Knight v The Commissioner of Police
[2016] QDC 37
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- Unreported Judgment
- Knight v The Commissioner of Police[2016] QDC 37
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Knight v The Commissioner of Police[2016] QDC 37
Knight v The Commissioner of Police[2016] QDC 37
DISTRICT COURT OF QUEENSLAND
CITATION: | Knight v The Commissioner of Police [2016] QDC 37 |
PARTIES: | KNIGHT (Appellant) and THE COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | 2838/15 |
DIVISION: | Appellate |
PROCEEDING: | Appeal under s 222 of the Justices Act 1886 (Qld) |
ORIGINATING COURT: | Magistrates Court at Maryborough |
DELIVERED ON: | 4 March 2016 |
DELIVERED AT: | District Court at Brisbane |
HEARING DATE: | 19 February 2016 |
JUDGE: | Devereaux SC DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL: where the appellant pleaded guilty to one count of dealing with a prohibited thing – where the appellant was serving a term of imprisonment for State offences and had been sentenced for federal offences – where the sentences for the federal offences were to commence upon expiration of the appellant’s incarceration for the sentences imposed for the State offences – where the learned magistrate was not told of the cumulative federal sentence – where the appellant was sentenced to three months imprisonment to commence at the expiration of the period of imprisonment he was presently serving – whether the sentenced imposed was excessive. Legislation: Corrective Services Act 2006 (Qld) s. 123(2)(s) Justices Act 1886 (Qld) s. 222, s. 224 Crimes Act 1914 (Cth) s. 19 Penalties and Sentences Act 1992 (Qld) s. 156A Cases: R v Dobie [2004] QCA 140 R v Knight [2013] QCA 277 |
COUNSEL: | The appellant appeared on his own behalf. A McGee and J Hanna for the respondent |
SOLICITORS: | The appellant appeared on his own behalf. ODPP on behalf of the Commissioner of Police for the respondent |
- [1]On 28 January 2014 Mr Knight pleaded guilty in the Maryborough Magistrates Court to a charge that, on 19 July 2013, while a prisoner, he dealt with a prohibited thing, namely a syringe, without written approval from the chief executive. The charge is brought under s 123 (2) (s) of the Corrective Services Act 2006. The learned magistrate convicted Mr Knight and sentenced him to three months imprisonment to commence “at the expiration of the period of imprisonment which you’re presently serving”. The learned magistrate fixed 28 February 2014, one month from the sentence date, as the parole eligibility date.
- [2]On 10 July 2015 Mr Knight applied for an extension of time, under s 224 of the Justices Act 1886, within which to appeal under s 222 of the Act. He also filed a notice of appeal with the grounds that the sentence was manifestly excessive and “not according to law or was imposed in error”. He gives some explanation in writing on his notice of application for an extension of time form for the extraordinarily long delay. On its own it would not be sufficient to warrant a grant of an extension of time. It is necessary to consider the merit of the appeal in order to decide the extension application.
- [3]The facts placed before the magistrate were that Mr Knight was a sentenced prisoner at Maryborough Correctional Centre when at 7.45 am on 19 July 2013 officers conducted a search and found a blue coloured case on the bookshelf inside which was a “Vicks inhaler”. Inside the inhaler was a cut down syringe. The syringe was a prohibited thing.
- [4]Mr Knight has a long criminal history. The history before the magistrate showed that on 10 April 2008 at the District Court at Maroochydore, he was sentenced to a total of nine years, six months imprisonment. Parole eligibility was fixed at 27 March 2011.
- [5]Mr Knight’s legal representative submitted to the learned magistrate that a term of imprisonment was “usually imposed and has to be in place cumulatively”. He told the magistrate about Mr Knight’s drug addiction which had controlled much of his life had led to offending. Not long before the offence Mr Knight had been transferred from Rockhampton to Maryborough. This interrupted family contacts, causing him distress and he relapsed into drug use. While serving his sentence he had enrolled at the University of Southern Queensland studying a bachelor of science majoring in psychology. He was now a third year university student. He also had, by the time of sentence, re-enrolled in the “getting smart” course and other drug related courses.
- [6]The learned magistrate took into account the plea of guilty at the first opportunity and also the extensive criminal history and the current period of imprisonment. The magistrate noted Mr Knight was using his time productively and said “imprisonment is normally imposed for this type of offence and it must be made cumulative”. The learned magistrate imposed a term with three months cumulative on the current term, with a parole eligibility date at 28 February 2014.
- [7]Unknown to the magistrate, and it seems all parties before him, Mr Knight had been sentenced on 14 February 2013 (that is, after the ‘non-parole period’) for Commonwealth offences of obtaining a financial advantage by deception. The sentence was reopened on 15 March 2013 with the net result being a sentence of three years imprisonment with release after 12 months upon recognizance, the sentence to commence upon the expiration of incarceration for the sentences imposed on 10 April 2008. Mr Knight appealed the sentence, seeking a determination of the order’s meaning. As Atkinson J. wrote, ‘The expression “expiration of incarceration” could either mean the full time release date or the date of a grant of parole if that were to occur.’[1] Her Honour referred to s. 19 Crimes Act 1914 (Cth) and R v Dobie [2004] QCA 140 and concluded that the day on which a prisoner was to be granted parole could not be the time for the commencement of the federal sentence. Therefore, the sentencing judge had erred and the applicant was to be re-sentenced. Her Honour, consistently with the sentencing judge’s apparent intention, suggested 9 October 2016 as the date on which the federal sentence was to commence,[2] the consequence being that Mr Knight would be released on recognizance on 9 October 2017, the day when the Queensland sentence will end. This was the court’s order. Implicit in that order was the court’s conclusion that Mr Knight should continue serving the sentence imposed in 2008 until the federal sentence commenced.
- [8]There were, then, two apparent problems in the sentencing process now under appeal. First, the learned magistrate appears to have considered a cumulative sentence mandatory. The commission of an offence while a prisoner may well draw a cumulative term but I am not aware of any provision requiring it in this case. Penalties and Sentences Act 1992 s. 156A did not apply. Second, the learned magistrate was denied knowledge of the cumulative federal sentence, which was a circumstance relevant to the exercise of discretion.
- [9]In his written outline, Mr Knight submits the sentence has deferred his earliest release date until 9 January 2018. It is his belief he cannot apply for parole until then. But that is not borne out by any document. I see no reason why he would not be eligible for release on parole on the same day he is to be released on recognizance under the federal sentence. Indeed, but that he sits in wait for the commencement of the federal sentence, it would seem he is eligible for release from the state sentences now.
- [10]The argument reduced to a challenge of the Court of Appeal’s decision and, in turn, a challenge to the decision in Dobie. Mr Knight argued that he should be considered to be immediately eligible for parole and that I should adjust the start date of the federal sentence so that he could apply immediately. This was, in effect, the argument rejected in Dobie. It is unnecessary to set out the reasoning in Dobie. It is enough to say that the Court of Appeal has fixed the commencement of the federal sentence and it is not for me to change that.
- [11]The matters I referred to in paragraph [8] compel an extension of time within which to appeal. The question is whether the sentence imposed was excessive. The circumstances are that Mr Knight, while serving a long sentence, offended as described above. His legal representative outlined a credible enough context for the offending. The appellant has demonstrated real steps in rehabilitation. While it was open to impose a short cumulative sentence, in the light of the quite exceptional circumstance that the appellant continues to serve out a long sentence to be followed by one year of the federal sentence before his release on recognizance, and in view of his steps in rehabilitation, I consider that the cumulative aspect of learned magistrate’s order made it excessive.
- [12]The orders will be that the application for extension of time within which to appeal is allowed, the appeal is allowed; the learned magistrate’s order is varied by deleting the order that the sentence be cumulative on current sentences.