Goodman v Commissioner of Police
[2017] QDC 252
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- Unreported Judgment
- Goodman v Commissioner of Police[2017] QDC 252
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Goodman v Commissioner of Police[2017] QDC 252
Goodman v Commissioner of Police[2017] QDC 252
DISTRICT COURT OF QUEENSLAND
CITATION: | Goodman v Commissioner of Police [2017] QDC 252 |
PARTIES: | MARKEESH DENITA GOODMAN (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | 11/2017 |
DIVISION: | Criminal |
PROCEEDING: | Appeal |
ORIGINATING COURT: | District Court at Mount Isa |
DELIVERED ON: | 21 September 2017 |
DELIVERED AT: | Mount Isa District Court |
HEARING DATE: | 14 September 2017 |
JUDGE: | Reid DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – SENTENCE – ABORIGINAL OFFENDER – ERROR OF LAW – where appellant pleaded guilty to one count of AOBH whilst armed with an offensive weapon and one count of trespass - where appellant was sentenced to actual incarceration – where appellant was the mother of an infant – where appellant was breastfeeding – where appellant had a deprived background – where the learned Magistrate did not provide explanation why actual incarceration was appropriate – where the learned Magistrate did not refer to any cases in support – whether sentence was manifestly excessive – whether the learned Magistrate failed to consider mitigating circumstances – whether the learned Magistrate failed to have regard to s 93(3) of the Penalties and Sentences Act – whether s 222 of the Justices Act supports error of law as a ground of appeal – whether literal approach of s 222 is adopted – whether error of law – whether a period of actual incarceration is appropriate |
CASES: | House v The King (1936) 55 CLR 499 Bugmy v The Queen (2013) 249 CLR 571 JKT v QPS [2014] QDC 298 Pullen v O'Brien [2014] QDC 92 R v Chong; Ex parte Attorney-General (Qld) [2008] QCA 22 R v Cui [2009] QCA 334 R v Kidner [2005] QCA 430 R v Meehan [1996] QCA 215 TND v Queensland Police Service [2014] QDC 154 |
COUNSEL: | Mr Kennedy (solicitor) for the appellant DA Marley for the respondent |
SOLICITORS: | Aboriginal & Torres Strait Island Legal Service for the appellant Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]The appellant on 4 July 2017 was convicted on her own plea of an offence of assault occasioning bodily harm when armed with a knife, and one offence of trespass. She was sentenced, on the assault charge, to a 12 month term of imprisonment with parole release after serving 4 months. She was fined $300 for the trespass. After serving a period of 16 days from 4 to 20 July 2017, she was granted appeal bail.
- [2]She appeals against the sentence imposed for both offences of assault occasioning bodily harm when armed and trespass.
Background
- [3]The appellant who was born on 12 November 1994 has a very minor criminal history. These are two episodes of prior offending. Each involved her possessing liquor in a restricted area, and with an associated offence of assaulting or obstructing police. Both offences occurred when she was 20 years of age, and were close together in time. She was fined on each occasion. Convictions were for some reason recorded on the second occasion.
Magistrate Court Submissions
- [4]Before the learned Magistrate the nature of the offending was set out in the submissions of the police prosecutor. He told the learned magistrate that the Mornington Island hospital, on the island where the appellant lived and where the offence was committed, had said that the injuries to the complainant’s neck were “consistent with a knife wound”.
- [5]The complainant is the appellant’s sister. At about 8.00am on 18 June 2017, some two weeks prior to the sentence, the appellant had entered the house where her sister lived through the front door and walked to her sister’s bedroom. The owner of the house, who also lived there, said that the appellant had not been given permission to enter the dwelling. That entry constituted the unlawful entry offence. It is apparent that at the time she entered the premises the appellant was unarmed, suggesting the AOBH whilst armed offence was not premeditated.
- [6]When the appellant entered her sister’s room she and the complainant had an “altercation”. The appellant then left. Her sister closed the door and attempted to barricade the appellant out by pushing a couch against the door.
- [7]The appellant picked up a bread knife from the kitchen and forced her way back into her sister’s room. The altercation resumed and during it the complainant suffered the injury to her neck earlier referred to. Another occupant of the dwelling entered the room and separated the appellant and her sister.
- [8]The complainant had what was described as “a large amount of blood” coming from her neck wound. She was walked a short distance to the hospital where she was treated. The wound to the complainant’s neck was described as being about 1cm deep and there were two other superficial lacerations to her shoulder. No details of medical treatment were given.
- [9]The appellant was said to have been too intoxicated to be interviewed by police.
- [10]No other relevant information or submissions were provided by the police prosecutor, though he did say that police were first alerted to the matter by a member of the public who told them of an assault and that the complainant had been “stabbed in the neck”. The prosecutor did not himself describe the wound as a stab wound, but confined his statement about the injury to the use of a bread knife, without otherwise describing it, and to saying the wound was “approximately 1 centimetre deep”. That is of some import because the learned Magistrate, in his sentencing remarks, said that the appellant had “stabbed” the complainant in the neck. That, in my view, was unsupported by the statement of facts made by the police prosecutor.
- [11]Before the learned Magistrate the appellant’s solicitor accepted that the use of a bread knife made the offending a serious example of assault occasioning bodily harm when armed but said that, fortunately, the wound “was not terribly serious” and that there were “no ongoing issues”. He said both the complainant and the appellant were drunk and had argued earlier during the night. Importantly, he said that the appellant and the complainant had reconciled. The appellant was said to have “an incredible amount of remorse”.
- [12]The appellant’s solicitor emphasised her relative youth, the importance of rehabilitation and her minor criminal history. He said the appellant had some issues with alcohol, consistent with her prior offending, which also related to alcohol, and with her conduct at the time of this offending. He said she had been “raised in a house where both parents would engage in violence against each other”. Each was said to have been a drinker. He said that in many respects she had come from a deprived and dysfunctional background.
- [13]Importantly, he also said that the appellant was the mother of a 6 month old child. Actual incarceration, it was accepted on the appeal, meant they would be separated. That in fact is what occurred during the 16 days of incarceration before appeal bail was granted.
- [14]The appellant’s solicitor, whilst accepting the need for general deterrence, submitted that a lengthy period of probation “would provide a longer ongoing period of supervision in the community” as opposed to a lesser period of imprisonment and parole. At the most, he submitted, immediate parole should be granted or a wholly suspended sentence imposed to run alongside a lengthy probation order. That submission was not challenged by either the learned Magistrate or the police prosecutor following the solicitor’s submissions.
- [15]The only comment by the learned magistrate during the appellant’s solicitor’s submissions was that his Honour asked whether, on the appellant’s own admission, she had a problem with alcohol. That was accepted by her solicitor who said that she had a tendency to binge drink but submitted probation would be able to address any underlying issues. He emphasised her young age and said that there was “a very real possibility that she can turn her life around”.
The sentence
- [16]His Honour recognised the appellant’s “very early plea at the first available opportunity”, but did not indicate how that impacted on the sentence he imposed. He agreed that “rehabilitation must be a significant factor” but said “so must deterrence”. Again, he did not say how either factor influenced his ultimate sentence. His Honour said he had “a real concern about the way that this event unfolded”, presumably referring to the appellant’s entering the dwelling sometime after an earlier argument, and also that after the initial altercation, and after she had been barricaded out of the room, persisted by forcing herself into the room when armed with a knife.
- [17]He said that the appellant then stabbed the complainant in the neck. I have indicated already that such a statement was not supported by the admitted facts. The sentence appears to have been based on the statement by a member of the public when first reporting the matter to police. Whilst his Honour did say that fortunately the wound was “relatively shallow” it seems to me that to have characterised the injury as arising from a stabbing, albeit not amounting to wounding (in that the true skin was not broken), rather than being cut, was an error in his understanding of what occurred.
- [18]His Honour indicated the appellant’s drinking was “a serious concern” but “can be dealt with on a parole order”. I interpose that in my view it could presumably also therefore be dealt with on a probation order, and in any case could be dealt with without subjecting the appellant to actual jail.
- [19]His Honour said:
“I do not believe, irrespective of the mitigating factors of your youth and the fact you have a child, against that we have a situation where you have injured someone in a potentially serious way with potentially serious consequences. In my view, it is appropriate that a period of imprisonment be imposed [and] that you serve a period of time in prison.”
- [20]His Honour fined the appellant $300 for the trespass offence, recording a conviction and on the assault occasioning bodily harm offence he sentenced the appellant to 12 months imprisonment, setting a parole release date after she had served 4 months.
- [21]His Honour did not explain in his sentence or during submissions why he concluded a period of actual imprisonment was appropriate or why immediate parole release or a wholly suspended sentence with probation, as the appellant’s solicitor had asked for, was not appropriate. He did not refer to, and was not referred to, any cases in support of the sentence he imposed or in support of the alternative sentence suggested by the appellant’s solicitor. It does not seem he in fact set out any reasons to support the sentence he imposed. There was, on its face, nothing to distinguish it from an entirely arbitrary sentence. Even the way he expressed it, namely that it was “my view” that it was appropriate that a period of actual imprisonment be imposed, implies such an arbitrary decision.
The appeal process
- [22]The notice of appeal sets out the following grounds of appeal:
- The sentence imposed was manifestly excessive;
- The learned sentencing magistrate erred in failing to have due regard to mitigating circumstances; and
- The learned sentencing magistrate erred by failing to give any or any sufficient consideration to s 9(3)(a) of the Penalties and Sentences Act.
- [23]Pursuant to s 222(2)(c) of the Justices Act, the sole ground of appeal is said to be against the severity of the penalty, the appellant having been sentenced upon her own plea. A question has arisen in a number of recent decisions of this court as to whether in such a case this section precludes an appeal based on an error of law. Like my sister judges in JKT v QPS [2014] QDC 298 and TND v Queensland Police Service [2014] QDC 154, I adopt the reasons of my brother Long SC DCJ in Pullen v O'Brien [2014] QDC 92.
- [24]His Honour concluded that the words of the section did not provide any further limitation upon the established principles that apply to appeals against an exercise of a sentencing discretion as set out in House v The King (1936) 55 CLR 499. His Honour said at [39] of his judgment:
“The different views which have been expressed in other cases can be seen to largely depend upon the adoption of a literal approach to the interpretation of s 222(2)(c), but it must also be considered that this approach, in part, depends on the application of the discussion of related concepts in cases which have been decided well after the enactment of this provision and in dealing with different statutory context and for a different purpose. In the context of the provisions of the Justices Act dealing with appeals, it would appear that the purpose of this provision was to oust the prospect of an appeal against conviction, where there had been a guilty plea or an admission as to the complaint and not anything else. In this regard, it can be noted that any other outcome would create a significant anomaly, in that the limitation would apply in such appeals (whether by a prosecutor or a defendant) and not apply in circumstances where there is an appeal against sentence, in respect of a defendant who had not pleaded guilty or admitted the truth of the complaint.”
- [25]I agree with that statement and with his Honour’s reasoning.
- [26]I should add that on the appeal the respondent did not disagree that I approach the matter in that way.
- [27]The approach to the appeal is thus governed by the following well known passage from the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King (supra) at p 504-505:
“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.”
Was the sentence infected by such error?
- [28]If the sentence was infected by such error it is necessary for the appellant to be resentenced in respect of both offences. If there was no such error then it is necessary to consider whether the sentence was manifestly excessive or whether the other grounds of appeal are made out.
- [29]In my view there are a number of such errors that fit within the ambit of error as explained in House v The King (supra).
- [30]I have referred already to the mistaken belief of the learned Magistrate that the complainant had stabbed, as opposed to her having been cut by a knife. In my view the former is an inherently more dangerous act than a cutting, of unknown nature, as was here the case.
- [31]Second, it is my view that in a case such as this, where actual gaol was not the only alternative, a point to which I shall return shortly, it was incumbent on his Honour to explain to the appellant why he nevertheless determined to impose such a penalty.
- [32]Third, although his Honour did refer to the fact that the appellant had a young child, he did not indicate how that was taken into account in his sentence or why that, and other mitigating factors (such as her early plea of guilty, her youth and her only very minor prior criminal history) did not dissuade his Honour from nevertheless concluding that actual imprisonment was appropriate. In particular, his Honour did not indicate his consideration of the profound effect of separation of a mother, perhaps still a breastfeeding mother, from a 6 month old child on the future wellbeing of that child. Bonding of a child and its parents at that age is critical. It may be that the effect of such separation was viewed by the learned Magistrate as no more than an unhappy circumstance to be taken into account. I do not suggest that his Honour did in fact approach it in that way, but the lack of expressed reasons means that it is now impossible to determine whether proper weight was given to that significant factor. Similar considerations apply, but perhaps with lesser force, to his Honour’s reference to the early plea, the appellant’s youth and relative lack of criminal history. In the circumstance of this case, there appears to be no reason not to conclude that the appellant’s prospects of successful rehabilitation, if placed on immediate parole or on a suitably suspended sentence with longer period of probation, are strong.
- [33]Finally, it does not appear that his Honour properly had regard to comments about social disadvantage, particularly in aboriginal communities, and its relevance to sentencing made by the High Court in Bugmy v The Queen (2013) 249 CLR 571. In that case French CJ, Hayne, Crennan, Kiefel (as her Honour then was), Bell, Gagelar and Keane JJ in their joint judgment said at p 592:
[37]“An Aboriginal offender’s deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender’s sentence. In this respect, Simpson J has correctly explained the significance of the statements in R v Fernando:
Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime.
[38]The propositions stated in R v Fernando are largely directed to the significance of the circumstance that the offender was intoxicated at the time of the offence. As Wood J explained, drunkenness does not usually operate by way of excuse or to mitigate an offender’s conduct. However, his Honour recognised that there are Aboriginal communities in which alcohol abuse and alcohol-related violence go hand in hand. His Honour considered that where an offender’s abuse of alcohol is a reflection of the environment in which he or she was raised it should be taken into account as a mitigating factor. To do so, he said, is to acknowledge the endemic presence of alcohol in Aboriginal communities and:
the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.
[39]The other respect in which Wood J proposed that an offender’s Aboriginality may be relevant to the sentencing determination is in a case in which because of the offender’s background or lack of experience of European ways a lengthy term of imprisonment might be particularly burdensome. In each of these respects, the propositions enunciated in R v Fernando conform with the statement of sentencing principle by Brennan J in Neal v The Queen
The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group. So much is essential to the even administration of criminal justice. That done, however, the weight to be attributed to the factors material in a particular case, whether of aggravation or mitigation, is ordinarily a matter for the court exercising the sentencing discretion of first instance or for the Court of Criminal Appeal.
[40]Of course, not all Aboriginal offenders come from backgrounds characterised by the abuse of alcohol and alcohol-fuelled violence. However, Wood J was right to recognise both that those problems are endemic in some Aboriginal communities, and the reasons which tend to perpetuate them. The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.”
- [34]The court continued further at p 595 as follows:
[44]“Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”
- [35]Finally, and importantly for parties representing an accused in all courts, it is critical to understand the evidentiary burden upon the accused to point to evidence of such disadvantage. Earlier, at p 594, their Honours had said:
“Nonetheless, the appellant’s submission that courts should take judicial notice of the systemic background of deprivation of Aboriginal offenders cannot be accepted. It, too, is antithetical to individualised justice. Aboriginal Australians as a group are subject to social and economic disadvantage measured across a range of indices, but to recognise this is to say nothing about a particular Aboriginal offender. In any case in which it is sought to rely on an offender’s background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background.”
- [36]In this case, whilst the material relied on by the appellant was not voluminous it was nevertheless sufficient, at least in circumstances where the police prosecutor did not disagree with the submission of the appellant’s solicitor and the learned Magistrate did not indicate any need for additional material to be tendered in order to have raised for consideration in this case the matters I have just set out. The appellant’s solicitor had merely said in his submission that his client:
“…was raised in a house where both parents would engage in violence against east other. They would drink in a way that in many respects could be said she was (from) a deprived and, in some respects, dysfunctional background. That itself is a mitigating factor as it provides some moral context with regards to her overall culpability for this offence.”
- [37]I said earlier that in this case actual gaol was not the only sentence available. Support for that proposition is to be found in R v Chong; ex-parte A-G (Qld) [2008] QCA 22. The respondent there had pleaded guilty to an offence of wounding, and was also in breach of an intensive correction order. She had, during a drunken argument with her mother and with her partner, armed herself with a knife and stabbed her mother, first in the leg and then twice in the back. She desisted of her own accord but had previously been convicted of unlawful wounding of her partner, also with a knife, and of other subsequent offences of violence, for one of which she was sentenced to an intensive correction order breached at the time of the subject offending.
- [38]Like the appellant in this case she had indicated a willingness to deal with her alcohol problems. She was clearly significantly older than the appellant, having recently given birth to her seventh child. The fact of her breastfeeding that baby was a significant factor in the sentence imposed for wounding, of two and a half years imprisonment, being subject to immediate parole release.
- [39]In the judgment of the Court of Appeal Atkinson J, with whom Keane JA (as his Honour then was) and Fraser JA agreed, said:
“[25]There is authority for the proposition that a person convicted of wounding is not necessarily required to spend time in actual custody. In R v Bell & Anor [1994] QCA 220, this Court, on an Attorney’s appeal, re-sentenced an offender who had pleaded guilty to unlawful wounding, from the two years probation and 120 hours of community service with no conviction recorded imposed by the sentencing judge, and instead sentenced him to imprisonment for one year, such sentence to be suspended with an operational period of two years. In the course of that judgment, the President observed at p5 that in a number of cases in the District Court unlawful wounding involving a knife did not result in imprisonment or led to an order that a prison sentence be suspended.
[26] Bell was a case in which a 22 year old Aboriginal man wounded his de facto partner when they were drunk and after many hours of argument. He picked up a knife and stabbed her in the heat of the moment. The stab wound was not serious and did not require suturing. With regard to the circumstances of social and economic disadvantage which related to the respondent’s residence at Cherbourg, the President observed of the attitude taken by the sentencing judge at p 8:
‘It was right for him to have regard to the respondent’s disadvantages and open to him, as a result, to sentence the respondent as leniently as the circumstances of his offence admitted. However, such disadvantages do not justify or excuse violence against women or, to take another example, abuse of children. Women and children who live in deprived communities or circumstances should not also be deprived of the law’s protection. A proposition that such offences should not be adequately penalised because of disadvantages experienced by a group of which the offender is a member is not one which is acceptable to the general community or one which we would expect to be accepted by the particular community of which an offender and complainant are members.’”
- [40]In such circumstances, I conclude the failure of his Honour to identify the reasons why he concluded that actual imprisonment was appropriate, his error in describing the incident as a stabbing, his failure to properly articulate the importance of considering the effect of the appellant’s separation from her child during the ordered period of incarceration and his failure to specifically articulate and address the issue and importance of the appellant’s social disadvantage all indicate error of the kind enunciated in House v The King (supra).
- [41]In that circumstance it is necessary that I resentence the appellant.
The appropriate sentence
- [42]The factors that in my view are relevant to the sentence have been previously set out in this judgment.
- [43]I am particularly influenced by the degree of hardship that would be imposed upon the appellant’s young child if the appellant were sentenced to a period of actual incarceration. The appellant’s solicitor submitted that it was an appropriate case for probation or for a prison probation order which would not require an actual sentence of imprisonment. The difficulty with such a contention is that, in my view, a prison sentence is required, albeit one not requiring the appellant to serve any period of actual imprisonment.
- [44]Pursuant to section 92(1)(b)(ii) of the Penalties and Sentencing Act, prison probation can only be ordered at the end of the term of imprisonment. In my view, a sentence of 16 days imprisonment, time already served, followed by probation is an inadequate sentence in the circumstances of this offending. As is apparent, for example, from cases such as R v Cui [2009] QCA 334 and R v Kidner [2005] QCA 430, the court regard offences of violence associated with the use of a knife as serious. In R v Cui, Keane JA, as his Honour then was, and with whom Muir and Fraser, agreed, said:
“This decision (referring to R v Kidner) confirms that where a knife is used to wound a victim, even a young offender with no criminal record must expect to serve a period of actual imprisonment.”
- [45]Chesterman J as his Honour then was, in R v Kidner relied in turn upon an earlier decision of the court in R v Meehan [1996] QCA 215 to similar effect.
- [46]In my view whilst a head sentence of significant imprisonment is require there is attraction to me in ordering probation, rather than parole, because of the particular circumstances of this matter. The appellant lives on Mornington Island, a remote and largely aboriginal community. In a more major centre parole can, and does, characteristically involve more frequent or intense supervision than probation. That is, I understand, not necessarily the case in remote locations such as Mornington Island. Probation in this case could be imposed for a longer period than parole having regard to an appropriate head sentence. It would be advantageous, in my view, that it be ordered.
- [47]It is I conclude appropriate to impose the following penalties. In respect of the offence of assault occasioning bodily harm with an offensive weapon, I sentence the appellant to 12 months’ imprisonment suspended after serving 16 days with an operational period of two years. I declare that the time of 16 days, between the 4th of July and the 20th of July 2017 be time served for the purposes of the sentence in respect of the assault occasioning bodily harm. In respect of the offence of trespass, I sentence the appellant to probation for a period of two years. I note that during the oral delivery of this matter the appellant consented to that probation order. I ordered she report to the Probation Officer at Mornington Island by 4PM on 21 September 2017. I record convictions for both offences.
- [48]The sentence of a $300 fine with respect to the offence of trespass is revoked.
- [49]I also explained to the appellant that the effect of a suspended sentence is that if, during the operational period of two years, she offends by committing an offence for which the maximum sentence is one of imprisonment, she can be brought back before the court and unless it is shown to be unjust, could be required to serve all or part of that remaining 349 days, being one year less than 16 days of presentence custody, imprisonment.