Palmer v Queensland Police Service
[2015] QDC 11
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- Palmer v Queensland Police Service[2015] QDC 11
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Palmer v Queensland Police Service[2015] QDC 11
Palmer v Queensland Police Service[2015] QDC 11
DISTRICT COURT OF QUEENSLAND
CITATION: | Palmer v Queensland Police Service [2015] QDC 11 |
PARTIES: | NELSON FUJITA PALMER v QUEENSLAND POLICE SERVICE |
FILE NO/S: | 119/14 |
DIVISION: | Appellate |
PROCEEDING: | Section 222 appeal |
ORIGINATING COURT: | Magistrates Court at Ipswich |
DELIVERED ON: | 5 February 2015 |
DELIVERED AT: | District Court at Ipswich |
HEARING DATE: | 29 January 2015 |
JUDGE: | Bradley DCJ |
ORDER: | Appeal dismissed |
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE – where the appellant pleaded guilty to multiple offences of violence and against property – where the offences were committed at a school – where the appellant was sentenced to 12 months imprisonment with release on parole after 3 months – where the appellant had a minimal criminal record – whether the sentence was manifestly excessive. R v Taylor [1999] QCA 323 R v Lovell (1999) 2 Qd R 79. R v Dullroy; ex parte the Attorney-General [2005] QCA 219. |
APPEARANCES: | S Kissick of counsel, instructed by Bosscher Lawyers, for the appellant N Needham of counsel, Office of Director of Public Prosecutions Ipswich, for the respondent |
- [1]On the 19th of November 2014, the appellant pleaded guilty to 13 indictable offences in the Magistrates Court at Ipswich. Two offences were committed in June and July 2013 and 10 during an incident that occurred at the Ipswich Boys Grammar School on the 24th of June 2014. A further offence of wilful damage was committed in the Ipswich Watch-house after the appellant’s arrest in relation to the previous offences, when he ripped up the flooring in the padded cell.
- [2]In brief summary, the appellant, in June and again in July 2013, broke into his former school by breaking a window. On the first occasion he left without taking any property, but on the second he took a computer monitor. The appellant was identified as the offender on both occasions by fingerprint evidence. The major offending took place on the afternoon of the 24th of June 2014 at Ipswich Boys’ Grammar School, when the appellant and a co-offender, under the influence of alcohol entered the school grounds and assaulted a number of students and adults and damaged property. The appellant was given a head sentence of 12 months’ imprisonment to be released on parole after serving three months. He appeals against this sentence as manifestly excessive.
- [3]The appellant was 19 years of age when the 2013 offences were committed and 20 when he committed the more recent offences. The only entry on his criminal history prior to this offending is for a conviction on the 20th of May 2014 for contravening a police direction, for which he was placed on a good behaviour recognisance in the sum of $200 for four months. He was therefore in breach of the good behaviour recognisance when he committed the offences on the 24th of June 2014.
- [4]The offending on the 24th of June 2014 arose out of a particularly serious incident at about 4.44 pm, when the appellant and his co-offender (who has apparently not yet been dealt with) entered the grounds of the Ipswich Boys’ Grammar School in order to fight with two students. The appellant’s version of events is outlined in a psychological report dated the 18th of November 2014, which was tendered by the Defence in the Court below. The appellant and his co-offender had been drinking since 8 am that day at the co-offender’s unit across the road from the school. On his way home, the appellant was dry retching. Both he and the co-offender were, in the words of the appellant, “blind drunk”.
- [5]The appellant perceived that students were “looking over and laughing”. The appellant and his co-offender walked over to the school and confronted the students. The appellant acknowledges that students were assaulted as were adults who intervened, but his recollection of events at the school was “incomplete”.
- [6]The Prosecution facts were that a 16 year old student was grabbed through the school fence around the throat by the appellant and choked. With his free hand, the appellant attempted to gouge the student’s face and eyes.
- [7]The appellant ran at a 15 year old student who was walking on the footpath outside the school grounds and crash tackled him against the fence, causing him to fall to the ground. When the student got to his feet and re-entered the school grounds in the bus area, the appellant followed him and punched him to the head. His co-offender also punched the student. A 14 year old student rushed to assist the first student, and a scuffle between him and the appellant ensued. A 16 year old student was rushed at by the appellant and pushed against a brick wall, then punched to his head two or three times.
- [8]Another 16 year old student, who went to the aid of others, was pushed hard against the fence, but when the appellant went to punch him, a teacher restrained him. The appellant wrestled with the 49 year old teacher, during which the teacher’s shirt was torn. Another adult who assisted in restraining the appellant was spat in the face by the appellant. A 15 year old student who responded to the teacher’s call for assistance put his right arm around the appellant’s neck and was bitten on his right index finger by the appellant.
- [9]Property was also damaged at the school. The appellant kicked the door of a ute causing $446.60 worth of damage. A Hyundai Santa Fe vehicle in which two students who had been assaulted sought refuge, and from which the driver yelled at the appellant and his co-offender to leave or he would call the police, was damaged to the tune of $1811.77 when the appellant kicked the front of the vehicle, then climbed up and stomped on the bonnet. When the vehicle reversed and drove away, the appellant and his co-offender chased it.
- [10]After the appellant’s apprehension by police, and due to concerns about him self-harming, he was placed in the padded cell at the watch-house, where he caused $1079.35 worth of damage to the padded flooring.
- [11]CCTV footage of parts of the incident at the Ipswich Boys’ Grammar School shows two shirtless young men apparently chasing and assaulting students. This was played during the hearing of this appeal.
- [12]The appellant was interviewed and assessed by Dr Luke Hatzipetrou, a psychologist, who, in his report, details the appellant’s social history, relationships and drug and alcohol history. It is Dr Hatzipetrou’s opinion that the appellant has “a history of severe alcohol and cannabis abuse disorder”. His upbringing was marred by parental separation and family reorganisation. He had a difficult adjustment to high school, and his academic performance was below average. He has “not engaged in structured activity or pro-social leisure pursuits after leaving school in year 11”. The appellant’s substance abuse “presented as a manifestation of avoidant and maladaptive coping mechanisms” and he “presented with emotional and social immaturity inconsistent with his chronological age”.
- [13]The appellant receives a carer payment to care for his mother, who is wheelchair-bound and in need of dialysis. A very short, undated letter written by the appellant’s mother states that the appellant “hasn’t been drinking. He has been staying home helping me with shopping and everyday chores.” Dr Hatzipetrou notes that the appellant “appeared to be overwhelmed by the demands of caring for his mother”. Dr Hatzipetrou continues, “Coupled with reported incidents of impulsivity and substance abuse, [the appellant] did appear prone to mental health problems such as stress and anxiety which he managed through substance abuse.” Dr Hatzipetrou described the appellant’s offending behaviour as “spontaneous, unsophisticated and physically aggressive”.
- [14]The Magistrates Court was told that the appellant had written an apology to the Ipswich Boys’ Grammar School and, when confronted with the CCTV footage evidence of his behaviour, was shocked and upset.
- [15]In her sentencing remarks, the sentencing magistrate acknowledged the appellant’s early plea and young age. She noted that schools need to protect their students, and most of the assaults were on children. General deterrence was of particular importance, and the magistrate was of the opinion that the offending was “aggravated by the fact that it occurred in the grounds of a school”.
- [16]Despite the appellant’s role as carer for his mother and the effect the incarceration of the appellant would have on her, the magistrate determined no other penalty than actual imprisonment was appropriate in order to satisfy the factors particularly of deterrence and community denunciation of the appellant’s behaviour.
- [17]The appellant argues that the sentencing magistrate placed too much weight on general deterrence and the aggravating feature that the incident on the 24th of June 2014 involved entry onto school grounds and the assault of students, and insufficient weight on the appellant’s lack of criminal history, his youth and his prospects of rehabilitation. No serious harm to the complainants who were assaulted was alleged. It is argued that, if allowed to stay in the community, the appellant could pay restitution.
- [18]Dr Hatzipetrou’s conclusion that, at the time of the offending, the appellant’s capacity for information processing, decision-making and reasoning were likely to be compromised, and his capacity for self-regulation and to understand the consequences of his actions likely to be impaired makes the appellant, it is argued, a poor example to be treated severely as a general deterrent. It appears, however, that Dr Hatzipetrou’s assessments result to a large extent from the appellant’s self-induced gross intoxication on the day in question.
- [19]Certainly, the appellant’s youth and lack of previous convictions are significant factors in mitigation. His position as carer for his mother is a factor of lesser import. Courts should not be quick to find the prospects of rehabilitation to be low with respect to young offenders. However, Dr Hatzipetrou’s report is an indication that such rehabilitation for the appellant may not be swift.
- [20]As these charges involve offences of violence, a sentence of imprisonment is not a penalty of last resort. Nevertheless, the principles which apply to the sentencing of young offenders with little or no criminal history are particularly relevant in this case, and I refer here to R v Taylor [1999] QCA 323, R v Lovell (1999) 2 Qd R 79 per Byrne J, and R v Dullroy; ex parte the Attorney-General [2005] QCA 219.
- [21]Although a sentence which did not involve actual imprisonment was open in the circumstances of this case, a sentence of imprisonment which involves the appellant serving a short time in prison followed by supervision on parole for nine months cannot be said to be manifestly excessive.
- [22]The rehabilitation of the appellant will serve to protect the community, and that is certainly more likely to be achieved within the community rather than in prison, but real punishment of the appellant and community denunciation are of particular importance here. The offending involved particularly violent acts towards a number of people, including young teenagers, and on property. It was unprovoked and the incident was protracted. The fact that it occurred on school property on which the defendant had entered uninvited is an aggravating feature.
- [23]The appellant does not suffer a serious mental health disorder, and there was little before the sentencing magistrate to indicate he has real insight into his substance abuse disorder. Certainly, there was no real evidence of any proper attempts to address that disorder prior to sentencing.
- [24]A head sentence of 12 months’ imprisonment with release on parole after serving a quarter of that term is a heavy punishment, but not, in these circumstances, a manifestly excessive one. The appeal is therefore dismissed.