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Snyder v Detective Sergeant Carr[2016] QDC 153

Snyder v Detective Sergeant Carr[2016] QDC 153

DISTRICT COURT OF QUEENSLAND

CITATION:

Snyder v Detective Sergeant SR Carr [2016] QDC 153

PARTIES:

ROY EDWARD SNYDER

(appellant)

v

DETECTIVE SERGEANT SR CARR

(respondent)

FILE NO/S:

1/2016

DIVISION:

Appellant

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Hervey Bay

DELIVERED ON:

12 April 2016 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

12 April 2016

JUDGE:

Dearden DCJ

ORDER:

  1. Appeal granted;
  2. The sentence of the learned magistrate be amended by deleting that part of the sentence which requires the two sentences for the offences of unregulated high risk activities and assault or obstruct a staff member be served cumulatively and substitute an order that those sentences be served concurrently with each other and concurrently with all other periods of imprisonment to which the appellant was and is subject.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where the appellant and other prisoners climbed onto the roof of the prison – where the appellant refused to comply with directions from the prison general manager – where the appellant’s parole eligibility date was extended by a substantial period – where the sentence imposed on the appellant’s co-offenders was significantly less

CASES:

Tierney v Commissioner of Police [2011] QCA 327

LEGISLATION:

Corrective Services Act 2006 (Qld) s 124(b)

Justice Act 1886 (Qld) s 222

Summary Offences Act 2005 (Qld) s 14(1)

COUNSEL:

Self-represented appellant

S Cupina for the respondent

SOLICITORS:

Self-represented appellant

Office of the Director of Public Prosecutions for the respondent.

Introduction

  1. [1]
    This is an appeal pursuant to section 222 of the Justices Act from a sentence imposed by the learned magistrate at Maryborough on Tuesday, 2 February 2016 in respect of one count of unregulated high risk activities under the Summary Offences Act s.14(1) and one count of obstruct staff member under s.124(b) of the Corrective Services Act 2006.
  1. [2]
    The factual basis for the offending is able to be quickly outlined. The appellant was a prisoner on 23 November 2015 when he and two others, David Savage and Luke Dore, climbed onto the roof of secure north number 5 accommodation unit at the Lotus Glen Correctional Centre. As a result all prisoners were required to go to their accommodation units. A lockdown was conducted and the appellant together with the prisoners Luke Dore and David Savage were identified as being the three missing prisoners on the roof.
  1. [3]
    The rooftop of the unit at Lotus Glen was of metal construction with razor wire placed to hinder the escape of prisoners. The rooftop was, in parts, of a steep gradient and was considered to be dangerous without use of safety harnesses. The appellant and the other two prisoners on the roof were monitored by CCTV footage. Ms Paula May, general manager of the Correctional Centre at the time, spoke to the appellant and the other two prisoners and directed them to come down from the roof of the centre and advised them of the consequences of their actions.
  1. [4]
    The appellant and the other two prisoners did not come down from the roof and demanded cigarettes (cigarettes and tobacco are banned in all Queensland correctional centres). The appellant and the other two prisoners did not come down until about 1.25 am on 24 November 2015 (having apparently gone up on the roof around 2 pm 23 November 2015).
  1. [5]
    The appellant and the other two prisoners gaining access to the roof constitutes the unregulated high risk activity offence and the refusal to comply with the direction of the general manager, Ms May, constitutes the obstruct offence.
  1. [6]
    The appellant has a substantial criminal history and at the time of the offence was serving an effective head sentence of eight years for a torture offence as well as concurrent offences for two grievous bodily harm counts and a number of other summary matters.
  1. [7]
    The solicitor who appeared for the appellant at sentence pointed out that the appellant was still very young (24), single, had a year 10 schooling at Townsville and Palm Island, had worked in landscaping, turf laying and was only a month off the completion of a welding apprenticeship and had completed various courses in prison including ending offending, positive futures and educational courses.
  1. [8]
    In respect of the offending itself, the appellant’s solicitor advised the court that his instructions were “That it was a silly thing that he did”, that it was “A spur of the moment decision” without “real planning” and was “just something they decided to do”. The appellant through his solicitor informed the court that “Three other people had done the same thing several days prior and it was simply a case of … monkey see, monkey do”.
  1. [9]
    The appellant’s solicitor submitted that the offending was “More of a nuisance-type offence rather than some of the more serious [offences]” that the learned magistrate had seen and in particular sought to distinguish the appellant’s offending from the riot conduct of other offenders in different circumstances.
  1. [10]
    The appellant’s solicitor indicated the appellant’s regret and the appellant’s solicitor pointed out (significantly, in my view) that the appellant’s eligibility date for parole was “late last year” and referred the learned magistrate to the appellant’s criminal history which I note indicates a parole eligibility date of 27 February 2015, which would (or at least should) have been apparent to the learned sentencing magistrate. That being said, I note that the file copy of the criminal history on the court file that has been provided to me by the Maryborough Magistrates Court registry is missing page 6 of the criminal history so it may be that the precise details of the parole eligibility date were in fact not before the learned magistrate, which at least potentially may have led him into error.
  1. [11]
    The learned magistrate was also informed of the consequences of the appellant’s actions, namely, that he had been “placed on red card management” which meant that he was locked up for “23 hours of the day” for some significant period; and I’m informed today by the appellant orally that his transfer from Lotus Glen Correctional Centre to the Maryborough Correctional Centre was also a consequence of his offending.
  1. [12]
    The appellant’s solicitor also stressed in his submissions that any penalty not be crushing given the eight year sentence that he was serving of which he had at that stage served nearly four and a-half years (to February 2016).

The Law

  1. [13]
    The relevant law in respect of appeals against sentence to the District Court was succinctly set out by Margaret Wilson AJA (as she then was) in Tierney v Commissioner of Police [2011] QCA 327 in these terms:

An appeal from a Magistrates Court to the District Court pursuant to s.222 of the Justice Act 1886 (Qld) is a rehearing on the evidence given at trial and any new evidence adduced by leave.  In other words, it involves a review of the record of proceedings below, subject to the District Court’s power to admit new evidence.  To succeed, an appellant needs to show some legal, factual or discretionary error.[1]

  1. [14]
    Mr Snyder’s complaint essentially is that the sentence imposed on his co-offenders was significantly less than the sentence imposed on him. Although those co-offenders were sentenced after Mr Snyder, there is some significant force to that submission given that the co-offender, David Savage (who it appears was at the time serving an effective six year sentence) was convicted and not further punished in respect of both offences (Brisbane Magistrates Court, 5 February 2016) and Mr Dore who was serving an 18 month sentence was sentenced to three months in respect of the obstruct correctional staff member and six months in respect of the unregulated high risk activities but ordered to serve those sentences concurrently with each other and with existing sentences and was given a fresh parole eligibility date of the date of sentence.
  1. [15]
    In Mr Snyder’s case the learned magistrate imposed sentences of six months in respect of each of the offences but fixed a parole eligibility date of 2 April 2016 (clearly fixed at one third of the sentence imposed) but ordered that the six month penalties be concurrent with each other but cumulative on the existing period of imprisonment (the eight year sentence). The effect of the decision in respect of the parole eligibility date was, as the counsel for the Queensland Police Service, Ms Cupina, very frankly points out, effectively a substantial effect because it meant that the appellant’s parole eligibility date was extended by a substantial period – by my calculations about three and a-half months - past his original eligibility date which, as I’ve noted, was 27 December 2015.
  1. [16]
    In those circumstances I am persuaded that the learned sentencing magistrate did fall into error (perhaps because he was provided with an incomplete copy of the criminal history) and the practical effect of the further extension of the parole eligibility date was a substantial exacerbation of the penalty.
  1. [17]
    Although in one sense it’s academic to the immediate issue of parole eligibility, because the appellant has already passed the parole eligibility date set by the learned magistrate, there is still of course a long term issue which is the length of the effective sentence that the appellant faces if the penalties in respect of these two offences are to be served cumulatively rather than concurrently.
  1. [18]
    In that respect there is, as I indicated, some force to parity, even though Mr Snyder was sentenced prior to both Mr Dore and Mr Savage. In all of the circumstances, given the error in the approach to the sentence constituted by the setting of the parole eligibility date I am satisfied that the sentences themselves (i.e., six months in respect of each of the two offences) are not manifestly excessive but that ordering them to be served cumulatively with his existing sentences rather than concurrently was manifestly excessive in its consequence, in particular, in setting a parole eligibility date two months from 4 February 2016.
  1. [19]
    In all of the circumstances I will order that the appeal be granted, that the sentence of the learned magistrate at the Maryborough Magistrates Court be amended only by deleting that part of the sentence which requires the two sentences for the offences of unregulated high risk activities and assault or obstruct a staff member be served cumulatively, in the learned magistrates words, “commence at the expiration of the period of imprisonment which you are presently serving,” and substitute an order that those sentences be served concurrently with each other and concurrently with all other periods of imprisonment to which the appellant was and is subject.
  1. [20]
    I make no order in respect of the parole eligibility date which remains fixed at the 2nd of April 2016 because that’s now irrelevant but I note for the record that the appellant is, of course, now eligible to apply for parole at any time and had it been relevant I would have fixed that parole eligibility date at 2 February 2016 rather than 2 April 2016.

Footnotes

[1] Tierney v Commissioner of Police [2011] QCA 327, para 26, per Margaret Wilson AJA

Close

Editorial Notes

  • Published Case Name:

    Snyder v Detective Sergeant SR Carr

  • Shortened Case Name:

    Snyder v Detective Sergeant Carr

  • MNC:

    [2016] QDC 153

  • Court:

    QDC

  • Judge(s):

    Dearden DCJ

  • Date:

    12 Apr 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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