Perceval v Queensland Police Service
[2015] QDC 47
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- Perceval v Queensland Police Service[2015] QDC 47
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Perceval v Queensland Police Service[2015] QDC 47
Perceval v Queensland Police Service[2015] QDC 47
[2015] QDC 47
DISTRICT COURT OF QUEENSLAND
APPELLATE JURISDICTION
JUDGE DEVEREAUX SC
PERCEVAL
v.
QUEENSLAND POLICE SERVICE
BRISBANE
11.07 AM, FRIDAY, 13 FEBRUARY 2015
JUDGMENT
HIS HONOUR: The appellant Perceval was sentenced by a learned Magistrate, on the 8th of September 2014, to two periods of four months imprisonment concurrent with each other, but cumulative upon his existing sentences. The learned Magistrate fixed 7 April 2015 as the parole eligibility date.
The appeal is against sentence on the basis that the sentence is excessive. It is said that it was excessive for a number of reasons, but the two relevant grounds are that there was error in making the sentences cumulative and that the Magistrate erred in fixing the parole eligibility date some seven months after the sentence date.
I am not satisfied that his Honour erred by making the sentences cumulative. I am satisfied there was error in the method adopted, which led to the fixing of the parole eligibility date.
To explain that, I need to set out briefly the offences and something about the appellant’s criminal history. The appellant was born on the 22nd of November 1976; that makes him 38 years old now. He has a three page criminal history. Importantly, on 17 September 2012, he was sentenced to 2½ years imprisonment by the District Court for charges which included: entering premises and committing indictable offences, entering premises with intent, stealing and receiving.
The period of 300 hundred days already served was declared imprisonment under the sentences. A parole release date was fixed at 17 September 2012; that is to say the sentence date. So the appellant was there being sentenced to two and a-half years imprisonment, having served 300 hundred days. He was released immediately on parole.
He was again before the District Court on 27 August 2013, that is, less than a year later, for offences of entering premises and unlawful use of a motor vehicle, wilful damage and stealing committed in October and November 2012, that is, within a month or two of his release on parole. On 27 of August 2013, he was sentenced to two years imprisonment.
The record does not show that there was any presentence custody declared as imprisonment served under the sentences. I infer from that that any presentence custody was the service of parole in custody, as it were.
The offences before the learned Magistrate on this occasion were permitted on 19 and 23 April 2014, again, while the appellant was on parole. On their own they were not serious charges of stealing, they were basically shoplifting offences. But they were charged with the circumstance of aggravation that they were offences committed after a previous conviction. Such offences draw a statutory maximum period of 10 years imprisonment. The Magistrate was limited to a sentence of three years.
The solicitor who appeared for the appellant submitted that a sentence of six to nine months was appropriate, on the basis that the sentence would be concurrent. And the solicitor sought a parole eligibility date about a month after the sentence date.
His Honour imposed, as I said, four month sentences, but made them cumulative. In my view, there was no error in principle in imposing short cumulative sentences. The new offences were committed on parole. They were dishonesty offences, like those the appellant was on parole for. The sentences were modest, particularly, compared with submission made by the appellant solicitor, below of six to nine months, although, as I said, that was on the basis that the penalties would be concurrent with the existing sentence.
Mr Whitton, who appears for the appellant, has referred me to the decision of Judge Dorney QC in Dargusch v Kosieradzki [2010] QDC 391. His Honour there remarked that in the case before him cumulative sentences made so because the offending was committed on parole rendered the sentence excessive. His Honour said:
Even conceding notions of aggravating circumstances arising from the offences being committed while on parole release, it takes it out of what is both a just punishment in the circumstances and one that shows proper denunciation of the offending conduct. The cumulative effect would be disproportionate to the overall criminality.
I, with respect, do not disagree with those remarks. They are, again, with respect, properly made in the context of the case before his Honour. It seems to me that they were made in answer to a submission by the respondent that a cumulative sentence was proper and indeed required, because without such there would no sanction for the commission of offences on parole. The problem with that submission was that committing the offence on parole brought its own sanction, namely, the suspension or cancellation of parole. And that’s what’s happened in this case.
But, in the circumstances of this case, I am not satisfied that the addition of four months to a considerably lengthy sentence rendered the sentences in this case excessive.
It is not entirely clear what precisely the overall period is. The two years imposed in August 2013 were stated to be cumulative on the earlier period. And that was, of course, a two and a-half year sentence of which the appellant had already served 300 days when he was sentenced, in September 2012.
But this brings me to the second point. I am satisfied, with respect, that the learned Magistrate erred in his approach to the fixing of a parole eligibility date. His Honour said during argument:
Aren’t we supposed to look at how long he’s got to go, and then give it off a third in these situations?
If what his Honour meant was to consider the period as one commencing on the date of sentence and ending with the full time release date, taking into account the new terms imposed, then I consider that an error. Such an approach, I concede, that has the attractiveness of being a workable and a practical method. But the sentences imposed were terms that comprised part of a larger period, not just one commencing on the day that his Honour was dealing with the appellant. His Honour was told that the full time release date was in October 2016. That was some 25 months out from the sentence date. His Honour fixed the 7th of April this year as a parole eligibility date, that is, seven months out from the sentencing date. And his Honour commented:
So I’ve given you a bit less than a third there.
And that confirms my view that the learned Magistrate was looking from the day of sentence ahead to the full time release date and considered that to be the period, and fixed parole eligibility at a time less than a third of that remaining period. As I say, I think that was the wrong approach.
In a sense, time has overtaken this matter. The parole eligibility date is a little more than six weeks from now. But I am of the view that the parole eligibility date needed to be set much earlier than now. It may be of some utility then for me to vary the learned Magistrate’s order, making today the eligible date for parole. And that is what I propose to do.
I am satisfied, as I have set out, that there was an error in the fixing of the parole eligibility date. And I am satisfied that that error renders the sentence excessive, so the appeal should be allowed.
The order is: that the order of the learned Magistrate is varied by changing the parole eligibility date, from 7 April 2015 to 13 February 2015.