentence. There was also a three year probation order made. So the effect was a suspension of the balance of a period of 4 years after the 465 days of pre-sentence custody was taken into account and the concurrent imposition of the probation order.
- c)On 16 December 2013, the appellant was back before the Magistrates Court at Maroochydore. He was then dealt with for an offence of stealing, possession of dangerous drugs and breaches of bail condition offences. They had occurred variously in August and October and November of 2013, and quite apart from fines that were imposed in relation to those offences, the suspended sentence which had been imposed on 21 September 2012, and, which was then breached by those offences, was the subject of an order extending the operational period for six months.
- d)On the 17th of January 2014, the appellant came before the District Court at Maroochydore and on that occasion I dealt with the matter. On the breach of the suspended sentence that had been imposed on the 17th of June 2013, by the same offending which had been earlier dealt with in the Magistrates Court and in respect of the breach of the probation order which had been made on the 17thth of June 2013, there was the following outcome: an order was made invoking a part, being 18 months, of the suspended sentence that had been imposed in June 2013 and the appellant was resentenced in relation to the probation order, by the imposition of a concurrent period of 18 months imprisonment. He was then given a parole release date of an immediate nature; that is, on 17 January 2014. The effect of that, of course, was that a period of 18 months out of the suspended sentence was converted to an obligation under a parole order.
- e)Then, on 28 March 2014, the appellant was again before the Magistrates Court at Maroochydore; this time in relation to a regulatory offence committed on the 28th of December 2013 and the possession of drugs and a failure to take reasonable care and precautions in respect of a syringe or needle, both offences occurring on the 9th of January 2014. Again, because those matters also breached the suspended sentence that had been ordered in September 2012 in the Magistrates Court and, apart from fines that were imposed, on the breach of the suspended sentence, the operational period was extended for a further six months.
- f)In addition, the appellant’s traffic record included some prior instances of unlicensed driver as a juvenile and for which orders to perform community service were made without recorded convictions.
- [6]The facts of the offending which brought the appellant before the Magistrates Court on 6 August 2014, may be briefly summarised as follows. On the 3rd of June 2014, the appellant was driving a car with a child as a passenger. He lost control of the car at an off-ramp to a highway, which resulted in the vehicle colliding with the concrete curbing on the edge of the roadway, causing it to rollover. Consequently, the car struck a streetlight pole from its foundations, as it came to rest on its roof. The appellant fled the scene, but later admitted to the offence and said that the road was wet, that he could have been travelling a bit slower, not eating and not looking at his passenger. At the time of the offence, the appellant was disqualified from holding a driver’s license, having been disqualified by court order on 16 December 2013.
- [7]The drug offences arose from police action in respect of the appellant on 1 July 2014, when he was found in possession, at his residence, of a water pipe and a bag which contained two used syringes and a small quantity of amphetamine.
- [8]He was aged 20 both when he offended and when he came before the court in August 2014. On that occasion, the sentencing Magistrate dealt with the appellant’s situation that was before him by making the following orders in sequence:
- (1)He committed the appellant to custody to appear before this court on a date to be set in relation to a breach of the suspended sentence imposed by this court on 17 June 2013;
- (2)The appellant was ordered to serve the whole of the six month term of imprisonment imposed in the Magistrates Court at Caloundra on 21 September 2012;
- (3)In relation to the five offences that were before the Magistrate, the same term of six months imprisonment was imposed on each offence with each term to be served concurrently with each other, but ordered to be served cumulatively on the term of imprisonment that was then being served, or, to put the matter more correctly, on the period of imprisonment that the appellant was then serving;
- (4)The appellant was disqualified from holding or obtaining a driver’s license for a period of two years; and
- (5)The Magistrate fixed the parole eligibility date at 4 August 2015.
- [9]By notice of appeal filed on 28 August 2014, the appellant appeals against the orders made in sentencing him on 6 August 2014, on the expressed ground that:
“the sentence was manifestly excessive; the six month terms of imprisonment given for each of the five offences was excessive, given the nature of the charges and the relative lack of similar history for the possession of dangerous drug, possess utensil, fail to dispose of needle/syringe and drive without due care offences. Ordering that the activated term of imprisonment in relation to the breach of a suspended sentence be served cumulatively was also excessive. By setting an eligibility date of 4 August 2015, his Honour did not give any benefit for the early plea of guilty or time spent in custody and did not properly take into account totality issues”.
- [10]Earlier this year and in Whitney v The Commissioner of the Queensland Police Service [2014] QDC 172, I dealt with similar issues that were raised in that matter, and it may be first noted that, at paragraphs [14] and [15] of that judgment, I dealt with the general principles to be applied in appeals of this kind and which are to be applied in this case.
- [11]In the first instance, it can be noted that the sentencing Magistrate did not order that the activated suspended sentence of six months imprisonment be served cumulatively with the period of imprisonment the appellant began serving on 17 January 2014. However, the same effect was achieved through the imposition of concurrent terms of six months imprisonment in respect of each of the five offences before the Magistrate and, although those terms were to be served concurrently with each other, they were ordered to start at the end of the then existing sentence, which was then expected to be discharged by 4 August 2015.
- [12]Secondly, and whilst the appellant does, in the written outline, make submissions directed at the totality or total effect of the sentence that was imposed, the ultimate submission was directed at resentencing the appellant to achieve a parole eligibility date, on or before 4 February 2015. Although and in oral submissions, it was frankly conceded that that was calculated without appreciation of the fact that perhaps 16 days might be added to affect a midpoint of the period of imprisonment, having regard to the effect of the Magistrate’s orders.
- [13]Although it was achieved by the sentencing Magistrate in an unsophisticated manner, including the imposition of the maximum penalty provided under s 83 of the Transport Operations (Road Use Management) Act 1995, of six months imprisonment, for an obviously bad case of driving without due care and attention, the addition of six months imprisonment to the appellant’s total period of imprisonment to be served, was not inappropriate or infected by any error and might have been alternatively achieved by making the imposed but previously suspended term cumulative on the existing sentence. There is no contention to this court that it was in any way inappropriate to activate the suspended term.
- [14]However, the appellant points out that the fixing of the parole eligibility date at 4 August 2015, had the rough effect of setting the parole eligibility at 75 per cent of the total period of two years imprisonment that the appellant was liable to serve. A difficulty with that submission is that it overlooks any time that the appellant has completed on parole and which will count as time served under the sentence imposed on 17 January 2014. But the fact remains that the date selected as the parole eligibility date was what was then expected to be the appellant’s full-time discharge date under that existing sentence and there is an absence of any explicit explanation for the selection of that date.
- [15]The more specific complains of the appellant are, first and whilst the sentencing Magistrate stated that he was taking the appellant’s guilty pleas into account, the sentence imposed does not indicate that any benefit by way of reduction of sentence was allowed. As the appellant contended, having regard to the provisions of s 13 of the Penalties and Sentences Act 1992, in R v Woods [2004] QCA 204 at [10], it was observed:
“The necessity to take a guilty plea into account and state that it has been done and how it has been done is an essential part of the transparency of the sentencing process. In R v Taylor & Napatali; ex parte A-G (Qld) 3 McPherson JA observed:
‘Section 13(1)(a) … requires a sentencing court to take a guilty plea into account. It uses the expression ‘must take the guilty plea into account’. Having done so, the court ‘may then reduce the sentence imposed’ … and, in doing so, have regard to the time at which the offender pleaded guilty or advised the intention of doing so: s 13(2). This confers a discretion on the sentencing court; but it is plainly intended that the sentence will ordinarily undergo some reduction on that account. If it is not so reduced, the reasons for not doing so must be stated in open court: s 13(4)’[emphasis in original]
However, section 13(5) provides:
“A sentence is not invalid merely because of the failure of the court to make the statement mentioned in subsection (4), but its failure to do so may be considered by an appeal court if an appeal against sentence is made”.
- [16]Secondly, it is contended that the sentencing Magistrate failed, as he was required to do by s 9(2)(l), to have regard to the fact that the imposition of a term of imprisonment on the five additional offences would lead to the automatic cancellation of the appellant’s parole pursuant to s 209 of the Corrective Services Act 2006 and have the implication that only a parole eligibility date could and was required to be fixed pursuant to section 160B(2) of the Penalties and Sentences Act.
- [17]Although the second contention was also expressed in terms of a failure to consider the liability effected by the imposition of those terms of imprisonment, for the appellant to serve the 18 months imprisonment imposed on 17 January 2014, that contention is misconceived. The appellant’s liability to serve that term of imprisonment was effected when that sentence was imposed on 17 January 2014.
- [18]The pre-sentence custody certificate that was placed before the sentencing Magistrate disclosed the following. From 17 January 2014 to 4 February 2014, the appellant was on parole. On 5 February 2014, parole was suspended, however he was not returned to custody until 12 February 2014. He then remained in custody until 27 April 2014, and, on 28 April 2014, was rereleased on parole, which was again suspended on 19 June 2014, and he was returned to custody again, on 1 July 2014. He was therefore again on parole from 28 April 2014 until 18 June 2014 and, from 1 July 2014, in custody and, on 7 July 2014, his parole was indefinitely suspended. The shifting of the expected full-time discharge date from 17 July 2015 to 4 August 2015 is explained by the periods between suspension and return to custody, that is, from the 5th to the 12th of February 2014 and from the 19th of June to the 1st of July 2014, a total of 19 days, not counting as time served.
- [19]Moreover, the further problem with that submission is that not only was the effect of s 209 of the Corrective Services Act, specifically addressed in the submissions of the appellant’s lawyer to the sentencing Magistrate, but his Honour clearly appreciated that his sentencing orders would have such an effect; particularly in requiring the fixing of a parole eligibility date, rather than a parole release date and the selection of what he specifically acknowledged was then expected to be the end point of the existing sentence as that eligibility date.
- [20]Of course, a consideration which does not appear to have been averted to, is that the effect of s 211 of the Corrective Services Act is that the period from 3 June 2014, when the appellant first offended, and 18 June 2014, a total of 16 days, will not be counted, and, therefore, the end date of the sentence imposed on 17 January 2014 will be pushed back to 19 August 2015 and the cumulative period of six months, imposed by the sentencing Magistrate will commence on 20 August 2015.
- [21]What remains, however, is the unexplained selection of what was then wrongly understood to be the release date in respect of the existing period of imprisonment, as if it had been served in full (including the time on parole which remains to count towards that sentence), as the parole eligibility date.
- [22]The question is then as to how, if at all, the appellant’s guilty pleas to the most recent offences attracted any benefit for the appellant and whether that was an appropriate exercise of the sentencing discretion in all of the circumstances. The respondent correctly points out that the sentencing Magistrate expressly stated, in his sentencing remarks, that he was taking into account the guilty pleas but the point is that s 13 of the Penalties and Sentences Act requires also consideration as to whether there will be a reduction in sentence as a consequence, and section 13(4) specifically requires that:
“(4)A court that does not, under subsection (2), reduce the sentence imposed on an offender who pleaded guilty must state in open court—
- (a)that fact; and
- (b)its reasons for not reducing the sentence.”
- [23]The respondent contends that such reduction may be inferred in that the sentencing Magistrate imposed only concurrent terms for the five new offences and two separate instances of offending that was involved and also imposed the activated suspended sentence concurrently with the existing sentence. However and whilst the sentencing Magistrate could have further accumulated other aspects of the sentence that he imposed, it appears tolerably clear that it was determined that the appropriate total sentence to be imposed was a period of two years from 17 January 2014 and, therefore, the critical assessment was as to an appropriate parole eligibility date for that period of imprisonment having regard to the circumstances then before the Court.
- [24]That is the purpose of the provisions in s 160 through 160H of the Penalties and Sentences Act and as is explained in section 160F, an objective of these provisions is to ensure that there is only one parole eligibility date, or parole release date, in existence for an offender at any given time and that such a date is to be fixed in respect of an offender’s period of imprisonment rather than any individual term comprising that period.
- [25]As the respondent contends, it can be inferred that it was the sentencing Magistrate’s intention to fix that date, at what he then incorrectly understood to be the conclusion of the existing 18 month term. But, of course, in doing so, that then precluded any earlier eligibility for release and incorporates an assumption that the appellant must first serve out that existing sentence before being so eligible, or, at least that because of his reoffending, in breach of the suspended sentences and his court-ordered parole, in particular, that should be the expected outcome.
- [26]For the reasons that I have earlier expressed in Whitney, particularly at paragraphs [23] – [25] and [29], there is no statutory or other warrant for such a view. The only statutory restriction is that the date must not be fixed any earlier than any current parole eligibility date or parole release date; that is, any previously fixed such date which has been cancelled under s 160E. Here, in the circumstances that were before the sentencing Magistrate, that date was 17 January 2014.
- [27]Neither was such a view appropriate to the appellant’s circumstances. Despite the seriousness of the most relevant parts of the appellant’s criminal history and particularly the contempt he had shown for court orders, by reoffending after 17 June 2013, in particular, it may at least be said that the nature of the reoffending was not as serious as the offences then dealt with, or, for that matter, the offences dealt with on the 21st of September 2012. He is still only 20 years old, and obviously needs to deal with an underlying drug addiction, but that is a problem that he has simply obviously failed to confront to date. Also, and importantly, it can be noted that prior to his sentence on 17 June 2013, he had served 465 days in custody which was then declared as time served and he had, by 6 August 2014, served something in excess of three months or more of the 18 months imposed on 17 January 2014. It can be noted that there was a further period in excess of two months that would count as time served on parole.
- [28]Whilst the respondent, on the hearing of this appeal, contends that it should be inferred, properly it seems to me, that those periods of imprisonment were served by way of suspension because of some problem in the appellant’s performance on parole, it necessarily remains that that is time that has been served in relation to the period of imprisonment with which the Court is concerned.
- [29]In the circumstances, it should be concluded that there was error in the fixing of the appellant’s parole eligibility date and that the fixing of that date at 4 August 2015, made the sentence manifestly excessive. The appeal will be allowed and the most appropriate course under s 225 of the Justices Act, is to vary only the order of the sentencing Magistrate as to the fixing of the parole eligibility date.
- [30]It is unnecessary to dwell with any more precision than follows, on the most appropriate parole eligibility date to substitute. This is because the utility of doing so is necessarily attenuated by the proceedings for the breach of the suspended sentence imposed by this Court, on 17 June 2013 and which was the subject of the first order of the sentencing Magistrate on 6 August 2014 and committing that matter to this Court and which will be heard immediately following the hearing of this appeal. However, and because of the requirements of s 160F and 160B(4) of the Penalties and Sentences Act and the necessity for sequencing in relation to this issue and the need to vary the sentencing Magistrate’s order, a date must be specified.
- [31]The approach of the appellant’s submissions was to look to an approximate mid-date of the period of imprisonment, that is otherwise the subject of the orders that have been made and it seems to me that, in the circumstances of this case, that is appropriate, to give due regard to both the circumstances generally and to provide an appropriate reduction of the sentence imposed by way of mitigation, having regard to the guilty pleas to the offences which came before the Magistrates Court in August 2014. Accordingly, it would be appropriate to fix the parole eligibility date at 20 February 2015.
- [32]Accordingly, the formal order is that the appeal is allowed and the order made by the Magistrate on 6 August 2014, to fix the appellant’s parole eligibility date, is varied so that the date so fixed is 20 February 2015.
- a)