Young v White[2016] QDC 159

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 4 May 2015 the respondents each pleaded guilty relevantly to one count of riot. Sentencing submissions were made on 22 July 2015 on behalf of them, and of some others who were sentenced at the same time for offences arising out of the one incident, and they and 15 others were sentenced on 14 August 2015. The respondents White and Teamo were each sentenced to four months imprisonment suspended forthwith, with an operational period of 12 months. The remaining respondents were fined $2,000 each, except for Mr Kaddour whose fine was only $1,200. Convictions were recorded in each case. In each matter the complainant appeals against the sentence on the ground that it was manifestly inadequate. The five appeals were, for convenience, heard together.

Test to be applied

2. [2]
   The Justices Act 1886 s 222 confers a right to appeal to this Court from an order made in a summary way on a complaint of an offence or breach of duty, subject to the limitation in subsection (2)(c) that, if a defendant pleads guilty, “a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate.”  It is well established that the section permits an appeal by a complainant against dismissal of a complaint, and where a defendant has pleaded guilty, permits an appeal by the complainant against the sentence imposed on the ground that it was inadequate. The appeal is a re-hearing on the evidence before the Magistrates Court, subject to the power of the District Court to give leave to adduce fresh, additional or substituted evidence on special grounds: s 223. The powers of the judge on hearing the appeal are expressed in s 225 in terms which do not distinguish between an appeal against sentence by a defendant and an appeal against sentence by a complainant.

3. [3]
   Traditionally there was no right to appeal against a sentence on the ground that it was inadequate. The Criminal Codecontained no such right until 1939, when by an amendment Act s 669A was inserted into the code, giving the Attorney General a right of appeal against any sentence pronounced by a trial court. It provided that, “the Court may in its discretion vary the sentence and impose such sentence as to the Court may seem proper.”  The first appeal to be brought under this provision appears to have been R v McKeown [1940] St R Qd 202. The respondent after a trial was convicted of manslaughter, and was released on recognisance in the sum of £50 to come up for sentence if called upon at any time within 12 months: p 211.

4. [4]
   At p 211 the Court of Criminal Appeal had this to say about the sentence passed:

“We can only attribute this action to an inexplicably merciful impulse causing an absolute and immediate change in his view as to the real gravity of the prisoner’s conduct. He seems to have given disproportionate weight to the verdict of manslaughter in relation to the defence of provocation. His report furnished for the purpose of this appeal seems to us to be an ex-post facto attempt at justification of this leniency on grounds which do not appear to have been present to his mind when actually dealing with the prisoner. We feel sure that all judges find their duty to impose sentences an extremely difficult one and lean to mercifulness occasionally at the wrong time. The question arises, was this such a time, and if we think it was, what is our duty in the circumstances?”

5. [5]
   The Court of Criminal Appeal did not discuss the test to be applied, but referred to the decision of the High Court in R v Whittaker(1928) 41 CLR 230, where a majority of their Honours expressed the view that a provision inserted in the NSW statue in 1924 in essentially the same terms as s 229A conferred an unlimited judicial discretion on the Court of Criminal Appeal to alter the sentence imposed by the trial judge.^[1]The Court dealt with some technical arguments,^[2]including that the Court should stay its hand and wait for the trial judge to act, in respect of which they said at p 213:

“We are of opinion that we should proceed to exercise our new jurisdiction. It is now for us, in the exercise of our discretion, to decide what is a proper sentence to impose under all the circumstances. We should, of course, bear fully in mind the sentence imposed by the Court below, but we cannot shirk our own plain duty.”

6. [6]
   There was nothing else by way of discussion about the test to be imposed on appeal under the section, but evidently their Honours regarded the case as not one for fine distinctions of that nature, since they set aside the order that the respondent be released on a recognisance, and sentenced him to seven years imprisonment with hard labour: p 214.^[3]

7. [7]
   A similar approach was adopted in R v Beevers [1942] St R Qd 230, though Macrossan SPJ did say at p 233 that the Court should not interfere with a sentence pronounced by a trial judge “unless it is clearly satisfied that the sentence should be altered.”  In that case the Court by a majority raised a sentence of six months imprisonment to 18 months imprisonment for a charge of indecent dealing. That view of the legal position under s 229A remained current in 1949^[4]when the legislature amended the terms of s 209 of the Justices Act in such a way as to permit an appeal by the complainant against the sentence imposed on the ground that it was inadequate.^[5]

8. [8]
   Such an appeal came before the Full Court in Mill v Scott, ex parte Mill [1955] St R Qd 210.^[6]One of the matters raised was whether a complainant could be a “person aggrieved” for the purposes of s 209, which suggests that this was the first such appeal under the new section. The Court held that a complainant could, and went on to consider whether “the penalty imposed by the magistrate [was] manifestly inadequate.”: p 218, a question they answered in the affirmative. At the time the power conferred on the Court on appeal in relation to sentence was to “increase or reduce any penalty imposed by the said conviction or order.”^[7]In circumstances where a fine had been imposed by the magistrate, the Court held that it had power to increase the fine, but not to substitute a penalty of a different kind, namely imprisonment, though they considered that a period of imprisonment ought to have been imposed by the magistrate. The Court raised the amount of the fine from £10 to £50, and allowed seven days to pay, in default six months imprisonment. The decisions on s 669A were not cited, and the Court appears to have applied a more restrictive test on a prosecution appeal against sentence than current under the section of the code.

9. [9]
   I do not propose to embark on a comprehensive history of the development of the law in relation to s 669A, partly because it is not necessary for me to do so for present purposes and partly because that task has already been performed in the judgment of the majority of the High Court in Lacey v Attorney General (2011) 242 CLR 573 at [8]-[35]. What is notable in the analysis of the majority is the emphasis on important general principles of law rather than the particular wording of the statute concerned. This approach has been adopted to such an extent that a legislative amendment in 1976 to insert the word “unfettered” before the word “discretion” has effectively been treated as having no effect.^[8]In those circumstances, one would expect that the approach adopted by the High Court would also be applicable to a prosecution appeal against sentence under s 222 of the Justices Act, without the need for any careful comparison of the wording of the two sections.

10. [10]
    One of the things decided in Lacey at [60] was that an appeal under s 669A is an appeal by way of rehearing, something that is made express in an appeal under s 222 by s 223.^[9]Another proposition that was established in that decision is that on an appeal by way of rehearing it is necessary to determine whether the order the subject of the appeal was the result of some legal, factual or discretionary error.^[10]The position is the same with an appeal under s 222.^[11]

11. [11]
    The majority in Lacey (supra) said at [62] that error on the part of the sentencing judge had to be demonstrated before the court’s unfettered discretion to vary the sentence was enlivened, and went on to say:

“The unfettered discretion may be taken to confer upon the Court of Appeal in such a case the power to substitute the sentence it thinks appropriate where error has been demonstrated.”

12. [12]
    The High Court has however elsewhere pointed out that that discretion extends to a discretion not to interfere with the original sentence.^[12]In R v Hopper ex parte Attorney General [2015] 2 Qd R 56, the majority of the Court of Appeal held that, although error by the sentencing judge had been demonstrated, this discretion should be exercised in favour of the respondent. In CMB v Attorney General (NSW) (2015) 89 ALJR 407 the Court confirmed the existence and operation of this residual discretion at [33], [54], and went on to confirm that the onus lay on the Attorney General as appellant to show that the discretion to vary the sentence ought to be exercised in a particular case. That concerned the NSW statue dealing with such appeals, but in R v Schenk,ex parte Attorney General[2016] QCA 131 Gotterson JA with whom the other members of the Court agreed said at [48] that the terms of that statue were relevantly comparable to those s 669A, and applied that decision.

13. [13]
    Those terms are somewhat different from those in s 225, but that section speaks in subsection (1) and (3) in terms of what the judge “may” do on the hearing of an appeal, which wording is consistent with the conferring of a discretion. Overall, therefore I consider that the approach on the hearing of an appeal to this Court under s 222 of the Justices Act 1886 by a complainant against sentence should be the same as the approach of the Court of Appeal to the hearing of an appeal against sentence by the Attorney General. Indeed, counsel for the complainants conceded as much on the hearing of the appeal, and although such appeals are rare, that approach does seem to have been adopted in this court.^[13]I have gone into this matter in such detail only because I am not aware of a decision of the Court of Appeal dealing specifically with the question of the correct approach for a District Court judge hearing an appeal against sentence by the complainant under s 222 of the Justices Act 1886, and because so far as I can recall this is the first one that I have heard myself.

Circumstances of the offending

14. [14]
    The respondents were all sentenced on the basis of a schedule of facts which was put to the Court, apparently by agreement. The following is taken largely from that schedule, though focusing on those factual matters which involve these respondents; the sentencing hearing and the schedule also dealt with another 15 offenders. At the date of the offence, the respondents were members, nominee members or associates of the Bandido criminal motorcycle gang (“Bandidos”).^[14]At about 8.15pm on Friday 27 September 2013 at least 40 Bandidos wearing insignia attended Broadbeach and walked as a group through the Broadbeach mall. This occurred during school holidays at a time when the area was heavily populated with families, and others, as was apparent from surveillance video footage which had been seen by the magistrate, and was shown to me on the hearing of the appeal: Ex 4. The group was predominately lead by six individuals, including the respondents White and Teamo. Individual members walked into and out of at least ten restaurants or licenced premises, and at one stage the respondent Teamo peered into a restaurant.

15. [15]
    At one point the group congregated at the intersection of Albert Avenue and Surf Parade, then moved down Surf Parade, and part of the group waited outside the Aura Tapas Bar, which seats 100-120 and was close to full capacity at the time. Two associates of another criminal motorcycle gang were dinning in the Aura Bar at the time. The respondent Teamo stopped, entered Aura and looked towards them, and another Bandido turned to the group and yelled “oi everyone inside”: twenty-one Bandidos went into the restaurant with six walking straight to where the other two were seated. All respondents were among those who entered the restaurant. Teamo yelled at one of the other gang members, who suggested they “take it outside”, and walked out of the restaurant with the Bandidos who had entered it.

16. [16]
    Outside the member of the other gang punched the respondent Teamo, and a fight erupted between the respondent White and the member of the other gang, with the respondent White supported by the respondents Teamo and Kaddour and at least one other Bandido.^[15]A number fell to the ground including the respondent White, and the respondent Delalic joined the group. When police tried to stop the fighting one officer was struck in the face by an unidentified Bandido, the respondent Santa-Maria tried to tackle a police officer, and the respondents White and Santa-Maria, and some others, were detained by police and eventually handcuffed. By this time the respondent Teamo had left the area. In the fight tables were knocked over and dinnerware and glassware damaged, and a white decorative fence. When the fight started a number of diners in the area fled; some patrons of the Aura Bar had also left after the Bandidos entered.^[16]

17. [17]
    There was a confrontation between police and other Bandidos who were adjacent to the area of the fight, who were yelling threating obscenities at the police, and at one stage the group were chanting “Bandidos, Bandidos”. The group of Bandidos were demanding that the individuals taken into custody be released. One Bandido threated police with a raised chair, and a number of Bandidos were seen to have their hands in their pockets as if they concealed weapons, though no weapons were produced. There were further obscenities and abuse yelled at the police when they put the member of the other gang into a police van.

18. [18]
    While police were restraining the respondent White, the respondent Kaddour yelled at them demanding that they release him, as did other Bandidos who were also abusing police. A member of the public who appeared to be using a mobile phone to take photographs was abused and threatened by Bandidos. Eventually, after more police arrived and following negotiations between police and the Bandidos’ national sergeant at arms, the situation was defused and the Bandidos dispersed, leaving the area about 20 minutes after the group had entered the Aura Bar. During the incident, police observed members of the public in distress, including women and children crying near trees or motor vehicles.

Sentencing remarks

19. [19]
    The magistrate made some general remarks about the circumstances, and then specific remarks about each of the 19 individuals he was sentencing that day. He said of the incident that:

“Arrogance and gang mentality were clearly on show that night. That being said, I must sentence each of you individually today on what actually happened on the charge or charges you have pleaded guilty to, and on your individual conduct, on this most regrettable and sad evening, but not on perception.”

20. [20]
    He noted that the maximum penalty for riot was three years imprisonment, and said that he regarded actions as more serious than words, and entering the Aura Bar as more serious than congregating outside it. He noted that where violence was actually used, the level of violence was not high and had not involved any serious injury, and was mostly bikie on bikie violence, though one police officer was the victim of several king hits. He again noted that he was required “to sentence each of you of the basis of your actual conduct.” He said that the conduct of the group had effectively closed down Broadbeach for a period, and that they had participated in “the totally unacceptable practice of gang mentality which cannot be tolerated in any society.” They were “men on a mission to locate” the particular individual found in the Aura Bar with whom the respondent Teamo had a particular issue. When he was located in the Aura Bar, the respondent Teamo had called in twenty or so others, which was followed by an aggressive exchange of words before they left. That “clearly caused distress to many patrons.” He referred to the fight outside the Bar, and the following “protracted and volatile standoff between the police and the Bandidos…There was much threatening behaviour and use of threatening and obscene words to police.”

21. [21]
    The magistrate said he had regard in particular to the Penalties and Sentences Actss 9 & 12, and that “deterrence, both personal and general is an important consideration in these sentences. Protection of the community is also an important factor.”  He went on to note that in nearly two years since the offending “many of you have moved on to a new stage in your life.” 

22. [22]
    The magistrate referred to the District Court decision and said he had regard to what was said in that case in crafting the various sentences, and acknowledge parity as an important factor in sentencing. He said he had given consideration to sentences imposed on co-offenders but said that he regarded the sentences imposed on Clark-Davis and on Jackson as having been “quite harsh”. He said that the fact that they had renounced their membership to the Bandidos was an important factor in their favour and was relevant to the prospects of re-offending and the prospects of rehabilitation, though he acknowledged that the VLAD Laws had made continued association with such an organisation rather uncomfortable.^[17]He said correctly that he regarded the effect of custodial sentences on family members, particularly children, as a factor to be considered but as being of little weight.

23. [23]
    He then dealt with other defendants, but when he came to the respondent Teamo (p 10) he stated that he was satisfied that he was the cause of the whole regrettable affair, though he acknowledge that there was much that the Court did not know about that night. He did however note that the respondent Teamo was not wearing Bandido colours, and appears to have accepted a submission on behalf of the respondent that he had been in Broadbeach anyway that night before being contacted by other Bandidos in relation to the member of the other gang with whom he had the issue. Once he was told he was there, however, the respondent Teamo enthusiastically joined in what occurred, and, presumably thereafter, played a leading role in what occurred that night. The magistrate described his involvement and role as “pivotal”. He noted a criminal history mainly for drug offences, but including a public nuisance offence, and a conviction for possessing a knife in a public place in 2012; he had previously been the subject of a probation order and had then been assessed as a suitable candidate for a further community based order. There were two days pre-sentence custody.

24. [24]
    Teamo had not previously been sentenced to a term of imprisonment. He had the care of two young sons, had recently suffered significant business losses, had chronic hip and back pain due to car accidents, and in 2012 had been shot in an altercation at Robina from which he was suffering ongoing psychological problems. He previously had been addicted to drugs but had not been so addicted since 2011. The magistrate discounted the significance of a psychologist’s report in relation to the consequences of the shooting in 2012 because the psychologist had been told inaccurate facts about the shooting, though he did accept that there had been psychiatric problems as a consequence of that shooting. The respondent Teamo had disassociated himself from the Bandidos and had moved on, had not offended since and was remorseful for his conduct on that night. He took into account the punch from the member of the other gang. The Magistrate accepted that he had changed his life for the better and that he was well motivated towards rehabilitation, as shown by the fact that he had sought assistance from a psychiatrist.^[18]

25. [25]
    The Magistrate said that because of the importance of personal and general deterrence, the strong need to protect the community, and to show that the community will not tolerate this type of behaviour, and because his involvement in the episode was significant, indeed pivotal, a sentence of imprisonment was the only appropriate penalty. After proceeding again to summarise the matters already referred to, he imposed a sentence of four months imprisonment. He then listed a number of factors favourable to the respondent Teamo, to which again I have already referred,^[19]and said that he was satisfied it was appropriate wholly to suspend the imprisonment, with an operational period of 12 months.

26. [26]
    Dealing with the respondent Delalic (p 13), the Magistrate noted that he was the 19^thBandido to enter the Aura Bar and cause distress to the customers, and that he pushed other participants in the fight, but no individual act of real violence was alleged. He was part of a large group of Bandidos wearing colours. He was 27 at the time, then 29, and had no previous criminal history. He had pleaded guilty, the plea being described as “early-ish”. He had disassociated himself publicly from the Bandidos and had no intention of re-engaging, a matter which the Magistrate regarded as being of considerable importance. He was married with two children and had a good work history. The Magistrate accepted that he regretted his involvement, and that he had moved on with his life. He noted that he was not alleged to have been a violent participant in the riot,^[20]though he had entered the bar and violence was inevitable and it had occurred. He then went on to say that notwithstanding that, he was satisfied that a fine was the appropriate penalty. A figure of $2,000 was fixed by the Magistrate, and collection was referred to SPER.

27. [27]
    The respondent Santa-Maria (p 15) was dealt with in much the same way as the respondent Delalic, the facts of their involvement in the offending being “similar”, except that the respondent Santa-Maria had been earlier in the group that had entered the Aura Bar. He also had two days pre-sentence custody.^[21]He was 30at the time of the offending, he had taken steps to develop a particular career with which he was making progress. He had some criminal history dating from 2003, but a fairly minor one which was somewhat dated and included a breach of a domestic violence order, although one which was said not to involve violence. The Magistrate this time noted that the respondent was employed and had a capacity to pay a fine, and imposed a fine of $2,000. Otherwise the sentencing remarks were as with Mr Santa-Maria.

28. [28]
    The Magistrate noted that the respondent Kaddour was the eighth Bandido to enter the Aura Bar (p 22), and had been one of the group outside, had spoken aggressively to a police officer twice but had not actually participated in any violent act.^[22]The plea was said to be a timely one, and he had only spent two days in pre-sentence custody. He had a limited criminal history but “importantly” the offence occurred during the operational period of a suspended sentence imposed in the Supreme Court on 24 July 2012 for drug offences. He regarded that as an aggravating feature. He had been guilty of a public nuisance offence only three months earlier in June 2013. He was 26 at the time of the offending, employed with a good work history, and had also disassociated himself from the Bandidos. He was involved in the care of elderly parents who were in need of care, and in the two years since the offending had moved on, had changed and had a positive outlook for the future. Acknowledging that deterrence was a relevant factor he found that a fine was within range and was appropriate. He noted that it “had not been suggested that you cannot pay a fine.”  A fine of $1,200 was imposed, referred to SPER.

29. [29]
    When dealing with the respondent White (p 28), the Magistrate said that his role on the night was significant because of being involved in actual violence, in punching the member of the other gang, and because he was president of the Gold Coast Chapter of the Bandidos at the time, and had become centrally involved in the lawlessness that night. The offending occurred during the operational period of a suspended sentence, which he regarded as an aggravating factor. The Magistrate rejected a submission that the punch to the member of the other gang was in response to having been hit by the punch that the other gang member threw at the respondent Teamo. The Magistrate described the offence as serious and his involvement as serious, and described him as significantly contributing to the escalation of the whole regrettable and dangerous incident. He had a previous criminal history though his suspended imprisonment was not for an offence of violence and there was only limited violence on the history. He noted that he had been tasered by police to subdue him which caused him much pain. He was 25 at the time and had produced a number of supportive references who had spoken of his great changes in his life and attitudes since the offending, including receiving medical and psychiatric assistance and counselling; medical reports supported the existence of these changes.

30. [30]
    The Magistrate said that his involvement was more serious than the co-offenders Clarke-Davis and Jackson. He spoke of the changes that had occurred in his life since the offending, and after summarising the various factors to which he had previously referred concluded that the only appropriate penalty was a term of imprisonment and sentenced him to imprisonment for four months. Then having regard to the plea of guilty, the significant steps towards rehabilitation, his public disassociation from the Bandidos, his employment, personal circumstances, insight and the period of two years since the offending, ordered that the sentence be wholly suspended with an operational period of 12 months.

Submissions for the appellants

31. [31]
    The appellants appeal on the ground that the sentences imposed are manifestly inadequate. The appellants submitted that the magistrate erred in that he:

1. (a)
   Failed properly to appreciate the significance to be attached to sentences imposed on other offenders, particularly the offender Clarke-Davis.

2. (b)
   Gave too much weight to considerations of rehabilitation since the offending and the existence of remorse.

3. (c)
   Failed properly to appreciate the seriousness of the offending conduct and each particular respondent’s role in that conduct.

4. (d)
   In the cases of White and Teamo, impermissibly fettered his discretion in determining whether wholly to suspend the period of imprisonment by considering only matters favourable to the respondent.

Argument (d)

32. [32]
    It is convenient to deal first with the fourth of those submissions. Under the Penalties and Sentences Act 1992 s 144(1) if a Court sentences an offender to imprisonment for five years or less, it may order that the term of imprisonment be suspended. The wording of that subsection indicates that the imposition of a suspended term of imprisonment is a two stage process: the Court first determines to sentence the offender to imprisonment for a term not exceeding five years, at which point a discretion arises to suspend the term of imprisonment.^[23]The discretion to suspend is then subject to the constraints in subsections (2) and (4). In those circumstances, the effect of an order of suspension, whether it is of all or part of the sentence of imprisonment, will be to mitigate the effect of the sentence. That is particularly the case where the sentence is suspended forthwith.

33. [33]
    Although that is recognised as still amounting to a punishment,^[24]it is obviously a less severe punishment than a term of imprisonment some or all of which is actually to be served. In those circumstances, it could be expected that factors tendering to favour an order that the term of imprisonment be suspended would be factors favourable to the defendant, that is to say, factors justifying the mitigation of the sentence. In those circumstances, it is to be expected that in giving reasons for such an order, the magistrate would focus on the factors favourable to the defendant.

34. [34]
    That does not mean that only factors favourable to the defendant are to be taken into account in relation to making an order for suspension; it is still necessary to take into account all the factors relevant to sentencing in the general sense, including the seriousness of the offending conduct of the defendant. But the point of giving reasons for an order that the sentence be suspended is to explain why the Court has been led to take the step of making an order under s 144(1), rather than not making such an order, and it is to be expected that such reasons would be reasons favourable to the defendant. I do not think that it follows that the magistrate did not have regard to all the other factors relevant to sentence, and did not have regard to factors which were seen as tending against the making of such an order; rather, given his conclusion that such an order should be made, it was natural for him to provide the reasons for that conclusion by reference to reasons which supported it.

35. [35]
    I do not consider that his reasons should be interpreted as indicating that he disregarded other sentencing considerations, and therefore do not consider that the reasons that the magistrate demonstrated that he did impermissibly fetter his discretion in determining whether wholly to suspend the period of imprisonment by considering only the matters favourable to the respondent. In substance the argument for the appellant on this point amounted to the proposition that, because the magistrate did not say expressly in relation to the decision wholly to suspend the terms of imprisonment, that he took into account all the circumstances of the case, I should infer that he did not do so. That is not the approach adopted to the interpretation of sentencing remarks, and not an appropriate approach to their interpretation; if adopted it would lead to an excessive formulistic formality in such remarks, and make them much longer. The real problem with this argument is that I consider it is based on a false premise, and for that reason is not made out.

Other decisions

36. [36]
    The twenty defendants before the sentencing magistrate were not the only persons involved in the incident, and charged with offences arising out of it, and a number of co-offenders had already been dealt with. A schedule was put before the magistrate at the sentencing hearing setting them out. It appears the first person sentenced was a Mr Elcheikh, who on 19 November 2013 was in the Magistrates Court at Southport ordered to perform 150 hours community service for the offence of riot. He was 21 years old, was not part of the group that went into the Aura Bar but had been vocally aggressive to police outside; it was not alleged that he had been involved personally in any violence to others or damage to property. He had a criminal history including offences of wounding and assault occasioning bodily harm in 2012, for which he was sentenced to 18 months imprisonment with parole release after 6 months, but was not on parole at the time of the offending.

37. [37]
    Mr Leavitt was on 10 December 2013 sentenced in the Magistrates Court at Brisbane to four months imprisonment suspended after serving 21 days, having served seven days in pre-sentence custody, for the offence of riot. He was 20 years old at the time of the offence, with a good employment history and was a prospect member of the Bandidos at the time. He was not part of the group that entered the Aura Bar, but part of the group outside that yelled abuse at police, and the individual who threatened police with a chair. He had three pages of criminal history, including for offences of violence, but had not previously been sentenced to imprisonment. He was on bail at the time of the offending, and had engaged in rehabilitative courses prior to sentencing.

38. [38]
    Mr Jackson was on 11 December 2013 sentenced in the Magistrates Court at Southport to six months imprisonment suspended after two months, with nine days pre-sentence custody declared, for the offence of riot. He was one of the group that entered the Aura Bar, being one of the last in and one of the first out. He was then part of the group outside that was confronting police. He was 39 years old, a full Bandido member, in full time employment, married with a teenage child. He had not previously been sentenced to a term of imprisonment, and had a short and dated criminal history, including an offence of violence and possession of a baton.

39. [39]
    Mr Andrews was on 19 December 2013 in the Magistrates Court at Southport ordered to perform 100 hours community service for the offence of riot. He had five days pre-sentence custody. He had not entered the Aura Bar, was in the group outside giving encouragement by their presence and vocal support, and remained confronting police in the area until the group dispersed, but was not alleged to have yelled abuse at police. He was 50 years of age, married though separated with two teenage children, had a good work history, was a probationary member of the Bandidos, with very limited criminal history. He was subsequently dealt with for a charge of attempting to pervert the course of justice in relation to statements made during his sentencing hearing, and received 15 months imprisonment suspended after 224 days pre-sentence custody. After that sentence the community service order was revoked.

40. [40]
    Mr Clarke-Davis was on 20 January 2014 sentenced in the Magistrates Court at Brisbane to nine months imprisonment with parole release after four and a half months for the offence of riot. He did not enter the Aura Bar but was outside when the other group entered, and participated in the offending by his presence only. He was 22, a prospect member of Bandidos, worked as a labourer, and had a four page criminal history, mostly for drug offences but with some minor offences of violence, and had previously been imprisoned.

41. [41]
    An appeal was brought from this decision to this Court, and on 12 March 2014 Farr DCJ allowed the appeal, set aside the sentence imposed and resentenced the appellant to six months imprisonment with parole release after 89 days, the appellant having been in custody for 89 days up to that date: [2014] QDC 61. Because of the significance of this decision as a decision on appeal, I shall return to it.

42. [42]
    Mr Davies was on 18 February 2014 sentenced in the Magistrates Court at Southport to 160 hours community service for the offence of riot; at the same time he was placed on probation for 18 months for an unrelated wilful damage charge. He was not in the group that entered the Aura Bar, but was outside, present but at the edge of the group and not seen to be actively aggressive to police. He had a one page criminal history including a conviction for trafficking for which he was on parole at the time of the offending. As a result of this offence his parole was revoked so that he had been in custody since October 2013, of which only six days were declarable. He was 21 years old, had a good work history and was employed, and was a prospect member who had only been associated with the Bandidos for a short time.

43. [43]
    Mr Foran was on 27 March 2014 sentenced in the Magistrates Court at Beenleigh to 150 Hours community service and 12 months probation for the offence of riot. He was 17 years of age, came from a disadvantage background and had a criminal history limited to one offence of public nuisance. He was not part of the group that entered the Aura Bar, but was part of the group outside, though not one who was specifically identified as having threatened police.

44. [44]
    Three offenders, Mr Tangaroa, Mr Thacker and Mr Turia, were on 3 September 2014 sentenced in the Magistrates Court at Southport to 150 hours community service for the offence of riot; Mr Tangaroa was also placed on probation for 12 months. None went into the Aura Bar, but were part of the group outside, though no particular allegations were made against them of threatening police personally. They were between 23 and 26 years of age at the time of the offending, in employment and had children, two were probationary members of the Bandidos at the time, and had quite limited criminal histories. Mr Tangaroa had a two page criminal history for minor offences, and had re-offended while on bail for riot. Since the offence he had lost his job and his house and been unable to find employment.

45. [45]
    Mr Brown was on 27 April 2015 sentenced in the Supreme Court at Brisbane to three months imprisonment for the offence of riot, and for other offences, so that the head sentence was three years imprisonment with parole release after 12 months. He was 25 years old at the time of this offence, and had a criminal history extending to three pages including offences of violence, offences against public order and breaches of court orders, though he had not previously been sentenced to a term of imprisonment. He was not part of the group that went into the Aura Bar, but was outside and was particularly aggressive in threatening police.

Argument (a) – effect of other decisions

46. [46]
    Consistency of sentencing is a desirable objective in the interest of fairness.^[25]It has been recognised that this objective is particularly important in the process of sentencing persons who have been parties to the commission of the same offence. In Lowe v R [1984] 154 CLR 606 at 609 Gibbs CJ stated:

“It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.”

47. [47]
    His Honour went on to note at p 610 that the very existence of the disparity suggests that an error must have been committed, and gives rise to a justifiable sense of grievance in the offender dealt with more severely, and the appearance that justice has not been done. That approach was approved by members of the High Court in Postiglione v R (1997) 189 CLR 295 at 301, 109, 322, 335. In that case Dawson and Gaudron JJ at p 301 said that discrepancy or disparity was not simply a question of the imposition of different sentences for the same offence. Rather it was a question of due proportion between those sentences, having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. Gummow J at p 325 noted that the disparity principle in Lowe only applied to co-offenders. The principle laid down in those cases is still applied in Queensland.^[26]There are however limits to it: if one of the sentences imposed involved a mistake of fact or law, or if the sentence was outside the legitimate range of sentencing discretion, the principle does not apply so as to justify the passing of a further sentence suffering from the same defect: R v Owen[2015] QCA 46.

48. [48]
    In the present case, there had been a number of previous sentences imposed on co-offenders. Most of those who had already been sentenced, however, were individuals who had not entered the Aura Bar, and who were not identified as persons who were leaders of the Bandido activity that evening. The only co-offender who had also entered the Bar, Jackson, received a sentence of six months suspended after two months. Of those who had been present and who had been participating in yelling abuse, two were sentenced to terms of imprisonment and three to periods of community service; of those three one was only 17, had a disadvantaged background and had very little criminal history, one was 21, had a criminal history with a significant entry for which imprisonment had been served, but pleaded guilty quite soon after the offending, and the third was also 21, and was on parole at the time, but his parole was revoked because of the offence, and he had spent an extra four months in custody so that he had already spent actual time in prison because of this offence.

49. [49]
    The remainder were sentenced simply on the basis that through their presence they had participated in the riot, and most of these received a period of community service, except for Clarke-Davis who was originally sentenced to 9 months imprisonment reduced on appeal to six months, suspended after 89 days. Of those who received community service, two had very limited criminal history, one had a limited criminal history and was 23 years old, and one had a more lengthy but not serious criminal history, and had suffered other adverse consequences of the offending.

50. [50]
    The decision in Clarke-Davisof Farr DCJ is particularly important, because it was the only matter where the operative decision was a re-sentence on appeal. His Honour described the circumstances of the offending generally, and noted that the appellant’s role was constituted by his presence at the scene; he was part of the smaller group outside the Bar but he did not enter it, and there was no suggestion that he was involved in the fight that took place outside, or any evidence of his misbehaving in any way in the time which elapsed before the Bandidos dispersed. The sentence originally imposed was nine months imprisonment with parole release after four and a half months, on a plea of guilty. His Honour referred to a number of circumstances personal to that appellant: his early plea of guilty, he was 22, and his criminal history, which involved drug offences, one offence of dishonesty, two convictions for assaulting or obstructing a police officer both on the same day, one offence of public nuisance; he had also been sentenced to 12 months imprisonment, released on parole after serving 105 days pre-sentence custody, for unlawful disposition of explosives or noxious substances. He had been sentenced to four months imprisonment wholly suspended for damaging evidence with intent. Overall he had previously been sentenced to terms of imprisonment on four occasions but only required to serve actual imprisonment once, which was pre-sentence custody.

51. [51]
    His Honour reviewed a number of decisions in other matters of offences of riot or similar offences, including two NSW decisions which involved the brawling of two bikie gangs at the Sydney Airport which resulted in someone being killed, regarded as a substantially more serious matter. His Honour overall considered that the sentences in other matters clearly showed that the sentence under appeal before him was manifestly excessive. His Honour went on to say that the offending constituted by the riot on this occasion,

“quite obviously, was very serious. The appellant has associated himself with a large group of people who, through sheer weight of numbers, intentionally used those numbers for intimidatory purposes. Whilst that group’s actions were directed at the two men connected with the rival gang, the effect of the riot was that completely innocent members of the public, including families with children, were subjected to fear for their personal safety from the actions of the entire group. In the circumstances, the potential for violence was immense and actual violence did occur.”

52. [52]
    His Honour cited a passage from the decision in R v McCormack [1981] VR 104 at 108-9, which spoke of the basic approach to sentencing for the offence of riot as one based on the nature of the offence, which:

“Derives its gravity from becoming one of those who by weight of numbers pursued a common and unlawful purpose. The law of this country has always leant heavily against those who, to attain such a purpose, used the threat that lies in the power of numbers.”

53. [53]
    That court noted that it was open to the sentencing judge to take into account actual conduct of an offender in the riot, and Farr DCJ held that it was necessary under Queensland legislation, and in the light of later authorities, for the sentencing court to take into account the extent to which the offender was to blame for the offence, and the part which he had played in the commission of the offence. His Honour considered that there had been a failure to do so by the sentencing magistrate in that matter. His Honour also considered the sentences imposed on co-offenders, and noted in particular the cases of Jackson, Elcheikh and Leavitt. His Honour noted that the conduct of Jackson was more serious, and that he had a less serious criminal history than the appellant and was much older, and considered that the difference in the penalties was unreasonable. He did not however say anything to suggest that he regarded the sentence imposed on Jackson as being particularly severe in the circumstances of that case. His Honour considered that those three matters were impossible to reconcile with the sentence imposed on the appellant. In addition setting a parole release date at the half way point did not reflect the mitigating circumstances. Hence the sentence was unreasonably high. The sentence was set aside and the appellant was resentence to six months imprisonment with parole release after the period of pre-sentence custody which had then accrued, 89 days.

54. [54]
    It was submitted for the respondents that the sentence imposed on appeal was obviously influenced by the fact that the appellant had spent 89 days in pre-sentence custody, and that the same sentence might not necessarily have been imposed had the appellant not had any, or a smaller amount of, pre-sentence custody. That I expect is correct, though on the face of it his Honour simply said that the appropriate sentence was six months with parole release after 89 days. Had his Honour considered that the period of time already spent in custody was itself excessive it would have been open to his Honour to mitigate otherwise the effect of the sentence, by further reducing the head sentence, or by ordering that it be suspended after 89 days rather than fixing a parole release date, which left the appellant subject to the supervision of parole for the balance of the six months. Indeed, had the appellant served significantly more pre-sentence custody than his Honour considered appropriate, I would have expected him to say so. Viewed most favourably to the respondent, the most that could be said is that, had his Honour’s resentencing been unconstrained by the period of pre-sentence custody, the sentence may have been six months imprisonment with parole release after two months. There is nothing to suggest that it might have been more favourable to Mr Clarke-Davis than that.

55. [55]
    That decision was important not just because it was a sentence imposed on a co-offender, but because it was a sentence imposed on appeal. When I initially read the sentencing reasons of the Magistrate in the present matter, I was disposed to assume that his reference to the sentence on Clarke-Davis being harsh was a reference to the sentence at first instance. Having considered the sentencing remarks as a whole, however, and in particular having considered the sentences in fact imposed on the respondents by the Magistrate, I have been driven to abandon that approach, and consider that what happened here was that the Magistrate essentially dismissed the sentence imposed in Clarke-Davison the ground that he considered it harsh. That involved an error of law on his part, in failing properly to apply the parity principle.

56. [56]
    Although the Magistrate referred to the parity principle and said that he was applying it, the parity principle applies with particular force in a case where the sentence imposed on the co-offender was a sentence imposed by an appellate court. I consider that in that situation, a court subsequently sentencing a co-offender should proceed on the basis that the sentence imposed by the appellate court in the case before it was correct. A sentencing court does not need to apply the parity principle if the earlier sentence was one which involved an error, but I consider it is not consistent with the hierarchical court structure for a sentencing court to proceed on the basis that a sentence imposed by an appellate court was erroneous so as to remove the relevance of the parity principle. It was not for a Magistrate to say that a decision of this court, when sitting on appeal from a decision of a Magistrates Court, was wrong.

57. [57]
    To take the analogous case, when I am considering a sentence I am frequently cited decisions of the Court of Appeal, almost invariably not because they involve co-offenders, but simply on the basis that they involve matters with some similarity to the instant proceeding, and are cited as guidance in relation to the approach on sentencing.^[27]The provision of guidance to sentencing courts is a legitimate part of the function of the Court of Appeal,^[28]but that function will only operate if sentencing judges act in accordance with the guidance that the Court of Appeal provides. I therefore necessarily proceed on the basis that the decision of the Court of Appeal, in each of the matters referred to me, was correct: if the applicant in the particular matter was resentenced, that the sentence imposed on appeal was the correct sentence for that applicant in the circumstances, and if the application for leave to appeal was refused, that the sentence imposed was not outside the range for sentence in that matter; sometimes the court provides additional guidance by indicating, for example, that the sentence was severe (or, occasionally, lenient) and I also take that guidance into account.^[29]

58. [58]
    Very occasionally a situation arises where there is difficulty in reconciling all the decisions of the Court of Appeal which appear to provide applicable guidance, but no doubt that is because my inadequate analysis of them; it does not alter my basic approach to them. There was no question of that issue in the present matter; the Magistrate only had one appeal decision, and, as an appeal decision in relation to a co-offender where the parity principle applied, it was of particular significance. It was of course appropriate to have regard to the differences between Mr Clarke-Davis and any other particular co-offender being sentenced by the Magistrate, and on that basis to differentiate the sentences in a way which is consistent with the application of the parity principle as laid down in Lowe by Gibbs CJ. But the only such analysis engaged in by the Magistrate was in noting that Mr White’s involvement in the offending was more serious than that of Mr Clarke-Davis and MrJackson: p 30. That was certainly not a factor justifying treating the respondent White more leniently than either Mr Jackson or Mr Clarke-Davis.^[30]

59. [59]
    I acknowledge that the parity principle is not to be applied mechanically, and there remained a wide range of sentencing discretion available to the individual sentencing magistrate in relation to the sentence imposed on a particular co-offender in the application of that principle. In the present case however, I am satisfied, in the light of what was said in the sentencing remarks, and in the light of the sentences in fact imposed, that the Magistrate has misapplied the parity principle. The criminality of the respondents White and Teamo, because of the leading parts they played in the events of that evening, was substantially greater than the criminality of Mr Clarke-Davis, and a good deal greater than the criminality of Mr Jackson. Because the other respondents all entered the Aura Bar, there was an additional element in their involvement in the offending, and therefore their criminality was greater than that of MrClarke-Davis. Although there are differences in the mitigating circumstances, they cannot justify sentences which were substantially more lenient than those imposed on Mr Clarke-Davis, and on Mr Jackson. This misapplication of an important sentencing principle was a significant error in the sentencing process.

Arguments (b) and (c): seriousness of offending and effects of rehabilitation

60. [60]
    These grounds really require consideration together, because the appellant’s argument is in substance that the sentences imposed are so disproportionate to the seriousness involved in the offending that there must have been too much weight given to personal circumstances, or not enough weight given to the seriousness of the offending.^[31]It was submitted that, when referring to the personal circumstances, the Magistrate laid particular stress on the extent of rehabilitation, and remorse, shown by the respondents, and, acknowledging that they were relevant factors, the ultimate outcome indicates that excessive weight must have been given to these factors when balanced against the serious nature of the offending.

61. [61]
    As to the seriousness of the offending, I have already cited the passage where Farr DCJ described the offence of riot on this occasion as very serious, and gave reasons for doing so, with which I entirely agree. To my mind, a feature of this riot which contributed to its serious character was the place where it occurred. This was a display of force which was carried out in a place where large numbers of ordinary law abiding people had congregated for the purpose of an enjoyable night out. The night out of a large number of innocent law abiding citizens would have been ruined by this conduct, and no doubt many of them were severely shaken emotionally by being exposed to what occurred. It appears to me that the Queensland community in general was horrified by the arrogant self-confidence of the gang mentality which was manifested on this occasion. The incident has given rise to continuing debate, not as to whether, but as to how those who are disposed to behave in the way in which these respondents and the other Bandidos behaved that night can be effectively tamed, in the interest of the safety of the community as a whole.

62. [62]
    I expect that if the people of Queensland generally were asked about an appropriate sentence for the respondents, there would be a majority for a substantial term of imprisonment for each of them, and a significant proportion would favour locking them up and throwing away the keys. These considerations of course cannot influence the sentencing discretion – apart from anything else, the maximum penalty for riot is only three years imprisonment. The only relevance they have is to illustrate that this was a serious example of a riot, notwithstanding that other features which in other cases have made other riots serious, and which had they been present on this occasion would have made this riot more serious, were absent: the participants were not armed, there was no serious injury inflicted on any individual person, and there was no substantial damage to property.

63. [63]
    I need not repeat the analysis of matters involving other riots undertaken by Farr DCJ, with which I agree, but note that it supports the view that a sentence of imprisonment is commonly imposed for the offence of riot, generally with some time actually to be served. Some of those involved much smaller numbers of rioters than were involved in the present case. The Magistrate acknowledged that the respondent Teamo had a pivotal role in the offending and that the respondent White had a leadership position within the Bandidos and was apparently one of the leaders of the group on this occasion, and also acknowledged that all the respondents entered the Aura Bar, and that some of them had been vocally aggressive to police outside. None of these findings was challenged by the respondents on the hearing of the appeal. In these circumstances, the Magistrate was apparently aware of the serious nature of the riot overall, and of the particular roles that the individual respondents played in it, though it is difficult to see how this has been reflected in the sentences actually imposed.

64. [64]
    There is one other matter which concerns me in the sentencing remarks, and that was the stress which the magistrate placed on sentencing the respondents on what actually happened on the charge each pleaded guilty to and on his own individual conduct. That was no doubt based on the statements of Farr DCJ in Clarke-Davis about taking into account the involvement in the offending of the individual offender, with which I agree, but I did not understand that his Honour was treating this as meaning that no significance was to be attributed to the collective reasonability of each participant in the riot that occurred.

65. [65]
    A riot is necessarily a collective offence which can only be committed by 12 or more persons acting together, and in the present case an important aspect of the serious criminality of the offending was derived from the fact that there were so many persons acting together so as to convey such a serious threat of violence. It is important when taking into account the individual role of an individual respondent not to lose sight of that respondent’s share of responsibility for the overall offending involved in the incident as a whole. The magistrate did refer to the overall seriousness of the riot, and I regard that as a matter of some importance, and as a matter for which all participants have a collective responsibility, because that seriousness was derived from the collective actions of all of them, to which each contributed. This was not a matter relied on, on behalf of the appellants, so I am not taking it into account in the outcome of the appeal, and it is not necessary for me to determine whether this did involve some error of principle on the part of the magistrate.

66. [66]
    With regard to mitigating factors, one matter the magistrate referred to was that the respondents had dissociated themselves from the Bandidos and had no intention of re-joining, something that he regarded as an important factor in their favour. Given the circumstances, it is difficult to understand why the magistrate attributed particular significance to this factor. Although this was said to have occurred prior to the commencement of the VLAD laws, the government had announced an intention to legislate to deal with outlaw motorcycle gangs quite soon after this incident, and it must have been apparent to the respondents well before the new laws came into force that this was a course they should take. As well, it was a condition of their bail that they not associate with any other Bandido, something which required them to disassociate from the club. In my opinion this ought to have been seen as showing pragmatism rather than rehabilitation on the part of the respondents, and not as an important factor in their favour.

67. [67]
    What they did have as a factor in their favour was the absence of subsequent offending. In R v Horne [2005] QCA 201 the Court of Appeal said at p 6 that the applicant’s unblemished record between the date of the offences and the date on which he was sentenced, a period of over two years, provided firm evidence of genuine remorse and of a real prospect that he was unlikely to reoffend, though they did note that it occurred in a context where the applicant was 22 at the time of the offending, and when spoken to by police a year after the offending made full admissions, including identifying a co-offender. Making a true confession to investigating police is a good indication of remorse, and suggests good prospects of rehabilitation, but that was not present in the case of these respondents. Nevertheless, the absence of re-offending was I accept a factor of significance.

68. [68]
    One factor which inevitably arose in the light of the timing of this matter was the delay between the date of the offence and the date of the sentence. To some extent this was inevitable, given the size and complexity of the case that the prosecution had to mount against the respondents and all the others who were dealt with at the same time. I expect the case took a long time to become properly prepared, and it was only at that point that the prosecution were in a position to make proper judgment about what could or could not be proved, and formulate a proper schedule of facts. That however does not detract from the proposition that the delay gave the respondents the opportunity to demonstrate rehabilitation since the time when the offence was committed, a factor properly taken into account on sentence.^[32]

69. [69]
    In respect of the wholly suspended terms of imprisonment imposed on the respondents White and Teamo, the authorities indicate that the relevant question is whether the respondent has achieved a level of rehabilitation which enabled the judgment to be made that he could safely be returned to the community, notwithstanding his conduct which constituted the offence.^[33]While the magistrate made no express finding to that effect, it is consistent with his overall approach that that was his view of the situation with those respondents. The difficulty with that conclusion was not that there was not some evidence to support it, though I think the significance attributed to dissociation from the Bandidos was unjustified, but whether, given the significance of the criminality of the respondents, these factors were sufficient to justify only short terms of imprisonment, wholly suspended, as a proper exercise of sentencing discretion.

70. [70]
    The magistrate referred to the importance of general and personal deterrence, and the need to protect the Queensland community.^[34]These are legitimate purposes of sentencing, as is helping the offender to be rehabilitated.^[35]Another purpose referred to in the section is to punish the offender to an extent or in a way that is just in all the circumstances: s 9(1)(a). This was not a matter referred to by the magistrate, and with respect it seems to me to have been lost sight of. There is also the consideration that, in the sentencing remarks dealing with the respondents White and Teamo, the magistrate referred in each case to the importance of personal deterrence.^[36]There is, in my opinion, inconsistency between a finding that there is a significant need for personal deterrence and a finding that rehabilitation has proceeded to the point where the respondents can be safely returned to the community.^[37]There can be no doubt that general deterrence was an important factor in sentencing these respondents; but if the magistrate thought that personal deterrence was an important matter it is difficult to see how that was achieved by imposing a term of imprisonment which was wholly suspended.

71. [71]
    There is one other matter which concerns me about the approach of the magistrate. The magistrate referred to the personal circumstances of Mr White and steps taken towards rehabilitation, and family support, as factors to which he had regard in imposing a sentence of four months imprisonment, and then referred again to the significant steps towards rehabilitation as a factor supporting the decision wholly to suspend that period of imprisonment: p 30. The same approach was adopted in relation to Mr Teamo: p 13. This may have been done simply to indicate that the magistrate was having regard to all of the relevant factors in relation to sentencing in respect of both the imposition of a sentence of imprisonment and the making of an order to suspend that imprisonment, but I am concerned that what the magistrate has in fact done here is take the mitigating factors referred to into account twice, both in reducing the head sentence and in deciding wholly to suspend it. Mitigating factors should not be allowed for twice.^[38]

72. [72]
    Ultimately, however, what matters is whether in each case the sentence imposed was, in all of the relevant circumstances, manifestly inadequate. My conclusion is that, in respect of each respondent, the sentence imposed was manifestly inadequate. Giving proper regard to the seriousness of the riot and the important roles that the respondents White and Teamo had in the behaviour on that occasion, and the importance of general deterrence, the protection of the community, and the just punishment of the offender, a sentence of only four months imprisonment wholly suspended was, in each case, manifestly inadequate.

73. [73]
    In the case of the other respondents, the same applies to them. Although their part in the riot was considerably less, they were participants in a serious riot, and the purpose of general deterrence, protection of the community and just punishment apply in their cases as well, and I consider that the imposition of a fine was, in each of their cases, also manifestly inadequate. Given that each of the other respondents had the particular involvement of having entered the Aura Bar, I consider that the purposes referred to could not have been adequately met within the exercise of a sound sentencing discretion, notwithstanding the mitigating features in their respective cases, by the imposition of less than a term of imprisonment.

74. [74]
    I will mention one further matter in relation to the respondents who were fined by the magistrate. This was not a matter advanced by the appellants as a ground of appeal, and was probably an error in favour of the respondents, but I consider that, in relation to these respondents, the magistrate in imposing fines failed to comply with the Penalties and Sentences Act1992 s 48, in that he failed to take into account the financial circumstances of each relevant respondent and the nature of the burden that payment of the fine would be to that respondent. These are mandatory requirements, though it is clear from subsection (2) that the power to fine arises if the Court has been “unable” to find out about these matters. That was not demonstrated in any of the these cases; the transcript of the sentencing hearing reveals no reference to any information put before the magistrate on behalf of each of these respondents as to their financial position, other than general statements about their employment. In that situation a magistrate has not found out about the matters mentioned in subsection (1)(a) and (b), but without having made some inquiry about the matters, which was not made, the magistrate cannot be said to have been “unable” to find out about them. I consider, therefore, that the magistrate failed to comply with s 48 in determining the amount of the fine and the way in which it was to be paid.

75. [75]
    That was a further error of law. It points up one curious feature of the fines imposed in this case: the distinction between the fine of $2,000.00 imposed on the respondents Santa-Maria and Delalic, and the fine of $1,200.00 imposed on the respondent Kaddour. That distinction cannot be explained by the s 48 factors, and does not otherwise emerge from a consideration of the sentencing remarks. The respondent Kaddour had the additional circumstance that the offence occurred during the operational period of a suspended sentence of imprisonment, which was not a mitigating factor. The lack of any rational explanation or appropriate justification for this distinction does not inspire confidence in the sentencing process.

Residual discretion

76. [76]
    It follows that I consider that the appellants have demonstrated that the sentencing magistrate erred in two respects: he misapplied the parity principle, and in each case he imposed a sentence which was manifestly inadequate. Each involved a vitiating error for the purposes of House v R (1936) 55 CLR 499. Accordingly, the next question that arises is whether the appellants have shown that it is appropriate to exercise the residual discretion in favour of allowing the appeal, in each or any case. This was the discretion discussed by the High Court in CMB v Attorney-General (supra), though the particular factors referred to by the Court in relation to the exercise of the discretion in that case do not apply here.^[39]

77. [77]
    There are two factors which particularly arise in relation to the exercise of the discretion in the present case, but they both bear on the question of whether, in the case of the respondents White and Teamo, the sentence of imprisonment should be wholly suspended, and, in the case of the other respondents, whether a sentence of imprisonment imposed now should be wholly suspended. It seems to me that the discretion can be exercised separately in relation to the substitution of a proper head sentence, and the exercise of the discretion to suspend that sentence under s 144. No respondent submitted that the discretion could not be exercised in this fashion, and I propose to proceed on the basis that it can be. The two factors which arise are that, in imposing a sentence now, it is relevant to take into account the events between the time of sentence and now, since I must resentence by reference to the current situation. It remains the case that there has been no reoffending by any of the respondents, and there was some additional material put before me, without objection and I consider properly, in support of the contention that the rehabilitation of those respondents is continuing. I shall refer to this material later.

78. [78]
    There is also the factor that the discretion appears to apply particularly in a situation where to allow the appeal would have the effect of placing in or returning to custody someone who is not already in custody. This was an issue which was addressed recently by the Court of Appeal in R v Hopper, ex-parte Attorney-General [2015] 2 Qd R 56. In that case the respondent was sentenced to two and a half years imprisonment suspended forthwith for the offence of dangerous driving causing death and grievous bodily harm. The Court considered that the sentence was rendered impermissibly lenient by the absence of any period in actual custody: [36]. Nevertheless, the Court exercised the residual discretion to dismiss the appeal.

79. [79]
    Fraser JA noted that one of the factors relevant to the exercise of discretion was the respondent’s past release on parole or unconditionally, and the effect of resentencing on progress towards the respondent’s rehabilitation: [39].^[40]He noted that although there had been no significant delay in the appeal, in the five months since the respondent was released under the suspended sentence she had attended psychological therapy sessions, taken advantage of family employment, and otherwise had done all that might reasonably be done towards her rehabilitation and reintegration into the community. If she had been given an appropriate custodial sentence, she might have served it in full and been released by the time the appeal was heard. That respondent was afflicted by psychological problems before her offence and had suffered further psychological harm as a result of her offending, and there was evidence from a psychologist that her prospects of rehabilitation were better in a community setting than in prison: [40].

80. [80]
    Fraser JA concluded at [42] that:

“The desirability of correcting the sentence on appeal by imposing a relatively short period of actual custody does not justify the resulting interruption of the rehabilitation and reintegration into society upon which this youthful and psychologically vulnerable respondent has substantially embarked. This is an appropriate case in which to exercise the residual discretion to decline to intervene.” 

Boddice J agreed with the reasons of Fraser JA, and at [99] said:

“Where, as here, a respondent has availed herself of a noncustodial sentence to gain and remain in employment, and pursue a life free from crime and criminal influences, there is a reluctance to disturb that process.”

His Honour also noted that the effect of the Court’s decision was that the sentence imposed at first instance could not be used as a relevant comparable decision in the future, thus exercising the function of providing guidance to sentencing courts: [101].

81. [81]
    The third member of the Court, Morrison JA, dissented, referred to a number of authorities with regard to the significance of the respondent being out of custody, and said at [76] to [78]:

“[76]There is a difference in my mind between the situation where someone is sentenced and imprisoned, then given liberty because of the terms of an order (whether as part of the sentencing orders or a later order), or because of the parole system, and cases where the offender has not commenced imprisonment at all. The conclusion that the sentence was manifestly inadequate means that this case can be characterised as one where the respondent has been at liberty, but wrongly. That is not to say that in such a situation the Court could not exercise a residual discretion not to interfere, but it does seem to me to distinguish this sort of case from those considered in Gregory,^[41] Green^[42] and Major^[43], where the offender served a period of imprisonment and Karazisis^[44] where the sentence was served under an intensive correction order.

[77]Therefore, while it may be accepted that the residual discretion may be exercised in a case such as this, where there has been no imprisonment at all, or where the offender’s liberty has been governed nonetheless by matters such as community correction orders or intensive correction orders, the fact that the respondent has not been subjected to any period of imprisonment distinguishes this case, in terms of the question whether to exercise the discretion, from those where the offender has undergone a period of incarceration and the result of the order would be to return them to custody.

[78]What the various authorities referred to above establish is that an appeal court will weigh carefully the question of either returning an offender to a state of imprisonment when they have been released for whatever reason, or imposing imprisonment for the first time on an offender who has received a noncustodial sentence, that deliberative process being characterised in the authorities as the court being reluctant or hesitating before making such an order.”

82. [82]
    His Honour said later at [89] “The need for general deterrence looms large in my opinion, given the very serious nature of the offending conduct”. In that case as well there was a particular reason, in the form of a later offence though without the same serious consequences, suggesting the relevance of personal deterrence. Overall, his Honour considered that youth and rehabilitation could not, in the circumstances, be given too great a prominence: [91], and would have allowed the appeal and ordered that the sentence be suspended after serving five months imprisonment. That however was a dissenting opinion.

83. [83]
    That decision was applied by the Court of Appeal recently in R v Schenk, ex-parte Attorney-General [2016] QCA 131. The Court held that a sentence of four months imprisonment wholly suspended involved an error of law, but declined to exercise the residual discretion in favour of the appellant. Gotterson JA, with whom the other members of the Court agreed, said at [53]:

“The task confronting the appellant is the more challenging when account is taken of the undesirability of which Fraser JA spoke in R v Hopper, ex-parte Attorney-General of correcting a sentence on appeal by imposing a relatively short period of actual custody when to do so would interrupt the rehabilitation and reintegration into society upon which an offender, particularly a youthful and psychologically vulnerable one, had embarked. Although this respondent is neither youthful nor psychologically vulnerable, he has responsibly complied with his reporting conditions, abstained from illicit drugs and pursued avenues of employment in the period since he was sentenced. In my view, for these reasons, the appellant has not surmounted the second hurdle. I would therefore not vary the respondent’s sentence so as to require him to serve an actual term of imprisonment.”

84. [84]
    The considerations discussed in these judgments apply, as will be apparent in light of my reasons including the reasons that follow, because of the length of the period of imprisonment actually to be served under what I regard as proper sentences. I shall deal with each of the respondents separately, but in general I consider that in this matter, because of the importance of considerations in general deterrence and just punishment, the residual discretion should be exercised in favour of the appellants in relation to the modification of the head sentences, in order to pass the head sentences which I regard as proper. However, in relation to the making of an order under s 144, guided by the approach adopted by the Court of Appeal in Hopper and in Schenk, I will in each case order that the sentence of imprisonment I impose be wholly suspended. To that extent the residual discretion is not exercised in favour of the appellants. This is being done however only because of considerations relevant to the exercise of the residual discretion as expounding in those cases. In my opinion a proper sentence imposed by the magistrate would have involved a period of actual imprisonment for each of the respondents, followed by parole.

The respondent White

85. [85]
    To collect together the factors particularly relevant to his sentence, Mr White was one of six leaders of the group of Bandidos generally that day, and was in a leadership position within that club, as president of the Gold Coast chapter. The fact that he had been the president only a relatively short time is not of great significance. He was one of those who entered the Aura Bar, and one of those actually involved in the fight with the member of the other gang after the group left the Bar, being the one who responded to the punch thrown. The offence occurred during the operational period of a suspended sentence imposed by the Supreme Court on 24 July 2012, which is an aggravating circumstance.

86. [86]
    He was 25 at the time of the offence and had a criminal history dating from 2006, when he was fined for obstructing a police officer. After public nuisance offences for which he was fined in 2007 and 2012 he was sentenced in the Supreme Court in July 2012 to 18 months imprisonment, suspended for a period of 20 months for an offence associated with the manufacture of dangerous drugs, importing a pill press. In February 2013 he was fined for contravening a direction or requirement, for which the operational period of his suspended sentence was extended by one month, and in September 2013 he was fined for a further offence of contravening a direction or requirement, and in January 2014 he was convicted of possessing dangerous drugs and failing to take reasonable care and precautions in respect of a needle or syringe, for which he was placed on probation for nine months. This offending occurred to some extent before, and to some extent after, the riot, two of the charges alleging conduct on 12 October 2013, inconsistent with the notion that being arrested for riot produced an immediate change in his behaviour. Though not containing previous convictions for an offence of violence, this record indicates some persistent involvement with dangerous drugs, and anti-social behaviour.

87. [87]
    Mr White was at the time when sentenced and still is employed in a family telecommunications business, being an accredited optical fibre splicer and an advanced optical fibre tester. He worked for a different company until 2013 when he was made redundant. He was for a time unable to find other work because of the publicity surrounding the incident. In July 2014 he and his father set up a telecommunications business and he has been working successfully in that business since then. He has been in a stable relationship since the beginning of 2013 and has a four year old daughter with a former partner to whose support he contributes. A court report provided in relation to his probation in July 2015 noted that he had been engaging with a doctor to address issues of substance abuse and anger management, confirmed by that doctor, and had displayed a positive attitude in those areas. There was no concern about his continuing misuse of illicit drugs, and two urine tests were negative. There were no breaches of conditions, he was said to have engaged appropriately throughout the supervision period, and was considered suitable for further community based supervision.

88. [88]
    The magistrate had a report from a clinical psychologist who noted a combination of personality and cognitive factors which contributed to offending behaviour, but considered that he did not exhibit sufficient symptoms to meet diagnostic criteria. In terms of psychological functioning, he showed a dominant personality with a tendency to be mistrustful and resentful in his responses, and an aggressive attitude, impulsivity and poor control of his anger. He had some disadvantage in terms of cognitive and intellectual ability, with language, and with judgment, with limited insight into the weakness in judgment, anger and impulsivity. A number of factors suggested an increased risk of reoffending, though there were some reported protective factors, some following from the effect of the charge against him and the impact of the VALD Laws. He was said to have benefited from counselling, and may also benefit from a clinical psychological intervention targeting anger management and structured problem solving.

89. [89]
    There were a number of references from members of the respondent’s extended family which were before the magistrate, and which spoke of a change in the attitude and behaviour of the respondent since the offending. On the hearing of appeal I was given an affidavit by the respondent which refers to his having moved away from the Bandidos, and his treatment from medical practitioners to address anger management and his pervious steroid abuse. He said he is currently the operations manager for the business started with his father, a business which has 20 employees and which occupies a large amount of his time. The relationship with his current partner remains stable and he continues to parent his daughter for part of the time. He assists his partner with the rescue and rehabilitation of animals. He says he has emotionally and mentally matured, has learnt from his mistakes and has not reoffended. I take this material into account in relation to the exercise of the residual discretion referred to earlier.

90. [90]
    Because of his leadership role in the Bandidos and in the events of that night, the fact that he entered the Aura Bar and was involved in the fight outside, and that the offending occurred during the operational period of suspended imprisonment, I consider that his involvement in the offending was significantly more serious than that of Mr Jackson and Mr Clarke-Davis. Although Mr Clarke-Davis had a more serious criminal history, it was not a dramatically more serious one. Bearing in mind the other factors to which I have referred, and the purposes of sentencing to which I have referred, in the circumstances I consider a proper sentence to be 12 months imprisonment, with parole release after three months. This would be earlier than after one third of the sentence was served, to allow for the indications of rehabilitation since the time of this offending. A period of three months actual imprisonment however comes within the principle in Hopper (supra), and in accordance with that approach I order that the sentence be suspended forthwith, and fix an operational period of two years and two months, the equivalent of three years from the date of the original sentence.

The respondent Santa-Maria

91. [91]
    This respondent was one of those who entered the Aura Bar, and was one of the group outside the bar. According to the schedule of facts, he tried to tackle a police officer, and was eventually detained and removed from the scene. Counsel for the respondent before the Magistrate submitted that it was not a deliberate tackle, but that the respondent was in the front row, was pushed by people behind him and fell forward, which may have looked like he was trying to tackle the police officer: p 65. That is inconsistent with the statement of facts put forward by the prosecutor. The magistrate said at p 6 that he had read the schedule of facts and that he intended to ask each of the legal representatives to confirm that there was no dispute with those facts, and if there was, then the matter would be dealt with. That was the correct approach, but the transcript does not reveal that it was followed, at least in the case of the respondent Santa-Maria.

92. [92]
    The outcome seems to have been that the magistrate rejected the factual assertion included in the schedule of facts about the attempted tackle without identifying this as a matter in dispute and without giving the prosecution the opportunity to consider its position in relation to that matter. I consider it obvious that if the respondent Santa-Maria was involved personally in the violence shown to police that night, it was a factor of some importance in relation to his sentence, and this issue ought to have been resolved by the Magistrate, if necessary, on the hearing of a contested sentence. The magistrate evidently proceeded on the basis of the version given by counsel for the respondent, and for the purpose of re-sentence it is too late to depart from that, and I proceed on the basis that the respondent Santa-Maria was just in the front row of those who were confronting police on this occasion outside the bar at the time of the fight. He was not identified as one of the leaders of the Bandidos that night. His role in the offending was not as significant as that of the respondent White, but it was at least as significant as that of Mr Jackson, and more significant than that of Mr Clarke-Davis.

93. [93]
    He was 30 years of age at the time of the offence, at the time of sentencing was not married and lived with his mother who is in poor health and for whom he cares. He had a criminal history dating from 2003, including minor offences for dishonesty in 2005, breach of a protection order in 2008, and some other minor offences for which he had been fined, being most recently before the Brisbane Magistrates Court in December 2013 on counts of possessing dangerous drugs (after the riot) for which he was fined. He provided two references from acquaintances who spoke positively of him, one referring to his having made a huge effort to change and take himself out of the circles which brought him into the offending. He had been employed in a variety of jobs over the years, mostly as a security provider, though at the time of sentencing he was working for a labour hire company doing general labouring work. He obtained in December 2013 a Certificate IV in Aero Skills (Structures) which qualified him to do some aircraft maintenance work, and he has continued to pursue an interest in that field.

94. [94]
    The respondent Santa-Maria filed two affidavits for the appeal, one on 25 May 2016, and one by leave sworn 2 June 2016 on the hearing. The first confirmed that the living arrangements and employment referred to at the sentence hearing are continuing, and the second advised that he had applied for a position with the Australian Defence Force and had passed an aptitude test and a medical examination, since he wants to obtain a position in the Air Force to pursue a career in aircraft maintenance engineering. That is an encouraging indication of rehabilitation, and engages the considerations referred to in Hopper(supra). He was arrested at the scene but was released the next day so that there were two days pre-sentence custody.

95. [95]
    Because of the level of his involvement in the offending and having proper regard to the parity considerations, I consider that in all the circumstances the purposes of sentencing referred to earlier required a sentence of imprisonment notwithstanding the mitigating features, and a proper sentence to be 6 months imprisonment with parole release after 2 months. However because of the principle in Hopper(supra) I order that the sentence be suspended forthwith and fix an operational period of 18 months. Since there has been no time during which he has been subject to the operational period of a suspended sentence since the sentencing in the Magistrates Court, the 18 months should run from the date of re-sentencing.

The respondent Kaddour

96. [96]
    Mr Kaddour was one of the group to enter the Aura Bar, and outside the bar had been in a group confronting police, and he had twice attempted to interfere with the process of restraining the respondent White. His role in the offending was less serious than the respondent White, but more serious than Mr Clarke-Davis, and reasonably comparable to that of Mr Jackson. The offence occurred during the operational period of a suspended sentence imposed in the Supreme Court for drug offences, which was an aggravating feature. The respondent was 26 at the time of the offending, and he had a good work history. He had a criminal history dating from 2006 when he was fined for obstructing police. On 24 July 2012 he was sentenced to 18 months imprisonment to be released forthwith for attempting to possess a relevant thing, a Commonwealth offence, in fact a pill press. In June 2013 he was fined for committing a public nuisance. His involvement in the importation of the pill press was described by the sentencing judge as a serious matter, so overall his criminal history, though short, was by no means trivial. In all the circumstances I consider a proper sentence to be 7 months imprisonment with parole release after 10 weeks, with two days pre-sentence custody declared. The period of 10 weeks actual imprisonment comes within the principle in Hopper(supra) and in accordance with that approach I order that the sentence be suspended forthwith, and fix an operational period of 21 months.

The respondent Teamo

97. [97]
    Mr Teamo was one of the leaders of the group that evening, and was the person whose quarrel with the member of the other gang initiated the incident. His involvement was correctly described by the magistrate as pivotal. He was the one who went into the Aura Bar, and the one who led the other Bandidos into the Bar. He was one of those who escorted the members of the other gang out of the Bar, but after the fight outside, in which he participated,^[45]there is no clear indication of what happened to him. Despite not being personally involved in the later confrontation with the police, his involvement in the offending was of a high order. He was at the time of the offending on bail, which was an aggravating circumstance, and this offending was a breach of his bail conditions.^[46]

98. [98]
    Mr Teamo was 44 years of age at the time of the offence, he had a varied employment history, having been expelled from high school in grade nine and having left home shortly afterwards.^[47]He had worked in various labouring jobs, but also as a painter. He had been associated with motorcycle gangs since he was about 19, and had been one of the foundation members of the Bandidos on the Gold Coast in 2001. He had a criminal history dating from 1987, mostly for drug offences for which he had been fined or given community service, though in October 2005 he was dealt with for unlawful possession of a weapon, and in January 2006 for the same offence, along with possessing dangerous drugs and possessing tainted property. In May 2013 he was fined for possession of a knife in a public place or school, and on 28 October 2013, that is said after the riot, he was convicted of committing a public nuisance in October 2012, and certain traffic matters, and placed on probation for 12 months and ordered to perform 80 hours community service. In February 2014 however the orders were revoked and he was re-sentenced to 18 months’ probation, which was about to expire at the time of his sentence for riot. His history reveals to persistent association with illegal drugs, but no pervious offences of violence or terms of imprisonment.

99. [99]
    At the time of sentencing he had the care of two young children, which on the day were being looked after by a girlfriend. His two boys have lived with him exclusively for four years. There has been no further offending after the riot, and he had resigned from the club and claimed he had made good progress with his rehabilitation. A report of a psychologist was put before the court, which noted that the respondent was shot by a rival gang member on 28 April 2012, in the right arm. He reported to the psychologist that he had seen several psychologists and psychiatrists over the years, primarily for impulsivity and quickness to anger. After the shooting he attended a psychologist six or seven times but did not feel this was of benefit. He was placed on a disability support pension for post-traumatic stress disorder, anxiety and depression in January 2015.

100. [100]
     At the beginning of 2015 he had begun to consult a psychiatrist for treatment for his psychiatric state and had been receiving medication. A psychological test was administered, which revealed a high risk of recidivism. The psychologist expressed the opinion that Mr Teamo appeared to have made a genuine effort to change his life, and keep away from former associates, though this seems to have been required by the bail condition. The psychologist did think that the changes made in his life since the offending had reduced the risk of re-offending, and that he had demonstrated a capacity to live a responsible and law-abiding life. A court report in relation to his probation indicated that he had been complying with the requirements of that order.

101. [101]
     Because of the importance of his role in the events of that night, and the fact that he not only entered the Aura Bar but led the other Bandidos into the Bar, I consider that his involvement in the offending was more significant than that of Mr White. He has the feature that he was on bail at the time, whereas Mr White’s offending occurred during the operational period of a suspended sentence, which is in itself a more significant aggravating factor. He had a criminal history of some length and psychological testing suggested a high risk of re-offending, though there were some indications of steps being taken to mitigate that risk since the offence occurred, and some indications of rehabilitation. Bearing in mind these and the other factors to which I have referred, and the purposes of sentencing to which I have referred, in the circumstances a proper sentence to be 13 months imprisonment with parole release after the four months, with two days pre-sentence custody declared. In view of the application of the principle in Hopper (supra), I order that the sentence be suspended forthwith and fix an operational period of two years and five months, the equivalent of three years and three months from the date of the original sentence.

The respondent Delalic

102. [102]
     He was one of those who entered the Aura Bar, and after the group left the Bar and the fight started outside he moved to the group that was fighting and pushed into them. He was not otherwise involved in specific violence or abusive activity that evening, but he was part of the group that was confronting police. Overall his involvement was similar to that of Mr Jackson, and more serious than that of Mr Clarke-Davis. There were no other particular aggravating circumstances in his case. He was 27 at the time of the offending, and had no previous criminal history.

103. [103]
     He is married with two children, had a good work history, he had come to Australia in about 1996, and had been working as a truck driver and also in the building industry, though he had never had formal qualifications. Recently he had been unemployed at the time of sentence. A plea of guilty had been notified to the prosecution at the end of the week before the listed trial. That was not particularly early. It does not appear on the bench charge sheet as though there was any significant modification to the charge, but there may have been negotiations about the terms of the agreed facts. It is difficult to see how the plea could be characterised as “early-ish”. Bearing in mind the facts to which I have referred, and the purposes of sentencing which I have referred, in the circumstances I consider a proper sentence to be six months imprisonment, with parole release after six weeks. There is no presentence custody to be declared in his case. On the application of the principle in Hopper(supra) I order the sentence be suspended forthwith and fix an operational period of 18 months.

Conclusion

104. [104]
     Accordingly, in each case the appeal is allowed, the sentence imposed in the Magistrates Court is set aside, and in lieu thereof, each respondent is convicted, the conviction is recorded, and resentenced as follows:

• The Respondent White is sentenced to 12 months imprisonment; the sentence is wholly suspended, with an operational period of 2 years and 2 months.

• The Respondent Santa-Maria is sentenced to 6 months imprisonment; the sentence is wholly suspended, with an operational period of 18 months.

• The Respondent Kaddour is sentenced to 7 months imprisonment; I declare 2 days in custody, from 13 to 14 October 2013 inclusive, solely in relation to this offending to be imprisonment already served under the sentence; the sentence is wholly suspended, with an operational period of 21 months.

• The Respondent Teamo is sentenced to 13 months imprisonment; I declare 2 days in custody, from 1 to 2 October 2013 inclusive, solely in relation to this offending to be imprisonment already served under the sentence; the sentence is wholly suspended, with an operational period of 2 years and 5 months.

• The Respondent Delalic is sentenced to 6 months imprisonment; the sentence is wholly suspended, with an operational period of 18 months.