MAR v Queensland Police Service
[2015] QDC 144
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- MAR v Queensland Police Service[2015] QDC 144
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MAR v Queensland Police Service[2015] QDC 144
MAR v Queensland Police Service[2015] QDC 144
DISTRICT COURT OF QUEENSLAND
CITATION: | MAR v Queensland Police Service [2015] QDC 144 |
PARTIES: | MAR (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO: | D 263/14 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Southport |
DELIVERED ON: | 5 June 2015 |
DELIVERED AT: | District Court at Brisbane |
HEARING DATE: | 15 May 2015 |
JUDGE: | Butler SC, DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL – appeal against sentence – whether sentence excessive |
COUNSEL: | J McInnes for the appellant D M Darwen for the respondent |
SOLICITORS: | Legal Aid Queensland for the appellant Director of Public Prosecutions for the respondent |
- [1]The appellant was sentenced on 25 September 2014, on his own plea, in relation to two groups of offences. The first group occurred on 6 May 2014 near the Gold Coast Hospital and involved dangerous operation of a vehicle and related offending. The other offences occurred later in May/June 2014 and involved breaching domestic violence prohibition orders. The most serious breach involved his punching and choking his partner.
- [2]The appellant received a head sentence of two years’ imprisonment with 90 days of presentence custody taken into account. A parole eligibility date was set five months from the date of sentence.
The principles that apply upon appeal
- [3]This is an appeal against sentence under s 222 of the Justices Act 1886 (Qld).
- [4]The court of appeal in White v The Commissioner of Police[1]conveniently summarises the principles that are applicable in dealing with an appeal under s 222 of the Justices Act 1886:
“The appeal brought by the applicant to the District Court under s 222 of the Justices Act was an appeal by way of re-hearing, as provided for in s 223 of that Act. On such an appeal the District Court judge was required to make his own determination of relevant facts and issues from the evidence, giving due deference in attaching a good deal of weight to the Magistrate’s view.”
- [5]The Court later in the judgment continued as follows:
“In the appeal to the District Court, s 223 of the Justices Act provides for a re-hearing on the evidence given at trial, and any new evidence produced by leave. That is a re-hearing, in the technical sense consisting of a review of the record of the proceedings below it, rather than a completely fresh hearing. To succeed on such an appeal an appellant must establish some legal factual or discretionary error.”[2]
- [6]
Application to lead new evidence
- [7]The applicant applied to adduce on the appeal new evidence in the form of a psychological report by Mr P Perros dated 10 April 2015.
- [8]Evidence not called at the trial may be adduced on appeal only if the court is satisfied there are special grounds shown: s 223(2). The Court of Appeal in Pavlovic v Commissioner of Police[5]held that there must be a good reason identified to justify a departure from the requirement that an appeal is by way of rehearing. The Court adopted as a guide the three considerations identified by Gibbs CJ in Gallagher v R.[6]
- [9]Relevant to the first of these considerations, counsel for the appellant conceded that psychological evidence could have been led at the sentence below. Given the significance of the appellant’s psychological condition to the exercise of the sentencing discretion, the availability of a comprehensive psychological report has particular significance. Counsel submitted that the mental condition of the appellant was central to the grounds of appeal and the psychologist’s report enlarged on the information available at sentence. I am satisfied that one of the considerations identified by Gibbs CJ is established. If the psychological report was available to the sentencing court, a different sentencing outcome might reasonably have resulted. Special grounds have been made out.
Submissions on the appeal
- [10]The ground of appeal is that the sentence is manifestly excessive. In support of that ground the appellant submits the learned Magistrate erred in that firstly, he failed to apply the sentencing principles in relation to offenders with mental health issues, secondly, he described as “timely” what in fact was an “early” plea and finally, he failed to have regard to the District Court “comparable” sentence decision of RMR v Sinclair.[7]
- [11]It is not apparent what significance the appellant places on any distinction between a timely plea and an early plea. It is apparent that the learned Magistrate set a parole date at one-third of the head sentence, thus suggesting he gave full effect to the early plea of guilty. Accordingly, the allegation of error in this regard lacks substance.
- [12]Failure to have regard to the sentence of another court could not of itself amount to an error of the type referred to in House v R (1936) 55 CLR 499. Sentences of other courts only constitute a guide in so far as their facts are comparable. The submission regarding RMR v Sinclair is unhelpful as it fails to direct attention to the relevant considerations to be taken into account upon this appeal.
- [13]The appellant’s primary submission is that the learned Magistrate failed to sufficiently take into account as a mitigating factor the mental condition of the appellant at the time of his offending.
- [14]In the course of the appeal, two further issues emerged. Firstly, whether a head sentence of two years’ imprisonment, of which 8 months is to be actually served, can be justified having regard to all the circumstances of the case. Secondly, whether the learned Magistrate erred in setting a parole eligibility date rather than a parole release date.
- [15]In response, it is argued for the prosecution that the sentence imposed is not excessive in the sense that it is “so outside the appropriate range as to demonstrate inconsistency and unfairness”: see R v Jones.[8]It is submitted that the learned Magistrate was correct to consider that deterrence and community protection were paramount.
Sentence details
- [16]The sentences imposed were:
Dangerous operation of a vehicle | 10 months’ imprisonment – disqualified from driving for 30 months | |
Wilful damage | 6 months’ imprisonment | |
Public nuisance | 3 months’ imprisonment | |
Contravening a domestic violence order | 2 years’ imprisonment | |
Contravening domestic violence order | 1 month imprisonment | |
Contravening domestic violence order | 3 months’ imprisonment |
- [17]Pre-sentence custody of 90 days was declared. A parole eligibility date was set at 27 May 2015, eight months from the date of sentence.
Setting a parole date
- [18]Upon delivery of the sentence counsel questioned the making of a parole eligibility date. His Honour stated in response that “where you impose an actual term of imprisonment which will cancel the previous release date … it must be eligibility.”
- [19]Section 160B(2) of the Penalties and Sentences Act 1992 provides that where an offender is sentenced to three years imprisonment or less, the offence is not a serious violent offence or a sexual offence, and the offender has not had a court ordered parole order cancelled under s 209 of the Corrective Services Act, the court must fix a date for the offender to be released on parole. Under s 209 a parole order is automatically cancelled if the prisoner is sentenced to another period of imprisonment for an offence committed during the period of the order.
- [20]At the date of sentence, 25 September 2014, the appellant was subject to a parole order for the period 20 August 2014 to 19 November 2014. However, the offences for which he was sentenced on 25 September 2014 were all committed in May/June 2014 prior to the commencement of the parole period on 20 August 2014. The appellant was sentenced to a period of less than three years and none of his offences was a serious violent offence or a sexual offence.
- [21]It follows that under s 160B(2) the sentencing court was required to set a parole release date. Failure to do so amounted to an error in the exercise of the sentencing discretion.
The facts
- [22]The offence of dangerous driving which occurred on 7 May 2014 was outlined by the learned Magistrate in the following terms:
"The first offence in time was the dangerous operation of a motor vehicle. On that occasion you had had a violent altercation with your girlfriend. You took her car keys off her. You went to her car in the car park of the hospital. You did burn-outs underneath the hospital, circled around, spun the wheels, accelerated at speed toward the gate. You crashed through the boom gate at the entrance. That boom gate then flew outwards.
Your driving was obviously dangerous because of the location and your speed, and because you caused the boom gate to fly outwards. Because a pedestrian had just walked past there adjacent to the pedestrian crossing, and thankfully, through sheer good luck and not good management on your part, no one was then injured.
You then turned left over the pedestrian crossing onto the street at high speed and you were seen to then turn into Olsen Avenue. You were heard by multiple witnesses to rev the motor. You were seen screeching your tyres. On Olsen Avenue you swerved in and out of heavy traffic at high speed.
Then you turned left into Parklands Drive at high speed. Still you accelerated. You were seen to spin your tyres, making a loud screeching sound. You lost control. You swerved to the right and crossed over two lanes. You mounted the middle island, into the path of oncoming traffic. You then collided into a street light pole, and that pole landed in the path of oncoming traffic. Several motorists had to swerve to avoid that pole. You were then observed trying to correct the steering, to accelerate, and swerve out again toward the oncoming traffic. Your vehicle came to rest on the middle island.”
- [23]Those facts, as outlined by his Honour, were not an issue. The offences unfolded outside the Gold Coast University Hospital at 5.30 pm on a Wednesday with heavy traffic and pedestrians in the general vicinity. After leaving the car the appellant acted in a belligerent and abusive way, causing traffic to stop resulting in the public nuisance charge.
- [24]The most serious of the charges of contravention of a domestic violence order was described by his Honour as follows:
"On the 9th of May a protection order was made naming the aggrieved, … , as the person to be protected. She was the owner of the motor vehicle that you used in the dangerous driving. On the 21st of June you were still subject to that order and its conditions. There was the mandatory condition that you were to be of good behaviour towards her and not commit any act of domestic violence at all, and one of the conditions included that you were not to go within 100 metres of her residence.
The aggrieved reported that you had been threatening to commit suicide; that you got upset over a text message; that you tackled her onto the bed; punched her on the right-hand side of her bottom. That you lay on top of her. She screamed. You then hit her in the head, and she stated that she may have lost consciousness for about a second or so.
She tried to push you off her. You then used your forearm against her throat, and used your right hand to cover her mouth while your left forearm was used against her throat. You blocked her nose. She found it very difficult to breathe. Her injuries included a purple bruise to the neck; scratches and bruises to the forearms.”
…
“You finally got off her and said that you were going to kill yourself. You hit your head and headbutted the bed end. You then called your mother and said, ‘I can’t live without her so I’ll kill myself.’ You then got a knife in the kitchen and cut your own forearm and self-harmed. That too is domestic violence.”
- [25]The other two contravention charges related to threats to other persons over the telephone.
The sentences imposed
- [26]In sentencing the appellant to a head sentence of two years’ imprisonment with an effective eight months of actual imprisonment, the learned Magistrate gave particular weight to the need for a deterrent sentence to ensure the protection of the community, and protection of the aggrieved and named persons.
- [27]The sentence was structured with two years’ imprisonment imposed for the more serious domestic violence order contravention and 18 months’ imprisonment for dangerous operation of a vehicle. Each of those offences has a maximum penalty of three years’ imprisonment. As those sentences were set at two thirds and a half of the respective maximum penalties they may be considered severe.
- [28]The dangerous driving involved property damage and significant risk to others as it occurred in the vicinity of a major public hospital at a particularly busy time of day. It did not, however, fall in the most serious category as no personal injury was caused and the driving was not directed towards any individual.
- [29]In R v Forsyth[9]the Court of Appeal upheld a sentence of two years’ imprisonment with immediate parole for dangerous driving involving a deliberate but spontaneous act of driving at and colliding with the complainant causing minor injury. It was clearly a more serious example of dangerous driving than in this case. In R v Pearce[10] a number of authorities were analysed by Holmes JA. The facts here are closer to police chase matters than cases involving deliberate driving at individuals. In R v Hillier[11]a sentence of 18 months’ imprisonment, to be served cumulatively on an earlier sentence, was upheld. It involved a police chase of 8km during which speeds of 150km/h were reached and oncoming vehicles forced off the road. Hillier had an extensive criminal and traffic history. That too must be considered more serious dangerous driving than in this case.
- [30]The domestic violence breach on 21 June must be considered serious, involving, as it did, not only a punch to the complainant but also the choking of her, with the risk of injury that attends such conduct. The complainant received a bruise to the neck and scratches and bruises to her forearms. In sentencing his Honour was alert to the fact that the appellant was before him on three contraventions of which this was but one, that it followed the earlier dangerous driving incident and that he had a criminal history including four previous contraventions of orders. Serious as the assault was, it did not involve the prolonged violence or more serious injury sometimes seen in domestic violence matters.
- [31]A head sentence of two years’ imprisonment, although severe, may well have been justified when the totality of the charged conduct, viewed in light of the appellant’s criminal history for domestic violence, was considered. That does not however have regard to the psychological condition of the appellant at the time.
The appellant’s mental condition
- [32]The learned sentencing Magistrate acknowledged that the appellant had been diagnosed with a borderline personality disorder, was under the care of a psychologist, had changed his medication recently and had sought admission to hospital immediately before the dangerous driving offence. However, his Honour did not articulate whether he treated those matters as mitigating factors and whether they moderated the sentence that would otherwise have been imposed. Of course, his Honour did not have the advantage I have had of viewing a comprehensive psychological report.
- [33]The report of Mr Peter Perros, a forensic psychologist, was received as fresh evidence on the appeal. It records a documented long medical history of anxiety, depression and suicidal conduct. A psychiatrist diagnosed the appellant in June 2014 as having a borderline personality disorder and anti-social personality traits. There was also “significant historical clinical evidence of limbic instability”.
- [34]Mr Perros links this history of psychological dysfunction to the appellant’s commission of the charged offences. Under the heading “Explanation of Offending Behaviour” Mr Perros says:
“When unmedicated, … [the appellant] is biologically predisposed to ‘losing it’ and acting on aggressive impulses. He’s very immature and does not fully understand how his behaviour is seen and felt by others – along the lines of ‘theory of mind’. When depressed and/or extremely aroused he becomes irrational and focused on immediate gratification of what it is he wants to achieve. This is why medication is essential.”
The psychologist opines that medication has an important role in managing the appellant’s behaviour.
- [35]The principles to be applied in sentencing a person with a mental disorder were considered by McMeekin J, with whom the other members of the Court of Appeal agreed in R v Andrews [2012] QCA 266.
- [36]Applying these principles, I am of the view that the psychological condition of the appellant requires recognition as a mitigating factor in his sentencing. The psychologist’s report, considered in conjunction with the circumstances of the offending, establishes a causal link between the appellant’s condition and his criminal acts. In the circumstances his moral culpability for the offending was lessened and the relevance of general deterrence as a sentencing consideration reduced.
- [37]
“General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others”.
- [38]Furthermore, the appellant had suffered a recent skull fracture which may make him more vulnerable to brain injury. The psychologist considered he may be exposed to serious risk in prison as his emotional dysregulation may cause him to be baited into fighting.
- [39]With the benefit of having considered the psychological report, I am satisfied that a head sentence of less than two years’ imprisonment should have been imposed in order to properly take the appellant’s mental condition into account. I am satisfied that the sentence imposed was excessive in that it did not give adequate weight to the psychological condition of the appellant as a mitigating factor. In addition, the setting of a parole eligibility date rather than the parole release date required by law constituted a sentencing error. As the sentencing process miscarried it now falls to this court to exercise the sentencing discretion afresh.
The appropriate sentence
- [40]While the mental condition of the appellant reduces his moral culpability and the impact of general deterrence on the sentence, it does not necessarily follow that personal deterrence is of no or little consequence. On the contrary, the psychologist’s assessment is that there is a significant risk of the appellant reoffending. In his opinion medication is essential to managing the appellant’s poor impulse control and aggression. Close regular supervision in the community and regular contact with a clinical psychologist with support and life coaching is recommended. It follows from this expert opinion that a sentence which will minimise the risk of reoffending and provide protection to the community is necessary. Of course, the need for community protection and rehabilitation must not result in a sentence which is disproportionate to the objective seriousness of the offending involved.
- [41]When regard is had to the relevant maximum sentences, the seriousness of the conduct, the number of offences, the reoffending which occurred, the previous criminal and traffic histories of the appellant, and the appellant’s mental condition I consider a head sentence of 18 months’ imprisonment is appropriate. In arriving at that term I consider specific deterrence calls for a substantial period of close supervision that will be available under a parole order.
- [42]In setting a parole release date, the early guilty plea and the declared presentence custody of three months must be taken into account. In addition, the appellant served a further month in custody for a breach of his bail on these charges prior to being sentenced. The psychologist’s report suggests that the appellant is under the continued care of a psychiatrist and is responding well to medication.
- [43]If I were sentencing at first instance, having regard to the mitigating factors I would impose a period of actual imprisonment in the order of four months. Given the three months’ presentence custody to be taken into account and the further month served prior to sentence, it is appropriate that the appellant be now given immediate release on parole.
- [44]In order to comply with the requirements of s 160G of the Penalties and Sentences Act, an undertaking will be sought from counsel to ensure the appellant is informed of the conditions of parole and of his obligation to report within two business days to a community corrections officer and that adverse consequences may follow should he fail to do so.
- [45]I have given consideration to the period of disqualification ordered by the learned Magistrate and, having regard to the seriousness of the driving conduct, I am not persuaded that the disqualification of 30 months should be varied.
- [46]The orders of the court will be as follows:
- Appeal against sentence allowed.
- The application to adduce fresh evidence is allowed.
- The sentence is varied by (a) substituting a period of 18 months imprisonment in lieu of two years imprisonment on the charge of contravening a domestic violence order on 21 June 2014 and (b) substituting a parole release date of 5 June 2015 in lieu of the parole eligibility date of 27 February 2015.
Footnotes
[1] [2014] QCA 121 at [6].
[2] White v The Commissioner of Police [2014] QCA 121 at [8].
[3] [2009] QCA 84.
[4] Applying House v R (1936) 55 CLR 499 at [504] – [505].
[5] [2006] QCA 134.
[6] (1986) 160 CLR 392.
[7] [2012] QDC 204
[8] [2008] QCA 181 at [5].
[9] [2011] QCA 71
[10] [2010] QCA 338
[11] [2007] QCA 279.
[12] [2011] HCA 39 at [53].