Smalley v Commissioner of Police
[2016] QDC 322
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- Unreported Judgment
- Smalley v Commissioner of Police[2016] QDC 322
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Smalley v Commissioner of Police[2016] QDC 322
Smalley v Commissioner of Police[2016] QDC 322
DISTRICT COURT OF QUEENSLAND
CITATION: | Smalley v Commissioner of Police [2016] QDC 322 |
PARTIES: | CHRISTIAN GEOFFREY SMALLEY (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | BD2586/2016 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Holland Park Magistrate’s Court |
DELIVERED ON: | 9 December 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 November 2016 |
JUDGE: | Muir DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where appellant pleaded guilty to possession of methylamphetamine and a utensil used in connection with the smoking of a dangerous drug – where appellant breached a suspended sentence of 4 months with an operational period of 1 year – whether proper allowance was made for the totality principle – whether proper allowance was made for defendant’s plea of guilty – whether sentence was disproportionate to the gravity of the subject offences – whether excessive weight was placed on the defendant’s criminal history Drugs Misuse Act 1986 (Qld) s 9, s 10(2)(B) Justices Act 1886 (Qld) s 222 Penalties and Sentences Act 1992 (Qld) s 13(3) Chapman v Queensland Police Service [2016] QDC 141, considered Director of Public Prosecutions v Ottewell (1970) AC 642, followed House v R (1936) 55 CLR 499, considered Mill v R [1988] 166 CLR 59, considered R v Beattie; Ex Parte Attorney-General (Qld) [2014] QCA 206, followed R v Gordon (1994) 71 Crim R 459, considered R v Lawley [2007] QCA 243, followed R v Lewis-Grant [2015] QCA 252, followed R v Mallon [1997] QCA 58, followed R v Warren [2014] QCA 175, followed R v Woods [2004] QCA 204, followed Veen v R (No 2) (1988) 164 CLR 465, considered |
COUNSEL: | L. Heaney (sol) for the appellant J.K. Rodriguez for the respondent |
SOLICITORS: | Legal Aid Queensland for the appellant Office of the Department of Public Prosecutions for the respondent |
Introduction and background to the appeal
- [1]This is an appeal under s 222 of the Justices Act 1886 (Qld) against the sentence imposed on the appellant by Magistrate Cosgrove at the Holland Park Magistrates Court on 29 June 2016. On this day, the appellant pleaded guilty to one charge of possessing a dangerous drug (methylamphetamine) in contravention of s 9 of the Drugs Misuse Act 1986 (Qld) and one charge of possessing a utensil used in connection with the smoking of a dangerous drug in contravention of s 10(2)(B) of the Drugs Misuse Act 1986 (Qld).
- [2]As a result of these guilty pleas, the appellant breached a suspended sentence of 4 months imprisonment with an operational period of 12 months, which had been imposed upon him on 16 February 2016, for one charge of failing to comply with reporting [on 1 December 2015] in contravention of s 50(1) of the Child Protection (Offending Reporting) Act 2004 and one charge of contravening a direction or requirement [on 10 December 2015] under s 791(2) of the Police Powers and Responsibility Act 2000.
- [3]In sentencing the appellant, the learned Magistrate:
Convicted and sentenced him to nine months imprisonment with immediate parole fixed at 29 June 2016.
Extended the operational period of the suspended sentence that was imposed on 16 February 2016, by a period of 5 months.
Committed the appellant to the District Court to be dealt with for a breach of probation imposed on him in the District Court at Brisbane on 9 July 2015.
- [4]By the notice of appeal filed 5 July 2016, the appellant appealed on the single ground that the sentence was manifestly excessive.
- [5]The written submissions of the appellant contended that this ground was supported by 4 identifiable errors:
Error 1 - the sentences that were imposed did not make proper allowance for the totality principle.
Error 2 - the learned sentencing Magistrate’s discretion miscarried by not imposing a sentence that took into account the appellant’s plea of guilty.
Error 3 - the learned sentencing Magistrate erred in imposing a sentence that was disproportionate to the gravity of the subject offences.
Error 4 - the learned sentencing Magistrate erred in placing excessive weight on the criminal history of the appellant.
The sentencing hearing
- [6]The appellant was represented by a solicitor from legal aid at the sentence and entered a plea of guilty to the two drug charges when called upon to do so. He was not asked to, nor did he enter a plea in relation to a breach of the suspended sentence, although his solicitor asked for this sentence to be activated during the course of her oral address at the sentence.
- [7]The police prosecutor outlined to the learned Magistrate that around midnight on 3 April 2016, police were conducting mobile patrols in Moorooka when they observed the appellant coming out of a known drug supplier’s house. The police observed the appellant throw a couple of items from his pocket and so detained and searched him. At this time the appellant admitted that it was methylamphetamine in a pipe that he had thrown. The police detained the appellant and picked up the items that he dropped onto the footpath. The estimated gross weight of the substance was 1.4 grams including the bag. No evidence that the substance was tested or weighed was tendered. It was the appellant who admitted both the contents and the weight of the substance.
- [8]The appellant’s lengthy 8 page criminal history was tendered at the hearing.
- [9]The Police Prosecutor made no further submissions and did not hand up any relevant authorities nor submit on penalty.
- [10]The appellant’s personal circumstances that were outlined at the sentence included that he was the father of four children and that he had lost his oldest daughter as a result of an accidental death. This incident had caused the appellant to suffer from depression, which he was not receiving treatment for. The learned Magistrate was also told that the appellant had also suffered post-traumatic stress disorder from unresolved issues arising from his adolescence and that he had given information in a Royal Commission relating to the investigations of allegations against the Catholic Church. The appellant had work history as a personal nurse for a period of some seven years, and was in a two year relationship with his partner.
- [11]The appellant’s solicitor conceded that the appellant had a substantial criminal history and that she had been dealing with him for a period of time. The learned Magistrate was told that the appellant was in breach of the suspended sentence of 16 February 2016 but that the amount of drugs involved was small. It was contended on the appellants behalf that he had been on a “revolving door”, having come out of custody on 16 June 2016 and that “these matters” were adjourned whilst he was serving the balance of the sentence that was imposed on 16 December [2015].[1]
- [12]The submissions as to penalty made by the appellants solicitor were that a term of imprisonment should be imposed in the region of two months on the drug charges and that the suspended sentence of four months should be activated to run concurrently and that the appellant should be given immediate parole. It was also submitted that the appellant would have to be sent back to the District Court to be dealt with “in relation to these charges”.[2]
- [13]In sentencing the appellant, the learned sentencing Magistrate said that he had taken into account:
The matters raised on behalf of the appellant by his solicitor, noting that ‘Actions in the past have consequences today. Things follow you through life’.[3]
The appellant’s history which was long and ‘not a particularly attractive one’.[4]
The appellant was subject to suspended sentences and had matters hanging over his head from the District Court.
All the matters stated in s 9 and 11 of the Penalties and Sentences Act.
The Issues on Appeal
Totality Principle
- [14]The appellant raises the issue of the totality principle as espoused by the High Court in Mill v R [1988] 166 CLR 59 at [63] where it was said:
“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong’; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.”
- [15]The appellant also drew attention to the Queensland Court of Appeal extending the principle in the context of an offender who is then serving an existing sentence.[5]In such a case:
“The judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.”[6]
- [16]It was argued on behalf of the appellant that the process of considering the aggregate sentence for both the earlier and later offences was not undertaken by the learned Magistrate such that the sentence that was imposed did not make due allowance for the effect of the earlier sentence that had been imposed on the appellant.
- [17]It is apparent from the criminal history that the appellant was sentenced on 16 December 2015 to 6 month’s imprisonment with a parole release date of 16 February 2016. On 16 February 2016, he was then sentenced to 4 months imprisonment suspended for 12 months, for failing to comply with reporting on 1 December 2015. On 16 May 2016, the appellant was sentenced to 3 months imprisonment to be suspended for 15 months on 3 counts of [9] possessing dangerous drugs (on 3 December 2015) and the suspended sentence imposed on 16 February 2016 was extended for 1 month and a $300.00 fine was imposed for a breach of bail committed on 12 April 2016.
- [18]The respondent concedes that the learned Magistrate erred in not considering the totality principle insofar as the entry date of 16 May 2016 on the appellant’s criminal history was concerned. Ultimately, the respondent’s submission was that even though the learned Magistrate erred by not turning his mind to the issue of totality, the sentence imposed was within the appropriate range of sentences for the offending and upon review, the court would conclude that no different sentence should be passed.
- [19]The respondent pointed out that the appellant had committed the offences subject to the appeal, whilst on bail for the drug offences dealt with on 16 May 2016 in the Brisbane Magistrate’s Court and that he had an appalling criminal history commencing when he was 17 years of age. The respondent argued that the appellant’s criminal history included 8 previous entries for drug offences, for which he had been sentenced to terms of imprisonment in the past and that this history showed that he was incapable of complying with both bail conditions and court orders, given the number of previous breach hearings and breach of bail offences on his history.
- [20]The respondent also drew attention to other breaches by the appellant including of a suspended sentence imposed in the Brisbane District Court on 11 April 2013. On that occasion, the appellant was sentenced on an indictment for rape, indecent treatment of a child under 16 and a number of summary offences. For these offences, he was sentenced to a head sentence of three years imprisonment, suspended for an operational period of four years after serving 346 days as pre-sentence time served in custody. The written submissions on behalf of the respondent contended that the learned Magistrate recommitted this suspended sentence to be dealt with in the District Court. Whilst it is not entirely clear from the sentence transcript, that submission does not appear to be correct given that the bench charge sheet refers to the appellant being recommitted to the District Court for the maters dealt with on 9 July 2015. These matters included: breach of the suspended sentence imposed on 11 April 2013 for rape, breach of probation order imposed on 11 April 2013, breach of probation for indecent treatment of a child under 16 and observations or recordings in breach of privacy for which he was resentenced for the original offence and given 12 months probation.
Plea of guilty
- [21]The appellant also raises the issue that the learned Magistrate did not state in open court that he had taken into account the appellant’s plea of guilty, as required by s 13(3) of the Penalties and Sentences Act 1992. In doing so, the appellant acknowledged that the mere fact that s 13(3) is not complied with does not necessarily mean that the sentence should be reviewed,[7]but that one failure of a sentencing court to make the required statement in open court will be to “place the imposed sentence in jeopardy.”[8]
- [22]The respondent concedes that the learned Magistrate did not state in open court that he had taken into account the appellant’s plea of guilty, however contends that despite this fact, it is evident that the order for immediate release on parole adequately allowed for the mitigating factors, most importantly, the plea of guilty. The respondent argues it was open to the court to impose a term of imprisonment in relation to these offences having regard to considerations of deterrence and denunciation.[9]
Proportionality
- [23]The appellant argues that the offending was of a relatively minor nature given that the appellant was found in possession of a pipe and a small quantity of methylamphetamine for his own use. The appellant argued that in a case persistent offender (such as the present), the courts have long held that a sentencer must give weight to each of the purposes of punishment and must apply the principle of proportionality.[10]
- [24]The respondent’s rely upon the authorities of R v Warren [2014] QCA 175 and R v Woods [2004] QCA 204 to support their argument that the sentence imposed by the learned Magistrate was within the appropriate range of sentences.
- [25]In R v Warren,[11] the applicant was 42 years of age and pleaded guilty to one count of possessing the dangerous drug methamphetamine in the amount of 2.183 grams. There was no element of commerciality and the applicant had previous convictions for drug offences. The applicant was sentenced to 18 months imprisonment with immediate parole release, which was upheld on appeal.
- [26]In R v Woods,[12]the applicant was convicted on his own pleas of guilty to possessing 5.8 grams of cannabis and possessing 3.85 grams of methamphetamine. Again, there was no element of commerciality and the applicant had a significant criminal history and had committed offences while on bail for other drug offences. The appellant was originally sentenced to 12 months imprisonment, however on appeal this sentence was allowed to the extent that on each count the term of imprisonment was suspended after the applicant had served four months of imprisonment with an operation period of two years.
- [27]The respondent argues that these cases demonstrate that the sentence imposed by the learned Magistrate was not disproportionate to the gravity of the offences, and thus was not excessive in all of the circumstances.
Criminal history
- [28]Finally, the appellant argues and I accept that as a matter of sentencing principles, sentences do not inevitably increase due to an accrued criminal history.[13]
Principles to be applied on appeal
- [29]Pursuant to s 222(2)(c) of the Justices Act 1886, where a defendant pleads guilty or omits the truth of a complaint, a person may appeal under this section on the sole ground that a fine, penalty forfeiture or punishment was excessive or inadequate. Such an appeal is by way of a rehearing de novo on the evidence that was before a magistrate.
- [30]For a sentence to be excessive, it must be “beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness.”[14]
- [31]The statement by Dixon, Evatt and McTiernan JJ at 504-5 of the House v R is particularly apposite:[15]
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution, for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
- [32]Further, the exercise of the discretion cannot be interfered with unless an error is apparent. As identified in R v Lawley:[16]
“It is not a sufficient basis for this Court to intervene that this Court might have struck a different balance between the competing considerations which had to be weighed in the exercise of the discretion.”
Analyis
- [33]In my view, there were identifiable errors made by the learned sentencing Magistrate in exercising his discretion to sentence the appellant.
- [34]First, I accept that the learned sentencing Magistrate was not referred to and did not consider the totality principle.
- [35]The offences subject to this appeal could have been dealt with on 16 May 2016 given that they occurred in April 2016. A review of the bench charge sheet for the present offences reveals that on 9 May 2016, there was a mention and that the appellant wished to ‘PG’ [plead guilty]. It is unlikely, in my view, that had the present offences been dealt with on 16 May 2016, there would have been a substantially different outcome; or certainly not an outcome that would have resulted in the appellant receiving a head sentence of 12 months suspended for 20 months.
- [36]In the circumstances, the sentencing Magistrate ought to have considered and made allowance for the effect of the earlier sentence on 16 May 2016 that had been imposed upon the appellant. The aggregate sentence for both the earlier and later offences should have been considered and the determination made in relation to whether the total effect of the sentences reflected the criminality involved in all of the offending.
- [37]Second, in my view the circumstances of the sentence and, in this case, the failure by the learned sentencing Magistrate to state in open court that he had taken into account the appellant’s plea of guilty, is another error. The issue was not raised by the appellant’s solicitor at the sentence or stated in open court and, in my view, does not appear to be reflected in the penalty the appellant received. This is particularly so given that: the evidence was the appellant cooperated with authorities by directing them to and identifying the relevant items; that the methylamphetamine was not tested or weighed by the police; and that the weight estimate was given by the appellant himself. In the circumstance of his co-operation, additional leniency ought to have been afforded to the appellant.
- [38]In the circumstances, I consider that the learned Magistrate erred in failing to state in open court that he had taken the guilty plea into account in formulating the sentence. I also consider that he erred in not providing reasons for not reducing the sentence upon the plea of guilty.
- [39]I also consider that the learned Magistrate imposed a sentence that was disproportionate to the gravity of the offences. I accept that it was certainly open to the court to impose a term of imprisonment having regard to considerations of deterrence and denunciation. Indeed, that was the submission made on behalf of the appellant.
- [40]The authorities relied upon by the respondent, in my view, are able to be distinguished as they both involved amounts exceeding the Schedule 3 amount, that is, an amount exceeding 2 grams.[17]In the present case, the appellant was found in possession of a pipe and a small quantity of methylamphetamine for his own use. As I set out above, he made admissions in relation to what he possessed and there was no testing or weighing of the substance, with the result that the basis of the charge was underpinned by the appellant’s submissions.
- [41]I also consider that the learned sentencing Magistrate erred in placing excessive weight on the appellant’s previous convictions. In particular, the learned Magistrate placed specific emphasis on the appellant’s actions in the past having consequences for him upon the sentence. Whilst the antecedent criminal history of an offender is a relevant factor upon sentence which may be taken into account, it cannot be given so much weight as to lead to the imposition of a penalty, which is disproportionate to the gravity of the offence.[18]This is akin to imposing a fresh penalty for past offences.
Conclusion
- [42]For the reasons outlined above, I conclude that the learned sentencing Magistrate has fallen into error and the sentencing discretion has miscarried.
- [43]On appeal pursuant to s 225(1) of the Justices Act 1886, I may set aside or vary the appeal order or make any order that I consider just. I consider that the sentence imposed by the learned Magistrate was manifestly excessive.
- [44]The appeal is allowed.
- [45]In resentencing, I take into account the appellant’s guilty plea, admissions and co-operation with the police, I also take into the overall criminality of these offences and the totality principle. I also take into account the matters mentioned in section 9(1) and (2) of the Penalties and Sentences Act 1992 (Qld.) In my view, the sentence that is just in all the circumstances is a sentence of 4 months imprisonment with a parole release date of 29 June 2016. I also consider it just that the suspended sentence imposed on 16 February 2016 be fully invoked and that these sentences run concurrently.
- [46]In the circumstances, I make the following orders:
The appeal is allowed.
The sentences imposed on 29 June 2016 are set aside.
The appellant is convicted on each count and sentenced to four months imprisonment on each count.
I find that that the appellant has committed offences punishable by imprisonment which breach the suspended sentence imposed on 16 February 2016.
I find it is not unjust to order the appellant to serve the balance of the suspended sentence and I activate it.
The sentences will run concurrently.
I fix the date for the appellant’s release on parole as at 29 June 2016.
Footnotes
[1] Magistrates Court transcript Day 1-3, 29 June 2016 at line [43-45]
[2] Magistrates Court transcript Day 1-4, 29 June 2016 at line [6-7]
[3] Magistrates Court transcript Decision, 29 June 2016 at line [3-4]
[4] ibid
[5]R v Beattie; Ex Parte Attorney-General (Qld) 244 A Crim R 177 at 181 per P. McMurdo J
[6]R v Gordon (1994) 71 Crim R 459 at 446 per Hunt CJ
[7]With reference to R v Lewis-Grant [2015] QCA 252 at [29].
[8]R v Mallon [1997] QCA 58.
[9]With reference to R v Warren [2014] QCA 175 at [10].
[10]With reference to the judgement of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v R (No 2) (1988) 164 CLR 465 at [472].
[11][2014] QCA 175.
[12][2004] QCA 204.
[13]With reference to Chapman v Queensland Police Service [2016] QDC 141.
[14]See the summary by Durward SC in Chapman v Queensland Police Service [2016] QDC 141 with reference to R v Morse (1979) 23 SASR 98; R v Lomass (1981) 5 A Crim R 230; R v McIntosh [1923] St R Qd 278; Lowe v R (1984) 154 CLR 606.
[15](1936) 55 CLR 499.
[16][2007] QCA 243 per Keane JA at [18].
[17]R v Warren [2014] QCA 175, R v Woods [2004] QCA 204
[18]Veen v R (No 2) (1988) 164 CLR 465 at [476], [477-478]; Director of Public Prosecutions v Ottewell (1970) AC 642.