JKT v QPS[2014] QDC 298

DISTRICT COURT OF QUEENSLAND

1. [1]
   HER HONOUR: This is an appeal against sentences imposed by Magistrate Mr Ross Mack at Doomadgee Magistrates Court on the 10^th of April 2014. On that occasion, he sentenced the appellant for a number of offences, but it is only the sentences in relation to assault occasioning bodily harm, common assault and public nuisance that are under appeal.

2. [2]
   The offence of common assault involved the first complainant. That involved a slap to the right side of her face. It caused her to fall off her bed and onto the side of a nearby chest freezer. The appellant then kicked her once to the rib cage on the right-hand side and this caused significant pain to her. This assault occurred against the backdrop of a domestic relationship between the first complainant and the appellant that had broken down. The appellant saw the first complainant with another man lying with his head in her lap. He brought a child in for her to look after and he spoke to her in a very rude way.

3. [3]
   The same day – this was on the 30^th of November 2013, he assaulted the second complainant, a 14-year-old girl. He punched her once to the head without any prior interaction with her. She was standing in the laundry area that he entered. She experienced pain, a nosebleed and a cut lip, but luckily did not sustain any more serious injury. The most aggravating features of that offence, of course, were the age of the girl – she was only 14 – and that there was nothing to indicate that she was likely to need to defend herself against the appellant.

4. [4]
   The other sentence imposed on that day that’s under appeal relates to the public nuisance charge. That occurred on a different day. In fact, it occurred earlier, on the 1^st of June 2013. That involved a fight in the street. There were up to 200 people gathered, but it seems that the facts put before the learned Magistrate were that there was a fight between the defendant and one other person. Subsequently the appellant gave admissions to the police about taking part in that fight. There were other matters dealt with on the day. There was an offence of wilful damage, and there was also a breach of a community service order, but the appeal does not relate to them.

5. [5]
   The penalties imposed by the learned Magistrate were two months for the common assault, nine months for the assault occasion bodily harm and one month for the public nuisance. They were concurrent terms of imprisonment. A parole release date was fixed on the 9^th of June 2014. That would have required the appellant to have served two months, because the sentence took place on the 10^th of April 2014;  however, the appellant has been on bail pending appeal since the 17^th of April 2014, so he has, therefore, served seven days. It is my intention that I declare that as time served in relation to the sentences that I impose. And if I don’t do so, could the parties remind me. And it’s evident from what I’ve just said that I am going to allow the appeal.

6. [6]
   The grounds of appeal are four-fold. Actually, perhaps five-fold. There are a number of errors of law that are alleged in relation to the sentencing process, and it’s also pleaded that the sentence itself is excessive in the circumstances.

7. [7]
   I need to deal with an issue about the scope of my jurisdiction on an appeal against sentence brought pursuant to section 222(2)(c) of the Justices Act. The Queensland Police Service relied on a decision by my brother Judge, Judge Dorney QC in the case of Berner v MacGregor [2013] QDC 33. Ms Orr argued this case as authority for the proposition that the appeal cannot succeed on an error of law; it can only be brought on the basis that the sentence is excessive. Respectfully, I decline to follow his Honour’s reasoning and I prefer the reasoning of my brother, Judge Long SC in the case of Pullen v O'Brien [2014] QDC 92, which I note Judge Bradley also preferred in a case earlier this year of TND v Queensland Police Service [2014] QDC 154.

8. [8]
   Respectfully, I agree with Judge Dorney’s conclusion that the specific wording of section 222(2)(c), which is the section relevant to this appeal, was not considered squarely in a Court of Appeal decision I was taken to of Teelow v the Commissioner of Police (2009) QCA 84. However, it is apparent to me that all three judges on the appeal acted on the basis that the principles that apply to a Court hearing an appeal against an exercise of discretion espoused in House v The King (1936) 55 CLR 499 applied when a District Court Judge was determining an appeal against sentence from a Magistrate. Of course, the precise argument that was considered by Judge Dorney QC wasn’t placed squarely before the Court of Appeal in Teelow’s case. In Teelow’s case, ultimately the appeal turned on whether there was an error of law due to the failure to record the Magistrate’s reasons for sentence.

9. [9]
   In my view, there would be a significant anomaly if a defendant’s scope for appealing against sentence were severely constrained if they pleaded guilty, but not so if they were sentenced after conviction. It also seems perverse that an error, whether of fact or law, on sentence could only be corrected if it produced an outcome that was excessive in the circumstances. Such a proposition, in my view, is at odds with the tenant that justice should not only be done but be seen to be done. In the absence of a specific power to ignore an error such as the power conferred on the Court by the Criminal Code section 668E (in relation to appeals against conviction after trial). I would be loath to interpret section 222(2)(c) as necessarily precluding an appeal on the ground of identified error by the Magistrate. Accordingly, I will consider the errors that have been relied upon by the appellant.

10. [10]
    The first one alleged is that the Magistrate failed to specifically explain how the plea of guilty was taken into account – a requirement of section 13 of the Penalties and Sentences Act. Ms Orr referred me to section 13, subsection (5), which provides that a sentence is not invalid merely for failure to comply with that requirement. However, decisions such as the case of The Queen v Woods [2004] QCA 204 and CCR v QPS [2010] QDC 486 establish that the obligation of a sentencing judge to state not just that the plea has been taken into account, but how that has been done.

11. [11]
    It’s common ground that the learned Magistrate did not state how he had taken into account that plea of guilty and I consider that is an error which provides sufficient basis for the Court to intervene to set aside the sentence and exercise the sentencing discretion afresh.

12. [12]
    The second alleged error involves section 9, subsection (3) of the Penalties and Sentences Act, which provides that in sentencing a violent offender, the Court must have regard, primarily, to a number of matters. The first of those, in subsection (a) is the risk of physical harm to the community if a custodial sentence is not imposed. The Crown, Ms Orr, submitted that the learned Magistrate may well have not regarded this factor had any particular significance on this sentence; though, she accepted that, of course, given the terms of section 9(3), it was a relevant factor generally speaking. The appellant’s representative contended that this section should be interpreted to mean that the Court should consider whether there is a risk of physical harm if imprisonment is not imposed and the Court’s failure to do so was an error.

13. [13]
    It seems to me that his Honour did not turn his mind to any risk of harm to others or of the need to protect the community. Certainly, there was nothing explicit I could find in his reasons to suggest he had. Early during Mr Castor’s submissions to the learned Magistrate, Mr Mack announced he favoured imprisonment and invited Mr Castor to discourage him from that view. At that stage, I note he had not heard or invited any submissions from the Prosecutor. In my view, by starting from the conclusion that imprisonment was appropriate before considering all the relevant factors, there was a real risk that his Honour would inadvertently skew the sentencing process, placing an onus on the defence to justify departure from a stated assumption that imprisonment was appropriate, without considering all relevant circumstances before forming that view.

14. [14]
    In that respect, I consider his Honour did err, not by failing to expressly state his view on the issue of risk of physical harm if imprisonment was not imposed, but by failing to consider the issue at all. There is nothing that Ms Orr could point me to in the transcript that would allow me to infer he had turned his mind to it and considered it was not a factor of any significance on this particular sentence.

15. [15]
    A further issue raised on appeal related to the evidence of and prospects for rehabilitation of the appellant. His Honour obviously did consider the court report under the hand of Patrick McKenna, dated the 6^th of December 2013. He referred to information derived from it in the course of the sentencing proceeding, and in my view, with respect, he was right to note factors that indicated previous orders had not prevented these offences. However, his Honour did not appear to consider the careful observations made by Mr McKenna, which included that the appellant was receiving a measure of benefit from the probation order, which had expired on the 1^st of November 2013;  that his response to supervision had been varied;  that the offences he had subsequently committed demonstrated that the community-based orders hadn’t achieved rehabilitation, but that the appellant had recently voluntarily attended at ATODS, having indicated his understanding that there was a link between his consumption of alcohol and his offences, and that he wanted to desist from using alcohol.

16. [16]
    Mr McKenna considered the appellant was suitable for community-based orders, but he also said something which caused me to reflect. He said that he thought the measures available on a community-based order would not be sufficient to effectively manage the risk of the appellant reoffending. So I think it’s fair to say that that report had some positive material in it for the appellant, but it was certainly not one that pointed only to a community-based order in the appellant’s case, and I didn’t understand Mr Castor as to be submitting for that.

17. [17]
    His Honour might have read Mr McKenna’s report to conclude that a community-based order was not appropriate. Again, his reasoning on this point is not clearly expressed. I’m not persuaded, though, that he erred. It seems to me that he did consider the evidence of and the prospects of rehabilitation as relevant factors. Both he considered they were relevant factors and he considered the evidence before him. The fact that another judge might come to a different view on what the appropriate sentence was does not mean that he has erred in any way.

18. [18]
    There was one other error which related only to the issue of the public nuisance offence. It was alleged that his Honour sentenced on a misunderstanding or a misstatement of the factual circumstances. He used the phrase “huge brawl” when he sentenced the appellant to one month imprisonment for this offence. That error does seem to be made out. If one looks at the transcript, it was not suggested that there was a huge brawl. What the prosecutor informed the court was that there were 200 people gathered in the street and that, in that context, there was a fight between the defendant and another person. So it seems to me that there is an error there in relation only to the public nuisance offence.

19. [19]
    The final ground of appeal was that the sentence was excessive. This was directed, I think it’s fair to say, primarily at the sentence imposed in relation to the assault occasioning bodily harm. Both representatives conceded they could find nothing directly comparable to this case, and that’s hardly surprising. This is unusual. It is a single punch to the head, but it is to a 14 year old girl who could not be expected to know that she would have to avoid the appellant’s ire. Given his age and that she was not directly part of the incident that transpired earlier, which led to the charge of common assault, these circumstances do make it an unusual, and, I think, a serious example of assault, albeit the injuries were minor. However, it was something that occurred in the context of a dispute with a former partner, when his emotions were aroused by how he was spoken to by her and his jealousy.

20. [20]
    The girl, he thought, had been encouraging others to have a relationship with his former partner. While that provides context by explaining his assault, it also raises the spectre that his motivation was revenge against a person he thought had contributed to the loss of his relationship or to his former partner finding another person. Such a motivation is relevant, but would hardly be considered a factor in mitigation. On one view, it aggravates the offence, particularly given the age of his victim.

21. [21]
    I am not persuaded that the penalty that was imposed, at least in terms of the head sentence, was so out of the range of sentences for offences of this nature, given the circumstances that I’ve referred to, that it could be said to be excessive. That is, a head sentence of nine months, whilst it might be described as severe, I accept could be within range for a case of assault occasioning bodily harm. However, I think, taking into account all of the circumstances, the sentence, as it was structured, was excessive. I’m particularly there referring to the requirement that the appellant serve two months of that in custody.

22. [22]
    In any case, because I’ve decided that there were errors in the exercise of his Honour’s sentencing discretion, it does fall to me to exercise that discretion afresh and reimpose sentence. I’ve already indicated, to some extent, my view of the facts in discussion of the offence involving the 14 year old girl, but let me reiterate the key features in my mind. There were two victims of violence. There was an assault on a 14 year old girl, who had no notice of the attack. That attack on her caused injury and pain, but luckily no serious injury. There was, it seems to me, an element of vengeful conduct about that offence.

23. [23]
    However, there was a single course of conduct between the two acts of violence. They occurred when his emotions were still aroused by the first incident, which gives some context to it. The offence of public nuisance, although I am re-exercising my discretion in relation to that, the sentence – I don’t see that a sentence of one month imprisonment necessarily is excessive, given there were some other earlier public nuisance offences. The personal circumstances, I think, for the appellant largely favour, though, a sentence that does promote rehabilitation. That is where I considered, with respect, the learned magistrate’s sentence was excessive.

24. [24]
    The appellant had no prior offences of violence at all. He had very limited prior history. He had one public nuisance offence as a child and one completely different type of offence, failure to stop a motor vehicle when directed to do so. He was a relatively young man at the time of these offences.

25. [25]
    There was evidence before the court that he did gain some benefit from a community-based order, which gave hope that further direction might assist. He had shown some insight about the link between alcohol and his offending, although I do note that that insight does seem to have predated the offences of common assault and assault occasioning bodily harm. Those offences occurred in November of 2013, and it seems that it was around September of 2013 that he first attended at ATODS. So that insight had not prevented him committing those two offences. But he did act voluntarily, and prior to these offences of violence, and he started and continued with contact with ATODS. Mr McKenna reported he was well motivated to continue with alcohol counselling.

26. [26]
    It’s also significant that the appellant had secured full-time employment at the time he was sentenced. This is a significant factor in my mind, given he lives in a community where there are limited employment opportunities. It seems that this is a factor that weighs in favour of an order that would have him continuing employment for two reasons. One is that he did have dependants who would benefit from him maintaining his employment. Secondly, because the courts are well aware of the link between employment and stability and the link between stability and rehabilitation. So a sentence that promoted his stability would also that one that facilitated him retaining his employment. The other factor that would be, I think, appropriate for the court to reflect is his apparent remorse and the apologies that he made to both victims. As the two offences of violence are closely connected, I consider it’s appropriate to take a global approach and fix a penalty with regard to both. There is a need to consider risk of harm to others, a particular concern given the appellant’s offending had escalated from different type of offences, an earlier public nuisance offence in June of 2013, to these two offences of violence, even after he knew that he had a problem with alcohol. Mr McKenna observed the benefit but also the risks of community-based orders.

27. [27]
    It seems to me that that can be adequately deal with in this way; by fixing a head sentence of imprisonment that attaches to the assault occasioning bodily harm, which reflects the totality of offending; and placing him on a community-based order on the other offences, with conditions that require him to abstain from consuming alcohol, (which was the aim that he reported to Mr McKenna); requiring him to continue with counselling through ATODS throughout the course of the community-based order; and requiring him to undergo a suitable program in relation to managing his emotions. I will also take into account that he has served seven days in custody, which I hope has provided a salutary lesson and will enhance the deterrent effect of being placed on a sentence that is a term of imprisonment, which I will suspend after he has served seven days in custody. Given I have declared that as time served, as long as he complies with the conditions of a suspended sentence and does not commit another offence punishable by imprisonment, he will not have to serve further time.

28. [28]
    So I should announce the sentences. Convictions are recorded for all three. In relation to the assault occasioning bodily harm, I impose a term of six months imprisonment. I will suspend that after he has served seven days in custody. I will fix an operational period for the sentence of six months from today, and I will declare that he has been in custody between the 10^th of April 2014 and the 16^th of April 2014, a period of seven days of pre-sentence custody. In relation to the second offence of common assault, I will impose a probation order of six months, and I will do the same in a concurrent probation order of six months in relation to the offence of public nuisance. I have announced the special conditions of abstaining from consumption of alcohol, continuing with ATODS counselling, and undergoing a suitable program in relation to managing his emotions. Those three conditions will attach to the two concurrent probation orders.

29. [29]
    So the effect of the sentence is that the six month period of imprisonment is suspended as of now, and the appellant must report to commence concurrent probation orders.

30. [30]
    Now, Mr Castor, I need to hear from you about that. Where is the appellant located?

31. [31]
    MR CASTOR: Your Honour, I did need to raise that. The appellant is actually on remand at the moment in relation to other offences, your Honour.

32. [32]
    HER HONOUR: All right.

33. [33]
    MR CASTOR: Yes.

34. [34]
    HER HONOUR: Well, that rather changes the sentence that can be imposed in the circumstances. He’s on remand for matters that have not yet been determined?

35. [35]
    MR CASTOR: Yes, your Honour. The next-in-court date is the 4^th of the 11^th in the Mount Isa Magistrates Court, your Honour.

36. [36]
    HER HONOUR: All right. All right. Well, it seems that I am not in a position, then, to impose community-based orders ‑ ‑ ‑ 

37. [37]
    MR CASTOR: No.

38. [38]
    HER HONOUR: ‑ ‑ ‑ at all in relation to – so the – I will not impose the sentences for common assault and for public nuisance that I announced. Instead, I will impose the same sentences that were imposed by his Honour of two months and one month imprisonment, concurrent terms for the common assault and the public nuisance. I will also make a different order, though, in relation to the assault occasioning bodily harm. It was my intention that the appellant would be supervised in the community when he was released. It was my preference that that was done by way of probation because of the greater scope for access to programs, but he may well get that on parole as well.

39. [39]
    MR CASTOR: Yes.

40. [40]
    HER HONOUR: Given there will be no supervision in the community, I do not think it’s appropriate to suspend the sentence. Instead, I will fix a parole release date today on all sentences, and I will declare that he has served seven days in custody. That’s referrable to all terms of imprisonment I’ve just imposed. Seems to me that then gives him credit for the time served on these offences.

41. [41]
    MR CASTOR: Yes.

42. [42]
    HER HONOUR: It gives him supervision once he is released. Of course, the parole release date will, or may, be affected by what comes – what is to come yet.

43. [43]
    MR CASTOR: Yes, of course.

44. [44]
    HER HONOUR: But – and my understanding of the provisions of the Penalties and Sentences Act is that although I’m fixing a parole release date today, because he is on remand for other offences, that will not take effect. Ms Orr, is that your understanding of its effect?

45. [45]
    MS ORR: That’s so, your Honour. It may have an effect if he were to be applying for bail for the other offences.

46. [46]
    HER HONOUR: Yes. All right.

47. [47]
    MS ORR: Thank you.

48. [48]
    HER HONOUR: Thank you. So once he is released, whether on bail or otherwise, he will be under the supervision of corrective services on parole. The sentence, as I understand it, runs from today because I am re-sentencing.

49. [49]
    MR CASTOR: Yes.

50. [50]
    HER HONOUR: So he will have served seven months, but – sorry, seven days, but he will have whatever time is left on those concurrent terms of imprisonment once he is released. He may well have served a couple of them out before he is dealt with by the Magistrates Court. All right. Thank you for bringing that to my attention, Mr Castor.

51. [51]
    MR CASTOR: Yes, thank you, your Honour