Taurino v Commissioner of Police (No. 2)
[2015] QDC 326
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- Taurino v Commissioner of Police (No. 2)[2015] QDC 326
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Taurino v Commissioner of Police (No. 2)[2015] QDC 326
Taurino v Commissioner of Police (No. 2)[2015] QDC 326
[2015] QDC 326 | |
DISTRICT COURT OF QUEENSLAND | |
APPELLATE JURISDICTION | |
JUDGE DORNEY QC | |
Appeal No 4094 of 2015 | |
SEBASTIAN JAMES TAURINO | |
and | |
COMMISSIONER OF POLICE | |
BRISBANE | |
2.28 PM, FRIDAY, 4 DECEMBER 2015 | |
JUDGMENT |
HIS HONOUR: On the 2nd of December 2015, I heard an appeal based upon a Notice of Appeal that was an appeal both against conviction and sentence. I determined on that day that I would dismiss the appeal against conviction. Because I was of the opinion that insufficient material had been presented to the Court concerning the matter of sentence, I adjourned the sentencing until today, permitting both parties to file written submissions about the sentence by 10 am this morning. Both parties have now given me supplementary outlines of submission concerning sentence. I will therefore proceed to consider the appeal against sentence.
The appeal itself, as originally phrased, simply sought to say that the sentence imposed “was manifestly excessive, having regard to the unfair or unlawful detention of the (appellant) at the time of the alleged offence”. It has been readily conceded by the appellant’s representative, Mr McGhie, that that, in fact, is not sustainable. Nevertheless, it is clear - because both parties took no objection to it - that material was presented to this Court which was not, in fact, made available to the sentencing Magistrate. In particular, there was a Statement of Reasons of the Parole Board made at its earlier meeting on 29 October and confirmed on 25 November 2013. The document in question was exhibited to an affidavit of Claire Louise Johnson, filed 6 November 2015. And it is not in contest that I can have reference to it.
The true set of circumstances to which that particular ground was addressed is as follows. Submissions have been made to the Parole Board and considered at its meeting on 25 September 2013 from Richardson McGhie Solicitors, concerning the appellant’s then “sentence calculation”. The Board at that time decided not to vary its decision to suspend the existing parole order for an indefinite period and “await the final court outcome”. At its later meeting on 28 October 2013, the Board considered the suspension matter, along with correspondence, being further correspondence from Richardson McGhie Solicitors dated 14 October 2013. The Board decided to rescind its decision of 15 August 2013 and noted the length of time since the appellant had been returned to custody and determined it would consider the matter again on 29 October 2013 to review the appellant’s “custodial behaviour”. When the Board met to consider the appellant’s matter at its further meeting on 29 October 2013, the Board decided “to cancel the applicant’s – the applicant then, the appellant now – order” as the Board reasonably believed, according to them, that the appellant posed an unacceptable risk of committing an offence “after it was noted that he was involved in an incident of assault on 20 September 2013 of which (he) was listed as the perpetrator”. It should be noted that that particular incident of assault, of course, is the one that I have dealt with in terms of the conviction here.
What eventually occurred after that was that the appellant then served the remainder of his sentence for which the parole had been cancelled. And it is also clear from the Presentence Custody Certificate dated 28 August 2014 (attached to the affidavit of Steven Andrew McGhie, filed 3 November 2015 – and again not in issue) that the details of that are the appellant then remained in custody serving his original sentence up to the full-time discharge date of 8 February 2014. It is therefore clear that from the time of 29 October 2013 until 8 February 2014, the appellant remained in custody because of that decision by the Board. In this appeal, the respondent – the respondent being the Commissioner of Police – has not asserted that the “approximately” four month period from the end of October of 2013 to mid-February 2014 could not be taken into account. The concern here is how to take it into account.
Before I move on to consider other issues, I will just mention a few matters of general import. When considering issues of this kind, it is important to consider what is, or are, the basis, or the bases, of any interference by this Court. If the appeal ground had simply been manifest excess then, of course, the Court would simply look at whether, in the circumstances, it could be implied that some error had occurred. Whereas here, as it is conceded by the respondent and affirmed by the appellant that something was not brought to the learned Magistrate’s attention, it seems to me that I move to the other kinds of considerations in the general consideration under the principles stated in House v The King (1936) 55 CLR 499. Because of that approach, it is not necessarily helpful to address this matter in terms of manifestly excessive: see Kentwell v The Queen [2014] HCA 37 at [35]. I will come to why it has some incidental benefit, though, in a moment.
Before I turn to that, I will briefly indicate my view about certain issues raised by the appellant in his written outline.
First, the appellant indicates that the evidence of the effect and, or alternately, consequences, of the assault on the complainant is contained in the report of the Princess Alexandra Hospital dated 16 June 2015 and the photographs which were tendered.
The photographs which were tendered I have had a look at and they show various injuries to the complainant’s face and scalp.
The report of the Princess Alexandra Hospital is as follows. The injuries that were noted by that hospital as suffered by the complainant are: (1) right orbital contusion and haematoma; (2) laceration, scalp; (3) contusion, left mandible. The report also indicates that the complainant underwent the following investigations: a CT scan of the head and orbital. The result of that was that no fractures were shown and no intracranial haemorrhage or mass lesion was shown. Additionally, there was no evidence of orbital or sinus fracture. The treatment received by the complainant was sutures to the lacerated scalp. Given that that is the totality of the evidence of the complainant’s injuries, it must be stated that the injuries are not in the most serious category of injuries suffered. That is of importance when I consider the matter of comparable cases.
Secondly, turning that back to the appellant’s outline, the appellant made various further submissions, expressed in various ways, including that the learned Magistrate erred in law by, in fact, finding that the appellant showed no remorse and, or alternatively, finding (by necessary inference) that the appellant had unnecessarily put the community to the cost and inconvenience of a trial. Additionally, the appellant asserted that the learned Magistrate failed to consider properly or at all the relevant circumstance that much of the prosecution evidence, including the evidence of the complainant, was rejected at, or as a result of, the trial, and that the facts upon which he was convicted were less serious than those originally alleged.
While the basic “facts” there alleged may well be seen to be rightly characterised (because the decision that I reached being that the only person whose evidence was credible and reliable was Officer Tremmel), it does not mean that the conclusions sought to be established by the appellant have been established. In particular, there is no evidence at all that if Officer Tremmel were to have been the only witness that, in fact, the appellant would have made a plea of guilty. In any event, the circumstances are that that did not occur - and I cannot speculate as to what would have occurred. Accordingly, I reject any argument that is based upon the learned Magistrate erring in finding no remorse or, by necessary inference, finding that the appellant had unnecessarily put the community to the cost and inconvenience of a trial. That was not how the case was run; and it is therefore something that it is unnecessary to give leave to the appellant to amend the grounds of appeal to allege it.
It is then a matter of turning to the comparable decisions. Both the appellant and the respondent have presented numerous authorities for my consideration.
Before I go into consideration of those which are “comparable” authorities, I will briefly mention the case of The Queen v Prasser; The Queen against Ainsworth and ors; ex parte The Attorney-General of Queensland; the Queen v Bennett [2003] QCA 468. In that particular decision, the Court of Appeal, through the judgment of McMurdo J (as he then was), ruled upon the issue of whether offences committed by prisoners upon others was a matter which would lead to a sentencing regime of its own. It is clear from paragraphs [13] to [15] inclusive of the decision that, while it is relevant that the crimes were committed in prison against a fellow prisoner, it is not the position that these particular cases are to be treated as any different from those which occur in the community. In particular, it was stated by McMurdo J as follows:
But I do not regard this offence when committed by a prisoner as being so unlike any assault on a citizen in the general community as to make irrelevant an identified range of appropriate penalties in that broader context. I am not persuaded that the need to deter, or any other relevant purpose of sentencing, can be served only by the creation of a distinct and higher range as the appellant argues.
It is therefore against that background that I consider these particular cases. The appellant, unsurprisingly, relies upon certain cases in which the sentencing was relatively low. (In this particular case, the sentencing at first instance was nine months, with a parole release date fixed at four months.)
In the first of the cases in question, The Queen v Martin [1994] QCA 18, the Court of Appeal was considering an applicant who was charged in the Magistrates Court with assaulting the complainant and doing him bodily harm - but was also charged, as a circumstance of aggravation, that at the time of the commission of the offence, the applicant was in company with other persons. The magistrate convicted the applicant and sentenced him to imprisonment for six months. Importantly, though, as is noted in the judgment (the joint judgment of McPherson and Davies JJA), at the appeal hearing, the application for leave to appeal against sentence was dismissed “after being withdrawn by counsel”. Therefore, the case is no authority on the issue of its sentencing.
The next case which was stated to be relevant by the appellant was The Queen v Nagy [2004] 1 QdR 63. That particular decision concerned more, and complex, issues dealing with multiple sentencing. Nevertheless, in the decision given by Williams JA, he did cover, individually, the particular offences in question. With respect to a particular sentence of assault occasioning bodily harm, with respect to an assault on 25 December 2001, he set out the circumstances which the Crown indicated that it would assert had occurred. They are set out at page 65, paragraph [8]. At page 66, paragraph [9], it was noted that:
The complainant was taken to hospital by ambulance. He had a bruised forehead, a cut on the left elbow, a swollen and broken nose, a bruised jaw and grazed knees and elbows. He also had some loss of consciousness and amnesia.
Additionally, he:
...was held in hospital overnight and discharged the following day.
Paragraph [10] goes on to state, at page 66, that:
The pain in the jaw persisted and subsequent X‑rays showed a small fracture of the jaw. In his victim impact statement, the complainant said that he was kicked in the head many times.
When that particular assault was considered by Williams JA at paragraph [41], on page 73, he said as follows:
The first question for this Court to answer is whether a sentence of five years imprisonment can be justified for the offence of assault occasioning bodily harm in company committed on –
the particular date. After referring to some cases which were referred to the Court, he noted that counsel for the applicant had relied on those cases:
...in support of his contention that a sentence in the range of 18 months to two years imprisonment was appropriate for this offence.
It was clear from the later statements in that particular paragraph that a two year sentence would be appropriate in those circumstances because it contained:
...some moderation reflecting the youth of the applicant and his plea of guilty.
Nevertheless, when one goes back to the facts of that particular case, it is clear that they were much more serious than the case in question here.
The last of the cases which were proffered by the appellant was The Queen v Kissier [2005] QCA 375. In that particular case, the application for leave to appeal against sentence was, given the matters next discussed, unsurprisingly dismissed. The applicant there was convicted on his own pleas of guilty of not one but two counts of assault occasioning bodily harm as well as several other counts. He was sentenced to nine months imprisonment for the first assault, which is the one on which I will concentrate in this analysis – but it was part of a cumulative sentencing. That assault occurred while the applicant was in prison for other offences. The applicant had attacked another prisoner whom he had heard had been convicted of rape - and did so viciously. He hit the other prisoner twice in the head with a closed fist around the area of the left temple and left ear, punched him twice again in that ear, kicked him in the left cheek while wearing work boots and then punched him twice again in the back of the head. Although the victim begged not to be hit again, he was punched several times more and by then he was bleeding freely and required hospital treatment for right periorbital bruising and haematoma in that area, a fractured zygoma and a blow‑out fracture of the posterior wall of the right orbit. As noted by Douglas J, speaking for the Court, it was a serious assault. It was also mentioned in that decision that that assault was committed while the applicant was in prison for property offences and other offences involving the use of violence. Dealing with comparable cases there, the Court referred to a decision of the Court of Appeal in The Queen v Ball. There, a sentence of 12 months imprisonment had been imposed, where the applicant in question had punched a prison officer after receiving a disappointing result in an application for parole. The complainant was not seriously injured. The applicant there had an extensive criminal history, including previous convictions for assault. It was noted that:
Assault on a prison officer is normally likely to be treated seriously, but the assault and the injuries –
in the case being considered in Kissier –
...were much more serious than those in –
that case. Therefore, the sentence of nine months imprisonment for that assault was not disturbed.
Again, unsurprisingly, on the respondent’s part, a number of cases were chosen which, in fact, revealed much more serious sentencing. The first of those in time is The Queen v King [2006] QCA 466. The applicant at the time was aged 25 and 26 and was aged 28 at sentence. He had a concerning prior criminal history for offences of dishonesty, drugs and violence. He had not taken up many opportunities to rehabilitate and his offending subsequent to the assaults in question did not suggest that he had promising future rehabilitative prospects. It was said by McMurdo P that the assaults:
...were serious examples of domestic violence and warranted salutary penalties for reasons of general and personal deterrence.
However, she noted that he did plead guilty and had made “commendable efforts” to become a responsible father. Keane JA gave the major decision. As I indicated, the applicant had pleaded guilty to two counts of assault occasioning bodily harm. He was sentenced to two years imprisonment in respect of those assaults. They were suspended after nine months, for an operational period of three years. The assaults in question are set out in some detail in paragraphs [8] to [10] inclusive of the decision. A quick survey of those particular paragraphs showed that they were much more serious than the ones here, it being noted with respect to the second assault that the complainant was 10 weeks pregnant. At paragraph [22], Keane JA said as follows:
In each of the assaults of present concern, the applicant’s attack on the complainant was unrelenting and ceased only after the intervention of a third party. In relation to the second assault, the complainant was pregnant.
Then, later, after reference to a particular decision, he noted that it confirmed:
...that a sentence of two years was comfortably within the appropriate range for multiple assaults of the kind in question here where they have been carried out by an offender with a record of violent offending.
I, therefore, find that decision of very little assistance.
The second decision was The Queen v Hilton [2009] QCA 12. In that particular case, the applicant was convicted on his own plea of one count of assault occasioning bodily harm. He was sentenced to 18 months imprisonment, suspended after six months, for an operational period of two years. The circumstances of the offence were, again, much more serious than in this particular case. It involved the complainant being pulled out of a car window - but he was able to respond by hitting the applicant twice on his legs with a short round wooden pole or baton. Additionally, the applicant then punched the complainant’s face with his right hand. The complainant fell to the ground, let go of the wooden pole and was then punched by the complainant in the head approximately six or seven times, rendering him unconscious. He was then kicked in the head three or four times; and the applicant continued his assault even after the victim had been rendered unconscious. That was stated by the Court to be a matter of “special concern”. It was said to be fortunate, at least, that the applicant was not wearing shoes. The complainant was taken to the hospital, where his injuries were treated. He suffered a fractured cheekbone as well as assorted lacerations and bruising to the head and left upper arm; and photographs of his injuries showed that he suffered scarring to the face. The applicant in question only had a minor criminal history of little relevance, although he had two previous convictions for assault.
It was stated by McMurdo P, speaking for the Court, that, in that particular case, the applicant’s record of previous assaults suggested that the need for personal deterrence was a consideration of concern. It was also determined that the assault on the complainant was quite unprovoked and that considerations of general and personal deterrence would, generally speaking, overcome the reluctance to send a person to prison in the case of a mature offender. She went on to state:
That this offence, involving as it did persistent personal violence by a mature adult, should be punished by a sentence involving actual custody –
and that that was “hardly surprising”. In particular, she stated that the complainant suffered serious injuries and it was a matter of special concern that the applicant continued his attack by kicking him after he had been rendered unconscious. Again, therefore, I find that of little assistance.
The final case is Ball v The Queen [2012] QCA 51. Again, it was a plea of guilty to one count of assault occasioning bodily harm. He was sentenced to 18 months imprisonment, to be released on parole after having served three months. In that particular case, the complainant had placed a hand on the defendant’s shoulder. The defendant grabbed the complainant and threw him to the tiled floor. The complainant had got up and approached the defendant again but was held back by a friend. The defendant continued to argue with the complainant, with people standing between them. As the complainant was being led out of the area, the defendant approached and punched the complainant with a right closed fist to the face. The complainant fell backwards and hit his head on the floor, which rendered him unconscious. When transported to hospital where a CT scan revealed that he had sustained a subdural haematoma. He underwent emergency craniotomy to relieve pressure on his brain and he was then confined to hospital, finally being discharged several days later. Again, I think it is far more serious than the assault in question.
So how do all these things affect what happens here? It is clear in this particular case that the learned Magistrate took a number of factors into account. They are set out by the respondent in this original outline; and I’ll just note them briefly. They were: the appellant’s age; his criminal history; the fact that he sustained no injuries (that is, there was no evidence he suffered any injuries); that the attack was cowardly; that he had not shown any remorse; that the previous trial that had been set down had been abandoned; and that immediate parole or a wholly suspended sentence, whilst sought, was not considered appropriate in the appellant’s circumstances.
The approach of the respondent was to treat this matter as if it was a matter simply of a manifestly excessive sentence. Of course, an approach such as that, simply on that basis, means that if the Court is not satisfied that the sentence is manifestly excessive, then there is no basis upon which to interfere with the decision: see Wong v The Queen (2001) 207 CLR 584 at 538-539 [59]. But it seems to me that in this particular case, where information was not given to the learned Magistrate which would have had an effect - perhaps not on the head sentence but certainly on the fixing of a parole release date - then, for reasons also examined earlier, it is not simply a matter of manifest excessiveness but is one of error.
Taking that particular approach, it means that what this Court must consider is whether, in fact, bearing everything that I have mentioned in mind, the sentence was such that - also bearing in mind in particular the issues of what the learned Magistrate had to consider ought to be taken into account - it was the appropriate order for this particular set of circumstances (that is, whether it was both in error and more severe than that which ought to be freshly imposed: see R v KAC [2010] QCA 39 at [17]).
The answer in question is, essentially: even if the sentence imposed was not manifestly excessive, it still would mean that the Court would have the ability to look at the particular matter in its exercise of its discretion (were it to be still more serious or more severe than this Court would have ordered overall in any event - to which the cases referred to have moment).
The analysis of the comparable cases that I have canvassed shows, to my mind, that, overall, while the term of the head sentence itself is not (either manifestly excessive or) more severe, it still means that I must look in more detail at the parole release date.
The setting of a non-parole term was dealt with by the Court of Appeal, recently, in the decision of The Queen v Manning [2015] QCA 241. The major decision was given by McMeekin J. At paragraphs [91] and [92], he canvassed the particular authorities with respect to that. He noted that those authorities made it clear that the task of the sentencing judge is to set the minimum time that justice requires that the defendant must serve, having regard to all the circumstances of the offence. He referred, in particular, to the High Court case of The Queen v Shrestha and, in particular, the conclusions reached by Brennan and McHugh JJ to the following effect:
It is clear that, although a minimum term is a benefit for the offender, it is a benefit which the offender may be allowed only for the purpose of his rehabilitation and it must not be shortened beyond the lower limit of what might reasonably be regarded as a condign punishment. Moreover, the release of an offender for the purposes of rehabilitation through conditional freedom is not to be seen solely as a mercy to the offender but also, and essentially, as a benefit to the public.
In the following paragraph he noted observations made in The Queen v Ruha, Ruha & Harris; ex parte The Commonwealth DPP [2010] QCA 10, to the following effect:
(P)rovisions for early release confer a benefit upon the offender but such provisions are made in the interests of the community; the non-parole period is the minimum period of imprisonment that justice requires the offender to serve; it mitigates the offender’s punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period; and relevant factors to be taken in account in determining the length of the non-parole period include the length of the head sentence and its position in the permissible range, the seriousness of the offence and the prospects of rehabilitation, and the need to ensure that the sentence reflects the criminality involved and does not lose the important significant effect of general deterrence.
I accept in this particular case that there is a necessity to address the matter of general deterrence, as well as specific deterrence. There is also a necessity to denounce the appellant’s conduct. There would appear to be relatively low prospects of rehabilitation, given the appellant’s criminal history and propensity for violent conduct, and therefore some protection of the community is needed. But it is clear, where it is necessary to take into account the determination of the Parole Board which led to the additional time spent, to have that reflected in the appropriate non-parole period as time served.
The view I form of that particular issue is that while it does not affect the head sentence, looking at the matters afresh as I am entitled to do in this particular circumstance, it is more severe than ought be imposed now given the particular circumstances in question. The reason why I can take it into account is because section 9(2)(l) of the Penalties and Sentences Act 1992 permits the court to have regard to sentences that the offender is liable to serve because of revocation of orders made under this – that is, the Penalties and Sentences Act – or another Act for contraventions of conditions by the offender.
In all the circumstances of this case, given the additional time which is not declarable within the terms of the Penalties and Sentences Act, it is my view that the appropriate period – bearing in mind the additional time that the appellant spent in custody due to the decision of the Parole Board – is that he should have a non-parole period of two months. That means that the fixing by the learned Magistrate of a period of four months is to be varied. Accordingly, I allow the appeal against sentence to the following limited extent: I vary the sentence of the learned Magistrate by substituting a period of two months for the period of four months originally imposed. That has the consequence that I fix the parole release date for the appellant as at 13 December 2015.
There is no other order that I need make.
Before I complete this particular matter, I just refer to one further aspect. I have read carefully the sentencing remarks of the learned Magistrate and have taken into account the sentencing submissions. It is clear to me that, although the proposition was made to him that he ought take some account of the fact of the Parole Board’s decision – although the true nature of it was not explained adequately or properly to him – that in the end he did not take into account the issue of any additional period. Accordingly, I am satisfied that it is appropriate to approach the sentencing on the basis that I have indicated.
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