Murray v The Queen[2015] QDC 219

[2015] QDC 219

DISTRICT COURT OF QUEENSLAND

APPELLATE JURISDICTION

JUDGE HARRISON

Appeal No 91 of 2015

LUKE WAYNE MURRAYAppellant

v.

THE QUEENRespondent

CAIRNS 

2.08 PM, FRIDAY, 28 AUGUST 2015

JUDGMENT

HIS HONOUR: This is an appeal against sentence pursuant to the provisions of section 222 of the Justices Act 1886. On the 21^st of May 2015 the applicant pleaded guilty in the Magistrates Court at Cairns to the following offences:

1. (1)
   assault occasioning bodily harm on the 21st of November 2014;
2. (2)
   public nuisance on the 25th of February 2015; and
3. (3)
   a failure to appear in accordance with an undertaking on the 13th of March 2015.

His position was made complicated by the fact that on the 11^th of March 2013 he pleaded guilty to an offence of contravention of a domestic violence order, which contravention occurred on the 10^th of March 2015. On that occasion he was sentenced to six months imprisonment, with his parole release date fixed as at the 11^th of March 2015 after two days had been declared for pre-sentence custody.

It appears from the pre-sentence custody certificate, which was exhibit 3 in these proceedings, that, because of his failure to comply with the undertaking as to bail on the 13^th of March 2015, he had his parole suspended on the 18^th of March 2015. He was returned to police custody on the 22^nd of March 2015 and his parole was finally cancelled on the 7^th of April 2015. The full-time expiry date for the initial sentence was noted as the 13^th of September 2015.

I was assured during argument during the course of this matter that the solicitor who appeared on his behalf on the sentence on the subsequent matters did not appear on his behalf on the earlier matters. Obviously it would have been preferable that all these matters had been heard together and we may not have found ourselves in the situation we are now in.

On the 21^st of May 2015 he pleaded guilty to the three outstanding matters. He was convicted and not further punished in relation to the public nuisance charge and in relation to the failure to appear, but he was sentenced to 18 months imprisonment on the charge of assault occasioning bodily harm and this was made cumulative upon the six month sentence imposed on the 11^th of March 2015. His parole eligibility date was fixed at the 1^st of May 2016.

He has appealed his sentence on the basis that it was manifestly excessive, mainly because of the fact that the parole eligibility date is fixed as far back as the 1^st of May 2016. It was argued that, in fixing the parole release date then, the magistrate did not place sufficient weight on his pleas of guilty and his cooperation with the authorities.

It is well accepted that this Court should only interfere in matters such as this if it can be shown that the magistrate fell into error in law or in fact or if the sentence was manifestly excessive. The Office of the DPP formally conceded this appeal when it was listed before me on the 21^st of this month, but I adjourned the matter until today so as to properly prepare my reasons.

The offending on the 24^th of November 2014 was indeed serious. The assault included the applicant striking his de facto partner in the face, grabbing her by the hair, knocking her to the ground, pulling her up by the hair, and kicking her in the head and ribs when she was again on the floor. The police who attended after the incident noticed that she had large lumps on her head.

The applicant also has a poor criminal history, and I refer to exhibit 2, which was tendered. He was 32 years of age at the time of sentence. He had numerous alcohol-related street offences, including several for obstruct police and many for public nuisance. There were also a number of offences for contravention of domestic violence orders. He had previously served periods of imprisonment, with his most recent period of imprisonment having been a sentence of 10 months which was imposed on the 2^nd of June 2014 for three contraventions of domestic violence orders.

No issue was taken in these proceedings as to the head sentence of 18 months imposed nor was any issue taken to the fact that it was made cumulative upon the existing sentence of six months. The offence of assault occasioning bodily harm was not committed whilst he was on parole, therefore it was not automatic, pursuant to the provisions of section 159A of the Penalties and Sentences Act 1992, (“the PSA”), that it should have been made cumulative, but it was conceded that that was within the ambit of the magistrate’s discretion here.

The circumstances surrounding the contravention of the domestic violence order on the 10^th of March 2013 were explained by the police prosecutor on sentence. She informed the Court that on that occasion he had attended at the complainant’s residence, contrary to the order, was abusive and had smashed a window and, in fact, had cut himself on the window when he did so. There was no suggestion that any violence, as such, was offered to the complainant on that occasion.

Because his original parole was cancelled on the 7^th of April 2015 this was a matter where section 160B(2) of the PSA applied and the Court could only fix a parole eligibility date, as opposed to a parole release date. It is always necessary in matters such as this to consider also section 160F of the PSA, which provides:

1. (1)
   One of the objects of sections 160A to 160E is to ensure that at any one time there is only one parole release date or parole eligibility date in existence for an offender.
2. (2)
   When fixing a date under this division as the date an offender is to be released on parole or is to be eligible for release on parole, the date fixed by the court must be a date relating to the offender’s period of imprisonment as opposed to a particular term of imprisonment.

It was here that the magistrate clearly fell into error.

“Period of imprisonment” is defined in section 4 of the Act as follows:

…means the unbroken duration of imprisonment that an offender is to serve for two or more terms of imprisonment, whether (a) ordered to be served concurrently or cumulatively, or (b) imposed at the same time or different times, and includes a term of imprisonment.

The extent to which the magistrate fell into error is illustrated by comments he made during the course of argument and also during the course of his decision. During the course of argument on page 13 of the transcript the following exchange appears:

Bench: Well, the two years would seem to be a starting point. The issue is if it’s going to be cumulative ought the head sentence be adjusted to moderate it to some extent?  But in relation to the parole eligibility date, if it’s a cumulative sentence it has to start at the end of the sentence that he’s now serving, which is September.

Mr Magoffin:  Yes.

Bench:  I mean, there’s a view taken – the District Court here doesn’t seem to want to apply the law of the State of Queensland or the Court of Appeal in Herbert and Margaritis – says it’s appropriate, but the starting point is you start from the end of the last sentence.

That logic followed through into the decision, where the following extract appears on page 4:

In respect of the assault occasioning bodily harm you’re sentenced to 18 months imprisonment. In respect of that imprisonment I order that it be served cumulative with the term of imprisonment that you’re currently serving imposed in this Court on the 11^th of March 2015. I’m required to fix a parole eligibility date in respect of that sentence of imprisonment.

The correct approach in relation to those matters is – in respect of cumulative sentences reflected in the decision of the Court of Appeal in the Queen and Herbert and the Queen and Margaritis – the cumulative sentence commences at the end of the term of imprisonment you’re currently serving. It would normally be the case, in my view, having regard to the serious aggravating feature of your criminal history, that you would be required to serve at least one-half of that term of imprisonment. That ought to be moderated to some extent to reflect the cumulative nature of the sentences. I therefore fix a parole eligibility date as at the 1^st of May 2016.

The reference to the two cases appears to be a reference to R v Herbert [2013] QCA 62 and R v Margaritis [2014] QCA 219. The reference to “the District Court here” appears to relate to a number of successful appeals from the same magistrate to this Court where issues of totality have been relevant. I have read both of the Court of Appeal decisions and neither of them seem to support in any way the proposition that the completion date for the existing sentence is to be used as some sort of artificial starting point for calculation purposes for the parole eligibility date on the overall sentence.

Section 160F read in conjunction with the definition of “term of imprisonment” in section 4 of the PSA makes this fairly clear. The term of imprisonment in this case is two years being the six months imposed on the 11^th of March 2015 plus the further 18 months imposed on the 21^st of May 2015. Example number 1 in the examples provided under section 160F makes this clear. The Magistrate, however, seems to be relating it back to a period of imprisonment being the 18 month period which he made cumulative upon the six months that the applicant was already serving.

In [15] of Herbert, Fraser JA, with whom Muir JA and Douglas J agreed said:

As was submitted for the respondent, no provision restricted the sentencing Judge’s discretion to fix a parole eligibility date. The Prosecutor’s submission that the sentencing Judge could set a parole eligibility date at whatever date the sentencing Judge thought fit was accurate. It was true that the Prosecutor should have referred to section 160C of the Penalties and Sentences Act 1992 rather than to section 160G of that Act, but the mistake was inconsequential. Section 160F does not have the significance attributed to it in the applicant’s submissions. Section 160F(2) merely makes it plain that a parole release date or a parole eligibility date fixed by the Court must relate to the total duration of imprisonment. The sentencing Judge understood as much.

The reference to section 160C was inconsequential for our purposes. That section applied because the overall sentence there was in excess of three years. Section 160B applies here because the earlier parole had been cancelled. Either way the Court makes it clear that what must be looked at when fixing the eligibility date is the total duration of imprisonment. The total duration of imprisonment is not, as the Magistrate appeared to think, 18 months which started on the 13^th of September 2015 but two years.

An analysis of what happened in Margaritis makes it even more difficult to understand how the Magistrate arrived at the conclusion that he did about the relevance of the 13^th of September 2015. Margaritis was originally sentenced on the 13^th of March 2013 to a series of offences including maintaining an unlawful relationship of a sexual nature with a child under the age of 16 years. He was sentenced initially to five years’ imprisonment, but that was reduced on appeal to four years. His parole eligibility date was fixed as the 13^th of March 2015.

On the 19^th of February 2014, Margaritis was dealt with for further charges, namely, one of supplying a dangerous drug with a circumstance of aggravation and three of indecent treatment of a child under the age of 16 years. The sentencing judge on that occasion imposed a sentence of 12 months cumulative upon the earlier sentence, and fixed his parole eligibility as the 13^th of July 2015. The attorney appealed that sentence as manifestly inadequate, and that appeal was dismissed.

If the Magistrate’s argument in this case was correct it would not have been possible for Margaritis to have obtained a parole eligibility date until sometime after the 12^th of March 2017 which was the full-time release date for the earlier sentence so I fail to see how either Herbert or Margaritis could lead the Magistrate to the view that somehow the discretion exercised when fixing the parole eligibility date had to have regard to the completion of the first sentence. It would seem, particularly from the passage I quoted in Herbert, that there is no such fetter placed upon the exercise of the discretion, and, if one looks closely at the examples set out in section 160F of the PSA and the wording of 160F itself, theoretically, the Magistrate could have fixed any parole eligibility date from the 11^th of March 2015 onwards.

If what the Magistrate said was correct in terms of the first sentence having to be fully completed that could result in incredible injustice in certain cases. Cases vary in circumstance, but if it were the case that the first sentence was a very substantial one and the second one which was made cumulative was not a very substantial one then very real injustices would arise if the parole eligibility date could not be fixed until some point in time after the first sentence had been served completely. In short it is clear that the Magistrate was in error in that regard. Further it would seem that in structuring the sentence the way he has the Magistrate has required the applicant to serve in excess of half of his sentence without giving any written reasons, and this too of itself can constitute appellable error, see R v Kitson [2008] QCA 86.

I accept that in [16] of Herbert the Court did point out that whether or not a failure to give reasons for making the person serve over half of the sentence gave rise to appellable error did not necessarily apply in circumstances such as Herbert where there was substantial reoffending whilst the prisoner was on parole. The Court referred to a line of authorities in that regard culminating in the decision of R v Rowe, [2011] QCA 372. This was not one of those cases, however, because the offence of assault occasioning bodily harm which led to the cumulative sentence was committed months before the offence for which the original sentence was imposed. So again, it appears as though he fell into appellable error by effectively imposing the sentence that he did.

When one allows for the two days pre-sentence custody the sentence as structured requires the applicant to serve 407 days of what is effectively a two-year period of imprisonment in circumstances where no reasons were given for his being required to serve in excess of half. It would have been impossible for the Magistrate to give those reasons in this case because he was of the view that he was actually imposing a sentence which required him to serve less than half because he was of the erroneous view that he had to look at the 18 month term of imprisonment commencing on the 13^th of September 2015 and not the overall period of imprisonment of two years for the purposes of section 160F of the PSA. So it is obvious that there was no reasons given in that regard, and again, he is in error.

Because of his errors it is clear that the Magistrate has failed to place proper or sufficient weight on the pleas of guilty and on the cooperation. The applicant did make admissions in relation to all offences and pleaded guilty in a timely fashion in relation to all matters. Having found that the Magistrate was in error and having found that he failed to make adequate allowance for those pleas of guilty and cooperation it also follows logically that the sentence was manifestly excessive. That being the case, it falls upon this Court to exercise its discretion to resentence him.

I would not interfere with the head sentence nor would I interfere with the fact that it was made cumulative upon the sentence of six months imposed on the 11^th of March 2015, but I would certainly interfere in relation to the fixing of the parole eligibility date. The fairest way to deal with the matter appears to me to be as follows. To structure the sentence such that he ends up serving eight months of the overall two-year period of imprisonment before he become eligible for parole. After allowing for the two days pre-sentence custody and for the fact that he has been in custody since the 22^nd of March 2015 following the initial suspension of his parole it seems to me appropriate to fix his parole eligibility date as the 20^th of November 2015. In the circumstances I make the following orders:

1. (1)
   that the appeal be allowed;
2. (2)
   that a parole eligibility date of the 20^th of November 2015 is substituted in lieu of the original parole eligibility date of the 1^st of May 2016; and
3. (3)
   the original sentence otherwise stands.

MS McDONALD: No. Thank you, your Honour.

MR TREVINO: No. Thank you, your Honour.

HIS HONOUR: All right. Thank you.

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